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GPS-based Insurance Rates: The Devil is in the (Data) Details

February 13th, 2012  |  by jz  |  Published in Future of the Internet  |  3 Comments

A British insurance company called Motaquote has teamed up with TomTom, the GPS manufacturer to offer insurance prices based on data gathered by GPS. Fair Pay Insurance, Motaquote’s new program, is an opt-in insurance pricing scheme where drivers will get a free GPS unit in return for potentially lower (but possibly higher) premiums. The GPS unit will provide all the traditional navigational services as well as warn drivers when they corner too sharply or brake too hard.

Data-driven insurance pricing is nothing new. Research into the viability of GPS-based pricing goes as far back as 2003. Telemetry based insurance premiums have been around in the United States since at least 2008, when Progressive started using “Snapshot.” It measured numbers of miles driven, time of day and sudden stops to set rates rewarding less hazardous driving. However, Progressive’s Snapshot program did not integrate GPS data – it used a device that plugged into the car’s OnBoard Diagnostic port. And companies with large vehicle fleets have used it to track driver safety — an automated answer to “How’s My Driving?” through such services as SmartDrive.

It’s worth noting that one of the reasons that Motaquote may be moving towards telemetric data is that the European Court of Justice ruled  last year that car insurance rates based on gender were discriminatory. Insurance companies, not known as keen innovators, have been prompted to find new ways to distinguish good drivers from dangerous drivers, and telemetric data is perhaps more accurate than generalizing based on age or gender.

Still, the move to GPS-based calculation is sensitive. One reason that programs like Progressive’s have been uncontroversial is that they have not sent locational information to car insurance providers, and users have an option to view their data before opting-in to rates based upon it.  Although the Fair Pay system was just announced, its website suggests that drivers will opt-in before they can see how their driving will measure up.

Data privacy is also a serious concern. Will insurance companies be asked to turn over GPS data to law enforcement to show where a car (or driver) was at a specific time?  There’s currently no information on Fair Pay’s website about the privacy of the locational aspects of the data – something that anyone who wants a free GPS should consider first. Such policies don’t have to say “always” or “never” — but they should spell out the standards by which a company will respond to requests or demands for information, and more generally policymakers should set up standards to shield privacy from unwarranted intrusion, metaphorically and literally.

Telemetric data-based rates also mean that insurance-holders may be locked into specific providers. If a driver’s rate is based on years of good driving data, but that information is non-transferrable, he or she may not be able to switch insurance providers without a substantial rate hike. It would be better if insurance companies provided customers with options for data portability and download.  That would also help drivers make sure that insurance company rate changes were justified — instead of being told “Sorry, poor driving means you pay a higher rate,” without more, drivers could float their data to other insurance companies who could bid lower for the driver’s insurance account if it didn’t truly indicate poor driving.  That’s real competition, and it would provide the right incentives to insurance companies to refine their algorithms.  A sudden stop might actually indicate good driving — rabbit dashes in front of car and driver shows admirable reflexes.

There’s also some intriguing possibilities for complementary crowdsourcing of driver safety.  Lior Strahilevitz has written about this using the standard “How’s my driving” toll free number system, and I’ve mused on it for a fully saturating Internet environment.  I also weighed in for Marketplace Tech Report.

Fundamentally, there’s nothing wrong with GPS-based telemetric data setting insurance rates. Consumers have become more comfortable with locational tracking, and these types of plan are currently inherently opt-in. If the programs do indeed reward better drivers, then they can make driving (and walking or biking nearby) safer. The devil is in the details of how the data is collected, what companies do with it, and how consumers can access and use it.

–JZ and KA

Controlling Cyberspace

January 27th, 2012  |  by Kendra Albert  |  Published in Future of the Internet  |  8 Comments

This semester, we’re starting an exciting new class, aimed not at lawyers, but undergraduate CS students here at Harvard. It’s called CS42: Controlling Cyberspace – and we’re sharing the syllabus online.  Anything big we’re missing?

Description:

Why does the Internet environment exist in the form it does today? What does its future, and the future of online life in general, look like? To what extent is this future malleable? Governments, corporate intermediaries, and hackers are empowered to different degrees by the space, and their interests and strengths are often in tension. This class uses academic as well as non-traditional texts to engender a broader understanding of Internet culture and technology, with an end focus on making informed choices about the future.

A Note about Reading:

The reading for this class will be anywhere between 30-100 pages per session. It will probably be helpful to read the selections in the order they appear in the syllabus, as some of the texts assume knowledge provided by the ones before them. Of course, inclusion of something in the syllabus should not be taken as an endorsement of its position or author. People are still wrong on the Internet.

Readings are subject to change. Material not available publicly online will be posted to the course iSite.

Class 1: Monday, January 30th: The Internet’s Past

  • Internet History
    • John Perry Barlow. “A Declaration of the Independence of Cyberspace.”
    • Johnny Ryan. “The Essence of the Net from A History of the Internet and the Digital Future.” Ars Technica.
  • Who needs Cyberlaw?
    • Lawrence Lessig. “The Law of the Horse.” Harvard Law Review. 

Class 2: Monday, February 6th: Whatever Happened to Jurisdiction?

  • Dow Jones v. Gutnick
    • Jonathan Zittrain. Jurisdiction. pages 4-9, 47-54
    • Felicity Barringer. “Internet Makes Dow Jones Open to Suit in Australia.” The New York Times.
  • MegaUpload
    • MegaUpload Indictment. Pp. 1-65.
    • Nate Anderson. “Explainer: How can the US seize a ‘Hong Kong site’ like Megaupload?” Ars Technica.

Class 3: Monday, February 13th: Copyright and Free Speech

  • Copyright
    • Terry Fisher. Copyright for Librarians. Module 1 + Module 7.
  • Cancel-bots and Early Internet Speech
    • Skim: Wikipedia article on Scientology and the Internet.
    • Alan Prendergast. “Hunting Rabbits, Serving Spam: The Net Under Siege.”
  • The Power of the Cease and Desist
    • Peruse: Chilling Effects.
    • Yochai Benkler. The Wealth of Networks. Pp. 225-233.
    • Kim Zetter. “Diebold Loses Key Copyright Case.” Wired. 
    • Cease and Desist Demand, Trevor Eckhart.
    • Andy Greenberg. Carrier IQ: A Case Study in the Streisand Effect Squared. Forbes. 

Class 4: Thursday, February 23rd : Representing Ourselves Online

  • Avatars
    • Neal Stephenson. Snow Crash, (New York: Bantam Books, 1992), 35-44.
    • Nicolas Ducheneaut, Ming-Hui “Don” Wen, Nicholas Yee, Greg Wadley. “Body and Mind: A Study of Avatar Personalization in Three Virtual Worlds.” CHI 2009. (Intro, Discussion, Conclusion)
    • “City of Copies: Marvel. Vs. NC Soft.”
    • Memorandum of Points and Authorities of Amici Curiae Legal and Cultural Studies Scholars in Support of Defendants’ Motion for Summary Judgment. Electronic Frontier Foundation. 
  • Social Networks
    • Sherry Turkle. Alone Together. 181-199.
    • “What Happens When you Deactivate Your Facebook Account.” ReadWriteWeb.
    • Tim Carmody. “You Are Not Your Name and Photo: A Call to Reimagine Identity.“ Wired.

Class 5: Monday, February 27th: Defamation, Civility and Attribution

  • The Wikipedia Biography Controversy and Section 230
    • Legal Guide for Bloggers- Section 230 Protections. Electronic Frontier Foundation.
    • Wikipedia Biography Controversy. Wikipedia.
    • Reliability of Wikipedia, False Biographical Information. Wikipedia. 
  • Anonyminity and Pseudonymity
    • Green Blackboards (And Other Anomalies). PennyArcade. WARNING: Language NSFW.
    • Rachel Cooke and Aleks Krotoski. “Should Internet commentators use their real names?” Comment is free.
    • Kee Hinkley. “On Pseudonymity, Privacy and Responsibility on Google+.” TechnoSocial. Published July 27th, 2011. Pgs. 1-16 (No longer available online, will distribute PDF.)
  • Attribution
    • Aaron E. Kornblum. “Searching for John Doe: Finding Spammers and Phishers.”
    • David D. Clark, Susan Landau. “Untangling Attribution.”

Class 6: Monday, March 5th: Generativity

  • Theories of Generativity
    • Jonathan Zittrain. “Protecting the Internet Without Wrecking It.” Boston Review.
    • Read one of the responses: Bruce M. Owen, Richard Stallman, Susan Crawford, David D. Clark, Roger A. Grimes, and Hal Varian. http://bostonreview.net/BR33.2/ndf_internet.php
    • James Grimmelmann. “Applications and Applicances: A Conversation with Jonathan Zittrain.” The Laboratorium.
  • What about Content?
    • Brad Stone. “Amazon Erases Orwell Books from Kindle.” The New York Times.
    • Mark Frauenfelder. “Bezos apologizes for Kindle 1984 memory hole blunder.” BoingBoing.
    • Brian X. Chen. “iPad Apps Could Put Apple in Charge of the News.” Wired. 
  • Bootloaders
    • Jon Brodkin. “The Right to dual-boot: Linux groups plead case prior to Windows 8 launch.” Ars Technica.
    • Peter Bright. “Windows 8’s locked bootloaders: much ado about nothing, or the end of the world as we know it?” Ars Technica. 
    • Ed Bott. “Linux won’t be locked out of Windows 8 PCs, but FUD continues.” ZDNet.

Class 7: Monday, March 19th: DRM and Circumvention

  • The Playing Field
    • Fred Von Lohmann. “Unintended Consequences: Twelve Years under the DMCA.” Electronic Frontier Foundation.
    • Mark Stefik. “Trusted Systems.” Scientific American. March, 1997.
    • Decan McCullagah. “New Copyright Bill Heading to DC.” Wired.
  • A Whole New World
    • Adam Marcus. “3D Printing: The Future is Here.”  The Technology Liberation Front.
    • “It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology.” Public Knowledge. 
    • “Gang Used 3D Printers for ATM Skimmers.” Krebs on Security. 
    • Nick Bilton. “Disruptions: The 3-D Printing Free-for-all.” The New York Times. 

Class 8: Monday, March 26th: Crowdsourcing: Threat or Menace?

  • Threat
    • Ernest Cline. Ready Player One. (New York: Crown, 2011), 1-36.
    • John C. Tang, Manuel Cebrian, Nicklaus A. Giacobe, Hyun-Woo Kim, Taemie Kim, and Douglas “Beaker” Wickert. “Reflecting on the DARPA Red Balloon Challenge,” Communications of the ACM 54 (4). (2011).
    • Jonathan Zittrain. COG. Publication forthcoming. 1-5.
  • Menace
    • Brian Caulfield. “Turkish Delight.” Forbes.com.
    • “Internet Eyes, Fighting Crime from Home: Transcript.” On the Media.
    • Skim: “Ask HN: Are Freelancer sites (e.g. Odesk, Elance) useless?” Hacker News. 

Class 9: Monday, April 2nd: Gamification is…

  • The Devil
    • Jesse Schell. “Design Outside the Box” DICE 2010. (Video Presentation) G4 TV.
    • “What’s the Point of Steam Achievements Anyway?”
    • Critical Distance.
  • The Answer to Society’s Problems
    • The Cures of Cow Clicker: How a Cheeky Satire Became a Videogame Hit. Wired.
    • The Future is A Grind. Post-Hype.
    • Jane McGonigal. Reality is Broken. pgs. 53-79.
  • Funny
    • Peter Bright. “Microsoft keeps it old-schools with a pricey text adventure game, Visual Studio 2010.” Ars Technica. 

Class 10: Monday, April 9th: Regulation, Governance and The Internet’s Future

  • Short Term
    • Eliza Krigman. “Next battle over Net ramps up worldwide.” Politico.
    • Julian Sanchez. “Internet Regulation & the Economics of Piracy.” Cato@Liberty. http://www.cato-at-liberty.org/internet-regulation-the-economics-of-piracy/
    • Ian Shapira. “Obama administration joins critics of US nonprofit group that oversees Internet.” The Washington Post. 
  • Medium Term
    • Charles Stross. “USENIX 2011 Keynote: Network Security in the Medium Term, 2061 – 2561 AD.” Charlie’s Diary. 

Computers Going Wild?

January 27th, 2012  |  by Kendra Albert  |  Published in Future of the Internet  |  1 Comment

Computers Gone Wild: Impact and Implications of Developments in Artificial Intelligence on Society was an informal discussion that took place at Harvard Law School on December 8th, 2011. Hosted by Jonathan Zittrain, Marin Soljačić and the Berkman Center for Internet & Society, we brought together eighteen mostly local guests to discuss the ways that AI is changing society. Unlike futuristic predictions involving the Singularity or the underlying technology, this workshop explored current technology. Sessions included discussions on warfare, finance, education, and labor. Below is a list of attendees and a summary of the discussion.

Attendees:

  • Ryan P. Adams – Assistant Professor of Computer Science, School of Engineering of Applied Sciences, Harvard University.
  • Susan Athey – Professor of Economics, Department of Economics, Harvard University.
  • David Autor - Professor and Associate Department Head, Department of Economics, MIT.
  • Gabriella Blum – Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School.
  • Daniel Dennett – Austin B. Fletcher Professor of Philosophy, Tufts University.
  • Peter Galison – Joseph Pellegrino University Professor, Department of the History of Science, Harvard University
  • Andrew Lo – Harris & Harris Group Professor, Director, MIT Laboratory for Financial Engineering, MIT.
  • John Markoff – Journalist, The New York Times.
  • Andrew McAfee – Principal Research Scientist at Center for Digital Business, MIT Sloan School of Management.
  • John Palfrey – Henry N. Ess III Professor of Law and Vice Dean, Library and Information Resources, Harvard Law School, Harvard University.
  • David Parkes – Gordon McKay Professor of Computer Science, School of Engineering and Applied Sciences, Harvard University.
  • Steven Pinker - Harvard College Professor and Johnstone Family Professor, Department of Psychology, Harvard University.
  • Lisa Randall – Frank B. Baird, Jr., Professor of Science, Department of Physics, Harvard University.
  • Stuart Shieber – James O. Welch Jr. and Virginia B. Welch Professor of Computer Science, School of Engineering and Applied Sciences, Harvard University.
  • Marin Soljačić - Professor of Physics, Physics Department, MIT.
  • Jeannie Suk – Professor of Law, Harvard Law School, Harvard University.
  • Jonathan Zittrain - Professor of Law, Harvard Law School/ Harvard Kennedy School of Government, Professor of Computer Science, Harvard School of Engineering and Applied Sciences, Harvard University.

Military:

We discussed the modern military use of drones and other semi-autonomous, non-human forms of warfare. There are some ways that robot technology represents merely a new technology in war, like crossbows or gun powder. However, as more and more decisions are aided by machines, there is some evidence that reliance on robots makes humans less likely to overrule in favor of their own judgment in circumstances not anticipated by the AIs. For example, the crash of Air France 447 was traced to the pilots not being trained to handle a situation when the autopilot was not functioning, and not trusting the non-autopilot instruments.

Internationally, forty-five states currently have drone technology, and it is becoming increasingly accessible to non-states. The uses of drones or very small surveillance robots for criminal purposes may become normal, and access to these technologies could increase the power of non-state actors. The combination of WMDs and drone technology could mean that a terrorist organization could deploy a weapon without putting a person on the ground.

Additionally, the lower prices of small surveillance robots and memory storage, and the rise of machine learning may mean that it could become commonplace to monitor activities of civilians at all times to determine appropriate targets. Imagine a microphone near every kitchen table in a small village in Afghanistan, listening for “insurgent” activity.  Law governing surveillance of activities in plain view currently typically relies on the fact that the cost and effort of monitoring and processing information is high enough that mass data collection is not effective.  What should happen when those assumptions no longer hold?

Another question raised by the military use of AI is how to evaluate decisions made by non-human actors. Would countries be responsible for explaining the variables they used and the algorithms that calculate drone decisions? In the past, increases in technological progress have decreased war casualties and, in the case of nuclear weapons, deterred countries from going to war. Wars may become more common as the potential for both collateral and symmetric loss of human life decreases. See, for example, Congress’s debate about drones in Libya – where the lack of human involvement was a reason why some politicians were wiling to get involved. How will norms related to killing change if there is no potential for a human to be harmed on the side of the attacker?

Finance

Recent flash crashes have shown the role of algorithms and high frequency trading in the New York Stock Exchange, and the potential for disaster. For example, in August 2007, a fifteen-minute glitch caused by programmers using a placeholder value of a penny in an algorithm triggered thousands of sell orders. Stock prices of some companies dropped from forty dollars to less than a dollar in minutes, and the NYSE rolled back a certain amount of trades.

High frequency trading is a form of algorithmic trading that is dependent on the ability to trade small amounts of stock quickly in order to make small amounts of money. Trades can be made in under a millisecond, and firms are now competing for servers as physically close to the stock exchange as possible in order to complete trades faster. It’s dubious that high frequency trading is adding significant value or benefit to the market (besides making a small number of people very rich). There is a definite wealth transfer between those with the technology and those without, and increased volatility – perhaps counterintuitive to the notion that quicker trades make for better liquidity and stability.

Inequality between firms with algorithmic potential and those without it is a significant concern. The algorithms are not patentable so firms keep them as trade secrets, and there is a definite gap between firms that can afford to develop algorithms and firms that can’t. Firms with technology will continue to make more money than those without, polarizing the market even further.

Given that flash crashes have already happened, a large portion of this session was devoted to discussing potential methods of regulation, including a tax on trades (“Tobin tax”) or a requirement that trades be posted for a certain amount of time. The Tobin tax has serious downsides, as there are reasons other than algorithmic or high frequency trading for a firm to make many trades quickly; for example, pension funds often need to liquidate lots of stock over a brief time frame. Posting trades for a small amount of time (say one second) has less obvious downsides, and could prevent crashes of the type that happened in 2007.

Because of the secrecy surrounding the algorithms, it has not been possible to measure the systemic risk posed by many automated traders acting at the same time. However, it seems that if limitations on trading are not imposed, regulators should attempt to determine the total risk and whether the rewards are worth it.

Labor:

The type of jobs that computers are able to do has changed significantly over the past couple of years. For example, law firms used to hire associates to do document review for discovery, but now can use computer programs. White collar jobs are becoming increasingly susceptible to automation.

During past revolutions in labor, technologies that improve productivity have not destroyed jobs entirely; they merely move them to different sectors. However, most of the jobs that were replaced were not knowledge workers, but blue collar or manual labor. Because of this difference in the type of jobs replaced, it’s possible that this labor shift won’t result in the same sorts of job movements as past shifts in labor. There is a fundamental disagreement about whether that trend will hold up in the future – whether robots and AI will destroy jobs or whether the jobs will just move to other areas. Some argued that the new jobs created may be “below human dignity,” underpaid or not ideal, but will exist – others saw more of a move towards robots in general, with humans not finding new areas of work.

Another key theme was the question of the appropriateness of computers or robots for jobs that require binding decision-making. So far, most of the advances in labor markets related to computers have been improving productivity, with humans still in control. However, as machines become more sophisticated, it’s possible that they will make fewer errors than similarly situated humans. For example, a parole board in Israel was found to parole 65 percent of prisoners seen at the beginning of the day but the number dropped to near zero by the end of the session when the judges were about to break for lunch. Robots, the claim goes, may be in a better position to make those kinds of decisions– they wouldn’t be swayed by emotional appeals, biases or time of day, and could evaluate based on a specific set of variables. If robots can do better than the equivalent human, should we be prepared to replace parole board members? How do we handle accountability for robot justices?  There was a spirited split within the group on this issue.

There’s a certain discomforting factor about life and death decisions being made by algorithmic processes, even given the foibles of human decision-making. Are there cases where we would want humans to make a decision, even if they are worse at it than an algorithm might be?

Education:

The workshop then had a mini-session about education and the role of the university professor as technology progresses. Examples of teaching affected by technology included Stanford’s AI class (with 54,000 people taking the class via the Internet) and the development of computer simulations of experiments. Using computers to speed up and aid research in some fields is easy; however, technological progress becomes more complicated when it is hard to scale the student-teacher experience.

Technology could help democratize the educational experience; however, some of the spontaneity and personal connections between professors and students might be lost. Allowing for universal access to educational materials may be beneficial, but how do you ensure quality control and preserve the ability of students to interact personally?

The Future:

It’s easy to make doomsday predictions without understanding the science, or to suggest regulation as a kneejerk response, but it’s important to realize that it’s hard to intervene without data.

For the Finance case, an intervention seemed most helpful because there were a clearly defined set of problems and actors. In military and labor, fundamental uncertainty about the next steps along the AI path meant that regulation (or even predictions) seemed unwise. However, all three cases made the participants wish for a better understanding of the systematic risks involved with changes that have already gone on, in order to better prepare for the future.

Summary by Kendra Albert.

Ideas for a Better Internet

January 25th, 2012  |  by aliciasn  |  Published in i4bi  |  Click to comment

Ideas for a Better Internet, or i4bi, is an interdisciplinary course at Harvard and Stanford that challenges students from law, computer science, and public policy to come up with novel and plausible ways to improve the Internet and its use. i4bi centers on immersing participants in Internet history, technologies, and politics, so that students can come up with ideas that help to build a better Internet — however they define “better.”The most recent cycle of i4bi began in spring 2011, when students solicited ideas from the public in categories such as Content & Creativity, Privacy & Identity, and Social & Democratic Change. By interacting with the broader community, i4bi aimed to make good on the belief that it espoused in its original call for development of ideas that “such a project needs to be connected to the collective intelligence of the whole web community rather than just taking in great ideas from the outside and then processing them solely in the ivory towers of exclusive committees or working groups.” In short, i4bi wanted to be sure that the ideas it would develop would matter and would take place in the context of what is already happening online, not only for students enrolled in the course, but also for the worldwide community of individuals interested in Internet regulation, law, content, and architecture.

Along with conversations with people from civil society, industry, research, and government, these ideas received from the public served as the genesis for the eight project teams across Harvard and Stanford that convened in autumn 2011. Through bi-weekly meetings throughout the fall followed by an intensive three-week design seminar during January 2012 at Stanford, each project team developed a project that it presented at the Ideas for a Better Internet Summit alongside presentations and a panel featuring thought leaders and luminaries from both the public and private sectors.

The public event garnered over 600 registrants in less than 24 hours, a sign of interest in big picture assessments of the Internet and its future. We’re considering expanding i4bi beyond the traditional classroom, perhaps by drawing in members of the public as ongoing in-person participants. As the original i4bi call for ideas stated, the “Internet has succeeded because of its unique openness to innovation, collaboration and the development of ideas and standards that have encouraged this” openness, and the future of i4bi will continue to hone innovative methods that carry forward the very best of its ideas.

2010 Fall Term Cyberlaw Seminar: Cybersecurity and Cyberlaw Projects
Four Quadrants of Cybercrime
The Institutional Structure of Cyberlaw
Internet Freedom and China: A Framework for Analysis

2011 January Term Joint Harvard-Stanford Cyberlaw Seminar: Cybersecurity and Cyberlaw Projects
Pharos
WikiWhistles

2012 January Term Joint Harvard Stanford Ideas for a Better Internet Seminar: Group Projects
Mesh Networking
FOIAbase
StudyWith
Privacy Pledge
Moby Dick Project
DataWatch
Mirror As You Link
Mozilla Collusion

Microsoft Echoes Apple App Store Requirements

December 14th, 2011  |  by Kendra Albert  |  Published in Future of the Internet  |  Click to comment

Here at Future of the Internet, we’ve already talked a little bit about Apple’s content requirements for both the iOS and Mac App Stores in JZ’s The PC is Dead post. As JZ said,

“Pulitzer Prize-winning editorial cartoonist Mark Fiore found his iPhone app rejected because it contained “content that ridicules public figures.” Fiore was well-known enough that the rejection raised eyebrows, and Apple later reversed its decision. But the fact that apps must routinely face approval masks how extraordinary the situation is: tech companies are in the business of approving, one by one, the text, images, and sounds that we are permitted to find and experience on our most common portals to the networked world. Why would we possibly want this to be how the world of ideas works, and why would we think that merely having competing tech companies—each of which is empowered to censor—solves the problem?”

Apple’s approach is an example of a larger phenomenon. Microsoft recently released its guidelines for its new Windows 8 app store, and it looks like the company wants the same level of editorial control. From the Windows 8 Store Terms of Use:

You [the developer] may not include or submit any content that is untrue, misleading, defamatory, infringing, or harassing, that constitutes hate speech, that is or includes sexual content, that insinuates profanity, or that is otherwise objectionable.

This places Microsoft’s review team in the position of deciding what is untrue, infringing or otherwise objectionable (not to mention what “insinuates profanity” — a rather odd turn of phrase, perhaps meant to cover sanitized profanity like “sh*t”?).

There is at least one major difference between the current Microsoft store and the Apple store: Microsoft has phrased its licensing in such a way to allow free and open source software to be distributed through the store without breaking either license. In the license to customer section of its app developer agreement, Microsoft says:

Your license terms must also not conflict with the Standard Application License Terms, in any way, except if you include FOSS, your license terms may conflict with the limitations set forth in Section 3 of those Terms, but only to the extent required by the FOSS that you use. “FOSS” means any software licensed under an Open Source Initiative Approved License.

It appears that the Open Source Initiative’s licenses (which include the GPL) will then be commensurable with Microsoft’s, meaning that software developers don’t have to give up their free and open source rights (and requirements) to use the Windows 8 Store.

Like Apple’s OS X App Store, the Windows 8 store is only one method of installing applications on machines running Windows 8. Users can still download applications from the Internet or buy software elsewhere to install on their machines: “sideloading.”

Microsoft reserves the right to retroactively delete from users’ machines any apps that it no longer wants to distribute through the store. It brings to mind the 1984 Kindle incident,where Amazon removed versions of Orwell’s 1984 from purchasers’ Kindles.  ”The death of the PC” is not a claim about the withering away of the PC form-factor — but rather, the end of commonly installing software without requiring the assent of an intermediary.  Apple’s products have provided a model for this end, one now replicated in part by Microsoft.

A SOPA compromise is floated

December 7th, 2011  |  by jz  |  Published in Future of the Internet  |  3 Comments

Last week several members of Congress — Senators Wyden, Cantwell, Moran, and Paul, and Reps. Issa, Lofgren and Chaffetz — floated a proposal to substitute for the contentious proposed Stop Online Piracy Act, previously discussed here.  Sen. Wyden’s office has commented on the compromise, and TechDirt has a writeup and a copy of the document here. The proposal omits the elements of SOPA that had run into the most resistance. Gone is tinkering with fundamental Internet architecture such as the use of the domain name system. Gone is the involvement of the Attorney General. Gone is the criminal copyright streaming provision that could, theoretically, make a teenage Justin Bieber a felon for streaming amateur videos featuring his renditions of songs by his favorite artists.In all these ways, the Wyden compromise is significantly better than SOPA. So what’s left?The compromise framework makes an interesting conceptual maneuver: it links international trade in counterfeit goods (think fake Gucci handbags or DVDs) with international Internet downloading or streaming of copyright infringing material. From the proposal, “In a digital economy, illegally downloading a movie from a foreign website is no different than importing an illegal copy from a company in China.”There are certainly similarities between physical and virtual IP violations — both, after all, involve intellectual property laws, and DVDs in particular are containers for the same content that otherwise can be streamed online.  But there are big differences, too. International counterfeiting rings involve hard losses to U.S. manufacturers by providing products to people who, in buying them, are showing that they might otherwise be buying the real thing. Shady download sites are quite possibly another story: those willing to ferret out free files amidst the banner ads at a “.ru” address might not buy legitimate DVDs and CDs even if the overseas site were unavailable.  Downloads of free (but copyright infringing) content simply may not represent lost purchases of the real thing to the same degree that people paying for counterfeit goods may buy the real ones if the fakes aren’t available.  More important, a lot of the reasons for aggressive trademark enforcement has to do not only with lost sales to legitimate sellers, but public safety.  Many physical products with gray market origins may not be safe to wear, eat, or give to your kids, and may be virtually indistinguishable from their authentic counterparts.

The linkage between real and virtual, however, paves the way for the meat of the compromise proposal.  It involves an obscure century-old U.S. entity: the International Trade Commission, an “independent, nonpartisan, quasi-judicial federal agency.”  From its website:

“The mission of the U.S. International Trade Commission is to: (1) administer U.S. trade remedy laws within its mandate in a fair and objective manner; (2) provide the President, the United States Trade Representative (USTR), and Congress with independent, quality analysis, information, and support on matters relating to tariffs and international trade and competitiveness; and (3) maintain the Harmonized Tariff Schedule of the United States.”

In general, a U.S. company can complain to the ITC about anti-competitive practices by foreign competitors such as dumping (selling items far below cost to put others out of business) or patent or trademark infringement (making product knock-offs).  The ITC, in turn, can affirm that such practices are happening, which then leads to a complex process by which the U.S. Department of Commerce can impose punitive tariffs on the import of foreign goods.  You can see a list of “cases” pending before the ITC here. (Cases may belong in quotes because, as the ITC says, “The USITC is NOT a policymaking body. It is NOT a court of law. It does NOT negotiate trade agreements.”)

The ITC process takes awhile.  For example, in March of 2010 Apple lodged a complaint about HTC infringing its patents.  An administrative judge set a target date to rule about it around 15 months from the complaint; and the ITC made an initial determination in July of 2011.

With this background, we can infer how the framers of the SOPA compromise came up with the idea of bringing in the ITC. One big problem with the original SOPA proposal is that private parties could go directly to intermediaries like payment providers and ad networks with complaints about sites “dedicated to theft of U.S. property” and demand that they be cut off, with no disinterested party weighing in on the merits of the complaint. With the ITC, there’s a way to get some due process into the picture: under the compromise, private parties aggrieved by copyright infringement made possible by foreign web sites lodge complaints with the ITC over “digital imports … by foreign websites.”

If the ITC agrees the the foreign website is infringing copyright, it could issue a cease-and-desist order against the website, and the rightsholders could then use the order to compel domestic payment providers and ad networks to break off relationships with the foreign site.  There’s also provision for the ITC to penalize rightsholders who lodge frivolous claims.

But there are important issues left unresolved in the draft — which, at two pages, doesn’t cover many details.  On a mundane level, it’s not clear what counts as a foreign website.  SOPA’s definition was odd: it was any site that used an overseas registrar for its domain name.  That’s an unusual definition — it could include lots of sites that are hosted in the US but just happened to register a domain name by using an overseas name retailer.  Presumably the right definition covers only sites that are truly overseas, and perhaps completely so — ones beyond the reach of traditional U.S. civil law enforcement processes, which is why further legislation is called for.

More fundamentally, there’s a question about how well suited the ITC is to solve the due process worries of the original SOPA’s notice-and-takedown.   A look at the ITC’s current caseload shows comparatively low volume and long lead times — a few dozen open cases at any one time.  If the idea is to go after “kingpin” sites — the Pirate Bays of the world — then this may not be a problem. But if the proponents of Congressional action here are hoping to do voluminous takedowns of an expansive and rotating cast of sites, then the ITC’s involvement becomes tricky.  The proposal alludes to “boost[ing] the ITC’s administrative capacities,” perhaps in anticipation of having to buff up the commission’s infrastructure to handle an influx of claims.  However, more staff doesn’t address the deeper problem of a punt to the ITC.  To sort out meritorious claims of undue infringement from borderline ones from frivolous ones, each adjudication would likely take days or weeks.  That pace would likely not satisfy IP holders, who want to be able to whack the moles as they pop up.  But to make the process hours instead of days would eliminate the value of getting a quasi-public agency into the mix to determine the validity of claims.  HTC isn’t going anywhere, so Apple can bring a case to the ITC about its claimed patent infringement.  It’s a different story with a site like listen4ever.

As a political matter, SOPA may have represented an opening bid in a negotiation — after which the SOPA proposers found themselves surprised that it might actually pass unamended. Pushback across the spectrum has made that outcome less likely, and this compromise could be a continuation of a negotiation.  (To be sure, the Congressional proponents of SOPA appear to be unimpressed by this compromise, while suggesting that some changes will be made.)

The question Congress ideally would take up before passing anything is an empirical one, because overseas copyright infringement is a classic example of a public policy issue that hungers for real data.  We’d do well to have less unanchored rhetoric around this topic and more information about just what kinds of sites proponents want to target and what evidence they can produce to show the harm these sites are causing. Then Congress could evaluate how risky or costly legislative action against those sorts of sites would prove.  This is an earnest plea — we really could benefit from good data here.

Without it, any compromise may be simply pitted against a caricatured initial proposal — when both are ill-considered.  Bottom line: the Wyden compromise is significantly better than the original SOPA proposal, and it might form the basis for a new law against egregious overseas “kingpin” infringement.  A narrowly tailored proposal fleshing out the compromise would test how much the publishers seeking the law mean to go after only the big fish.  And developing some real data on the scope of the problem and the impact of solutions is both desirable and doable.

A close look at SOPA

December 2nd, 2011  |  by jz  |  Published in Future of the Internet  |  4 Comments

A Close Look at SOPA

Jonathan Zittrain, Kendra Albert and Alicia Solow-Niederman

This document is a guide to the Stop Online Piracy Act as proposed in the United States House of Representatives. Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong. (2011). It represents our notes as we sought to understand exactly what it does and how it does it — along with our corresponding sense for why its principal mechanisms make for poor law.  Our aim is for this analysis to be useful to anyone wanting to understand the Act — whatever his or her point of view may be on technology or intellectual property policy.

According to its advocates, SOPA will strengthen copyright in the United States by establishing a number of public and private tools to hinder infringement by international “rogue” sites previously unreachable by U.S. law. The Act also includes a number of independent provisions targeting the sale and dissemination of prescription drugs and military materials and equipment.

1. Copyright enforcement against websites, foreign & domestic.

The bulk of SOPA is a set of public and private mechanisms intended to give American copyright holders tools to combat offshore infringers. The Attorney General’s office, when armed with a court order (the granting of which doesn’t appear to have a standard beyond the Act’s definitions – the court “may” grant an order when requested Id., at § 102(c)), will be able to demand the elimination of access and funding to infringing sites on behalf of copyright holders. When acting alone, copyright holders can use these mechanisms to cut off funding.

Public Remedies (H.R. 3261, 112th Cong. § 102 (2011).)

SOPA gives tools to the U.S. Attorney General to combat “foreign infringing sites.” Id., at § 102. The definition of this term is unusual; a site with a domain name registered outside the U.S. (e.g. through a non-U.S. domain name registrar) seems to count as “foreign,” even if it’s run by an American company and hosted on U.S. soil. Id., at § 101(5)-101(8).  As an initial matter, the site must be “U.S. directed,” although virtually all sites not actively blocking U.S. IPs would fall under this category. See id. at § 102(a)(1). Infringement does not need to be direct, and instead may be imputed on sites that merely “facilitat[e] the commission” of copyright infringement . Id. at § 102(a).  The order can ask the operator of the targeted site to “cease and desist from undertaking any further activity as a foreign infringing site.” Id. at § 102(b)(5), and then the Attorney General can send additional copies of the order to “similarly situated entities” with permission of the Court – that is, others can fall under the Court’s power without previously having been given notice of a proceeding against them.  Id. at § 102(c)(1).

But these provisions are likely not the real force of the law, as fully overseas infringing sites may try to ignore a U.S. court order.  The law’s real force is focused domestically. Once a foreign infringing site has been made the subject of a court order, the Attorney General may apply the court order not only at the site but at American companies that occupy the space between the infringing site and an American end user’s browser- specifically, service providers, search engines, payment network providers, and advertising networks. Id. at § 102(c)(2). The court order may require these entities to take all “technically feasible and reasonable measures” to prevent access or payments to foreign infringing sites. Id. Those intermediaries would, it appears, not have been given notice or otherwise involved in the proceeding by which the Attorney General obtained the original order that would then bind them.

There are a number of specifics mentioned in the bill as “technically feasible and reasonable measures.” H.R. 3261 at § 102(c). For service providers 1, this includes “measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s IP address” Id. at § 102(c)(2)(A)(i). DNS blocking is one of the techniques that China uses to prevent access to dissident websites, and has serious technical ramifications. Sandia National Laboratories publisheda letter, after being asked for comment, characterizing the proposed DNS filtering as “whack-a-mole.” ISOC also released a paper detailing how DNS blocking would undermine the Internet architecture. Under a SOPA-based order, Internet search engines are to prevent an allegedly infringing site from being served to users as a direct hypertext link. Id. at § 102(c)(2)(B). Payment providers (like MasterCard or PayPal) must stop completing payment to the payment account used by the site. Id. at § 102(c)(2)(C). Finally, advertisers must complete three separate actions: cut off any ads that they were serving to the site, cut off any advertisements for the site served on other websites, and finally, cut off payments stemming from advertisements. Id. at § 102(c)(2)(D).

SOPA critics point to the vagueness of the phrase “technically feasible and reasonable measures” when questioning the burden the Act will place on intermediaries. An elephant in the room is whether this requirement would necessitate active monitoring of all content to prevent access to previously-noticed infringing sites and/or content. It is notable that payment providers and advertising companies alone are explicitly exempt from having a “duty to monitor” future infringing activity. H.R. 3261 at 102(c)(2)(D)(ii). The Act is silent on whether service providers and search engines have a duty to monitor, which, by implication, may be said (and surely would be argued) to render such a duty.

SOPA encourages such a broad reading by granting immunity to parties who act to limit access to copyrighted materials and by reserving the possibility of litigation for parties that fail to act. See id. at § 102(c)(5)(A). The Attorney General may bring an action for injunctive relief – essentially a further court order – against third parties for not complying with the first court order. Id. at § 102(c)(4)(A)(i). Injunctive relief may also be sought against any entity that provides a product or service designed (or marketed) to circumvent the procedures proposed under SOPA. Relief is to be limited to injunctive mechanisms, and SOPA by itself does not appear to impute infringement on a non-complying service provider, search engine, or payment network. Still, when faced with immunity for action or litigation against the Justice Department for inaction, it is plausible  that technology companies would be highly motivated to overcensor. Worse, the kinds of circumvention tools supported within human rights communities and by the U.S. government as part of its Internet freedom initiatives against authoritarian censorship are precisely the tools targeted for elimination under SOPA.

The overwhelming controversy regarding SOPA’s public remedies (that is, those initiated by the Attorney General rather than a private party) regards the provision allowing a court to order a service provider–essentially an unwitting middleman–to take all “technically feasible and reasonable measures” to block an infringing site. Id. at § 103. The Act’s most fervent critics often point to this element when stating that SOPA has the potential to kill the Internet as we know it, placing the fate of interoperability in the hands of technically unsophisticated judges. Only slightly less fervent critics note that this provision would align federal Internet policy with China and like-minded regimes. While the current statute is limited to copyright infringement, the concern is that it establishes an architecture for widespread – indeed, nationwide – technical implementations of censorship.[2]

Private Remedies (H.R. 3261, 112th Cong. § 103 (2011))

SOPA further provides what it calls a “Market-Based System to…Protect U.S. Property.”  H.R. 3261 at § 103.  This “market-based system” is a private mechanism by which an IP holder can pressure payment network providers and Internet advertising services to cease all transactions with “sites dedicated to theft of U.S. property.” See id.

This private remedy does not use the “foreign infringing sites” terminology from the public mechanism. Id. at § 102(a). Here the ultimate infringers are described as sites “dedicated to theft of U.S. property.” Id. at § 103.  The statutory definition goes beyond what the label colloquially suggests. For example, a site may be branded as “dedicated to theft of U.S. property” if it simply “is taking, or has taken, deliberate actions to avoid confirming a high probability” of the use of the site for copyright infringement. Id. at § 103(a)(ii).
An American copyright holder can therefore approach a payment processor or advertising network and demand that it do whatever is technically feasible and reasonable to prevent sites it deems “dedicated to theft of U.S. property.”  Id. at § 103.  Unlike in the public remedy, the copyright holder can only seek to cut off payments from payment providers and advertisers. Id.

The threshold for a private corporation giving such a notice is presumably lower than the court order standard in the public remedy.  As such, this is arguably SOPA’s most powerful element and one positioned to be applied in a particularly overbroad way.  Under the Digital Millennium Copyright Act of 1998, which has an analogous private system of notice-and-takedown, there are countless well-intentioned actors, yet some rightsholders have nonetheless overreached (both intentionally and unintentionally). Under SOPA, payment and advertising companies will have a tremendous incentive to cooperate with a stream of private requests for reasons such as the inconvenience of or inability to evaluate the rightsholder’s claims.  Unlike the public remedy, the private remedy allows the alleged infringer to provide counter notification to the third party,3 after which the third party can presumably decide whether or not to comply.  H.R. 3261 at § 103(b)(5).

It is important to note that SOPA provides a cause of action, including attorney’s fees, for parties damaged by a knowing, material misrepresentation made in conjunction with the private enforcement mechanisms’ notice and counter-notice provision.  Still, the third party must comply within five calendar days from the initial notice.  Id. at § 103(b).  The turnaround time, taking into account legal advice and the alleged infringer’s counter-notice, is extremely tight. Any intellectual property counsel can attest that those limits will be difficult to navigate, especially without exempting holidays and weekends, which turn out to be when such notices are often sent.

As with the public remedy, the payment and advertising companies are immune from liability if they cut off funding to a site or entity in accordance with SOPA.  Should a payment or advertising company not comply, the rightsholder may then seek injunctive relief against the non-complying third party.  H.R. 3261, 112th Cong. § 103(c) (2011).

Issues Common to Both Public and Private Remedies

Industry lobbyists and other supporters argue that SOPA is designed specifically to combat “foreign rogue sites.”  The image they draw is of brazenly obviously illegal sharing and downloading, such as the Pirate Bay and its brethren.  Yet “foreign infringing sites” and sites “dedicated to the theft of U.S. property” could include almost any website registered outside of the United States that allows user-generated content.  Requiring American third parties to take all “technically feasible and reasonable” efforts to block such sites, prospectively in some cases, is equally vague.  If this legislation were only aimed at the Pirate Bays of the world, the language could and would be much tighter. In many instances, statutory language is vague for a reason: to afford maximum leverage by one party intent on invoking a law over whoever is subject to the law.

Immunity for Voluntary Action

Even without instigation by the Attorney General or rightsholders, alleged infringers may find their sites blocked and their funding cut off without any sort of due process.  SOPA grants payment providers, Internet search engines, advertising services, service providers, and domain name registries immunity from suit for voluntarily acting in a manner consistent with the public and private mechanisms against a site that they “reasonably believe” is a foreign infringing site or dedicated to the theft of US property.  H.R. 3261 at § 104.  Even with no copyright holder notifying them that their rights are being violated, all of these actors can take down or stop serving revenue to sites, as long as they are consistent with terms of use.  Id.

Likewise, payment providers, Internet search engines, advertising services, service providers, and domain name registries are also not liable for taking action against sites they believe are “endangering public health.”  Id. at § 105.

2. “Notorious foreign infringers” and U.S. investors ((H.R. 3261, 112th Cong. § 107 (2011).)

The U.S. IP Enforcement Coordinator, along with various agency heads, will identify “notorious foreign infringers” who are causing “significant harm to holders of IP rights in the US”, soliciting suggestions from the public and rights holders.  Id. at § 107(a)(1).  This information will be made into a report to Congress, which will examine and analyze various methods of combating IP rights violations, including and up to prohibiting such sites from raising capital in the United States.  Id. at § 107(b)(5).  While SOPA does not directly prohibit such investment, the spectre of such a ban may lead to a chill in investor confidence in countless internet startups, even those that may only distantly be thought of as enabling copyright infringement, such as social networks or content creation platforms.

3. Amendments to existing criminal copyright laws

Criminal penalties for streaming. (H.R. 3261, 112th Cong. § 201 (2011).).

While most of SOPA’s IP treatment revolves around the third-party-based enforcement mechanisms outlined above, the Act also does refine a number of existing IP laws.  Most notable among the many changes, SOPA calls for the criminalization of public performance copyright infringement.  H.R. 3261 at § 201.  This provision is specifically targeted at digital streaming and provides criminal penalties for streaming copyrighted material with ten or more views and a retail value of $2,500.  Id. at § 201(b).  This sweeping and vague change could categorize millions of Americans as criminals.  Prosecutorial discretion thus determines whether these long prison terms are applied fairly.  The colorful advocacy at http://freebieber.org/ is, at its core, pointing out the implications of this inexplicably broad provision: the videos that teenage Justin Bieber posted of himself singing songs by his favorite artists do indeed appear to qualify as felonies under the Act.  This is a particular irony, since those videos launched Bieber’s career as a musician – exactly the people the Act is intended to protect.

Additional criminal penalties (H.R. 3261, 112th Cong. § 202-203 (2011).).

SOPA amends 18 U.S.C. §  2320 to add the importation, export, or participation in the manufacture of counterfeit drugs to the list of criminal activities.  Id. at § 202(1)(a)(iii).  It also increases the penalties for the production or distribution of counterfeit products that result in serious bodily harms from twenty years to life in prison.  Id. at § 202(2)(a).  SOPA further increases the penalties for manufacturing or distributing counterfeit goods to the military (or in a way that may harm national security).  Id. at § 202(3).

SOPA also amends 18 U.S.C. § 1831(a) to increase penalties for individuals or organizations committing economic espionage.  Id. at § 203.

4. Protecting IP rights abroad

In what would potentially be a significant increase in the United States diplomatic corps and its activities, SOPA requires the Secretary of State and of Commerce to ensure diplomatic missions or embassies have “adequate resources” to pursue “aggressive support of enforcement action against violations of intellectual property.”  H.R. 3261 at § 205.  It would further require the diplomatic corps to make best efforts to see that foreign countries honor existing intellectual property treaties.  Id. at § 205(a)(2).
Under SOPA, special intellectual property attachés hired by the Director of the Patent and Trademark Office will work from within embassies or diplomatic missions to advance United States intellectual property policy goals in general and specifically to reduce intellectual property infringement.  Id. at § 205(b).

Conclusion

Others have weighed in on why SOPA makes for poor public policy and is an ill-considered technical intervention.  In this paper we’ve hewed closely to simply reviewing it as legal doctrine.  On those terms, its vague language and undue granting of law-like powers to private parties without sufficient public protections make it worthy of a firm “no” vote. SOPA is both overly strong and overly broad; overly strong in the collection of remedies provided, and overly broad for the problems it is attempting to take on.

Jonathan Zittrain is a member of the boards of the Electronic Frontier Foundation and the Internet Society.  Both organizations have weighed in on this bill. However, the opinions expressed above are his (and our) own.

Notes:
1 “As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k).

2 The United States may have already crossed that threshold with our government’s actions regarding Wikileaks.

3 As with the DMCA, counter-notice requires the alleged infringer to consent to U.S. jurisdiction in the matter.

The PC is dead. Why no angry nerds?

November 30th, 2011  |  by jz  |  Published in Future of the Internet, Generativity  |  32 Comments

From Technology Review:

The Personal Computer Is Dead

Power is fast shifting from end users and software developers to operating system vendors.

By Jonathan Zittrain

The PC is dead. Rising numbers of mobile, lightweight, cloud-centric devices don’t merely represent a change in form factor. Rather, we’re seeing an unprecedented shift of power from end users and software developers on the one hand, to operating system vendors on the other—and even those who keep their PCs are being swept along. This is a little for the better, and much for the worse.

The transformation is one from product to service. The platforms we used to purchase every few years—like operating systems—have become ongoing relationships with vendors, both for end users and software developers. I wrote about this impending shift, driven by a desire for better security and more convenience, in my 2008 book The Future of the Internet—and How to Stop It.

For decades we’ve enjoyed a simple way for people to create software and share or sell it to others. People bought general-purpose computers—PCs, including those that say Mac. Those computers came with operating systems that took care of the basics. Anyone could write and run software for an operating system, and up popped an endless assortment of spreadsheets, word processors, instant messengers, Web browsers, e-mail, and games. That software ranged from the sublime to the ridiculous to the dangerous—and there was no referee except the user’s good taste and sense, with a little help from nearby nerds or antivirus software. (This worked so long as the antivirus software was not itself malware, a phenomenon that turned out to be distressingly common.)

Choosing an OS used to mean taking a bit of a plunge: since software was anchored to it, a choice of, say, Windows over Mac meant a long-term choice between different available software collections. Even if a software developer offered versions of its wares for each OS, switching from one OS to another typically meant having to buy that software all over again.

That was one reason we ended up with a single dominant OS for over two decades. People had Windows, which made software developers want to write for Windows, which made more people want to buy Windows, which made it even more appealing to software developers, and so on. In the 1990s, both the U.S. and European governments went after Microsoft in a legendary and yet, today, easily forgettable antitrust battle. Their main complaint? That Microsoft had put a thumb on the scale in competition between its own Internet Explorer browser and its primary competitor, Netscape Navigator. Microsoft did this by telling PC makers that they had to ensure that Internet Explorer was ready and waiting on the user’s Windows desktop when the user unpacked the computer and set it up, whether the PC makers wanted to or not. Netscape could still be prebundled with Windows, as far as Microsoft was concerned. Years of litigation and oceans of legal documents can thus be boiled down into an essential original sin: an OS maker had unduly favored its own applications.

When the iPhone came out in 2007, its design was far more restrictive. No outside code at all was allowed on the phone; all the software on it was Apple’s. What made this unremarkable—and unobjectionable—was that it was a phone, not a computer, and most competing phones were equally locked down. We counted on computers to be open platforms—hard to think of them any other way—and understood phones as appliances, more akin to radios, TVs, and coffee machines.

Then, in 2008, Apple announced a software development kit for the iPhone. Third-party developers would be welcome to write software for the phone, in just the way they’d done for years with Windows and Mac OS. With one epic exception: users could install software on a phone only if it was offered through Apple’s iPhone App Store. Developers were to be accredited by Apple, and then each individual app was to be vetted, at first under standards that could be inferred only through what made it through and what didn’t. For example, apps that emulated or even improved on Apple’s own apps weren’t allowed.

The original sin behind the Microsoft case was made much worse. The issue wasn’t whether it would be possible to buy an iPhone without Apple’s Safari browser. It was that no other browserwould be permitted—or, if permitted, it would be only through Apple’s ongoing sufferance. And every app sold for the iPhone would have 30 percent of its price (and later, that of its “in-app purchases”) go to Apple. Famously proprietary Microsoft never dared to extract a tax on every piece of software written by others for Windows—perhaps because, in the absence of consistent Internet access in the 1990s through which to manage purchases and licenses, there’d be no realistic way to make it happen.

Fast forward 15 years, and that’s just what Apple did with its iOS App Store.

In 2008, there were reasons to think that this situation wasn’t as worrisome as Microsoft’s behavior in the browser wars. First, Apple’s market share for mobile phones was nowhere near Microsoft’s dominance in PC operating systems. Second, if the completely locked-down iPhone of 2007 (and its many counterparts) was okay, how could it be wrong to have one that was partially open to outside developers? Third, while Apple rejected plenty of apps for any reason—some developers were fearful enough of the ax that they confessed to being afraid to speak ill of Apple on the record—in practice, there were tons of apps let through; hundreds of thousands, in fact. Finally, Apple’s restrictiveness had at least some good reason behind it independent of Apple’s desire for control: rising amounts of malware meant that the PC landscape was shifting from anarchy to chaos. The wrong keystroke or mouse click on a PC could compromise all its contents to a faraway virus writer. Apple was determined not to have that happen with the iPhone.

By late 2008, there was even more reason to relax: the ribbon was cut on Google’s Android Marketplace, creating competition for the iPhone with a model of third-party app development that was a little less paranoid. Developers still registered in order to offer software through the Marketplace, but once they registered, they could put software up immediately, without review by Google. There was still a 30 percent tax on sales, and line-crossing apps could be retroactively pulled from the Marketplace. But there was and is a big safety valve: developers can simply give or sell their wares directly to Android handset owners without using the Marketplace at all. If they didn’t like the Marketplace’s policies, it didn’t mean they had to forgo ever reaching Android users. Today, Android’s market share is substantially higher than the iPhone’s. (To be sure, that market share is inverted in the tablet space; currently 97 percent of tablet Web traffic is accounted for by iPads. But as new tablets are introduced all the time—the flavor of the month just switched to Kindle Fire, an Android-based device—one might look at the space and see what antitrust experts call a “contestable” market, which is the kind you want to have if you’re going to suffer market dominance by one product in the first place. The king can be pushed down the hill.)

With all of these beneficial developments and responses between 2007 and 2011, then, why should we be worried at all?

The most important reasons have to do with the snowballing replicability of the iPhone framework. The App Store model has boomeranged back to the PC. There’s now an App Store for the Mac to match that of the iPhone and iPad, and it carries the same battery of restrictions. Some restrictions, accepted as normal in the context of a mobile phone, seem more unfamiliar in the PC landscape.

For example, software for the Mac App Store is not permitted to make the Mac environment look different than it does out of the box. (Ironic for a company with a former motto importuning people to think different.)  Developers can’t add an icon for their app to the desktop or the dock without user permission, an amazing echo of what landed Microsoft in such hot water. (Though with Microsoft, the problem was prohibiting the removal of the IE icon—Microsoft didn’t try to prevent the addition of other software icons, whether installed by the PC maker or the user.)  Developers can’t duplicate functionality already on offer in the Store. They can’t license their work as Free Software, because those license terms conflict with Apple’s.

The content restrictions are unexplored territory. At the height of Windows’s market dominance, Microsoft had no role in determining what software would and wouldn’t run on its machines, much less whether the content inside that software was to be allowed to see the light of screen. Pulitzer Prize-winning editorial cartoonist Mark Fiore found his iPhone app rejected because it contained “content that ridicules public figures.” Fiore was well-known enough that the rejection raised eyebrows, and Apple later reversed its decision. But the fact that apps must routinely face approval masks how extraordinary the situation is: tech companies are in the business of approving, one by one, the text, images, and sounds that we are permitted to find and experience on our most common portals to the networked world. Why would we possibly want this to be how the world of ideas works, and why would we think that merely having competing tech companies—each of which is empowered to censor—solves the problem?

This is especially troubling as governments have come to realize that this framework makes their own censorship vastly easier: what used to be a Sisyphean struggle to stanch the distribution of books, tracts, and then websites is becoming a few takedown notices to a handful of digital gatekeepers. Suddenly, objectionable content can be made to disappear by pressuring a technology company in the middle. When Exodus International—”[m]obilizing the body of Christ to minister grace and truth to a world impacted by homosexuality”—released an app that, among other things, inveighed against homosexuality, opponents not only rated it poorly (one-star reviews were running two-to-one against five-star reviews) but also petitionedApple to remove the app. Apple did.

To be sure, the Mac App Store, unlike its iPhone and iPad counterpart, is not the only way to get software (and content) onto a Mac. You can, for now, still install software on a Mac without using the App Store. And even on the more locked-down iPhone and iPad, there’s always the browser: Apple may monitor apps’ content—and therefore be seen as taking responsibility for it—but no one seems to think that Apple should be in the business of restricting what websites Safari users can visit. Question to those who stand behind the anti-Exodus petition: would you also favor a petition demanding that Apple prevent iPhone and iPad users from getting to Exodus’s website on Safari?  If not, what’s different, since Apple could trivially program Safari to implement such restrictions? Does it make sense that South Park episodes are downloadable through iTunes, but the South Park app containing the same content was banned from the App Store?

Given that outside apps can still run on a Mac and on Android, it’s worth asking what makes the Stores and Marketplaces so dominant—compelling enough that developers are willing to run the gauntlet of approval and take a 30 percent hit on revenue instead of simply selling their apps directly. The iPhone restricts outside code, but developers could still, in many cases, manage to offer functionality through a website accessible through the Safari browser. Few developers do, and there’s work to be done to ferret out what separates the rule from the exception. The Financial Times is one content provider that pulled its app from the [iOS] App Store to avoid sharing customer data and profits with Apple, but it doesn’t have much company.

The answer may lie in seemingly trivial places. Even one or two extra clicks can dissuade a user from consummating what he or she meant to do—a lesson emphasized in the Microsoft case, where the ready availability of IE on the desktop was seen as a signal advantage over users’ having to download and install Netscape. The default is all-powerful, a notion confirmed by the value of deals to designate what search engine a browser will use when first installed. Such deals provided 97 percent of Firefox-maker Mozilla’s revenue in 2010—$121 million. The safety valve of “off-road” apps seems less helpful when people are steered so effortlessly to Stores and Marketplaces for their apps.

Security is also a factor—consumers are willing to consign control over their code to OS vendors when they see so much malware out in the wild. There are a variety of approaches to dealing with the security problem, some of which include a phenomenon called sandboxing—running software in a protected environment. Sandboxing is soon to be required of Mac App Store apps. More information on sandboxing, and a discussion of its pros and cons, can be found here.

The fact is that today’s developers are writing code with the notion not just of consumer acceptance, but also vendor acceptance. If a coder has something cool to show off, she’ll want it in the Android Marketplace and the iOS App Store; neither is a substitute for the other. Both put the coder into a long-term relationship with the OS vendor. The user gets put in the same situation: if I switch from iPhone to Android, I can’t take my apps with me, and vice versa. And as content gets funneled through apps, it may mean I can’t take my content, either—or, if I can, it’s only because there’s yet another gatekeeper like Amazon running an app on more than one platform, aggregating content. The potentially suffocating relationship with Apple or Google or Microsoft is freed only by a new suitor like Amazon, which is structurally positioned to do the same thing.

A flowering of innovation and communication was ignited by the rise of the PC and the Web and their generative characteristics. Software was installed one machine at a time, a relationship among myriad software makers and users. Sites could appear anywhere on the Web, a relationship among myriad webmasters and surfers. Now activity is clumping around a handful of portals: two or three OS makers that are in a position to manage all apps (and content within them) in an ongoing way, and a diminishing set of cloud hosting providers like Amazon that can provide the denial-of-service resistant places to put up a website or blog.

Both software developers and users should demand more. Developers should look for ways to reach their users unimpeded, through still-open platforms, or through pressure on the terms imposed by the closed ones. And users should be ready to try “off-roading” with the platforms that still allow it—hewing to the original spirit of the PC, perhaps amplified by systems that let apps have a trial run on a device without being given the keys to the kingdom. If we allow ourselves to be lulled into satisfaction with walled gardens, we’ll miss out on innovations to which the gardeners object, and we’ll set ourselves up for censorship of code and content that was previously impossible. We need some angry nerds.

The Sandbox and the Playground: Changing Rules for Software and Developers

November 29th, 2011  |  by Kendra Albert  |  Published in Future of the Internet  |  8 Comments

Update on 2/23/2011: Apple has pushed back its deadline for OSX sandboxing to June 1st, 2012. The deadline was originally November, 2011, but was pushed to March 1st  in early November. Although Apple claimed that this change was to give developers time to integrate new permissions from an update,  it does follow the announcement of Gatekeeper, which might be a partial substitute for sandboxing.

During the 1990s, PCs ran whatever software was installed on them. Users bought software (not yet called apps) from physical stores or got a copy from their friends. They stuck the CD in the drive, and went through the installation process, or dragged the application to their application folder.  The code was “signed” by the developer (by being from a box), or not at all.  The operating system didn’t stop and ask “are you sure,” no one typed in a root password, and the applications were limited only by what their programmers had decided when coding. Those were the days of the playground, not the sandbox.

The playground had problems. Software with malicious code or bugs could hijack your PC. Other users could tamper with your files. So sandboxing (although not known yet by that name) was born. Starting as far back as creating separate user directories, to as recent a development as cloud data storage, steps have been taken to make the user’s personal data and computing cycles  safely under lock and key – sometimes with the key held by the user, and other times by the operating system maker. When Windows Vista was released in 2009, it tried to solve this problem with “allow” dialogs, which would pop up when an application tried to take actions without the user’s permission. This solution was mostly considered an annoyance, not a feature, as the parameters that caused a dialog were broad and users just clicked through to allow instinctually. Mac OSX’s requests for passwords before installing applications are just another step down this road – meant to put users in control of their own computing destinies, and less dependent on the good will of developers.

On smartphones, things have gone a different way.  We take for granted that applications haven’t been able to access all the features of the phone. Android users view a permissions screen that tells them exactly what to expect from an application – whether it can take photos with the camera, keep the phone from sleeping or access GPS. Apple screens its applications on the way into the iOS App Store, making clear what parts of the phone they can get to, and limits users to apps from the store. All of the app’s files are required to stay in their own little corner of the file system. This process of requiring developers to encapsulate their applications within one folder – and to clear with someone for access to things outside – restricts the potential for harm. This is one version of the phenomenon known as sandboxing. Sandboxing, on the most basic level, is a security measure used to run code that’s not trusted. Rather than allowing software or applications to play freely across the machine, sandboxes restrict them to very specific resources, mitigating the damage they can do.

For years, it’s been a standard on mobile platforms and web applets. For example, the Bejeweled game that you’re playing in one of your Chrome tabs doesn’t have any way of accessing the Word document you are supposed to be working on. In fact, your Chrome tabs can’t even access each other, preventing badly coded webpages from crashing your entire browser. These apps can play in their own sandboxes – but not all over your phone or PC. The same wouldn’t be true for Bejeweled if it were a regular PC app – it’d be free to rummage through everything on the hard drive, surveilling, modifying or deleting at will.  Knowing that, it’s a marvel that serious viruses didn’t appear sooner and more often.

For phones and web applets, sandboxing is ideal. After all, even you, the user, don’t interact with the underlying file structure of your iPhone or Android device (without jailbreaking), and you certainly wouldn’t want to open an online game and have it be able to make changes to your Word document. Sandboxing has serious security advantages – if programs have to lay out in advance what kind of access they get to a device, and are limited to only specific actions, an app that “goes rogue” or is compromised by malware can no longer cause the same harm to the rest of the user’s data. Similarly, a piece of compromised software can’t run processes in the background that it wouldn’t be able to run anyway – limiting potential damage.

Sandboxing usually also includes signed code, or code that is cryptographically linked to a specific developer license.  Not only do Apple and Google know exactly what parts of your phone the code can access, they also know which developer produced the code. Apple’s signature program is run through its developer program, which is tied to a yearly fee, where as Google’s requires some information from the developer, but not a specific license as such.

Enter the Mac App Store

So as things stood previously, most PCs had some steps towards protection against rogue software, but hadn’t taken the sandboxing route. Browsers and smartphones sandbox processes, but different smartphone platforms have different ways of involving the user. Apple’s iOS doesn’t involve the user, and all permissions are handled at the App Store level. Android apps can either be downloaded from the Android Market or from third parties directly. In both cases, a list of permissions are visible to the user and the applicatiosn are sandobxed where they are still sandboxed.

In early November, Apple announced to developers that it was pushing back its deadline for Mac Store Apps to implement sandboxing to March 1st, 2012. This makes the Mac App Store platform much like the Android Market – users have the option to install applications from elsewhere, but all applications that go through the market must be sandboxed. Although the requirements were supposed to take effect earlier this week, the pushed-back date reflects some of the serious problems MacOS developers were running into in making their applications compatible with Apple’s new rules.

Apple’s change marks a huge departure from the way development and code has operated in the past. As discussed above, software on the PC of the past had access to a playground, controlled only by the user’s discretion. Although Apple’s new OSX Lion has supported sandboxing since its release, Apple is using its distribution platform to require that apps follow their new security rules. The App Store push will certainly increase the amount of applications secured.

Although there may be net gains for users who are concerned about the security of applications downloaded from the Internet, there is the potential to limit the types of applications that companies will bother trying to distribute. Programs as widely used as antivirus software and backup utilities are not distributable through the App Store platform, due to the rule against root access, and in the larger scheme of things, Apple’s concerns about security. This means no Norton Anti-Virus, no Dropbox and no MacZip. At this time, distribution outside the store is not problematic; in fact, most large-scale developers seem to not be early adopters. However, as customers become more comfortable with the App Store process, that might change.

OSX Sandboxing in Depth

The sandboxing requirements make applications downloaded through the Mac App Store limited to a very specific set of actions. Ars Technica offered an in-depth discussion of OSX Lion’s sandboxing procedures in its review of the platform, and here are the basics

To play outside the sandbox, applications need “entitlements” that represent permission to access outside tools. Entitlements can include taking photos with the camera, responding to mouse gestures or creating network connections. Lion has about thirty built-in entitlements for applications to request, created and managed by Apple.

When submitting their software to the app store, developers lay out each process that an application might run, and then explain the privileges each one might have. For example, an application like QuickTime decodes video, runs audio, and accesses closed captions from a folder at the same time. Each of those different tasks is split into a sub-process with a different set of permissions – laid out by the developer before submission to the App Store. So the video decoding sub-process of Quicktime has access to the user’s screen and graphics card, but not audio settings. The audio sub-process doesn’t have access to the video card. These divisions keep the software from using system resources without permission. Unlike platforms like Android, users won’t see these processes or entitlement – they’re just for the purpose of Apple approving the software.

Users do have special powers for sandboxed applications – any action that is specifically initiated by a user doesn’t need to be okayed by Apple in advance. They can initiate special, non-entitled actions, like opening a list of recent files or saving documents elsewhere in the file system. Apps can build in these requests without asking for entitlements for them, knowing that the user is going to activate and oversee the process.

Concerns from Developers

Pushback from the development community has come from many fronts. Some developers, such as Recent Redux creator Tim Schroeder, feel that the entitlements that the apps can have do not represent the full spectrum of developers’ needs. There are two very specific use cases that are no longer possible for App Store apps – using AppleScript and file system management

Most users probably don’t interact with AppleScript on a regular basis, but it allows for many of the processes that make software work. Notification systems like Growl, which standardizes user notifications across multiple applications use AppleScript, as do hundreds of apps that allow for better music management in iTunes. On its most basic level, AppleScript is a tool developers use to exchange information between applications, and can produce Apple Events, which make programs take actions. It can run repetitive tasks, print from one application to another, or open applications. However, it also can automate file transfers or photo editing – and will no longer be usable by sandboxed applications. Instead, AppleScript will theoretically be replaced by APIs (application programming interfaces) that allow developers (and Apple) to have better control over application interaction.

Matthias Gansrigler, a developer responsible for applications including ScreenFloat and Yoink, explains how sandboxing could, without a new API, destroy one of his existing pieces of software. GimmeSomeTune (GST) downloads lyrics and album covers, as well as displaying iTunes info in a customizable window. To do those things, GST depends on a connection to iTunes via AppleScript – it extracts information about songs that are playing and uses it to download lyrics and cover art back to iTunes. Without an API, and with Apple eventually sandboxing iTunes, GimmeSomeTune will no longer be able to access the song titles it needs. Gansrigler notes that Apple has not sandboxed iTunes yet, but with it on the horizon, he’s stopping development on the software now.

File system management is the second big field that developers are concerned about. There are many existing systems used by corporations or developers that support version control or sorting of code – and they work in the background in the file system without the user’s consent. Similarly, SSH clients or FTP apps can no longer show real time file trees – which means that all moving of files or downloads must go through the open dialog. To paraphrase an Apple ad, there’s no entitlement for that.

And to make things worse, some of the entitlements are currently temporary, leading developers to be concerned that their software might break after said entitlements are revoked. Apple has promised to provide APIs to replace the temporary entitlements, but it’s not clear when those will be available. In the mean time, developers are in a terrible state of flux – trying to decide whether to continue to put time into applications that may not be able to exist by March.

Independent of the concerns about APIs and entitlements is the uncomfortable truth of the App Store as a completely new way for developers to interact with customers. Although in previous years an OS upgrade or an update could break software, those were rare to the extreme. If an application worked on a computer, it would continue to work. Now, Apple’s role in the development process means that developers have to actively coordinate with Apple to keep their software from breaking – and a slight change in the entitlement system could destroy all of the tethered software. Apple had made itself a controlling party in the application wars – and the consequences of that are still unknown. This sandbox is under the baleful eye of Apple as playground monitor. Given Apple’s willingness to ban security researchers like Charlie Miller from developer programs for publishing security holes, this increased control might not be the security boon anyone hoped for. As if that wasn’t enough, flaws in the sandboxing system have already been reported.

Trading Generativity for Security

Sandboxing represents a true security/generativity trade off. As Jonathan Zittrain said in Chapter 7 of The Future of the Internet and How to Stop It, “Most fundamentally, many of the benefits of generativity come precisely thanks to an absence of walls. We want our e-mail programs to have access to any document on our hard drive, so that we can attach it to an e-mail and send it to a friend.” Applications downloaded from the Mac App Store, in contrast to ones from the generative Internet, may not have these capabilities.

Sandboxing can prevent some damage from an app bound and determined to wreak havoc, but sandboxing is a phenomenon independent of the App Store: Mac OS could implement it with or without Apple screening the software up front. Certainly, not all software that runs on Mac OSX is downloaded through the app store. But as The Unofficial Apple Weblog (TUAW) put it, “There’s also the fact that any discussion that begins with ‘The Mac App Store isn’t the only way to get apps on a Mac’ inevitably ends with the ominous pronouncement ‘yet.’”

Furthermore, there are issues on the development side of generativity. It seems unlikely that developers who are concerned about the market share will develop two versions of the app – (one that’s sandbox safe for the App Store and one that includes extra features that won’t work in a sandbox). As a result, sandboxing might dumb down the feature set available to even those who choose to grab their applications from the Internet. Once programmers are playing in the sandbox, there’s little reason to develop for playground-level access again. Reactions have been slow but scared – app-makers are uncertain as to what a sandboxed future means for their applications and for their distribution.

Even in the short term, where both the App Store and regular distribution methods co-exist, Apple’s sandboxing requirements are a big deal. The uncertainty about the existence of longstanding Mac programming methods like AppleScript and Apple Events, combined with the fact that no one is sure exactly how much business the App Store will do means that the impact is totally unknown. It seems unlikely that Windows 8 or other OSs will follow suit, given that Microsoft hasn’t been pursuing the same sort of distributional model, but the new tethered nature of these applications is a significant change from the way PCs have previously operated. The only thing that’s sure is that Apple would like the future of the Mac platform to be a sandboxed one, and consumers and developers will have to adapt.

12/7/11: Edited to incorporate corrections from the comments re: Android code signing and permissions.

An interview with John Batelle on The Future of the Internet

August 15th, 2011  |  by jz  |  Published in Future of the Internet  |  Click to comment

John Battelle asked me a few Qs about my thinking on the themes in The Future of the Internet in the three years since the book came out (four since it was drafted!).  John’s review is available on his blog, and I’ve reproduce the core of it here:

JBAT:

- You wrote the Future of the Internet three years ago. It warned of a lack of awareness with regard to what we’re building, and the consequences of that lack of attention. it also warned of data silos and early lockdown. Three years later, how are we doing? Are things better, worse, the same?

And a follow up. On a scale of one to ten, where one is “actively helping” and ten is “pretty much evil,” how do the following companies rate in terms of the debate you frame in the book?

- Google (you can break this down into Android, Search, Apps, etc)

- Facebook (which was really not at full scale when you published)

- Apple

- Twitter

- Microsoft (again break it down if you wish)

Thanks!

JONATHAN ZITTRAIN:

Sorry this took me so long! I got a little carried away in answering –

- You wrote the Future of the Internet three years ago. It warned of a lack of awareness with regard to what we’re building, and the consequences of that lack of attention. it also warned of data silos and early lockdown. Three years later, how are we doing? Are things better, worse, the same?

It’s the best of times and the worst of times: the digital world offers us more every day, while we continue to set ourselves up for levels of surveillance and control that will be hard to escape as they gel.

That’s because the plus is also the minus: more and more of our activities are mediated by gatekeepers who make life easier, but who also can watch what we do and set boundaries on it — either for their own purposes, or under pressure from government authorities.

On the book’s specific predictions, Apple’s ethos remains a terrific bellwether. The iPhone — released in ’07 — has proved not only a runaway success, but the principles of its iOS have infused themselves across the spectrum. There’s less reason than ever to need a traditional PC, and by that I mean one that lets you run whatever code you want. OS X Lion points the way to a much more controlled PC zone, anyway, as it more and more funnels its software through a single company’s app store rather than from anywhere. I’d be surprised if Microsoft weren’t thinking along similar lines for Windows.

Google has offered a counterpoint, since the Android platform, while including an app store, allows outside code to be run. In part that’s because Google’s play is through the cloud. Google seeks to make our key apps based somewhere within the google.com archipelago, and to offer infrastructure that outside apps can’t resist, such a easy APIs to geographic mapping or user location. It’s important to realize that a cloud-based setup like Google Docs or APIs, or Facebook’s platform offer control similar to that of a managed device like an iPhone or a Kindle. All represent the movement of technology from product to service. Providers of a product have little to say about it after it changes hands. Providers of services are different: they don’t go away, and a choice of one over another can have lingering implications for months and even years.

At the time of the book’s drafting, the alternatives seemed stark: the “sterile” iPhone that ran only Apple’s software on the one hand, and the chaotic PC that ran anything ending in .exe on the other. The iPhone’s openness to outside code beginning in ’08 changed all that. It became what I call “contingently generative” — it runs outside code after approval (and then until it doesn’t). The upside is that the vast creativity of outside coders has led to a software renaissance on mobile devices, including iPhones, from the sublime to the ridiculous. And Apple’s gatekeeping has seemed to be with a light touch; apps not allowed in the store pale in comparison to the torrents of stuff let through. But that masks entire categories of applications that aren’t allowed — namely anything disruptive to Apple’s business model or that of its partners or regulators. No p2p, no alternate email clients, browsers with limited functionality.

More important, the ability to limit code is what makes for the ability to control content. More and more we see content, whether a book, or a magazine subscription, represented in and through an app. It’s sheer genius for a platform maker to demand a cut of in-app purchases. Can you imagine if, back in the day, the only browser allowed on Windows was IE, and further, all commerce conducted through that browser — say, buying a book through Amazon — constituted an “in-app purchase” for which Microsoft was due 30%?

A natural question is why competition isn’t the answer here — or at least reason to not worry about the question. If people thought the iPhone made for a bad deal, why would they want one? The reason they want one is the same thing that made the Mac so appealing when it first came on the scene: it was elegant and intuitive and it just worked. No blue screen of death. Consistency across apps. And, as viruses and worms naturally were designed for the most common platform, Windows, those 5% with Macs weren’t worth the trouble of corrupting.

We’ve seen a new generation of Mac malware as its numbers grow, and in the meantime a first defense is that of curation: the app store provides a rough filter for bad code, and accountability against its makers if something goes wrong even after it’s been approved. So that’s why the market likes these architectures. I’ll bet few Android users actually go “off-roading” with apps not obtained through the official Android app channels. But the fact that they can provides a key safety valve: if Google were to try the same deal as Apple with content providers for in-app content, the content providers could always offer their wares directly to Android users. I’m worried that a piece of malware could emerge on Android that would cause the safety valve of outside code to be changed, either formally by Google, or in practice as people become unwilling to drive outside the lanes.

So how about competition between platforms? Doesn’t that keep each competitor honest, even if all the platforms are curated? I suppose: the way that Prodigy and CompuServe and AOL competed with one another to offer different services as each chased subscribers. (Remember the day when AOL members couldn’t email CompuServe users and vice versa?) That was competition of a sort, but the Internet and the Web put them all to shame — even as the Internet arose from no business plan at all.

Here’s another way to think about it. Suppose you were going buy a new house. There are lots of choices. It’s just that each house is “curated” by its seller. Once you move in, that seller will get to say what furnishings can go in, and collects 30% of the purchase price of whatever you buy for the house. That seller has every reason to want to have a reputation for being generous about what goes in — but it still doesn’t feel very free when, two years after you’re living in the house, a particular coffee table or paint color is denied. There is competition in this situation — just not the full freedom that we rightly associate with inhabiting our dwellings. A small percentage of people might elect to join gated communities with strict rules about what can go inside and outside each house — but most people don’t want to have to consult their condo association by-laws before making choices that affect only themselves.

Read more: http://battellemedia.com/archives/2011/08/the_future_of_the_internet_and_how_to_stop_it_-_a_dialog_with_jonathan_zittrain_updating_his_2008_book#ixzz1UqekZMs1

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Previously


Jan 30, 2013
Rock star RA wanted

by jz | Read | 1 Comment

I’m seeking a full-time one-year rock star research associate to engage with a variety of projects and classes, with a broad opportunity to immerse in cyberlaw and Internet topics.   Blurb below, with more information on how to apply at <http://cyber.law.harvard.edu/getinvolved/jzra>.  …JZ – Professor Jonathan Zittrain of Harvard Law School, the Harvard Kennedy School of [...]


Nov 26, 2012
F-T: Don’t sue over tweets

by jz | Read | 7 Comments

I just published a short piece in the F-T in the wake of legal threats against users who tweeted or retweeted a link to a BBC report of child abuse that turned out to be wrong.  Here’s the full text – Those who didn’t see the false child abuse accusations against Lord Alistair McAlpine on [...]


Jun 13, 2012
Taking More than Candy from a Baby

by Kendra Albert | Read | Comments Off

Update – 10/17/2012: The parties involved in the lawsuit – Speak for Yourself and SCS/PRC reached a settlement, allowing the app to remain in the Android and iOS app stores. More at the Nieder family blog. Original Post: Generativity hasn’t had a poster child — until now. Meet Maya, a four-year-old child who could lose [...]


Jun 4, 2012
“Unabomber manifesto tied to tech news headlines”

by Kendra Albert | Read | Comments Off

When you see the headline “Powerful ‘Flame’ cyberweapon tied to popular Angry Birds game,” does it cause you to think that there is actually some connnection between the recently discovered malware Flame and Angry Birds? That would be entirely reasonable, but wrong.


Jun 1, 2012
War and Nookd

by Kendra Albert | Read | 44 Comments

In 2009, Amazon staff panicked when they came to believe that they’d allowed copies of George Orwell’s classic 1984 to be sold through the Kindle store without properly clearing copyright permissions.  They reacted by eliminating copies of 1984 not only from the Kindle Store, but from the Kindles of individual purchasers.  Those reading the text [...]


May 7, 2012
Dropbox Ran Afoul of Apple’s App Store Review Guidelines: So What?

by Kendra Albert | Read | 1 Comment

Last week, a number of developers reported that Apple was rejecting iOS applications that used Dropbox, a popular cloud file storage and backup system. An initial thread on the Dropbox developers’ forum has led to a outpouring of tech news full of hyperbolic claims. However, none of this reporting has covered the real problem – [...]

About Jonathan Zittrain

jonathan zittrain

Jonathan Zittrain is a Professor of Law at Harvard Law School, and faculty co-director of the Berkman Center for Internet & Society at Harvard University.

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