The Friendly Guide to Regulating the Internet: National Sovereignty

Posted on January 19, 2012 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Today we add the final section to this guide – a discussion of how tricky national sovereignty can be online.

National Sovereignty

Have you ever heard of the Internet? This global network of ideas that lets me hear music from Africa and watch shows from South Korea while sitting in the United States? I can access content from all over the world. That’s pretty damn awesome, right?

Well, there is at least one issue this global network brings up: maintaining national sovereignty, i.e. the right of a nation to decide its own rules and laws. When a nation, especially a large nation, decides on its form of Internet regulation, it is bound to impact the lives of people and businesses around the world. For example, the European Union’s Privacy Directive, which is designed to protect the privacy of European citizens, places restrictions on businesses outside of the EU if they want to offer their services in the EU. While some companies can juggle differences in regulations across nations, some companies can’t. So the privacy regulations of the EU can end up impacting the lives of American users of a website, because that website has to meet the EU’s regulations.

It’s very difficult to say whether interfering with the sovereignty of other nations is good or bad, as it depends a lot on the situation at hand and your own view of the situation. One thing is certain however, some regulations of this global network of ours involve international diplomacy, which can make the creation or implementation of laws way, way, way more difficult.

The Friendly Guide to Regulating the Internet: Copyright as Incentive for Content Creation

Posted on January 13, 2012 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Here is part five, the love/hate relationship between the Internet and copyright.

Copyright as Incentive for Content Creation

Talk is cheap, listening is even cheaper, and saying the really cool and original thing you just heard somebody else say is virtually free. Since our nation’s founding there has been lengthy arguments among academics, professionals, and politicians about the positive and negative impacts of intellectual property (IP). With the emergence of the Internet, some pretty convincing arguments have been made that copyright hurts our nation’s economy by forcing an artificial price onto something that is naturally free – consuming and reusing an idea.

If anybody could copy and sell your great American novel, why would you invest months or years writing it? You are probably motivated by a creative need to express yourself. But, you also need to eat. The people that create great art and innovation need to cover the expenses of life, and IP makes it possible for many more people to create the ideas that impact our nation while earning a livelihood.

This is intellectual property in a nutshell: IP hurts, but we need it. It encourages the creation of speech by limiting the creation of speech. IP is a confusing concept that is sometimes great, sometimes dangerous, sometimes unnecessary, and thanks to the Internet, a part of your everyday life.

The Friendly Guide to Regulating the Internet: Difference between a Distributor and a Creator

Posted on January 5, 2012 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Here is part four, the difference between a creator of content and a distributor of content.

Difference between a Distributor and a Creator

If you’ve ever uploaded a home video to YouTube then you know the difference between a distributor of content and a creator of content. YouTube did not create the video you uploaded, you did. What YouTube did was distribute the content you created – it provided the tools and infrastructure that allow others to watch your video. And while YouTube didn’t make your video, if your video ended up getting millions of hits, you know your Internet fame would not exist without YouTube’s distribution.

Distributors are important to have, so speech and intellectual property regulation is usually careful to encourage their existence. For this reason, distributors are usually not legally responsible for the obscene, libelous, or infringing content they distribute as long as they follow reasonable regulatory requirements (see Section 230’s Safe Harbor for an example.) If they were legally responsible, then distributors would have to check out every book for sale in their store or every video uploaded to their site. Such a task could be ridiculously expensive, so nobody would want to open a bookstore or create YouTube.

Imagine how sad your life would be if you never got to see Double Rainbow guy’s video.

The Friendly Guide to Regulating the Internet: Challenging Removal of Speech

Posted on December 16, 2011 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Here is part three, on the importance of being able to challenge the removal of ideas and silencing of speech.

Challenging Removal of Speech

Let’s say a copyright owner can go around the Internet and take down works that infringe their copyrighted material. Under this law an overzealous creator of The Simpsons might take down millions of original animated videos like this one just because these videos also contain cartoon people, cats, and hamsters. If there is no process that allows the creators of these videos to prove their originality and get them back online, then millions of people might be unable to share billions of ideas because of a handful of copyright holders who are simply being a bit too protective of their creations.

The power to remove the speech of others is dangerous. Even when used with good intentions, removing the speech of others can end important arguments and innovations. For this reason, speech regulations usually allow a person to challenge the removal of his or her speech. Speech regulations that do not allow challenges are generally considered bad policy, and either do not become law, or do not survive the scrutiny of the courts.

The Friendly Guide to Regulating the Internet: Prior Restraint

Posted on December 12, 2011 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Today we give you part two, an introduction to prior restraint.

Prior Restraint

Every once in a while somebody proposes a law along the lines of “anybody who wants to talk about puppies will have to get an OK first,” or “nobody will be allowed to talk about nuclear physics” (puppies and nuclear physics are interchangeable with any subject you can think of). The law maker might be well intentioned, saying that discussion of nuclear physics can lead to building a nuclear bomb. The problem is a discussion of nuclear physics can also lead to solving humanity’s energy problems.

"And those who speak ill of puppies without prior authorization shall be fined no more than $5000 and imprisoned for a maximum of 30 days"

A discussion can go anywhere, and it is impossible to know ahead of time which direction every possible discussion will go. A law that is too willing to restrain speech can end technical innovations, democratic debates, and economic growth. For this reason, prior restraint is, generally speaking, REALLY REALLY BAD. And laws that include prior restraints are almost always, except under very special circumstances, unconstitutional.

The Friendly Guide to Regulating the Internet: Overbroadness and Vagueness

Posted on December 8, 2011 by wbushey

Understanding why Internet regulations are the way that they are is confusing. So, FriendlyToS is creating The Friendly Guide to Regulating the Internet, a set of brief introductions to the most important concepts in Internet regulations. Today we kick off this guide with an introduction to overbroadness and vagueness.

Overbroadness and Vagueness

Suppose your friend wanted to stop people from reproducing a picture she made, so she demands that everybody she knows stop copying any pictures. That sounds like a bit of an overreaction right? Or she says that people cannot share her picture. Well what does “share” mean? Can I post a link to her original picture on Facebook?

A number of speech regulations have been struck down because they were overbroad – they needlessly regulated “good” speech that is beyond the scope of the regulation’s focus. Speech regulations have also been struck down because they were vague – the laws did a poor job of defining what would be a punishable action.

Government and Your Data

Posted on November 7, 2011 by wbushey

A couple of weeks ago Google released its Transparency Report , which presents data on the number of times a government has requested data on users or requested that content be taken down. A number of points have been made about this report by Wired, such as the increase in the number of data requests made by the U.S. government, the fact that Google is the only major Internet company that publishes this type of report, or the point that this report covers only a slice of all possible US government data requests. Personally, I think the best point to be made about the report is simply this: the government can access data about you from businesses.

What level of access the government should have to information about you is one of the great democratic questions of our time. There are legitimate societal reasons for allowing the government to access information about you, such as criminal investigations. For this reason, many federal and state laws regarding Internet privacy (eg. the federal Electronic Communications Privacy Act (ECPA) and Minnesota’s Internet Privacy law) include statements that allow information about users to be shared with certain government agencies under certain situations. Ideally these situations should require a warrant or a subpoena, but thanks to the Patriot Act, the ECPA, and a number of other buzz word laws and cases, various federal and state agencies can access a lot of information about you with little to no accountability.

As a result of these laws, nearly every website that has a terms of service or a privacy policy will include some note about how the site will share information about you, or information you have provided, with law enforcement and/or government agencies. Facebook’s Data Use Policy includes this clause. Google’s privacy policy also includes this clause, as well as Yahoo!’s. Therefore, via Terms, you as a user have consented to allowing your information to be shared with government agencies in certain situation with pretty much every website you have ever used.

The law allows government agencies to access data about you. Your consent to website terms allows government agencies to access data about you. This is not a comment on the state of citizen rights, nor is it an Orwellian critique of government surveillance. This is simply a reminder that if you put information online, or make use of Internet services, the possibility exists that the government can access that information for some compelling reason.

If there is information you do not want to government to get at, then don’t put it on the Internet.

Headlines of the Week

Posted on October 21, 2011 by wbushey

ECPA’s 25th Anniversary

This week marked the 25th anniversary of the Electronic Communications Privacy Act, a law that establishes privacy protections for electronic communications from government actions, such as interceptions and searches. Because it was written in 1986, the act doesn’t explicitly talk about a lot of Internet technologies, including email, IM, and social network messages. And for this reason, groups and senators have used this anniversary to call for the ECPA to be updated to cover the forms of communication that most Americans use today.

Google Plus To Allow pseudonyms

A number of activists have voiced their concern over the terms of Google Plus that require users to supply their real names. In particular, the policy has been criticized as inconsistent and favoring the famous (since celebrities have been able to use their stage names), disrespecting of those who choose an identity of their own, and inconsiderate of those who need to hide their identity for their own safety. In the face of these criticisms, Google has announced that in the future, Google Plus users will be able to use pseudonyms on their profiles.

Google Defaulting to SSL Searches

In more Google news, the search giant has decided to enable SSL by default for searches conducted by a user who is logged in. This is great news for the privacy and security of users, since SSL protects users from having their searches intercepted by others, or having results redirect to nefarious sites.

Canadian Supreme Court Says Links Are Not Defamation

In Canadian free speech news, Canada’s Supreme Court has ruled that a page or post that links to a defamatory site is not itself defamation (false statements that seriously damage one’s reputation) – meaning that Canadian’s do not have to worry about being sued for merely linking to a defaming page.

In Which Verizon Does Opt-Out

Posted on October 17, 2011 by admin

If you are a Verizon Wireless customer who wants to opt-out of Verizon’s new mobile ad targeting program, click here.

Is it right for a company to automatically enroll its customers into new information sharing services? Whether it is right or not, the act of automatically enrolling customers and users into sharing information is disturbingly common. Facebook has famously done this multiple times. A few weeks ago, a judge allowed the use of automatic enrollment on email addresses involved in Barnes & Noble’s purchase of Borders. And last week, Verizon sent an email to its smart phone customers, letting them know they are being automatically enrolled into the company’s new targeted ad program.

Automatic enrollment is so common that people often refer to it by a shorter name: opt-out. Many consumer advocates favor opt-in, in which a company has to get a user’s OK before it can enroll her in a new service. However, using opt-in makes it harder for a company to launch new services or start new advertising programs. So companies often use opt-out: they enroll users into new services and place the burden on users to remove themselves. Since the terms of service of most websites include a clause about how users automatically consent to changes in a site’s terms and policies, opt-out is perfectly legal and an option available to most companies.

Opt-out is certainly questionable, but what makes this bad practice worse is the terribly unclear process most websites provide users who wish to out-out. Businesses know they need to provide users with a way to unenroll from new services unless they want to face consumer backlash, bad PR, or an investigation from the FTC. But, letting users opt-out is often against a business’s interests. So, businesses will technically provide an opt-out process, but will put in no effort to make the process easy. The opt-out for Verizon’s new targeted ad program is a great example of this – it takes ten minutes of clicking links, reading summaries, and reading legalese before the opt-out link is found buried deep in the company’s terms of service.

Consumer advocates are constantly pushing policy makers and industry leaders to either force the use of opt-in, or make the processes of opt-out easy and clear. However, policy can be slow to develop, and industry has little incentive to use opt-in or easy opt-out if they don’t have to. So for the time being, consumers have to remain on the lookout for changes to the sites and services they use, and be ready to search through terms and policies when they don’t want to be involved in new services.

Update on 11/04/2011: Carnegie-Mellon recently released a report concerning the difficultly users experience in today’s opt-out system. The report describes how study participants were often unable to find the opt-out option of major online advertising networks. Those who could successfully find the opt-out mechanisms spent upwards of 45 minutes searching for the correct link.

Stanford’s 230 Safe Harbors

Posted on October 7, 2011 by admin

Stanford has generated a lot of buzz with its upcoming online Artificial Intelligence (AI), Machine Learning, and Database courses. So much buzz that the AI course, which professors Thrun and Norvig though would attract a few hundred online students, has an enrollment of at least 100,000. A lot of people are taking advantage of this great opportunity. And if those people take a gander at the courses’ ToS (here is the DB course’s) they’ll find this interesting tidbit:

Stanford is not a publisher of any of the content of the Sites, or of any content that may be available through links to and from them, and is acting solely as an internet service provider. 47 U.S.C. S 230(c)(1).

So is Stanford not providing these courses? Are they lying to all those online students with promises of awesome classes? And since when has Stanford been an ISP?

Well, these are Stanford courses, taught by Stanford professors. This tidbit is actually pretty innocent. It, or some variation, is pretty common among websites that allow visitors to make posts or upload media, including sites maintained by universities. All that it says is that the site is sitting in the Safe Harbor of the Communications Decency Act.

Decency, in Harbors?

Real harbors do a lot of good for society. They allow commerce and immigration. But its no secret that surly old salts spend a lot of time in harbors. Imagine for a second that you own a harbor. In your harbor, Bluto has been trash-talking Popeye, and now Popeye wants to sue you because of what Bluto said. Does that sound fair to you? And would you want to continue to own your harbor if every bad thing a sailor said on your docks became a lawsuit for you?

This is what Safe Harbor, aka Section 230, is all about. Following a tradition in media law, Congress decided that an organization that allows users to post content should not be liable for what users post. Otherwise, companies like Facebook and Verizon would have to moderate every message that its users send – or face so many lawsuits that they would go out of business. In making this decision, Congress also created an important distinction between Interactive Computer Services (ICS) and Information Content Providers (ICP). Information Content Providers are people and organizations that create actual content, like videos and blog posts (hey, FriendlyToS is an ICP!) Interactive Computer Services (which sometimes are called Internet Service Providers) are services that let ICPs post their content to the Internet. Under Section 230, an ICS is protected from most legal troubles that can result from its users – the ICPs – posting defamatory, libelous, or misrepresentative messages.

So all that Stanford is doing in its ToS is pointing out that, by hosting the websites for these online classes, the University is an Interactive Computer Service and protected from most lawsuits by the Safe Harbor of Section 230. Professors Thrun and Norvig, and students who post questions and discussions, are the ICPs creating all the content. Thus, if you think a student is defaming you on ai-class.com, you can’t sue Stanford over it. You have to find that student and sue him. Likewise, if you go on Facebook and say horrible and false things about somebody else, you are the one who is responsible and will be in trouble; not Facebook.

Friendly Terms of Service

Friends don't let friends talk like a lawyer