Discourse.net

Sanity Check

Would it be insane to fly to DC on Friday for a conference? A really really good conference?

Update: It looks like it is canceled.

Line of the Day

Best line of the conference yesterday: “99% of lawyers give the rest a bad name.”

Twittering the Flatirons

Lots of folks are twittering the The Digital Broadband Migration: Examining the Internet's Ecosystem at #flatirons.

Also, there's a feed at http://www.nextgenweb.org/.

Off to Boulder - Missing a Great Conference at Home

Today the University of Miami Law Review is hosting an absolutely first-rate conference on administrative law under Obama called The Future of the Administrative State.

And I can only attend the first third of the event, because long ago, before they picked the date for the UM event, I agreed to go to another, very different and also first-rate event, The Digital Broadband Migration: Examining the Internet's Ecosystem at the University of Colorado at Boulder. I hate to miss so much of UM's event, but I have to leave for the airport soon.

I have a special fondness for Boulder, as I spent a very happy summer there soon after I got married. (I followed the judge I was clerking for, who had a house there.) It's a beautiful place, in a way very different from home. No palm trees, but mountains. And snow. It was spectacular in the summer; I've never been there in winter.

Grading is Over

I turned in my grades. As always, the outcomes correlate rather randomly with class participation (even though I give some credit for it), or anything else I can think of. I haven't yet run the numbers to see if there's a correlation with what row people sat in, or how they did on an ungraded “following directions exam” I gave as an experiment.

I think I'm an easy grader. Even so, the grades came out very very bunched — so I curved them to create some more at the top. The bottom, by and large, kindly selected itself.

Now the essential next steps: 1) prepare the memo to the class about the questions and answers, including model student answers; 2) get out of Dodge.

I'm going to a conference in Boulder. The Digital Broadband Migration: Examining the Internet's Ecosystem. I gather that it's not 77 degrees there like it is here…

Talk on 'Privacy Aspects of Data Mining' Today

I'm speaking this afternoon at the 2009 International Workshop on Privacy Aspects of Data Mining (PADM09). At 3:30 I'll be one of the panelists, speaking on “Privacy in Databases: From Theory to Practice”; my presentation will concentrate on legal rights to be anonymous.

Conveniently, the whole show is coming to town and will be held at the Miami Beach Resort, 4833 Collins Avenue, which sounds like it should be nice.

I'm Back

Had a very good time at the OII, had an especially fun seminar with some of the students.

Now I'm back, wading through huge stacks of things that piled up while I was away. No bloggy substance till I make a dent in the piles.

OII

I gave my Oxford-sponsored talk in London today; people said nice things after, so I guess it was OK. I had forgotten how much more US audiences indicate by noise and body language whether they like talks. A British audience is far more polite, but also far more reserved; words like “stoic” and “immobile” come to mind. There were interesting questions from the audience; I wish there had been time for more.

I'm going to be at the Oxford Internet Institute on Wednesday, then Thursday I head back home.

CDG Strikes Again

Let me just say that I am never checking a bag through CDG again.

I had a 1 hour 40 minute connection, which became a little over one hour connection when the plane was late.

I made it. The bag did not. The very very nice and cheerful man at LHR said he was sure it would be on one of the many later flights and I'd have it today. Things used to be slow when they were busy, but they don't have so many travelers this year, so things are quick. (Moral of the story: lose bags in recessions?) Then he gave me a toothbrush and some basic toiletries.

Odds are increasing, though, that he was an optimist. I just spoke to the very perky phone person at BA baggage services. The good news is that the bag has been located. The bad news is that — two more missed flights later — the bag is still in Paris. If it makes the 5pm flight, I just might get it today if UK Customs are fast. Ha. Otherwise, I get it tomorrow. (I hope I get it before I check out.)

Off to London

Because I'll Be Speaking in London on Nov. 17, I need to be in London.

So I'm currently at MIA (memo to self: never, ever take the terminal D security line no mater how short it looks in order to get to terminal E — longest detour in airport history), “enjoying” free wifi from Google via Boingo. It is very very slow, dialup slow. And unsecured, which makes me unwilling to check my email.

I have to change planes in Paris, because direct flights cost more than I was willing to make my kind hosts, the Oxford Internet Institute, pay. As it is the ticket seems rather expensive by recent transatlantic standards, but it was the best I could do.

I had some hopes I might go to the theater in London on Monday night, but the show I really wanted to see — the Alan Bennett play at the National — has been sold out for more than a month, and I won't land in time to queue for non-student day tickets. The other choices are either plays I've seen a good production of, American, or musicals, which I usually avoid. Back when we lived in London we were real theater hounds, and I miss it. But maybe Monday night I'll be fine tuning my presentation instead.

Tuesday I've lined up a busy day of seeing people and then I sing for my supper.

I'll Be Speaking in London on Nov. 17

The Oxford Internet Institute has invited me to give a talk in London in November. I'm calling it, Those Golden Eggs Come From Somewhere: Internet Regulation at a Crossroads.

Location: Hunton & Williams, 30 St. Mary Axe, London, EC3A 8EP. Time: 18:30 – 20:00. A reception will follow. If you would like to attend please email your name and affiliation, if any, to: events@oii.ox.ac.uk.

Here's the abstract:

From its inception, many have recognized the Internet’s potential as a liberating, decentralizing, and, yes, destabilizing technology but also its counter-potential as a controlling and centralizing technology.

Over the last two decades, predictions about the social effects of the Internet have ranged from cybernetic anarchy (both utopian and distopian) to the instantiation of a fascistic regime of surveillance that would make Orwell look like a piker. Some see a winner-take-all economy of massive new monopolies emerging on the back of network effects, others see the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges – and evading their taxes. Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies.

One would think that such contrasting predictions could not possibly all be correct. Yet, for the last decade, to a surprising extent both sets of trends have manifested themselves simultaneously. The question is whether those two trends can continue, or if instead we are witnessing the start of a collision between them.

At present, ‘the Internet’ is neither ‘fraud’s playground’ nor democracy’s. (Indeed, there is more than one ‘Internet’.) Rather, different groups of people doing different things with different objectives have moved down independent paths. Now, however, these trends find themselves meeting at a crossroads: Largely well-intentioned political and legal reactions to the highest-profile risks of communications technology create a danger of at least wounding and perhaps in some areas even killing the goose that is giving us golden eggs of innovation, decentralization, and personal empowerment.

Advances in medical records technology might give patients greater control over their treatment, but are could also further disempower them, and (in the US at least) seem even more likely to become another target for data mining and marketing. E-government holds out the promise of more involved and better informed citizens. The same technologies may, however, also empower nosey neighbors, or the nanny state’s evil sibling Big Sister, who knows what is best for you and has honed predictive profiling to the point where many find their liberty practically encumbered without being formally curtailed.

Most immediately, technologies, practices, and technical standards that may appear benign in a democracy – may in truth be benign in a democracy – may take on a more sinister cast when adopted in more repressive regimes faced with indigenous pressure for reform. For example, the world witnessed via YouTube as Iranian demonstrators marched to protest the theft of an election. The communicative freedom making the sending of those images possible is a fragile thing, and could fall before the creation of standards and practices intended to foil digital piracy half a world away.

London-area friends and readers are invited to contact me directly too if they're going to be there.

Privacy Event I'm Going To Miss

I'm sorry to miss this Privacy Workshop, but I have jury duty next Monday:

The General Services Administration, Office of Governmentwide Policy is hosting a one-day workshop on August 10, 2009 to discuss the Government's approach to permitting access to Government web-based applications evaluated at Assurance Level 1 (as defined in M-04-04, E-Authentication Guidance for Federal Agencies) using credentials issued by third-parties and based on technologies from the OpenID Foundation, the Info Card Foundation, and InCommon Federation. Briefings will include the Trust Framework Provider Approval Process, the Scheme Adoption Process, Federal profiles, and how privacy considerations are being addressed. Presenters will include the government and industry representatives. The day will end with an open question and answer period in which we solicit your feedback and a discussion of your concerns.

Date: Monday, August 10, 2009

Time: 9:00am to 3:30pm (registration & checkin begins at 8:00am)

Location: American Institute of Architects Board Room 1735 New York Avenue, NW Washington, DC

Please visit our website www.idmanagement.gov for more information, including the day's agenda and read aheads, and to register for the event.

Written questions are welcome at any time before the meeting, please submit to brant.petrick@gsa.gov.

There is no cost to attend but pre-registration is requested due to limited seating and will be honored on a first come, first served basis.

You can delay jury duty in Miami — but I already did that as I was originally required to appear the day before I left for my vacation, and I thought I ought to help with the packing. Now I've reached the end of the string.

If anyone reading this goes, please send notes…

Off to SEALS 2009

I'm off to the South Eastern Associations of Law Schools (SEALS) 2009 conference today, but it's only a short visit as I'm back tomorrow. The conference is held in a swanky hotel in Palm Beach Florida, just up the road, so it's nice not to have to fly for a change.

I'll be speaking on a panel this afternoon entitled “Why to Visit Blog Sites? Which Ones?” (I did NOT pick the title!). I'm going to talk about a big blog-related project I'm planning, and which I'll write about here very soon, when I have more time.

When I was first invited we thought we'd make a family holiday out of it, as Caroline is speaking there later in the week. But then we decided to be away much more than usual this summer, so we shelved that, and we're going in shifts.

Interestingly, my panel is much transformed from its original group: several speakers had to bail because their schools cut their travel budgets.

#PLSC09

I'm going to try to twitter some highlights from the Privacy Law Scholars Conference. #PLSC09

Off to Berkeley for Privacy Law Scholars Conference.

I'm off to Berkeley to attend the Privacy Law Scholars Conference 2009. I'll be in transit much of today, starting too early, but touching down by lunch time — California time. Then BART and a little inter-modal, and if all goes well, I'll be there.

Should be fun — last year's conference at GW was tremendous. (I'm the discussant/moderator for a paper by the incandescent Paul Ohm.)

I'll be back late Sunday as I'm staying on Saturday to see some people I don't get to see often enough. In light of my plans for the rest of the summer that no longer seems as relaxing as I thought it would be when I bought the tickets lo these many months ago.

Heading Home Back to My Great Job

This was a very good conference (#iiw). Now back to reality. Sort of.

In Which I Succumb (Temporarily) to Twitter

There's active twittering going on in the audience at the Internet Identity Workshop (#IIW). In order to read it, I had to break down and create a twitter account, and in for a dime, no for a dollar, so I'm going to do the (very occasional) tweet, jst to see what it's like.

But much as I and my SRI-fingers love the telegraphic, 140 characters may be too short. But meanwhile, look for mfroomkin at Twitter, and #IIW for micro-summaries of the conference.

Off to the Internet Identity Workshop

I'm off this afternoon to California, where I'll be at the 8th Internet Identity Workshop, which will take place at the Computer History Museum in Mountain View.

I've never been to one of these before, but people who do this stuff — that is, make the tools that do and use ID — say it's the place to be, and there's an impressive list of attendees, so I'm giving it a try.

This will also be my first out-of-town unconference, I think, in that I don't count the chaos which was the first ever DNS-related meeting I attended almost exactly 10 years ago, the International Forum on the White Paper, in Reston, Virginia. (I've also been to local barcamps, but they're small.)

I'm back late Wednesday. No idea what blogging will be like in the interim.

ISGIG 2009 - the Internet of the Future

I've gotten myself drafted for the organizing committee for ISGIG 2009, which promises to be an interesting conference on governance issues in information technology, to be held in Prague the 15th-17th of September. I invite readers to respond to (and to forward) the call for papers.

We're also still filling the last few slots on the Program Committee, which will be reviewing the submitted papers. If you know someone who belongs on that committee (that person in the mirror?) please phone or email me.

Call for papers

Second International ICST Symposium on Global Information Governance (ISGIG): Conflict and Collaboration in Compliance, Governance and Risk

ISGIG 2009 - the Internet of the Future: Prague, Czech Republic: 15th, 16th and morning of 17th September 2009

www.isgig.org

The explosion in the use of broadband over the last 5 years has connected people, organizations, commercial firms, and government agencies throughout the world. The large number of devices connected to the networks has changed the Internet to a "network of things and computers". These trends, plus the rise of collaborative technologies, virtual worlds and tele-presence raise issues of privacy, management, compliance, governance, and risk.

The Internet of the Future is the theme of ISGIG 2009. Specifically, its goal is to improve communication among academics, regulators, compliance officers, business managers and IT managers by exposing problems, and uncovering potential problems, in the areas of privacy, compliance, governance, and risk. Each of these issues creates situations for both conflict and cooperation between different constituencies. This conference is an opportunity to advance models of effective management and collaboration.

The conference will rely on a judicious mix of research papers, invited speakers and structured discussions to extend the communities' communication and identify opportunities for mutually beneficial outcomes.

Topics of Interest

We invite researchers, academicians, practitioners, and others to submit original papers describing new research, applications, or case studies. Papers covering technical, legal, societal, or other aspects of these areas are solicited. Topics of interest include, but are not limited to:

• Frameworks and Overarching Issues of Network Governance
• Privacy - a pervading issue
• Attribution and identify management; anonymity and ID
• Physical and policy infrastructure of the Internet, and its role governance:
• Designing, building, and managing changes to the Internet infrastructure;
• National and regional frameworks for IT governance
• Compliance with government regulations for multi-national corporations and networks;
• Emerging issues, including
• Cyber-terrorism and cyber-crime;
• Virtual worlds, and the development of new modes of social and economic interaction that challenge how we translate physical world structures into virtual worlds;
• Green computing;
• Collaborative tools, and their use in politics and e-government.
• Security and anticipating and responding to attacks that cross international boundaries; cyber crime
• Other emerging areas for conflict and cooperation in the evolving Internet

Important Dates

Abstracts due (optional but encouraged):	March 20, 2009
Full Papers due:	April 17, 2009
Author notification with reviewer's comments:	May 22, 2009
Final revised papers due in camera-ready format:	June 12, 2009
Conference:	September 15-17, 2009

How to Submit

Papers should be submitted to www.assyst-online.org by April 17. Papers of any length are encouraged, but a preferred length is 10 pages (not including citations) on letter or A4 with one inch margins and 11 point font.

All submissions will be peer reviewed, and acceptances will be provided by May 22.

Publication

The Proceedings from ISGIG 2009 will be published in LNICST and appear in SpringerLink and ICST's digital library, the EU-DL.

Organizing Committee

Jeffrey Hunker, General Chair, Carnegie Mellon University, USA
Michael Froomkin, Co-chair, University of Miami, USA
Matt Bishop, Co-chair, University of California Davis, USA

Berkeley Security Breach Conference on Friday

(Too) Early Thursday morning I'll start my journey towards Berkeley CA, where Friday I'm going to attend what looks a really useful and interesting seminar on BCLT - Security Breach Notification Laws.

Most folks who work in this area concentrate on private data collectors. I'm writing about government data holders, so I'm on the panel that probably should be called “other” but is in fact called Comparative Approaches to Security Breaches.

As I think about it, one thing I've often tried to do is identify issues that other people are not working on and think about them. This is good in many ways, and it has been good to me, but it does turn out to have some costs — fewer folks to talk to, and they don't always know where to put you in conferences.

Oh well, I guess as long as they're still inviting me I shouldn't worry too much.

Off to New Haven

I'm off to New Haven for a conference in honor of the 10th anniversary of the Yale Information Society Project. I was very involved in the early days — I think I spoke at the first three or four conferences, but have been less involved recently.

The folks at the Yale ISP were kind enough to recently to make me an 'Affiliated Fellow' of the Yale ISP, so I hope to be involved more in the future.

I like to going to Yale events, as they are both substantive and nostalgic for me (Yale '82, Yale Law '87)…but I HATE the journey. Flying into New Haven is expensive and usually involves a long layover in Philly followed by a wind-up plane. Flying into Hartford gets you an easy drive…but the two direct planes a day are too early and too late, and why change planes just to drive afterward?

Flying into New York is quickest and cheapest…but then there's the land portion. CT Limo is so appalling that I vowed never to use it again after last time. And the time before. And the time before that. So this time I'm going to drive.

The trouble with driving is that I get lost. Easily. I was never the most directionally intuitive driver, and I've gotten softer from years of being married to a very reliable navigator. I don't own a GPS, although I'm thinking about it. I've asked for one in the rental car as a sort of, well, test drive, to see how I like it. (The other trouble is that I'm landing at 3pm, and will hit the Friday afternoon rush more than likely, but there's not a lot I can do about that.)

Obama to Visit UM

Barack Obama will be visiting the campus on Friday.

I'm going to miss it, because I will be in New York. On Friday I'll be at Fordham Law for a seminar; on Monday I'll be at Brooklyn Law giving a paper. Over the weekend, TKTS willing, I hope to catch a play. Suggestions for other cultural highlights welcomed.

Pelosi Faces the Netroots

Speaker Pelosi came and faced the angry netroots — after we were given a strong lecture by the moderator that if we weren't nice to her, we'd be escorted out of the hall and have our credentials taken.

Pelosi was a mix of good ol' fashioned Democrat — we'd like some good programs, more investment, help veterans etc. and infuriating good ol' fashioned Democrat — prevarications at best, falsehoods more likely. [Update: I've decided that was a little harsh. I think she believes the stuff about FISA. The mystery is why.]

Pelosi tried to suggest that the House had done all it could to stop the war, which she in effect defined as one bill without war funding. That was pretty unconvincing.

Worse was the line on FISA in which (hiding behind a column by Mort Halperin) the Speaker told us that we had a better chance of getting the truth about illegal wiretapping from the telcos by relying on the Bush administration Inspector Generals in a post-immunity world than we would have from discovery in court.

At the receiving line after the talk, I shouted out that we couldn't rely in the IG's. Pelosi made a face and said, “then we'll have to force the issue.”

But that wasn't the big story of the event.

The big story was the “surprise guest”: Vice President Al Gore. He gave a superb speech. Look for it on YouTube: Al Gore at Netroots Nation 2008, Part 1; Al Gore at Netroots Nation 2008, Part 2.

He was great. She was good enough to come, and I still have my credentials.

Wesley Clark's Warmup Act

Gen. Clark is warming up the crowd for Howard Dean here at Netroots Nation. He's a lot better at this stuff than he used to be.

But he says we're not on the internet because we're here listening to him.

Humph.

PS. You can follow along on Second Life.

The People You Meet

You meet all sorts of interesting people at conferences. Here Obama Girl gets to meet David.

Off to Netroots Nation

Once upon a time, I used to do a lot of local politics. I worked as a young intern in the McGovern campaign (not the world's most organized organization). In high school, I volunteered for the late, great Mo Udall, the best President we never had. In college I was one member of a small committee that set up a state office for the primaries for an underfunded Presidential candidate in Connecticut — without his approval (they eventually sent an actual staffer to take over). Just after I graduated from college, I was the press secretary for the Ira Lechner for Congress (VA-10) campaign (we got clobbered by Frank Wolf in the Reagan landslide). Later, while a first-year law student busy not crossing picket lines at Yale, I ran phone banks for Bruce Morrison for Congress (CT-3); he got re-elected, making it one of my few winning campaigns.

Then I lived abroad for long enough to lose many of my local political ties; when I came back to the US it was to a new and strange place, South Florida, where serious politics seemed to happen in Spanish. And I had other things to worry about: hurricanes, children, tenure, life. So I didn't do much beyond the armchair.

George Bush has (re?)radicalized me. And once again, I'm doing a little activism. This time, I'm helping out one of our wonderful local Congressional candidates, Joe Garcia (FL-25). (Our other great local candidate is Annette Taddeo (FL-18), but we've got that covered too, in a different way: my older son, age 14, has been interning at the Taddeo campaign office, and he's coming too to help Annette and her staff.)

When I called Joe to volunteer, he first asked me to look over his web presence and see if anything needed improving. That wasn't hard, it was pretty good already. Then, when Joe came over to breakfast to get my report, I asked him what else I could do for him.

I figured he'd ask for money, and was even braced to do a fundraiser, although it's really really not my style. But he surprised me: Joe asked me to go with him to Netroots Nations and introduce him around to the other bloggers. I tried to convince him that I don't actually know most of them, except by email, but he seemed to think that would do.

So Thursday, I'm going to Netroots Nation (formerly Yearly Kos), to act as a sort of advance man for Joe Garcia. Perhaps I'll see you there? If so, there's this great candidate you might like to meet…

(Poster from Miami & Beyond.)

If you won't be in Austin for the conference, you can follow along online in Second Life. See NNinSL.org for details. All the main events will be streamed and they also promise inworld parties and special events. And, unlike the meatspace version, this one is free.

CFP Transparent Society Writeup

Wendy M. Grossman has a nice writeup of 'The Transparent Society': Ten Years Later panel at CFP, which appears in The Register, The Transparent Society revisited.

Best CFP, Worst CFP

It started great: after the introductory speeches, we were encouraged to mingle for half an hour — playing to CFP's greatest strength: who attends.

And then my personal conference experience went downhill fast — not because CFP did anything wrong, but because I had to go to my hotel room to participate (via phone) in a key meeting of the UM Law faculty about the Dean Search. So I'm missing my favorite conference.

And four and half hours later it's still going….

Argh!

Just Sayin'

If I were hosting a big computer-related conference in my hotel, I sure wouldn't pick that day to change wireless providers.

While the staff here are being very nice about it, the wireless is useless in my room. But it works great in the bar, so all is not lost.

Off to New Haven for CFP'08

Today's plan:

Don't like those prop planes….

CFP '08 Accepts Our Panel on 'The Transparent Society'

I'm delighted to report that my proposal for a panel on “'The Transparent Society' — Ten Years Later” has been accepted for CFP'08, thanks no doubt to the sterling panelists I was able to assemble. Our panel is now scheduled to take place on Thursday, May 22, 2008 at 3:30-5:00(PM) in the George room at the Omni Hotel in New Haven.

Computers, Freedom and Privacy is the most fun conference I go to; the program can be variable, I admit, but the hallway conversations are always fantastic. Come - it's fun.

Here's the panel description:

This year marks the 10th anniversary of the publication of David Brin's controversial book, “The Transparent Society”. The book argues that in the face of the explosion of sensors, cheap storage, and cheap data processing we should adopt strategies of vision over concealment. A world in which not just transactional information, but essentially all information about us will be collected, stored, and sorted is, Brin says, inevitable. The only issue left to be decided is who will have access to this information; he argues that freedom, and even some privacy, are more likely to flourish if everybody - not just elites - has access to this flood of data.

Brin proposes a stark choice: either the information will be “secret” and “private”—in which case only governments, always potentially repressive, will have access. Or, the information will be “open” and “public” and we will all be transparent to each other. Given this choice, Brin argues, better to be naked to each other than to empower a few with unique access to information about the many. The attempt to protect privacy as we know it carries too great a risk, as it leads if not inevitably than at least all too easily to a world of enormous information-driven tyranny in which the powers — primarily governments — with access to our 'private' information will abuse it. In contrast, a high-transparency world with very little privacy is one in which citizens have tools that allow them to monitor their governments.

Brin proposed a paradox which infuriated a good segment of the privacy community. It is normally an article of faith for privacy advocates that privacy empowers, and the removal of privacy is at least disempowering and at worst oppressive. Brin counters that privacy advocates have it exactly backwards: trying to maintain traditional ideas of information privacy in the face of technological changes he sees as (now) inevitable is what will disempower and perhaps oppress; only a program of radical information openness, nakedness even, stands a chance of leveling a playing field on which information is truly power.

The reception of “The Transparent Society” reflected the audacity of its claims. Some dismissed it; some attacked it; a few embraced it. What is striking, however, is that the ideas have had staying power: the book remains in print, it is regularly footnoted, and it comes up in discussion. Right or wrong, “The Transparent Society” has become more than a polar case trotted out as a good or bad example, but an as-yet unproved but also un-falsified challenge to how we think about privacy — one that demands continuing reflection (or, some would say, refutation).

The tenth anniversary of publication is an appropriate time to do that reflection at CFP.

About the presenters:

David Brin (remote participation)

David Brin is the author of “The Transparent Society,” the inspiration for this panel. He is a noted futurist and science fiction writer.

Alan Davidson

Alan is the head of Google's Washington, DC, government affairs office. Previously he was Associate Director of the Center for Democracy & Technology. Alan is a frequent speaker and presence in national privacy debates, and a frequent CFP participant.

J. Bradford DeLong

Professor of Economics, University of California at Berkely

In addition to his work as a macro and economic historian, Brad has written extensively about the economics of information and the Internet. He runs a very popular economics and culture blog, “Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal” at http://delong.typepad.com/. Brad served as Deputy Assistant Secretary for Economic Policy in the Clinton administration, 1993-95. He is also a founder-member of the Ancient, Hermetic, and Occult Order of the Shrill.

A. Michael Froomkin (Moderator)

Professor of Law, University of Miami

Michael has been writing about privacy, encryption, and anonymity for almost fifteen years. His writings include “The Death of Privacy?”, 52 Stan L. Rev. 1461 (2000). He is a founder-editor of ICANNWatch, and serves on the Editorial Board of Information, Communication & Society and of I/S: A Journal of Law and Policy for the Information Society. He is on the Advisory Boards of several organizations including the Electronic Freedom Foundation and BNA Electronic Information Policy & Law Report. He is a member of the Royal Institute of International Affairs in London. He is also active in several technology related projects in the greater Miami area.

Stephanie Perrin

Stephanie is the Acting Director General of Risk Management, Integrity Branch, Service Canada. She is the former Director of Research and Policy at the Office of the Privacy Commissioner of Canada, and was prior to this a consultant in privacy and information policy issues, president of her own company Digital Discretion Inc., and a Senior Fellow at the Electronic Privacy Information Centre in Washington.

She is the former Chief Privacy Officer of Zero-Knowledge, and has been active in a number of CPO associations, working with those responsible for implementing privacy in their organizations. Formerly the Director of Privacy Policy for Industry Canada's Electronic Commerce Task Force, she led the legislative initiative at Industry Canada that resulted in the Personal Information Protection and Electronic Documents Act, privacy legislation that came into force in 2001 and has set the standard for private sector compliance. She is the principal author of a text on the Act, published by Irwin Law.

Zephyr Teachout

Visiting Asst. Prof. of Law, Duke University

Zephyr is one of the leading practitioners and theoreticians of online political organizing. She directed Internet organizing for Howard Dean's 2004 presidential campaign.

Zephyr is noted for advocating the Internet as a tool for creating local offline groups. publications include “Mousepads, Shoeleather and Hope: Lessons from the Howard Dean Campaign for the Future of Internet Politics”(Editor) (forthcoming August 2007, Paradigm Publishers); “How Politicians can use Distributive Networks” (New Assignment, November 2006); “Youtube? It's so Yesterday,” (with Tim Wu) (Washington Post, November 2006), and “Powering Up Internet Campaigns,” book chapter in Lets Get This Party Started (Rowan and Littlefield, 2005.) She is currently writing about the meaning of corruption in the American constitutional tradition.

ICDR Miami

I'm at the ICDR's 6th Annual Miami International Arbitration Conference today, so I won't post much if anything.

One big change from when I was in practice: much more talk, and even a significant number of rules, about ethics. Other than that, lots of little changes….

We Media: Best Lines

“Content may be King, but the customer is G-d.” (From the Sarnoff & Weiss panel)

“The revolution may not be televised, but it will be uploaded” (Rev. Lennox Yearwood Jr., CEO, Hip Hop Caucus at the “Power To Change The World ” panel)

“I'm just old enough to remember what it was like before the internet” (audience member)

“The title of this panel is a tough one for anyone from the mainstream media to sit on” Jim Brady, panelist (“the power to change the world”)

“Show me a health IT guy, and I’ll show you a guy who’s sitting in the second string.” (Don Jones, Qualcomm, quoting a friend stating what he says everyone believes)

“News doesn't break—it oozes.” Amy Garhan, Content Strategist and Independent Journalist

We Media: Search Breakout

This session was, for me, the most interesting thing so far. I'm afraid the following is only some of it. The chair starts with what he calls a “party trick”: he types “power outage” into Google Search … and the first item is from the Boston Globe. Why, he asks, Boston? (Note that he used regular search, not “news” search — which, he says, is what Joe Average would do. Search, he concludes, has room for improvement. The speakers are all people working achieve that.

The first speaker, Mary Hodder, Founder, Dabble, gave a very good case for the use of microformats, an approach to organizing stuff that was new to me and seems, at first blush, to be really really sensible. Old-style standards approaches just don't scale to the magnitude of the task.

Fabrice Florin, Executive Director, NewsTrust, talked about trying to do better things with metadata, which might even involve metadata about metadata to provide metrics of trust and authoritativeness. It sounds hard. But it clearly sang to session chairman Jim Kennedy, VP Strategy, The Associated Press, which was an interesting datum.

Josh Cohen, Director, Business Development, Google News, talked — surprise — about the problem of scale. Classic publishers, he noted, are a tiny fraction of the content online. So a trust metric optimized for helping consumers navigate publishers may not scale for Google News, which he says now has 20 different languages and 40 different editions. Google's approach has to algorithmic, but all of these types of data could be used by an algorithm. [Although personally, I be very surprised to see Google relying on any 3rd party tags or metadata.]

Hodder notes that many people use the a Yahoo standard, Media RSS (MRSS) which they pioneered and open-sourced for tagging video content — but there are many varied (confusing) uses of it.

Kennedy asks how we tag without falling prey to the gaming of the system that killed metadata 1.0. Florin says, reasonably, make it visible to users. And attribute the source of the metadata. Hodder says, yes, but that's really hard to keep track of — how do you cross-check to find out what

Florin jokes that all we need is distinguished names (he doesn't call it that, but that's what he means). I start flashing back to the early days of digital signature discussions in the mid-90s…. Bob Jueneman, call your office …

Question from the audience suggests Everything2 is a better model - it self-polices.

(Meanwhile, in the background, it sounds as if the heavens have opened up and it's pouring. )

Hodder says she worries about relying on systems like Digg, because they are too easy to game.

Reuters person in audience asks about business models to pay for all this. Google's Cohen suggests that if replies to search are more relevant, higher quality, then they are more valuable.

Why doesn't Google announce a standard? Because it's not clear people would follow it [and, I'd add, there's the gaming issue]. Yahoo is having a meeting in two months regarding news and technology — an open-space style meeting — might that be an occasion for building out the MRSS spec to go to more news?

We Media - First 90 Minutes

I’m not going to liveblog the WeMedia conference – they’re doing a fine job of that on their blog. Instead I’ll free associate a bit. Forgive any snark – I’m not going to have much time to edit myself.

There’s an evangelical aspect to this event which seems strange to me: the first speakers seem to think that they need to convince the audience of things that the communities I hang with pretty much take for granted: everything is digital, information communities are localizing, the Internet enables individuals as news creators, gatherers, organizers and sharers. Trust matters. I suppose that the reduced relative power of big centralized media may be a bitter pill for some of the old media moguls, but surely they have to have faced it by now? Then again, there’s lots of grey hair in the room. I often feel like Methuselah at tech events – here I’m middle of the pack, if that.

More encouraging is the next question – “what’s next?” But they don’t answer it.

They tell us content isn’t the only king– access matters too. [For a contrary view, see “context is king”.]

One thing that’s very noticeable: they sure have more beautiful slides with better transitions than the geeks do; and much better than the lawyers; but the pretty slides don’t actually say much.

OK, here’s some data: 2/3 of Americans think journalism is out of touch; 2/3 are dissatisfied with quality of journalism in their communities; 48% say the Internet is their primary source of news and information.

Conclusion: “The digital age is here”. I had guessed that.

Next Session: “Print is Dead”

One of the speakers is Jeff Gomez, who wrote a book called “Print is Dead”. It sold well. He has an interesting-looking blog. He’s engaging, but again, I’m not sure where I’d find the news hook if I were covering this.

If newspapers are dead, who killed them? I say it was suicide: they took a dive on the war and just about every other difficult issue in the last six years. Media consolidation destroyed competition and made them dull and complacent – no more newspaper wars or even am/pm rivalries. Meanwhile TV (sometimes cross-owned by conglomerates that owned the paper) gave us years of “a white woman is missing” and dumb trials. No wonder people don’t take them seriously. (Cf. Yesterday's News Tomorrow (Literally))

Interestingly, the guy behind me – an old media honcho with a law degree – is doing his work. I asked him what he thought of the speakers, and he says he’s heard it all before. (“Listening to Lazarus” he says.) I suspect the audience is ahead of the presenters. In fact, I suspect the presenters know a lot more than they let on.

I should note that, so far, the next session, “Print reincarnated” (Richard Sarnoff & Willam C. Weiss) has a lot more interesting content about things that print media are doing to tie in to new media and make the two work together — from my perspective it's lots of smart small stuff, though, as much as any one big idea beyond “connect”. Perversely, the value of this session means there's a good chance I won't write as much about it, because I'm too busy listening. Random fact: they don't have slides.

We Media's Wee Widget

We Media has a widget that lets you see what people posting to its blog are saying. The widget downloader offered me a choice of no less than 14 different social softwares to which I might be adding the tool…but no vanilla HTML offering. So I picked one by guessing. To view this you'll probably have to visit my blog, rather then going via the feed, and you will certainly have to enable shockwave for content from widgetserver.com. (Note that I have no idea who is behind widgetserver.com but as of this writing my computer is still working.)

In fact, I believe “widget” may be the buzzword du jour. A pitch happened in front of my eyes this evening, most of which consisted of an offer of widgets.

Drinks at the We Media Conference

I attended the opening cocktail for the We Media Conference this evening at the UM School of Communications, and will be at the conference most of tomorrow; (I'll miss almost all of Thursday due to teaching and other commitments.)

There are three things that are unusual for me about this conference.

The first is that it's a rare pleasure to have a conference come to me, instead of having to take a plane ride somewhere, and I'm very grateful to Blyth Daylong and the good folks at the UM School of Communication for making it affordable for me ride along. The list price of admission is pretty high, and full fare would well outside my price range, even without having to pay travel.

The second is that I'm not speaking. One way in which I usually ration my conference attendance is by mostly just going to the ones I speak at. (CFP is the most common exception.) That keeps down the expenses, but it means I miss out on some fun ones, and also may make for a certain samey-ness that it may be time to bust out of. Perhaps I should just go to stuff more often? (Any suggestions?)

And the third is that this is a Media conference: it isn't either of the two types of things I usually go to — either academic lawyer and cyberprofessional lawyer events or techy geek policy events. The pre-conference materials sound different from what I am used to: less specific content and far more ebullience. Indeed, judging from the cocktail party people I met, there are far more people at this who know my brother than there are people I've met before (and half of them think I'm him). It's good to meet new people, and different kinds of people; if I'm lucky I'll learn a lot. If not, at least I get a cultural experience.

OTOH, I did meet a Slashdot editor at the cocktail, so there are some familiar types floating around. But overall, so far, it seems as if the thing in my life which is most likely to connect with this crowd is being a director of a startup hyper-local media company which eventually went under. The one time I mentioned that to someone this evening, their eyes lit up: I had just come into focus for the first time.

It is certainly a varied group. In addition to the various small media moguls and big media moguls and assorted big media assistant moguls, there are people pitching the next big thing, and (tomorrow at least) some people with deep pockets. And of course the lady from the US Dept. of Defense PR shop who was explaining to me how nice Gitmo is, how well everyone is treated there, how much prisoners in the US jails would rather be there then the vastly worse US jails, and that the high suicide rate is because the people there are hard core ideological opponents of the US — which I took to mean they do it to make us look bad. I kid you not.

But I also had the pleasure of meeting a visionary, Corinna J. Moebius of Imagine Miami, an organization dedicated to building community in Miami-Dade via civic networking. It would seem, based on what I've observed here in the last 15 years, to be an almost hopeless task given the various linguistic and cultural divides and the absence of civic pride, civic tradition, and even civic spaces. But listening to Ms. Moebius for a little while makes it evident that she has the sort of passion for what she's doing that actually makes things happen….

French Summary of Yesterday's Talk

Great online summary of my talk from yesterday — translated into French — by Belgian reporter and blogger Mehmet Koksal at Election reporter: Introduction au système électoral américain.

I loved the conclusion: “Cela a l'air compliqué mais, croyez-moi, c'est assez facile à suivre pour n'importe quelle personne ayant grandi dans le fédéralisme belge.” (That may look complicated, but believe me, it's fairly easy to follow for anyone who has grown up under Belgian federalism.)

I hated the picture of me, but I also loved the fact that the event which a francophone Belgian blogger finds worthy of an embedded movie…is the food at the reception.

Presidential Elections 101

I gave a talk today to a very charming group of visiting journalists from all over Europe who were invited by the US State Department to observe the US primary election process. And they're starting here in Miami.

I promised I would post a link to my slide presentation. Because I wasn't sure that all of our visitors were necessarily traveling with powerpoint, as an experiment I've converted the file to a flash presentation. Please let me know if this doesn't work for you.

Cross-cultural conversations always reveal surprising assumptions. My biggest surprise was when, after I'd explained how we register to vote, someone asked whether party preferences were a public record or were covered by privacy law. I said this wasn't private — and half the room looked startled and shocked. It seems that in many European countries, where primaries are rare to non-existent and thus there is no need to make party affiliation public, the very idea that one might be forced to disclose it feels like an assault on the secret ballot.

Questioners also asked about the danger of retaliation: can you be fired for belonging to the wrong party? Since party affiliation isn't a protected class statutorily or constitutionally, I had to say that in private employment you could be fired for being a Democrat, a Republican or whatever. (Of course in public employment there are a number of statutory and constitutional protections that, other than in top policy making jobs, tend to protect civil servants.) But, I explained, I thought that such cases were very rare. This clearly didn't go over as very convincing.

Easy Come, Easy Go

Looks like Orin may have to wait for that beer: I'm not going to the AALS after all, but instead am at home, felled by some horrible stomach bug.

Mario Barnes Wins Derrick A. Bell Jr. Award

I've just learned that UM Law prof and all-around great guy Mario Barnes has won the 2008 AALS Minority Groups Section Derrick A. Bell Jr. Award.

The Derrick A. Bell Jr. Award is named in honor of Derrick A. Bell, Jr. of New York University Law School. The award honors a junior faculty member who, through activism, mentoring, colleagueship, teaching and scholarship, has made an extraordinary contribution to legal education, the legal system, or social justice.

I don't know exactly what “colleagueship” is, but whatever it is I can't think of a better person to give this prize to.

There will be a ceremony at lunch on Jan 5 at the AALS to present Mario with the award.

This, wouldn't you know it, conflicts with a different lunch ceremony in which another member of the Miami Law faculty will be receiving a richly-deserved award: William Twining, who visits here for part of the Spring semester every year, is due to receive the AALS Evidence section's John Henry Wigmore Award for Lifetime Achievement in Elucidating the Law of Evidence and the Process of Proof.

Bad Debts

Orin Kerr says he's going to the AALS January Meeting in New York.

That's good. As it happens, I'm going too and I seem to recall that I owe Orin a beer.

Drat.

I've been offered a chance to go to something really interesting far, far away at someone else's expense.

And it looks like I won't be able to do it: it's happening the same long weekend as the AALS hiring conference, and I'm married to the chair of our committee. She has to be there, so I have to be here — although our kids are amazingly large to look at, they're not big enough to be left alone for a night, much less for four days in a row.

DEFCON Badges

I'm not at YearlyKOS (although I wish I were); and I'm not at Defcon either. I've never been able to justify going to Defcon, although it sounds fun. This year in addition to the program, the Defcon ID badge looks really interesting.

Last year's badge was a fine piece of round circuit board with the DEFCON SmileSkull and Crossbones cut into it, a bunch of circuitry, two lit LED eyes, a single watch battery, and a toggle switch to make the eyes blink in sequence. If you were really clever, you could hack the code in the badge to blink out your own secret messages …

…The sucker has a Freescale MC9S08QG8 microcontroller and contains a 5 column by 19 row matrix of LEDs to allow user-customizable scrolling text messages. The default message is I (heart) DEFCON 15. Power source is a pair of lithium coin cell batteries. Touch the top SmileSkull icon and it turns things on. It’s not a clicky switch, it’s a touch switch – major improvement from last year. A second touch control under the rotary dial symbol (and there’s one to explain to your kids about) allows one to type in a customized message.

If that wasn’t enough, the LEDs are also programmed to deliver a persistence-of-vision (POV) secret message if you trigger the proper mode then wave it around in front of your eyes in one direction, kinda like those hand-held trick LED signs people were having fun with a few years ago.

So many conferences, so little time (& money…)

Off to Bologna

By the time you read this, if all goes according to plan I'll be somewhere over the Atlantic, off to Bologna for what promises to be an unusually interesting workshop organized by Ian Kerr and the the other wonderful people at “On the Identity Trail”.

A short description of the event is at On the Identity Trail in Bologna, Italy for International Workshop on Anonymity.

I've done something a bit scary for this conference: I've written a paper that showcases my ignorance about something that I care about in the hopes that the high-powered (and geographically diverse) participants will educate me.

The key question which motivates the paper is this: why are people in common law countries like the US and the UK so much more bothered about ID cards than the people in Western Europe? It's a puzzle — we fear them, they domesticated them. They had abuses (Nazi Germany and occupied Europe), we had far fewer. Why the difference? Attitudes to authority? Different conceptions of liberty, or citizenship? Counter-balancing aspects of the legal system? None of the above?

[Incidentally, one of the many flaws of the current draft paper is that it pretends Eastern Europe doesn't exist — mostly because I don't know enough about contemporary attitudes to ID cards in post-communist Europe.]

Wireless-less in Italy

Saturday I'm leaving for a conference in Bologna. I don't know much about what sort of internet access I'll have — but I just read about the frustration of finding a wireless connection in Italy so who knows.

Chicken!

It is clear that I don't go the the right conferences. No one at any conference I've attended has ever given a presentation even remotely like Chicken, Chicken, Chicken, presented by Doug Zongker at the AAAS humor session, February 16, 2007.

Off to DC

I'm off to DC today. Tomorrow I'll be appearing on a panel entitled The Future of Internet Governance at the American Society of International Law's annual meeting.

Although I've taught the basic public international law course a couple of times, and the connections to Internet Law are obvious, I don't consider myself a mainstream international lawyer. This will be the first time I go to an ASIL meeting. A number of the panels are about things I am particularly interested in — arbitration, terrorism, detainee related issues — so I'm looking forward to learning stuff and meeting new people.

I suspect that the atmosphere will be more formal than most of the events I go to these days. I tend to go to tech events and conferences that are held in inexpensive venues and where people wear t-shirts. (Or, occasionally, that are held in lovely, expensive venues, but people still wear t-shirts.) The ASIL is meeting in a very expensive venue, in the heart of Foggy Bottom, but it being DC, and the attendee list full of international judges, I'm expecting this is a suit environment.

What the Law of the Sea Teaches Us About the Regulation of the Information Ocean

On Friday I gave a short talk at a conference organized to honor my colleague Bernard Oxman, who is taking up one of our very rare chairs here at UM law in this, his thirtieth year as a UM professor. (Unlike most law schools, we don't have a tradition of having chaired professorships. That may slowly be changing, fundraising willing.)

Every panelist was asked to respond to an essay Bernie wrote for the centennial volume of the American Journal of International Law. Unfortunately, Bernie's essay was about the Law of the Sea, a subject in which he is a (the?) leading expert, but about which my ignorance is vast and deep.

Thus, the title of this essay, “What the Law of the Sea Teaches Us About the Regulation of the Information Ocean.”

The audience was polite, even kind, about my remarks, so I'm posting the text (without footnotes) here. I'd sort of like to publish the footnoted version somewhere, as it tickles me to have written, however tangentially, about the law of the sea, but I have no idea where to send this.

What the Law of the Sea Teaches Us About the Regulation of the Information Ocean

By A. Michael Froomkin
University of Miami School of Law

When it comes to the Law of the Sea, I am a fish out of water: I swim in different, virtual, oceans. Thus, the question I will explore today at this event honoring Professor Bernard Oxman is one where I have the least chance of drowning: I want to consider to what extent Professor Oxman's eloquent paper charting the hazards to navigation in the future development of the Law of the Sea provides a useful intellectual cartography for those of us who sail the Information Ocean.

The Territorial Temptation: A Siren Song At Sea, 100 Am. J. Int'l L. 830 (2006), contrasts the land-based regime of post-Westphalian international law, a system that from the start was organized around principles of territoriality — or should one say, territorial-based sovereignties? — with the less imperfect law of the sea. Where on land we find many examples of multilateralism yoked to serve naked self-interest — poorly understood? — at sea, for a long period, we find instead the 'progressive triumph', a regime of mare liberum, one that at least until recently was dominated by what Prof. Oxman terms “enlightened self-interest: a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others at sea.”

Prof. Oxman's article is no Jeremiad, and he no Ancient Mariner, but it is nonetheless a cautionary tale: he notes that rules motivated by a surrender to the same 'territorial temptation' that has for so long ruled on land now increasingly extend into the other 71% of the Earth, running from the sea-bed to its surface. Prof. Oxman warns us that this expansion, plus a focus on short-term goals at the expense of long-run systemic values, threatens to drain the virtues of the law of the sea and leave it looking like … land.

Thus, Prof. Oxman's concluding warning:

***
There is a great deal in that warning and in the history leading up to it, that resonates with the current state of regulation of the Internet. Like the mare liberum, the Internet in its early days was wide-open and in practice largely unregulated; like the contemporary Law of the Sea, today's Internet faces a series of national and supra-national regulatory initiatives that seek in various ways, for reasons both fair and foul, to re-impose the control of territorial sovereignties over something that they first did not well control, and now see how to control only too well.

In what may soon be seen as a departed Golden Age, packets were free to roam from port to port; users could exchange information at will. But, just like mariners in the age of sail contemplating ocean journeys, would-be internauts faced substantial barriers to entry: only 30 years ago, internet access still required access to a mainframe somewhere and thus tended to be limited to scientists and academics, and the data moved at a mere trickle as machines mostly communicated via modems with baud speeds we sneer at today. The introduction of the (relatively) affordable personal computer, increases in processing and modem speed, and the invention of a graphical interface for unmediated one-to-many communication, what we now call the World Wide Web, all combined to bring the wonders of internet access and communication to the masses. The rest is surfing, and will some day be history.

Discussions of Internet regulation are too frequently captive of terrestrial metaphors. For example, the early adopters wrote of the “information super-highway” and of “long pipes” (but now mock the late-comers such as Senator Stevens who talk “about a series of tubes”). In this vision, packets, the basic unit of internet data transport, are analogized to cars negotiating the road system; like a traveler facing a long journey, there are in theory a large number of possible routes to one's destination. And like the roads facing that traveler, there are some routes that are both quicker and more traveled than others.

Hypnotized by the world wide web, we talk now of “cyberspace” and exchange articles as to whether the very idea of “place” is a handy simplification, an obfuscation, or a reification. For example, some have argued that the Internet is, or is usefully understood as, or might profitably be mythologized as, its own jurisdiction, with its own set of laws, rules created by the users in a truly bottom-up democratic manner. The essentialist reaction spurns these utopian visions as both fantastic and mistaken. One ought not, they say, to be able to opt out of the rules that bind our neighbors — territorial rules — because one uses a computer, any more than because one used a telephone, a car, or a spatula. And states, spurned as territorial dinosaurs by the digerati, who cast themselves as the small nimble mammals of a changed ecology, are in this counter-utopian vision, repositories and guarantors of traditional community values.

To the intellectual and especially practical challenge posed by modem-wielding libertarians and dreamers, the defenders of the terrestrial state's authority and legitimacy cast it as the guardian of our traditional values, and the defender of morality, and of the weak. So, for example, when France seeks to use its courts to prohibit (somewhat) US-based Yahoo! from selling Nazi memorabilia online in French, to French residents, the defenders of the state see this as a return to business as usual, and on the whole a salutary moment.

Whether or not triumphalism is justified, the positive story told by Joel Reidenberg, and by Jack Goldsmith & Tim Wu is surely correct: The empire has begun to strike back. States are asserting themselves to regulate the Internet as never before, both individually and in concert. The movement in the direction of business-as-ususal means that Nazi items are sold in English for dollars rather than in French for Euros — a primarily symbolic victory but one whose symbolism may actually matter. Unfortunately, it also means that in China a Google search for many terms disfavored by the authorities will result in a much less rich result than it would if conducted here, or even an error message that gives no hint of the real reasons for the search's failure. And the movement towards business as usual also means a movement towards business, as governments, working through international organizations, seek first to build an infrastructure of surveillance and enforcement to police existing intellectual property rights (and not-so-incidentally make whole new realms of data available to law enforcement) and second, to propertize and assign new categories of rights to content providers or intermediaries at the expense of consumers.

Yes, the same tide of 'territorial temptation' which covers the land now and threatens the Law of the Sea also menaces cyberspace.

The root causes of these two dangers have much in common: just as the Internet is one of the most exciting and even defining technological developments of our time, so too the sailing ship was a crowning technological achievement of its day. A tall ship is a highly complex machine that requires enormous organization and technical expertise to run properly. In broad terms the same is true of a complex network. Both depend on an extensive external infrastructure, be they boatwrights and ship's chandlers or fab labs and electrical and telephone networks. (A critical difference, however, is that the tall ship required a well-drilled team to work properly. In a good network the work tends to be more distributed and in a really good network it may be more fault-tolerant as well.)

Whatever the differences, note this critical similarity: government attempts to regulate in both spaces tracked technological advances. Before the three-mile rule it was a commonplace that the territorial limits of sovereignty were akin to the range of cannon shot — a technological constraint. As first shipping, then air, then sub-surface, transport improved, the state's ambitions grew with them. So too in virtual spaces. It has not taken long for the State — and for states in concert — to seek to (re)extend their reach to new activities enabled by new technologies. The are, in substantial part, regulating now because now is when they can.

So let us go with the flow and see how well the aquatic metaphor guides our navigation around the shoals of the territorial temptation's encroachment on the Information Ocean.

I. Similarities

The mare liberum was characterized by freedom of navigation. Freedom to go where one would did not necessarily mean freedom to trade, much less freedom to propagandize or proselytize, as territorial law took hold again once one reached port. But the freedom of the seas meant trade — and not just commerce, but trade in ideas as well.

The analogy to the Internet is appealing. Anyone familiar with the World Wide Web will see the surface similarity to a web surfer's freedom to navigate to any site, anywhere. True, an average web surfer in the US seeking what we call high-speed access is somewhat limited in that she has at best two choices, monopoly DLS and monopoly cable, but in the day there were probably only so many ships in port. And if the modern 'net surfer is likely to pass certain chokepoints on the way to foreign content, well the seas are well known for their straights and narrows also.

And that is only with yesterday's technology. Today, and even more tomorrow, Internet access will become wireless and untethered, whether via cell phones, Blackberries, or laptops connected to wireless clouds. What is more, plans are afoot to extend the reach of open access points by converting every participating wireless laptop into a repeater. By replicating the packet-switching architecture at a higher level we will reduce the effectiveness of endpoint and last-mile chokepoints. Wireless access may yet become nearly ubiquitous and too cheap to meter (and with voice-over-IP (VOIP), may take wireless telephony with it). Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies such as ICANN, or perhaps the ITU or even, horror of horrors, the United Nations.

One need not adopt a Utopian vision in order to accept that the freedom of navigation online also means an enormous traffic in ideas both domestically and across borders. It has called forward innovations in user-to-user and one-to-many technologies ranging from blogs to YouTube, from Kazaa to MySpace. The ease of trading and selling digital content has had other consequences. It has fostered new marketing practices such as shareware and the endlessly upgraded annual version. And this flourishing of creativity has had its parallel in legal innovation, including the Copyleft or Creative Commons movement — an attempt to standardize license terms in a way that encourages sharing and attribution.

Equally innovative, albeit in a different way, are the attempts to redefine the purchase of digital property as a mere license — and to define the terms of that license in ways that favor the content-provider. EULAs attempt to undo the first sale doctrine, to prevent the purchaser from sharing the content, sometimes even from using it to criticize the manufacturer. And of course the EULAs attempt to impose a wholly different regime of rights and remedies from those consumers ordinarily expect when buying stuff. (Here, I fear, the analogy — if there is one — would be to employers' encounters with admiralty law, not to the Law of the Sea.)

Freedom of navigation online also means a substantial traffic in commerce — e-commerce as we now call it — although estimates of the actual dollar value (and percentage of consumer spending in general) vary widely. Whatever the actual amount today, everyone agrees it will be greater next year. Some even predict the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges, engaging in regulatory arbitrage — and evading their taxes.

Along with all these developments come new evils, or old evils in new packages, notably the trade in illicit content. In the United States that means pornography, gambling, and malware — the modern equivalents perhaps of the bacteria and viruses spread by sea-borne travelers, sometimes with such disastrous results for indigenous populations. We've seen nothing quite that bad online yet, although the huge volumes of spam delivered by thousands of zombie computers harnessed to form botnets now threaten the ecology of email. Perhaps the best oceanic analogy for the modern spam, however, is cross-border pollution, and as we shall see, the analogy extends to the methods being advocated to control it as well.

And, of course, there's “Piracy”. On the high seas, piracy was the classic offense against the laws of nations. On the Internet, the term “piracy” has been, well, pirated, to mean making unlicensed copies of copyrighted works. And the content industries have made an enormous effort on multiple fronts to preserve their business models. Where once the Navy patrolled the seas, now the copyright police patrol third-world bazaars, online markets, and file sharing networks. They file lawsuits against file-sharing software creators, teenaged codebreakers who find ways to decrypt DVDs, middlemen providing matching services for file sharers, and even thousands of end-users. The content industries have also leaned heavily on the designers of hardware and the definers of standards to build “trusted computers” and “digital rights management” systems designed to limit what users can do with their computers, to put roadblocks on the unsanctioned exchange of information.

I would be remiss if I did not note some places where my extended analogy founders.

• The Internet standards process requires even more standardization than sea did/does. Ships could have different designs, so long as they floated. Internet enabling hardware takes many forms, but if your devices don't adhere to some basic standards, they are not going to be able to communicate with much.


• Packets are not like fish. They are artificial, and in the normal case do not reproduce. More to the point, if you are on the outside of the Great Firewall of China — and, for now, even on the inside if you are skilled — you can route around blockages much more successfully than schools of fish and pods of dolphins can evade driftnets. Unlike driftnets, the effects of censorship need not be felt abroad, except as a loss of readership.


• And packets are not like ships. The freedom of navigation was used to go places. With the Internet, much as we like to talk about “going” to a web site, the inescapable fact is that you don't actually move. That said, your data can move, and indeed can in some cases reside entirely offshore, making datahavens something comparable to the modern flag of convenience.

So, to recap, there are many similarities between the sea's effect on trade and commerce, what Chief Justice Marshall's era called intercourse, and the modern Information Ocean's effects on commerce and the exchange of ideas. And in both cases a relaxed, standardized, but not anarchic, international regime enabled (or at least enhanced) these benefits. And, in both cases, some of the benefits are threatened by the possible imposition of a more nationalistic and more controlling legal regime, a regime that shows every sign of giving into not just the territorial temptation but temptation in general.

II. Internet Regulation Dangers

The move to regulate the Internet threatens not only to subject it to the same rules that apply to other, meatspace, activities, but in some cases to subject it to more stringent rules; these in turn are often designed not only to regulate the Internet but to control various offline practices ranging from pedophillia and money laundering to parody and dissidence.

As with the law of the sea, the regulatory impulse proceeds on multiple fronts. There is of course national regulation, rapidly extending its reach to e-commerce, to online libel, and especially to digital property. The digital property issues appear in multiple forms and with every type of intellectual property. This is not the place to list them all; they include the regulation of online content — in trademark everyitng from passing off, to old fashioned infringement, and on to tarnishment. Only a few of these — new and exotic forms of conduct prohibited as 'initial interest confusion' and the regulation of domain names — have been particularly controversial. The story regarding copyright is more complex still, with the primary controversies relating to data exchanged online as opposed to online display, although even here the overenthusiastic use of the DMCA's takedown provisions increasingly prove troublesome, as does an epidemic of craven self-policing in excess of anything the law requires.

The urge to regulate has many sources. In the US, it is in part a reaction to the use of the Internet as a tool of regulatory arbitrage in which Americans evade local rules banning pornography, gambling, or the importation of cheap Canadian medicines. Another part of the urge to regulate, not limited to the US, reacts to the danger that computer-mediated communications, whether anonymous, encrypted, or hidden in plain sight, may enable terrorism or otherwise undermine national security. And, of course, many nations the urge to control and regulate is part of a larger program of control and even repression. The recent contretemps about Google acceding to China's demands that 'sensitive' searches be sanitized is only the most publicized of a series of attempts in China, Singapore, Saudi Arabia and many other countries to clamp down on the subversive effect of such a great freedom to communicate.

For those of us with the good fortune to live under less repressive governments, the greatest dangers, however, are not in national legislation, but at the international level. First, the US has entered into a series of bilateral agreements, mostly with smaller economies, in which the US has begun to impose IP regulatory regimes on its trading partners that are more stringent than those it imposes on itself. Even when treaties do not change existing rules, they lock them in and thus place weighty obstacles in the way of democratic re-examination of their provisions. Some have even suggested that the current US administration is embarking on a strategy to lock in our current practices in this manner in order to prevent their repeal by its successors.

Multilateral processes are also being harnessed to this goal. Negotiations on The Hague Convention on Jurisdiction, for example, almost foundered on its applicability to e-commerce, to other online activities, and on the protection that would be given to various idiosyncratic sui generis IP rights.

In addition to the traditional multilateral processes, Internet regulation enjoys, if that's the word, a hybrid semi-private regulator called ICANN, which controls the domain name system. ICANN's technical control makes its decisions almost instantly enforceable. So far that power has been relatively sparingly, primarily to create new rights for incumbent trademark holders in the domain name system, and to prevent the creation of interesting new top-level domains that might become a source of heartburn for incumbent service providers or for large trademark interests who fear an increase in both infringement and especially monitoring costs. This is not the place for the complex details, but it is relevant to remark that the latest proposals on domain name policy to emanate from ICANN give each participating national governments unlimited rights to veto new TLD names whose semantic content (e.g. “Tibet”) they find troubling for any reason.

Currently, content providers are mounting a strong effort to add to what critics call 'the copyright grab' or the 'digital enclosure' movement at the ongoing negotiations over the WIPO broadcast treaty. Due to the heavy-handed efforts by the chair to define the agenda, the conference has been focused on creating new rights for broadcasters, who it is proposed would be given the right to prevent the retransmission of otherwise public domain content that they transmitted. The effect on the Internet — which is where most of that retransmission happens, often after important transformation and the creation of exciting if oft satirical derivative works — would be significant.

Most serious of all are the multi-lateral efforts to require internet intermediaries to record most or all of what their customers do online and to keep the records available for months or years in case police or intelligence agencies should later wish to inspect them. Governments have come to understand that technologies of online surveillance and monitoring require wide dispersion to be effective or their targets will move their operations offshore.

The initial move towards a surveillance regime, widely believed to have been orchestrated by the FBI (and/or the NSA) was through the Council of Europe's Cybercrime Convention. Initial proposals to create a duty to monitor at the request of a foreign power were heavily watered down after an outcry by civil liberties organizations in the US and Europe. The final draft created mechanisms for increased cooperation between law enforcement agencies but did not require one government to, for example, cooperate in the monitoring of foreign dissidents visiting or sheltering on its territory.

That victory was short-lived. The European Union recently adopted a far more comprehensive rule, one justified as necessary to help fight terrorism and organized crime, that requires ISPs to keep records of what their clients do online. This directive will take effect this August, although member states may postpone compliance until March 2009. Under the terms of the so-called Data Retention Directive, Internet Service Providers must retain for up to two years the date, destination, and duration of their customers' communications — and made these available to law enforcement authorities. US Attorney General Alberto Gonzales recently proposed that the US adopt a similar rule, although the bill seems to have little chance of passage in the House — this year.

It can be seen from this gale-speed summary that like the Law of the Sea, there are proposals afoot for the regulation of the Internet that threaten not merely to tame it, but to change the overall character of both the regulatory environment and the thing itself. That said, there does appear to be one important difference from the Oxman conception of the recent evolution of the law of the sea. By and large the private actors, and especially the NGOs, are the heros of the internet story; one gathers that Prof. Oxman perhaps sees them playing a more ambiguous role at sea. In the Internet context, the truly dangerous parties clearly are the governments, which are reclaiming the intellectual agenda as a prelude to colluding, in the name of security, against the privacy and in some cases freedom of their citizens.

***

Thus, at last, we are in position to reconsider Professor Oxman's envoi:

The need for common ground rules and cooperation by users in an area open to all is self-evident;

True online, at least as much as at sea.

it is an indispensable concomitant of a regime of freedom of action itself,

Again, true.

as demonstrated by the basic principle that high seas freedoms “shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas.”

Here, I confess, the analogy breaks down a bit: the online spillover effects of some online activity is much greater than most sea-based activity. If the US has a liberal information regime, it becomes a means by which citizens elsewhere can route around local content control. The same is true in reverse: restrictive US policies on pornography, gambling, or the sharing of digital intellectual property are undermined by foreign rules or the failure of foreign domestic enforcement. The cures require the imposition of a regime of control and enumeration that they would, I fear, be worse than any of the diseases so far identified.

In contrast, this last point is even truer online.

It seems, therefore, that the Law of the Sea has something to teach those of us who immerse themselves in cyberspace — but there is a real danger that the lessons will not be learned in either arena, and we will lose sight of “enlightened self-interest: a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others” … whether that access is to the sea or to the Internet.

Blogging from the Dias

I'm giving a talk soon at a conference organized to honor my colleague Bernard Oxman. My talk has one of those titles I would never have expected to be speaking about: “What the Law of the Sea Teaches Us About the Regulation of the Information Ocean.”

If the audience doesn't throw too much, I may post a preliminary text later.

UM International Arbitration Symposium Tomorrow

I'll be going to the UM Law School International & Comparative Law Review's International Commercial Arbitration Symposium tomorrow. Here's the official announcement,

On January 20, 2006, the University of Miami School of Law International & Comparative Law Review presents a symposium entitled “Dealing With Challenges in International Commercial Arbitration: A Comparative Approach.” Professor Jan Paulsson will give a keynote speech to explain the use of public policy and the notion that a “transnational” public policy could begin to affect enforcement of arbitral awards. Additionally, the other presenters will focus on specific decisions that explicate the judicial climate of their jurisdictions.

International Commercial Arbitration (ICA) is one of the fastest growing fields in crossborder dispute resolution. With the growth of ICA, a transnational public policy (TPP) has emerged that has great potential to change the way businesses and practitioners evaluate the desirability of international arbitration. In this symposium, the International and Comparative Law Review at the University of Miami (ICLR) brings together experts from Europe, Latin America and the United States to consider the classic text on the role of public policy (the New York Convention), the emergence and viability of TPP, and the important trends of which practitioners need to be aware. Other important topics in ICA will be discussed, including anti-suit injunctions, attachment of property, drafting and practical considerations.

Fuller details, including the program, are in this .pdf file. Sounds like a great event if you have any interest at all in this admittedly somewhat specialist subject.

Back in the day, when I was working in a US law firm office in London, most of what I did was international arbitration. It was interesting and highly varied work, with a very diverse set of clients from all over. And now Miami is emerging as a regional center for international arbitration in the Americas.

My Dinner With ICANN (or, Where is Hunter Thompson When We Need Him?)

Most reports about ICANN are about the official parts. But as the real work of most meeting happens off stage (Board meetings, for example, are reliably rumored to be almost scripted in advance in a secret meeting held earlier in the week; Board members who dare bring up unscripted topics in public get dirty looks from the status quo crowd), I thought it might be productive, or at least amusing, to write up a report of the big "social" (non-business) dinner last night.

A fleet of buses drove us to the venue, which someone told me was a race track. Whatever it may be, it was a grand setting. We walked up the long walk and entered the main hall through an elegant wood-paneled corridor, decorated by two contortionists doing their moves in the middle of the floor. (Yes, you read that right.) After that, I went straight to the bar.

There were in fact two open and very popular bars (see my Caipirinha Report) and a small army of people bearing tasty canapes, all paid for by Verisign, the beneficiaries of the new .com contract extension which lets them raise their prices without much fear of competition. Your internet tax dollar/euro/yen at work.

Eventually we filed out onto the patio for dinner. A large group of round tables were set out on three sides of a sizable stage. The front and center tables all had little "reserved" signs -- it seemed, for example, that the Board members were going to sit together, not mingle.

I joined a very convivial table of the powerless, located well off to the side of the stage. Before the dinner, we were treated to some entertainment by the Brazilian host committee. It was a combination of acrobatics, music and dance. Aided by the steady supply of Caipirinhas and, later, local red wine, I tried to sort out the symbolism of the performance. For example, the two girls -- I call them that as they didn't look even 18 -- who hung upside down wearing colorful unitards after climbing long colorful streamers, were they trying to tell us that it helps to hang upside down like a bat to understand the ICANN process? Is the idea that to navigate the arduous climb up the greasy pole of new gTLD applications you have to be cute and perky and able to do amazing contortions? (And what to make of the remark of one the guys at my table that at the Rio meeting they did the show in thongs and feathers? ) Or, how about the choreographed battle dance between strapping buff youths? Was it trying to tell us that meetings are choreography, that the battles are just for show? Or the almost balletic pas-de-deux with trapeze in which smiling acrobats conduct a romance on the ground and in the air, ending with the chap carrying off the radiantly smiling girl: is that supposed to show how VeriSign woos and then carries off ICANN? How ICANN will ravish the user community? The drinks provide no answer. Maybe it's trying to tell us that ICANN is like a circus act.

The show ends with a rousing percussion and dance number, then Vint Cerf does a break dance. No, I made that last part up. But he does do a nice hop-skip step as he goes up to the stage. Cerf has been a wonderful spokesmodel for ICANN. It's a great pity that he has been so aggressively uninterested in checking the excesses of the staff and unabashedly sees no value in competition (see here, here and here).

Being seated off to the side may make it harder to see the show, but it turns out to give us prime position for the rush to the copious buffet. I used to say that all I ever got from VeriSign was a sandwich (during a tour of the root I had back in the pre-ICANN days). Now I'll have to change that line, as I, like the rest of the cozy crowd, was fed and watered in style.

On the way out, I spot a fully staffed ambulance parked by the door. It seems that it is standard in Sao Paulo when you have a big meeting to hire an ambulance, and a doctor, to stand by since the traffic is so bad that they can't be counted on to arrive quickly when needed. There is no doubt a metaphor there too, something about gridlock or life support perhaps, but I'm too tired to work it out.

ICANN's Good Side

Having just arrived in Sao Paulo, I had to choose between the meeting on future ICANN meetings in the Very Big Room, or the meeting of the Security & Stability Advisory Committee (SSAC).

I suspect that the debate about future meetings is going to make ICANN look not-so-good -- the proposals to make meetings more user-friendly and have fewer last-minute surprises is quite tame, and even so I gather that it is meeting resistance. (I"m not there, so I look forward to being wrong on this.)

But I can tell you that the SSAC makes ICANN look good. This is the kind of work ICANN should be doing -- worrying about how to ensure stuff works. The presentations are sober, serious, and professional. They are based on actual data and offered in a spirit of finding the truth, chips fall where they may, and one has no sense of hidden agendas like one almost always does in the ICANN space.

The committee reported on its review of wildcards in the .Travel TLD, on IPv6, and on WHOIS privacy.

I was particularly struck by David M Piscitello's presentation on how much personal contact information can be harvested from WHOIS records. His estimate, based on a serious sampling activity, is that in the USA -- where there are probably the most data-matching sources available -- one out of seven WHOIS records can be recognized, with a high degree of certainty, as providing sufficient information so that "it is possible, using the information collected, to speak with or visit the individual at his or her residence, e.g., make personal contact". Serious work that ought to inform the WHOIS debate.

Other highlight: Steve Crocker reported that the .museum wildcard is going to be axed. Lyman Chapin said that this was consensual: "it didn't do what they wanted it to do."

There was also a lot of good-humored talk about the danger to Interent security and stability posed by Brazilian hospitality -- it seems I missed some good drinking last night. Tonight I intend to find out just what a Caipirinha is exactly.

This is only the second ICANN meeting I've attended in person; my sense is and was that the real stuff happens behind the scenes, and that attendance takes too long and costs too much. On the other hand, virtual participation used to be a joke. One interesting thing going on here is that more is being done for non-attendees, both by ICANN and by independent initiatives such as the wonderful ICANN Wiki.

The ICANN Wiki folks have a great PR operation going on in their booth: caricatures of attendees. For regulars they use photos submitted online; for other attendees, they snap your picture on the spot, upload to their US-based caricaturist, and the picture is ready the next day. They print it out on a postcard-sized form factor that fits neatly into the ICANN name tag.

Check out the full Gallery.

Off to Brazil

I don't usually blog about ICANN here -- I save that for ICANNWatch, but the next few days may be an exception, as I'm going to Sao Paulo for the second half of the ICANN meeeting, which will be followed by a NomCom meeting.

It's seems I've been resentenced re-selected for the ICANN Nomcom for a second (and last) year.

UPDATE: Amazingly, Kieren McCarthy managed somehow to misread the above as follows:

Then why on EARTH have the people for next year's Nominating Committee already been decided? Michael Froomkin has blogged that he was informed yesterday that he has been chosen a second time for the NomCom.

For the record: not so. I was informed a few weeks ago, that I had been re-selected by the ALAC. As to Kieren's other question as to who selects the NomCom, it's all spelled out in ICANN's arcane by-laws: Many different groups select one or more delegates. The result is very good at including the wide diversity of views that people have about ICANN (much better than say the ICANN Board!), although IMHO it weights them kind of funny.

Homeland Security Privacy Meeting in Miami Dec 6

DHS is having a meeting of its Data Privacy and Integrity Committee here in Miami and I am really really annoyed that I'm going to hve to miss this: DHS: Privacy Office - DHS Data Privacy and Integrity Committee Meeting Information

Privacy Office - DHS Data Privacy and Integrity Committee Meeting Information

The quarterly meeting of the DHS Data Privacy and Integrity Advisory Committee will be held on December 6, 2006 at:

Eden Roc Hotel
Mona Lisa Ballroom
4525 Collins Avenue
Miami Beach, FL 33140

Public Sessions

Mona Lisa Ballroom
8:00 a.m. – 11:15 a.m.
12:15 p.m. – 2:30 p.m.

Details of Meeting

• Official Invitation, (PDF, 1 page –118 KB)
• Agenda, (PDF,2 pages – 253 KB)
• Federal Register Notice

Public Comments

2:00 p.m. - 2:30 p.m.

Registration and Attendance

Any member of the public who wishes to attend the public session is requested to provide his or her name by 2:00 p.m. EST, Friday, December 1, 2006, to:

The DHS Privacy Advisory Committee
The Privacy Office
U.S. Department of Homeland Security
Washington, DC 20528
Email: privacycommittee@dhs.gov
Phone: 571-227-3813
Fax: 571-227-4171

Everyone who plans to attend is respectfully requested to be present and seated by 7:45 a.m. for the morning session and 12:00 p.m. for the afternoon session. Registration is requested to assist in the preparation of meeting materials and seating arrangements. Attendance information, including names of members of the public attending, are to be made public as part of the official meeting minutes.

Persons with disabilities who require special assistance are asked to indicate this in their admittance request, and are encouraged to identify anticipated special needs as early as possible.

Contact Information

The DHS Privacy Advisory Committee
The Privacy Office
U.S. Department of Homeland Security
Washington, DC 20528
Email: privacycommittee@dhs.gov
Phone: 571-227-3813
Fax: 571-227-4171

I have to miss it because I will be in Sao Paulo for the second half of an ICANN meeting -- it seems I've been reappointed, or re-sentenced (I'm not quite sure) to the ICANN NomCom. If anyone goes -- register by tomorrow -- I'd love a report.

Of 'Glogging'

I'm having a great time at 'Unblinking' - it's wonderful to have a chance to learn from people in a variety of disciplines (except when it's frustrating).

I am concentrating on the speakers, so there's not going to be much blogging. but I did want to mention one new (to me) piece of jargon that has come up quite often: glogging.

Not everyone uses it quite the same way. Some speakers use it to mean continual personal data collection and sharing in a "sousveillance"/Steve Mann sort of a way. Others use it to mean a wider variety of user-directed broad data collection.

In Berkeley

I'm in Berkeley for the Unblinking Conference. I may have some free time Saturday afternoon after the conference ends, if anyone is reading this and feels sociable.

Privacy 'Focus Group' Regarding Miami-Dade Wifi Initiative

I'm a member of the Steering Committee advising Miami-Dade County Mayor Carlos Alvarez on his Wireless Miami-Dade initiative.

The Mayor's office has been holding a series of (not that well publicized) focus group meetings on various topics.

Today's three-hour meeting, set for 1:30pm, is on "Privacy and Security" issues, and I'll be one of the lead-off speakers. If you'd like to attend, it's taking place at the Stephen P. Clark Center, located at 111 N.W. 1st Street, Suite 2910, Conference Room 29-A.

The Stephen P. Clark Center, by the way, is very accessible by MetroRail: it's the building in which the "Government Center" stop is located. To get to the 29th Floor, take the escalator down to the ground level, pass through security, then take the elevator bank on the right to the top floor. The meeting is open to the public, and covered by Florida's rigorous Sunshine law, so you don't even have to sign in in order to attend, despite what they'll tell you at the front desk on the 29th floor.

Incidentally, the latest news from the staff is that they are now leaning towards a WiMax/Wifi hybrid system, sort of on the Portland model (but probably not free, rats), which given the size of the territory we're talking about seems much more reasonable than wifi alone.

In Atlanta

I'm in Atlanta today, speaking at the Georgia State University College of Law, and so probably won't post much.

A number of readers have sent me interesting links recently, and I invite you to post pointers to them in the comments to this item. One important request though: Please do NOT post the naked URL in the first 60 characters of your entry -- it messes up the blog for IE readers.

If you know how to use HTML to create a hyperlink, you can do that anywhere in your entry. But if you are posting a link in plain text, please put it at the end of your comment describing what it is.

Come Join the Fun at 'Unblinking'

I'm going to an interesting conference in November called Unblinking: New Perspectives on Visual Privacy in the 21st Century (you can see the prelminary abstract for my paper PETs in Public), and there's room for a few more:

We have space for a very limited number of audience-participants (the speakers were selected some months ago, but this is an interactive format). If you are interested, please send an inquiry to Maryanne McCormick by 10 Oct: a short bio, description of your work/interests in visual privacy, and your availability on these dates, in plain text to:

Maryanne McCormick

best,

Deirdre Mulligan and Pamela Samuelson

==========================================================

Unblinking: New Perspectives on Visual Privacy in the 21st Century

A Cross-Disciplinary Symposium UC Berkeley, Nov 3-4, 2006 https://www.law.berkeley.edu/bclt/events/unblinking

Co-Chairs: Deirdre K. Mulligan (Law) Pam Samuelson (Law and The Information School) Ken Goldberg (Engineering)

Worldwide demand for security cameras has expanded greatly since 9/11/2001 and the London transport bombings. Over the same period, consumer demand for high resolution digital and cell-phone cameras has increased markedly. Video applications are being incorporated into learning, healthcare, family and work environments. Engineers are responding with new generations of highly sophisticated chips, lenses, robotic platforms, and systems.

In a rapidly evolving environment of unblinking eyes, technologically perfected recollections, and permanent visual records, what will it mean to have privacy? How will the introduction of unblinking eyes alter how we experience and behave in public and private spaces?

Privacy is a complex and often abstract topic: this symposium will address "visual privacy," a subset of the much broader topic of data privacy, and bring together experts from a range of perspectives: art, law, engineering, public policy, psychology, architecture, urban planning, sociology, human rights and others.

Camera and video technology are changing who we watch, what we watch, when we are watched, and redefining the purposes for which we watch. From crime and terrorism focused networks of security cameras, to human rights workers and demonstration observers armed with video cameras, to the proliferation of camera and video phones used to capture and some times share the mundane and extraordinary images presented by daily life, to real-time video connections between family, employers and colleagues, technologies of watching are generating complex questions about both our rights to document and enhance our lived experiences and our rights to enjoy some aspects of privacy in public places.

Video and still footage of events such as the NYC protests during the republican convention, the prisoner abuse at Abu Ghraib, images of the war remind us of the powerful tonic visual images can be - providing checks on the abuse and misuse of authority, forcing us to reckon with the consequences of monumental decisions and policy choices, and providing alternative versions of the "truth." But for some the use of visual imaging technology by individuals in public places evokes a different set of images-the "up-skirt photographer," the publication of intimate moments occurring in public places, the paparazzi-and concerns-privacy, exploitation, and voyeurism. State use of advanced camera networks to constantly monitor public space counterpoises our deep desire for safety and our commitment to a free and open society that demands some limits on state access to information about citizens' activities. Monitoring aging family members and domestic workers, and connecting educational and work environments raise complicated questions about the privacy of all those who pass through these visually wired environments. Across each dimension visual imaging technology is outpacing law and public policy, destabilizing norms and expectations of personal privacy, and redefining public spaces.

Surveillance and sousveillance (watching from underneath) are becoming ubiquitous: we are watched by the government, corporations, institutions, and private individuals. Individuals use cameras to record events, document experiences, and capture "the moment." Governments are deploying them as both a counter-terrorism and crime-fighting tool. Businesses both use and prohibit them -- finding them useful to protect property, but a threat to intellectual property. The increasingly powerful pan, scan and zoom features, infrared /night vision and video capabilites as well as new developments in miniaturization and the embedding of cameras in small multi-use consumer electronic devices, enable camera users to capture intimate moments and communication details. The potential to meld biometric and datamining technology with vast networks of video cameras conjures simultaneous fears of constant supervision,secret or public judgment and hopes that such information can be used to make us safer, better informed, and more connected to each other As we willingly or unwillingly submit to these invasions, we turn cameras back at our watchers, and we sometimes actively choose to display our images: publicizing our private lives through web cameras, photo blogs and other technologies.

Video technology will join voice communication and email as a means of maintaining connection between families, communities, and workplaces. In this constantly changing environment of unblinking eyes, technologically perfected recollections, and permanent records, what will it mean to have privacy? And how we will experience and behave in public spaces? What degree of visual scrutiny are we willing to undergo in public spaces? What degree of privacy - absence from watching, fading of memory, anonymity - does a civil society require? What barriers does the law erect to surveillance and sousveillance in public places? What is the effect of pervasive watching on speech, conflict, and relations between the governed and the government? How does pervasive watching entrench or alter experiences based on gender, class and race? Can pervasively watched spaces fulfill their role as "public spaces?" How are current developments in and uses of technology challenging our norms and laws and how have policymakers responded?

The Unblinking Symposium will explore these issues in a single track format. To ground the discussions, each submitted paper should be paired with at least one specific image selected from our web site or of the authors choosing. Presenting authors will initiate each presentation in the context of this image, and the images will appear with each article in a published volume. Images can be drawn from a wide range of contexts: Rodney King news photographs, Hitchcock's Rear Window, video, webcams, paintings, Bentham's diagrams, Cinema Verite reality television, home security, etc. Each rresenter will be responsible for securing copyright permission for the image(s) they choose, other than those provided at the web site. Participants are expected to attend the full day and a half symposium.

This project is supported by the a NSF Science and Technology Center, Team for Research in Ubiquitous Secure Technologies, NSF CCF-0424422, with additional support from Cisco, HP, IBM, Intel, Microsoft, Symmantec, Telecom Italia and United Technologies. in part by the National Science Foundation under TRUST grant #0424422.

Official Statement from ICANN NomCom

ICANN has issued its official announcement regarding the work of the ICANN Nominating Committee this weekend.

Another Transatlantic Experience Goes Bad

I was detained in Frankfurt.

Not in the sense of being arrested, but in the sense of being delayed: the plane had some sort of mechanical problem with the pilot's window, and it took many hours to repair. By the time we arrived in Chicago, the last flight to Miami was long gone, so I am stuck in an airport hotel. And very very tired. And have to get up very early to make the 6:30 am flight to Miami.

On the bright side: since my luggage was lost for more than a day on the way out, I still have a full set of clean clothes...

The ICANN NomCom activities that took me to Frankfurt are covered by a very strict confidentiality agreement; when the official statement issues about this weekend's meeting (tomorrow?) I'll post a link to it. The actual results of our deliberations won't be public for some time.

Given all these travel woes, I do feel I have been suitably punished for this unpaid volunteer activity.

Off to Frankfurt

I'm on my way to Frankfurt today, where I will do hush-hush stuff for the ICANN NomCom. It's possible I will have very limited Internet access for the next few days, especially today and Sunday which are travel days. And even if I do have access, I probably won't have much time to use it. If I have a chance, however, I will post something about my airport experiences.

Meanwhile, I've queued up a few posts to keep things going.

Caroline is going to PUSH

I get invited to some pretty cool events, and even manage to go to some. But I'm not sure I've ever been to an event quite like the one my wife and colleague, Caroline Bradley, is going to in Minneapolis: PUSH 2006. Billed as "an experience first, a conference second," they say it's about the future,

Well, it's happened. The dizzying and accelerating changes we've experienced over the last 100 years have finally brought us to the brink. It's no longer sufficient to say we're undergoing some changes, a few pokey paradigm shifts. Folks, we're in the process of redefining life itself.

Reality, unreality, creation, spirituality, identity, power and meaning--our basic core human experiences are in a state of flux and redefinition. And what a wild ride it's going to be.

Speakers from all over the world will gather at PUSH 2006 to discuss reality, its virtual variations, genetics, politics, biological miracles, ethics, emerging forms of social organization, and the questions such change raises for us all.

Caroline's topic (which is something about money, the new financial order, and virtual worlds) is under the rubric "Social Dances: Networks, Power, and Meaning". And people are going to pay $1,300 to hear her.

What We Learn from Google in China

Open Internet Policy "don't be evil" an albatross around Google's neck is Danny Weitzner's excellent account of the highlights of one of the more interesting panels at CFP this year.

John Young, Man of Mystery

Several times over the years I've attended conferences where John Young, the proprietor of Cryptome, was registered to attend, but no one ever picked up his name tag.

I was thus very pleased to see that John Young was scheduled to lead a BoF (birds of a feather session) at CFP at 10pm Thursday night. I extricated myself from the bar punctually at 10 (incidentally, Foggy Bottom Ale is a boring beer), found the Monet ballroom...and there was no John Young. I don't know if I and the rest of the group who turned up to hear him talk about the ways in which log files tell tales all went to the wrong place, or if he didn't show, but I still haven't met him.

Update: John writes to say that no one ever told him that the BoF proposal had been accepted. Grrrr....

Update(2) Here's what he posted at cryptome.org:

Well, nobody told me my CFP BOF proposal on log file betrayal had been accepted, and there was nothing on the CFP website about it. Earlier, a CFP talk proposal on Cryptome's updated report on field testing of DC-area intelligence facilities security had been rejected, so I figured I was dead to the opinionshapers.

Log files are the dirtiest secret of the Net. Debate about them would have been funny but not that funny, cruel but caring about denial of Net log file spying by com, edu org, blog and individuals -- the greatest threat to privacy and completely unregulated, and because unadmitted and disclosed more criminal than the data-gathering by spooks and the ususal suspects so beloved to point fingers at. Got any idea what the finger-pointers do with their log files, who they are shown to, sold to, stolen by? The hoary argument that administrators need them to protect their systems is no different and no more trustworthy than what the spooks and search-engines proclaim about protecting their victims.

It's been said before: Privacy policy is a deception if log files are kept, and nobody tells the truth about them. Privacy policy is means to hide log file exploitation for ad hits, for funding, for meeting spying contract terms, for feeling superior.

No way to avoid the plague except to diconnect: Anonymizers keep log files, produce them upon demand or for a fee, some admit it, liars swear no way, never. Proxies are penetrable and traceable. Crypto is crackable and trackable. Your 24x7 cybersecurity firm is cooptable by a covert deal. Your sweetheart aint.

Notes from CFP

Although I haven't been in too many years, CFP is probably my favorite conference for three reasons.

One is sentimental. Back in the day, when I was trying to decide if I should make my hobby my job and try to write about computer law, despite never having taken a course in it and a total lack of relevant legal practice experience, I noticed a conference announcement on one of the USENET groups I frequented (yes sonny, this was before spam and before the web) for the third CFP, and noticed that a couple of the panels were on legal topics. So I figured I'd go to see what the state of the art might be. With the exception of Stewart Baker, then the general counsel of the NSA, the state of the art was fairly dire. And while Baker was smart and eloquent, I disagreed with much of what he said. I went home convinced that I could play in this league. (In a nice piece of ksimet, Baker will be speaking this evening.)

A second reason is that CFP has the greatest hallways. There are some conferences where people spend every minute in set-piece events, but CFP builds in some shmooze time. Plus lots of us never make it into the plenaries. I remember one glorious CFP when I missed every talk but my own. But I learned a lot. Indeed, the price of missing the talks is not as high as you would expect: CFP has great presenters, but the level at which the talks are pitched is if not elementary at most intermediate -- it is a public and interdisciplinary event, one in which experts try to popularize what they know. I find when I go to the talks, I learn the most about the subjects I care about the least, because I have not studied them myself. In first two hours here, just chatting with folks, I learned several things relevant to my work; and the pace has barely slackeened since -- when I'm in the hallways.

And the third reason is social. I can't think of another event where I see a larger number of friends, colleagues, and kind people who over the years have been good enough to explain things to me. It's a chance to catch up, and learn about the new and exciting things they are doing. Not to mention the new people: last night, at the EFF reception I spent a wonderful half hour chatting with Vernor Vinge, one of my favorite science fiction writers. He doesn't look or sound as I would have imagined, but he's every bit as interesting to talk to as one might have hoped.

It has been a very, very long time since I attended a conference at which I wasn't speaking. Being a speaker imposes a brutal rhythm on an event: nervous before, tired after. How much more fun to kick back and be a passenger for once!

Off to CFP 2006

I'm off to CFP 2006 today, which is being held in Washington DC. If all goes well, I'll be there by lunch time. See you there?

"Mixed" Blogging Considered Dangerous?

One last bit of fallout/navel-gazing from the law profs' blogathon. During my talk I made a point of noting that I don't really consider most of what I do here as part of my scholarly activities. Mostly it's my hobby. I do consider my classroom blogs part of my teaching, and ICANNWatch is the sort of informed activism that professors list under "service" when accounting for themselves to Deans. I do post some serious stuff here -- but mostly about topics outside my main areas of specialty.

Larry Solum is skeptical:

Academics should be free, just as free as anyone else, to blog recreationally. Of course. But academics should also be free to pursue blogging as a form of scholarship. This leads to an interesting question: can free form blogging be combined with scholarly blogging? My off-the-cuff reaction to this question is "no." Or at least, "probably not." One reason for this answer is simply practical. Academic blogging mixed with free form blogging is hard to differentiate from blogging that does not aspire to the standards of scholarship--that is, to rigor and an intentional focus on truth. A related point is that it will very difficult for academic administrators to decide how to reward mixed blogging. And if blogging isn't rewarded, then it will tend to fade away, because academics will tend to gravitate towards those scholarly activities that do receive extrinsic rewards. This is especially likely to be true for those who don't yet have blogs and who face large start up costs before their blogs can attract significant numbers of readers.

Now comes Larry Ribstein to suggest that Solum has underestimated the danger of "hobby blogs":

My concern is that there will be pressure from two directions to, in effect, professionally legitimize these blogs by giving their authors credit in retention, promotion and compensation.

First, entertaining blogs get more downloads, recognition, higher USNWR rankings, etc. Might we be heading for the day when the dean tells the faculty, don't bother with with the law reviews; work on your movie reviews?

Second, scholarship, as Randy Barnett pointed out at the conference, is hard work. So is a lot of blogging (e.g., Larry Solum's). But hobby-blogging is fun. Though at the end of the day, we get a lot of satisfaction out of good scholarship, we might be tempted, before the end of the day, to substitute hobby-blogging for scholarship, particularly if our schools reward us for doing that.

I'm concerned, therefore, not about hobby-blogging itself, but that blurring the line between hobby and work may have negative consequences for our work as scholars. After all, incentives matter.

Ribstein's proposal is characteristically hard-edged: don't claim academic credit for your hobbies (so far, so good) and clearly separate your scholarly blogging from your hobby blog; maybe even on two different blogs. You might think, given the above, that I'd agree, but while I see no harm in it, I also see no reason at all to demand this strict separation. If you have an audience for your movie reviews and occasionally slip in something serious, it seems to me that the worst that will happen is that your serious thoughts will get a wider audience. This is not so terrible. The second-worst thing that can happen is that you will drive away part of your audience. This too is not so terrible: if people are interested in what I think for whatever mysterious reason, they better get used to the idea that I sometimes think.

Eric Muller, responding to Solum's earlier post, mostly disagrees. He starts by admitting one real problem: "mixed" blogs confuse some people. Lots of people. And Eric's wonderful blog is a great example -- I can't for the life of me figure out why I usually get included among lists of law blogs yet he often does not. His blog, after all, even has "legal" in the title!

Anyone who has been around lawyers knows that they love to pigeonhole ideas and speakers almost as much as diagnostic physicians like to classify symptoms into known diseases. But that's the risk we take. That doesn't mean we have to pre-screen ourselves.

Indeed, as Eric notes, sometimes mixed blogging works very very well, at least judging by the market metric of hit counts (a metric I personally find increasingly suspect). Eric's final point is interesting also: he suggests that the "mixed" lawprof blogs which best succeed in the market for eyeballs form a pattern: The most highly successful "mixed" lawprof bloggers, he notes, "all blog from, and to a readership primarily on, the political right," although, as Eric admits, why that should be is a bit of a mystery.

Blog Conference Meta-Blogging

Here's an addition ot my earlier list of blog conference related posts:

• Roger Alford, Quotable Quotes at the Harvard Blogging Conference
• Doug Berman, If you love blogging about blogging about blogging... and the meatier (and more controversial) Historical reflections on the law blogging conference
• Han, Bloggership: Blogging as Legal Scholarship
• Christine Hurt, Wrapping up the Bloggership Conference
• Orin Kerr, Blogs and the Legal Academy: A Response to Larry Solum
• Mike Madison, Two Conferences on Blogs and Law
• Daniel Solove, The Harvard Bloggership Conference in a Nutshell

Please add any I've missed via the comments!

Tell Us How You Really Feel

Earlier this week, many of my colleagues at UM mentioned that they had heard I would be speaking here -- more than ever noticed my participation any four more meaty conferences of your choice. Is it the trendiness of the topic, or the quality of the pre-conference publicity?

Brian Leiter explains why he stayed home: although invited, "I was too busy and ... I didn't really want to attend a conference on what strikes me as a topic of no intellectual interest." Personally, I wouldn't put it quite that harshly.

And I find the complacent elitism of this comment irritating:

The other main limitation of blogs as forums for serious scholarly debate ... is that only a minuscule number of first-rate legal scholars in any field actually blog on scholarly topics; indeed, if you subtract the Chicago faculty blog and Balkinization, "miniscule" may overstate the number of leading lights in their fields who blog in their areas of scholarly expertise (you can probably count the remainder on one hand).

This seems to me to be wrong on two levels. First, in some fields, IP for example, many of the leading figures are bloggers. Second, why should one assume that the traditional measure of worth is the right one? Why not celebrate the possibility that new tools and methods of communication might allow new voices to come forward to prominence? That said, I have to admit that there is yet to be much evidence (at least among law professors) that blogs have done much to subvert, rather than reproduce or reinforce the existing hierarchies.

And I do have the feeling that there's a lot of brain power here being focused on ... less than one might wish. None of which means it's not a fun event, or interesting in various ways. It's nice to see old friends. It's good to put faces to names. And it's been entertaining to see that, at least in this crowd, there are a number of people who are far more obsessed with blogging...

Of the conference papers I've read so far, the ones I would recommend most strongly are Larry Solum, Electronic Paper Blogging and the Transformation of Legal Scholarship and Orin Kerr, Blogs and the Legal Academy. But I haven't had a chance to read them all yet.

[PS. Note to my lunch companions. Among other things, this post is an empirical test of certain claims made at lunch.]

Froomkin's Bloggership Conference Slides

Here's a link to my slides for the 'bloggership' conference.

Bloggers Blogging the Blog Conference

So far I know of the following people who are blogging this event (I'll update if I find more):

• Gordon Smith
• Ann Althouse
• Eric Muller (who should have been invited, but is not thus disabled from commenting...)
• Larry Solum, and here, and here and many others I imagine.
• (Update, as noted in the comments): Tim Armstrong -- very nice summaries.
• [Update 2:] The Wall Street Journal's Blog just turned up in time to blog about Glen Reynolds, who appeared by teleconference (and spoke about libel law).

And oh boy they are already referring to each other. This has a circular cast....

Also relevant, sort of, Howard Kurtz Media Notes Extra which is about blogs "because I believe it has become the most vibrant, innovative and controversial form of information delivery in the media world today."

Blog Conference Today

I'm at the Berkman Center's conference on "Bloggership: How Blogs are Transforming Legal Scholarship." There's a webcast if you are looking for a way to avoid thinking about studying for or grading exams.

I'm on the second panel, due to start at 11, as a discussant. With the moderator's permission, I plan to take advantage of the podium to announce a new project. More here later after I've gone public at the conference.

PS. I hate the word "Bloggership."

Meet the Bloggers

I will be attending the Harvard Law School Berkman Center conference on blogging and legal scholarship tomorrow and Friday.

As part of the fun, Eugene Volokh is organizing a Thursday evening get-together between bloggers and (one hopes) readers from about 9 pm to about 11 pm in the Zephyr Lounge of the Hyatt Regency Cambridge, 575 MemorialDrive.

I'll be there, as will

Ann Althouse, Althouse
Randy Barnett, The Volokh Conspiracy
Howard Bashman, How Appealing
Douglas Berman, Sentencing Law and Policy
Paul Butler, BlackProf
Paul Caron, Taxprof
Eric Goldman, Technology & Marketing Law Blog
Gail Heriot, The Right Coast
Christine Hurt, Conglomerate
Orin Kerr, The Volokh Conspiracy and OrinKerr.com
Peter Lattman, Wall Street Journal's Law Blog
Jim Lindgren, The Volokh Conspiracy
Betsy Malloy, Health Law Prof Blog
Ellen Podgor, White Collar Crime Prof Blog
Larry Ribstein, Ideoblog
Gordon Smith, Conglomerate
Dan Solove, Concurring Opinions
Larry Solum, Legal Theory Blog
Eugene Volokh, The Volokh Conspiracy

If you are a reader of this blog, and live within striking distance of Cambridge, Mass, I'd enjoy meeting you. Whether you want to look under the hood of this blog is of course up to you.

"Well, there's your problem"
(cartoon by Edward Koren)

Off to Boston

I'm leaving for Boston shortly in order to attend what promises to be a really interesting symposium organized by the Boston College Law Review on Owning Standards. I think that the conference organizers and moderators (Profs. Lawrence Cunningham, Joe Liu and Fred Yen) have done something very clever: they've identified an important but under-theorized topic and are focusing attention on it. Not only do I get to see a bunch of smart and nice folks, but I hope to learn a lot too. And the weather forecast says it will only be cold at night.

In Which I Speak on 'Blogger Ethics'

If you are in the Coral Gables area today at 10:10 am, you can catch me speaking on the odd topic of "blogger ethics" (and how these compare to journalists' ethics) at the UM School of Communications School Courtyard, as part of Communications Week.

As the interloper from across the street, my job is to raises blood pressures. So I'm going to suggest that there are three types of bloggers: Professionals, Pro-Ams, and real Amateurs.

For the professional blogger, whose blog is part of the job, the ethical rules that apply are (1) Don't hide your affiliation with your employer and (2) follow the rules that apply to your job/profession.

For the Pro/Am blogger (e.g. a part-time freelance journalist, some academic bloggers), I think that the rules are basically the same, although it's probably important to be especially clear as to how you see yourself, so that readers know what to expect you to act more like a pro, or more like an amateur. That's for example why I say my blog is "personal", and I pay for my own hosting rather than using UM equipment -- I see myself as an amateur, a hobbyist, and want to be seen that way, whatever the traffic implications.

But for the real amateurs, the large majority of bloggers, the ethical rules are the same ones that you bring to daily life: Don't lie (do correct errors), cheat, or steal (link instead!).

I suspect there may be special issues for the under-18 blogger, but that's mostly about not hurting yourself, rather than about not hurting others.

There are of course far more bloggers than journalists, so we'd expect a few bad apples here and there, and they certainly exist. But overall, I wouldn't be surprised if bloggers had at least as good ethical behavior as journalists, since they aren't in the grip of a role morality and can just act as people. (OK, done the blood pressure thing.)

If time permits I'll also say a few words about some hard calls that come up in blogging, notably comment management issues. For example,

• When is it ok to censor comments spontaneously (this one is easy -- always so long you are clear in advance about your policy, apply it fairly, and make it clear what you are doing when you apply it)
• What do you do about blogger swag -- people actually send me stuff sometimes in the hope that I'll blog about it!
• Someone emails you and asks you to delete a comment about them that they find hurtful, what should you do? (very contextual, and thus very difficult)
• Someone emails you, claiming to be the person who posted a particular comment two years ago and asks you to modify or delete it, what should you do? (this one is hard - you don't know if they're really who they say they are, and it may depend a lot on what it said)

And I will make a heroic effort not to talk about the Subject I Am Not Supposed To Talk About.

---

If you want to read more on this topic, good places to start (i.e. folks I pretty much agree with) are cyberjournalist.net's proposed code of ethics and Rebecca Blood on Weblog Ethics.

To Minneapolis

I am off to Minneapolis to give a 'works in progress' talk to the law faculty. Usually, when I go places I try to bring something nearly finished even if it's touted as a 'half-baked' talks series. This time, maybe for the first time, I'm bring a true work in progress, which does make me slightly nervous.

It's an article I wrote a strong first draft of some time ago (quite a long time ago in Internet years), and then set aside because I thought something was missing. I've started updating it now, with an eye to finally getting it out the door. But I still think it's missing something.

Maybe talking it over with a room full of smart folks will help me find that missing ingredient. Or maybe I'll just look silly.

It's a very short visit -- I get back to Miami around midnight Thursday -- but I gather I will need my coat.

Life's Little Disasters

Disaster struck late last night, just after I finished reviewing my slides for my second presentation at FC06 (I got roped in as a substitute for Stephan Brands in the panel on Identity Management; would that I were a real substitute for one of the word’s top crypographers!).

I’d started preparing my talk at home, and had six pages of notes that I was gradually turning into slides. After I finished the last slide while sitting propped up in the hotel bed, I got out of the bed. In the process I slipped, and while flailing around my arm caught the neck strap (laniard) that is attached to my USB drive. The force wrenched it out of its slot on the side of my laptop, ripping it into two parts: the memory part came apart from the metal tongue, which remained in the usb slot of the laptop, complete with dangling bits of metal strip that had formerly joined the RAM to the tongue. I got the metal out of the laptop, but that was it for my data.

Humpty dumpty was not going to be put back together again. And what backups I have are on my desktop in Miami, not on my laptop. (I do hope I have a recent backupl of my calendar, or I'm going to miss some meeting or deadline...)

So, starting around 11pm, I had to reconstruct an hours’ talk from memory and redo about thirty slides. The resulting version had, I’d guess, about 85% of the content of the original and only a few of the cute pictures. And of course I was pretty tired when I gave the talk in the morning. The audience was kind, but the subject is fairly depressing and I think we had more fun yesterday.

On the bright side it didn't actually rain yesterday, and the sky looks OK now, although it seems a little hot and sunny out right now to go walking anywhere, and we're a ways from the beach.

The Weather is Here

I arrived in Anguilla late last night, after a journey that was longer, and thus more unpleasant, than it needed to be. To add injury to insult, I got to the hotel about five minutes after the bar closed, so no dinner nor even consolation drink for me.

Shortly after I went to bed it began to rain torrents, but it was very nice this morning when I awoke (7:30am -- 6:30am Miami time -- if you want breakfast, these cryptographers are not into sleeping late, it seems), if a bit windy. And there are now some ominous clouds in the distance.

The cryptographers are here in force, and surrounded by all this beauty seem intent on giving life to every geek stereotype: the hotel’s conference room, a sizable facility with modern projection gear, is located in the sole basement, and appears to have no natural light whatsoever (the better to see your slides by, my dear).

Myself, I’m playing hooky on the first session, and enjoying the view from my balcony. With wireless access.

(Only fly in the ointment: in just the time I've typed this, including a ten minute break to check the headlines, those big dark clouds have covered another 30% of the sky and now block the sun. I think we’re in for it. Hmm. Basement might not be so bad after all...)

Off to Anguilla

I'm off today to Anguilla, a beautiful small island in the Carribean (near St. Maarten), where I'll be attending the annual Financial Cryptography '06 conference sponsored by the International Financial Cryptography Association. I attended the very first Financial Crypto conference ten years ago, and had a great time. Now I've been invited back for a tenth-year retrospective.

Yes, I hear you thinking, it's a tough life being a law professor. But consider: it takes seven hours just to get to Anguilla from Miami. And the forecast is for pretty solid rain all week.

Even if it rains, it will be wonderful to see some people I'd lost touch with as crypto moved off the front burner of my academic writing. I used to write a lot about the regulation of cryptography, including The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995), Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases, 15 U. Pitt. J. L. & Com. 395 (1996), It Came From Planet Clipper, 1996 U. Chi. L. Forum 15, and of course Digital Signatures Today in Financial Cryptography 287 (Rafael Hirschfeld ed., 1997) (Springer Lecture Notes in Computer Science vol. 1318), a write up of my talk at FC #1. Nowadays I write more about things that use crypto than about crypto itself.

Blogging may be quite light for the next few days. Meanwhile, to tide you over, here's an abstract of the talk I'll be giving, called "Are We All Cypherpunks Yet?":

Ten years ago we said "cypherpunks write code". Many, many lines of code later, cypherpunks often wear suits and answer to titles like Vice-President or CTO. The US has loosened its controls on crypto export, but we're still waiting for a large scale deployment of digital cash. Tim May's infopocalypse has yet to arrive, although his Four Horsemen, the "terrorists, child pornographers, money launderers, and drug dealers" have been joined by a powerful fifth entrant, the evil content pirate.

Ten years ago law enforcement was scrambling to catch up with new technology. Today they have their sights firmly on key physical, legal, and social chokepoints in the information infrastructure. And it remains true that from the point of view of intermediaries trying to acquire content, an encrypted message bearing value usually is indistinguishable from one carrying star warez, Star Wars™, or the plans for star wars, the weapon system. And strong end-to-end crypto still doesn't come with Windows™.

Today, even if the details remain a little murky, we now know (instead of just fearing) that the NSA isn't just spying outside the US -- it's spying on US citizens too. What is more, the current US administration asserts that its powers to eavesdrop exist independent not only of Congressional authorization, but Constitutionally superior to any Congressional effort to stop it.

Meanwhile the President of the Untied States asserts the authority to arrest anyone, anywhere (including domestically), to hold them for as long as he wishes, and -- if they are non-US citizens captured abroad -- to subject them to treatment most people would not hesitate to call torture. Here too, the administration sometimes suggests that its powers are plenary and subject to neither international law nor even Congressional diminution. Are we all cypherpunks yet? And is it too late to matter?

Noooooo. Another Good UM Symposium.

The University of Miami Law Review is pleased to invite you to its 2006 Symposium titled, "The Schiavo Case: Interdisciplinary Perspectives." The Symposium is designed to examine the issues that survive the Terri Schiavo case, including basic questions that may affect the structure and perceptions of our legal system, from a variety of interdisciplinary perspectives. We will address this situation from standpoints that include ethics, therapeutic jurisprudence, family law, Florida and United States constitutional considerations, judicial independence, economic implications, disability law, executive branch power, media influence, and government responsibility. The Symposium will feature academics and practitioners from around the United States representing both the legal and medical fields. The Symposium will begin at 9:00 am on Saturday, February 18th, and will include breakfast, lunch, and a cocktail reception.

Make them stop. I have work to do.

When Am I Supposed to Get Work Done?

In addition to everything else, there’s a ton of good seminars coming up in the law school and nearby on campus. For example:

• An ethics seminar series on "Confidentiality and the Professions" being presented by visiting scholar Ronald Goldfarb, starting Thursday, and being held both at the Coral Gables campus and the medical school.
• "Dreaming of Democracy," a symposium in honor of my colleague D. Marvin Jones’s recent book: Race, Sex, and Suspicion: the Myth of the Black Male (Praeger 2005), Friday, Feb. 17, from 2-5pm in the law school, room E352.
• A Symposium on "Wrongful Convictions: Psychological and Legal Issues" on Friday, Feb. 24, starting at 1pm in the law school, room E352.

More information about these seminars:

Confidentiality and the Professions

The University of Miami Ethics Programs' "Confidentiality and the Professions" is a university-wide seminar series featuring Distinguished Visiting Scholar Ronald Goldfarb, a Washington, D.C. attorney and author who served in the 1960s as a member of Attorney General Robert F. Kennedy's Organized Crime and Racketeering Section of the Department of Justice. The series, which is open to the University community and the public, will address issues in law, medicine, pastoral care, journalism, information technology, and other professions.

A series of eight seminars will be held on Thursdays at 3 p.m. on February 9 and 23, and March 9 and 23 on the Coral Gables campus, Department of Philosophy conference room on the seventh floor of the Ashe Building; and February 16 and March 2, 16 and 30 on the medical campus, Mailman Center, Room 5003.

Dreaming of Democracy

In the 2000 election thousands of qualified voters, in overwhelming disproportion blacks, were disenfranchised because the Secretary of State mislabeled them as “ex-felons.”

In January 2005, Ward Connerly obtained all the signatures necessary to place on the ballot a referendum ending affirmative action in the State of Michigan. It is expected to pass. An underlying theme in this debate is the argument, articulated by THE BELL CURVE, by Sander and others, that blacks are inferior academically and are lowering standards. Thus, they argue in effect the stereotypes are true.

In a similar vein in the aftermath of hurricane Katrina, black survivors of the storm, perhaps searching for food and clothing, were portrayed as looters by at least one Southern governor.

These events thematize a stubborn tension: blacks still continue to suffer from invisibility and marginalization in the midst of progress. The Supreme Court and many state legislatures nonetheless pursue policies of color-blindness, arguing that the playing field has been leveled, that race no longer is relevant. In his recent book, Professor Jones deals powerfully with this duality or conflict between the notion of formal equality and the lived experience of African-Americans.

To address these timely issues, The University of Miami School of Law has convened a panel of nationally renowned legal scholars to discuss the topic of Race and Democracy, using the text of Professor Jones’ work as a backdrop for analysis, dialogue and debate.

Anyone interested in the emerging field of Critical Race Theory, the Constitutional and social issues raised by the 2000 election, the renewed attacks on affirmative action, the disparate treatment of the hurricane victims, or the future of civil and political rights for minorities and people of color in the 21st century should attend this symposium.

Panelists

Linda Greene, a California native, is Evjue-Bascom Professor of Law at the University of Wisconsin Law School where she teaches Constitutional Law, Civil Procedure, Legislation, and Civil and Constitutional Rights seminars. Professor Greene, a graduate of Berkeley Law School, is one of the founders of the Critical Race Theory Movement. She is the President-Emeritus of the Society of American Law Teachers and President of the Midwestern People of Color Legal Scholarship Conference.

Bryan Fair, Professor of Law at The University of Alabama Law School, received his B.A. from Duke University in 1982 and his J.D. from UCLA in 1985. He teaches Constitutional Law; Race, Racism, and the Law; Gender and the Law; and First Amendment. He writes primarily about race. He also served as an assistant vice president for academic affairs at the University from 1994 to 1997. He is the author of Notes of a Racial Caste Baby: Colorblindness and the End of Affirmative Action (NYU Press 1997).

Kenneth Nunn, Professor of Law at Levin College of Law, University of Florida, received his B.A. from Stanford University and his J.D. from the University of California at Berkeley. A former Associate Dean at the University of Florida School of Law, Professor Nunn has taught also at Makerere University in Kampala Uganda and at Washington and Lee School of Law. Professor Nunn has written numerous articles concerning the intersection of race and the criminal justice system.

Kathryn Russell-Brown is Professor of Law and Director of the Center for the Study of Race at the University of Florida in Gainesville where she teaches the Sociology of Crime and Criminal Law. Ms. Brown holds a J.D. degree from the University of California at Hastings and a PhD from the University of California at Hastings.

Jeremy I. Levitt is Associate Professor of Law at Florida International University. Professor Levitt holds a PhD from the University of Cambridge, St. John’s College and a J.D. from the University of Wisconsin. Professor Levitt has written extensively including an acclaimed book entitled the Evolution of Deadly Conflict in Liberia: from Paternalism to State Collapse.

Professor Pat Gudridge
Presenter, Introductory Remarks

Professor Marnie Mahoney
Moderator

Professor Mario Barnes
Discussant

Professor Zanita E. Fenton
Discussant

Wrongful Convictions: Psychological and Legal Issues

Despite the protections built into the American criminal justice system, innocent people continue to be convicted for crimes that they did not commit. This result runs counter to our commitment to the principle that it is far better that ten guilty people go free than that one innocent person be convicted. What insights from science and psychology can help us to minimize the potential of wrongful convictions? What legal and professional ethics reforms are needed? This symposium addresses these issues.

Order of Program

Introduction
Bruce J. Winick, Professor of Law, Professor of Psychiatry and Behavioral Sciences, and Director of the Institute on Law, Psychiatry and Psychology at the University of Miami.

Reforming the Legal System to Minimize Wrongful Convictions
Janet Reno, Former U.S. Attorney General

The Psychology of Eyewitness Identifications: Implications for Criminal Law
Dr. Gary Wells, Iowa State University

Innocent on Death Row: an Odyssey of Injustice
Juan Melendez, Exonerated from Florida's Death 'Row on January 3, 2002

Professor Winick is the co-founder of a field of social inquiry known as Therapeutic Jurisprudence, and is the author of numerous books and articles, the latest of which is Civil Commitment: A Therapeutic Jurisprudence Model (2005). Additionally, he is the legal advisor of Psychology, Public Policy, & Law.

Symposium Panelists

Janet Reno is the former Attorney General of the United States, a position she held from 19932001. Appointed State Attorney for the 11th Judicial Circuit of Florida for Miami Dade County in 1978, she was elected and re-elected to that position five times. She is the former Staff Director for the Florida House of Representatives Judiciary Committee, and is currently serving on the Board of Directors of the Innocence Project.

Juan Melendez was sentenced to death in a Polk County, Florida ourtroom on Sept. 21, 1984, after being convicted of robbery and murder. Without any physical evidence implicating Juan, the prosecution's case rested solely on the testimony of two questionable witnesses. Despite strong evidence of his innocence, the Florida Supreme Court upheld Juan's conviction, on three occasions. Sixteen years after his conviction,, newly discovered evidence demonstrated that Juan was an innocent man. After 17 years on death row, he became the 24th person released from death row in Florida, and the 99th nationwide.

Dr. Gary Wells, Ph.D., holds the title of Distinguished Professor in the Department of Psychology at Iowa State University. Dr. Wells is an internationally recognized scholar in scientific psychology and his studies on eyewitness memory are widely known and cited. He has authored over 150 articles and books. His research on eyewitness identification has been incorporated into standard textbooks in psychology and law. He has also served as an expert for the defense, prosecution and plaintiffs in criminal and civil cases across the United States and Canada. In 2004, Professor Wells was elected President of the American Psychology & Law Society.

Amnesty International Conference at UM Law Feb 25

Amnesty International will be holding its Florida State Conference here at the Law School on February 25. The deadline for registering is Feb. 13, and you can do so online.

I'll be there to listen to the impressive roster of speakers, including Ricardo Bascuas, Donna Coker, and Steven Vladeck from our faculty.

Notes on EU Center Arbitration Seminar

I attended a seminar downtown today on "European Union Law and U.S. Business: Front Line Issues of International Dispute Resolution" sponsored by the UM EU Center (with help from the UM law school), and Greenberg, Traurig.

It was an unusually high-quality event, but as arbitration law is something of a specialist taste, you'll have to click "there's more" to read my notes from it. (Unless of course you get the full feed, or followed a link to this post, in which case you get to enjoy the whole thing right now.) I'm interested in this stuff because back when I was in private practice, I worked in the London office of US law firm doing international arbitration, and have very occasionally since then acted as an arbitrator.

Joaquin Roy, holder of the Jean Monnet Chair, led off a round of introductions with an introduction to the European Union Center -- one of only ten in the US. The center has, as part of its current cycle of activities, sought to expand beyond its traditional focus on political science and into law and business.

Jan Paulsson, a partner at Freshfields's Paris office, an internationally renowned leader in the international arbitration bar, and currently a visiting professor of law at the University of Miami spoke on "Some Controversies Involving EU Law and International Dispute Resolution". He got the audience's attention by promising to say "some scandalous things". And, compared to the usual lawyers' talk, he did.

Prof. Paulsson began by noting how much EU harmonization initiatives are displacing common law in many areas -- even contract law is on the drawing board. While the harmonizers claim they are not drafting a European code, what they do often ends up looking just like one, and the contract effort -- being drafted by academics, not by legislators -- looks much like one also, even though they continually disclaim it. They call it the "CFR" - common frame of reference (which, I thought, would confuse US lawyers, who know CFR as the "code of federal regulations) -- for 'non-sector specific references', which Paulsson said amounts to a transnational code. As this document gets more familiar, and if the European constitution ever gets adopted, along with its ideas of social solidarity and other peremptory norms, then one might see those norms infusing how contracts are interpreted. If it were to become the default rule for interpretation, it could be very influential. And it's notable that the document is being drafted without need for adoption by any elected body. [Here are some links on the CFR, as collected by Diana Wallis, a British MEP]

As an example, he gave us the English Owusu case [see the case summary], which concerned two English persons’ contract for rental of a villa in Jamica. Renter had an accident there and alleged that lessor should have warned him of the dangers of the ocean in front of the property. Defendant wished to implead several Jamaican persons. The English court thus had to consider if this might be a an occasion for forum non conveniens; the court said that Jamaica would have been the right place to hear the case under English law given the location of the evidence and the witnesses, but the trial judge held that European law didn't let him transfer the case. The panel of the court which heard the case was composed, as it happened, entirely of civil lawyers -- who may have had no experience with forum non as practiced in the common law system. And they held that European law didn't recognize this principle of judicial discretion, and the case should be tried where the defendant resides in order to protect his expectations. The problem, of course, is that forum non applications are always by the defendant -- so there is no expectations interest of his to protect, something the court seemingly didn't comprehend.

Thus, a race to the court house - the "Italian torpedo" as it has come to be called: a party fearing being sued runs to an Italian court, files there, and happily waits some ten years for that court to even decide if it is the right court to hear the case. Thanks to the European doctrine of lis pendens, this has become an effective blocking strategy for guilty people.

Well, what if the parties have agreed a forum in a contract. See the Gasser case [phonetic spelling] in which the contract specified Austria, but the Italian party filed in Italy anyway. The UK intervened in the case in its own right, and said that contractual choice of forum clauses should not follow the usual rule that the first filer rule controls; instead the court mentioned in the contract should be allowed to determine whether the choice of forum clause is valid. In the alternative, the UK argued that the specified forum should be allowed to take the jurisdictional matter if the first court unreasonably delays. The Court, however, rejected both theories.

Can a would-be plaintiff get an anti-suit injunction when faced with a 'torpedo'? Short answer, no.

Does this mean that parties should choose NY law to protect their interests? Paulsson didn't say, but just left that dangling.

Or, perhaps, the answer is to choose arbitration clauses with forum clauses which are more likely to be respected by the courts since the EU courts will not apply to that? Perhaps. The EU convention on recognition of judgments excludes arbitration because they expected a separate convention to occupy that field. But only Belgium and Luxembourg signed the latter, and only Belgium ratified it, so it is meaningless. But the NY Convention covers the field to a large extent; and all EU members accept it, so that may answer the problem? No, says Paulsson, "it ain't so": there is an inevitable collision between the NY convention and the EU rules -- on the very lis pendens issue in the "Italian torpedo" style facts.

The award may be enforceable under the NY convention, but the judgement of the court may have primacy under the Brussels convention.

Yet, while this is a problem one reads about, it doesn't seem to happen frequently in real life -- Paulsson says he's never encountered one in his practice. It's like a "pink rhinoceros": scary if you saw one on the street, but you don't see them.

He concluded by noting proposals to include arbitration in the Brussels convention; amending the NY convention would be too difficult. But sub-groups of members to the NY convention can draft protocols to it for relations among themselves. And the EU states could add to Art. 2 of the NY convention, without touching art. 5 (enforcement) on a national basis. And it could create a role for the ECJ. He described the following specific proposals for amendment drawn from an academic article whose name I was unable to scribe: (1) Eliminate the arbitration exception; (2) Exclusive jurisdiction of lex arbitri should be recognized - let the contract control--if the argument is about where the contract specifies, there are some problems that remain to be solved; (3) having removed the arbitration exception, but in a "true arbitration exception": no other court should get involved until the properly allocated court has decided the validity of the agreement; (4) once there is a valid award, no judgment should be enforced that is incompatible with it (a form of res judicata), just as with ordinary court judgments.

---

Ramon M. Mullerat, OBE, spoke next on legal ethics issues in arbitration proceedings. He noted some disturbing judgments from European national courts which might cut against ordinary ethical obligations, such as rules on disclosure. Then there are national differences on issues of lawyer advertising and fees (can a Bulgarian client pay non-Bulgarians more than domestic arbitrators? If not, they either go broke paying everyone the same, or pay so little that they cannot get foreign arbitrators since domestic fees are so low) . Not only do the national rules differ on ethics issues, but some of the arbitration institutions have rules that vary substantially.

But there are common features to all the rules, e.g. the independence and impartiality of arbitrators. (Although some rules do it less explicitly than others.) In that, arbitrators are treated more like judges than lawyers. He contrasted the European rule with the US rules which he said used to let party-appointed arbitrators discuss some matters with their appointing party. Today, he said, the US rules now seek neutrality on the part of all arbitrators.

The International Bar Association has guidelines for conflict of interest in international arbitration, which create disclosure requirements. National ideas of what constitutes a conflict differ widely: is being a member of the same tennis club as a party a conflict? The IBA approach was to divide conflicts into four groups: (1) Non-waivable conflicts (the "non-waivable red list"), e.g. being counsel for a party; (2) The "waivable red list": Waivable conflicts that require disclosure, and explicit knowing waiver (e.g. arbitrator has a relative related to a party); (3) The "orange list": Matters that require disclosure, but failure to object will be considered consent; (4) and, the "green list": Matters that do not require disclosure.

He then described the Council of Bars and Law Societies of Europe (CCBE). He noted that US/Europe have differences that matter, e.g. on attorney-client privilege. In the US the client can waive it; in Europe the privilege is sometimes absolute and non-waivable, as it is considered to be a privilege that belongs to society. But fee-sharing agreements are much more rigorously policed in Europe than the US. Europe limits lawyer advertising; used to be an absolute bar, now there are signs of a slow movement towards allowing some of it. In Europe, lawyers have an obligation to tell clients about the option of settlement options and ADR when this might save the client money. In parts of Europe, especially France, conflict of interest rules prevent lawyers from being on the board of a client and other 'incompatible occupations'.

The envoi was particularly interesting: the future, he predicted, will bring new strains on conflicts of interest and independence as firms grow and are more global, and as legal service firms ('the Tesco lawyer") become mass-market providers. [I'm afraid that here my notes don't do the talk justice.] Already, the ECJ has held that in-house counsel can't claim legal privilege on the grounds that the lawyer is not independent of the employer and hence can't be acting as a true lawyer. The issue is coming back to the ECJ which may get a chance to reconsider. Another live issue is Patriot Act type monitoring of suspects' talks with their lawyers. Still another: the 'gatekeeper initiative'; Europe has three directives which require lawyers to report even mere suspicions of money laundering. Similarly, the Sarbanes-Oxley requirements of lawyer "noisy" withdrawal if the board of a client is not taking certain kinds of advice. And, the "worrying" rule in the sentencing guidelines that waiver of attorney-client privilege may be taken into account to reduce sentence -- creating an incentive to undermine the duty of confidentiality.

His final words were to recite the classic advice on how Americans can impress Europeans: when visiting, dress like the French, speak with authority like the Germans, and only mention Presidents Lincoln, FDR and JFK. (And, he added, cite to the rules of the CCBE.)

---

Then, Pedro J. Martinez-Fraga, the Chair of the International Litigation and Arbitration Practice group at Greenberg Traurig, spoke on "Amendments to the NY Convention and the convergence of European civil law and US common law cultures in modern commercial arbitration".

Despite the title, one theme of the talk was also cultural differences between civil and common law lawyers. One cultural difference evident from the talk, and indeed noted in the paper in the conference materials, was that US lawyers like to do stuff on paper: the European speakers provided only outlines; Mr. Martinez-Fraga had a very nice paper, with many footnotes. Europe has more of an oral culture.

Another theme, counterposed to the first, was convergence. Within Europe, of course, the court has seen its role as encouraging convergence. This is evident in criminal as well as commercial law.

In arbitration, he said, there is a "fundamental problem" as regards civil/common law legal/cultural differences, notable when one faces a mixed panel of arbitrators. The problem is that we don't have actual convergence.

1. How to explain the difference between dicta and a holding when showing a civil lawyer a decision of the supreme court. How to explain the weight of a concurrence and a dissent? Or the weight of a recent appellate court decision versus an older supreme court case?

2. How to explain to civilians when courts interpret a statute differently from its seeming plain meaning? Or might be likely to do so even if the statute hasn't been interpreted yet? (Even the sophisticated civilian lawyer will say, "courts are not supposed to make law" and the statute is plain -- why look to the court decisions?)

3. How to explain the role of the Restatements to civilians? Civilians are only too happy to grab on to something that looks like a code and is written by academics and the ALI -- but they need to understand that it is not law, but at best only persuasive.

4. How to explain what a court would do if the US state has no law on point. A court might well adopt a rule from another jurisdiction. Lawyers have an obligation to raise this potentially persuasive authority, but will civilians know how to evaluate it.

5. Civilians expect an inquisitorial proceedings; common lawyers are used to a more passive judge in an adversarial proceeding. Common lawyers expect to have an opening argument, to call witnesses on direct, and to cross-examine witnesses. Civilian arbitrators may find much of this offensive. Not to mention the idea of a rebuttal argument...

6. The ICC Rules and the UNIDROIT Principles tell arbitrators to use 'relevant trade usages'; this helps.

7. The panel in an arbitration has jurisdiction to decide the relevant law.

8. In civil law the case is seen to start from the filing of the complaint; the common law sees the real start at the opening argument [Personally, I wasn't sure I saw this as quite as sharp a difference].

9. Rules for taking evidence differ greatly. US lawyers want depositions to set up cross-examination; that is not congruent with the civilian tradition.

---

John H. Rooney, Jr., who in addition to being a partner at Shutts & Bowen, and Chair-Elect of the Florida Bar International Section, is also an extraordinarily energetic and effective adjunct professor of law at UM Law, spoke on the enforcement of international arbitral awards in Europe in the US.

[Alas, by this point, my fingers were tired, so my summary is much more summary.]

There are, Mr. Rooney noted, a lot of potentially relevant agreements. And, the US doesn't have UNCITRAL model law articles 35 or 36 as apart of our law. We do, however, adhere to the NY Convention, and the Panama Convention, more formally "The Inter-American Convention on International Commercial Arbitration". Even so, US rules on vacation and confirmation of arbitration awards differ from the norms in Europe (and even from the norms under the NY Convention). For example, an arbitration between two US parties about foreign property or foreign performance might fall under the NY convention. Or it might not, depending on where the arbitration takes place. If it took place abroad, it's clearly a NY convention case. If it took place in the US, and one party is foreign, some courts will treat that as a "foreign" award and apply Art. 5 of the NY convention, at least in part. The issue is the applicability of art. 10 of title 9 of the US Code for the vacation of the award. That statute gives a short list of possible reasons to vacation, and even contemplates a possible remand. Plus there are three court-created reasons to vacate: violation of public policy, manifest disregard of law, [here my notes are unclear as to what Mr. Rooney gave as the third reason, but I have read US cases which cite two other rationales, that award fails to draw its essence from the contract or that it is arbitrary and capricious; these are of course very similar] but do these apply to NY convention cases? US courts of appeal are not unanimous on this question.

[There was lots more, including a summary of interesting recent cases, but I didn't write it down. Similarly there was a very spirited discussion after the lunch break, with different views expressed on the likelihood of real convergence or even a single global legal system; some participants said our grandchildren would enjoy it; others aid it was certain to come, but the date was uncertain, others were rather more skeptical. One commentator went as far as to note that it took the Romans 800 years to get the Code of Justinian -- "and by then it was too late" interjected another.]

Arbitration Conference Today

I'm attending a great seminar downtown today on "European Union Law and U.S. Business: Front Line Issues of International Dispute Resolution" sponsored by the UM EU Center (with help from the UM law school), and Greenberg, Traurig. If I am organized about taking notes, I may post them later...

Join Me at the MIT Real ID Conference

Join me today, in person or virtually, at the MIT Public Forums on the REAL ID Act of 2005.

IP/IT/Cyber- Conference Blog

Michael Madison writes,

I have set up a blog to track IP, IT, and Internet-related academic conferences.

The URL is http://madisonian.net/conferences/

Send conference announcements and save-the-date messages to
madison@law.pitt.edu

Suggestions for improving the resource are welcome.

I think this is a great idea. Thanks, Michael!

So here's my first suggestion: in addition to the blog/RSS announcements, we need a way to display a calendar of forthcoming events in calindrical form. Right now, the calendar in the right margin shows the date you posted the announcement, not the date of the event.

If nothing else, I want an easy way for people to check that the date they are planning to have their event isn't already taken.

Meta-blogging State of Play III

There was a lot less on the blogs about the conference than I expected. The Terra Novans, for example, were (like me) too busy attending to write about it. Perhaps that is the sign of a really good conference.

Urs Gasser had thorough pre-conference thoughts. James Taylor Lewis Grimmelmann, The State of Play is Strong, best captures the flavor of the event, although Community Mobilization, hightlights another important aspect. Torill Mortsen reports on the debate I participated in,

And the audience like this debate. This is the topic that has this audience rocking, to the point that they actually line up in front of the microphone in order to ask questions or participate in the discussion. This is, if nothing else, good academic/intellectual theatre!

Exactly.

Summing Up 'The Great Debate' at State of Play III

The so-called 'Great Debate' at State of Play III asked two stellar teams to debate the following proposition:

A legal system based on geography, territory and physical force is inappropriate for Virtual Worlds

I had the uncomfortable task of summing and declaring a winner.

[This is the second of three posts on State of Play III conference. The first was my notes from the ‘The Great Debate’ at State of Play III, with an outline of what the panelists said. The third post will be about the conference more generally.]

Here's more or less what I said:

Introduction

When Beth Novak asked me to be "judge, jury and executioner" for this event, I understood the assignment to mean that I was supposed be a potted plant for the bulk of the debate, then sum up and award prizes to winners. I agreed because I don't like to say no to Beth, but the trouble is, I am friendly with and indeed admire the people on both sides of this debate, and if I have to pick winners, it means I also have to pick...losers. And I don't like the sound of that. So you can imagine how cheerful I was feeling yesterday when I mentioned this problem to Beth, and she said that, yes, I 'was a fool to agree to do this'.

My initial idea to get out of it was to try to find a baby and cut it in half, but instead I decided to outsource the task of selecting the victors, leaving me with just the task of summing up. So I have put up a page at http://poll.umlaw.net in which I invite the audience here and online to act as a virtual jury and vote as to their views in this debate. You are asked to vote only once....and if you think there is a legitimacy issue with this decision method, well, that's something to consider when voting.

This has been a very rich debate. It seems to me that there have been four emergent themes.

I. Law is about violence

The first theme is that law is about violence, in two senses. The first is the commonplace that law is how we control both lawful and unlawful violence. The second is, as the late Rober Cover taught us, that law is 'juripathic', that law is also about the destruction or delegitimation of world views that are not recognized as belonging within society.[1]

II. Different visions of the autonomy issue.

The debate revealed three different visions of the possible legal autonomy of Virtual Worlds. Much of the confusion in the discussion seemed to me to be due to confusion between these three things people meant when they spoke of this possible legal autonomy.

In one view, whatever 'autonomy' enjoyed by Virtual Worlds come about because the Virtual World has been, in effect, ceded a degree of self rule (contractual or otherwise) BY A SOVEREIGN as regards those persons subject to that sovereign. You might describe this as the autonomy being 'granted' or 'recognized' or 'sub-delegated',

A second more, normative, view argues that the temporal authorities have no right to impose their will on Virtual Worlds.

A third, more positive vision, states that national sovereigns cannot impose their will on Virtual Worlds, even if they might wish to.

The differences between these visions matter. A consequence of the first vision is that whatever autonomy is granted is easy to revoke. It also accepts the role of law in the background, characterizing bargains within a Virtual World as ultimately taking place in the shadow of the law. The second vision makes a strong legitimacy claim; conversely, the third--although not leading there inevitably--lends itself to results which are illegitimate.

III. Choice of Law

Another thing that emerges is that questions about what law applies to Virtual Worlds are often a special species of the arcane legal genre known as choice of law. Traditionally, courts resolve choice of law problems with particular attention to location, but there are also many other relevant factors. Another aspect of the Virtual World choice of law question is the extent to which allowing a different answer for a Virtual World than one might have 'elsewhere' is the possible distributional consequences – are we going to have a different law for the people who have the money to run a computer with an expensive graphic card.

Finally, choice of law is sufficiently arcane that it is often obscure to the end user, not just to regular folks but also even to large corporations who sometimes discover in litigation that the court takes a different view of what law applies than their lawyers had advised them would be the answer. (This is even more the case for P2P applications, which do not even have a central and persistent location to which the law can latch on.) This obscurity leads to...

IV. Legitimacy

Here the debate is easy to caricature. On one hand we have those who characterize their opponents as saying, "government...brought to you by SONY" or, more positively, who assert that, as Victor put it, "democracy is better than the shopping mall". On the other hand we have those who see a rich, bottom-up, user-determined social and legal structures. And then we have the audience here reminding us that EULAs are not consent, that they are contracts of adhesion, that no one reads them anyway, and that they are thin reeds on which to base a theory of legitimacy.

Lurking alongside all this is a parallel idea that games are about play, that there is a purity to play that is only sullied when the law intrudes into a game.

V. A Verdict?

Before going to the verdict, let me offer a recharacterization of the underlying elements. One could characterize the division between these two panels as "optimism v. pessimism," or "Austinians v. radical 'bottom up' democrats," or perhaps as "Muggles v. the Ministry for Magic".

On the one hand there is the optimism of those would claim the Virtual Worlds as virgin jurisdictions. In this view, these new breakaways create an opening for new flowerings of the human spirit. For example, David Johnson argued that as normative matter Virtual Worlds should be deferred to, if only by sovereigns using their powers, even if not positively required. Indeed, David argued that Virtual Worlds could become more democratic than regular democracy. The hope is that law making in these new spaces will be decentralized in its creation, and yet also constrained by other decentralized forces including the ability to vote with one's feet or with one's mouse.

Contrast this view with the worldly pessimism that defines where the other side begins. Unhampered by naive optimism, there seems no escape from crime and fraud, and even if there were a way to escape the rules we have painfully built up over decades, rules designed to control Holmes’s "bad man," that escape would only lead us to worlds of greater pain. This legal world we have now is, the pessimists tell us, more or less as good as it gets. Any improvements will be hard won and at best incremental.

[At this point we checked the vote and found the jury more or less deadlocked, although in fact the "nos" had a small edge.]

[I therefore took on the task of choosing the winner.]

I take on this task of picking the victors as a pessimist who wishes he were an optimist; a believer in bottom up democracy who is not an Austinian; a Muggle who would love to cast spells.

As such, I will award the prize to the affirmative -- even though I don't agree with them -- because without them there would be no debate.

And yes, at last I have managed to find a baby to split.

---

[1] Robert Cover, The Supreme Court, 1982 Term--Foreword: Nomos and Narrative, 97 Harv. L. Rev. 1 (1983)

My notes from the ‘The Great Debate’ at State of Play III

As the "judge, jury, and executioner" for the ‘Great Debate' at State of Play III, I was required to sum up the debate. This required me to take extensive notes during the discussions.

The panel was set up as a debate on the following proposition:

Resolved: A legal system based on geography, territory and physical force is inappropriate for Virtual Worlds

My notes as to what the other speakers said are below. Alternately, watch the 'Great Debate' from the online archive.

[This will be the first of three posts on State of Play III conference. The next will be what I said as a summation of the debate. The third will be about the conference more generally.]

What follows is an only very slightly cleaned up copy of my real-time notes. "VW" means "Virtual Worlds".

Please note well: Comments in [brackets] are my notes to myself of my ideas or my reactions to the speakers, NOT what the speakers actually said.

Dan Hunter (moderator): VW's are much more immersive today than in the day of Lambda Moo.

David Post: The proposition is almost self evident
  A.   [Making a positive claim that to my ear sounds like Lon Fuller] To be 'law' or a 'legal system' the rules must be ex ante comprehensible and one must have notice about which rules apply; but this is hard in VWs (esp. ex ante) Hence any application of an arbitrary nation’s rules to a VW is 'not law'
  B.  [normative] Why should territorially based law apply to sale of VW asets? And what would give Sovereign X the right to apply its law? In principle only consent could do this [Even if we do it to the non-consenting all the time? Policing?]
  C.  Individuals and not states are sovereigns [sounds like the common law courts movements. Does he mean to sound like those nuts?]

II. Joel Reidenberg. Post is ridiculous. [i.e Reality bytes.]
  A.  There is an inescapable nexus between VW & physical world
    1.  Users are people
      a.  They exist in a location
      b.  There is an infrastructure which they are embedded in
      c.  There are commercial/social exchanges that blur the border
    2.  The above facts implicate state interests
    3.  Investments of time, energy & money have physical aspects
  B.  State public policy deserves to be vindicated
    1.  Germany can ban Nazi games;
    2.  US can ban kiddi porn

III. Richard Bartle
  A.  Real world rules constrain ... but these constraints are based ultimately on force
  B.  When you play a game you agree to play by the rules [implicit: contract out of other laws/rules?] ...
  C.  Game rules apply based on consent..
    1.  Hence game rules are MORE legitimate than rules made governments based on force- don't rely on force, rely on consent
  D.  Virtual property - is it like real property? Well, virtual worlds look like a world, why can't it be property held in a different world?

IV. Viktor Mayer-Schoenberger: issue is who makes the rules?
  A.  Origin of copyright is fear of control by publishers
    1.  Beware media monopoly
    2.  What is legitimate, who makes the rules?
  B.  Democracy is hard - things are they way there are as the result of a long evolution

V. David Johnson
  A.  Our essay was entitled Law AND BORDERS
    1.  Geographic borders are a lousy way to organize choice of law
    2.  What about our right to travel?
  B.  Digital force is more effective than physical force in VWs
    1.  Also allows people to avoid contact when they don't want it.
  C.  'Law is a story that we tell each other'
    1.  [Law is made by the volk, we grow it]
  D.  VWs can become more democratic in a way than reg. democracy
    1.  VW democracy has a form of decentralized action
    2.  Easier to vote with feet / mouse

VI. Tim Wu
  A.  RE physical force: there is a demand for law based on physical force
    1.  Cf. E-bay. Wanted online-only dispute resolution
      a.  Works for large % of cases
      b.  But there are some bad actors who don't care, want to steal
      c.  No remedy for them within the e-bay world; must resort to traditional force-based rules
  B.  VWs are like any community
    1.  Most of the time we don't want the law in there
    2.  But the background law underlies their existence & makes them possible
      a.  Need stable rules underneath to protect the servers and the players, to prevent fraud and acts of "the bad man"

[There were also a number of excellent questions from the audience, including one pointing out the EULAs are an odd form of 'consent']

How Others See One

It's always a bit of a shock to find out how others see one. Take, for example, this World of Warcraft avatar that Dan Hunter picked to represent me to the audience at State of Play:

I will try to post a tidied text of my talk soon.

[Update:] It seems that I'm a Tauren, and maybe that's not so bad:

The Tauren are huge, bestial creatures who live in the grassy, open barrens of central Kalimdor. They live to serve nature and maintain the balance between the wild things of the land and the restless spirit of the elements. Despite their enormous size and brute strength, the remarkably peaceful Tauren cultivate a quiet, tribal society. However, when roused by conflict, Tauren are implacable enemies who will use every ounce of their strength to smash their enemies under hoof. Under the leadership of their ancient chief, Cairne Bloodhoof, the Tauren allied themselves with the Orcs during the invasion of the Burning Legion. The two races have remained steadfast allies ever since. Like the Orcs, the Tauren struggle to retain their sense of tradition and noble identity.

State of Play Virtual Jury

Later today - probably shortly after 12 noon - I'll be part of a panel that will be debating the role of (terrestrial) law in virtual spaces. On side will be the enthusiasts who will argue that mundane law has little or no useful role to play in regulating behaviors in massively multiplayer online role-playing games. What rules are needed, I would argue in their shoes, will be provided by the game designers, the End User License Agreements (EULAs), and most importantly via emergent behavior as between the users. If I were on the other side I would say, when it's just a game, we play by its rules, but as we get to things which involve exchange of valuable commodiities, even virtual ones, when we are talking tort, trademark violations, stalking, and so on, then the fact that you happened to use a fancy graphics card to help perpetrate it should make no difference.

Here's the line-up:

Richard Bartle, Creator of MUD
Dan Hunter, Wharton School, University of Pennsylvania (Moderator)
David Johnson, New York Law School
David Post, New York Law School
Viktor Mayer-Schoenberger, Harvard University - School of Public Policy
Joel R. Reidenberg, Fordham University - Law
Tim Wu, Columbia - Law

My role, foisted upon me, is to sit like a potted plant for most of the debate and then sum up. The official title is "Judge, Jury and Executioner". The problem, though, is that I have good friends on both sides of the panel. And executioner sounds sooo tacky. So for days I have been looking for a baby in hopes of being able to cut it. No luck.

The good news, however, is that I have found a very state-of-play kind of way to weasel out of the ugly part of this job: I've set up a virtual jury room, and the people in the audience with laptops (and those of you at home following along on the webcast can vote on who you think s winning (won) the debate

Live At State of Play

Caroline is giving her talk at State of Play as I type this.

Photo credit: David Froomkin


It's being webcast.

State of Play III

Caroline and I will be speaking at the State of Play III conference that begins tomorrow, so we -- and the boys too -- are off to New York until Sunday. Caroline is talking about financial markets in virtual worlds. My role is more in the entertainment line, as I've been asked to play the role of judge in "The Great Debate" -- a mock trial format concerning the role of terrestrial law in virtual worlds. (Since I have rather violent views on that subject, it's at once flattering and frustrating to be trusted to do a neutral summing up and to rule on who made better arguments. Worse, I have good friends on both sides of the debate.)

State of Play I was one of the best conferences I've ever attended; I had to miss SoP II, so I'm looking forward to this very much. [I blogged an amusing incident from SoP I under the title How Not to Pick Up Women Online. One unanticipated consequence was an absolute horde of visitors to the site who had googled for that phrase minus the "not".]

For State of Play I, Caroline and I wrote our first joint paper, Virtual Worlds, Real Rules (background and more background). In it we argued that Virtual Worlds would make excellent environments for subjecting various classes of proposed legal rules to near-real-world testing. It was intriguing therefore to hear on NPR this afternoon that sociologists and epidemiologists may run simulations of plague-induced behavior using games such as World of Warcraft (avian flu anyone?) -- an idea that alas they do not seem to have gotten from our paper but rather from an actual virtual-life incident.

It will be the first conference in years that Caroline and I have tried to attend together, and just to make it more exciting we are taking the boys with us, also a first since when they were very very small. We have lined up a very small amount of child care, but mostly we're going to be relying on our own, and the boys', resources.

Trendy as all get out, State of Play III will be podcast as well as webcast.

Meanwhile, blogging may be sparse...

National ID Forum Underway

MIT's online forum on the Real ID Act is underway. In an attempt to stir a little controversy, I just posted the following under the title 'Consensus and Controversy', which I reprint here for those not following along. While you're welcome to comment here too, I urge those interested to Join the Real ID forum discussion.

---

Here are a few propositions that I think might form a basis for going forward in reasoned debate.  (I of course welcome debate on the accuracy of these propositions as well as the conclusions that might flow from them)

Base propositions:

1.  A national ID is not the magic bullet that will make the country safe from terrorism.   Given the very poor controls we have on birth certificates at home (not to mention the impossibility of relying on the quality control foreign credentials) it at most it creates a speedbump for foreign terrorists who will need to get phony versions of the credentials used as the basis for issuing the US ID.

2.  A national ID system cannot secure our borders.

3.  A national ID system can, however, assist in making illegal immigration more unpleasant for immigrants by, for example, making it more difficult to employ them.   All other things being equal, this should reduce the incentive for that part of illegal immigration driven primarily by economic considerations.

4. More generally, a national ID system has some substantial potential to be the cornerstone of a national fraud-prevention system.   

5. A national ID system potentially creates new avenues for super-fraud and highly effective identity theft.

6. A national ID system potentially creates new avenues for governmental dossier creation on all citizens who use the national ID.  These opportunities exist even if the system is not misused, and are greater if it is misused.  As Lee Tien put it"'national ID' is not a card, but an entire system of databases, information gathering activities, and human beings making fateful judgments about individuals based on that overall system."

7.  A National Research Council report ("Who Goes There -- Authentication Through the Lens of Privacy") noted this:

Finding 6.5: State-issued driver's licenses are a de facto nationwide identity system. They are widely accepted for transactions that require a  form of government-issued photo ID.

Real ID substantially increases the likelihood that driver's licenses will become a defacto national ID for an even greater range of offline and online transactions.

8.  The extent to which we reap the costs and benefits listed above is very sensitive to how the system is actually implemented.   For example, a well-implemented biometric identifier makes fraud and identity theft more difficult, but also makes it more devastating when it happens since people become more reliant on the ID's security (and it is hard to grow a new retina).

Am I correct that the above propositions are (in the abstract) uncontroversial, and the controversy is in fact about how big and how likely the positive and negative effects are, and how they compare to each other?

Or, as Dan Combs put it in his contribution,

1. REAlID done right = good

2. RealID done wrong = very bad

3. The bar is high for such a system to be good.

        We aren't close yet!

I will add the following personal observations, which I suspect might be more controversial than the above:

I.  For any ID system to be implemented competently (let alone in a fashion that inspires trust) supervisory authority must be taken out of the hapless Department of Homeland Security.

II.  For Real ID to be implemented competently it must have federal funding rather than being left to the states as an unfunded mandate.

III.  Real ID driver's licenses are likely to become a de facto national ID -- much more than current driver's licenses -- not just because of the federal pressure driven by national security needs (or rhetoric) but also because of commercial pressure from a variety of industries.

IV. The ID must be transparent -- end users must be able to read everything coded on the ID itself. 

V.  If we are going to have a real or de facto national ID card, all citizens must have a right to review and correct information held on them in both public and private dossiers linked to the ID.

(For more about what I think, see my paper, The Uneasy Case for National ID Cards.)

MIT REAL ID Forum Online

I'm going to be participating in the MIT REAL ID online Forum this week, and you're invited. Here's the description sent out by co-organizer Daniel Greenwood, Lecturer, MIT Media Lab and Director of the MIT E-Commerce Architecture Program:

Your digital identity and physical identity may be about to merge under a new federal law that requires a standard federally controlled identity card. You are invited to participate in the first Real ID Forum, convened by the MIT Media Lab and MIT E-Commerce Architecture Program. The Real ID Act of 2005, as enacted by Congress and signed by the President, sets up a new federally controlled driver license that can be read by computers according to common national standards. This raises many public policy, technical and business problems and prospects. The act is binding starting in less than three years.

The first forum is on online discussion, facilitated by experts in the relevant fields, and taking place from Monday, September 19th at 3pm Eastern Time through Friday, September 23rd. Is the Real ID going to be a National Identity for the USA? Does it represent the ultimate convergence of physical identity cards and your digital log in? Are the privacy, civil liberties and administrative issues addressed adequately? How should the various competing interests surrounding implementation of the Real ID Act be balanced? These are among the questions that will be addressed in the online Forum. There will also be a face to face meeting, held at the MIT Media Lab in November, 2005. To find out more information and to register for this free program, please see http://ecitizen.mit.edu/realid.html

The tracks and moderators include:

Track 1. Real ID And National Convergence of Physical and Digital Identity (facilitated by Dan Combs, President of Global Identity Solution)

Track 2: The Need for a Secure Driver License (facilitated by Colleen Gilbert, Executive Director, Coalition for a Secure Driver's License)

Track 3: The Need for Privacy and Civil Liberties (facilitated by Lee Tien, /Senior Staff Attorney, /Electronic Frontier Foundation)

Track 4: Practical Implementation Issues (facilitated by David Lewis, Former CIO, Massachusetts and President of American Association of Motor Vehicle Administrators)

Track 5: Balancing Interests Going Forward (facilitated by Professor Michael Froomkin, University of Miami School of Law)

In addition, there will be a section of the web site called What is Real ID? This is where we'll house the background information on the Act itself.

While you are encouraged to register and participate from the start of this event, we will be accepting new participants throughout the week. Again, to find out more information and to register for this free program, please see http://ecitizen.mit.edu/realid.html. We sincerely hope you will join us for this important and timely event.

My track won't actually get under way until Wednesday, but it all promises to be interesting and informative.

The Symi Symposium

Thursday the family leaves for Greece. By Sunday we will be in Crete, where I will have the good fortune to be part of the eighth annual Symi Symposium run by the Andreas Papandreou Foundation, a philanthropy headed by PASOK President George Papandreou. The Symposium is being held at a nice location near Rethymnon.

Here's the official description of what promises to be both interesting and idyllic:

The principle theme of this year’s Symposium is New Challenges to Democracy in the 21st Century. Participants will explore issues such as the democratic deficit in western countries; the role of technology in helping (or hindering) democracy; globalisation and its challenges to democratic institutions; views on democracy outside the West; the impact of terrorism on democracy; and how the relationship between religion and politics is being redefined.

The Symi Symposium, currently in its eighth year, is organised by the Andreas G. Papandreou Foundation. Its purpose is to bring together progressive politicians, academics, activists and intellectuals to exchange views on issues of importance to the global social democratic agenda.

The Symi Symposium is void of the constraints and formalities of typical conferences. Convened every year at a different seaside resort, it nurtures spirited debate in a discreet setting. Participants come from all over the world, and their varied backgrounds animate formal and informal discussions. In years past, the Symi Symposium has fostered ideas that have taken shape in the form of significant progressive political and public service initiatives.

I find that I learn the most at events where there is a substantial chance for informal interaction (the fewer speakers at meals, the better!). The program here — several days with a half day of scheduled events, then a half day of informal time — shows that the organizers understand this.

And, yes, I do know how lucky I am!

Building the Bottom Up from the Top Down

Below you will find the introduction and the final section of the conference draft of "Building the Bottom Up from the Top Down," a paper that I'll be giving at a seminar in Paris this weekend.

As always, I look forward to learning from your comments.

Update: It's not posting properly, so I've placed it in a separate file. Try: Building the Bottom Up from the Top Down.

This Week's Events

I'm going to be leaving Tuesday evening for the GDR TICS - Workshop Governance, Regulations, Powers on the Internet being held in Paris on Friday and Saturday. I'm going to queue up a few things that have been lying around, but I don't expect to blog much while away.

Fortunately, I've secured the services of my very favorite UM colleague to serve as a guest blogger in my absence.

Update: And a good thing too, or I might have had to switch to Autoblogger (spotted via Joi Ito).

Call For Papers on "Federal Secrecy After September 11 and the Future of the Information Society"

This sounds interesting — and important.

I/S: A Journal of Law and Policy for the Information Society seeks research papers for a special Fall/Winter, 2005 issue on the theme, “Federal Secrecy After September 11 and the Future of the Information Society.” This issue will be published with the support of The Century Foundation, which has received a grant from the John S. and James L. Knight Foundation to promote scholarly inquiry into the impacts of government secrecy. We are open to topics within any discipline, and would be especially receptive to multidisciplinary research in this domain.

Examples of possible topics include:

• The impacts of secrecy in various domains (e.g., transportation, facility vulnerabilities) on national security
• The impact of secrecy on public safety preparedness
• Historical patterns in government secrecy
• The impacts of the 2001 amendments to the FOIA
• Government secrecy behavior after September 11 compared to other wars
• U.S. government secrecy behavior in comparison with other democracies
• Secrecy before and after the end of the Cold War
• Is current secrecy policy a consequence of September 11 or an extension of Aministration policies antedating September 11?
• The impact of government secrecy and scientific research
• The impact of government secrecy and the impact on innovation
• The impacts of secrecy on public attitudes
• The interplay of federal secrecy policy with state and local open government policies

Proposals should offer original work that has not and will not be previously published in another venue. The work should not simply offer the author’s opinion, but shed significant light on the topic presented through the rigorous presentation and analysis of evidence. We envision that completed articles should be roughly 10,000 words each, exclusive of references (but including textual footnotes). Depending on the number of meritorious proposals received and accepted, honoraria in the range of $750.00-$1000.00 will be offered for completed works.

I/S would also be pleased to receive proposals for shorter, less formal essays, of no more than 5,000 words that represent advocacy or more preliminary analysis, although we will be unable to provide honoraria for such works.

Please forward proposals, no more than 1-3 pages in length, to Sol Bermann, Managing Editor of I/S, at bermann.1@osu.edu. The deadline for proposals is WEDNESDAY JUNE 1, 2005. Decisions will be made by June 15, 2005, and the deadline for accepted manuscripts will be August 1, 2005.

I/S: A Journal of Law and Policy for the Information Society is a new interdisciplinary journal of research and commentary concentrating on the intersection of law, policy, and information technology. I/S represents a one-of-a-kind partnership between one of America's leading law schools, the Moritz College of Law at the Ohio State University, and the nation's foremost public policy school focused on information technology, Carnegie Mellon University's H. J. Heinz III School of Law and Public Policy. For additional information about I/S, see www.is-journal.org.

I'm on the I/S editorial board, and will probably submit a paper proposal if I can get the #$# grading done in time, but I'm not an editor of this symposium so I can't take the credit.

Mid/Late July Conferences?

I'm going to be in Crete for a very nice seminar in mid-July. Before I book my tickets, I was wondering if there is anything going on between here and there during the week of the 17th that I ought to think of dropping in on?

On the subject of conferences more wonderful than I deserve, I will be in Paris — my favorite city! — for a too-short visit at the end of May, arriving the 25th and leaving that Sunday. The conference is the 27th & 28th, leaving me a day and a half free beforehand to look up a few old friends and obsess about my slides. (Mais si il y a quelqu'un a Paris qui lis ce blog, envoyez mois un message électronique.)

See You at MIT, Eventually

This is going to be an extremely busy week, so I'm not going to be able to fly up to Boston for the Time Travelers' Convention.

However, I do hope to have an older version of myself attending soon.

Liveblogging of 'Flow' Conference

James Grimmelmann and others at LawMeme are liveblogging the Global Flow of Information conference.

Plumbing the Depths

This weekend I'm going to be attending the Yale Information Society Project's conference on Information Flow. There's a great line-up of speakers (although remarkably few women), and interesting papers.

Unusually, the topics were more or less assigned by the organizers. Between that, and the assignment to aim for 5-10 pages (much shorter than my usual academic effort), the writing seemed much more difficult than usual.

If you'd like to see how I did with my assignment to write about “Information as Governance,” have a look at the conference draft of Plumbing the Depths.

PS. As this is just an early draft, comments are especially welcome.

Ottawa Update

Marc Rotenberg is talking right now. He has much better slides than the rest of us. There's been a running joke through today's conference about people joking that I'm gloomy, and he's Pollyanaish. He denies it, though. Although he did say this morning that he thinks I read the Supreme Court's cases too gloomily…

And he has a great riff on the name of his panel 'Life During Wartime' in which he re-writes the song. I'm hoping he'll email me the lyrics. Or someone will do a parody/cover…

My Slides From the 'Concealed' Conference

There's wifi here, but all I can get is http, not ssh or sftp. So I haven't been able to upload my slides to the fast(er) server at UM. But that's ok, there's a workaround.

Here, since a few people at the conference claimed interest, is link to my Powerpoint slides Anonymity Law in the USA: Latest Developments, Familiar Problems.

Ottawa Anonymity Conference

One of my first research interests was the regulation of cryptography, and this quickly led me to the equally interesting topic of the regulation of anonymity. So I'm just delighted to be attending On the Identity Trail: Understanding the Importance and Impact of Anonymity and Authentication in a Networked Society in Ottawa today, as it's jammed packed with interesting people doing great work.

The conference is joint venture of a muldisciplinary team headed by Ian Kerr that works under the rubric On the Identity Trail and faculty from the Law and Technology Program at the University of Ottawa. Talk about critical mass!

The organizers asked me to report on legal developments in the US relating to anonymity, so I'll be giving a somewhat gloomy — and uncharacteristically doctrinal — presentation at this morning's session.

Did I mention it is about 60-70 degrees colder in Ottawa than Miami?

UM Global Governance Symposium

Here's an interesting conference that I will be attending right here at UM: The Global Governance Symposium coming up this Friday. Full details below — come join us! If you can't make it in person, there's a high likelihood that it will be webcast; I'll post the details if and when they become available.

Global Governance Symposium
March 4, 2005
University of Miami School of Law, Room 209

9.00 am
Welcome Remarks: Dennis Lynch, Dean
Todd Payne, Esq., President, School of Law Alumni Association

9.15 am – 11:00 am
Chair: Professor William Twining
Professor Patrick O. Gudridge, A New World Order?
Professor Michael Froomkin, The World Turned Upside Down: ICANN and International Treaty Law
Professor David Abraham, From Sovereignty to Governmentality and Back

11.15 am -12.30 pm
Professor Frances R. Hill, Identifying Terrorist Organizations—Conflicting Standards
Professor Caroline Bradley, Private International Law-Making

Luncheon 12.30 – 2:00 pm
School of Law Student Lounge

2.00 - 3.00 pm
Professor Robert Rosen, Comparative Management of Corporate Legal Compliance,
Commentators:
Virginia Quijada, Esq., Senior Director, Oracle Consulting Services, Latin America
Marilyn Blanco-Reyes, Esq., Managing Director-Legal, Latin America & Caribbean, FedEx Express

3.15 – 4:30 pm
Chair: Professor Richard L. Williamson, Jr.
Professor Alan Swan, NAFTA’s Grant of “Direct Effect” to Investor Rights:
Structural Reform of Global Economic Governance
Professor Keith Rosenn, The Downside of Globalization

Another Good Conference I'm Going to Miss

This sounds both fun and useful: TaxProf Blog: Indiana To Host April 15 Symposium on The Next Generation of Law School Rankings

One of the many things that bugs me about US News's highly arbitrary law school rankings is the weight they put on graduates' starting salaries. One could well ask whether salaries are even relevant to rankings as the jobs that are hardest to get — public interest jobs — tend to pay the least. But even if one accepts the idea that money is relevant to ranking, it's weird to look only at nominal salary without any adjustment for cost of living. This is an enormous boost to the ranking of New York schools and a real downer for Miami's rankings. A very large fraction of our graduates fall in love with South Florida (or came here because they already love South Florida) and decide to stay. The large supply of entry-level lawyers — many Harvard grads seem to want to work here too — only worsens the historically low entry-level salaries in this town at all but the largest national firms. Yet, overall, with the exception of housing the cost of living isn't dire here, and there's no state income tax. None of that gets reflected in USN&WR's survey.

Webcast of Duke Administrative Law and Internet Conference

Duke is offering a webcast of the Duke Law Journal Thirty-Fifth Annual Administrative Law Conference panel on “The Role of the Internet in Agency Decisionmaking” available from Duke's webcast page.

Off to Duke

I'm off to Duke today. Tomorrow I'll be speaking at the Duke Law Journal Thirty-Fifth Annual Administrative Law Conference as part of a panel on “The Role of the Internet in Agency Decisionmaking”.

The Constitution in 2020

This sounds fun.

The Yale Law School and the American Constitution Society are sponsoring a conference on The Constitution in 2020. We've invited some of the foremost progressive constitutional scholars in the United States to come to New Haven on April 8-10th and talk about the future of the Constitution and our country. This is going to be one of the most exciting conferences in recent years. You can find out the details here and here

(via Balkinization)

Alas, I have a schedule conflict and can't go. And anyway, I'm going to be in New Haven the week before, attending another contender for cool conference of the season.

Mistaken Identity

Today someone came up to me and congratulated me on my column in the Washington Post, and wondered how I had the time to do it while teaching. Trouble is, that's someone else.

Off to SF for the AALS

I'm off to San Francisco this afternoon for the 2005 annual meeting of the American Association of Law Schools. I'm on two panels which is nice, but unfortunately they are very awkwardly timed, one being near the start of the conference and one being near the end. Wednesday at 2pm I'm speaking on a panel about privacy and court records; my job will be to explain the issues that the Florida Supreme Court Committee on Privacy and Court Records is mulling over. Saturday at 8:30am I'm on a panel about electronic money, playing the role of the fossil: My job is to explain why all the predictions about ubiquitous digital cash turned out to be wrong. Other panelists will talk about things like cellphone-mediated payments, paypal and starbucks money which seem to be today's wave of the future.

I would have liked to fly out tomorrow, but if the first plane out had been even an hour late, I'd have failed to turn up to my own talk. No one could object to an extra day or two in San Fransisco, could they? Well they could if the trip will gouge a giant hole in the travel budget, the weather promises to be wet, and a heavy teaching semester of classes start next week. So I'm rushing home on Saturday and missing a good party.

One of the best part of the AALS is that one gets to see lots of old friends in the hallways. If all goes well, blogging will be at best erratic for the next few days.

CFP 2005 Wants You

The Computers, Freedom and Privacy Conference 2005, has just issued its Call for Proposals.

A key part of my becoming an Internet lawyer was attending an early CFP..maybe CFP 3?…in '92? '93?…could it really be that long ago?…in order to figure out the lay of the land. I had a computer background, and a legal background, but they were fully compartmentalized parts of my history, and I had only recently thought about putting them together. (I'm certain that the idea of 'computer law' was never breathed in my hearing during three years at Yale Law School.) I wanted to know what the state of the art was. I happened upon an announcement for CFP, it sounded interesting, so with some trepidation I went.

There were a few lawyers there, but not many. Most of them seemed (forgive me, whoever you were) to be talking nonsense, or to be very uninformed about how the technologies actually worked. There was one very noticeable exception, however: Stewart Baker, then General Counsel of the NSA. He was technically clued up, he knew his law. And I disagreed with him. So I came away with the feeling that I could play in that league.

On the other hand, there were loads of technologists, and cypherpunks, and some cops, and they were all pretty interesting. I learned a great deal from them. And for several years I kept going back; one year I even found myself on the program committee.

If you want an introduction to hot issues in the intersection of, well, Computers, Freedom and Privacy, then CFP can't be beat. It's pretty good for intermediates too; experts will enjoy the hallway conversations which tend to be great fun.

A variety of circumstances, some beyond my control, have kept me away from CFP for the last few years. And once again, the combination of distance (it's hard to find a place big enough to hold a CFP that is farther from Miami and still in the lower 48) and the number of classes I'd have to cancel to go may cause me to miss it again this year. Which makes me nostalgic.

The full call:

COMPUTERS, FREEDOM, AND PRIVACY CONFERENCE PANOPTICON APRIL 12-15, 2005 WESTIN HOTEL, SEATTLE, WA

The 15th annual conference on Computers, Freedom & Privacy takes place from Tuesday, April 12th, to Friday, April 15th, 2005, in Seattle, Washington.

The Program Committee is now accepting proposals for conference sessions and speakers for CFP2005. The deadline for submissions is December 31, 2004

CFP serves as an internationally recognized forum for the members of the technical, government, hacker, legal, business, education, media, cyber-rights, and non-profit communities to address cutting edge technical, business, legal and cultural issues. Programs, topics, and speakers from prior years’ CFP conferences can be found at www.cfp.org

The CFP2005 program committee welcomes proposals on all aspects of technology, freedom and privacy.
We are particularly interested in receiving proposals that ask the hard questions about privacy and freedom in emerging surveillance societies, and challenging those assumptions. For example, how much surveillance is too much? When does surveillance cease making us more secure and begin to change the fabric of society?

The theme of the 15th CFP is PANOPTICON
Over time, and particularly recently, surveillance of ordinary citizens has increased to dramatic levels. Not only are governments watching more aspects of their citizens’ lives, but those in the private sector are increasing surveillance of people as well. Often lost in the race to “increase intelligence” are discussions about different approaches to address problems like the threat of terrorism that are equally or more effective, but do not involve extensive and constant surveillance.

In addition to topics directly related to the PANOPTICON theme, other areas of interest include:
1. domestic and international travel issues
2. communications surveillance
3. children and young adults growing up in a surveillance society
4. social networking
5. the flourishing of free speech (i.e. blogging) in spite of increased watchfulness
6. RFIDs and other emerging technologies
7. Intellectual property issues

We are seeking proposals for tutorials, plenary sessions, and birds-of-a-feather sessions.
We are also seeking suggestions for speakers and other relevant topics not listed above. Sessions should present a wide range of thinking on a topic by including speakers from different viewpoints. We particularly welcome proposals for non-traditional presentations - those that utilize drama, “mock trials,” interactivity, the performing arts, and audience participation.

Submit CFP2005 Proposal

Before submitting a proposal, please review the submission guidelines.

Select the type of proposal you would like to submit:

. tutorial
. plenary session
. birds-of-a-feather session
. speaker suggestion
. topic or activity suggestion

Submit your proposals on our web form All submissions must be received by December 31, 2004. The CFP2005 Program Committee will notify submitters of the status of their proposals by January 20, 2005.

The Meat Market Beckons

Tonight I leave for a week in the UK, a trip that will mix busineess with pleasure. My plan is to look up old friends in London and Cambridge as well as do the work that brings me there.

When I get back to Miami, I get almost two days to reorganize myself and then it's off to the AALS 'meat market' — the annual law professor hiring fair. It's only my second time there, and my first as a buyer rather than attending as a seller.

Michael Madison has a nice post on his blog about the Meat Market, which links to other helpful accounts aimed at sellers. Now if only someone would write helpful tips for neophyte buyers…

In Orlando

I'm in Orlando today, attending a meeting of the Florida Committee on Privacy and Court Records, so don't expect much blogging. We had to move the meeting to an airport hotel due to hurricane damage having knocked out the power at the original venue. I gather from the headlines in the local papers that the power is out all over the area.

This afternoon I'm to do a presentation on the collection and use of consumer data.

I'm Melting

I'm at the PFIR Meltdown Conference.. I'm here to listen and think not blog, so I don't know how many posts I'll do, but there are number of high-quality bloggers here, including:

• Susan Crawford [link improved]
  
• Wendy Seltzer
  
• Ed Felton
  
• Karl Aurbach
  

Oddly, the WiFi access in the conference is slow, but I don't know if that's here or part of today's general internet slowdown.

A Day in Amsterdam

I leave for Amsterdam on Tuesday evening, for what promises to be a really interesting conference at the IViR, the Institute for Information Law of the University of Amsterdam, this time in co-production with Tilberg University. (The joint venture between Amsterdam and Tilburg has produced a genuine Internet studies powerhouse.) The IViR could be my favorite place to go for conferences, as I always meet interesting people, and it has a lovely setting. My job is to comment on a great paper by Ronald Leenes and Bert-Japp Koops of Tilberg.

Even though I booked the tickets a while ago, the transatlantic airfares were unusually high. It turned out that I could lower the price from insane to painful by returning a day late, so in addition to my arrival day spent in a jet-lagged haze, I'm also going to have Saturday, July 3 (by which time I'll be over jet lag), free to actually tourist around Amsterdam, one of my favorite cities. As best I can recall, this is the first time in at least a decade, maybe more, that I have an entire extra day just to tourist as part of a conference trip unless I was traveling with the family. Usually when I'm on my own I book myself for fairly tight schedules, even for the transatlantic events, in order to minimize the time away from home. If all goes well, I'll be home in time for the July 4 fireworks, assuming I can stay up that late.

I spent a very happy week in Amsterdam while a grad student, so I have a pretty good idea of which museums I'd like to revisit, and just how much fun it is to walk around Amsterdam in the sunshine. But if anyone has advice on where to eat, or especially where to find WiFi hotspots I would be most grateful. Last time I went to Amsterdam I took a long list of alleged hotspots with me that I'd collated from several internet sites, and only one of them actually worked, and that was in a nice cafe but somewhat far from my hotel. And yes, it's the same infuriating hotel they booked me into last time.

'Trademark in Transition'

I'm off to Santa Fe today to speak at a symposium organized by the University of Houston on “Trademark in Transition”. This is a slightly terrifying thing to do as I do not, in my heart of hearts, think of myself as a trademark lawyer.

The other presenters are Graeme Dinwoodie, Stacey Dogan, Bill Landes, Mark Lemley and Glynn S. Lunney, so I will be surrounded by many of the stars of US trademark law, not to mention Thomas McCarthy, author of the finest US trademark treatise. What am I doing in this august company? Well you might ask. And I did. It seems, according to the organizers, that I am on the program because they wanted something a bit 'offbeat'. Now 'offbeat' is not the first word you might think of when you think of trademark law, a subject whose charms center on its basically commonsensical approach to problems and the relatively high quality of the draftsmanship of the most important governing of its statutes, the Lanham Act. (Hey, you think the Lanham Act is bad, let me introduce you to environmental law!)

Emboldened by the organizers' admission as to the reason for my presence, I have written a weirder-than-usual paper called “When We Say US™, We Mean It” which discusses who if anyone owns a country's name, and ccTLD names, and related .com names. If nobody laughs in the wrong places, I may put it online after the conference, or I may wait until I get a more polished version.

ID Standards: the Trans-National Dimension

Here's the 2-page outline of the talk I gave today at the seminar on ID cards and human rights.

Serious human rights issues can arise if foreign adopters of US technologies intend to use them in harmful ways. Even if the US were to adopt an ID requirement that was hedged with sufficient legal safeguards that it did not harm human rights values, the same technologies might be subject to abuse elsewhere. Thus, any US decision to impose ID requirements on visitors will in effect export US data collection requirements to foreign governments. In addition to creating incentives to build domestic ID card regimes where these do not already exist, the creation of a defacto standard will favor particular technologies making it more likely that these are adopted elsewhere.

I do not believe that ID cards are inherently incompatible with democratic values and human rights. Many countries in Europe have national ID systems, and while there have been accounts in which misuse of these government databases figured, it would be very hard to say that data misuse is more common in Europe than, say, in the US–which at present does not have ID cards; if anything I suspect the contrary may be true since Europe is now committed in principle to a system of data protection (even if the practice is somewhat more porous than the principle might suggest).

The debate over ID cards both at home and trans-nationally needs to take careful account of how cards relate to other types of deployed sensors, and how the data collected is stored in databases.

As our ability to collect, store, collate, search and cross-reference data increases both the potential benefits and the potential costs of a national ID regime grow. Among the serious costs is the potential for misuse. This potential is higher in countries that do not have well-developed policies for data protection, and highest in those that lack mechanisms to ensure the protection of human rights generally – or which actively are not interested in human rights. Thus, even if we can design a domestic system that gives us more of the benefits and fewer of the costs, we should also be sensitive to the spillover effects of what we are building.

For example, if the United States (or any other large economy such as the EU) were to start requiring biometric identifiers from foreign visitors, this will set a de facto international standard. Millions of people travel to the US every year. Thus, there will be a strong incentive abroad to conform when possible to US requirements. In the case of ID information, if we are going to require visitors to the US have verifiable records available in order to issue them a temporary ID card, this creates pressure on foreign governments and markets to have that data available in the form we demand. Currently that requirement is satisfied for some visitors by passports; but for many it also requires a visa and the US plans to require increased data from all visitors in the near future.

If the US requires historic biometric data, that creates pressure on foreign countries to integrate that into both new and existing domestic identification regimes in order to make it easier for their citizens to travel to the US. But even if US consular employees or their agents just take a biometric reading at the time of issuing a visa, that has substantial implications for how foreign governments will act domestically.

Second, and as important, whatever system the US adopts creates an industry to serve it. The prices of technologies that meet the US’s requirements drop relative to alternatives because the technology is proven, in use, and may benefit from economies of scale and even a 'halo effect' due to approval by the US. Consequently similar technologies are more likely to be adopted abroad simply because they will tend to appear cost-effective compared to alternatives. (Biometrics would not be the first time the US government has tried to use market power to set defacto standards for new technologies. This is exactly the strategy the government attempted, unsuccessfully with the Clipper chip. The major difference between the scenarios is that Clipper required adoption by the private sector as an initial matter to become a standard; here, as the governments have a monopoly on border control, it can set the standard more or less unilaterally)

Two conclusions flow from this short sketch, one obvious the other maybe less so.

1. Any US decision to adopt a biometric identifier for foreign visitors needs to be evaluated not just in terms of how it may meet whatever domestic US needs we are trying to satisfy, but also against the worst-case uses we can imagine in the hands of repressive regimes.

In particular, one needs to be sensitive to how the information, or more likely the requirement that the information be provided, could be used by repressive governments. An effective biometric system – at present still something of a hope rather than a reality – could be used to deny people employment on political grounds, to track movements and political associations. Combined with other architectures of control it can be used to prevent anonymous online speech, create dossiers of ‘reliability’, and even – in the really wrong hands – round people up. All of these things are possible without a strong ID system, but an ID system, especially one backed by reliable biometrics, makes them easier.

2. There are three reasons why any requirement we impose on visitors to the US substantially increases the chance that similar requirements will form part of a US domestic ID system in fairly short order:

● One of the most difficult – even intractable – issues in designing a domestic ID card system is how to integrate temporary visitors into the system. Collecting large amounts of data at or before the border goes a very long way to solving this problem.
● Just as foreign countries will find the technologies used at the US border to be cheaper and proven, so too with any plan to build a biometrically based domestic infrastructure.
● If the US imposes biometric ID requirements on foreigners, then other governments are certain to retaliate by returning the favor. This creates an incentive for the US to have a domestic infrastructure which makes it easy for US citizens to travel to those countries…and the circle is complete.

More On Privacy and Court Records

Just a few semi-random notes from the meeting I'm attending in Tampa on privacy and court records.

• Florida's open records law doesn't apply to judicial committees. Thus, although the meetings are open to the public and there's even a court reporter here writing down everything said during the two days (hired by a private law firm for its own benefit; I guess it's cheaper than sending a lawyer), groups of us are allowed to dine together socially without violating the law. Executive branch committees can't do that in Florida without violating the Open Meetings laws. Alas, it was raining last night so a group of us dined in the hotel. Good food, but no way the state's per diem will cover the bill.

• The Committee has an impressive amount of expertise. Many of the members are veterans not just of the bench and of judicial administration reforms but of several previous court committees on high tech subjects. One thing that I can’t help noticing, however, is how the dominant presentational style is North or Central Florida, rather than the South Florida I'm used to. That means people are frequently soft-spoken, vaguely Southern, almost always over-modest. Even the judges are remarkably kind and pleasant, which is not inevitable in my experience (is this a side-effect of an elected bench? Or just smart selecting by the committee organizers?).

• One of the speakers, Susan Larson, pointed us to a comprehensive web site she maintains on Public Access to Court Records, which looks like a treasure trove of material about what other jurisdictions are doing.

• I am not very impressed with the abilities of many of Florida's politicians. I am impressed with the quality of the state (not local!) bureaucracy. My dealings with people in the Secretary of State's office a few years ago on digital signature matters was a happy surprise. The people from the Supreme Court Clerk's office are even more impressive.

• The problems that the committee is charged with solving are even more complicated than I feared, especially given the thicket of relevant federal and Florida constitutional provisions (and separation of powers issuess…), statutes, rules of court, and issues of relations between courts and regional court clerks (who are separately elected and powerful local officials).

Excellent Summary of Digital Cops Conference

James Grimmelmann at Law Meme delivers an excellent Report on last month's 'Digital Cops in a Virtual Environment' Conference.

Privacy and Court Records

I'm off to Tampa early this morning for two days for the inaugural meeting of the Florida Supreme Court Committee on Privacy and Court Records.

If the truth be told, I suspect that the fundamental problem which the Committee is supposed to solve is a typical tragic choice, one with no pure solution. Thus, when first asked to serve, I expressed reluctance. But when pressed, I capitulated: service on committees like this is part of the social contract I think ought to apply to law professors.

So here I am. If there's a way to preserve the tradition of the fullest practicable public access to court records (a First Amendment right, and maybe a due process right too) in an age of cheap online full text access and also fully to protect the reasonable privacy interests of people caught up in Family Court or the like (especially pro se's who often disclose too much about themselves in their filings), I have yet to hear of it.

Some compromises are better than others, but they have resource implications that may be a tough sell in Florida. (Indeed the whole issue is quite political in this state as the revenues from selling electronic access accrue to the offices of the clerks of the regional courts, and they may well object to anything that threatens this revenue stream to their offices or imposes expensive redaction duties.)

Background reading, if you are so minded, begins with the Florida Judicial Management Council Privacy and Electronic Access to Court Records—Report and Recommendations (Dec. 17, 2001) and Florida Report of the Study Committee on Public Records (Feb. 15, 2003).

Susan Crawford Is Blogging Yale's Cybercrime Conference

Susan Crawford is blogging Yale Law School's Cybercrime conference. I'll be speaking on the last panel of the day, starting at 4:30. (By which point I and no doubt everyone else will be exhausted.)

Off to New Haven

I'm off to New Haven this afternoon. Tomorrow I present my ID cards paper to the Yale Law Legal Theory Workshop; Saturday and Sunday I'm attending the Yale Information Society Project's conference on Digital Cops in a Virtual Environment. In between I plan to look up some old friends. I'm not nearly as good at keeping up with people as I should be.

Notes From the Stanford Privacy Conference

There still isn’t any wifi at the Stanford privacy conference, but the nice tech gurus there found me a way to connect via cat 5 cable.

The first day of the conference was good. At dinner afterwards we agreed there were at most two dud presentations in the whole day, which is a ridiculously small number. My only complaint is that the chairs here at Stanford are much much too comfortable. Combined with the high quality of the presentations, it means that everyone has been staying in to hear them instead of congregating outside in the courtyard to gossip and enjoy the perfect weather. Since I’m usually one of the folks hanging out in the hallways at conferences, this enforced good citizenship is unusual; then again, the talks are good.

I’ve been doing this presentation thing for almost a decade now so I suppose I’m a veteran, but it seems odd to be described as an old-timer even in the context of the very gracious introduction offered by Anupam Chander in introducing our panel. As for my presentation, I think it’s fair to say the audience was somewhat skeptical about my ID paper, although it certainly engaged with it.

One thing I’ve noticed is that the more junior scholars almost all run over their assigned 15 minutes while the more experienced ones tend to stick to the time limits. (I should add that I have painful memories of doing exactly the same thing in some of my first presentations.) You might think that this is just because the young scholars have done very careful, detailed work and are presenting innovative ideas (which is all true) while we old farts just have less to say. But in fact, probably the most interesting talk from my perspective was by one of the most senior people here, Pam Samuleson, who, rather then giving us tidy shrink wrapped intellectual conclusions, outlined a research program that she will probably be working on for the next two or three years, focusing on what rules should govern the use of promiscuous sensor technologies. Among the questions she’s considering are, If people are going to deploy ubiquitous mini-sensors which are always on and always broadcasting, what privacy rules should apply to those data emissions? Can privacy be engineered into the standards now, before too many tools are deployed? It’s a great project, and timely in the best sense of the word, in that Prof. Samuelson and her group are worrying about this when there’s still time to build the right solutions into the technology, rather than asking the law to impose after the fact rules that don’t well match the deployed technology.

Rumor has it that some students here are blogging the conference, but the only one I’ve found is not very detailed; the conference has been more interesting than this summary description makes it sound. I’ll add more links if/when I find them.

Off to Stanford's Privacy Conference

I'm off to Stanford to speak at tomorrow's conference, Securing Privacy in the Internet Age, where I'll talk about how ID cards can help, and hurt, privacy.

I gather there won't be WiFi at the event, so blogging may be lighter than usual until I return to Miami late on Monday.