Kevin Bankston Discusses Wiretapping On Countdown
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Kevin Bankston Discusses Wiretapping On Countdown
The True Danger Of The Internet: What Occurs To Us
The most interesting aspect of cyberspace is not what happens for a time to its visitors. It’s not the absence of regulation nor the presence of perfect regulation; it’s not the staggering variety of content nor the sudden arbitrariness of geography; it’s not the constant threat of surveillance nor the occasional absence of accountability. The most interesting aspect of cyberspace flows from its status as an engine of realization: cyberspace widens the range of what we think of as possible. The Web is home to phenomena that never quite happened before—not because the technology was untenable, but because no one thought to do it. The importance of cyberspace is not what occurs to you when you visit; it’s what occurs to you.
This is hardly an isolated example.
A central reason online ads continue to gain on traditional ads is because they allow for sophisticated targeting and analytics. You can know where a user has surfed and what she is looking at, so you can advertise to her based on relatively good intelligence about her preferences. And you can follow her clicks and views to determine what's effective.
Not coincidentally, it now occurs to outdoor advertising companies to listen to what is playing on your car radio and change the billboards you see accordingly. Suddenly they place cameras in billboards to detect demographic and other information about the people who look at ads. Today's malls can follow you around using your cell phone signal as you shop to rearrange their store displays for maximum impact.
The latest and most sophisticated technique in use on the Internet is probably deep packet inspection (DPI). Such technology “sniffs” the content of data packets traveling node to node by Internet protocol. DPI can be used, among other things, to detect the illegal sharing of copyrighted content. It works invisibly and need not disrupt lawful activities. You would think that DPI would be hard to reproduce in the real world. It turns out not: it has occurred to the Motion Picture Association of America to pay to train dogs to sniff luggage and mail for the tell-tale scent of recently burned (read: pirated) CDs and DVDs.
It’s often said that where there’s a will, there’s a way. I don’t agree. We want many things that we cannot make happen no matter how hard we try. I’d say the converse is more plausible. Where there’s a way, there’s a will. If one day a new road for thought yawns into the distance, some adventuring mind will take it. This is the lesson of cyberspace—its promise and its greatest danger.
Yes, A Copyright Law Joke
Have Fun Watching The Country
826 National is an incredible non-profit dedicated to improving writing and other skills among children ages to six to eighteen. A few days after the election of Barack Obama, 826 centers in seven cities asked children to offer advice to the new president. The result was the deservedly celebrated book Thanks And Have Fun Running The Country.
As you might imagine, this book is a major tour de cute. One 9-year-old in Los Angles opines that if he were president, he “would help all nations, even Hawaii.” A Seattle 7-year-old suggests that President Obama “turn on the heater, so it won’t be cold.” In short: awwwww.
You can imagine my surprise, then, when I came across the following suggestion from a Boston 12-year-old: “Dear, Barack Obama, … You should also build cameras all around our city to find out who is breaking the law, and also in movie theatres so we can tell who is making illegal copies.”
Wait, what??? Did the DOJ and RIAA have a child together? The rest of this writer’s suggestions are eminently reasonable—more power efficient cars, less smoking, and the like. Still, it’s not often that you see a 12-year-old proponent of ubiquitous surveillance!
Privacy And Free Speech (ACLU No. Cal. Primer)
The ACLU of Northern California has published a primer (PDF) on the advantages to businesses of good privacy and free speech practices. The primer assembles many real-world instances of harms and benefits to companies due to their choices around user privacy and value speech. Congratulations to Nicky, Chris, and no doubt others in putting this together.
A Short Tour Of Robot Case Law
“Robots again.” That’s how federal appellate judge Alex Kozinski begins his dissent from the Ninth Circuit’s decision not to rehear Wendt v. Host International. The “robots” refers to animatronic replicas of Cliff and Norm from the TV series Cheers built by an airport bar chain as a gimmick. The “again” refers to the earlier case of White v. Samsung, where Samsung ran ads depicting a robot version of Wheel of Fortune’s Vanna White with the tag line “Longest-running game show, 2012 A.D.” She sued. (To her credit, however, Ms. White kept her head. She did not turn into a car and drive over to Samsung headquarters, as was no doubt her first instinct.)
People suing over robot versions of themselves is just one of the ways robots make ordinary cases more interesting. As personal robotics moves toward the multibillion-dollar market Bill Gates and some analysts predict, we are likely to see more—and more interesting—robot-driven litigation. What follows is a little tour of robot case law to date.
Wendt and White are examples of torts, such as "appropriation of likeness," involving the right to publicity. Robot versions of people also complicate trade tariffs. According to the Harmonized Tariff Schedule of the United States, "[t]oys representing animals or non-human creatures (for example, robots and monsters)" get different treatment from toys representing straightforward humans. The U.S. Court of International Trade once had to sort out whether various Marvel action figures were human. Robot Wolverine was a cinch; the parties eventually stipulated to his categorization as non-human. Others were not so easy. Today’s figures are even trickier. What if someone tried to import a Cylon figurine of Helo and Athena’s daughter on Battlestar Galactica?
Copyright law presents another context where robot toys trigger lawsuits. It turns out, for instance, that “robot-like battle machines … and direct communication between machine and human brain” are “familiar themes” not entitled to copyright protection. (“Familiar themes” makes it sounds almost comforting…) Nor, thank God, does trademark protect the concept of pitting small robots against one another in battle.
On the more physical side of things, criminal law gives us the recent example of Reinhardt v. Fuller. Dave Reinhardt was holed up in his parent’s house following a dispute over his inheritance. The local swat team arrived and deployed a two-and-a-half foot tall robot complete with cameras, a microphone, a mounted gun, and a “claw… for breaking glass” to subdue Reinhardt. “Appellant fired four shotgun blasts at the robot.” He was soon arrested.
Industrial robots have also wrought their share of chaos. In what is no joking matter, a court denied liability on the part of the robot manufacturer where a worksite was improperly secured, “thereby exposing [plaintiffs] to the danger of injury by being caught in the robot's jaws.”
Amusing, however, is the 1998 case of Robotic Vision Systems, Inc. v. Cybo Systems, Inc., where an industrial parts company convinced its manufacturer client to take on Al Bove and Al Treu, two “robot technicians,” as installation support. The client gave the robots a shot, but ended up having to hire a human technician to finish the job.
I predict that robot-related litigation will only grow. A personal robot wanders into a neighbors yard collides and with a toddler. Is this robot like a dog, in which case the owner may be liable? Or is there a cause of action against the manufacturer? Experts argue that the use of intelligent robots may cause us to rethink the laws of war. Others argue that robots will one day themselves hold rights and liabilities. The possibilities are endless. We may even eventually see a robot practice group akin to today’s practice groups around video games. Maybe Al Bove and Al Treu could join up. I hear they are looking for work.
Cast of cases by order of appearance:
Wendt v. Host Intern., Inc., 197 F.3d 1284 (9th Cir. 1999).
White v. Samsung Elec. Am., Inc., 971 F.2d 1395 (9th Cir. 1992)
Toy Biz, Inc. v. U.S., 248 F.Supp.2d 1234 (CIT 2003)
FASA Corp. v. Playmates Toys, Inc., 869 F.Supp. 1334 (N.D. Ill 1994)
Robot Wars LLC v. Roski, 51 F.Supp.2d 491, 494 (S.D.N.Y.1999)
Reinhardt v. Feller, 2008 WL 5386802 (E.D. Ca. 2008)
Payne v. ABB Flexible Automation, Inc., 116 F.3d 480 (8th Cir. 1997)
Robotic Vision Systems, Inc. v. Cybo Systems, Inc., 17 F.Supp.2d 151 (E.D.N.Y. 1998)
As if we privacy advocates didn't have enough to worry about, this sea otter apparently got a hold of a video camera and was "filming" tourists. Witnesses speculated that some boater dropped the camera and this fun-loving, puppy-of-the-sea found it floating in the Bay. But of course you and I know the terrible truth: DARPA microchips...
Facebook & The Charitable Deceptions Of Nostalgia
Facebook trends proceed at a spooky (in the quantum sense) pace. It took the New York Times all of a week to pick up on 25 Random Things. I’ve noticed a subtler trend lately, one that is perhaps a more obvious sign of the times. The nostalgic photo album.
It seems that every time I open my account I have been tagged in a new photo from the late 80s or early 90s. I click the link and there I am again in a black and red flannel. And this trend knows no boundaries. I grew up in Italy and was tagged in a group photo from scuola elementare. You can see me in the back row, white shirt tucked into blue sweat pants, followed by two dozen comments along the lines of “che tremendo” or “dai, troppo forte!”
Where is this global flood of nostalgia coming from? I think my generation is finally scared. I think we’re looking at two wars and a bad economy and remembering when Smashing Pumpkins came out and cruelty could still be confused with flirtation. As outlets go, however, I’d say this is fairly healthy. After a historic but short-lived unity, the post-911 Bush years brought ugliness—we saw increased interracial violence and a spike in sales at the box office for horror movies as we tried to muddle through the trauma. I’m fine with a trip down memory lane. We could use, to borrow from Gabriel Garcia Marquez, some charitable deceptions of nostalgia.
Symposium: Neuroscience And The Courts
The Stanford Technology Law Review’s symposium is scheduled for February 27th, 2009. According to its website, the symposium will “showcase vibrant legal scholarship on the interplay between new advances in neurotechnology and traditional legal principles and concerns.”
“The symposium will address some of the most exciting issues emerging in this field. Topics include:
* How neuroscience evidence will likely be used in the courts, especially in sexual predator prosecutions or in the penalty phase of capital cases
* What the field of neuroscience can offer the courts that the traditional social sciences cannot
* The relevance of psychopathy for the legal and forensic systems
* Whether neuroimaging data can enhance and improve upon understandings of criminal responsibility
* An overview of the current capabilities and limitations of neurotechnology to interpret and interfere with brain signals"
I’m moderating a panel on the ethical ramifications of neuroscientific research. Hope to see you there.
Women & The Rise Of Code: Is Power A Moving Target?
Outside of a J.R.R. Tolkien novel, power does not reside in any one person, object, or place. But it does cluster. An enormous percentage of those “in power,” that is, in a position to make decisions of societal scope, are trained as lawyers. Nearly every judge has been to law school, as have the majority of legislators, many industry and non-profit leaders, and 26 out of the past 44 U.S. presidents.
It should come as no surprise, then, that much feminist scholarship focuses on the ongoing underrepresentation of women in the legal profession, particularly in its upper echelons. Yale first began formally admitting women to its law school in 1918. Ninety years later, only 17.3 percent of law firm partners are women. Eighteen of the 100 U.S. senators are women, and the federal bench remains about 80 percent male. An impressive body of scholarship seeks to demonstrate that this dearth of women (i) results from ongoing, systemic discrimination; (ii) means women have less input into making, applying, and interpreting law and policy; and (iii) ultimately translates into law that (subtly) discriminates against women or promotes masculine values.
A not untypical counter concedes that women have historically faced discrimination, but insists that there is now every reason to be hopeful. The number of women who serve in the state and federal executive, judicial, and legislative branches is on the rise. Women have in recent years been appointed to serve as chiefs of police and fire in major cities. Last year saw the first female four-star general. A woman was very nearly the Democratic nominee for president in 2008 (and is now the third female Secretary of State). Some argue that this trend will inevitably continue as the women who make up nearly 50 percent of current law students graduate into an ever-more enlightened legal workforce.
Whether women will attain equality within and under the law is an extremely important question. I want to suggest, however, that this debate cannot occupy feminists to the point that they fail to keep an eye on the movements of power itself. Precisely as women begin to make serious gains within the legal profession, it is becoming less and less clear that law will remain the primary repository of societal power.
Beginning a decade ago with the work of Lawrence Lessig, our eyes are opening to the incredible importance of “code” and other facets of information technology in shaping human possibilities. In predicting the ongoing relevance of the U.S. on the global stage, influential author and political scientist George Friedman cited to the fact that most programming codes are written in English. Computers have become an indispensible part of our everyday experience. More and more of our social, economic, and political activities are moving online. Cyberspace itself is leaving the plastic box of the desktop and intertwining with the world through mobile phones and networked objects (which explains the many recent references to an “Internet of Things”).
If Lessig, Friedman, Joel Reidenberg, Danielle Citron, and many others are correct, then power may be shifting. It may be moving out of the hands of lawyers and into the hands of those who create, program, and maintain the information technologies that mediate our lives.
It turns out that these people are not, by and large, women. In 2003, women made less than a quarter of computer engineers and scientists. Moreover, and in clear contrast to the legal profession, female representation in computer science is trending sharply downward. One study found that the proportion of undergraduate computer science degrees pursued by women declined 15% between 1985 and 2001 (from 37% to 22%). Another study found that female enrollment in computer science programs fell from 26.7% in 1996, to 22.2% in 2005. The Computer Research Association recently reported that between 2001 and 2007, the percentage of women in computer science slipped even further, to 11.8%. With the notable exception of pioneers like Dr. Cynthia Breazeal, the new head of MIT’s influential Media Lab, women have low and declining representation in precisely that clubhouse into which power appears to be sneaking.
Clearly the age of law soldiers on; the underrepresentation of women in the legal profession remains an extremely important topic for study and advocacy. But feminists should be wary also of power’s apparent migration. It is crucial for talented women to enter and lead the field of computing and information technology. Feminist legal scholars concerned with a male monopoly on power should link up with the many practitioners and scholars already studying disproportionality and discrimination in the sciences.
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