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Facebook’s privacy storm

February 18th, 2009  |  by jz  |  Published in Book, Facebook, Future of the Internet, Web 2.0 platforms  |  12 Comments

Some thoughts on the Facebook terms of service privacy storm:

Facebook and other social networks have an especially tricky time in this zone, since so much user data is relational.  You upload a photo of you and me; I tag it with your name.  I leave Facebook — does your name disappear from the photo since I was the one who originally tagged it?  Should all traces of someone vanish from everyone’s news feed, or is the alert that X posted a photo (along with a thumbnail of the photo) a different contribution than … posting the photo?  Facebook possibly thought to avoid these issues — or at least retain maximum flexibility to answer them — by including the sweeping clauses about being able to retain our data forever.

One lesson is that plain English (and its other-language counterparts!) works better these days than legalese.  When talented lawyers sit down to draft something like a set of terms of service, they naturally want terms that protect their client as much as possible — both in its current practices and for any future practices it could conceivably undertake.  Plus they know that courts will hold this language against them in a dispute if there’s any wiggle room, since the company itself drafted it and the users couldn’t negotiate.  So the writers tend to (1) reuse terms from other companies’ agreements like old holiday fruitcakes getting passed around, since venerable terms must be good ones and (2) they write broadly and at length.  But now just one hawk-eyed person scrutinizing new terms can see them get broadened and raise an alarm to everyone else, thinking of all sorts of future actions the company just permitted itself to take — the way the lawyers themselves were thinking, too.  This is true even if the people running the company didn’t have anything more in mind than avoiding some class action lawsuit for using people’s data in ways that could be said to exceed the limits they’ve placed on themselves with their own terms.

Writing in plain language can better describe what the company is trying to do, and may even make a court more sympathetic if trouble arises.  That trend is probably increasing — consider Google’s warning upon installing its browser toolbar, which in “advanced” mode will send every visited Web site URL back to Google so that, among other things, Google can provide an icon showing the page’s popularity as it’s visited.  Google leads its privacy policy with “PLEASE READ THIS CAREFULLY — IT’S NOT THE USUAL YADA YADA.”  Mark Zuckerberg’s blog entry in response to the controversy is a welcome piece of plainspeak.

So — Facebook will go back to the drawing board and come up with something new, no doubt rightly more narrowly drawn.  In another post Zuckerberg said:

More than 175 million people use Facebook. If it were a country, it would be the sixth most populated country in the world. Our terms aren’t just a document that protect our rights; it’s the governing document for how the service is used by everyone across the world. Given its importance, we need to make sure the terms reflect the principles and values of the people using the service. 

Governing document is right.  That brings up two bigger picture issues worth highlighting out of what otherwise might be a garden-variety dispute about privacy terms that people can have with any of the companies to who they entrust their data.

First, if Facebook is analogous to a country, how to govern it?  There’s an amazing amount of energy devoted to arguing about who gets to control the top-level allocation of domain names, since they’re seen as a shared resource of the Net that can greatly affect people’s lives.  (I think that’s overblown, but that’s a different discussion.)  So what about a “community” like that of Facebook, where people invest their data — indeed, often their very identities.  When someone’s years’-long cultivated Facebook account is terminated for alleged objectionable behavior, is that a mere customer service issue, or ought it be thought of as something broader?  No one expects Facebook to be run by anyone other than its management and private owners (and perhaps someday its public shareholders), adjusting for market pressure from its users, but if the communities there are truly to flourish, perhaps it’s time to experiment with forms of self-governance.  Just as online multiplayer games allow worlds of users with different rules, and some incorporate users themselves into developing those rules, Facebook could experiment with some of the same things.  (So far online organizing on Facebook tends to be represented by the creation of groups with provocative titles and then a count of how quickly how many people sign up, an especially interesting metric since Facebook itself can tweak how often word of people joining a group appears in their friends’ newsfeeds.)  There may be a sweet spot somewhere between the status quo — where at least we know whom to blame or sue if we disagree with a Facebook policy — and, say, Wikipedia, where governance generally takes place in ways large and small among the thousands of people who edit its articles and work through the disputes that naturally arise there.

Second, it’s amazing how much people focus on Facebook’s use of data vs. uses by fellow users on Facebook.  I think “peer-to-peer” privacy violations will turn out to be the most interesting and pervasive, and that we ought to start working out how to handle these issues.  Even small tweaks in how a site like Facebook operates — such as who gets to tag and untag a photo and who is notified (or asked for permission) when tagging happens — can have a huge impact on the flow of data and identity.  (Facebook’s structure is highly innovative here — they’ve actually got pretty good instincts about people’s privacy preferences.)  This is especially true as more and more of our “mouse droppings” end up in social networks — automatically updated telemetry about our daily travels (think Google Latitude) or changes in who we’re friends with.  I’ve written a lot more about this in chapter nine of “The Future of the Internet — And How to Stop It,” available for free download,  (But you’re welcome to buy it, too, newly in paperback!)

Privacy “perfect storms” are good times to think about these matters — too often people are too busy shoveling out their data to really think through the implications of what they’re doing.  Now, with the pitchforks on this particular issue being mostly returned to holsters, we can debate.  …JZ

Responses

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  1. Marc Rotenberg says:

    February 18th, 2009 at 7:09 pm (#)

    Jonathan, sorry, I think this post completely misses the point. The Facebook users were not objecting to the opacity of the modified TOS; they were objecting to the impact. Whether in plain English or in $700/hr NY lawyer English, the modified TOS was clearly an attempt to shift control of user-generated content (the photo, the status updates) from the user to the service provider. The bloggers focused on the removal of the account deletion provision in the original TOS, but more significant was the removal of the sentence at the beginning of the same paragraph that made clear that FB needs the license to enable service delivery, not to claim of the content. The modified TOS stood the original deal on its head. The FB folks figured that out. That — not “the party of the first part” — was the reason for the protest. I also happen to disagree that the “P2P” privacy violations are significant. As I’ve written elsewhere, with FB it’s all in the defaults. Throw a switch and it impacts the rights of millions of users. Cheers, Marc.

  2. steve glista says:

    February 18th, 2009 at 7:27 pm (#)

    No one expects Facebook to be run by anyone other than its management and private owners [...] but if the communities there are truly to flourish, perhaps it’s time to experiment with forms of self-governance.

    You’re proposing a solution in search of a problem. According to your post, FB has 175,000,000 registered users. How many of those people actually would have deleted their accounts rather than submit to the new ToS? Sure, FB upset the people who make a living by paying attention to these things, and there were a bunch of people on Digg getting all pissy about it, but so what? I saw a report yesterday that the ToS protest group picked up about 10,000 FB members in the first day. Should FB really be concerned that 0.00057% of their userbase and a bunch of smarty-pants internet policy wonks objected to the new terms?

    The value of the site is in its users- but that value inures entirely to the site’s owners. As long as the owners don’t drive away significant portions of their user base, they don’t have anything to worry about… and given the switching cost, where are 175 million people going to go?

  3. Facebook Rules - Room for Debate Blog - NYTimes.com says:

    February 18th, 2009 at 8:20 pm (#)

    [...] For a full discussion of this issue by Jonathan Zittrain, see this post on his blog. [...]

  4. Bertil Hatt says:

    February 18th, 2009 at 9:31 pm (#)

    I can only applaud a law professor who openy whishes for more plainspeak. I would personally prefer (CC)-style pictograms — but everybody always neglects the illiterate Facebook users.

    Thank you even more for pointing out that, once again, Facebook and its bunch of nerdy Californians are not the culprit: if they want anything stalky, they probably know where to find far savvier then my party plans. I have yet to come across an issue with Facebook that isn’t instantly resolved by a little honnesty and integreity towards either a close relative a significant other or your boss — and neither deserve anyless, with or without Internet.

    What they *are* about to be guilty of, however, is re-shaping social relations by trying to make explicitely coherent the contradictions that Mark Z. indicated in his post. I can imagine only mostly cumbersome standards and little possible generativity out of there — and I’m afraid that the main thing I’m neglecting is Facebook’s employee ethnocentism.

  5. Info/Law » Broad TOS and Broad Anxiety says:

    February 19th, 2009 at 3:41 pm (#)

    [...] Jonathan Zittrain has a nice post looking at longer-term implications of this particular storm, now that it has passed. Like me, JZ [...]

  6. Dinesh Patel says:

    February 20th, 2009 at 12:20 am (#)

    I just can’t believe they went back on their TOS change. People are dumb if they think they are getting any privacy from Facebook or Myspace. All they are doing is voluntarily supplying valuable info to huge marketing mills. Although there are ways to communicate with privacy: anonymous sites like http://www.anonboard.com

  7. Andrew Martin says:

    February 20th, 2009 at 6:33 am (#)

    It seems fascinating that the “great evil” that is DRM suddenly becomes desirable in this context. The user wants to be able to upload their data and yet retain control over who can copy it, when they can “un-upload” it, and so on. Maybe DRM isn’t so bad after all: it’s just a case of who’s got the rights and who’s doing the management.

  8. Mike Madison says:

    February 20th, 2009 at 8:07 am (#)

    The post makes several points, the second of which seems most salient and which I almost entirely agree with (see my related post, written in ignorance of this one). I’m not certain that we need to analogize FB or similar things to a country, but governance is clearly the issue.

    Marc is right that defaults are key, but that doesn’t mean that P2P privacy problems are (relatively) unimportant. P2P defaults matter, too. This case just didn’t happen to present that question.

  9. Tara Taubman says:

    February 20th, 2009 at 6:15 pm (#)

    Should we compare Facebook’s TOS to other similar SNSs to see on how Facebook would have been wider effects?
    Shall we compare it to Myspace, Xanga, Bebo, Twitter, Fliker and who else?

    - MySpace : users’ ownership but licence to Myspace for distributing etc… unless marked ‘private’ , After will cease distribution as soon as practicable,

    “6. Proprietary Rights in Content on MySpace.
    6.1 MySpace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the MySpace Services. After posting your Content to the MySpace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing (“posting”) any Content on or through the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the MySpace Services, including without limitation distributing part or all of the MySpace Website in any media formats and through any media channels, except Content marked “private” will not be distributed outside the MySpace Website. This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services. After you remove your Content from the MySpace Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate. If after we have distributed your Content outside the MySpace Website you change the Content’s privacy setting to “private,” we will cease distribution of such “private” Content outside the MySpace Website as soon as practicable after you make the change.

    6.2 The license you grant to MySpace is non-exclusive (meaning you are free to license your Content to anyone else in addition to MySpace), fully-paid and royalty-free (meaning that MySpace is not required to pay you for the use on the MySpace Services of the Content that you post), sublicensable (so that MySpace is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the MySpace Services), and worldwide (because the Internet and the MySpace Services are global in reach).

    ………
    6.4
    …MySpace hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the MySpace Content …”

    …

    – Xanga : Ownership of the content provider + temporary licence , content license ‘shall expire either immediately or upon termination of any promotional or marketing activities ongoing at the time’

    “CONTENT SUBMITTED TO XANGA.COM
    (This section refers to Content that you create)

    You retain all ownership rights to your Content. Except for its ownership of the collection of all content on Xanga, as described below, Xanga does not claim ownership of any Content you publish in your area of the Website (�Your Xanga Site�).

    When you publish your Content on Xanga, you grant Xanga a temporary license to �rebroadcast� it. ….

    By publishing Content on Your Xanga Site you grant Xanga a world-wide, royalty-free, and non-exclusive license to reproduce, modify, distribute, transmit, publicly perform and publicly display the Content (as well as permit others – including without limitation Xanga�s co-brand, content and syndication partners – to do the same) solely for the following purposes:

    * Displaying, distributing and promoting Your Xanga Site
    * Promoting and marketing Xanga�s products and services and general operation of the Xanga Service
    * Promoting and marketing the products and services of Xanga�s partners and affiliates
    * Promoting and marketing products and services related to your Content.

    This license exists only for as long as the Content remains published on Your Xanga Site and only for as long you remain a Xanga member, except that you grant Xanga a continuing perpetual license and right to maintain a copy of your Xanga Site and Content for archival purposes. This archival copy is not posted publicly on the Xanga system; it is maintained solely so that Xanga may recover content and restore accounts (in case of errors or system failure) or cooperate with law enforcement in order to make the Xanga service safer. Except for this license for archival use, in the event that you remove the Content from Your Xanga Site or in the event that your membership is terminated, this license shall expire either immediately or upon termination of any promotional or marketing activities ongoing at the time.

    COPYRIGHT

    Content created by Xanga or its suppliers

    All content created by Xanga, its partners, or its suppliers and included on Xanga, such as text, logos, graphics, images, javascript code, HTML code, and other software, is the property of Xanga, Inc. (or its partners or suppliers) and protected by U.S. and international copyright and other intellectual property laws.

    Compilations of Content

    Notwithstanding the provisions outlined in �Content submitted to Xanga.com� above*, the collection of all Content on this site is a collective work under the U.S. copyright laws and is the exclusive property of Xanga and protected by U.S. and international copyright laws. The Content and software on Xanga may be used as a homepage creation or web-surfing resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the Content on Xanga is strictly prohibited.

    *Individual Contributors retain all ownership rights to their Content. Xanga does not claim ownership of any Content you publish on Your Xanga Site.”

    ……..

    - BEBO : no ownership claimed + limited license clearly defines the after contract termination

    “Proprietary Rights
    Bebo does not claim any ownership rights in any Materials that you submit, post, or display on or through the Bebo Service. ……
    you hereby grant to Bebo and its agents and assigns a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Materials solely in connection with the Bebo Service or the promotion thereof.

    …
    This license will terminate at the time you remove your Materials from the Bebo Service, except that you agree that the license will continue solely with respect to other Members’ continued use of your Materials that are not music or videos (i.e. photos or skins); provided, however if you remove any of the Materials from the Bebo Service, Bebo reserves the right to remove all of your Materials from other Member’s pages. The license does not grant Bebo the right to sell your Materials You represent and warrant that: (i) you own the Materials posted by you on or through the Bebo Service or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Materials on or through the Bebo Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Materials posted by you to or through the Bebo Service. The hosting of certain items that you post, such as video, may require your agreement to a separate license agreement or terms of use.

    Bebo, Inc. and its affiliates and licensors own and retain all rights in the Bebo Web site and Bebo Service, which contain proprietary and confidential information that is protected by applicable intellectual property and other laws, …..
    We take your privacy very seriously and collection and use of personal information is governed by our Privacy Policy. Click here to review the Bebo Privacy Policy.

    Information collected in connection with your use of the Bebo Service may be processed and stored in the United States, or other countries where Bebo or its parent, affiliates, subsidiaries or service providers maintain facilities. If you live outside the United States and use Bebo, you expressly consent to the transfer to the United States of the personal information you provide Bebo, or such other countries as we may disclose from time to time. Additionally, you agree that we may use your Bebo user name to authenticate you on any service provided by Bebo or its affiliates.”

    - TWITTER no ownership claimed + promise that all removed after at anytime

    “Copyright (What’s Yours is Yours)

    1. We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours. You can remove your profile at any time by deleting your account. This will also remove any text and images you have stored in the system.
    2. We encourage users to contribute their creations to the public domain or consider progressive licensing terms.
    3…….”

    All these examples shows how a free service accept little liability, the service take no any liability to maintain and could disappear or be swallow at any time.

  10. Jerry says:

    February 20th, 2009 at 8:42 pm (#)

    I think the switch by Facebook is just an extension of the current governmental information grab. Sure, they changed their policy back, but for how long and will they announce it the next time. They still have the clause about changing without notification.

  11. Sélection de la semaine (weekly) | Demain la veille says:

    March 1st, 2009 at 5:33 am (#)

    [...] Facebook’s privacy storm :: The Future of the Internet — And How to Stop It [...]

  12. Jonathan Zittrain: A Bill of Rights for the Facebook Nation « iThinkEducation.net! says:

    April 21st, 2009 at 6:42 am (#)

    [...] founder, Mark Zuckerberg, responded quickly – in plainspeak rather than legalese – and I credit his view that the changes in terms of service really weren’t meant to be a stealthy way of doing [...]

Blog

  • Facebook’s ocean of names becomes a torrent
  • Nick Bilton over at the NYT Bits Blog has the story of Internet security consultant Ronald Bowes’s recent Facebook caper.  Ron noticed that Facebook has a directory of its users, just like the old Bell Telephone White Pages.  I agree with Ron’s assessment that this is a very little-noticed feature: normally one searches on Facebook not by looking at a directory, but rather by typing a name into a search box.  It’s in plain sight, though, at http://www.facebook.com/directory:

    There are two differences that jump out between this awe-inspiring alphabetical listing of all Facebook users and a dog-eared telephone directory.  First, Facebook’s directory has a staggering 171 million names in it.  Second, in good news for paper prices everywhere given the first difference, the directory is digital — it’s right there, online.  And if it’s online, it’s scrapable.  Ron, being of the inquisitive engineering sort who can’t help but push a button if he sees one, figured that supply creates demand, and went ahead and scraped the directory.

    That means he produced a file on his own hard drive containing more or less the directory’s main contents: for each person listed, a name, the person’s Facebook URL (what one types in to go directly to his or her entry), and unique Facebook ID (not a secret; this is part of a person’s Facebook url).  The resulting file is only a few gigs — amazing how cheap storage has become that so much can be roughly the side of an episode of House.  Ron then placed it online as a torrent — which means anyone can download the file, and voila, a snapshot of Facebook’s membership as of July 2010.

    So, is this a problem?  As I’m writing, news is only just breaking, so it’s like that moment when a toddler trips, falls, and then has to think about whether to cry or not.  “You’re OK!” is usually what the alert parent encouragingly says — and if the toddler buys it, it’s usually true.  In fact, even if the toddler doesn’t buy it, it’s still usually true.  In this case, I think I’m with the metaphorical parent.  The data that Ron grabbed is precisely what Facebook users have chosen (or perhaps more accurately, passively acquiesced) to share.  For those who lock their privacy settings to avoid having a public listing in a Facebook search, they’re not present here.  For those who have, they are — along with a click through to their respective Facebook pages however they’ve chosen to share them.

    Ron appears a little disquieted by it because of the prospect that the snapshot can live forever more.  If you remove your Facebook account or up your privacy settings, that will be reflected in real time in the Facebook directory and search (or at least it should be!).  But the torrent file exists forever — so one’s privacy choices are locked into that moment.  This is an artifact of having a service — Facebook — converted into a product — a Facebook database — the way that universities used to not just maintain online directories, but also publish bound volumes of their alumni with addresses, for those who opted in.  (In fact, many universities still do this; someone should tell them about saving the trees.)

    There’s some privacy hit there, but there are also benefits.  By making a public directory — and a scrapable one, no less — Facebook gets more inbound links and attention as its members become easier to find.  And we benefit by having Facebook’s subscribers’ public pages indexed by the likes of Google and Yahoo! search.  In fact, when searching on a person’s name in a regular search engine, quite commonly a Facebook entry is one of the top hits.  That seems to me a good thing, and once Google, Yahoo!, and Bing have it, why shouldn’t Ron and anyone else who wants it have it too?  Indeed, Ron already did some cool stuff with the data.  For example, he crunched it all and came up with a list of Facebook’s most commonly used first and last names, discovering “Michael” and “Smith” coming in at number 1 for each.  Congratulations, Michael Smith, you are hidden in plain sight, since a search for you turns up so many others at the same time!  (Not so much with “Jonathan Zittrain”…)

    Anyway, that’s generativity at work: Facebook makes available a directory on free and open terms, and people do stuff with it, some of which can surprise us.  There could be bad surprises, too — Ron and others hint at undesirable data mining — but I’m glad that the gates of Facebook’s gated community have some slats in them, rather than being a solid wall.  At most, it seems to highlight the desirability of getting the defaults right: Facebook shouldn’t have people automatically publicly sharing stuff they’d not normally share, without clear markers on what’s about to happen.  As Google would say, “Please read this carefully.   It’s not the usual yada yada.”

    Indeed.  There have been so many Facebook privacy mini-scandals that we’re primed for the next, and the involvement of a torrent file adds an element of seeming subversiveness to the mix, given the association of p2p with contraband material.  But sometimes when the boy cries wolf it’s just a shadow.  I count 8 Yadas in the Facebook directory.  And I, along with my cool musician brother Jeff Zittrain, fall in between Aron Zittra and Austin Zittrauer.  Until now, who knew?  Interesting — but not pitchfork worthy.  …JZ

  • Android kill switch activated & some links of the week
  • Control over tethered appliances basically comes in two forms: pre-approval of apps and kill switches. As this blog has documented, Apple has had a very heavy hand in screening apps, but — as far as we know — they haven’t ever used the iPhone kill switch. I was a little surprised to find that out, and I wonder why they haven’t used it. Maybe the screening process is keeping out malicious apps, and they’re content to let users keep apps that are merely in bad taste (although they remove them from the app store). Maybe the bad publicity from past kill switch uses — see Amazon and 1984 — has stayed their hand. Or maybe they have removed apps and it just hasn’t been publicized.

    Google has taken a different tack with Android: they’ve largely surrendered the power to pre-approve apps, because Android users can always download apps from third-party sources. But they too have a kill switch, and according to the Android developers’ blog post, they decided to use it a few weeks ago. (It’s not totally clear from the blog post, but it sounds like they’ve also used it before on clearly malicious apps.) An app that claimed to offer Twilight photos turned out to be a demonstration, done by researchers, of how easy it would be to create an app that would turn phones into a botnet. The app didn’t actually create the botnet (and it didn’t show Twilight photos, either, so most disappointed downloaders deleted it), and the researchers presented their work at the conference. Nonetheless, after they heard about it, the Android team decided to remotely delete remaining copies of the app as part of a “cleanup” process. Affected users received notifications.

    I can see why they wanted to do that. A report documenting Android vulnerabilities was recently released, and it’s caused some hand-wringing over Android’s security. There’s also no sense in leaving a loaded weapon laying around. And I’m glad they told both customers and everyone else that they’d deleted the apps. Still, I do worry about the removal of an app that isn’t actually harming any machines. More generally, I think that if Android is going to stick to the plan to not pre-screen apps and have an open system, they and we are going to have to think seriously — more seriously than Apple has had to — about the ethics of the kill switch. Questions like whether there should there ever be an opt-out, whether users should get refunds, and whether it should be used in cases other than damaging viruses are all still wide open.

    And a few quick links:

    Leaked MS Presentation Shows App Store Plans For Windows 8. Why all this thinking about app stores and kill switches matters: there are already plans to transfer the app store model from phones to PCs, where the arguments about the virtues and harms of contingent generativity have even more salience.

    Google’s mismanagement of the Android Market. Jon Lech Johansen thinks the lack of pre-screening is hurting Google and Android.

    Did Apple Flip the iOS Kill Switch on NDrive? Wait, has Apple already used the kill switch?

    New zombie code in effect by December. Here’s a totally different option for improving security: let users keep open PCs, but if they become infected, have their ISPs quarantine them or reduce their internet speed to a crawl. That way, users will have to get their computers fixed and can’t keep infecting others. Internet Industry Association CEO Peter Coroneos said of the plan: “I’m sure there are people around that resent having to put new tyres on their car when they’re unroadworthy, or have their breaks done . . . But the reality is that we have argued that internet users have a responsibility not only to themselves, but also to other users on the internet.” The code will be made available to Australian ISPs soon.

    One Brown Package: From Seattle to Norway. Why we love the internet in the first place: unexpected avenues for fun, creativity and kindness (here, in the form of people working to get a package from Seattle to Norway). They claim inspiration from JZ’s TED talk on the web on random acts of kindness.  The package is currently reported as missing.

    —By Elisabeth Oppenheimer

  • FOI Topics and Links of the Week
  • iPad security breach. Even closed systems can be vulnerable to exploitation.  A group of high-profile iPad owners, including President Obama’s Chief of Staff among 114,000 others, had their email addresses exposed by a web security group.  Although it was AT&T’s network that was compromised, Apple is shouldering much of the blame, since it denies iPad customers a choice of carriers and also requires an email address to activate the device.  AT&T patched the security hole, but not until after the script used to exploit it was shared with third parties.  The FBI is investigating.

    Facial recognition and next generation privacy. David Thompson gives an update on the progress of facial recognition software and its implications for privacy 2.0.  In addition to describing the revolution in surveillance capabilities that occurs when a person can be identified on any security camera feed or in any of the more than three billion photos on Flickr, he notes that Face.com released an API last month, allowing developers free access to its facial recognition technology and the green light to adapt it for new uses.  Here’s hoping the appropriate norms evolve in tandem.

    Defamation liability: please fwd. A bankruptcy court in Texas has ruled that forwarding an email link can be considered defamation.  The defendant in the case didn’t send a copy of the actual content, just a link to a website.  Neither had he written any of the defamatory content on the website.  It’s unlikely that the ruling will survive an appeal, since forwarding a link probably doesn’t amount to the required element of “publication” under a traditional interpretation of defamation law.  Still, it’s something to think about the next time there’s a link to a juicy tabloid story in your inbox.

    Shifting foundations of the App Store. Apple continues to indulge its discretion when it comes to approving iOS apps.  This time it pulled an app for being “widget-like,” despite approving three previous versions.  The frustrated developer asks “How can a company be prepared to invest into a platform that can change at any time?“

    It Gets Worse: Apple Censors a Gay Kiss in Oscar Wilde Comic. In another Apple censorship story, the company appeared to block out a kiss in a comic book because two men were doing the kissing. To be fair, it’s not entirely clear to me from the pictures in the article whether the same-sex kiss was the cause of the blackout, but the author claims that similar opposite-sex scenes have gone unchanged in other comic books. As he says, “the more examples I see of Apple’s capricious censoring, the less funny it is.”

    Steve Jobs at D8: Post-PC era is nigh. In the introduction of the book, JZ predicted that Steve Jobs, having launched the PC era, was about to usher it out. Now, Jobs says the same thing. According to him, “PCs are going to be like trucks … they are still going to be around,” but “one out of x people will need them.”

    TiVo’s ‘Big Win’ Over Dish On Patents Looking Less And Less Solid, As Patent Office Rejects Patent Claims. Update in the TiVo-EchoStar battle: we may never find out if EchoStar will actually have to remotely kill already-purchased DVRs, because the Federal Circuit is rehearing the original patent claims en banc.

    —By Jennifer Halbleib and Elisabeth Oppenheimer

  • The Internet’s Fort Knox Problem
  • A few weeks ago Internet security firm McAfee released an update to its Windows PC customers designed to protect them against a newly detected virus threat.  Instead, for some, the update destroyed a legitimate, and crucial, system file.  Uncountable numbers of PCs – likely hundreds of thousands, even millions – were rendered unusable.  The University of Michigan medical school lost the use of 8,000 of 25,000 PCs.  State troopers in Kentucky abandoned their cruisers’ mobile PCs and resorted to writing reports by hand.  Some hospitals in Rhode Island turned away non-trauma patients from their ERs.

    The issue is larger than one firm’s unfortunate misstep.  It echoes across the entire Internet.  Call it the Fort Knox problem.

    Fort Knox represents the ideal of security through centralization: gunships, tanks, and 30,000 soldiers surround a vault containing over $700 billion in American government gold.  It’s not a crazy idea for a nation’s bullion; after all, the sole goal is to convincingly hoard it.  But Fort Knox is an awful model for Internet security.

    Our IT environment has traditionally been immune from many Fort Knox issues, because its architecture has encouraged decentralization.  One PC might be compromised, or Web site might fall, but others stand.  Bad guys on one side of the spectrum, and well-intentioned regulators on the other, each had to sweat to have an impact on Internet activities.

    But the bad guys were clever and industrious.  Their digital robots came to costlessly crawl the Web looking for computers and sites to compromise, leveraging their reach.  Operators of well-financed Web sites have dealt with rising anxieties about security by spending enormous amounts of money on digital bunkers and backups for their data, while littler ones have hunkered down and simply hoped they wouldn’t be hit.

    The public sector has been confused about how to help.  Governments know how to maintain and defend their roads and waterways, but have been stymied in cyberspace: so much of it is rightly privatized that there’s no obvious place to station a guard and no way to fill a digital pothole.  Worse, since identifying those behind intentional attacks online is exquisitely difficult, the traditional state tools of deterrence and punishment are ineffective.

    That’s why we now see centralization under a few major corporate umbrellas under which disparate activities can be gathered.  The lures of security, interoperability and economies of scale have propelled much of the Web from a vibrant ecosystem of different, and differently managed, PCs and sites to one where a handful of private Fort Knoxes take responsibility for security.

    But we can’t simply put our precious data into a single well-protected vault and peek in every few years.  We need to guard our PCs and data, but we also need them to be part of a worldwide network.  When we’re not masking our digital trail, we’re eagerly sharing it.  If we try to centralize its protection, it’s not a one-time transaction: rather, we need a constant gatekeeper who signs our data in and out every time we want to make use of it.  That’s a thread that runs from the McAfee debacle, where millions of people and firms turned the keys to their computers over to a third party to handle, through to cloud-based platforms like Facebook, where the company’s assent is increasingly needed to run unrelated applications on its platform or to log in to unaffiliated Web sites that no longer care to maintain their own digital borders.

    If McAfee makes a mistake, many people pay at once.  If Facebook’s computers go down or are compromised, thousands of otherwise-independent applications and sites suddenly go down with it.  It’s not just our own data and transactions at risk, but our collective memory: the flip side of a centralized defense against bad guys is vulnerability to well-meaning good guys.  For example, if the generally laudable Google Books project is a spectacular success, we’ll see libraries give up their moldering, isolated archives of regular books in exchange for PC terminals where patrons can peer at an ephemeral digital copy drawn from Google’s central archive.  It makes sense – and no doubt Google has near-impregnable backups – but it’s also an opportunity for a government to intervene in worrisome ways.

    For example, if one book in the system contains copyright infringing, or defamatory, or obscene material, those aggrieved can get a court order requiring the infringing pages of the book to be deleted from the central server.  This vulnerability affects every book that is distributed and maintained through a centralized platform.  Anyone who does not own a physical copy of the book – and a means to search it to verify its integrity – will now lack access to that material.  By centralizing (and to be sure, making more efficient) the storage of content, we are building a world in which, as a practical matter, all copies of once-censored books like Candide, The Call of the Wild, and Ulysses could have been permanently destroyed at the time of the censoring, and could not be studied or enjoyed even after subsequent decision-makers lifted the ban.

    So what do we do?  We have two things going for us that the real Fort Knox doesn’t: we can make copies of our digital gold, and there are lots of us, each with our own stake in security and autonomy.

    First, so long as there aren’t undue barriers to extracting our own data from cloud platforms or our own PCs, backups can become more seamless, and made in a variety of ways, making a McAfee misstep or anything like it less costly.  Then we have our cake and eat it too.  The same principle applies to projects like Google Books, where participating libraries can arrange to securely maintain their own gold copies of Google’s precious trove – kept to compare against others’ copies, so omissions and changes can be detected and appropriately challenged, not leaving Google with the sole burden of holding off government speech regulation.

    Second, we need to reinvigorate the Internet’s principle of open, distributed architecture that has sparked so much growth and innovation.  Our choices for security aren’t simply among government soldiers, corporate mercenaries, or our own personal barricades – though each has a valuable role to play.  Rather, we can reinforce open, shared early warning systems to enumerate and deal with security threats, whether against PCs, Web sites, or Internet connectivity.  With a few technical tweaks, we can all further help relay data from Web sites that are under attack, stabilizing their presence.  Security shouldn’t have to be purchased like a personal bodyguard.  Far more flexible than Fort Knox are people, each with their own pocketed gold and machinery, empowered to look out for one another.

    A version of this appeared in the Financial Times on June 3rd, 2010.

  • FOI Topics and Links
  • Google launches Government Requests tool. Google is now making public information on the requests it receives from government agents to remove content from its search results or reveal private user data. The Government Requests tool currently displays the number and type of requests by country for the last six months of 2009. In a bit of irony, last week Google disclosed that it had accidentally collected fragments of private user information over unencrypted Wi-Fi networks during drive-by data collection for Google Maps.

    Communicating with the e-book mothership. If the latest must-read on Kindle is dotted with typos or has a few pages missing, there’s a good chance Amazon offers a patch to correct the error. It’s a handy Internet-enabled functionality, although one can imagine at the extreme authors continuing to update their work ad infinitum, making it impossible for a reader to say he or she has read an e-book since content is always subject to change. Information flows in the other direction on the Kindle superhighway too, as Amazon apparently keeps track of what readers are highlighting. There’s some creep factor in Amazon knowing what ideas Kindle readers think are important, even if the most highlighted passages are in works as deep as The Lost Symbol. But the information is also so interesting.

    The remote control. In April, Sony quietly revised the End User License Agreement that came with the latest PS3 firmware update to allow the company to change how an owner’s console operates in whatever way it wants, no notice or permission required. Now the FCC, at the request of the MPAA, has given cable and satellite providers the right to remotely disable output connections on consumers’ set-top boxes, leading consumers to ask “What did I buy?”

    Curated Computing is the new name in town for the experience provided by the tablet non-PC. This particular term is meant to accentuate the “less choice, more relevance” aspects of that experience. It rolls off the tongue more smoothly than “contingently generative” and sounds less regressive than an “appliance,” but it connotes somewhat life aboard the Axiom. However, its proponents suggest that curated computing devices are meant to exist alongside and supplement traditional PCs. Let’s call that a worthy goal and the best of both worlds.

    iPhone pillow talk with Steve Jobs. A ValleyWag reporter last week exchanged late-night emails with a defiant Steve Jobs on the iPhone’s ability to give people “freedom from” data theft, battery hogs, and porn. The emails speak for themselves, giving a little insight into Jobs’ perspective on the benefits and aims of the iPhone. He gets a little snarky at the end, but then again it’s 2am when he’s responding, and he never has a chance to clarify his comments, unlike the Gawker reporter.

    Android outsells iPhone. During the first quarter of 2010, phones with the Android OS grabbed 28% of the U.S. market share, surpassing iPhone’s 21% (RIM’s Blackberry is still at the top with 36%).  Although Android benefited from Verizon’s buy-one-phone-get-one-free promotion and iPhone continues to lead worldwide, it appears Google is getting closer in Apple’s rearview mirror.

    McAfee prevents computers from booting up in new virus-protection strategy. Centralizing security software in a few big providers concentrates expertise to solve problems, while also meaning that there are only a few–albeit strong–security systems the bad guys need to breach in order to wreak widespread havoc.  But in a previously under-appreciated risk, a flawed update of widely-used antivirus software can cut out the middleman and accomplish the same havoc directly.  A McAfee software update mistakenly identified a critical file as a virus and quarantined it, causing computers around the world, many of which automatically install updates, to repeatedly attempt to boot up.  One source estimated that 800,000 PCs were affected.

    Taking [re-]generativity seriously. A Connecticut mayor donated her kidney to a Facebook friend last month after seeing his desperate status update.  The patient’s doctor had suggested that he try publicizing his need through social media, using an online connection to a forge a real-world bond.

About Jonathan Zittrain

jonathan zittrain

Jonathan Zittrain is Professor of Law at Harvard Law School and co-founder of the Berkman Center for Internet and Society at Harvard Law School

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