Category Archives: Law: Internet Law

Two Videos For You

First, CIA’s ‘Facebook’ Program Dramatically Cut Agency’s Costs via America’s Finest News Source.

Next, The Internet in Society: Empowering or Censoring Citizens? in which Evgeny Morozov takes on ‘cyber-utopianism’.

httpv://www.youtube.com/watch?v=Uk8x3V-sUgU

Posted in Internet, Law: Internet Law | Comments Off on Two Videos For You

Guilty as Charged

Seth Finkelstein is cross with people like me:

I’m basically completely unable to get the law/policy types to realize the enormous extent to which Wikipedia is de facto subsidized by Google. Here, not only is Wikipedia getting yet another boost, but some of its arguable commercial competitors are being killed! It’s not because Wikipedia has some magic itself, in "community" or "civility", or whatever huckerism is being hyped. Rather, it has the algorithm support of Google.

I accept this is true. So?

Seth’s complaints seem to be (1) that Google’s ranking algorithms are not neutral; (2) that they tend to favor large corporate aggregator sites over blogs like his or mine; (3) that there is a real chance that this favoritism is driven by a self-dealing agenda, since Google owns sites like YouTube that do well off point 2, and even if that isn’t what drives it, we should worry about it; (4) that it is wrong to excuse Google’s choices on the grounds that true search neutrality is impossible, because neutrality might be possible if we worked harder on the problem.

Of these, I guess I accept that (1) is true. And (2) may be true, but I’m ready to believe that it satisfies consumer demand. So barring new evidence, I am only concerned about (3), that is the possibility of self-dealing and self-favoritism. For which we don’t yet have much evidence, although it pays to be vigilant. As for (4), well, Seth has me dead to rights.

And I still don’t see why Google’s favoring of Wikipedia should bother me.

Posted in Internet, Law: Internet Law | 5 Comments

Grimmelman on Sealand, HavenCo, and the Rule of Law

Sealand

James Grimmelman has posted a draft what may be his best paper to date, Sealand, HavenCo, and the Rule of Law. It is thoughtful, wry, informative, and entertaining.

Here is the abstract:

In 2000, a group of American entrepreneurs moved to a former World War II anti-aircraft platform in the North Sea, seven miles off the British coast, and launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This article tells the full story of Sealand and HavenCo — and examines what they have to tell us about the nature of the rule of law in the age of the Internet.

The story itself is fascinating enough: it includes pirate radio, shotguns and .50-caliber machine guns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was implacably opposed to all law. As the fuller history shows, however, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, the article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law’ that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.

Photo credit: Casey Hussein Bisson

Posted in Internet, Law: Internet Law | 1 Comment

Videosurveypanel.com’s Amazing Contractual Terms

I mistyped the address for Youtube.com (I left off the final letter), and got redirected to videosurveypanel.com, which managed to convince me for a considerable period of time that it was running a survey for YouTube. It wasn’t until I dug into the unbelievably one-sided contract terms that I got suspicious – it didn’t sound like Google could be this evil. And (thanks to searching on Google) I confirmed that it wasn’t.

Not only is the way they reel you in borderline deceptive — I think YouTube would have a good shot at a trademark claim since I was genuinely deceived for some time and YouTube would very likely win a UDRP action — but the contract really is an amazing piece of draftsmanship: so one-sided as to likely not be enforceable (EDIT: against the user; the user could have various claims against the company. So could the FTC.).

Here’s what you see at first:

You’ve been selected from the Miami region to take part in our annual visitor survey.
This will only take 30 seconds of your time and will enhance user experience.
Upon completion you will have the opportunity to get a free Macbook Air, Sony Vaio, or Vizio HDTV.

Even at the outset I think “get” is a bit tacky for what I presume is going to be a minuscule chance to win a drawing sometime in the far future, but hey, it’s marketing. The questions were gender, age group, number of videos watched online a week (4-10), and how much I hate ads in videos (a lot). Then on to to the register for the sweepstakes part of the show. I “chose” the flashy laptop from the option. The next screen invites me to give my email and cellphone number under a headline saying

Thank you for your response.
If you are interested, this is your opportunity to
Get your free gift

There’s that “get” again. Nothing yet about odds. Of course, I’m not going to give my phone number without seeing the Privacy Policy. And it turns out to be dire.

First, they can change it retroactively any time:

[The Company] reserves the right to revise this Privacy Policy at any time simply by posting such revision, so we encourage you to review it periodically.

Second, if I give them a cellphone number (what if I don’t have a cell? presumably I’ve violated the terms of the offer?) they will spam me with ads.

By completing and submitting a registration form you are consenting to receive SMS, wireless or other mobile offering to your cell phone. You understand that your wireless carrier’s standard charges and rates apply to these messages. To unsubscribe or discontinue SMS messages, send “STOP”, “END”, or “QUIT” to the SMS text message you have received and the SMS sender will unsubscribe you from further SMS messages within 10 days of receiving such request.

Since I don’t have a texting plan, I’ll pay for each of them until I tell them to stop. Even though they have computers, it will take the squirrel in the cage in the back room ten days to do the data entry.

Third, they will sell my data to advertisers:

When you answer “yes” or “no” to a survey question, some or all of the information that you submitted during the website registration process will be transferred to advertisers that we believe may be of interest to you without providing you with another opportunity to review the information.

When you select “yes” next to an offer, we will transfer some or all of the information that you submitted during the website registration process to the applicable advertiser without providing you with another opportunity to review the information either with our own technology or a 3rd party proxy.

Surely, by saying I want the laptop, they will say I’ve agreed to the above. And even if not, they’ve still got me:

By completing and submitting a Company registration form, you are consenting to receive marketing communications from the Company and its third party marketing partners. If, after you have shared your information with the Company, you decide that you do not want to receive marketing communications from the Company and its third party marketing partners, you can discontinue the communications and following the opt-out instructions. If you have registered or submitted information under more than one e-mail account, you must submit separate unsubscribe requests for each account.

Fourth, if all that wasn’t enough, there is a separate document called Terms on the first page of the survey, and “Terms and Conditions” at the end of the privacy policy. It turns out this isn’t a lottery at all.

It purports to be one heck of webwrap contract:

This promotion is conducted exclusively by www.videosurveypanel.com, and is subject to participation terms and conditions. Receipt of your item requires compliance with offer terms, including: age and residency requirements; registration with valid e-mail address, shipping address and phone number; completion of user survey and sponsor offers. Upon completion of all requirements, we will ship your incentive gift to your verified shipping address. Fulfillment may be delayed based on availability.

Oh-oh: “completion of user survey and sponsor offers”. Typically that means jumping through a nearly endless series of hoops. If you find a single question too intrusive – no prize. If you miss a single complex detail designed to make you fail on a tight deadline – no prize. If you can’t prove you jumped through all the hoops – no prize.

By now I’m really puzzled: I expected better from Google. (And indeed, this turns out to have nothing to do with Google, so that’s one good thing about this.)

But let’s soldier on through the Terms & Conditions and see what they say.

It doesn’t start well:

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE. BY USING THIS WEBSITE, YOU AGREE TO BE BOUND BY, AND TO COMPLY WITH, THESE TERMS & CONDITIONS UNLESS YOU OFFER DIFFERENT TERMS THAT ARE ACCEPTED IN WRITING BY www.videosurveypanel.com . IF YOU DO NOT ACCEPT THESE TERMS & CONDITIONS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THIS WEBSITE FOR ANY PURPOSE.

Leaving aside that webwrap contracts are almost certainly not enforceable if the user isn’t forced to read and acknowledge them, taken literally this language means I can’t even read the Terms & Conditions unless I agree with them. Or that by reading them, I’m agreeing to them. Sloppy and mean. And not founded in law.

The next paragraphs is no better. It seems I’m acknowledging that I love them:

By registering on this website, you are certifying you have read, understand and agree to these Terms & Conditions, as well as our Privacy Policy. Our Privacy Policy can be accessed and reviewed here. You also acknowledge that this website provides valuable rewards to consumers who respond to and complete the specified number of advertiser offers and that you are accessing this website solely for this purpose.

Note the ominous but undefined “specified number of advertiser offers” they intend to try to make customers sign on to.

But don’t worry: if it looks like you might win a valuable prize, videosurveypanel.com reserves the right to give you a single piece of bubblegum instead:

www.videosurveypanel.com reserves the right, in its sole discretion, to revise these Terms & Conditions at any time, for any reason, without notice. www.videosurveypanel.com also reserves the right, in its sole discretion, to change the methods through which future rewards are earned. This may include changing the approval requirements necessary to receive future rewards by increasing or decreasing the number of advertiser offers that must be completed to qualify, and adding or decreasing the amount of steps to confirm that you have a legitimate account. www.videosurveypanel.com may also add or remove any product or service listed as a reward at any time. If www.videosurveypanel.com replaces a reward, the new reward may not be of equal value.

Note that by now we don’t even have a contract, since they haven’t actually promised anything at all. But if you don’t like it, well, you’ve violated the terms of service:

Please check these Terms & Conditions periodically for changes. Your use of this website following any such modification constitutes your agreement to follow and be bound by the Terms & Conditions as modified. The last date these Terms & Conditions were revised is set forth below. IF YOU BREACH ANY OF THESE TERMS & CONDITIONS YOUR RIGHT TO USE THIS WEBSITE WILL TERMINATE AND YOUR ACCOUNT WILL BE DISQUALIFIED.

(Bold in original)

And it gets worse. The “rewards” are not actually rewards.

To qualify for the reward on this particular website, you may be required to complete reward offers from the Silver, Gold, and Platinum Offer Pages. Please refer to the requirements of each reward carefully.

*Please note that available reward offers will vary. Some reward offers require a purchase. Credit card offers may require you to activate the card by making a purchase, transferring a balance or taking a cash advance.

Got that? It’s going to be a very bad deal. But you can’t back out when you want to:

(1.) Your account/reward eligibility will expire 60 days from the date you register on this website. Upon expiration, you will no longer be eligible to receive the reward.

(2.) There is no way to cancel an account. If you no longer wish to remain a part of this website, you should refrain from accessing your account.

Yes a very very bad deal indeed. A couple of pages into the (very long) document, we finally get some hints of what is in store:
Continue reading

Posted in Law: Everything Else, Law: Internet Law, Law: Privacy | 5 Comments

Snowed Out of Miami

I was supposed to be at a small roundtable discussion with the General Counsel of the Department of Commerce this morning, called to discuss the DoC’s “Green Paper” Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.

But it seems they had a little snow in DC last night, and around 11pm last night I got a message that General Counsel Cameron Kerry’s flight got scrubbed, so the meeting had to be canceled. It’s fairly rare for US Government traveling road shows on issues relating to Internet policies to come south of Atlanta (if that), so I was looking forward to this and even rescheduled a class so I could attend, which is a significant burden on my students. There’s a remote chance the meeting may be rescheduled, but I’m not optimistic.

Meanwhile, I get to go to New York next week and at least freeze.  But the forecast currently is only for light snow.

Posted in Law: Internet Law, Talks & Conferences | 1 Comment

Recommended Reading

Christopher Soghoian, The History of the Do Not Track Header.

Posted in Law: Internet Law, Law: Privacy | Comments Off on Recommended Reading