Mistaken Goal: Where Higher Education & Technology Meet

I’m sure that everyone interested in this topic already knows that last week the House of Representatives passed H.R. 4137 the College Opportunity and Affordability Act.  This is the legislation that includes a section not only requiring colleges and universities to report to students their online copyright policies but also “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.”  The Senate version of the legislation does not include that language so this will have to be worked out between the House and the Senate before the final bill can be sent to the president.

In related news, it appears that Rep. Berman (D-CA) is stepping down from his position as chair of the House Subcommittee on Courts, the Internet, and Intellectual Property.  He has been a very strong supporter of the music and movie industries.  We can only hope that Berman’s departure will start to bring this subcommittee closer to a balance between protection of copyright and the rights of citizens.

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The second item on the agenda of this year’s State of the New conference of specific interest to me and appropriate for this blog was a panel discussion of social networking sites (SNS) and privacy. The panel was formally titled “Social Networking Privacy: An Oxymoron?” and it was moderated by Tim Lordan of the Internet Education Foundation. Federal Trade Commission (FTC) Commissioner Jon Leibowitz introduced the discussion. Unfortunately, this appears to be one of the sessions that was not recorded or at least the recording is not yet on the Net Caucus’ Web page.

The panelists in this discussion included:

• danah boyd, University of California: boyd is the leading expert on how and why young people in America use SNSes
• Eric Goldman, Santa Clara University: Goldman is Assistant Professor and Academic Director of the High Tech Law Institute at the Santa Clara University School of Law; he has written his own recap of the State of the Net conference
• Chris Kelly, Facebook: Kelly is Facebook’s Chief Privacy Officer; he seemed to spend most of this time during this discussion correcting misperceptions or misunderstandings of how Facebook operates rather than engaging in substantive discussion of the broader issues
• Daniel Solove, George Washington University: Solove is an Associate Professor of law at the George Washington University Law School and the author of several important and relevant books including “The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.”

In his introduction, FTC Commissioner Leibowitz discussed some of the thoughts the FTC has in relation to SNSes:

• Two documents regarding SNSes and privacy the FTC has produced, one aimed at parents and the other at “tweens and teens,” have been viewed over 2 million times.
• The FTC has recently asked for individuals involved in nefarious activities on MySpace be held in contempt of court.
• If Facebook had not reacted as quickly as did when uses rebelled against the initial rollout of Beacon, a feature that allows business to connect with their visitors’ Facebook profile, Leibowitz would have instructed his staff to look into potential Facebook violations of federal law (I think he said “COPA” but I’m not sure I wrote that down right; hasn’t COPA been struck down as unconstitutional?).
• When it comes to collecting or sharing user data, it’s always better to have a “true opt-in.” For all of its faults, Beacon was at least transparent.
• It is not inconceivable that very popular SNSes may one day be forced to abide by the First Amendment as other owners of privacy property have been forced. In fact, this was not the only time this very issue was raised during the conference; it came up again in a later panel discussion involving press rights in Second Life.

After Leibowitz’s introduction, the panel got off to a lively start. Lordan opened the discussion by asking the panelists if SNSes are so different from other operations that collect data such as e-commerce merchants and search engines as to merit special consideration. Goldman and Kelly seemed to reply in the negative with the view that SNSes are an evolution of communication media. boyd expressed disagreement and asserted that SNSes differ from other operations in that SNSes collect not only data about you but also data about your social network. So by giving away “your” data you are also giving away, by some measure, “your friends’” data at the same time since.

boyd continued by giving examples that related to the concept of “outting.” This is a term traditionally used in to refer to the process of homosexual persons revealing their homosexuality; it’s a very personal and often private experience often fraught with emotion and personal risk. It can be used in other situations, however, to refer to having information about oneself revealed by another without your permission. The specific example used by boyd was that although she is careful not post photos of herself drinking online there is nothing stopping her friends from posting such photos and then labeling (“tagging”) boyd in the photos this outting boyd as one who drinks alcohol.  So we can not think of data residing on and in SNSes as data merely about one person but we must think “in terms of network models.”  Remember, two of the defining features of SNSes are that they (a) contain a list of other users with whom other users share a connection and (b) allow one to view and traverse the list of connections from one user to another.

The next set of exchanges focused on privacy policies and the “illusion of privacy” they provide. There seemed to be general agreement that the current paradigm of posting privacy policies laden with legal jargon incomprehensible to the general public is ineffective. Goldman opined that asking consumers simple questions to determine their preferences might be a good way to go about things. Interestingly, there was no discussion of machine-readable privacy policies (P3P); has this idea died off completely, perhaps becoming outdated before it ever rolled off the assembly line?

The discussion then shifted to advertising as Kelly and boyd sparred about how well or poorly Facebook users understand privacy controls on Facebook. Kelly asserted that the controls work. Coming at it from a different angle, boyd insisted that the controls don’t matter because youths believe that Facebook is a closed network (as contrasted with MySpace). She pointed the finger at mass media for establishing the idea that Facebook is closed but MySpace is open. The same scene – Kelly describing how a feature in Facebook works and boyd insisting that users don’t understand it – occurred later when discussing (again) Beacon. Goldman and boyd both seemed to strongly agree, as would I, that much of the consternation caused by the use of SNS data stems from the commercial nature of those intended uses.

Solove wisely reminded us that these privacy challenges are much broader than Facebook. He asserted, and presumably also asserts in his book (which is on my bookshelf and near the top of my “To Read” list), that our definitions of privacy are not static but are changing. He also asserted that because people don’t care about sharing information that does not mean that they don’t care about how that information is used. He illustrated this with an example in which he would someone might be okay in publicly stating their preference for a brand of bottled water but not okay with that statement being used to promote that brand (drink Aquafina water -it’s approved by Daniel Solove!). Solove then presented some of the changes he thinks may have to occur in the legal landscape to deal with privacy and reputation as our definitions and abilities have changed but I’ll let you buy and read his book to get those ideas.

I feel as if the entire conversation was strained on the part of Facebook’s official representative and I can’t blame him given the audience (there was nothing else scheduled concurrently with this discussion so nearly everyone was there). He seemed to spend most of his time defending his company which didn’t seem to advance the discussion in useful ways. Of course, that there were apparently many misconceptions about Facebook that he had to correct is itself telling.

The comments by Leibowitz (FTC would have investigated Facebook regarding Beacon, fictional Facebook and MySpace merger would be a vcry bad idea, companies must be held to task for what they say they are going to do or not do, etc.) were most interesting.

The focus of the conversation seemed to be on the fact that SNSes have large amounts of data and will continue to gather them. Users don’t know what’s being done with the data and the current mechanisms for telling consumers are inadequate. I was most disappointed in the lack of empirical data cited during the discussion, particularly in light of the relatively-recent Pew Internet & American Life Project data regarding users’ expectations of privacy.

Finally, I am again struck by the challenges posed by SNSes and other tools that force people to “flatten” their presentation and identity. We regularly and without thinking adapt our public presentation to the audiences we perceive and expect, moving from one presentation of self to others seamlessly. Environments that draw together disparate audiences (high school classmates, college classmates, professors, coworkers, family, etc.) and force people to adapt one presentation are very different from the environments in which we live our day-to-day lives. Those different presentations we exhibit are natural and important and it’s very confusing in many ways to be forced to put on the same presentation to every audience. That confusion and this flattening of our public identity is one of the key issues at the center of this discussion of privacy and SNSes.

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The first item on the agenda of this year’s State of the New conference of specific interest to me and appropriate for this blog was a panel discussion of Internet content filtering. The panel was formally titled “Internet Copyright Filters: Finding the Balance” and it was moderated by David Sohn of the Center for Democracy & Technology. An audio recording of the panel can be found on the Net Caucus’ Web page.

The panelists were:

• Mia Garlick, YouTube: Garlick didn’t seem to play a very prominent role in this discussion. She seemed to be a bit overshadowed by some of the other personalities on stage.
• Greg Jackson, University of Chicago: Jackson is the CIO at the University of Chicago. He also spoke at one of the most recent congressional hearings on P2P.
• Gregory Marchwinski, Red Lambda, Inc.: Red Lambda is a company that has commercialized technology originally developed at the University of Florida to address online copyright infringement on its residential computer network. Marchwinski testified before Congress about a year ago in a hearing focusing on online copyright infringement on college and and university campuses.
• Cary Sherman, Recording Industry Association of America (RIAA): Sherman is the president of the RIAA and he frequently appears on panels and before Congressional committees representing the recording industry.
• Gigi Sohn, Public Knowledge: Public Knowledge is a non-profit advocacy group that has often taken the lead on copyright-related issues and legislation. Sohn is their president and she was a very lively and commanding presence on the stage.

The discussion was a bit confusing as it wasn’t always clear if the panelists were addressing the topic of mandatory filtering (which almost everyone seemed to agree would be a bad idea, even Sherman) or the more general topic of filtering.

The panel opened with a brief introduction from each of the panelists. Sherman repeated the worn-out line that “piracy is devastating the industry” and advocated for filtering because it (a) is a very targeted approach and (b) can distinguish between infringing and non-infringing uses. Gigi Sohn was next in line and she laid our her organization’s opposition to mandatory Internet content filtering based on three points: (a) it would block legal speech, (b) it would not stop determined pirates (yes, she called them pirates; I was so disappointed that she ceded that ground right away and confused the issue from the very start), and (c) it would cause network degradation. Garlick then introduced herself as working for YouTube and then gave an overview of YouTube; I was a bit insulted by her overview but I guess there may have actually been people in the room who didn’t know about YouTube. The interesting bit from Marchowski’s introduction was an acknowledgment that encryption is a big challenge for filtering. Jackson introduced himself by admitting that he agreed with much of Sherman’s position, particularly the idea that copyright infringement must be addressed with a multi-faceted approach.

Jackson went further, however, in raising two very interesting points directly relevant to higher education. First, he wondered aloud if, given the size and complexity of the network at the University of Chicago, it would be cheaper to acquire a blanket license for music and movies than to attempt to effectively filter that content. He returned to this point later in the discussion by comparing network filtering with other kinds of filtering such as spam filtering. The primary difference between spam filtering and content filtering, he explained, is that spam filtering is done at the checkpoint(s) where e-mail enters and leaves the institution’s network. Network filtering, however, would have to performed on many thousands of network devices to be effective. However, Jackson’s point is valid only if we are seeking to filter content as it moves within the network; if we’re only interested in preventing content from entering or leaving the network, we can filter it at the chokepoints where the network connects to the Internet (or Internet2 or Lambda Rail or whatever) just as we do with packetshaping and other devices. Second, Jackson said that the majority of infringing content is not exchanged via P2P networks. I don’t know what research he was quoting but I need more detail to place his assertion in context. It sounds a bit fishy but if his statistic is limited strictly to P2P then we would need to know about network-based or -enabled infringement as to limit the discussion to P2P misses the point.

Many of the panelists agreed that encryption is a looming problem. Marchwinski compared the current arms race to a balloon: if you push on the balloon in one place, it simply expands in other places. Sherman acknowledged the problem and raised DRM and applications on end-user’s computers as a potential solution. However, he agreed that education is still the key (which makes one wonder: Why the hell isn’t the RIAA engaging in honest and effective education?). Gigi Sohn was quick to followup that education must not solely focus on what one can not do but must also include what one can do with copyrighted material. Sherman pleaded that we “not let fair use…be the excuse that stops the development of technology.” Jackson mentioned the University of Michigan’s “Be Aware You’re Uploading” program as an effective and interesting education effort.

Jackson raised several other interesting points during the discussion. One interesting datum is that he estimates that the University of Chicago spends between $100,000 to $200,000 responding to DMCA takedown notices (his own time, his staff’s time, and judicial affairs). He also reminded everyone that most organizations already practice some form of content filtering with our spam filters, anti-virus filters, and security-specific filters. The challenge is in how we decide what to filter.

One of the final points of discussion centered on potential First Amendment issues raised by an audience member. Gigi Sohn expressed that there may be implications even for non-governmental organizations given that copyright itself is enforced by the government. The larger point, she explained, is that “This is how people are communicating today. This is expression and it must be protected.”

There are issues that were not discussed during this panel that form important parts of the larger picture. Other panels discussed the concerns held by legislators and parents about content available to minors. The Morning Keynote by Rep. Mary Bono Mack (R-CA) focused heavily on intellectual property (but completely neglected fair use). Several speakers throughout the day were FCC commissioners and the prospect of government-mandated actions or restrictions seemed to loom over many discussions. However, it seemed to me that nearly everyone was in agreement that regulation for the Internet would be a bad idea (network neutrality crept up in a few discussions but seemed strangely absent the entire day as a substantive issue).

It seems to me that the principle problems with Internet content filtering are:

• It will never be completely effective. This is not a show-stopper as “must be 100% effective” is an unreasonable expectation or standard of review.
• It will never be able to distinguish infringing uses from non-infringing uses. Fair use is hard. It’s been argued that it’s intentionally complex in many ways to ensure that there are human beings, presumably learned and educated human beings (i.e. lawyers and judges) involved to ensure both the copyright holder and the alleged infringer are protected. Unless we dramatically change the laws to simplify fair use (which would probably be a bad thing, on the whole) we’ll never be able to programatically address fair use.
• Imposing filters and then requiring users to request exceptions, an approach advocated by many, seems to fundamentally and negatively affect innovation and creativity. Currently, we’re free to make use of copyrighted works without asking permission. We might be infringing on the copyright or we may be making fair use of it but the point is that we don’t have to ask permission; we can only be stopped afterwards and prevented from doing the same thing again. Requiring users to ask permission beforehand, even if permission were always given, would impose a barrier that is undesirable and harmful. Innovation and creativity must not be tied up by red tape and bureaucracy.

I haven’t covered all of the panel discussion and I feel that I haven’t covered it particularly well. I encourage you to listen to the audio of the discussion if you’re interested in this topic. I wouldn’t be at all surprised if special interests attempted to force colleges and universities to purchase, install, and use Internet content filtering. I would hope that such efforts would be defeated but if the trendline holds true then we’re due for some more ill-advised attempts to address the issue of online copyright infringement on campuses.  But, as Jackson mentioned throughout the panel, we already already filtering content on our campus networks; we need to figure out how best to decide what to filter.

By the way, I’ve been told that the House version of the Higher Education Act (HR 4137 the College Access and Affordability Act) might go to vote this week. Contact your representative and register your opinion.

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I just got back from Washington, DC where I attended the State of the Net conference sponsored by the Congressional Internet Caucus Advisory Committee. It was a great conference.  I attended panel discussions with representatives from most of the major presidential campaigns, a panel discussion with Cary Sherman of the RIAA and others discussing Internet content filtering, and a panel discussion on social networking privacy with danah boyd and others.  At the table at which I ate lunch were persons from the Library of Congress, including the manager of their very-cool Flickr experiment.  I think Vint Cerf was sitting one row behind me during the last panel discussion of the day.

I’ve got many pages of handwritten notes on several of the sessions that interested me most.  I will be working to post my notes and thoughts over the next day or two as I dig out of my e-mail and catch up with other things. Please let me know if you have any specific questions or issues I should address.

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