Slashdot has an overview here, and Wired and Ars Technica have full coverage.

It’s interesting, because we’ve been talking a lot about corporations going after each other with the intent of getting websites and content taken down or blocked, services removed and banned, but little about the “rights” of individual users on the internet. We’ve seen that search engines don’t need to change or remove query results, even for proper names, since the appearance of these links are merely the opinions of the search provider, and as such have substantial protections as corporate speech.

The search engines, however, do not actually host your data, they merely link to it. They do not, arguably, use your data in a commercial way (in fact, I would argue that they do, but I don’t want to make the argument that search engines are illegal, so I’m attempting to differentiate here). They use it internally to generate query results, but they do not sell it or target advertisements based upon it. They do target ads based on the query term, but this is a one-time quid pro quo and the engine does not (at this point) maintain any sort of state where user preferences are concerned. The engines are rapidly changing this, which may bring them under the purview of the following analogy soon.

It is the advertisers and marketing firms that work hard to maintain the closest simulacrum they can devise to the living, breathing you. They do want your shopping history, your browsing history, your income, your taxes, you favorite color. They want to know where you live and how far you are willing to travel for dinner. They want to know if there is a link between the movies you get from netflix and the brand of shoes you prefer. And, at an ever increasing pace, they are acquiring this information.

Now, they don’t seek to do anything overtly harmful with it, they just want to target adverts at you and get you to buy things. Is this an invasion of privacy? If so, is it actionable? Or is it merely part of the deal we make as users in order to get free content online?

Our own computers, just like commercial servers, are protected by statute. No intrusion is permitted without our authorization. But the companies developing our commercial profiles generally do so by examining the actions that we take in contacting other computers, the things we read and the items we purchase. They argue that, if we don’t like it, we can merely avoid using the internet, at least the commercial aspects of it. Is there some principled third option?

I believe that it may be instructive to consider the property analogy again. This generally doesn’t map well onto the actual internet, but arguably it does here, since for these purposes it is perfectly fine to consider any given website to be house or shop. By analogy, the user is an individual traveling around a city – the web – and going from shop to shop while being followed by a snoop who catalogs their purchases and even the items that they look at, along with their car, their hotels, their home address, etc. The snoop is always in the private shops with the consent of the shop owners, so there is no problem there. The problem may be in the snoop’s sale of the information to the participating shops and companies that then use it to target advertisements at the user.

I think that the best way to go about making this actionable may be through a right of publicity argument. This is the right that, in most states, prevents someone from taking a picture of you and selling it as a postcard without your consent. The problem with this is that it is not a federal statute, but rather state statutes and common law. It is also unclear exactly how it would map onto the web, but there is room for hope.

Some states have far reaching protection for name, image, likeness, signature, gestures, distinctive appearances and mannerisms. Shopping habits and favorite news sites or blogs would certainly count as mannerisms, and thus the sale of such information in commerce could be blocked the individual concerned, assuming it was linked to her identity. This link would most likely be done by IP address, though profiles are rapidly becoming linked to different logon accounts for everything from eBay and Amazon to NYTimes.com and WordPress. IP addresses have thus far been considered personally identifying enough for courts to take action in the host of RIAA making-available cases, and thus should be sufficient to trigger right of publicity protection.

Some states have a more limited view of these protections and encompass only name, image, and likeness. The question then is how this maps onto an internet identity. Is an IP address a name? Perhaps an image? Is a collection of someone’s shopping and browsing habits a likeness or image? People certainly use the phrase “a snapshot of her shopping history,” and the snoop analogy lends itself to the thought of a man in a trench coat taking pictures of you as you take items off the shelves.

Whether or not this would convince a court is another question, but it would be an interesting place to start.

This is law-as-technology. The wikileaks servers are still up and running, ready to serve content. They are hosted in Sweden, by the same folks who handle thepiratebay’s hosting, and beyond the easy reach of U.S. courts. The registrar, however, is located in San Mateo, CA, and is thus within the jurisdiction of the Northern District, rendering the entire technological leaning tower vulnerable to U.S. domestic law. No user anywhere in the world can resolve wikileaks.org, regardless of the jurisdiction in which they reside.

However, this story also demonstrates technology-as-law in action. The internet is based on resilience to damage and to single points of failure, and as has been pointed out before, the internet treats censorship as damage and routes around it. This is true insofar as an order blocking a DNS entry in a single jurisdiction is unlikely to effectively deny access to the servers in question. An order blocking an IP address in any jurisdiction except the one in which the servers actually reside is even less likely to succeed (and, unlike the DNS scenario, requires no human intervention to route around).

In the wikileaks example, the servers are still accessible through a variety of DNS entries, listed here. These entries are under the control of registrars beyond the jurisdiction of the Northern District of California. Even if all DNS entries were removed, the servers are still accessible through their IP address. Indeed, the top post on reddit today, by a fair margin, is “We don’t need no stinkin DNS. Wikileaks.org -> 88.80.13.160.” This brings up interesting questions about the “reasonable internet user” and whether, with the growth of social networks and aggregators like reddit and digg, not to mention social bookmarks like delicious, a DNS name is truly necessary in order to exist on the internet. Of course, ICANN is still under U.S. jurisdiction, and thus IP addresses, the ultimate single point of failure on the internet, may be vulnerable to the law-as-tech approach of a single nation for the moment.

For more information on the wikileaks dispute, see this description of the action brought by the bank, this detailed description of the TRO on wikileaks itself via a different TLD, and this entry on the Bank on wikileaks.

Please note that this post is meant neither to endorse wikileaks, the Bank, or the Northern District, but rather to point out a current example of technology and law playing off each other and restricting possible actions and remedies online.

I’m going to try to make a case that I suspect would not be especially popular in this class: that the FCC had some good reasons for imposing some sorts of fairly burdensome regulations on the cable industry. The first area I’d like to discuss is the must-carry rules. There are at least 7 interest groups here: (a) cable subscribers, (b) non-cable subscribers in cable areas, (c) non-cable subscribers in non-cable areas, (d) broadcast stations, (e) cable stations, and (f) cable companies. In general, the FCC ought to be establishing regulations in the public interest. If cable providers don’t have to provide local broadcast channels, this seems like it will tend to cause a migration of programming from broadcast to cable. The reason is that even if cable providers will usually carry leading broadcast stations, investing in really expensive programming (such as the Super Bowl) is a risk if you are a broadcaster since any falling out with cable companies between when you buy the programming and when you show the programming (Super Bowl contracts are signed years in advance). Since the cable companies know this, broadcast companies won’t have a strong bargaining position and can be held up by the cable companies in contract negotiations. The result, I would think, would be for cable companies to become to primary purchasers of high profile programming and then, in many cases, to resell it to broadcast networks. Though broadcast TV would presumably survive since it would still have a rural market not served by cable, it seems likely that the quality of broadcast TV relative to cable would decline.

Let’s consider the various consumer groups. Cable subscribers are going to be fine no matter what. They have access to almost all programming and presumably cable companies would only cut off broadcast stations enough to show the broadcast stations who is boss. On the plus side, cable rates might go down a bit as cable companies try to rely more on ad revenue and a larger subscriber base. Non-cable subscribes in cable areas will be more likely to pay for cable, which is bad for them (they were happy not to subscribe to cable before), but since they can readjust their purchasing decisions, they shouldn’t be too much worse off. Rural consumers in non-cable areas do seem likely to be adversely effected by the decline of broadcast stations. It is not so much that such stations would go out of business altogether, but that they would increasingly lose access to the more desirable programming. Consumers in non-cable areas are likely to be les affluent and less desirable for advertisers, so the costs of writing off this segment may be smaller for televisions companies than their absolute numbers would suggest. So it is likely that not all of the programming that goes from broadcast stations to cable stations will end up getting resold to broadcast stations. The welfare of rural consumers is a legitimate concern and seems like a plausible reason to adopt rules that favor broadcast companies.

The above analysis is probably out of date since (a) the same corporations tend to own leading broadcast and cable channels, and (b) the advent of Direct TV and other providers of relatively low cost satellite TV has changed the situation in rural areas. However, must carry rules seem like they may have been justified in the environment in which they were originally enacted.

The second issue I’d like to discuss is the issue of a la carte vs. bundling of cable services. I’d like to make one argument that was not touched on by the reading. It seems that one potential benefit of a la carte service to consumers would be that it allows consumers to constrain their future television watching habits by not ordering channels that are likely to form bad habits. Suppose, for example, that I would like to order basic cable because I want to watch C-Span and perhaps some of the new channels on occasion. This might be important for my work or for civic activity or perhaps I’m just interested in politics. However, under the bundling system, there is no way for me to order C-Span without getting a bunch of other channels as well. And it might be the case that if I get ESPN, I’ll end up spending a lot of time watching sports that I should be spending doing other things. Now supposing that I know this about myself, what I would like to do is to order C-Span, but not have ESPN available on my television. Obviously, the cable company wants me to watch ESPN (more ad revenue for ESPN) and so from their perspective it makes sense to force me to order both if the competitive environment is such that I cannot get a le carte service from other providers. But it seems that constraining my options like this is quite bad for me. My considered view on the matter is that not only am I not willing to pay for ESPN, I would not willing to pay a small sum not to get ESPN. However, if I actually get ESPN, my revealed preference will be for watching a significant amount of ESPN programming. My sense is that my considered judgment is probably a better guide to my welfare which suggests that allowing consumers to use a le carte purchase decisions as a pre-commitment devise to constrain themselves in the future is good public policy.

 -iralindsay

The Oxford Tube made a run of it last year.

http://www.moovera.com/pdf/moovera_vodafone_apr07.pdf

Seems to have been a real competitive advantage. Interesting – physical transportation patterns shaped by virtual access points. How far we’ve come?

-davidagnew