A Long, Loving Look Back At 2010 – The Last Year We Really Owned Our Digital Lives

In a few years, I think 2010 will be remembered as the good old days, when the Web was free and simple. When Tim Berners Lee invented HTML, what percentage of his effort went into protecting rights holders? None. It was all about making a simple, robust code that let users do as much as simply as possible.

But, as the Internet has developed commercial value, a new set of corporate and government stakeholders has emerged to control who can do what online. Rights are being peeled away “for our own good” by quite a few state and corporate groups. At this rate, in just a few years our digital lives will seem very different, and geeks will look back to 2010 like hippies recall the bashes of the halcyon late Sixties.

1. You could use your cell phone almost anywhere.
In 2010 you could use your cell phone almost anywhere. Perhaps more than even the PC, the cell phone has changed how people live. It was the first realtime mobile network that introduced the 24×7, always-on digital world. In an effort to stop that – and protect us from texting drivers — the US Department of Transportation is looking for ways to jam cell phone signals in moving vehicles. I think this is both a pipe dream and a bad idea, but it’s a great example of how an important communications use case can be changed pretty undemocratically by regulation.

2.  You could post anything you wanted on your server.
We’ll remember 2011 as the year in which government agencies such as the FCC started to create rules for what you can do on your own servers, if others access them through the Internet. Just last year you could analyze log files, plant cookies on visitors, put up firewalls, and buy and sell stuff mostly tax-free. Now it’s very likely that analytics will be regulated, firewalls will have built-in government keys, and states are claiming that just talking to a customer in the same state creates a taxable nexus.

3.  You could also visit just about any site on your own.
Before 2010, Internet Service Providers mostly just provided data, not filtering or record-keeping of what you did online. There will be an increasing emphasis on identifying users, and forcing their ISPs to monitor activity as an extension of law enforcement. In the future, people may visit sites just because it looks good on their records, and they will certainly avoid sites that would look bad.

If this sounds far-fetched, don’t forget that the US government is trying to subpoena all Wikileaks-related materials from Twitter. So even if all you do is follow someone on a push medium, you are now suspect.  If you have a very long memory you might recall Joe McCarthy and the House Un-American Activities Committee.  Don’t worry if your memory is very short, though. You may learn about them soon enough.

4.  National Security Agencies Weren’t Built into Social Networks
At every level of the Internet stack, national governments are determining what individuals can do on their own servers. In the case of social networks, this means that services may be required to be designed with national intelligence use cases in mind. If you’re giving users passwords for social networks, national intelligence needs a backdoor and has its own set of requirements.

5.  You Could Build a Supremely Ugly or Elaborate Multimedia Website (or One with Bikinis)
Now that courts have ruled that websites are “public accommodations,” those selling goods or services can be held to accessibility design standards. On multiple levels, what you do on your private server must meet government standards.

Just as we’re no longer sovereign over our own servers, we’re also now just renters of the rest of our digital lives. Now if you want to run an application on the iPad, it has to be approved by Apple (and they censor material seemingly with neither rhyme nor reason. Bikini sites, no. SI Bikini issue, yes.)

See how different this is from the neutral ubiquitous platform Tim Berners Lee & Co. invented? It will be interesting to see how people calculate the value of free speech and access to information vs. a really slick, reliable interface that’s managed by corporate whim.

And of course, it used to be any data that came to your machine could be saved, often by just right-clicking on images. As OS makers partner with rights holders, this feature is starting to fade away too. Right-click to save an image or text made sense in the day of the Web’s academic founding. But that can change.

So, go ahead, steal this article. Right-click away; the photo is free to use. Do it for old times, and because you still can.

Meanwhile, I’ll donate a buck in the name of all UsefulArts subscribers to the EFF (Electronic Frontier Foundation), so we can keep some of the digital mojo we liked in 2010 around a bit longer.

On January 31 I’ll take a look at the subscriber count on Feedburner and contribute that amount to the EFF. It’s a hat-tip to everyone who has encouraged UsefulArts – and to the work being done to keep this medium open and free. The future is what we choose.

Peace out, dude.

If you follow my tweet stream, you may have noticed a conversation I had with Emer Kirrane, @Exxx, about how online culture encourages youthful indiscretion along with outrageously bad behavior. (And why my kids won’t be on social networks until they’re old enough to take Facebook, and the Net, with some skepticism.)

Emer pointed out there’s a cultural confusion between “attention and approval.”  When infamy, celebrity and virtue are confused, outrageousness becomes cultural currently.

That’s why I took note today when the unabashedly liberal Boston Globe ran an Ideas feature on the book The Offensive Internet. It highlighted a thesis of its chapter by Cass Sunstein,  the head of President Obama’s Office of Information and Regulatory Affairs.  In it, he poses that that public discourse needs greater “chilling effects” of regulation and social pressure.

“The goal of the law governing speech must be to ensure an optimum level of chill, whether face-to-face or online.”

The article suggests that the free-speech safe harbor enjoyed in social media is overly broad, by pointing out that graffiti on a public bathroom walls would enjoy less protection than if it were a posting on a website.

As Speech, Online Speech Is Subject to Law
Let’s be clear: I’m all for social pressure to be decent and “get it right.”  But online speech is already regulated through established law. Trademark, copyright, plagiarism, incitement, bribery, and a host of other laws are fully in force. In fact, online defamation has been stretched to a level of absurdity unparalleled in the physical world.

The call for “chilling effects” on speech by government regulation should be fighting words for speech advocates. (If you agree, you might want to follow the blog Chilling Effects, a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics, to preserve free online speech.)

Your Blog is Not a Public Accommodation, Its a Press
The use of the analogy of graffiti in a public restroom is the foundation of a liberal claim (and regulatory power grab) that online spaces and the Internet as a whole are public accommodations. If accepted, just as that bar’s bathrooms must be accessible, free of offensive graffiti, open to all groups,  then the website on your private server must be too.

But pour right to privacy and self-determination is infinitely higher within the walls of your private home or enterprise. So attempts to establish websites as “public accommodations” would diminish your speech rights in these “public spaces.” Yet people using their private computers to access private servers over commercial networks are just as private as if the communication was by phone or teleconference. In many cases they are using the exact same infrastructure.

The metaphor we choose for online activity to some degree chooses which legal principals are most relevant. I’d suggest that it is much more obvious that every computer and server I’ve ever owned have been infrastructure for communication, often from one to many. This is closer to a press than a place. The rights of private owners to operate presses (singly or in virtual communities) seems obviously protected by the first amendment.

Liberalism and Free Speech Too Often Part Ways
Not long ago, Democrats in the Senate proposed a lobbying reform bill that would have required bloggers who communicate to more than 500 members of the public on public policy matters to register and report quarterly to Congress, in much the same way as K Street lobbyists.  This post would conceivably have made me a lobbyist, and require my self-expression to be registered and approved by the state.

Since the State Can’t Handle the Power of Chilling Speech, We Must Govern Each Other
There is a hunger in government to control the Internet, and the often-anonymous widespread communication it allows. And each time free speech has a negative consequence, the case for regulating the Net and speech increases.

If regulation invites censorship and state control of private expression, then what can be done about objectionable online conduct?  Start by objecting, and make it count.  And start to require the private platforms that we use to disengage from value neutrality.

We may, in fact, be in a better position to petition publishers and platforms such as Facebook, Yahoo and Google than federal regulators.  Plenty of you have joined me in occasional efforts to do just this here on this blog.

We need to stand up to potentially well-meaning (or self-serving) regulators. The pursuit of happiness, however it is defined, and free speech are now inexorably linked in the creative economy. And its protection almost certainly will require us to hold back the hand of government from fixing the problems of free speech. As long as free speech is abused, we know it is there.

Back in 2007, I noted there were suspicions that WikiLeaks was a CIA front. Any lingering doubts of this are gone now.

Today, Washington politicians are falling over each other to establish who can be the most bombastic about WikiLeaks’ disclosure of leaked  State Department documents. Charges of espionage and even terrorism are being levied against a foreigner with a website.

What, if Any, Criminal Charges Are Justified?
Attorney General Eric Holder has  urged that Julian Assange be prosecuted under the Espionage Act. Further, Congressman Peter King (R-N.Y.),  the incoming head of the House Intelligence Committee,  called for putting WikiLeaks on the list of “terrorist” organizations that includes Al Qaeda.

That would pretty much would take it out of the espionage business. Without conspiracy before the fact, this seems like an uphill climb. Reuters rounded up three espionage law experts, and they pretty much agree with this position. It seems that the barriers to successful prosecution would be:

• Jurisdictional issues
• Lack of collusion
• No standing as an agent of a foreign power

Then of course there is the tradition of freedom of the press, which the US has an interest in promoting. If Assange’s motivation was to disseminate factual information, there would be little distinction between an attempt to prosecute him or other WikiLeaks organizers and more established media outlets. Could anyone seriously suggest this would be an act of espionage for one, and good old journalistic reporting for the other?

Is This Leak Unethical?
Jack Marshall says it’s an easy call: WikiLeaks is naive, unethical and dangerous. I agree. Leaking diplomatic cables makes diplomacy more difficult than it already is.  WikiLeaks is at best naive and reckless.

And while a case could be made for a “matter of conscience” that might justify the leaking of documents to fix a great government misstep or prevent a far greater wrong, this doesn’t seem to be the case. The leak seems vast, indiscriminate, and more intended to embarrass than to fix.

WikiLeaks seems more like a symptom than a cause. And while in some cases it has exposed corruption, in this case it seems like an immune nuisance, which has been fed by what I fear is a traitorous countryman. And that’s harder to contend with than fist-shaking at a foreigner with a website. Next time, let’s keep our secrets where they belong.

Do you remember conservative radio talk-show host Michael Savage? He sued a Muslim advocacy group for copyright infringement because it dared to quote what he said on the radio as part of an advertiser boycott.

A U.S. District judge tossed the suit, and supported the doctrine of Fair Use, saying that anyone who listens to a public broadcast is entitled to take excerpts and use them for purposes of comment and criticism. See EFF’s Takedown Hall of Shame for other prime examples of copyright abuse.

Recently, one of my local television stations asserted copyright through a bogus DMCA takedown notice to get a blooper by weatherman Peter Bouchard removed from YouTube.  Of course, the more WHDH tried to get copies taken down, the more attention this unfortunate, though funny, incident received. The mistake of Mr. Bouchard was compounded by the legal mistake of not considering the fair use of this segment – and the PR error of not considering the Streisand effect.

Unfortunately, some bogus takedown notices are effective in censoring critics and clowns in legitimate public speech. Archer Daniels Midland (ADM) has been on the receiving end of lots of criticism recently. The recent Matt Damon film, The Informant!, was about ADM and price fixing. They must be tired of being the poster child for corporations operating above the law.

So ADM responded with copyright takedown notices when someone took a bland and boring video of their CEO droning on about their role in the economy and added in a track of what she “might really be thinking.”

Unfortunately, I can’t show you that video. The takedown notices worked. That use of Patricia A. Woertz words is protected — not through law but through procedure, as ADM’s bogus takedown notices would have to be challenged.

So does this tactic really work?

I’ve posted an alternative video below, explaining how ADM (a major underwriter of all things Bob Dole) fixed prices with competitors. If you take six minutes to watch the video, or repost it, ADM’s bogus takedown notice will in fact have had an unintended consequence.

This week the ACLU filed a lawsuit against the Boston Police Department for using “wiretapping” laws to prevent citizens from taking video footage of police arrests.  Some would naively think such laws were passed to protect the people from the authorities, not vice versa. (details in Law.com)

Following Training?
Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. “If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she said.
Boston Globe

Your Digital Papers, Please?
Last week at the Davos World Economic Forum, Microsoft’s chief research and technology officer floated what to date has been an obviously bad idea: that Internet users should be licensed.

The suggestion is covered and advanced in a Time Magazine article that takes the familiar dystopic theme of the Net as the Wild West, requiring standards and regulations for safety, just like modern transportation systems. Governments run highways, so why not information super-highways?

Time‘s Barbara Kiviat suggests the Net needs a sheriff, and that licenses would do the trick. Licensing would authenticate identity, and give governments something to revoke, inspect, and otherwise use to claim standing in order to administer this stateless medium.  After all, a bunch of private machines connected by private networks aren’t architecturally under the control of the state. In a world of online risk, we need governance through governments.

I think we’ll hear more of this theme, and that it will be advanced on the need to prevent crime and protect  kids.  More surveillance and censorship will be positioned as bulwarks of child safety and perhaps national security.

Making the Case for Big Brother in the Americas
The many benefits of Big Brother’s watchfulness are neatly summed up by PredatorWatch.ca.

As someone who has done casework on finding ways to protect organizations from pedophiles, I’m all for raising offender inhibitions. But having police pretend to be sexually available kids is is misguided.  At best, it nails low-probability offenders; at worst it titillates and entraps a class of nasty, but perhaps otherwise benign, web users.

We’re Watching the Bad Guys; We’re Watching You

Internet filtering, censorship of Web content, and online surveillance are absolutely increasing in scale, scope, and sophistication in democratic countries as well as in authoritarian states. And to some degree, they support one another.

That’s the premise of Access Controlled, a book due out in April, edited by the dream team of Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain. I expect their research and perspective on this global trend will fuel a richer discussion on the costs and benefits of making online surveillance the new digital norm.

Last week I asked UsefulArts.us readers what they think may online law trends for  2010.  Here’s the first of what looks like a half dozen responses to that question.

The Coulrophobia Epidemic of 2010: trademark owners’ fear of clowns may be rational.
When a competitor uses your mark and pretends to be your company, that’s infringement. But when a clown mocks you with your own mark, that’s parody. And it may well be protected speech. And in an age of Twitter and viral video, mocking can be more deleterious than infringement.

Consider this fake press conference, at which an impostor U.S. Chamber of  Commerce announced its (not real) change in policy to support combating global warming. When the real Chamber shows up, it turns into an episode of The Office, which the clowns play to the Chamber’s regret.

From the above escapade, the Chamber filed a claim of trademark infringement and used a take-down notice to force the pranksters’ ISP to discontinue a parody website that supported the hoax. Was there a “likelihood of confusion”? Absolutely. And it was also classic parody speech.

Similar trademark claims have been made against NYTimes.se, which mocked The New York Times and corporations like DeBeers. We recently noticed The South Butt, a clothing line which mocks The North Face. And, only a few days ago, environmental activist Brian DeSmet received a complaint for mocking Peabody Energy.

In a world where Ashton Kutcher is considered a brand, a fear of clowns may be a viable business survival strategy.

Regulation of digital marketing heats up. States try it too.
I suppose the fear of regulators is a variation of the fear of clowns.

In 2009, I noted with concern that the FCC began to use “public interest” language to describe its interest in regulating access to, and speech on, the internet. Our friends point out that the FCC has sometimes shown more concern for the demands of corporate lobbyists and “public decency” advocates than it has for individual civil liberties.

Consider the FCC’s efforts to protect Americans from “dirty words” in FCC v. Pacifica Foundation, or its much-criticized deregulation of the media industry, or its narrowly thwarted attempt to cripple video innovation with the Broadcast Flag.

The impulse to regulate (and tax) the Net extends to state and local levels. John Ottaviani guest-blogged on Eric Goldman’s Tech & Marketing Law Blog about Maine’s passage of a little COPPA Act banning the use of personal information about minors for marketing purposes (which the Maine Attorney General then refused to enforce) and Kentucky’s seizing of domain names. Add to these Massachusetts’ failed online privacy act and numerous states’ decisions to tax e-commerce. States, along with federal regulators, seem to be keen to mold the internet.

If there is a common theme between these issues, is that parody and regulation is that both claim to be in the public interest, and both hard to defend against. I expect to see marketers organize to participate in regulatory dialog, and I expect to see clowns rampant as ever on the web and in social media.

A few years ago I showed my wife a t-shirt from Marketo, the San Mateo-based lead generation company. They were revolutionary, and to underscore that they had a manifesto, and their shirt featured an image of Che Guevara.

My wife is a marketer who has lived in Central America; she immediately noted the use of Che was potentially offensive in parts of Florida, Latin America, and Eastern Europe.  In fact, I’ve learned that wearing that shirt in Warsaw could get me sent to prison. It’s true. (I thought it was just communist chic, but there its criminal.)

Evocative symbols of Europe’s fascist past have long been illegal in some European countries. Poland has gone further by banning symbols of communism. Poles can be fined or put in prison if they are caught with a item bearing the  hammer and sickle, red star, or the image of Che.

However, this isn’t sitting well with younger Poles, who are taking these still-emotionally charged images and disarming them through humor and fashion.

In America, we’ve seen African American and gay culture claim words used to persecute them. Nazism similarly has been discharged by spoofs such as Hogans Heroes, the spoof Werewolf Women of the SS, or the band Women of the SS. When Prince Harry dressed as a Nazi for Halloween, he was doing what youth do: grabbing hold of previously charged symbols and satirically playing with them. This last example turned out badly for Prince Harry.

That’s what happened in Poland, just like what happened in other parts of the world, where trendy communist-themed bars popped up. Remember Pravda in Boston? And one restaurant that pokes fun at its Soviet past offers “trout from the fish shop wit the three-hour queue” and “Bulgarian peach pie: bartered for irons and Soviet cameras during the International Tourist Exchange.”

Get it? The past, though tragic, can be made silly to detached youth. And it can be healthy to satirize the most troubling aspects, acknowledge them, and at the same time disowning some of the baggage of the past. The Polish law saves feelings, but it’s restricting the next generation from stepping free of something it wasn’t part of and intend to own.

So to that end, here are a few of the images that, in my opinion, are neutralizing communism via humor and  pop culture. But remember, if you visit Poland, leave your Marketo shirt at home, and at the bar, don’t order “Lenin-ade” Or you could experience some Eastern European Prison Chic.

Back in 2007, I suggested that snitching was one of the killer apps of Web 2.0. Since then, WikiLeaks.org, the site for snitching secrets about governments and corporations, has been a success.

How do you measure success? Perhaps by the zeal with which legislators seek to investigate the website. Of course, judges have quickly raised free speech issues that  trump the desire to quiet those who spread secrets leaked by the powerful.

Here the latest from Harvard’s Citizen Media Law Project:

Unless you’ve been under a rock for the past few months, you’ve probably heard about some of the recent high-profile “releases” on WikiLeaks.

Back in November, WikiLeaks published nearly 573,000 intercepted pager messages sent on September 11, 2001. The week before that, WikiLeaks published thousands of documents and correspondence between British and U.S. climate scientists just in time for the U.N. climate conference in Copenhagen. WikiLeaks followed up these feats by releasing the air-traffic control recordings from the British Airways flight 038, which crash landed on December 2, 2008, and reposting a TSA operations manual that had been improperly posted on a government website.

All of this has certainly raised the profile of the three year old whistle-blower site.  But WikiLeaks is about to learn what happens to those that rise above the crowd: they become a target to have their head chopped off.

You see, the government doesn’t appreciate being made to look foolish.  Always ones to shoot the messenger, various Congresscritters are calling for an investigation and considering potential criminal sanctions against WikiLeaks and other sites that repost such material in the future.

Not to be outdone, Rep. Peter King has asked his staff to take time out of their busy schedules wringing their hands over the White House party crashers to investigate the release of those 9/11 messages. Even our friends across the pond are getting in on the act, issuing a take-down notice to demand removal of the BA flight 038 recordings.

So how successful are the Congressional challenges likely to be? Probably not very.  As Marc Rotenberg of the Electronic Privacy Information Center has pointed out (and as our own Sam Bayard explained in connection with the Twitter-leak brouhaha), back in 2001 the U.S. Supreme Court ruled in a case called Bartnicki v. Vopper that the First Amendment protects the reposting of even illegally-obtained material in situations where the speech is about a matter of public concern.  (Of course, if the material is posted by a WikiLeaks user, Section 230 would likely also come into play).  Similarly, additional legislation to expand criminal sanctions for republication of classified information is likely to run afoul of the Constitution, for many of the reasons articulated in the concurring opinions in New York Times Co. v. United States.

But don’t expect that to keep some Congresspeople from trying.

What will they know of China, who only “.cn” know?
The Associated Press reports that China’s Ministry of Industry and Information Technology has posted requirements that all “.cn” china domains be issued only to registered businesses. AP’s coverage also says that any sites that have not registered with the ministry will be “taken off the Internet.”

I offer that purging of the “.cn” domain will establish it as a de facto whitelist. The Chinese government will then subject other domains to pervasive filtering and blocking.  See earlier coverage of China’s censorship machine. Websites not on the pre-approved “.cn” domain will increasingly test to see “Is my website blocked in China?” That filtering, and the discipline the fear of it causes, is exactly the goal.

Earlier this year China attempted pervasive filtering through a requirement for new computers to be loaded with a controversial Internet-filtering (and spying) software known as Green Dam Youth Escort.  An outcry by computer manufacturers prevented this law from being implemented. In light of this, segregating approved traffic to a single domain seems like an alternate route toward the same end.

With apologies to Kipling and Billy Bragg, what do they know of England, who only England know?