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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,