" /> net.wars: February 2009 Archives

« January 2009 | Main | March 2009 »

February 27, 2009

Modern liberty

Tomorrow is a thing: a series of events around Britain called the Modern Liberty Convention. Practically everyone I know (and a lot of people I don't) is on the speakers' list at one site or another. A Canadian friend emailed envirously about this: the Brits have it right! she said.

Well, not entirely. The reason you need an event like the Modern Liberty Convention is because you have a problem. Or, as the University College London Student Human Rights Programme has caefully documented, because you've lost a load of freedoms you thought you had (PDF). The list they've compiled is pretty astonishing. In the fact of the Human Rights Act and 800 years of the Magna Carta, 25 Acts of Parliament and 50 individual measures have served to remove freedoms that most British people took pretty much for granted. This is, of course, the problem with an unwritten constitution: it's fine to govern by gentlemen's agreement as long as everyone concerned is a gentleman - that is, that they share a consistent set of values and can imagine that the laws they're creating will apply to them just as much as everyone else they affect.

That this hasn't been the case for sometime is thoroughly documented by the convention's researchers, the University College London Student Human Rights Programme in What we've lost, an inventory of 25 Acts of Parliament and 50 measures that in the few short years of this century have acid-washed liberties that Britons have taken for granted in the 800 years since Magna Carta.

My contribution is to form, on behalf of the Open Rights Group, part of a panel called Business gets personal - can privacy have a future?

The answer, I think, is "maybe" and "sometimes". Businesses invade our privacy for all sorts of different reasons with varying amounts of power over us, so there isn't going to be just one answer. Constitutions don't necessarily help with this, largely because the threat companies pose is so recent. Even the written US constitution can't help us much; there was no such thing as a multinational corporation with an economy bigger than a government's back in the 18th century.

Amazon and eBay retain our user histories in ways that benefit us as well as them. It's helpful to be able to look over past Amazon purchases to make sure we don't give someone the same gift twice; Amazon uses our purchase history to recommend new things we might like. On eBay, your history is your reputation; it's what enables trading with strangers with some confidence. We get less in return - small discounts, preferential seating - in return for the privacy we give away when we sign up for loyalty cards or frequent flyer programs. But in these cases we have choices: we can buy books and groceries with cash from local shops; we can either not fly or vary the airline. As privacy advocates have said for some years, in these situations we tend to sell our privacy very cheaply.

We have little choice about using other types of businesses, such as banks and telephone companies - and there is no market pressure on them to adopt privacy-protecting policies. The nature of their businesses ensures that they have access to particularly intimate information about us. More than that, government mandates such as the anti-terrorism and data retention laws require them to retain that information and make it available. We can't get a better privacy regime by changing banks (unless the new bank is off-shore somewhere) or by switching from BT to Vodafone. Just last week, the US announced proposals to require not only ISPs (as in this country) but anyone operating a Wi-Fi hotspot to retain access logs for two years. The only way those businesses can be forced to change is by changing the law.

The most interesting are the social media, not only social networks like Facebook and Twitter but Web boards. These businesses provide the infrastructure for people to invade their own privacy to an extent that a business would probably never dare ask them to. Users do have some power in relation to these businesses because using these systems really is discretionary. Facebook, when it announced unilateral new terms and conditions last week became only the latest in a long series of online services to discover the speed with which users can revolt. Facebook's response - to try to create a Bill of Rights and ensure the democratic participation of its users in decisions it makes about the site - is interesting. The company has a serious and deep-rooted conflict: if its users don't trust it they won't stay; but the only potential money-making asset it has is its users and their data.

The big mystery is Google. We aren't locked into using it by lack of competitors or government regulation, and we understand its business model perfectly well - collect mountains of data on all of us. And yet we're seduced by that slick interface and those helpful results.

We can't rely on government to control these companies, not least because they'd love to have access to all this data, too. If we want privacy in future, we need to start by making better choices where we can, including in our politics.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

February 20, 2009

Control freaks

It seems like every year or two some currently populat company revises its Terms of Service in some stupid way that gets all its users mad and then either 1) backs down or 2) watches a stampede for the exits. This year it's Facebook.

In announcing the reversal, founder Mark Zuckerberg writes that given its 175 million users, if Facebook were a country it would be the sixth most populous country in the world, and called the TOS a "governing document". While those numbers must sound nice on the business plan - wow! Facebook has more people than Pakistan! - in reality Facebook doesn't have 175 million users in the sense that Pakistan has 172 million inhabitants. I'm sure that Facebook, like every other Internet site or service, has a large percentage of accounts that are opened, used once or twice, and left for dead. Countries must plan governance and health care for all their residents; no one's a lapsed user of the country they live in.

Actually, the really interesting thing about 175 million people: that's how many live outside the countries they were born in. Facebook more closely matches the 3 percent of the world's population who are migrants.

It is nice that Zuckerberg is now trying to think of the TOS as collaborative, but the other significant difference is of course that Facebook is owned by a private company that is straining to find a business model before it stops being flavor of the month. (Which, given Twitter's explosive growth, could be any time now.) The Bill of Rights in progress has some good points (that sound very like the WELL's "You own your own words", written back in the 1980s. The WELL has stuck to its guns for 25 years, and any user can delete ("scribble") any posting at any time, but the WELL has something Facebook doesn't: subscription income. Until we know what Facebook's business model is - until *Facebook* knows what Facebook's business model is - it's impossible to put much faith in the durability of any TOS the company creates.

At the Guardian, Charles Arthur argues that Facebook should just offer a loyalty card because no one reads the fine print on those. That's social media for you: grocery shopping isn't designed for sharing information. Facebook and other Net companies get in this kind of trouble is because they *are* social media, and it only takes a few obsessives to spread the word. If you do read the fine print of TOSs on other sites, you'll be even more suspicious.

But it isn't safe to assume - as many people seem to have - that Facebook is just making a land grab. Its missing-or-unknown business model is what makes us so suspicious. But the problem he's grappling with is a real one: when someone wants to delete their account and leave a social network, where is the boundary of their online self?

The WELL's history, however, does suggest that the issues Zuckerberg raises are real. The WELL's interface always allowed hosts and users to scribble postings; the function, according to Howard Rheingold in The Virtual Community and in my own experience was and is very rarely used. But scribble only deletes one posting at a time. In 1990, a departing staffer wrote and deployed a mass scribble tool to seek out and destroy every posting he had ever made. Some weeks later, more famously, a long-time, prolific WELL user named Blair Newman, turned it loose on his own work and then, shortly afterwards, committed suicide.

Any suicide leaves a hole in the lives of the people he knows, but on the WELL the holes are literal. A scribbled posting doesn't just disappear. Instead, the shell of the posting remains, with the message "" in place of the former content. Also, after a message is scribbled even long-dead topics pop up when you read a conference, so a mass scribble hits you in the face repeatedly. It doesn't happen often; the last I remember was about 10 years ago, when a newly appointed CEO of a public company decided to ensure that no trace remained of anything inappropriate he might ever have posted.

Of course, scribbling your own message doesn't edit other people's. While direct quoting is not common on the WELL - after all, the original posting is (usually) still right there, unlike email or Usenet - people refer to and comment on each other's postings all the time. So what's left is a weird echo, as if all copies of the Bible suddenly winked out of existence leaving only the concordances behind.

It is this problem that Zuckerberg is finding difficult. The broad outline so far posted seems right: you can delete the material you've posted, but messages you've sent to others remain in their inboxes. There are still details: what about comments you post to others' status updates or on their Walls? What about tags identifying you that other people have put in their photographs?

Of course, Zuckerberg's real problem is getting people to want to stay. Companies like to achieve this by locking them in, but ironically, just like in real life, reassuring people that they can leave is the better way.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

February 14, 2009

The Gattaca in Gossip Girl

Spotted: net.wars obsessing over Gossip Girl instead of diligently reading up on the state of the data retention directive's UK implementation.

It's the cell phones. The central conceit of the show and the books that inspired it is this: an unseen single-person Greek (voiced by Kristen Bell in a sort of cross between her character on Veronica Mars and Christina Ricci's cynical, manipulative trouble-maker in The Opposite of Sex) chorus of unknown identity publishes - to the Web and by blast to subscribers' cell phones - tips and rumors about "the scandalous lives of Manhattan's elite".

The Upper East Siders she? reports on are, of course, the private high school teens whose centrally planned destiny is to inherit their parents' wealth, power, social circles, and Ivy League educations. These are teens under acute pressure to perform as expected, and in between obsessing about whether they can get into Yale (played on-screen by Columbia), they blow off steam by throwing insanely expensive parties, drinking, sexing, and scheming. All, of course, in expensive designer clothes and bearing the most character and product-placement driven selection of phones ever seen on screen.

Most of the plots are, of course, nonsense. The New Yorker more or less hated it on sight. Also my first reaction: I went, not to the school the books' author, Cecily von Ziegesar, did, but to one in the same class 25 years earlier and then to an Ivy League school. One of my closest high school friends grew up in - and his parents still live at - the building the inhabited in the series by teen queen Blair Waldorf. So I can assess the show's unreality firsthand. So can lots of other New Yorkers who are equally obsessed with the show: the New York Magazine runs a hysterically funny reality index recap of each episode of "the Greatest Show of Our Time", followed by a recap of the many comments.

But we never had the phones! Pink and flip, slider and black, Blackberries, red, gold, and silver phones! Behind the trashy drama portraying the ultra rich as self-important, stressed-out, miserable, self-absorbed, and mean is a fictional exploration of what life is like under constant surveillance by your peers.

Over the year and a half of the show's run - SPOILER ALERT - all sorts of private secrets have been outed on Gossip Girl via importunate camera phone and text message. Serena is spotted buying a pregnancy test (causing panic in at least two households); four characters are revealed at a party full of agog subscribers to be linked by a half-sibling they didn't know they had until the blast went out; and of course everyone is photographed kissing (or worse) the wrong person at some point. Exposure via Gossip Girl is also handy for blackmail (Blair), pre-emption (Chuck), lovesick yearning (Dan), and outing his sister's gay boyfriend (Dan).

"If you're sending tips to Gossip Girl, you're in the game with the rest of us," Jenny tells Dan, who had assumed his own moral superiority.

A lot of privacy advocates express concern that today's "digital natives" don't care about privacy, or at least, don't understand the potential consequences to their future job and education prospects of the decisions they make when they post the intimate details of their lives online. In fact, when this generation grows up they'll all be in the same boat, exposure wise.. Both in reality and in this fiction, the case is as it's usually been, that teens don't fear each other; they collude as allies to exclude their parents. That trope, too, is perfectly played on the show when Blair (again!) gets rid of a sociopathic interloper by going over the garden wall and calling her parents. This is not the world of David Brin's The Transparent Society, after all; the teens surveille each other but catch adults only by accident, though they take full advantage when they do.

"Gossip Girl...is how we communicate," Blair says, trying to make one of her many vendettas seem normal.

Privacy advocates also often stress that surveillance chills spontaneous behaviour. Not here, or at least not yet. Instead, the characters manipulate and expose, then anguish when it happens to them. A few become inured.

Says Serena, trying to comfort Rachel Carr, the first teacher to be so exposed: "I've been on Gossip Girl plenty of times and for the worst things...eventually everyone forgets. The best thing to do with these things is nothing at all,"

Phones and Gossip Girl are not the only mechanisms by which the show's characters spy on and out each other. They use all the more traditional media, too - in-person interaction, mistaken identity (a masked ball!), rifling through each other's belongings, stolen phones, eavesdropping, accident, and, of course, the gossip pages of the New York press.

"It's anonymous, so no one really knows," Serena says, when asked who is behind the site. But she and all the others do know: the tips come from each other and from the nameless other students they ignore in the background. Gossip Girl merely forwards them, with commentary in her own style:

You know you love me.


Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

February 6, 2009

Forty-five years

This week the EU's legal affairs committee, JURI, may vote - again - on term extension in sound recordings. As of today, copyright is still listed on the agenda.

Opposing term extension was a lot simpler at the national level in the UK; the path from proposal to legislation is well-known, well trodden, and well-watched by the national media. At the EU level, JURI is only one of four committees involved in proposing and amending term extension on behalf of the European Parliament - and then even after the Parliament votes it's the Commission who makes the final decision. The whole thing drags on for something close to forever, which pretty much guarantees that only the most obsessed stay in touch through the whole process. If you had designed a system to ensure apathy except among lobbyists who like good food, you'd have done exactly this.

There are many reasons to oppose term extension, most of which we've covered before. Unfortunately, these seem invisible to some politicians. As William Patry blogs, the harm done by term extension is diffuse and hard to quantify while easily calculable benefits accrue to a small but wealthy and vocal set of players.

What's noticeable is how many independent economic reviews agree with what NGOs like the Electronic Frontier Foundation and the Open Rights Group have said all along.

According to a joint report from several European intellectual property law centers (PDF), the Commission itself estimates that 45 extra years of copyright protection will hand the European music industry between €44 million and €843 million - uncertain by a factor of 20! The same report also notes that term extension will not net performers additional broadcast revenue; rather, the same pot will be spread among a larger pool of musicians, benefiting older musicians at the expense of young incomers. The report also notes that performers don't lose control over their music when the term of copyright ends; they lose it when they sign recording contracts (so true).

Other reports are even less favorable. In 2005, for example, the Dutch Institute for Information Law concluded that copyright in sound recordings has more in common with design rights and patents than with other areas of copyright, and it would be more consistent to reduce the term rather than extend it. More recently, an open letter from Bournemouth University's Centre for Intellectual Property Policy Management questioned exactly where those estimated revenues were going to come from, and pointed out the absurdity of the claim that extension would help performers.

And therein is the nub. Estimates are that the average session musician will benefit from term extension in the amount of €4 to €58 (there's that guess-the-number-within-a-factor-of-20 trick again). JURI's draft opinion puts the number of affected musicians at 7,000 per large EU member state, less in the rest. Call it 7,000 in all 27 and give each musician €20; that's €3.78 million, hardly enough for a banker's bonus. We could easily hand that out in cash, if handouts to aging performers are the purpose of the exercise.

Benefiting performers is a lobbyists' red herring that cynically plays on our affection for our favorite music and musicians; what term extension will do, as the Bournemouth letter points out, is benefit recording companies. Of that wackily wide range of estimated revenues in the last paragraph, 90 percent, or between €39 million and €758 million will go to record producers, even according to the EU's own impact assessment (PDF), based on a study carried out by PriceWaterhouseCooper.

If you want to help musicians, the first and most important thing you should do is improve the industry's standard contracts and employment practices. We protect workers in other industries from exploitation; why should we make an exception for musicians? No one is saying - not even Courtney Love - that musicians deserve charity. But we could reform UK bankruptcy law so that companies acquiring defunct labels are required to shoulder ongoing royalty payment obligations as well as the exploitable assets of the back catalogue. We could put limits on what kind of clauses a recording company is allowed to impose on first-time recording artists. We could set minimums for what is owed to session musicians. And we could require the return of rights to the performers in the event of a recording's going out of print. Any or all of those things would make far more difference to the average musician's lifetime income than an extra 45 years of copyright.

Current proposals seem to focus on this last idea as a "use it or lose it" clause that somehow makes the rest of term extension all right. Don Foster, the conservative MP who is shadow minister for the Department of Culture, Media, and Sport, for example, has argued for it repeatedly. But by itself it's not enough of a concession to balance the effect of term extension and the freezing of the public domain.

If you want to try to stop term extension, this is a key moment. Lobby your MEP and the members of the relevant committees. Remind them of the evidence. And remind them that it's not just the record companies and the world's musicians who have an interest in copyright; it's the rest of us, too.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).