I’m getting to this a week late, because I was on the road on behalf of Public Business when the story broke, but some thoughts on the subpoena. Seems to me there are two conversations to be had:
One is from the perspective of individual consumer privacy and what kind of legal compliance policies companies ought to have when it comes to user data. Companies, plural, because, as Tom Phillips has noted, there’s a whole lot of language in the subpoena that’s got nothing to do with Twitter. And, I would add, several classes of company not covered in this subpoena who might be targeted for data in future lawsuits if this prosecutorial M.O. persists. It’s something I’ve been thinking about a while, at least since I had the chance at Columbia to take a course on privacy with a professor who prophesied that the ability to broadly subpoena Google + Microsoft + Citigroup + BofA would produce 21st century totalitarianism. While I thought his vision hyperbolic–and while we butted heads a lot in class–that the information subpoena was a scary tool was something on which we agreed.
Regulators in the US, UK, Spain, Italy, Germany, Canada and the European Commission are finally getting serious about privacy. First, there’s the bevy of cases and crackdowns recently introduced against Google’s Street View. Secondly, there’s the EC’s new privacy proposal, mandating that in the future companies ask such consent for all the data they take, and (more radically) make it possible for users to have it deleted at any time. They’re calling this the ‘right to be forgotten.’ [A direct response to Eben Moglen, perhaps?]
This is comforting news for those of us who have been talking about data and digital rights for some time, to be sure. But I am wondering it’s ultimately too little too late.
See, most of the major holders of user data online are–or are close to becoming–monopolies within their niche: Google in search and advertising, Facebook in social, etc. And it seems to me that the history of monopolies is that once they get in place, it’s very difficult, legally, to break them up and almost impossible to muster the political will for radically restricting their business practices when a massive majority of the populace are their customers. [Can you see I’ve been reading Tim Wu?]Â That’s one reason that I’ve been arguing for two years that the way to best Google on privacy was to take it to task on antitrust issues early on, before it became unbeatable.
But given we haven’t done that, it now seems to me that the best possible scenario is [and I can’t believe I’m saying this] NOT to sue Google’s more offensive services out of existence, or to try and take it apart, but to essentially acknowledge it as a legitimate monopoly, and then slap it with a huge list of monopolist’s burdens: forbid it from further M&A activity, say, forbid them from collecting things like payload data, and mandate that all data-collecting services become voluntary, not at the individual level, because that’s now untenable, but at the municipal level. If the majority of a town’s population votes to be mapped, Google can photograph in the town. I think the municipal level is basically the smallest level that is still feasible, and the largest level that is still democratic. Is this a crazy idea?
As for the right to be forgotten, I regard it as pretty sound when I think of individuals and companies like Google or Facebook, but I am less convinced about how it might extend to other types of websites. Jeff Jarvis has correctly pointed out that a very broad reading of such a clause could lead to the idea that people can demand takedowns of news stories about them. Which is something that doesn’t make any sense to me, not least because news coverage is NOT something you consent to have written about you. It is not data YOU give away (and therefore own) but data which we as a society have decided can be collected involuntarily so long as you have the right to correct the record, and to extract a pound of flesh when the journalist is wrong. I’m inclined to say that the right to be forgotten should apply to everything except IRS and other federally mandated disclosures, and stories about you in the press. But I must admit that my sense of surety about these issues has declined the more I learn about them, so, please, sound off.
My friend wanted to know what the story was really ‘about.’ Was it–as the bans’ promoters insisted–about how much data our governments in the West already have? Was it about the fact that BlackBerry IS encrypted in the first place when so much other data is not (something many consumers seemed not to know)? Was it about the fact that democratic India was following the pattern set by more draconian regimes? Or, he was asking me, was it about something else entirely? Here’s what I told him:
“To my mind, these bans represent a kind of clash between the technology community’s perception of itself as being essentially above governments and the reality that all international business is subject to and inextricable from international politics. What is especially remarkable about this is the degree to which tech firms–which are still heavily consolidated in the U.S.–gladly do business with the U.S. government, while maintaining the idea of being essentially above regulation. In particular, there is a cozy symbiosis between the Valley and the defense establishment, and it leads some in the developing world to think of all tech firms as proxies for the U.S. government. Given that, it is also a story about developing country governments demonstrating the regulatory muscle not to be talked down to by the West, about showing–mostly to their own public–that globalization does not mean colonization. It’s also important to keep in mind that while BlackBerry messaging IS encrypted, it’s not that governments elsewhere in the world are necessarily more comfortable with that than the countries issuing these bans. Rather is is that here in the West, governments can often subpoena for access to specific correspondence if it is necessary for a court case. In countries where that kind of subpoena power doesn’t exist, governments might try to hack systems extrajudicially, and then if that fails, proceed to shut down what they cannot penetrate.”
One thing this story is NOT about, however, as the above should indicate, is privacy: we lost thata long time ago.
This weekend, I spent some time pondering the recent departure of Dave Weigel from the Washington Post. Weigel made a name for himself at the Washington Independent, where he covered the conservative movement for a liberal audience. This spring, he was hired to blog about American conservatism for the Post.
Like most of the Washington left-of-center reporting pool, Weigel was a member of the controversial JournoList, an off-the-record email listserv managed by the Post’s Ezra Klein. Last week, a number of Weigel’s emails on the list surfaced, showcasing harsh, offensive views about the movement he covers and a desire to influence coverage of that movement at the publications of his peers. On Friday, Weigel resigned.
The political blogosphere, especially the left-o-sphere, has been quick to turn Weigel into a hero, a poster child for the principles of new media, where having an opinion and voicing it is an asset, not a liability, and where the line between news reporter and newsmaker is blurry if it exists at all.
Beyond the satisfaction of getting this analysis out there, I found this project fascinating, not least because I learned that Google’s PR officer reads this blog and follows tech reporters on Twitter. That’s PR101, of course, but it’s notable that Google, for all its exceptionalist rhetoric, works just like any other firm of its size.
Finally, because my colleagues were in London, I was in New York and Google was in California, this piece was reported, written and edited at odd hours of day and night, with snippets of text sent between us over a veritable menagerie of technologies. We each took raw notes in Word, then posted them to a shared Google Document (for the uninitiated, this is a service that allows you to host a document on the web so multiple authors can see it). We outlined and drafted the piece on Adobe’s BuzzWord (a similar service that also allows to share comments on the document), and sometimes used GChat (Google’s instant messaging service) to tweak individual sentences or paragraphs before updating the central file. Then we fine tuned it with our editors in old fashioned Word attachments.
In the process, I learned what each of these software programs is best for: GoogleDocs is great for sharing big chunks of raw text, but useless for organization. Adobe is the best for comments and in that sense, the best collaborative tool, but it’s Flash-based and unsuited to older computers. Â Word is the easiest place to get a holistic picture of whatever you’re working on without getting sucked into the minute-by-minute changes.
None of these programs offers you everything you need. For most of the last ten days, I had Word, Google Mail/Chat, Google Docs, and BuzzWord open at once. Usually, I was on the phone too. The frenzy was a reminder that there are limits on the world-flattening capacity of computers. In the end, the best writing happened when we were on the phone with one another, writing each sentence together instead of dividing the work, and with one of us taking centralized control for typing. In other words, we wrote best when we slowed down instead of using technology to speed us up. A sobering thought for tech-evangelists.
Updated: Memes travel fast. The BBC ‘s Maggie Shiels makes similar points about BookSearch.
I’m usually sanguine about the new digital order, because I believe in the basic legal structures of a functioning market economy: the checks placed on any one company by the requirement to compete with others and the checks placed on all companies by government should, in theory, protect us from total Googleization and the violation of our privacy rights.
Here’s the problem: Google has become a monopoly and the entity entrusted to crack down on monopolies–the State–is dependent on various forms of digital data mining, at which Google excels. Now government has colluded with trusts and cartels before, but usually there is a body of journalists and consumers who pressure them to right the wrong. The real problem with the Google is how much civil society has cheerled monopolization: Read the rest of this entry »
I’m back at school at Columbia, and one of my electives this spring is a seminar on “Computers, Privacy and the Constitution” with noted intellectual property lawyer and free software, copyleft advocateEben Moglen. I havemy qualms about the politics of the open source crowd but I will admit that Moglen is sharp as nails and I’m psyched to be studying with him. This course actually focuses on the aspect of the open web question that brings meclosest to Prof. Moglen: the issue of privacy. Free access to information may sound like a plus when its free mp3s we’re debating, but not such a plus when it’s unrestricted government access to your phone lines.
Eben Moglen is the first person in the free software movement I’ve heard admit and take ownership for the link between the two, and for this he gets major points. To paraphrase his introductory lecture for the course [I was taking notes, not tape-recording], “We who promoted these technologies to trick capitalism into undermining itself and to empower those at the bottom who could not afford to pay for knowledge enabled the surveillance society we live in today.” And of course, it’s big corporations who are teamed up with big government to operate that surveillance. Whether you’re a hippie anti-capitalist or a libertarian wingnut, you have much to fear from that collaboration.
At the worst extreme, there’s the Moglen paranoia scenario in which the Internet brings us free culture fascism. As Moglen sees it, (and there’s some logic to this), the fundamental ideological front in America’s war on 20th century totalitarianism was not the question of its violence, nor of state control of private sector institutions [though we spoke a lot about those]. Our problem, our fear, was the state’s control of individual minds, the ability to police dreams and ambitions. Data-mining our internet searches and Facebook walls does just that.
Now, Moglen continues, what eventually brings down any regime is “the destruction of its instruction sets.” [He’s really a poet in lawyer’s clothing] Totalitarianism, to extend the example, failed because its machinery started to creak under its own weight. Moglen’s fear about any contemporary state is not that it is evil but that if it turns out to be, it will be impossible to challenge because the government has purchased all our data and that data can never be destroyed or changed. Everything that is uttered or sent in what we perceive as a transitory medium–the phone, the web–is actually recorded and made permanent. This is what Moglen calls “The End of Forgetting.” It’s a tragically beautiful concept, but it’s one I somewhat differ with: sometimes, the ability to Always Remember can be good. But by and large, I’ll admit Moglen is right to be alarmed about our privacy.
If nothing else, his concerns are topical. A few relevant stories from this week alone:
–the British government is going to release a new plan to help internet service providers police privacy. How? By the creation of a new agency which “will decide what level of illegal activity is required before an internet user can be spied upon.” In an Orwellian twist, the agency [to be funded by the telecom firms] is called the Rights Agency. How big brotherly.
–to Moglen’s point about the overlap of free culture with surveillance culture, the British government is also announcing an expansion of its open government policies, shortening the statute of limitations after which journalists can get access to classified documents
–Swiss cops used Google Earth to find a marijuana farm. These kinds of collaborations bring into question any government attempts to regulate these companies. Sometimes, I think the government doesn’t realize how much it is dependent on these firms–last week, the Obama administration signed its staffers up for Gmail when the White House email system crashed, calling the arrangement temporary. Do they not realize they’ve just given a bunch of engineers in California PERMANENT access to what, in the analog age, would have been highly classified correspondence? Do they not know that Google datamines email? Can’t be, because they often buy such data. Do they honestly think Google deletes any info the government doesn’t use? Ha.
–As Moglen concedes, free software has at least thus far failed to undermine capitalism. But capitalism might be the last weapon in the battle to undermine digital surveillance: it’s other companies’ fear of Google’s power that will motivate them to join with civil libertarians in defending privacy. That’s the gist of this article in WIRED, and the case made by the author in the video interview below.
Throughout the Web revolution of the past decade, pundits and journalists have angsted endlessly about the implications of new technologies on privacy and the capacity for unwanted “Big Brother” surveillance or dangerous identity theft. Counter-arguments from tech-geeks have mainly centered on the entertainment potential of Google Earth or Facebook-stalking. Breaking the impasse means proving that the new technologies are more than a toy, but a useful and socially constructive tool.
How effective this will be, however, is still an open question. After all, criminals have computers too and it can’t help to tell them where we think they are. Not to mention that the Facebook lists wanted felons rather than simply suspects: due process dictates the individuals are innocent until proven guilty. Hopefully, the officials in charge will follow the law books over the Facebook.
On the other hand, there are interesting principles behind this technology: crowdsourcing, global technologies as a form of international law/world governance, linking virtual networks back to the physical world. As imperfect as this particular project is, these are the general contours of the coming era. It’s fitting, perhaps, that Facebook and Google would be the first to sign up.