The attached paper is a re-publication of the honors thesis I wrote in 1996 as a senior at the University of California at Berkeley. As the title indicates, it was designed to study Internet adoption among my fellow students.
The following was recently published on Techdirt, although with a different title.
Regardless of what one thinks about the apparent result of the 2016 election, it will inevitably present a number of challenges for America and the world. As Mike wrote about last week, they will inevitably touch on many of the tech policy issues often discussed here. The following is a closer look at some of the implications (and opportunities) with respect to several of them, given the unique hallmarks of Trump and his proposed administration.
I was asked by someone to comment on an opinion article lambasting the recent FCC action to regulate Internet broadband under Title II. Some of the rhetoric surrounding Net Neutrality is so polarized, he observed, that he couldn’t tell fact from hyperbole and was hoping I could demystify what is going on. As I started writing down my thoughts, they began to take the shape of a blog post, which follows here.
The infrastructure allowing people to connect to the Internet is, by and large, in the hands of a few private commercial entities who have figured out that it might be profitable for them to prioritize certain network traffic over other traffic if those originating this content pay them for this prioritization. The worry here is that content prioritization inherently also amounts to content discrimination. If this practice is allowed to continue, such that the only content Internet users can effectively access is that which is produced by moneyed players able to pay for its prioritization, all the grassroots voices or start-up businesses that also depend on the Internet to have their content disseminated, but cannot afford to pay for the broadband carriers for it, will effectively be drowned out.
Of course, not everyone believes that this sort of scenario is something to get worked up over, and this view shows up in the net neutrality debates. But increasingly the attitude of “Net Neutrality? Who cares?” seems to be largely marginalized. Public opinion (especially ever since the John Oliver soliloquy) seems to be of the view that for the Internet to remain the valuable resource it is, entities providing access to it should allow for the transmission all content equally. President Obama has also come out publicly in support of this view, and at least the three FCC commissioners who ended up voting for the Title II classification appear to share it as well.
Essentially the debate has now moved from “should we have Net Neutrality?” to “how do we achieve Net Neutrality?” The problem now is, though, that while we may want a free and open Internet, it’s not entirely clear how we get it.
I was saddened to hear the news about Doug Engelbart’s passing. Although most famous for having invented the mouse (I once had the privilege of holding the original – in some ways it was even better than its successors, as its two beveled wheels allowed the mouse to easily be drawn in a straight line), his contributions to the digital world we now take for granted run much deeper than that specific innovation.
I had the privilege of meeting Mr. Engelbart on a few occasions, and in the wake of this news I’m prompted to repost something I wrote a few years ago following one of those encounters, something that contemplated how law and innovation so often seemed to collide in a way deleterious for the latter. As we take this moment to recognize the rich legacy Mr. Engelbart leaves the world it should remind us to never allow law to deprive the world of other such gifts in future.
In early December I attended the “Program for the Future,” celebrating the 40th anniversary of a seminal event in technological history: Doug Engelbart’s “mother of all demos.” While today the technologies he showed off in his 1968 presentation must seem ordinary and quaint, back then they were revolutionary and laid the foundation for what we now take for granted.
While perhaps most widely known for being the world debut of the mouse, which he invented, Engelbart’s presentation is most notable for how it advanced collective intelligence. What made the presentation so important weren’t the technologies themselves but the human problems they stood to solve.
So in celebration of Engelbart’s important contribution to the world, a group of futurists and technologists gathered together at The Tech museum in San Jose to contemplate the future innovations yet to come. Personally, for me, the event was a bit nostalgic. Before law school, as a technologist in Silicon Valley, I often attended such events. Sometimes they got a bit silly, as there’d be so much “blue skying” and thinking about what could be done that nothing would actually get done. But these kinds of events were still important and because they fostered an environment where the bolts of inspiration could be seized upon and fanned into exciting innovations.
I still gravitate towards technology-related events, only today they are invariably legally-related. At these events technology is always considered in the context of regulatory frameworks, and the people doing the thinking are always lawyers and policy makers. Notably, however, at this event I was only one out of maybe a handful attendees who was a lawyer. And therein lies the disconnect.
This article on TechDirt summarizes a recent brouhaha that recently broke out in a corner of the Internet I tend to haunt with other lawyers and cyberlaw professionals and has started to percolate into the mainstream. The upshot is that someone is upset that other people have reposted her tweets without her permission and control, and she is convinced this is legally wrongful. So convinced is she, in fact, that she keeps threatening to sue a number of them who have used these tweets to comment on her erroneous legal theory, which only stokes further interest in criticizing her as even more observers come to note that the law is not, in fact, on her side. (TechDirt’s analysis does a decent job explaining why.)
It is easy to be tempted to join in the mocking of this person’s very public tantrums, and to be sure, threatening litigation is not to be taken lightly. Doing so, particularly when cloaked in legal ignorance, is ripe for justifiable criticism.
But while the exhibition of personal arrogance begs the schadenfreude of public censure, the underlying problem it can reveal is not. The reality is that for me and my cyberlaw peers, we are so inured to how this area of law “works” (to the extent that it does) we tend to forget how foreign it is to most laypeople (and even many other lawyers), for whom its mystical mechanations can be really terrifying. This sort of knowledge gap isn’t good for anyone. That’s how we end up with bad law.
The answer naturally cannot be to modify the law to fit its common misperceptions. Sometimes the law is what it is for very good reasons, or at least reasons that cannot simply be discounted, even if those reasons aren’t intuitively obvious to a layperson. We can’t use common misapprehensions as the pillars upon which law should be based. In fact, when we have done so in recent years, often in response to technology (another complex system that can be scary to those who don’t understand it), the end result has been law that so overreacts that it creates more problems while failing to properly solve any.
At the same time, however, rather than mocking those who don’t understand the law, those who do understand it should be endeavoring to explain it. Let’s get everyone on the same page to understand how law works and why, so we can all work together to fix it when it doesn’t. After all, in a democracy law should belong to everyone, not just the rarified few specially trained to understand it.
Of course, the above sympathetic sentiment is directed at those who would be willing to learn. It’s not a moral failing to not know everything about the law, but it is to not care whether one does or not before proceeding with bumptious legal threats or dangerously inapt policy advocacy. Those who would seek to use the law as a weapon without bothering to learn how it operates are justly entitled to whatever chastisement they get.
Last week came news of a park ranger using a taser on a person walking their dogs without leashes. The point of this post is not to discuss the relative merits of leash laws. But there are two aspects to this incident worth considering here.
The first relates to the need for a person to identify themselves when approached by police. (According to reports, upon finding the man walking his dogs off-leash she asked him his name and he gave a false one, an act that apparently had the effect of escalating the incident.) In some respects this aspect is slightly beyond the scope of this blog because it doesn’t directly involve a use of technology. But like the stories of the TSA, it does relate to the insistence of police authorities to be able to know everything about everyone, no matter what, and runs headlong into constitutional protections that would otherwise shield people from that scrutiny.
The other relates to the use of technology by the state. This project generally takes the position that technology itself is neither good or bad; it’s how it’s used that is either. And here we have a use of technology that seems extremely problematic.
The Vancouver Sun is reporting that the Canadian government is setting up a $700,000 annual-operating budget “spam reporting centre” for people to report their unsolicited communications.
Dubbed “The Freezer,” the new centre will accept unsolicited electronic messages forwarded by individuals, businesses and organizations in Canada, including spam, malware (malicious software), spyware, short message services (SMS), and false and misleading representations involving the use of any means of telecommunications, according to Industry Canada.
The Freezer is to field reports and complaints of spam and related electronic threats and collect information that’s either voluntarily provided or publicly available. The information could then be used as evidence of potential violations and assist enforcement agencies in levying fines or other penalties.
The legal opinion, issued by the department’s office of legal counsel in September but made public on Friday, came in response to requests by New York and Illinois to clarify whether the Wire Act of 1961, which prohibits wagering over telecommunications systems that cross state or national borders, prevented those states from using the Internet to sell lottery tickets to adults within their own borders.
Although the opinion dealt specifically with lottery tickets, it opened the door for states to allow Internet poker and other forms of online betting that do not involve sports. Many states are interested in online gambling as a way to raise tax revenue.
The recent NTSB recommendation to ban the use of all cell phones (specifically, portable electronic devices (“PEDs”)) while driving has not been well-received in many quarters. Even people generally comfortable with government regulation have bristled at this recommendation, and there may be good reasons why. It’s not to say that distracted driving is acceptable: it can be, as even critics of the ban acknowledge, extremely dangerous, and thus to the extent that distracted driving constitutes reckless driving, it’s justly criminalized, as it generally already has been.
But this recommendation proposes criminalizing the use of technology more broadly, and in doing so, raises significant policy concerns.
The New York Times reports that California has established a division to investigate and prosecute cybercrimes such as identity theft, Internet scams, computer theft, online child pornography and intellectual property theft. The unit already has been handling several dozen cases and joins Texas, Florida and Louisiana in having such units, although California’s scope and mandate will be much broader. (Texas’s and Florida’s cybercrime units focus almost exclusively on online child pornography.)
Per the article, this move was prompted by the difficulty in prosecuting these types of multi-jurisdictional crimes at the local level.
Take the case of George Bronk, a Sacramento-area man, who was sentenced to four years in prison in July for hacking into the e-mail and Facebook accounts of women and blackmailing them with indecent pictures and videos. His victims spanned at least 17 states. Initial attempts to report the blackmail to local law enforcement often proved futile because it could not be tied to any one jurisdiction.
“The unique aspect of technology is that it knows no jurisdictional boundary,” [State Attorney General Kamala] Harris said in an interview Tuesday. “We want to ensure Internet crimes don’t drop off simply because it wasn’t clear for local law enforcement, or the consumer, where to go because an incident occurred in the cloud.”
There appear to be some considerable upsides to this new arrangement: resources can now be allocated more efficiently to deal with crimes that impact more than one area, and the knowledgebase necessary to properly investigate and prosecute them can also be developed in a central location. Also, at least in theory, it may lessen abuse: I know of at least one example, although one from another state, where police in one county deliberately lured defendants into their jurisdictions through online “stings” (I use the word “sting” lightly, as from all accounts “entrapment” would have been more accurate) in order to be able to prosecute them. Having these enforcement powers centralized and more visible would help alleviate similar risk in California.
On the other hand, as the cited example shows, cybercrimes are often Internet crimes, and the Internet is not contained within the state of California. It may be an open question as to the extent California has a duty or right to enforce some of these matters.