Week 4: The Harmful Speech Hot Potato
September 24, 1998
| JZ: | Talk amongst ourselves and
see what we think so far. Before we actually actually get into the substance there’s
some question about the paper requirement at the end of the course. I’m mindful that
the question and answer that takes place every week is itself quite a word product and
it’s an amazing portfolio that’s growing under each person’s name as that
happens. And that counts for a lot. The paper is sort of like a 15 to 20 kind of thing,
not a big deal. But potentially an opportunity to write something in a way that is not the
traditional way you write a paper for a class. Not the least reason of which is that you’ll have a chance to put the abstract and then the draft into the same system that the questions and answers go into, and at least one other student in the class will be able to offer you responses, and you will be asked to offer responses to at least one other student. And that, hopefully, will lend itself to better papers and more interesting as you go along. I guess a word of general advice about it; an un-fun paper is one that’s a typical survey of an area of law. So, electronic commerce raises many interesting opportunities and perils for people who use the Internet. Okay, that is a topic sentence, I give it back. But it’s probably not the best one and it ends up with a paper that sort of tries to be as of this time in 1998, this is where everything stands kind of thing. So instead of trying to pull a Britannica, it’s actually much better to imagine a thesis of some kind that states a contestable proposition. Something that’s actually not obvious, therefore maybe patentable, but that’s a different class. Not obvious, novel, and something that is quite interesting. You’ll find that if you actually frame the thesis that way the rest of the paper, quite naturally, can be itself. Because you suddenly find yourself arguing for it or against it in a way that’s organizing but otherwise would just be a big pile of facts. So the paper is meant to be a real opportunity to delve into some aspect of the class. Taking off on any of the individual classes we’ve done is great. If you’ve got any other idea, as long as it’s in some way related to technology, that’s fine too. As you can see we’ve gone pretty far afield in trying to pull together the different threads. At some of the review sessions coming up hopefully we’ll see it coming together. So, that’s kind of the vision for the paper. There is a take home exam option, which I encourage you not to avail yourself of. Particularly as it comes time to think about writing an abstract and everything, it may be easier to punt at that time and say I’ll do the take home exam. I will do my utmost to make sure you regret that decision at the time. Taking it to the limits of due process and fairness. So, it is there. It is not a Hobson’s choice, it will actually be a real option. But, again, I clearly encourage you to think about doing a paper for the course or some other project that you might wish to discuss with me. You’ll find that the other two projects are moving along. The moot court, we’ve moved the date a little later to make it actually something realistic, that somebody could prepare a brief for in time. By the time we’ve got moot court, which I think is November 11th now, a Wednesday, anybody who wants to be involved in that will have prepared a draft brief, perhaps be prepared to argue in front of a panel of what I hope will be quite illustrious judges, on a case involving a law against term paper mills on the Net. Actually based on a paper that was done last year by Aaron Grossman, who’s here in class today. So he knows the details and is helping to develop the primary material for what will be the case. I know two people have already come forward saying they want to do it. I’m happy to make it two teams of two, particularly because people seem to have disparate preferences about whether they actually want to get up and be fried by three judges or just work on the brief alone. So, that should be, actually, a great opportunity. I know at least one person has come forward to be the scribe of the class and think about that, if anybody wants to be in on that you can let me know as well. So, any questions on sort of the paper and other kind of desultory requirements aspects? Yeah? |
| __: | What’s the length of-- If we want to turn it into our third year paper? |
| JZ: | The third year paper,
there’s some screed in the midst of the HLS catalogue that says about third year
papers. It’s one of those documents that you read it and you don’t know any more
than you did before you read it. It sounds right at the time. It’s like any good
judicial opinion. It basically is some extra oomph, some factor plus as the judge in the
Blumenthal case said when talking about jurisdiction. Some further fact that would make it
more than just your run of the mill paper. I am, by no means, a formalist about it. A
hundred pages may naturally happen as you delve into a subject but I’m certainly not
asking for it. It more reflects depth and kind of the research and activity that goes into
it. And the quality rather than the sheer amount of celluloid that’s gone into it on
paper. Any other questions on administrative stuff? I have no idea what the temperature will be like today. It seems already a bit nippy in here. But we’ve alerted building ops top the fact that it is a bit freezing. Alright, well that said, I promised we’d pick up where we left off last week. I’m sorry, my memory has kind of faded since last week. It has actually been seven days. But when we left our heroes they were arguing over what exactly the problem was when you’re talking about privacy and what the right solutions were once there was an understanding of what the problem was. Solutions ranged from typical government interference, rule, and sanction, we’ll punish you and get you, and then publicize it so we don’t have to actually go after everybody to keep others in line. Versus some kind of code solution that’s enabling both consumer and merchant to communicate better about the terms of privacy and that was in the form of P3P, about which there was some distinct debate on the panel. So, I just want to throw it open, actually, to both questions and comments without being more directive, if there are some. Yeah, Eli? |
| ELI: | Sure. Well, I thought it was a very interesting panel. I thought what came out of the panel, from my perspective, was that the two options weren’t mutually exclusive. I think that it’s important to society to give a clear indication of what they feel is right and is wrong in terms of that new medium. At the same time I think P3P and other technologies offer a good medium in terms of trying to provide some kind of remedy and some kind of solution to the problem. So, I think they’re not mutually exclusive and I think that, for example, in Canada we’re looking at a light legislative approach. But we’re not ruling out necessarily some technological approach, as well. I thought the panel brought that out and the gentleman that said, heading up the P3P or at least was associated with that, made the point that it wasn’t necessarily exclusive from a legislative framework. |
| JZ: | It is interesting though
because you got the sense that not a lot of Web sites had thought much about privacy
policies one way or the other. Some may share their information, some don’t. If
prompted to do it, either by some law or by having to make their site P3P compliant,
they’ll think about it. But it’s sort of doesn’t get to the question of
enforcement. If you have sites that say sure, we won’t use your information,
what’s to stop them from actually doing so. Is the FTC going to-- Is there any record
they can subpoena, is there something they can do that would go beyond we had an intern
our office look at the sites. They didn’t have privacy policies, therefore
there’s a problem. It’s either some kind of ...(inaudible) enforcement or this
private actor. You know, the Center for Media Education comes in with allegations and somehow puts the attack dogs on to it. Is that sufficient to keep the site bound to the promise it’s making through P3P? |
| __: | I think right now there are both private and public remedies to solutions. So I think they would use, in this case, with private and public remedies as well. I think potentially third parties coming in and putting a complaint for possibly the state going after certain vendors is also another option. The problem, of course, is the magnitude problem and the resources available for the state to do is probably unmanageable. So, I think that probably the right private action, with some technological aids to be able to pursue that is probably a balanced approach. |
| JZ: | Now this is still defining
the problem as people gather some information from you and then typically send you junk
mail or some other solicitation that’s designed to appeal to you because of
characteristics you’ve indicated about yourself. Whenever that seemed like not enough
to kind of get people up in the morning and get them excited about privacy, there was this
lingering hint about something much more nefarious. Which was there would be private data
about you that could somehow be collected on the Net. In fact, one lady divided it up
between stuff you give under some terms and then those terms are either held to or not.
Versus stuff that’s just collected, these so-called mouse droppings. So that as
you’re walking around on the Net, things are known about you as you look at various
sites or click on various images. And that data somehow gets accumulated and then passed
around. And that may be more or less insidious as you do it. There was also this hint that anything from the Star Market Advantage Card, which I take we all know to be something by which they can connect you to the products you buy and therefore know that you happen to be a Bob Evans sausage lover, which may then be useful either in sending to a health plan to deny you coverage at some point, or to send to an employer to-- I don’t know. Deny you health coverage at some point. I mean, you can imagine reasons why you’d be embarrassed if you were a Bob Evans sausage lover. And the more individualized the way in which it comes to bear, the more troublesome it may be. When pressed for examples of that what’s your worst nightmare here. Most of it appears, from what we can tell, to be prospective. We don’t yet have the kind of Panapticon database that the employer could go to, key in your name, and find out a bunch of stuff about somebody keyed to all those little innocuous bits of information that are summed up. We know that such a database would not include video rental records because that’s been specifically protected against by Federal law. But other such records could be in such a database but as yet aren’t. Did you, Scott, have a thought? |
| SCOTT: | Yeah. Well, this is a
question of mine after the last class. But looking at what potential worst-- I can
approach it what’s the worst thing that could possibly happen. The two scenarios that
I’ve come up with are a serious invasion of your privacy defined by what conventional
standards, by whatever existed before the Net came about. I’m presuming that in most
of those cases there are laws against that. Harassing phone calls or harassment of any
kind that gets to the point where it’s really impeding your life. And then the second
kind would be kind of a media home linked political thing where reporters can access
embarrassing information and show that you’re a Bob Evans sausage person. I think
that that’s a problem within a narrow sphere but that’s a problem even without
the Internet. In terms of where do you draw the line as to what should be public and what
should be private. But with respect to this harassment type, I would like to find an example of a worst case scenario that isn’t protected by laws currently. I’m not sure that there are. |
| JZ: | Yeah, Alex? |
| ALEX: | Well, I guess what worries
me is the database, it’s not so much the Internet but it’s the power of
databases. I view a worst case scenario; let’s say I work at a company that’s
down the Mass Pike and they want to know every-- You know, what time I get to work in the
morning. They could just query an Easy Pass, that the Mass Pike might sell them the Easy
Pass records quite easily. There’s nothing right now protecting that database as far
as I know, no laws. So, the question is do we go about protecting each individual database
of public information. I mean, I’m not saying that my records are private. I’m just saying the collection, the amalgamation of the database rises to the level of specificity about my daily life that even though they’re all public facts; when I get up in the morning, all that, when I leave the house, all of it public, collected together that scares me. |
| JZ: | Of course then you get into the deadbeat dad response. Which is the best dream. Instead of the worst nightmare it’s take a database, assembled for any purpose, and if there’s a way to indicate who’s a deadbeat dad in it and track that person down and get them for child support, why that’s got to be a wonderfully serendipitous, but beneficial, use of the database. If somehow the deadbeat dad were throwing money into the turnstiles, you could imagine you have to throw in that much more before the thing goes up and the balance will go to pay off your child support. Something like that. You get a massive walking bill from your One Pass card, after just taking one trip on the turnstile. |
| __: | Sure. I mean, I love the deadbeat dad example because it’s an example where the state could go in and access this database information. But I’m not so worried about the state because at least we’ve got a Fourth Amendment and a court system to protect us from the state. We don’t have that so much to protect me from a company. |
| JZ: | Well, you’re right that
it’s sort of piecemeal. And as soon as you get into third parties getting in to it,
rather than the government, you have to figure out well, for what purpose are the third
parties getting in to it and how do you verify that. In credit reporting there’s been
a long history of the FCRA, the Fair Credit Reporting Act, and under what circumstances a
credit report should be released on you. They can only be released for a business purpose.
That can turn out to be you want to get an apartment, somebody wants to see if you’re
going to pay the rent, that suffices. So it’s a good question. As soon as you want third parties able to get a little bit into the database or not a lot. You’ll see on West Law there’s actually DMV databases and you can just type in Massachusetts, key in a license plate number, and find out who’s car it is and where they live. That requires that you fill out an online affidavit, where there’s sort of bullet windows, you know the little bullet choices. You say this is because (1) I am using this for a business purpose; (2) I am a private detective, (3) other. And if you click “other” then maybe you’re in trouble. But otherwise you just click the affidavit and you’re on your way. And presumably somebody checks up on it or there’s some possibility of that later but it’s hard to imagine it actually being so. Paula, did you have something? |
| PAULA: | I seem to be totally alone in this in thinking that it’s really not the problem whether they’re using it to check up deadbeat dads or whether they’re using it to deny you health care. But the problem is that when they collect it they redefine the relationship between you and the person who’s containing the data. They alter the power structures whether they actually do it or not. |
| JZ: | This is your Marxist point? |
| PAULA: | This is my Marxist point. |
| JZ: | Did you go down into the discussion area? You might be alone just because people haven’t been there to see your Marxist point. I need to put the best light on it I can. Is anybody having trouble getting to the discussion area? |
| __: | Can I just make a quick announcement about that? |
| JZ: | Well, alright. |
| __: | If you are having trouble getting to the discussion area, from now on it’s going to be basically administering that. So you can send an email to the regular bug report or you can send one to Jonathan’s assistant. |
| JZ: | Hakim, H-A-K-I-M at Law. Great. So there you go on that. But, anyway, your Marxist point was that the minute the information is collected, no matter where it goes, there is a structural change in relationships that you deem to be bad. And the use of it is only icing on the cake. The actual cake is the collection. |
| PAULA: | Yes. |
| JZ: | Now there was disagreement on the panel as to whether the point of collection was the problem or the actual use of it once it’s collected. It’s interesting because there are people who are coming up with a commodity theory of information, are saying people ought to be able to sell their personal information. Any time it’s extracted from them be able to take the terms by which it separates. Which sounds wonderfully capitalist about things but, at the same time, it agrees with you. And the default position is no collection without some understanding from the holder of the information. |
| PAULA: | Well, I call it my Marxist point just because I sort of stole it from the whole area of ...(inaudible) Principle. That at some point they’re taking away a part of this person’s either identity or property-- |
| JZ: | I’d call it the Bob Seeger point. The feel like a number point. At some point you’re sort of bisected and dissected various ways by the collection of information about you. And you come to think, this is your alienation, that that’s what is you. Instead of the wonderful ineffable sunshine that could never be collected by a mere BOT. Yes, James? |
| JAMES: | Well, my only disagreement with that is all the Internet does is accelerate that process, that happens anyway. If I wanted to get information on you, I go in an mine for public information from voter registration, DMV. Every time you go into a store, oftentimes, you write a check and they keep you and they add you to their mailing list. I mean, it’s already happening as it is. All the Internet is doing is making it that much easier. So, are you concerned about that or is it only just because of the acceleration of the Internet that’s making that possible? |
| PAULA: | Well, I’m concerned certainly about that. For instance, there’s a market research company-- Well, there are a few market research companies that basically sit around and do the Star Advantage Card on a much larger scale and then sell that information to manufacturers to design advertisements. I mean, without even the selling to manufacturers to designing advertisements, otherwise I’d be sort of inconsistent, that certainly is a concern. But on the Internet it’s a more of concern because it’s so much easier to connect the databases together and to, in effect, come up with a picture that seems to be the whole person. Whereas, if you just have the Star Advantage Card you only have part of that person and you know that you only have part of that person. |
| JZ: | One example of a scheme like
that might be what we all know as Frequent Flyer Miles. That now you find yourself getting
french fries at Hardees and you say wait a minute, if I give you my Frequent Flyer number
will that-- Will I get miles for having eaten at this restaurant. They’ll say yeah
and they’ll put it in. What you’re actually doing is identifying yourself to
them so that the holder of the ultimate database, the people who created the Frequent
Flyer number, can now put together a profile of you. That goes far beyond the original
goal of the Frequent Flyer program, which was just to keep you loyal to one brand.
It’s also why you see some of the airlines sharing numbers amongst themselves all of
a sudden. Where you can actually fly one airline and credit it to a different one, to the
different number. Of course that, again, is a commoditization. People are happily slapping this number on something and in exchange you’re getting paid with one-two hundred and fifth thousandth of a free flight. Or half a decal that goes on to a travel bag or something. That over time you pile up to the eventual prize. As long as there’s disclosure, you might say, that’s perfectly satisfactory. Now, James’ point is the argument that comes up a lot when trying to figure out if the Net is making anything different. And that is when you say it’s just a difference in degree, you could always do this stuff in the real world, you just made it easier now. And the implication is so what’s the big deal. I guess the question to ask back would be is there a point at which a mere difference in degree, by that, becomes a difference in kind. The Registry records are a great example. The number of people who would, after being cut off by somebody on the highway, remember that, the next Monday proceed to the DMV, take some time off from work, find out who the person is, and then write them a nasty letter. Versus the people that if they had a little converter thing where they just punch it in to the car phone and out comes the identity or, in fact, just immediately a call was patched through to the car phone of the offender, there would be a real difference in how cars relate to each other that is based, at the beginning, on a difference in degree. |
| __: | Well, for example, California has passed a law that if you apply for-- And I just went through this, it was a ...(inaudible) crack in a windshield. All they will now give you is the name of the company or the name of the registered owner. They won’t give you any other information. So already there’s a trend in protecting that type of information which allows you a certain that you couldn’t do anything bad with it, if you will, but still provides a certain amount of information to keep conducting business. |
| JZ: | Yes. Diane? |
| DIANE: | I was just going to say that the difference of degree argument seemed exactly what the ...(inaudible), or however you say that guy’s name, case was about. Jake Baker, was that the other one? |
| JZ: | Jake Baker, interestingly, isn’t even his real name. It’s sort of a nom de plume. |
| DIANE: | Yeah. What is his-- |
| JZ: | We might have ...(inaudible), I think. But he’s been wonderfully insulated just by having posted as Jake Baker. And a lot of reporting has said this guy’s name was Jake Baker. But anyway. |
| DIANE: | But it seemed like that was sort of was at the heart of the AOL case. You know, where you-- At what point do you stop being an information conveyer and at what point do you start being a publisher. So, I don’t know the answer to it really but it just struck me. |
| JZ: | Yeah. What’s your name? |
| MARK: | Mark. I didn’t want to
stray too far from the points you’re making. I think this is kind of relevant. But
going back to what we were talking about earlier, having laws already in place to handle
stalking and things like that. I think that the Internet allows people to distribute
information in such a way that you can mask your identify to the point where you can
perform these crimes, harassment and stalking, without any retribution. And without an
affirmative action, legislative or by the courts, to force the providers-- I’m not in
favor of holding the providers liable but I am in favor of, after due process and a court
order, having them have to track back who had posted the message and provide to
authorities for follow up. So we can put these laws against stalking into effect. I mean, we can have all the laws we want but the fact is that the medium of the Internet allows people to perform certain illegal activities without their identity being attached to it. I think we need to put legislation in place to at least attach some sort of accountability, whether or not they can be masked and require a court order to unmask-- |
| JZ: | Well, it certainly starts
teasing out the idea that everybody was pro-privacy last week and about half of you are
pro-accountability this week. And starting to realize okay, one person’s privacy is
another’s lack of accountability. And that a lot of it adheres just on what
you’d think of as the technical status quo. To the extent that AOL collects that
information, once they have it would we want to compel them to release it under the right
due process kinds of circumstances. Would we want them to retain it, not just erase it, so
that when they’re presented with a subpoena they have nothing to offer. Should there
be some kind of data protection law, which again is flying right in the face of what we
were saying last week. Which don’t leave data lying around. As soon as you’ve
collected it and used it for something, erase it. Don’t just leave it there because
somebody is going to find a nefarious use for it. So, I’m not sure how you were coming out in the balance. |
| __: | It would need for a lot of qualifications in my statements on the answer to this week. But I wasn’t pro-information security last week but, at the same time, there’s got to be some sort of accountability. I can’t think of any other medium or form of expression where, ultimately, the deliverer can’t be identified and can’t be held accountable if they, indeed, commit a crime. |
| JZ: | Of course we do that, as against the government, there’s this Constitutional right that seems to be fairly uncontested, people don’t mind it, to do anonymous leafletting, for example. You don’t have to put your name at the bottom ...(inaudible) say something terrible. |
| __: | Right. But that’s not a crime. I mean, unless you’re putting out a leaflet that says you want to kill the President or something like that. I’m talking about if you were to put out the same leaflet about an individual, I can’t think of any Constitutional right to be able to ...(inaudible)-- |
| JZ: | So, you think that a law that says leaflets that contain things that are otherwise outlawed must be signed? |
| __: | I don’t know if
I’m ready to go that far either. I see the difference. I’m splitting hairs to
try to defend a pretty precarious position. But I think that the access that the Internet
grants individuals to thousands of people and the mass harm that you can see one
individual could cause, in the Zaran case or in the Baker Case. The idea that one person
with malicious intent could break a law and cause that much harm, that quickly to one
person, needs to be protected. That’s where accountability needs to be attached. If they had a copy of Guttenberg’s printing press and they’re in the basement and they ran off a hundred copies, that wouldn’t reach as many people-- |
| JZ: | It’s only a difference in degree, though. |
| __: | It is only a difference in degree, I agree. The difference is degree. |
| JZ: | Yes? KIM? |
| KIM: | I don’t know. I know I’m going to sound like a ...(inaudible) cold economist on this point but-- |
| JZ: | Sitting next to a Marxist no less. |
| KIM: | I mean, especially when I was reading this Aaron case, the thing that kept running through my mind was it would have been so easy for him, to some extent, solve the entire problem by posting a follow up saying this is someone maliciously trying to harm me, don’t call me. |
| JZ: | Of course, to our knowledge he was not an AOL subscriber, ...(inaudible) account. |
| KIM: | Personally I get a little CD-ROM from AOL like every three weeks. |
| JZ: | So you can get the account, set it up, configure it, log on and meet tha terrible speech with some countervailing views of your own. My view is I’m not the person who posted the first thing. |
| KIM: | Or even just take your phone off the hook. |
| JZ: | Even buy the thing that he uses it for a home business. That was in the case, right? The reason he couldn’t change his number-- The judge felt inclined to have to say why didn’t he just change his number or his name. And it was because-- |
| KIM: | I don’t know. To some extent, though, I question how much one can actually-- I don’t know. I guess I subscribe to the sticks and stones view of the world. |
| JZ: | Fifteen death threats-- The police can surveil your house. |
| KIM: | There’s a certain extent to which you say okay, threats are one thing. Actually carrying it out is totally different. There are laws in place to prevent you from-- |
| JZ: | I’ll be fully compensated for any harm that comes to me, from an actual death that’s carried out. My estate will be fully compensated. This is an economist, this is definitely an economist speaking. |
| KIM: | But realistically who is going to take it that seriously. Yeah, you’ll call in a ...(inaudible) because it costs nothing for you. You’re not going to track him down, find his home address, and kill him over a posting on the Internet. |
| __: | But is that the harm that has to be done? I mean, certainly there are gradations between that. |
| KIM: | I don’t know. I mean, to me personally I think we need to accept some responsibility as readers of this stuff. I mean, if you are so gullible that as soon as you see something on the Internet, you’re calling a death threat to the guy-- Or checking it out. |
| JZ: | No, there were definitely millions of people who did not call him and threaten his life. Perhaps some of them even saw the threat. So, now, there were some who saw it and called him. And you are suggesting perhaps even a cause of action against them. |
| KIM: | I’m not suggesting a cause of action. I’m just suggesting common sense. You know, maybe we want AOL to just send something out to all of them subscribers saying hey, don’t take everything you read on the Internet at face value. Investigate it maybe. I don’t know. |
| JZ: | Greg? |
| GREG: | I mean, I’m actually one of these guys who I don’t get so gung ho about Internet problems because in this particular instance isn’t the point really that okay, so you read this. And then not only do you find out Ken Zaran’s phone number but there’s a way to find out more about him and then that makes that that much easier. Because there’s so much stuff that you could say okay, so now I know that Ken Zaran runs a business out of his home. So now I start to sending the information saying Ken Zaran runs this business, don’t-- |
| JZ: | Boycott his mai-tai global marketing scheme. No algae from Ken. |
| GREG: | Well, yeah. Isn’t that the real point here. Is tha the Net just facilitates-- So much easier. So once I found out that oh, this guy he might be selling Oklahoma t-shirts. Now I just have so much more information at my fingertips, like that, that I know about Ken Zaran. And isn’t that the real problem. |
| JZ: | I don’t know; we’ll find out. |
| GREG: | KIM, what’s your last
name, phone number and-- If you don’t mind I’ll just post something and then you can post a retraction right after. You can give me your home number, it’s not big deal. |
| KIM: | Actually, this happened to me before. You take the phone off the hook, you change the phone number, whatever. It’s just-- |
| GREG: | I don’t know about you
but I’m an ...(inaudible). [Laughter] My employer, who may be a conservative law firm, does a quick search on the Net and finds that I’m into whatever. And employers they might know, it might be a really savvy employer that knows that he doesn’t have to believe everything on the Net. But, at the same time, why not. He’s got another Harvard law student identical to me in every respect but someone is spreading rumors about sexual habits or something. |
| JZ: | This has gone from an argument in favor-- Or at least trying to appreciate the harm that Ken Zaran suffered to an argument about why the agglomeration of data into readily stitched together databases is a bad thing. |
| GREG: | And there’s no law. |
| JZ: | And there ought to be a law. |
| GREG: | I’m not sure if there ought to be a law but I’m just saying I definitely feel Zaran’s problem. The question I had actually for you was why couldn’t they look at AOL’s phone records, match them up with the usage logs and find the perpetrator? |
| JZ: | Well, we have a footnote in the case, which just says Zaran asserts that AOL, through its incompetent record keeping, was unable to produce the name of the person. It may be that given the amount of free trial offers there are, they really want to keep the number of clicks between you and surfing through AOL to a minimum. Having you type in your name or a credit card number in the trial period may be seen as adverse to that. So, there are certainly instances in an AOL trial offer where you can sign on, get an account, and an alias, and not have told AOL anything about yourself. |
| GREG: | But it still had to be-- His account would still be-- The fake account would still be associated with the posting. |
| JZ: | You mean they could have set a trap for him or something? |
| GREG: | Not even a trap. I’m sure they have phone usage logs of when a certain alias dials into a certain bank of modems. |
| JZ: | So they know he’s somewhere in the city of Sante Fe. |
| GREG: | They know from the traffic records, don’t they, exactly which number he called from. |
| JZ: | Right. Somewhere in the city of Sante Fe. It doesn’t say where he called from. It says where he called to. |
| GREG: | It would also say where he called from, wouldn’t it? |
| JZ: | I don’t think so. |
| GREG: | The usage logs? |
| JZ: | I don’t think so. Maybe they’ve got caller ID, I don’t know. Yeah? |
| __: | Well, the fact is that you’re in real space. If whoever was posting this was actually out shouting it to the world, I would feel that if I have these nasty t-shirts about Oklahoma, then I can sue that person for defamation. There is a real space legal remedy. I may not win but I have that remedy available to me. But the problem that comes in in cyberspace is if that person is untraceable then I don’t necessarily have that remedy, if we can’t figure out who it is. |
| JZ: | You have the remedy, it’s just very hard to execute upon it. |
| __: | Well, yeah. The remedy exists. |
| JZ: | This is very similar to the government saying, right, we have a remedy of sorts. Once we get due process and a warrant we’re entitled to see your things. If you have gone to the trouble of encrypting them beforehand, there will be very little for us to see. Therefore, in order to make our remedy one that has any meaning, you can’t encrypt it in the first instance. And similar to here you’re saying you don’t want to be anonymous or completely anonymous, in the first instance. Maybe you could have pseudonymity but traceable. This gets back to Mark’s kind of accountability point ultimately. |
| __: | I don’t know what I’m saying, actually. It’s sort of-- |
| JZ: | You could have a career for the HLS course book. |
| __: | Well no, I mean, it’s a hard balance. Because I am on the privacy side for the most part. I don’t necessarily want-- |
| JZ: | Until it’s your ox being gored, at which point you want to know who it is. |
| __: | Right. |
| JZ: | I know exactly what you’re saying, it’s just contradictory. |
| __: | So we’re not talking about a virtuous man ending up with this guy’s email, in this guy’s account. Or him being flamed from here to Sante Fe and back on a newsgroup. We’re talking about receiving death threats at his home, which was essentially his place of business. I mean, it’s something more than just an annoyance. |
| __: | I was just going to say, it’s quite hilarious, but actually, the Canadian government introduced privacy legislation. I’m sure they’re trying to coordinate it with the class. So, I’ll send it around to people after this. I think one of the key points I wanted to comment on is-- I don’t know you name in the gray sweater-- |
| ALEX: | Alex. |
| __: | Alex, I think you made an
excellent point in terms of databases. I think the one thing that people generally
recognize is that public databases, generally kept by governments, are usually governed by
some kinds of rule or legislation. In Canada that’s the situation. I believe
it’s the same in the US. The question is when you get to private databases there
really is no legislative framework or any types of rules around that that are clear. I
think it’s really important that the clarity and the relationship be set out in terms
of the emigration. So, if I decide to turn over my information to a private database and I decide that I won’t have any problems disseminating it, that’s fine. As long as you make a conscious decision that’s clear, in terms of clarity of the contract. So I think it’s important that there’s a legislative framework both for data in the public sector, as well as the private sector. |
| JZ: | ...(inaudible) may not be fully happy with that kind of an approach. He’s the Epic guy. Because he says what you might converge to is an equilibrium where fine, you don’t have to say who you are but then you can’t visit our Web site. Repeat it Web site, after Web site, after Web site. In which case you retain the right to anonymity but it’s really the right to loneliness because there’s nowhere to go that will have you. For him anonymity is actually an affirmative value rather than just something that should be a matter of choice. Yeah? |
| __: | Just to get back to the Zaran argument. I actually agree with the-- I think it was Kathy? |
| KIM: | Kim. |
| __: | Kim, sorry. In a sense
isn’t it the Holmesian ideal of the marketplace of ideas. I mean, the whole concept
of why did the Supreme Court in passing ...(inaudible) afforded a certain amount of
protection through liable suit for a private individuals. Because they don’t
...(inaudible). But the point was that private individuals didn’t have the resources
to a counter argument that was made against them in certain circumstances. John Doe gets
up and makes a public statement that so and so slandered me. No one is going to listen, no
one is going to care. But isn’t the beauty of the Internet, in this respect, the fact
that it’s an equalizing force. In that it gives people-- Everyone is anonymous. So
everyone is on the same level. So, just as this guy can post a fake notice-- I agree, I think that Zaran could just as easily get back at the guy, not necessarily lash out and say so and so is doing it to somebody else or whatever. But why couldn’t he just get back on and say look, this is not me, this is not my thing. This is a hoax being perpetrated against me. To the same extent that people listen to a ...(inaudible), why should they listen to it exactly the same way. Where is there any sort of offsetting balance that makes him less equal than someone else? |
| JZ: | If you go to page 12, retraction to page one. |
| __: | Exactly, in a block on page 17, in section D. |
| JZ: | Everything is on page five million. |
| __: | Exactly. So what’s to make his statement retaliatory or even offensive. Any less significant or persuasive, maybe just by the persuasion of his very words that he uses or how effectively he conveys his-- |
| __: | If he puts his ...(inaudible) signature on it. That can be all the more-- |
| JZ: | This is supportive? |
| __: | Yes. This is saying he can in fact say, for all these reasons, you should have been able to see that that message wasn’t from me. |
| JZ: | So, to parse what you’re saying. You’re saying in a world in which you can readily choose to authenticate a message to your real world identity, it’s hard for others to forge. And others can readily check to see that what you’re saying about yourself is true. Then it’s all the better because a message would stick out like a sore thumb that says “Hi, I’m Ken Zaran” that isn’t authenticated. And yours would say “I’m Ken Zaran and it’s obvious that it’s-- |
| __: | That’s a bit of a ...(inaudible). Because you can-- In theory if these techniques are fool proof, our digital signature and so forth, you can make a statement like that and ensure, the code can ensure, that it’s true. And you can have a system where everyone relies on that truth because the code is making itself. As opposed to somebody saying I’m Ken Zaran, no I am Ken Zaran. There actually is a way to make it so the person really is-- |
| JZ: | But to leave it to the market or to the public to decide when they want to identify themselves as such. |
| __: | Why is that bad? If they do, then they do. |
| JZ: | And you cause people to look at the initial Zaran message, that wasn’t so authenticated, and be that much more skeptical about it. |
| __: | Well, sure. If they know-- If the market will decide. If there’s a market for these types of occurrence to happen. People know about it or are familiar with the subject, know that these kinds of things happen-- |
| __: | There’s got to be trust in the system for it to work though. |
| __: | Well, why do we trust. If there’s a ...(inaudible) thing, the market will make it so. I mean, the market will adopt it. If it’s an efficient-- If it’s a protective mechanism. Why wouldn’t the market adopt it, regardless of who it is? |
| JZ: | Yeah, Paula. |
| PAULA: | I’d just like to talk about it for a second. It seems like what he’s suggesting is almost that even though you put a name on your messages, on your communication, it’s still anonymous to the extent that it’s not tied to your real world identity. Because here’s something that is tied to your world identity. It’s not really a matter of not trusting, as he suggested. It’s more a matter of names don’t really have any meaning because the digital signature is the name. |
| JZ: | Well, perhaps another way of
putting it is most of the people who called Ken Zaran in outrage probably didn’t know
him. It wasn’t as if a bunch of high school buddies and perhaps his parents were
deeply disappointed to see that Ken had taken a turn to such juvenile behavior. And, upon
seeing a message that says no, no, wait, it wasn’t me, they’d say oh wow,
alright then. But rather they didn’t care about the name of the person at all. They
just saw a phone number and wanted to yell at whoever was on the other end. Fine,
you’re name isn’t Ken Zaran, I’m going to yell at you anyway. I don’t
care what your name is. You’re offering these t-shirts. And he’s saying no, no,
my name is Ken Zaran, it’s just that the message isn’t right. So, there’s some sense in which being able to authenticate your identity, that the name that’s given is, in fact, the right name of somebody who has a right to post that message, would be helpful as against your friends, loved ones, and others. But you’d have to authenticate even the phone number that’s given in the message is one that belongs to the poster of the message. That’s really the item they’d be wanting to authenticate. |
| __: | But isn’t almost just a-- And that is almost like if somebody, in some related way, called you an alcoholic or something. Yeah, your family-- Or you say you’re not an alcoholic. Something that your family might care about than the general public. I mean, in a marketplace of ideas if somebody throws a slander at you, any kind of a slander, the whole point is that you can counter that with your own retraction. Like why is that slander. Yeah sure, they called him and so forth, and they-- I understand that. That’s the price one pays-- You got a few phone calls, I understand to hassle, but-- |
| JZ: | Don’t make a Federal case out of it. |
| __: | Right, exactly. He can respond in a way that free democratic citizens do. |
| __: | It seems like you kind of have it both ways, though. You’re either positing that there’s a system where there’s enough trust and enough interaction between these people posting to an AOL bulletin board that they’re going to understand the meaning of the PGP signature. And they’re going to understand the importance of the fact that this guy is authenticating who he is. So they are going to care. Or you have a system, which is probably a lot more like the AOL bulletin board, where no one really knows each other all that much anyway. Or if they do they have their own little cliques. And some of them are really computer savvy but probably not most of them are or else they probably wouldn’t be using AOL. You can’t have a system where the trust is there and so when Ken Zaran posts and says “I am really Ken Zaran, this is not my post”, people are either going to dismiss him. And be like well, this other person who’s posted all the time, we know and like, despite the fact that they posted this nasty thing. |
| JZ: | Is your point that the point and counterpoint could be messy. It’s not going to cleanly exonerate Zaran. It’s going to offer another view that may take him down from 15 calls a day to seven calls a day. Because some people are convinced in this marketplace that it’s a false message originally. |
| __: | Right. |
| JZ: | But others will still-- |
| __: | He’s coming in as an outsider, which in the world of the Net, if this really is a close knit group, is not-- You know, the people are not really going to care. And also a lot of the people calling him never saw the original posting, just as he never saw the original posting. And why should the onus be on him to get an AOL account, maybe get a computer that can actually run the AOL account, and learn how to get a PGP signature, and figure out where exactly this was posted, and go in and post a retraction. |
| JZ: | Yeah. How about that, Kim? |
| KIM: | Well, why are we focusing so much on this? There was a call for death threats. If someone is stupid enough to read AOL, believe they’re going to call in a death threat, and ...(inaudible), we have-- The phone company can trace the phone call. Why not go after them? Why say-- |
| JZ: | They can’t plead mistake as one of the defenses to the death threat. |
| KIM: | Why are we still saying oh well, whatever. Shouldn’t we assume that people can know the law and know that hey, no matter how much ...(inaudible) you are, calling them and calling in a death threat isn’t a good idea-- |
| JZ: | It’s just a t-shirt, even if it were real. |
| KIM: | Yeah. I mean, so why focus so much on oh, we have to find the original poster. Look at the morons who are breaking the law. |
| JZ: | Did you have something? |
| __: | Well, I don’t think even if they weren’t getting death threats, even if they were just constantly calling but still badgering them, someone should have to-- That’s abuse someone shouldn’t have to-- Even if they weren’t death threats. And I also wanted to agree with Emily’s point completely. That I don’t think our culture is sophisticated enough right now online to understand what a digital signature is and to understand that this is authentication over that. And what are you going to do about the fact that whoever it was that posted this, maybe he did it once and he stopped doing it. What if he does it in so many other forums. |
| JZ: | In the case he actually did it twice, right? AOL deleted the first one. |
| __: | Ten different times a day, in ten different forums, and there’s no way to catch him ever because he’s anonymous. I mean, isn’t that the point? The point that we’re trying to protect this anonymity but if someone is constantly doing something wrong and there’s absolutely no way to catch him or her-- |
| JZ: | So, who hasn’t said anything yet? Ken? |
| KEN: | Yeah, KC. Yeah, authentication is a real problem here. No matter what happens when these posts go up the target is going to be hurt, no matter what we do. I think what we need to focus on is the remedy against the real bad guy, this anonymous poster that’s out there. I think the real tragedy in this was that AOL was so incompetent as to not be able to track this guy down. I mean-- |
| JZ: | Or that they chose to market the service in a way that, to at least some subscribers, didn’t require that they identify themselves to AOL. |
| KEN: | Right, they can track anybody. They’ll figure out who it is. I mean, as far as does this guy have the right to be anonymous. When you break the law this bad, you give up that right to a certain extent. I mean-- |
| JZ: | So, will the anonymous person who just broke the law please step forward. |
| KEN: | Exactly. |
| __: | I mean, anonymity is kind of privacy. But the Net is kind of public. That’s like walking down the street in a ...(inaudible) and when you’re doing that there are identifying characteristics about you. Normally, people can see your face or something about you, and then can lead back to you. And we need to leave those things in place on the Net so we can get back to the real bad guy. |
| JZ: | Yes, it does regress back to
the status quo. In the real world there’s the status quo, that’s pretty
difficult to tinker with very much. There are these personal identifiable characteristics
that have been around for years, it’s basically the way the world works. Whereas on
the Net, you can see the Net careening, thanks to its programming, either from a wholly
anonymous space that won’t allow you to find out whoever posted that message, or if
the right techniques are put in place to make it eminently identifiable, with much more
certainty than just the person on the street, and everywhere in between. And, I guess, we’re facing a question both as sort of a policy judgement. Were we all czars of the Internet how would we have it be balancing anonymity against accountability, that kind of thing. Then, another ...(inaudible) is, well there is no czar of the Internet. It turns out to be this international monster and it naturally regresses to, as a matter of public policy, how do you go ahead and solve the international problem of countries can’t even agree on the extent to which people should be forced to identify themselves on the Net. Or any system that gets put into place in, say, a functioning accountable system like that of the United States, is one that could be used in a different context so that anybody who posts something, oh I don’t know, seditious, viewed in the context of another country’s politics, would be one who, thanks to the code that was written by US engineers, will be eminently identifiable. So, I’m just trying to bring the international angle in as well. Any solution you bring to solve this problem is possibly going to be the source of other activity around the world, that we may or may not as a matter of public policy approve of. This is kind of ...(inaudible)’s plan, I guess. Anything you do will lead to any number of random happenings so it’s just hard to know. Yeah? |
| __: | Well, addressing the issue
of trust and how much a community there is among the different people who see this
message, I think he-- Zaran is able to put up a message that will be trusted as much as
the original message was trusted. And among the people that he’s going to care about,
like his family and his associates and people he works with, he will be able to contact
them in other ways. He’ll be able to tell them this is how to read the digital
signature or be able to make a phone call and say that wasn’t me. That was somebody
else who posted that message, that wasn’t mine. So, I don’t think the trust-- And at the end it will come down to the same types of trust that we use in real world situations. So, you have to trust people and whether it’s through an offline interaction, or a series of online interactions that you build up a digital signature key, or through knowing them from a series of different contexts. |
| JZ: | Yeah, Scott? |
| SCOTT: | Well, a variation of the trust thing is credibility. Whether or not they post something, we’ve mentioned these-- People have referred to these idiots that believe that this was actually true. One of the things that would resolve in my mind whether this was a difference in degree or type is let’s say that you have somebody that has malicious flyers and they go to a homeless person sitting outside of a ...(inaudible) escalator and say here’s $20, hand these out all day. So they do that, there’s very little way to trace that person down, who was the source of the flyers. First of all, would you say that that was or was not illegal if these flyers were slanderous? |
| JZ: | Illegal to give to somebody-- |
| SCOTT: | If they could track this person down, would that be-- |
| JZ: | Well, you would say a law without reference to context, a law that’s just saying unsigned content getting out on the street, anybody who causes that to happen is liable. And there have existed such laws in the past. That kind of law turns out to be unconstitutional. You’re not allowed, as the government, to try to prohibit, without any sign of other kind of wrongdoing, and Mark and KC have pointed out well, maybe you would lose your right to anonymity, you would have to somehow identify yourself once you’ve crossed a certain substantive line. Of course, by that time you have no reason to identify yourself. The state is going to have to pass these neutral laws, before the crime has taken place, without reference to the content, trying to say one way or the other this level of anonymity or traceability needs to be allowed. |
| SCOTT: | But if you could track down and it was, let’s say, slanderous, it was totally wrong and you could track down the person, then it would be-- |
| JZ: | The person couldn’t say I have a right to be anonymous, you have violated the right thanks to your detective work, finding out who I was, and therefore this is unconstitutional. |
| SCOTT: | Okay. The second part of that then is I would assume that most people that get flyers, that are propaganda, as coming out of an escalator would throw it away or they’d read it with amusement and wouldn’t take it seriously. Just because society has built up norms with regard to written communication, where if you read it in the New York Times you’re more inclined to believe it than if you get a colored flyer. And the problem won’t resolve itself over the Internet, as people have realized, when you get used to the fact that okay, anonymous chat rooms are not a credible source of information. |
| JZ: | After blowing my last $5000 on a stock tip, I’m going to listen to Jane Bryant Quinn and no other. |
| SCOTT: | Right. But whether or not, these are phenomenon that are, I don’t know what, ten years old or whether it’s just an idiot’s con game here so you can always access them through a chat room. |
| JZ: | Well, it’s certainly--
One thing it suggests, and it’s triangulating with Wendy and with what ...(inaudible)
was saying, is that we’re in a transition period now. Where we’re trying to
frame what people’s expectations are about what they see. Many of them come on
without particular expectations or, even worse, bring on expectations coming from the
closest analog they know of, which is television and Dan Rather. And when the find it to
be different there’s some gap that has to be closed so they come to an understanding
about what it is. And you could see that holding the line through this talk transitionary
period is a few Zarans and then after a while people get it is a possible strategy for
saying let’s not bring the Net into the real world just because people expect it that
way. Let’s pull it in some other direction and eventually people’s expectations
will come around again too. It also gets back to when you look at Fourth Amendment doctrine, in the one article that was optional for last week, people’s expectation of privacy is in large part determinant of whether, in fact, it’s a violation of the Fourth Amendment to have violated that privacy and gotten that fact. Of course, what their expectation of privacy is is, in turn, affected by the presiding law, the technology, everything else, and it’s a feedback loop. It’s not as if you could just start with their expectation and assume that everything else follows from there. Their expectations can, in turn, be tilted one way or the other. Paula? |
| PAULA: | I’m still ...(inaudible) based on the assumption that people are ignorant. It seems a silly way of deciding policy to say okay, people don’t know what digital signatures are so we need to fix it for them. Or people don’t know how to turn cookies off on their browser so we need to come up with P3P to make sure that it’s done for them. |
| JZ: | But isn’t a large part
of, say, the Federal Trade Commission’s duty to think on behalf of those who have
trouble doing it for themselves. I mean, isn’t it-- You know, when Publisher’s
Clearinghouse alerts you tonight that you actually may have won one million dollars, now
you may have gathered some skepticism about that. But there are actually apparently,
there’s an article about this, plenty of senior citizens, I don’t mean to single
them out unfairly but this is what the article said, I’m just repeating it, if I were
on the Net I’d be wholly immunized, senior citizens show up at the airport that is
local to the Publisher’s Clearinghouse mill waiting to get their prize. They’re
expecting somebody, Ed McMahon, I don’t know, to be at the terminal to greet them.
The airport now has this procedure to deal with the many people who come through the
turnstiles. Now, are you saying the FTC should just lay off? |
| PAULA: | That’s a totally different scale though. There’s a lot of difference between people being ignorant enough to not realize that when somebody posts totally ridiculous things about the Oklahoma City bombing, along with that phone number, that it’s probably a hoax. You can educate people to watch out for hoaxes like that. It’s much harder to educate people to know the difference between a true-- |
| JZ: | And there’s many offers of real million dollars that come through the slot. |
| PAULA: | In that case it’s not an education issue. Maybe that’s what the FTC should be doing. It should be telling senior citizens that when the Publisher’s Clearinghouse sends you a letter that it’s probably not a good idea to believe it. Instead of watching some kind of-- |
| JZ: | It’s one of those things, though, where if they have to be told they’re probably not going to get it. It’s just a view, I don’t know. You might be right. It’s clear that the US Government Information Service in Pueblo, Colorado, no doubt has a circular about-- |
| PAULA: | And it’s got to be a lot more efficient to educate people about preventing threats to themselves than to bring the full force of the system to deal with those threats after they’ve already been done. I mean, the old tale of an ounce of prevention is a pound of cure certainly applies in the case of education to easily prevent harms. |
| JZ: | Dave? |
| DAVE: | I just don’t think it’s going to work though. You’ve got the National Enquirer is probably one of the best out there who ...(inaudible)-- |
| JZ: | Do people read it as like their daily dose of news? |
| DAVE: | I think one of the roles of law is to protect idiots from themselves and to the degree that-- To the small degree that we’re not idiots, to protect other people from idiots. It sounds harsh but that’s why we put things like don’t drink this on bleach. And why we-- |
| JZ: | Rather than a series of non-bleach drinking workshops. |
| __: | Right. (Inaudible) bleach makers when they don’t put stuff like that on their labels. There are attorneys who bring cases, you know-- You put hot coffee in your lap if you’re driving. |
| JZ: | One at a time, one at a time. Dave? |
| DAVE: | We’ve been comparing criminal law and civil law this entire discussion so I’m going to continue doing that. But somehow the law punishes people who do not put warnings on bleach. My point being, if I can be said to have one, is that I think we should place some responsibility on providers like America Online, on people like this radio station. It shouldn’t be strict liability by any sense but when something bad happens they should, at the very least, have proposed-- I mean, this fellow wasn’t an AOL subscriber. Let him on to fight this back or put a message-- |
| JZ: | Special guest tonight, Ken Zaran on the subject of I am not a t-shirt manufacturer. |
| DAVE: | Or do it themselves. Much like it sounds like this radio station at least did. They apologized for putting the word out. And the calls dropped off dramatically after they did so. So, requiring them to do stuff like that I don’t think-- And to a lesser degree keep information about people such that we can track them later. I’m not quite sure where I come down on that. It would be nice if we could it without it falling into the wrong hands in any sense. But I’m troubled by the possibility. |
| JZ: | So, that’s what a number of people have said before saying a point, this doesn’t make any sense but it’s amazing to me, and these points do seem to make sense. So don’t feel like you’re about to babble when you speak. Unfortunately it feels like we’ve only been at this for like ten minutes. I don’t know about you but the clock says otherwise. So, I guess we’re consigned for our break for, let’s say, seven minutes, and we’ll reconvene and take this up. |
| [BREAK, then tape resumes] | |
| JZ_: | Something that further kind
of connects the two groups together and also brings in something we touched about last
week and then put to the side, which is the kids safety issue. It’s not coincidence
that a number of the sessions that we’ll be having this course and have had end up
appealing in some way to the protection of kids. In fact I think our last session or one
of them, is entitled law code and kids and will be a case study of the Boston Public
Library and their attempt to put cyber control on it. There’s also a wonderful
Federal case wending its way through right now, ...(inaudible) County, you may be familiar
with, that deals with this problem as well. But we’ve seen a bunch of things come up both from Toby Levin of the FTC and attempts to gather information from kids, their inability to make good contracts or show a whit of good judgment. There may be some theory that poor Zaran was afflicted by somebody under the age of 18, it’s certainly not beyond the pale to imagine that. And the idea that kids are just threatened, be it by content that they see and kind of have their jaw drop or by other things, as well. With that, ...(inaudible) journalism, I just wanted to show the following segment. I don’t know how may people watched the Fox 25 News at 10. I guess nobody wants to admit it. Great. Well, this may look familiar and why I don’t just show this brief, but for the news actually, interminable segment. (Shows video) |
| __: | So I have a question. What if millions of people then chased after Mike, after seeing his car and license on TV. Who would be liable for that? |
| JZ: | That’s a good question. What do you think? What would ...(inaudible). |
| __: | I don’t know. I guess maybe it would be television since they-- |
| JZ: | Somebody who has a law suit, help Diane out. |
| __: | There’s no civil law against that. |
| JZ: | Emily, what’s the complaint and file? |
| EMILY: | Oh well, there wouldn’t really be a legitimate cause of action unless he could show that they had broadcast completely false information about him. There’s no viable defamation suit. |
| JZ: | So that complaint is out the door as far as you’re concerned. |
| EMILY: | Yeah. Whoever hunted him down would probably be held liable. They didn’t encourage anyone to go hunt him down. |
| __: | You can still have a claim of invasion of privacy. |
| JZ: | You think this invaded his privacy? |
| __: | He could claim it. |
| JZ: | No, I’m asking did it invade his privacy. Remember, invasion of privacy is one of those things in Torts where you cover it in the last five minutes before the exam. Does anybody remember the cause of action of invasion of privacy? |
| __: | If there’s an action. Like if you made a statement about somebody and it’s embarrassing to-- It’s like embarrassing to them and potentially not a public-- You know, the question of whether it’s a general public interest, you can sue somebody. |
| __: | But does that fall into that category? |
| __: | Possibly. I mean, he didn’t break any law and it was extremely embarrassing for him. He didn’t break any law. |
| JZ: | I don’t know, Emily somehow is saying there’s no complaint. You’re saying no, I don’t know. |
| __: | It’s like telling me it’s a case of saying-- Making a public statement about somebody, which they don’t want anyone else to know. But it’s not a crime in any way but you make some statement about them public. It’s put them, say-- In their circumstances is incredibly bad and humiliating, to a reasonable person it would be. And it’s not against the law and it’s not in the general public interest, you can bring a suit for that. |
| __: | I thought it had to put them in a false light. It has to be false. |
| __: | She said were you really meaning to have sex with her. JZ: And he says no, we’re just going to talk. I was going to buy her lunch. Although he did say-- He did quote the police officer-- |
| __: | How is there a way to win in that-- |
| __: | An embarrassing statement against-- You know, like with him on the screen, came because he didn’t drive away. |
| JZ: | That’s right, it’s assumption of risk. So, why did Fox do the proverbial blue dot here? Why did it try to-- Of course, it didn’t successfully do so. You saw that somebody was lazily trying to block the license plate. Almost kind of intentionally half-hearted. Alex? |
| ALEX: | It’s bad production values. |
| JZ: | It’s bad? |
| ALEX: | No, no, it’s good production value. The cops didn’t-- And they know that Mike-- A good gritty crime story has that little dot. |
| [LAUGHTER] | |
| ALEX: | (Inaudible) all the time but we all saw his last name. It’s just like the good components of a good crime story. |
| JZ: | It’s funny, they said in the story they found out later he was 23 or 22. They didn’t indicate how they found that out. Was he talking to the Wakefield police? |
| __: | He probably showed them his ID. |
| JZ: | He is missing a few cards in the deck department. That is amazing because you imagine here’s the local news, there must be a number of people in Wakefield that watch this, right. This is the opposite of the Ken Zaran problem. It’s clearly authenticated to be him. And people who don’t know him can’t send him a nasty letter, although perhaps if you saw him on the street the next day you’d have a randy word or two with him. But people who know him-- |
| __: | The AOL screen, they showed his name, you know where he lives, he’s probably listed. Let’s call him up. |
| JZ: | He’ll be on the panel next week. We can bend this curriculum until it breaks. |
| __: | What about a news program was actually misrepresenting itself as a 14 year old girl. |
| JZ: | Well, that’s
interesting. You said you were a 14 year old girl, I was going to have sex with, how dare
you lie to me. Of course, there have been a number of occasions reported where people
misrepresent themselves, one way or the other, in order to establish a physical meeting
and then the souffle falls. So, imagine a cause of action ...(inaudible). It’s
interesting, though, that the first reaction was actually to think about this guy and the
fact that he’s on Fox News. And what action can he have. Of course, it’s
prompted by just having read Zaran and imagining the deluge of mail he might be getting or
phone calls about it. Did you notice, by the way-- I don’t know if anybody identified the guy next to the American flag. Did it say who he was? |
| __: | Yes, the DA. |
| JZ: | He was the DA who covers Wakefield and there was a legislator. Did it say who he was? There was a guy at a desk sort of writing legislation. |
| __: | I just wanted to say that what struck me about that clip was that is the kind of a shallow representation that goes on all the time. That’s protected, I suppose, by the First Amendment. But, I mean, there’s so many other angles to that story, clearly, and obviously they’re working within a certain timeframe and all that sort of thing. But how do you then translate how that is protected to then what is going on on the Net. And the sort of layers of information that we’re sort of-- This is like a disease, it doesn’t make sense. |
| JZ: | Let’s take a look at it the way we’ve tried so far to look at privacy, and we’re just getting into really on the whole speech area today. And that is, first, what’s the problem? What’s the problem that Fox News has identified that people should be worried about? |
| __: | Seduction of young kids. |
| JZ: | Seduction of young kids. They’re doing their homework or surfing the Net when, suddenly, Ken-- Was that his name? I’d make a terrible witness. Mike says hi and they get to know each other. Then the kid goes out. Now they state that as a fact about the Net. Do we know is that a true fact or not? Are there more people who are more or less familiar with the Net, is that actually an accurate representation? |
| __: | According to the story-- |
| __: | What was he looking for? |
| JZ: | I’m not looking for adverse self-admissions. The ...(inaudible) in the class is long passed. |
| __: | They showed two other example in that clip of other men who have done the same thing in other states. One of them was in Massachusetts, the second one was in Michigan. |
| JZ: | I guess I’m wondering as a technical matter can a child be approached without having gotten into a situation of wanting to talk to somebody else on the Net? Kim? |
| KIM: | I think it really depends on the supplier. AOL, they have instant messages that you can send. If you have ICQ you can ...(inaudible) out there, I’m interested in this, this, and this. My age is this. This is my phone. You can put all this stuff on ICQ. And whenever it’s on it blinks that you’re on and they can just pick you up. But if you’re going through a ...(inaudible) or a spider or something that doesn’t have all these little bells and whistles, then no. |
| JZ: | They do do a follow up story on Wednesday night that actually makes exactly this point. It focuses just on AOL, it shows somebody filling out a profile, and interviews several 14 year old girls who say we put in these profiles and yeah, I get email all the time from people that I don’t want particularly have anything to do with because of what it says. And it just happens. And then it ends with advice from an expert that says you should advise your children to say they’re a 65 year old stamp collector. I don’t know why stamp collecting is such a revolting activity. Yeah, James? |
| JAMES: | Is it any different, though, than-- Again, it’s the old education thing. We tell our kids don’t talk to strangers, if someone approaches you in a car. Is it any different from a stranger approaching you in a person, in a car, or just crank calling or anything else. I mean, is it any different just because it’s online. |
| JZ: | Well, certainly one thing that seems to make it more salacious or threatening is that your kid is upstairs in the safety of the home. You think you’ve got the kid locked down and there’s this connection to the outside world that’s going on, by which they’re planning this meeting. In fact, again, in the second report the expert gives three warning signs to see if your kid is about to go on a rendezvous; spends a lot of time in his or her room, uses a lot of computers, and I forget what the third thing is. (Inaudible) on the extension, right. Yeah? |
| __: | I was just going to point out that all the lines on the Internet-- I mean, one of the big advantages is ...(inaudible) contact. I guess last week ...(inaudible) was saying the ...(inaudible) made fun of and then goes off and uses the Net to contact like-minded kids, who are strangers. That’s one of the whole points of them getting online. Yeah, there’s ego and people they know but especially young kids, ...(inaudible). It’s use is a lot different than real space where you don’t really interact with strangers. |
| JZ: | I guess the thing to see
here is the way in which if you deem what we’ve identified, that they’ve
identified, as the problem. If you think that’s really a problem, which it probably
is, then you say alright, what are the possible responses to it. Now the response that Fox
goes into is the traditional law, rule and sanction thing. There is no specific law on the
books to prohibit people from seducing kids over the Net and having them cross state
lines. Or if it’s within the state come to meet. That’s their answer to the
problem. Then you go back to the police who somehow do investigations and try to enforce the law. And this guy-- I mean, I couldn’t tell if the reporting gave the police had a particular interest in him at this point. Maybe not because the unidentified legislator hadn’t yet finished the law. But that’s just one possible policy alternative. Realize that the question that we’ve been batting about for any number of problems, i.e., that of anonymity and traceability, is one that here, if you could actually find out quite reliably who Mike or whatever his name was is, that might alone be about to change the dynamics of the situation. How protected they feel actually cutting a deal like that online if it’s readily traceable who they are. You also get into what extent AOL might be inclined to monitor these things. Either because somebody has been identified as a kid specifically. A lot of these problems might go away if kids were specifically identified as that and nothing more on the Web. That way AOL could turn off certain features without having somebody trying to monitor the chat boxes that are going on. And there might be other code solutions as well. Yeah? |
| __: | Do you actually remember what the nickname was? Was it like the name of the girl and then the age. Something like Linda, 14, or something. |
| JZ: | I didn’t notice. I think it was just a name, Loren, L-O-R-E-N, and then in the profile there was an age. We didn’t see anything of what the Fox people really typed. We just heard the clacking and saw the typing of what he typed to the Fox reporter. Yeah? |
| __: | It seems really odd to me that Fox had this conversation with this guy actually saying yes, we will have sex. There seems to be something different about that particular conversation. I think the one that most of us would fear, if we had children, which would be somebody indicating that they were interested in something actually less invasive. But here he was, having a conversation. Now it’s already illegal in this world for a 22 year old or a 20 year old to have sex with a 14 year old. So, the conversation-- |
| JZ: | Isn’t solicitation illegal, as well? |
| __: | I have no idea. It seems very different to me. The sensationalist piece that they had, where they were really luring this guy themselves. Very different than a conversation between a 14 year old, Loren, who simply says yes, I’m interested in meeting somebody in college because I’m checking out colleges myself. And wouldn’t that be really fabulous. It would be a very different scenario. |
| JZ: | Yeah? |
| __: | I don’t remember exactly what they charge for that. But they have successfully prosecuted cases like this. Where the law enforcement has pretended to be younger and the guy has met. Once he came for a meeting then they arrested them. |
| JZ: | Well, that’s also a
good question. Because you might say so far we’re talking about harmful speech and
we’re started to even categorize, implicitly, the kinds of harmful speech there may
be there. One kind is false statements about somebody. This is the whole defamation angle.
Which is Sidney Blumenthal is a wife beater, he’s not really. Saying that kind of
thing and getting in trouble for it. And seeing whether there’s going to be this
...(inaudible) for the Net provider that advertises gossip and points people to it. A second kind of harmful speech is one that’s loosely categorized as a threat. Although it’s unclear that that’s really what Jake Baker did that made people upset. I don’t know that people thought that Jake Baker was actually looking to harm somebody but the mere existence of what he wrote-- And you’ll see in the library there’s a link to the Electronic Frontier Foundation’s site about this, which includes the story. You can judge for yourself. If you read it, it does sort of push your defense of the First Amendment into a very tight and dark corner. So, that’s another category of potentially harmful speech. Stuff that it’s not that people are going to misbelieve it, it’s just that it’s very existence is troublesome or maybe connotes a threat of some kind. And then maybe there’s this third category too where it’s a speech act. It’s the consummation of an agreement, let’s get together, that is the point, perhaps, at which we want to say a crime has occurred. In that case it may not be the speech per se that’s ...(inaudible). The same way that conspiracy is ultimately speech but it’s speech that, because it’s an act, agreement, is punishable. Not because they uttered one word versus another. Thoughts so far? |
| __: | Isn’t there some law though that intent matters. I mean, isn’t intent ...(inaudible). |
| JZ: | It could be attempted something or other. |
| __: | Right. |
| JZ: | Although you have to
generally get pretty far along-- Unless, again, it’s going to be conspiracy.
You’ve conspired or you’ve made some agreement, it was enough to say that alone,
solicitation of an underage person for a sexual activity, is all it takes to get arrested.
Indeed, there are states where asking somebody under age to do that is enough to get you
in jail. There was also, by the way-- They said that they couldn’t hold him so they charged him with child pornography, for possession of child pornography. That kind of came out of left field. What does that mean? Well, it presumes perhaps that his activity was enough to give probable cause to search his hard drive, to find pictures on it, and then charge him with possession of child pornography as a result of the activity that he did. That was brought forward as a kind of awkward way of locking the guy up, for a kind of corollary crime rather being able to focus on the initial crime. So, yeah? |
| __: | I don’t really know whether-- I mean for this crime but in general whether the age distinction is necessarily relevant. I used to work with teachers in the ...(inaudible) of education, they were kind of putting together this online curriculum that was like mentoring, matching twelfth graders and seventh graders. The teachers were really really worried about the twelfth graders recruiting for gangs and trying to take seventh graders into their gangs. That was a very similar situation that doesn’t involve adults at all. I think at this point there are ...(inaudible). |
| JZ: | Did you have something specific in mind? |
| __: | No. This whole discussion we’re kind of talking about the vulnerability of kids-- |
| JZ: | To adults. |
| __: | Online to adults. And I don’t think that distinction is necessarily-- |
| JZ: | It might be kids to other kids. |
| __: | Or even adults to adults. A lot of people can be vulnerable in certain situations. I think we’re just putting on an age distinction that is relative in this particular crime that we’re talking about right now but not ...(inaudible). |
| JZ: | Can you imagine code solutions to this, designed to make it more difficult to get people into a vulnerable position? |
| __: | Well, I think that what you were talking about, about making it more content specific as opposed to age specific-- You were talking so much about profiling and about what you hold yourself out as. I think-- I mean, this is also sort of relevant to what we were talking about earlier, about credibility. And the fact that just psychologically seeing something in print, on the computer, for a lot of people-- Particularly, I think, for people who are the people that AOL solicits and sort of like first time users, I think it is something that is more believable to such users. But I think that if you focus less on the profiling and on whether or not people are going to be believed, and more on the content regulations. |
| JZ: | Yeah? |
| __: | ...(inaudible) and that would be a way of discouraging this problem in the first place because of the traditional role on ...(inaudible). When I think about the Net in general it seems to me like anonymity is completely incompatible with accountability in general or legal accountability in particular. That’s what I thought was so strange about last week’s panel, where the gentleman who was arguing for anonymity, I forget his name-- |
| JZ: | David Sopel. |
| __: | He was really pounding the table that we need to have legal accountability on the Net. Yet also he wants to maintain complete anonymity. It seems like those two things are incompatible. Even though it might have served his purpose just talking about privacy, it seems like in general these two philosophies are incompatible. I just thought that was really strange. I wish I’d asked him about that. I wonder what other people think about that. |
| JZ: | Scott? |
| SCOTT: | For one thing, as I understood his comments, he was talking about not accountability for individuals but accountability of organizations. And that way they’re not as incompatible, I think. Because he wants strict anonymity for the individual and then the group, like AOL in this case-- I’m sure he’d say that AOL should be accountable. |
| JZ: | Yeah, the deep pockets should be accountable. The little guy should be-- Which, in a way, you might claim is my claim in the system ...(inaudible) piece. Saying that AOL, bad AOL, you should never have done what you did with Drudge. And 230 actually overreaches to protect you-- Not Drudge. Actually with Drudge is ...(inaudible). With both Drudge and with Zaran and 230 is overreaching to protect you. Where we’re still worried about the little guy, who may or may not be particularly protected by 230. I mean, Drudge is still on the hub, right. The only defense Drudge offered had to do with personal jurisdiction, rather than what 230 somehow shielding him. He’s the author of the stuff, 230 is not going to help him in the least. |
| __: | A quick comment. Zaran
faced, obviously, a lot of harassment. That was because, I think, people gave it a lot of
credibility. They believed it. Maybe part of it is because they saw it was in print. We
envision-- Maybe this-- I guess my assertion would be that maybe this is a transitional
period dilemma. In that if we envision a future where, say, P3P set interfaces which
commented on most, say, newsgroups or chat rooms, where in order to enter that chat room
you make a conscious decision on how much information you’re willing to give about
yourself. So you have that whole spectrum of chat rooms or newsgroups and such, where some
of them are everybody is accountable for everything they put in their postings. And then
there’s the whole spectrum to complete anonymity. You’ve got some newsgroups
where every posting is anonymous. I think people are going to add more credibility to the
postings that are accountable. Where the individual who posted it is very accountable for
everything he says on that posting. And they’ll have a lot less credibility to the ones that are anonymous newsgroup. To that extent maybe this problem will be sorted out a bit and they simply will not believe-- Now, granted, there are a bunch of stupid people in the world, regardless of whatever they’re going to be believing it anyway because they see it in print. But maybe gradually the lion’s share of those people will become a little bit more savvy. They’re going to see certain newsgroups, certain chat rooms where individuals are going to be accountable for everything they say, so they’re inherently going to give them more credibility. And then you’re going to have some chat rooms and newsgroups that are going to be anonymous and they’re not going to give them any credibility whatsoever. Maybe this is a transitional dilemma because people are giving credibility where they shouldn’t. |
| JZ: | Now this potential solution,
way of addressing the problems we’ve identified, is one that says it’s not just
a capital “I” Internet. It might well be lots of little Nets and it means people
can gather in the communities they want. If people want to be in a community of rank
innuendo and anonymity and that kind of thing, they’re welcome to it. And they will
rise or fall by it. If they are tricked by the Publisher’s Clearinghouse wagon
that’s their own business. Whereas, there are others who may choose to organize into
other communities enabled to be less anonymous, thanks to the software that will, in those
communities, have you be identified. Before you get on to AOL Prime, our feature is you
have to identify yourself. And once we verify who you are, then you’re on the
network. And now you know that anybody else you encounter on the network is going to be
identifiable. In that sense people start sorting themselves out into different
communities, even at different times. You can imagine logging into different areas to take the temperature. I found myself looking at the Drudge Report to see what the latest rumors-- |
| [PAUSE BETWEEN TAPES] | |
| JZ: | Figure out what’s going
on in that chat room and summarily terminate his access and don’t give him a cause of
action for having blocked him. I mean, it’s both positive and negative with respect
to what it allows AOL to do in that it’s both saying AOL, you can edit what you like
and put up what you like and not have to answer for it. At the same time, you can take
down what you like and not have to answer for it, as well. Or, the very least, if you
start taking down some things we’re not going to let you get blamed for leaving up
others. I don’t know if I can get to the Web now through this panel. I don’t even know if I should try. Let me just give it one try. I think I’ve got it. There it is. I just want to-- Of course now I can’t see it. Okay, here come the Windows. I just added to the link library this-- |
| __: | Do you want to increase the font? |
| JZ: | Yeah. Let me see what it pops up and looks like. |
| __: | Or at least tell us what it says. |
| JZ: | Yeah, it does look a little
bit-- Let’s see if we can increase the font, the old fashioned and difficult way. So,
what this article says-- Maybe it was actually, while I was surfing, trying to interrupt
and give us a message. What the article says, if you could read it, is there’s this
organization called Peace Fire, started by a kid in his teens, while he was in college.
It’s generally like EFF for teens. It’s this guy wanting to defend online
rights, anonymity included, publish what you want. And Peace Fire starts taking on groups
like Cyber Sitter. Cyber Sitter is one of these things that, through code, is trying to
enable it so that sites are blocked so that parents can give their kids the keys to the
computer but know that they’re not able to go just anywhere. And certain sites, by
Cyber Sitter selection, are blocked. This kid started to find out what sites Cyber Sitter was blocking. Now, he could find out just by using it and trying to go to a place and see if it gets blocked. He found a way to be a lot more efficient about it and got a whole list. Cyber Sitter then threatened him with a lawsuit for stealing their trade secret and for violating copyright, the expression of the list that was the sites that they had compiled, and they called up his ISP. They said to the ISP you’ve got to yank his access. If you don’t yank his access we will actually summarily block every one of your sites. And this is an ISP that not only provides Peace Fire.org, it actually to a bunch of others, 7000 other sites on this ISP. The ISP then was under a lot of pressure from Cyber Sitter to remove access for Peace Fire so that the rest of their sites wouldn’t be blocked by Cyber Sitter. Now that sounds like a rank abuse of the trust that comes with Cyber Sitter is supposed to be looking for objectionable material. If you look at Section 230 it is completely unclear which way this goes. Who it’s actually empowering in whatever battles could come about should the site choose to eliminate Peace Fire. Because what 230 is doing is saying look ISPs, you have freedom, edit away, we don’t care what you do. Go ahead, kill the sites you want, enhance the sites you do want, because we hope you’re going to make the right decision. And if what you’re doing is editing to help out the protection of children, we don’t want anybody to second guess you. And, as a result, any editing that the ISP might do, say getting rid of Peace Fire, or editing that Cyber Sitter may do, striking out a whole list of otherwise objectionable sites because it advances their role, is something that 230 would immunize against any common carrier-like claims to be lodged against them. Saying wait a minute, you’ve got to provide non-discriminatory access or Cyber Sitter, you’ve got not to discriminate against me. So, I guess that’s just to leave the point that Section 230 is very ambiguous as to whether it’s speech enhancing or speech unenhancing. So, I see we’re basically at time. There’s very little reading for next week. In fact, at the moment there’s none. There’s about to be a brief article by our own Larry Lessig that will ...(inaudible), a point that may be familiar to many of you on code. So, use next week, the following week, to think about papers. And the one question that will be up on the site will be one related to just thinking great thoughts. And then there’s some heavy reading for the following week, so you can also get a headstart on that if you want. I’ll try to update you all. I’ll post a message in the discussion forum about MSI and IANNA. |
| [END OF SESSION] | |