February 11, 2007
The Potter Stewart copyright rule
C and I listened to the Open Source Radio podcast of their recent show on plagiarism and copyright, “The Ecstasy of Influence” this morning. It’s a wonderful piece rooted in discussion of what it is to “plagiarize,” and the ways in which our law and culture attack the issue. Check it out, I’ll wait.
About 3/4 of the way through, the host challenged Mike Doughty to draw the line between artistically-acceptable “ganking” of a progression or a hook from a song in order to expand on it in a work of your own, and unethical infringement/plagiarism. Mike elided the question, and Siva Vaidhyanathan backed him up by saying that we’re at the point in early 21st-century copyright questions where case-by-case determinations of when an “artist” goes to far are really the only credible way to determine whether sanctions are required. He didn’t say the words “I know it when I see it,” but he came pretty close.
For those who don’t make a hobby of reading up on obscenity law, “I know it when I see it” is Justice Potter Stewart’s infamous formulation of the legal test for how to separate obscene texts from non-obscene ones. In the legal community it’s become a semi-notorious example of a legal standard that’s so vague as to be useless to any person who isn’t Potter Stewart. It turned out to be extraordinarily difficult to apply,1 and ended up being replaced by the not-much-better “community standards” test.
If the “I know it when I see it” test is the exemplar of judicial unworkability, then what do we make of Siva’s diagnosis that that’s exactly where we are in the copyright infringement space? After a short period of despair, I realized that the IKIWISI terminology is useful to the extent that it helps move the copyright conversation away from our traditional conception of copyright as property and towards a liability rule. After all, if copyright owners understood that what they had was not an absolute right to control the work, but a right to try to convince Potter Stewart that the use was unjustified, we might see fewer of the behaviors we view as abusive. Compare this to the situation in obscenity law, where we were concerned not with the payment of a royalty, but with the prior restraint of entire texts. The vagueness of the Potter Stewart test seems a lot less troubling in that light.
Oh, I’m back, by the way. And I am aware of each of the following:
- I have not posted anything in almost six months.
- There are around 10,000 comment spams cluttering the site.
- Bill Haydon just died
1 It also led to the bizarre scene of the Court watching allegedly-obscene films in a special screening room, and the even more bizarre (and possibly apocryphal) tale of a clerk having to narrate the on-screen action to his nearly-blind boss.
Posted by Rob Courtney at 10:18 AM | Comments (0) | TrackBack
July 13, 2006
Getting to know you: Tech policy and the class action
It’s become fashionable in the tech policy community to self-identify with environmentalists. You see it most when people talk about cultural environmentalism. But as a very green friend of mine told me on his way to Lawrence Lessig’s class, the analogy doesn’t seem very productive in its current form. Terrestrial environmentalism, after all, gains its strength not only from aesthetic concerns, but also straight human health issues. Cultural environmentalism, on the other hand, seems untethered to meatspace concerns and so comes off as very ivory tower.
Earthjustice has these great ads. I can’t find one now, but they have normal folks standing in t-shirts that say “plaintiff.” I love the ads because they encourage the viewer to consider how he himself is harmed when we drill in ANWR, or poison rivers, or drive Hummers. They take the issues out of the ivory tower and bring them to ground.
Last month I got a notice from AT&T that they had “clarified” their privacy policy to make it “clearer” that they own all my data and will use or release it as they see fit. Made me mad, but since my DSL was part of a six-month package, I can’t drop AT&T without incurring termination charges. Every one of AT&T’s customers is in the same boat, more or less. So I’m damaged by AT&T’s action, but lack the wherewithal to do much about it on my own. This is a great opportunity for a well-fought class action. I, and most of AT&T’s customers, would probably care less actually recovering our damages in this case than just sending a signal to AT&T that this kind of thing has very real costs.
The net policy arena is full of these small-damages, widely-spread kinds of claims. Vigorous class action prosecution could really defuse egregious corporate behaviors that don’t quite cross the threshold of unlawfulness. And it’s not just privacy policies—class actions are a potential mechanism to get companies to take security of customer information seriously, too. This year C and I have received three notifications that laptops with our personal information were stolen from various corporations entrusted with that infromation. Knock on wood, our actual damages from this are very slight—but each one of these breaches involved hundreds of thousands of people. Classic class action stuff. And increasing tiering of the net could give rise to class action type relief as well.
I imagine there is some private litigation going on in these areas. But there is an obvious space for one of the big ideology groups to step in and inject some high level coordination, as well as impressive resources and skill, into moving things to the next level. EFF? CDT? ACLU? Think about it.
Posted by Rob Courtney at 02:03 PM | Comments (0) | TrackBack
June 21, 2006
Procrastinatr and the Power of Social Hacks
If you follow Mac news/reviews at all, you’ve probably heard or will hear about the Procrastinatr fiasco. The brief recap is that Brian Sutorious, a college kid, posted a hot new “app” called Procrastinatr, that promised to help Mac users organize their lives better. Somehow it got picked up at TUAW, that’s the above link (Procrastinatr.com is dead now), and a whole bunch of well-meaning Mac users, probably productivity geeks, downloaded it. The only problem was, Procrastinatr was a trojan. When you ran it, it used AppleScript to move all your iCal events back a week. And Procrastinatr didn’t prompt for an Admin password because iCal files, like most user-created files, are in ~/.
Good joke? Bad joke. But a wonderful cautionary tale; a whole bunch of Mac users willingly installed and ran Procrastinatr (I confess, I visited the site and considered downloading it); now everyone is reminded that the net is basically Deadwood.
Is the Mac a secure computing platform? I guess it is resistant to true viruses. But security means being an active, thinking net user. “Files Are Not For Sharing” is a joke, but “Look both ways before you double-click” is not.
Posted by Rob Courtney at 05:39 PM | Comments (0) | TrackBack
June 20, 2006
How do you grow a “neutral” net?
I’ve been waiting for the other shoe to drop on the net neutrality issue for some time. The whole thing seemed too easy. On the one side, plucky proponents of neutrality (the Good). On the other, greedy advocates of traffic discrimination (the Bad).
Over at the Weekly Standard, Andy Kessler has has identified the Ugly—and it is our stagnant market in information carriage.
Net society’s no longer satisfied with a high-penetration network; we want it to also get faster and faster, forever. Kessler points out that the only ones in a position to make that happen—the telcos and cablecos—lack incentive. It’s way more profitable for AT&T to just keep charging out the wazoo for international calls than to build out. And it’s more profitable for Comcast to charge you $100 every month for the same TV. Companies like these might (maybe) make infrastructure investments if there were a really big carrot before them, like the opportunity to extract rents from the big companies doing business online; if they’re prohibited from doing so by net neutrality rules, then there’s no carrot and the likelihood of real infrastructure investment goes to zero.
Talk about a Hobson’s choice. Either you give up on neutrality, and hope that in their graces, the telcos/cablecos decide to become aggressively pro-consumer (*cough*), or you embrace neutrality and resign yourself to a lifetime of watching “Lost” in 320x200 on your giant plasma.
Unfortunately, having done a great job identifying the problem, Kessler doesn’t do a great job identifying any solution. Carrots aren’t working, he says, so let’s try a stick. His proposal is to maybe threaten a government takeover of the entire infrastructure—that’ll put the fear into ’em, he thinks. Personally, I doubt that that would work. But Kessler’s thinking about the problem in the right way.
A better stick? I’ll take a shot: Aggressive public—federal, state, municipal, whatever—subsidy of mesh networking. Get these things out there using whatever moneys you can find, get them fast, and get them working. If they need access to the backbone, give it to them at public universities and other government-owned facilities. Whatever you do, give the telcos/cablecos no influence over the project—no connections to the backbone, no IP assignments, nothing. If you need space to put the repeaters, use eminent domain to get them up on the telephone poles for added “in your face”-ness. Encourage startups to come up with new (and, initially, low-bandwidth) uses for these things, probably with an initial emphasis on locally-oriented content. Then start looking for ways to get the bandwidth higher.
Once the telcos and cablecos start seeing a potential lunch-eater right in their own back yard, spurred forward with public money but not quite publicly-operated, they might get a reality check and really innovating on their networks even in an atmosphere of neutrality rules.
Remember those stories about how much AT&T hated packet-switching in the early days, and it was only because of DARPA and the public universities and a few key startups that anything happened to get AT&T off its butt and innovating? That’s where we are now. We’re not trying to move to publicly-owned information carriage, just private operation that’s got the right kind of incentives. It just takes a little bit of guts, in the right places. Where have you gone, J.C.R. Licklider?
Posted by Rob Courtney at 02:00 PM | Comments (0) | TrackBack
March 23, 2006
Net neutrality v. tiered service
Preston Gralla’s blog entry claiming that FCC Chief Kevin Martin has endorsed AT&T’s (and other ISPs’) ability to extract rent payments from popular web services, and citing it as the end of the open Internet, is getting a ton of play today. But is that really what’s going on?
Gralla points to a news article, also on Networking Pipeline, that directly reports on the Chief’s comments with a bit of much-needed texture. Martin came out strongly against any kind of intentional blocking or degrading of unaffiliated web services, but wavered on, or maybe even endorsed, ISPs’ ability to contract with web businesses to provide preferential bandwidth. Gralla’s point is that this is simply the converse of intentional blocking/degradation, and that small sites won’t have access to these new SuperPipes. But aren’t we already sort of in that position? You can’t serve up serious traffic without some kind of caching/peering system like Akamai, right?
Thinking out loud here… assuming that these “tiering” agreements become part of the landscape, couldn’t Akamai (or an Akamai-like enterprise) enter into such agreements with the ISPs and then share the cost out to the small providers? If that’s the case then the question is: is such an arrangement (in which service providers share some of the infrastructure cost) better or worse than denying the ISPs the ability to “tier” service and requiring them to recover all their costs directly from their subscriber base?
Posted by Rob Courtney at 09:25 AM | Comments (0) | TrackBack
March 22, 2006
Patents at the Supreme Court
So far in U.Id’s short life, there’s been a bit of copyright discussion but nothing on “the Other White Meat” of intellectual property, patents. Mea culpa.
The oversight has a special sting this week, with two major patent cases before the Supreme Court. C and I watched the “Nightly Business Report” last night, which gamely tried to cover yesterday’s oral arguments in LabCorp v. Metabolite but ended up conferring little more than that it had to do with subject matter. Pish posh!
You deserve better than that, Dear Reader, and because I care here are a few words on what’s going on in Metabolite and in the other major patent case of the Court’s term, eBay v. MercExchange.
LabCorp v. Metabolite—LabCorp, plaintiff, holds a patent covering techniques used to study deficiencies in a certain body protein. One of the claims (lucky no. 13, as it happens) specifically covers:
13. A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of:
assaying a body fluid for an elevated level of total homocysteine; and
correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate. (Emphasis added.)
It’s that word “correlating” that’s causing the problem here. Defendant Metabolite argues that granting patent rights over such a broad range of activities as “correlating” implies amounts to granting LabCorp a monopoly over a basic scientific relationship. It’s kind of an indefiniteness/subject matter/written description argument. It’s semantic at some level, but when you think about the broad array of “inventions” that seem patentable these days, it’s probably useful for the Court to refine our limits about how well-defined an “invention” has to be.
The Court heard oral arguments on this one yesterday.
eBay v. MercExchange—This is a lot more high profile, you might have heard of it. The question here doesn’t concern the scope or interpretation of the patent, but what the remedy should be when a patent is infringed. The two patents involved are held by MercExchange and were found by a jury to cover eBay’s (and its subsidiary Half.com’s) eponymous “Buy It Now” feature. The “usual rule” in such cases is for the court to enjoin further practicing of the patented invention in the absence of a license from the patentee. eBay successfully convinced the District Court to forego the injunction and simply make a damages award of $29.5 million. MercExchange successfully appealed to the Federal Circuit, which ordered the lower court to grant a permanent injunction. eBay has appealed to the Supreme Court.
The basic question here is whether patentees who succeed at trial are “entitled” to a permanent injunction, or whether courts may in their discretion grant alternative remedies. There have been a plethora of briefs filed by numerous parties, including EFF, which pointed out that there may be public interest reasons why a court would decline to grant a permanent injunction in these cases; and two contesting groups of law professors (a group headed by Mark Lemley filed in support of eBay; one headed by Richard Epstein filed in support of MercExchange). eBay (and its supporters) are calling for flexibility; MercExchange (and its supporters) seek certainty in the rights that a patent establishes.
The Supreme Court will hear oral arguments on this one next Wednesday, the 29th. If you start reading up now you’ll be ready to lead discussion around the water cooler at the office.
Patents aren’t as “sexy” for tech policy people to study as they ought to be. These cases, as well as lots of others before the Supreme Court and the Federal Circuit, are going to influence billions of dollars of scientific investment in health, environment, information, and societal concerns. The patent system is the glue that holds the gears of our innovation culture together! We need to understand it.
Super thanks to Dennis Crouch and his fantastic Patently-O blog, particularly Sunday’s post describing MercExchange and Metabolite, to which this post bears an obvious relationship, and his unbelievable March 14 post that summarizes every brief filed in MercExchange. The man is superhuman. Check out his blog for some extremely high-quality analysis as well as copies of all the filings in these and other major patent cases.
Posted by Rob Courtney at 10:29 AM | Comments (0) | TrackBack
March 12, 2006
A cultural ecosystem on a planet made of wires
Yesterday Susan Crawford spoke about “Network Rules,” a.k.a. the “substrate-independent Internet.” Her major bullet point was the “us/them” conflict that’s going on over Net neutrality. They (the telcos/cablecos), tired of Google eating their lunch, are now trying in Congress to eat Google’s (and, by proxy, the lunch all future Net innovators) by wrenching the Net from a “Wild West” condition to Celebration, Florida. Susan argues that the cablecos and telcos feel not just threatened by but indignant at the idea that the people and firms who build and maintain the network’s hardware might not automatically receive a sort of moral imperative to also control its traffic. When you analyze that position, it comes down to this: on their preferred networks, content that’s not explicitly authorized to flow, doesn’t. Susan argues, with merit, that on such a “vertically-integrated” network, a great deal of innovation that we currently take for granted is going to be stillborn. Whole forms of persistent group interaction, including forms of which we don’t yet conceive, will never even come to be. What a loss. [ 1 ] In order for these interactions to flourish, we need public policy that severs any connection between the hardware and the traffic. Hence the term, “substrate-independence.”
Susan urged her audience to take heed: as intellectual property law was the lingua franca of first-gen Net law and criticism, so communications law will be the currency of the new generation. Witness the mischief that the FCC is up to lately, and Congress, and all the debate over Net neutrality. We accept that.
But just a few hours before, Jamie Boyle said that, “while [his] DMCA-hating credentials are as good as anyone’s,” he’s concerned that we’re overemphasizing digital concerns, possibly at the expense of what’s going on in biotech and pharma, as well as elsewhere. Neil Netanel, responding to Susan’s paper, said something similar, urging Susan to link her defense of the open Internet to “real-world” concerns, like ending poverty or hunger. And Julie Cohen urged us to dispense with “cyberspace exceptionalism” and look towards more conventional means of creating meaning.
Of course, these are tactical disagreements. Everyone in the room here wants to see a free and open Net. [ 2 ] But we should exercise care in our tactical choices. This writer, at least, wonders if linking our discourse re Net openness to, e.g., the fate of ideas in other important areas risks turning our ocean into a bunch of rivers. Even if the digital-cultural environment doesn’t quite, and I think we have to concede this, deserve the white-hot spotlight it’s gotten in some quarters, it is unique among the other cultural environments in that it’s entirely built on an artificial lattice. The lattice’s construction loosely reflects the OSI layers—you’ve got your physical layers (wires, RF spectrum), your data link layers (Ethernet, 802.11x), your network/transport (TCP/IP), etc.—but you’ve also got the recent attention focused on controlling the ends of network communications. There are individuals and firms with the power to alter that lattice in ways that could have indelible effects on this environment, in a remarkably short period of time. Near-term extinction for important aspects of the digital-cultural environment is a possibility.
The notion of substrate-independence for the Net is, at least for now, aspirational and not descriptive. Tactical choices should be made with this in mind.
[ Edit: Susan has posted a précis of her talk over on her blog. ]
[ 1 ] Susan offered a wonderful metaphor here—the Net as ocean, in which mighty creatures, some known, many not, swim and interact. And it’s full of geothermal vents, some known, many not, that are catalyzing new creatures every moment of every day. For this writer, at least, these images evoke the sense of wonder that most Netheads feel, but that hasn’t yet spread to many boardrooms or to Capitol Hill.
[ 2 ] Mark Lemley crystallized that it’s really about tactics, saying (paraphrased), “When I read this paper, and it seems to lead to a conclusion that We, the Internet polity, are going to simultaneously rise up in order to defeat this attack on the open Internet, it just makes me think, ‘Oh sh**, we’re going to lose.’”
Posted by Rob Courtney at 11:27 AM
March 07, 2006
Net neutrality and how cell networks are eating the Net
A post on network neutrality has been in the hopper for a while.… Now that Ron Wyden has dropped a bill (S. 2360) on the subject (Thanks Traceroutes), a few words: [ 1 ]
Maybe I don’t get around enough, but I don’t know a single person who is unabashedly enthusiastic about the Net-enabled services they get from their cell phones. For better or worse, these networks are developing as discrete “silos,” and who your carrier is determines who you can get content from. Remember all those ads during the Super Bowl about getting sports clips from ESPN on your mobile? Did you notice that the ESPN service is only going to be available on Sprint’s network? What if you use Verizon, or T-Mobile, or Cingular? Well, you might be able to get sports content from someone else, but at least for the time being, you can’t get it from ESPN.
That’s because the cell networks aren’t traffic-agnostic. They’re designed to carry traffic—and only traffic—that’s been preapproved by the network operator. In this case, ESPN (Disney) and Sprint came to a deal, some money changed hands, some access codes were exchanged, and voilà!—ESPN content appears on the Sprint network. Without the deal, though, the content doesn’t flow.
Compare that to the Internet. When a user develops some kind of compelling content, s/he contracts with a host, uploads some files, and is open for business. His/her content is available on an equal playing field with all other content. Of course, the traffic might get too high (Ed: Not yet a problem for U.Id), but there are services like Akamai that offer caching and other traffic spreading services to ease the burden.
What’s happening now is that the ISPs are trying to push us from the “historic Internet” model to the “cell network” model. Executives at firms such as AT&T—I mean at&t (née SBC)—are starting to make high-pitched chittering noises about requiring rent payments from Internet resources that utilize the ISPs’ bandwidth. [ 2 ] The logic is that, if ESPN is paying Sprint for access to its network, then Google (for example) should pay every ISP for the same thing.
Moving to that kind of an architecture would make the ISPs the most important policymakers for the Internet. They could decide what traffic to emphasize, what traffic to deprioritize, who gets what, when, and how. Under the current system, such questions are answered by and large by the global community of users through a decentralized dialectic of links, commentary, negotiation, argument and, above all, mouseclicks. The ISPs argue that that’s an inherently inefficient system. But it seems to me to be the worst form of governance except for all the others. Putting the ISPs in charge serves nothing but to entrench large firms’ already-startling influence over media and culture.
In this correspondent’s opinion, Senator Wyden is on the right track. Network neutrality is a linchpin of the modern Internet, and the attempts of the ISPs to move back on that should be resisted.
[ 1 ] I don’t have the room here to properly go into the technical details of neutrality, and I could never do so with the thoroughness and clarity of Ed Felten’s two recent posts on the subject: Nuts and Bolts of Network Discrimination, parts 1 and 2. Check it out.
[ 2 ] Of course, users are paying for access to that bandwidth. So the ISPs’ characterization that they “own” it is not quite apt.
Posted by Rob Courtney at 11:19 AM
March 02, 2006
MN-GOP: At bedrock, still digging
Bob Collins at MPR’s Polinaut blog is tenacious! Not satisfied with revealing the Minnesota GOP’s nefarious data-collection activities, he went in and decompiled the flash program responsible for collecting voter responses and transmitting them back to party HQ. And lo, what he did find…
Turns out that, at least as of Collins’s writing, the voter information database was entirely unsecured, and a skillful, er, blogger could review pretty much all of it at his leisure. It doesn’t sound like Collins “hacked” the database in any meaningful sense, he viewed it on an unsecured web site.
Undeterred, MN-GOP stands by its plan to have these CDs mailed out to voters on Friday, saying that “security” (whatever that means) will be installed between now and then. That is to say, tonight. They will construct an entire security system, from scratch, for a large database accepting input from thousands of distributed sources… tonight.
Of course, Gov. Tim Pawlenty wasn’t up nights coding this monstrosity—or was he? No, this is the proud work of a company called CH Consulting. Were security or transparency part of the design docs for this product? Maybe, but I suspect not, or at least not seriously. Marketing firms, at least in my experience, view consumer data not as personal but fungible. If they ever did build security into a product like this, it would be to protect their own data, not that of the people it describes. I don’t mean to condemn them, but to offer an explanation as to why they—and other corporations—lack incentive to protect data the way we as consumers want it protected. It’s a situation where background regulation is ultimately going to be needed.
Posted by Rob Courtney at 10:17 AM
March 01, 2006
Plug: Cultural Environmentalism conference @ SLS
Jamie Boyle’s ideas about cultural environmentalism are fascinating. I believe there are myriad unexplored links between technology policy and environmentalism, and it’s something I hope will be a major part of my career. Of course, Boyle and many others are primarily concerned with the “environment of ideas,” while my interests are increasingly on the physical environment, but thinking about the intersection of the two is productive all round.
Imagine my excitement to learn of SLS’s upcoming conference on these issues, with talks by Boyle, Jack Balkin, Peggy Radin, Jessica Litman, and Mark Lemley! Then imagine my disappointment when I realized that the conference opens on the same day as the MPRE, for which I must haul myself to hateful Walnut Creek. Alas!
Posted by Rob Courtney at 03:10 PM
MN-GOP, like everyone else, is profiling you
When the weather gets cold, Republicans’ minds turn to mischief. Drew informed me yesterday (MeFi linked it too) of a Minnesota Public Radio report that the GOP in Minnesota is distributing a CD-ROM that solicits users’ opinions on various matters of politics, then phones party HQ with their responses.
What’s notable here is not the outrageousness of the act, but the outrageousness of the proposed fix. MPR spoke with a GOP spokesman who intimated that the privacy issues here would be fixed with proper packaging. To quote: “The cd’s packaging will make clear that the cd is interactive in nature… . [It is a] very similar process to if you got a free AOL cd at the grocery store.”
If I may be so bold as to translate: the fix here is fine print. That is, a privacy policy, either printed on the sleeve or, at best, in a clickthrough. MN-GOP can offer this as a Real Solution, and with the state of privacy discussion these days, privacy activists can’t really do anything but grudgingly accept it. Of course, it’s unlikely even to make a 5% change in the quality and quantity of data the GOP gets, but they’ll have a contractual fig leaf. Raise your hand if you’ll promise to read MN-GOP’s privacy policy… and your Windows EULA, and every word on your credit card statement, and the fine print on your Safeway card, and—you get the idea.
That’s not to minimize the issue here. It’s terrible what the MN-GOP is doing, and I’m glad they’re getting it right in the keester, which probably has a core temp of around 70°F right now. But something more robust than fine print is in order. Can you hear me Microsoft and Apple? I keep hearing that Vista and OS X will make me more secure… how about a nice big alarm box—like the ones I get on OS X alerting me not to engage in copyright infringement—that points out malfeasant software in bright red letters? I thought P3P was just the first step.
Posted by Rob Courtney at 10:09 AM
February 22, 2006
Thumbnails should be fair use
By now you’ve probably heard, Perfect 10 has obtained/is obtaining an injunction from C.D. Cal. against Google relating to the Google Image Search. You can read the order here. P10 brought a series of direct, contributory, and vicarious infringement claims against Google, but the only one that seems to have stuck is its claim that when Google creates and posts thumbnails of the images identified by the engine, that’s a direct infringement of P10’s copyright.
It sounds like what tipped the scale for Judge Matz was the fact that Google derives revenue from Image Search by dint of the AdSense and AdWords programs, and that counsels against a finding of fair use. Moreover, he seems to have been convinced that some cell phone users will download Google’s thumbnail-sized porn instead of the thumbnail-sized porn made available under license from P10.
This order shows just how badly the fair use test needs to be updated. While Judge Matz’s application of the test is basically reasonable, it leads him to miss the spirit of what Google is doing, and the economics of search. Thumbnailing makes search work better. In the case of image search, it basically makes it work at all. Giving P10 (and others like it) a property interest in things like thumbnailing achieves nothing more than to make the net harder to search for users, while conferring practically nothing to P10, since transaction costs will prevent real search tools from emerging in such a completely propertized world.
A liability rule is such a better answer here. Or even, gasp, a compulsory license. Oh well.
Posted by Rob Courtney at 02:05 PM
February 15, 2006
Posner: No controls needed over executive data mining
Discussing the domestic surveillance program, Richard Posner:
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration’s political enemies. That danger is more remote than at any previous period of U.S. history.
I read this as Posner saying, “It doesn’t matter what the data says, or who has it, or how they got it. The flow of data in and out of the executive should be entirely unregulated. All that matters is what the executive does/does not do as a result of accessing that data; we’ll regulate those behaviors directly.” It’s shades of Scott McNealy. But does it make sense?
No. First of all, Posner’s blunt assertion that the only risk here is political blackmail is unsupportable. What about discriminatory enforcement of domestic law? Or people within the executive converting the data for personal gain? Or the risk that the databases assembled by NSA will be compromised, thus enabling any number of malfeasances against millions of people?
Second, Posner’s equally startling assertion that the risk of political blackmail/intimidation is vanishingly small seems incredibly detached from modern politics. Campaigning on both sides of the aisle is ruthless, and there’s every reason to believe that a database with potential to reveal politically-advantageous information would be exploited to its fullest—particularly if that database lacks the procedural safeguards that come with legislative oversight. As mining tools get more and more sophisticated, and the database grows, the possibility of someone extracting political advantage from such a system approaches 1 incredibly fast.
Posner’s judicial empiricism is sometimes frustrating, but it does teach one thing—think seriously about the costs and the benefits of a chosen policy. Sweeping costs under the rug doesn’t help anyone.
Posted by Rob Courtney at 03:26 PM