Turns out, America does love freedom more than other countries

Apparently, Europeans see the right to privacy as a fundamental right, while Americans tend to value freedom more:

http://www.nytimes.com/2010/02/28/weekinreview/28liptak.html?ref=weekinreview

This raises interesting questions about how accommodating ISPs should be, and whether they are responsible for adapting to these regional differences in opinions of fundamental rights. Personally, I don't think it's so much of a policy issue as it is a business model issue - you tailor you product to your market. However, others may disagree.

Week 8: Fourth Amendment: Third Party Doctrine – Emails, Text Messages & Other Personal Data

Technological innovation benefits individuals by providing them with digital tools that make their daily lives easier. However, those same technologies often times equip the Government to access private information about individuals. For example, Americans conduct an increasing proportion of their daily lives in a digital format, engaging in online transactions that involve confidential data such as personal banking, and storing large amounts of personal data, such as calendars, photographs, contact information and diary entries either on personal computers or online using services such as Flickr and Google Docs. Does the Fourth Amendment offer any protection for information stored online? If not, how robust are statutory protections for this kind of information? Questions we will consider in this class include: Is it reasonable to expect that the police will access your Facebook account in the course of conducting their investigations? Can the Government obtain access to emails stored online? Must Google give law enforcement access to its users’ search histories? Do Fourth Amendment protections cover text messages?

Required readings:

Limitations of the Fourth Amendment and Statutory Solutions:

• Smith v. Maryland, 442 U.S. 735 (1975).
• Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004), Part I only.
• Solove & Schwartz, Privacy, Information, and Technology, pp. 140-149, 156-158.

Email:

• Warshak v. United States, 532 F.3d 521 (6th Cir. 2008), pp. 9-15.

IP Addresses & URLs:

• United States v. Forrester, 512 F.3d 500 (9th Cir. 2008).

Cell Phone Tracking:

• Declan McCullagh, Feds Push for Tracking Cell Phones, CNet (Feb. 11, 2010).

Text Messages:

• Adam Liptak, Supreme Court Takes Texting Case, N.Y. Times (Dec. 14, 2009).

Social Networking Sites:

• Stephanie Perry, Can Facebook Lead to Your Arrest?, Daily Free Press (Dec. 26, 2008).

RFID, "Reasonable" Expectations of Privacy, and the Online Disconnect

In looking at the balance between privacy and security, and the resulting constitutional questions that arise from the somewhat invasive RFID technological advancement, it’s necessary to look at the spirit of the freedom from unreasonable search and seizure protection. The Dalal article focuses on whether or not attaching RFID technology to the underside of a car should be legally considered a “search” (it clearly is not a seizure, unless one makes the stretch that it is a seizure of personal information—but this goes against a lot of precedent). The evidence and precedent also seems to support that keeping track via satellite of the location of a car on a public road is not a search.

The more intriguing and potentially problematic discussion then, is about the word “unreasonable.” Cases like Knotts and McIver define “reasonable” as an expectation of privacy that society would consider reasonable—which means very little substantively. Knotts also set the precedent that technology that enhances police’s natural senses and ability to investigate or monitor is constitutionally valid. At what point does this standard stop working though? If someone is walking around, engaging in some activity in their backyard, which is surrounded by a six-foot tall solid fence, do they have an expectation of privacy? Does an officer’s ability to use intrusive technology depend on his height, since if he is 6’6”, he would be able to see over the fence anyway, meaning the technology could be considered an enhancement of his senses? What about someone who is doing something in his home behind tinted glass? Where should the line be drawn regarding this expectation of privacy?

I think allowing society to dictate the balance between privacy and security has the potential to be a dangerous thing, especially in the age of terrorism that we live in today. National safety has become more of a pressing issue than ever before in the minds of Americans. The widespread fear of terrorism pushes the balance towards prioritizing safety over privacy, and without a normative baseline for maintaining a certain level of privacy, privacy may be increasingly sacrificed in favor of security.

In an online context, it seems to me that people assume their activity is even more private than in the analog world. I don’t think this precedent maps very well onto its digital counterpart, as most people expect a significant amount of privacy within their home, on their computer, while the government sees the online world as a space that extends into a public arena.

The Death and Resurrection of Privacy

Most the readings we have this week deal with the issue of “reasonableness” when determining whether the right to privacy has been violated. The cases over privacy that have come before the Supreme court often dealt with whether or not law enforcement officials conducted their searches reasonably. Solove and Schwartz tell us that instances of infringement upon personal space are decided on a case-by-case basis. While this detail is presented in context of what it takes for a search warrant to be granted, it also highlights the underlying assumptions that we have about personal space. There is a deep-rooted sentiment that we are each allowed a personal sphere under which no one can penetrate unless there is a compelling reason. However, the technological world is quickly and forcefully challenging these assumptions; whether it’s RFIP chips that contain personal information or password-breaking software, we are now acutely aware of how vulnerable we are in the digital age. Within Dalal’s discussion of the Kyllo decision, he briefly muses about whether the expectation of privacy is a function of whether people are aware of technological capabilities. This aside is quite chilling – does this mean that as soon as one is aware of information gathering software, he is now required to take measures against it, or at the very least acknowledge that he might eventually be a victim of it? Should we accept that these breakthroughs in surveillance warrant a radical change of our understanding of privacy, or is privacy an antiquated concept that hears its death knell?

In reply, to my own questions, I believe that it is up to the citizenry to equip themselves. People now have a compelling interest to inform themselves of threats against their personal security, so I predict that the best response is technological in nature as well. More powerful security tools and proxy shielding software will be in demand, creating a market that will only grow larger as technology improves. This is not to say that law enforcement will be left out to dry, since the Fourth Amendment would still allow for reasonable searches; rather, these measures will solidify the Fourth Amendment protection while keeping people from becoming innocent victims of unwarranted information-gathering.

Cyber Showdown: Balkin v. Volokh

This blog post is admittedly a cop-out, since I can't comment sensibly on the readings until I've read them first. Despite being so swamped with midterms and the like that I foolishly put off the readings for tonight, I did attend last night's free-form conversation--compliments of the Federalist Society--between Jack Balkin and Eugene Volokh, colleagues in the blogosphere and legal scholars of repute. Just about everything they discussed was thought-provoking (and often borderline dystopian), but I'll limit myself here to the connections they drew explicitly to privacy, and implicitly, I suppose, to the 4th Amendment.

At the outset, Volokh admitted to being more concerned about the Internet's implications for defamation than for privacy. That's why the first half of the conversation turned on Section 230 and the immunity from torts redounding to online platforms that unwittingly play host to libelous comments (though not to copyrighted-protected material, apparently, as the panelists were quick to point out).

The transition to privacy came when it was Balkin's turn to prognosticate what ambiguities or downright dangers he saw "coming down the pike." Rhetorically, Balkin wondered aloud if we should get used to a world where there isn't much privacy, to which Volokh retorted that we need to be clearer about what we mean by privacy. When challenged, Balkin specified that there are three varieties of privacy: vocational, transactional, and mundane/intimate. I don't take much of an issue, intuitively, with the thrust of the exchange thereafter, namely that it could conceivably be beneficial (for the individual, company, society -- whichever!) to sacrifice impersonal details for heightened productivity or a better bargain. The concrete example that Balkin and Volokh bandied about a few times was the now-existing practice of coupons being geared to individual shoppers, based on their habits and demographics; where does the shopper get off on objecting to this practice, now that he no longer has to spend time sifting through all the coupons just to find the ones appealing to him? Another example, brought up by Balkin, was the premise in Minority Report that an individual might be best-served in knowingly forfeiting his private information to an outside body, in exchange for mercantile deals.

For some time, especially when the discussion veered toward the hypothetical and fictitious, Balkin and Volokh overlooked the circumstance when it's not in somebody's interest to relinquish information, or when that somebody isn't even aware of it happening. The panelists were by and large preoccupied with classifying privacy and debating whether it matters to the compromised individual if it's a neighbor viewing the information, a benevolent (...) corporation, or the government even. Another complication, with reference to privacy, is that new technologies and applications thereof often cut both ways, providing gains to some and hardships to others.  Take Google Buzz, which endangered a woman who didn't know what she was revealing--does that mean anything, legally?--by alerting her abusive husband to her whereabouts. In the same breath, however, Balkin touched on another application that apparently behooves gay men, whatever the threat is to their privacy, by signaling their coordinates to other gay men in the hunt for a hookup.

But of all the colorful examples alluded to by Balkin and Volokh, the one I left thinking about the most was the latter's at the very end: PleaseRobMe.com. This is a service that epitomizes the double-edged nature of giving up one's privacy.  Simultaneously, it informs would-be burglars where potential targets are located, while also educating their overly forthcoming residents about the perils of revealing too much on Twitter. 

While it's comforting that someone has taken it upon himself to act as an intermediary between the collectors and generators of (particularly sensitive) data, I question why there need be an intermediary in the first place. In those instances where there isn't an overriding concern for security, to the detriment of privacy in that binary of values, might it be helpful (or even practicable) for someone to have recourse to a database that lets him view all the data gathered on him? Would corporations be exempt from this, or should the government--which itself would be bound to such a regime of transparency--force their hand via legislation? I ask all this only because I'm just beginning to familiarize myself with the movement in this direction (i.e., Operation Sunlight, which I believe Lawrence Lessig is associated with), after hearing about such a government-run database taking effect in Estonia.

I'm looking forward to tonight, when I'll see if any of the above has a bearing on the readings. (And, as fun as it was to write this blog post, when I'll actually get around to starting my midterm paper...)

The tensions in the Fourth Amendment ride on the balance between "the protection of individual citizens' privacy and the necessity of the government to discover evidence and prosecute crimes" (Trepel 128) and as technology capabilities increase over time, that balance continues to be pushed and pressured. It is understandable that the interpretation of the Fourth Amendment must change as the technology of society increases, but what fears and concerns me the most about these cases is the implications of these changes. In the reading about RFIDs and the U.S. v. Garcia case, there were multiple references to technology being used in the future as tools for mass surveillance not just of criminals but of ordinary individuals without the use of a warrant. The GPS and RFID are tracking devices that are used commercially by individuals--the first to find directions on roads and the second to help in supply-chain logistics and EZPasses--and if they are ruled by the courts as instruments whose uses do not violate the Fourth Amendment because there is no physical trespass of the individual, then what is it that prevents the tracking function of these devices from becoming devices of searching in the future?

I see this issue of defining which technologies can be used constitutionally and with or without a warrant as mapping directly onto internet use online. Society feels strongly against tracking the activity of individuals online, and if the tracking of GPS and RFID is decided to be within the realms of the Fourth Amendment in the offline world, then I am nervous about a similar kind of tracking becoming constitutional online as well. The push for having RFID put into passports and driver licenses in order to prevent them from being duplicated pushes the balance of the Fourth Amendment as described above to obtaining evidence to prosecute crimes at the sake of individuals' privacy. Will there soon be online technologies that allow for government officials to be able to openly track the websites that individuals visit in order to safeguard individuals from online crime? As mentioned by several blog posts, it is important that society remember the Katz test that states that individuals essentially should feel secure in their privacy when they expect to be private. Individuals value their safety and want the government to have means in which to track criminals, but one of the largest components of safety is the ability to remain private. That second component cannot be forsaken and must be remembered as the Fourth Amendment continues to be interpreted in the changing society.

Changing conceptions of technology

A key ruling on issues of privacy is the Katz decision, stating that the 4th amendment protects people, not physical places. While this is an easy standard to follow, what's more complicated to apply to the online age is the stipulations about the reasonable expectation one can have about privacy.

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. "

In the modern age, what does a person who uses a phone, laptop, and GPS "knowingly expose"? The ramifications, of course, are significant, for anything that is knowingly exposed loses a degree of protection. In the analog world, it was fairly obvious to anyone doing anything whether their act was public or private. If people could see you or hear you, it was not private. In the digital world, however, things become more complicated.

For example, an 80-year old woman who uses various technologies may have no idea of what digital traces she is leaving behind, or how public her online activity may be. A savvy 20 year old, on the other hand, might have a much more accurate understanding of what others, including the government, can easily figure out about his activity. Is it reasonable to say that since the 20 year old might have "knowingly expose[d]" more information, the government could use such information against him, while it could not bring that evidence against the 80 year old since she was unaware of it? Furthermore, how can you ever prove whether someone knew how public or private their activity was?

With technology the way it is now, this standard seems more useless than ever. The way technology is constantly changing and Google is constantly changing how it tracks almost every aspect of your life, how can someone be expected to know just how public or private his actions are? Would it make more sense for the government to establish a more concrete, objective standard for determining what is public and what is private?

As the situation currently stands, the government keeps having to play catch-up with new technologies, ruling whether each new technology which is used to collect information about people is acceptable or not, and under what circumstances. Perhaps getting rid of the issue of the privacy one expects and inserting standards of the privacy the government expects you to have could help clarify matters. The GPS example strikes me as an area where this would be especially useful, since the current laws provide little guidance about how to view a GPS device placed on someone's car by the police. It is clearly somewhere between a phone tap and a police car tracking the person physically, yet the decision to make the GPS tracker illegal left me unconvinced, since the truth is that there are no real laws on the issue, and the court simply decided that a police car could never track a car as well as a GPS could.
The question, of course, would then be what exactly these new guidelines for defining privacy for the 21st century would be. To that, honestly, I have no good answer, except to say that a person or society's expectations - which are subjective and ever-changing - should not be a factor.

The Katz Ruling is Key

In approaching privacy issues, we need to return to the precedent set in Katz, that the test for privacy is that an individual must have a subjective expectation of privacy and that the rest of society would deem that expectation to be reasonable. As such, as an individual is relaxing in his home, he is entitled to privacy and that privacy is protected. The Katz ruling and status as precedent indicates that we, as a society, respect an individual’s right to privacy and hold it as paramount, regardless of whether we physically intrude on his space. Following this principle, intrusions ought only be acceptable when an individual acquiesces and hands over his right to privacy or when the rest of society, as determined by a judge and granted through a warrant, decides that an individual’s expectation to privacy is unreasonable.

I feel like in most cases RFID/GPS tracking of individuals on a massive scale by the government is unacceptable as it fails both parts of the Katz test. Implicit in the Katz test and the Fourth Amendment is that everyone *should have the ability to have some privacy*. With mass scale usage of RFID/GPS tracking, this ability is squashed. Beyond a few possible and highly debatable cases which I am not completely decided on, like tracking criminals in a correctional facility (there may be some credence to the point that they lose some societal acceptance of their privacy), with the regular GPS tracking and following of all individuals or RFID chips implanted into passports or even onto people, people lose all possibility of privacy to begin with, a right which we have already established is important. No longer is the individual relaxing in his home protected - with GPS/RFID tracking, an officer driving by knows that he is in there and who he is with. Even in the aforementioned possibly acceptable cases of surveilling criminals, these individuals have, to a degree, already lost a reasonable societal expectation to privacy - preemptively implanting these devices into ordinary people’s lives is wholly unacceptable under Katz’s test.

The Katz’s precedent surrounding the Fourth Amendment indicates that we value an individual’s right to privacy assuming one follows these guidelines, even at the possibility of slowing down law enforcement - unless an individual acquiesces and gives up his right to privacy, the government must obtain a warrant granted by a judge to show they have probably cause and a right to search and seize. This was not apparent with the Garcia case and especially not with the Andrus case. Though Andrus’ actions are reprehensible, the police investigated him in a way which violated his rights much like the police who investigated Katz did; Andrus 1-expected privacy as evidenced by his password protection of his files 2-neither agreed to allow a search nor received any warrant for a search of his computer. The police had a compelling case for probable cause, but failed in obtaining a warrant - no individual, even the officer of the law, has the right to make these sort of decisions at his own discretion.Though Katz’s father allowed for a search of his home, he had no access to the computer and as such had no real authority over the computer and therefore could not give up the computer (he had no ability to acquiesce as that is his son’s right). I think in mapping the present law onto computers, which are wildly complicated in regards to what ‘container’ is entitled to privacy - the whole computer or each individual file or a partition etc - the onus was on the police to, at least, ask the father if he had access to the computer before they opened it up. That the courts defended the police officers under the argument of that Andrus’ father had apparent authority and the police were acting reasonably undermines the Katz principle and the spirit of the Fourth Amendment entirely - it is a ‘ends justify the means’ idea, one which is unacceptable given our essential right to privacy. Andrus ought to be locked away, but the police did it in such a manner which endangers every individual’s vital right to privacy.

Question: The Trulock ruling confuses me; what does an officer need in order to access an individual’s files on a computer - do they get a warrant for the entire computer, or specific partitions, or specific files, etc?

*I edited the portion with asterisks because the language originally was very unclear*

When it comes to privacy, expectations matter.

“Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure.” - Katz v. United States

One Catch-22 with innovation and the digital age is that technology inevitably outpaces the law. Tracking systems like GPS allow government officials to follow people in their cars or homes easily; new amplification technologies enable police to overhear or view previously unmonitored areas; and sophisticated electronic hacks permit authorities to override even password-protected databases. While it might be nice if we were to regulate all of these areas, legislative remedies are simply too narrow and too belated to offer any real efficacy against these changes.

The risk then, it seems, is that our public areas become near infinite. How, when search engines catalogue digital information near-ubiquitously, can we have any expectation of electronic privacy? How can we expect any privacy protection when, as we extend wires from our homes to other homes, our spaces become less and less confined? If you’re Justice Black, perhaps you believe that we can’t have any defenses; we can only protect “tangible things with size, form, and weight.”

Such a reading, however, of the Fourth Amendment, nullifies its very Constitutional purpose, affronting the intent of the Framers. From our cell phone relays to our wifi connections, we unquestionably emit far more public signals in the digital age. But that doesn’t mean we drop our Constitutional liberties at the gates of the modern era! As Justice Brandeis says in the Olmstead dissent, “in the application of a Constitution, our contemplation cannot only be of what has been, but of what may be.” Let us not forget, for instance that “in plain view” means not just that something is “viewable,” but that it is plainly visible.

Where then do we draw the line between modern public and private space? Because making this distinction will change so much based on the type of the technology, Katz gets it right: we must look toward the people involved, specifically whether or not the people have a reasonable expectation of privacy. For example, as Trulock attempts to make clear, whenever a person establishes a digital password, it is clear that they are trying to establish privacy. It seems that we can distinguish between my password-protected Gmail files and my posts on a public forum like Blogspot—I certainly have an expectation of privacy in the former case where I do not in the latter. Thus, shielding my Gmail account from unwarranted searches is more important than protecting my Blogspot posts.

In Katz, Justice Harlan tries to establish a two-prong test for privacy: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such. The Supreme Court has since (in my opinion, wisely) adopted this test.

In the modern era, when we can never truly protect ourselves from technological innovations and breaches, we need to look toward areas where we societally expect to have privacy rather than just those areas where we can physically secure. When no combination of Firewalls and passwords can ever protect our private spaces from others, we need to look towards the law as our last safeguard!

Perfection vs. Imperfection: A Logical Contradiction

In his dissenting opinion in Illinois v. Carballes, Justice Souter remarks that an “infallible dog is a creature of legal fiction.” Therefore, he posits, conducting a dog sniff during a routine traffic stop constitutes an illegal search unless it is backed by a warrant. The significant risk of false positives and the ensuing illegitimate search is an unacceptable threat to the Fourth Amendment. In Souter’s opinion, the imperfection of the tool renders it unconstitutional without a warrant.

In State v. Jackson, the Washington Supreme Court ruled that placing a GPS device on a car requires a warrant. The court acknowledges that the GPS device “provides a technological substitute for traditional tracking” which is both more reliable and more resource-efficient than the nearly impossible task of “maintaining uninterrupted 24-hour surveillance for approximately two and a half weeks.” However, it is the very ease and efficiency of using the GPS device which makes it so problematic. In the court’s opinion, the perfection of the tool renders it unconstitutional.

These two seemingly contradictory theories highlight the importance of maintaining the presumption that any act other than routine observation constitutes a search and seizure, thus requiring a warrant. Acts that are border-line at best, and hinge upon the perfection or imperfection of the tool used, most likely constitute searches and necessitate warrants. It should come as no surprise that the convoluted legal reasoning necessary to rationalize the expansion of police power often doubles back on itself and creates logical contradictions not easily resolved.

In the digital age, as technology improves, it becomes increasingly tempting to allow intrusive and sweeping searches on the grounds that no rules are technically broken. But this is where it is helpful to step outside of the complex legal framework and look objectively at the cases. A dog sniff is a search because it involves using a police instrument (a dog) to ascertain the contents of an individual’s hidden possessions. Similarly, attaching a GPS device to a car appears to be more significant than mere police “tailing” as it entails a constant and precise record of that car’s whereabouts through aid of an electronic device. A dose of common sense is often more useful than the most sophisticated and complicated legal arguments. In reviewing conflicts between technology and privacy, the spirit of the Fourth Amendment must be preserved above all else.

Week 7: Fourth Amendment: Unreasonable Search – Computer Searches & Locational Tracking

This class will introduce the Fourth Amendment, and the difficulties courts have faced in balancing security and privacy concerns. What does privacy really mean in the digital age? Should the Government be able to search the computer you use at work? Can police monitor your movements using a GPS device? Should they be able to track you using your cell phone or the RFID chip in your driver’s license? Given that privacy is always in conflict with countervailing interests such as the free flow of information, detection of crime and national security, we will focus on the various balances that must be struck. We will examine the Supreme Court’s struggle to apply Fourth Amendment doctrine to new technologies, and will ask whether the Fourth Amendment is able to remain relevant in the digital era.

Required readings:

The Fourth Amendment technology cases:

• U.S. Const. Amend. IV.
• Solove & Schwartz, Privacy, Information, and Technology, pp. 77-90 [but skip pp. 81-83, subsections (g), (h) and (i)], 95 (start at Katz)-100, 113 (start at Place)-114 (stop at Caballes), 117-118 (stop at Greenwood), 132 (start at Kyllo)-138.

GPS Tracking:

• Wikipedia on GPS (optional).
• Solove & Schwartz, Privacy, Information, and Technology, pp. 131-132.
• United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).

RFID:

• Reepal S. Dalal, Chipping Away at the Constitution: The Increasing Use of RFID Chips Could Lead to An Erosion of Privacy Rights, 86 B.U. L. Rev. 485 (2006), Part I only (pp. 487-491).

Computer Searches:

• Solove & Schwartz, Privacy, Information, and Technology, pp. 158-165.
• Samantha Trepel, Digital Searches, General Warrants, and the Case for the Courts, 10 Yale J.L. & Tech. 120 (2008), Parts I, II and III (optional).

Horror Stories of Apple

Cracked.com is a website that presents little-known facts and interesting facts in a sarcastic, humorous way. Still, despite the presentation, the articles are usually well-researched and backed up with sources. This article, which came out yesterday, details some of Apple's shocking business practices, some of which I felt were relevant to our discussions of civil liberties and net neutrality.

http://www.cracked.com/article_18377_5-reasons-you-should-be-scared-apple.html

Anti-Net Neutrality

I think this net neutrality debate is really fascinating. At first, I saw the YouTube video praising net neutrality and was very much on board with keeping the Internet as open as possible. Net neutrality seems like a great concept in order to allow everyone to access as much information and knowledge as possible. I was shocked at how quickly I switched sides upon reading more. It seems clear to me that any net neutrality legislation would be absolutely unconstitutional. In Goldstein’s essay, he makes convincing points through the use of newspaper analogies, suggesting that no one would be on board with the government restricting the types of business practices a newspaper could employ. While net neutrality supporters invoke a need to protect the First Amendment, so that all sorts of speech on an open internet can reach a national audience, it is those against net neutrality who have the Constitution on their side. The government cannot tell a private corporation how to run their business because that would be a violation of private speech. For those that invoked the argument about cable television, the comparison seems weak, as most cable providers were in the position of being local monopolies, leaving viewers with no choice—a very different situation than the competitive market that BSPs inhabit.

Furthermore, the entire existence of this unnecessary debate appears to be the result of paranoia. There is very little evidence that any BSPs plan to restrict access to the Internet, and even if they did, in a free market economy where competitors are virtually omnipresent, why would they? Surely, any BSP that enacted such measures to the chagrin of their consumers would experience a mass exodus and loss of revenue.

Some sort of compromise on the issue of net neutrality seems reasonable, as it is certainly in the public interest to retain access to an open Internet, but many issues need to be addressed before any sort of legislation is set forth. These include: Why BSPs are being singled out, and not search engines or browsers (a question that Goldstein put forth)? How do we address the ambiguity of a phrase like “reasonable network management practices”? Why the sudden distrust of BSPs after all the beneficial progress they have provided in delivering more access and information to the public in the past two decades?

I think a common thread that ties together the two issues—net neutrality and spam regulation—is how much the government can interfere with speech when it has a pretty good and reasonable reason for doing so. Nobody likes spam, and nobody wants their internet censored and biased in strange ways. However, from a constitutional standpoint, what does it mean if we allow government to have a say in such issues? And what dangers might this pose down the road in terms of government control of information? I want to explore each of these issues in more detail, but the common theme in my views is that despite the fact that the government has perfectly reasonable reasons for wanting to intervene, it is unwise to let it do so. Additionally, I have come up with a few alternate proposals for addressing these issues without infringing in First Amendment rights.

As for spam – I agree that spam is a big problem. However, I still object to what amounts to government censorship. Even laws which allow the dissemination of political messages but restrict commercial spam are problematic. While most people think of fraudulent spam messages that try to steal people’s money, commercial spam could just as easily be an entrepreneur who is advertising a new business he is starting, or gathering funds for a start-up. In a capitalist society in which people have free speech, why should this be banned?

Now, spam is still a problem that needs to be dealt with. Internet providers and e-mail servers, which are run by private companies, have every right to block or filter spam. The government, however, is getting involved in censorship when it does so. Can’t companies be effective enough in regulating spam without government laws? Technology permits companies to block spam, so the governmental regulations are not necessary. Even if repealing these laws would cause increased spam, and perhaps companies would not succeed in blocking it all, isn’t this inconvenience a small price to pay for preserving our First Amendment rights?

In regard to net neutrality – again, it makes sense that people should have complete access to the web, without their ISP’s interference. Again, however, what gives the government the right to influence how a private company (ISP) delivers information? In order to balance the government’s desire to ensure that ISP business biases do not influence citizen’s access to information and the concern that government should not be involved with how we receive information, I can think of two proposals, though I’m sure there are many more ways to deal with this issue. One idea would be for the government that ISPs make publicly known whether they provide net neutrality, of if they modify internet access in certain ways. That way, citizens at least know what type of service they are getting, though the government is not interfering with the spread of information. Another proposal responds to an idea brought up in the Tribe/Goldstein pieces. If the government deems that the internet is such a vital form of communication in society, and ISPs are so badly distorting access that people are not getting proper access to information, the government can think of creating its own strictly net-neutral ISP. That way it can ensure the neutrality it so highly values, but without infringing upon the rights of the ISPs and citizens. Having government-sponsored internet, of course, opens an entire new can of worms….

Accessibility of Free Speech and the Marketplace of Ideas

Tribe and Goldstein argue that net neutrality mandates would violate First Amendment rights. What they do not do is explain what exactly the First Amendment means in the “digital age”. They explain the First Amendment in a piecemeal fashion. I would have been more convinced (since I generally agree with them) had they taken the time to first explain how the First Amendment and free speech should be interpreted today.

Free speech in the analog world and the digital world are different. Each world has its own structure and mechanisms. The biggest difference between the two worlds is that in the digital world, a person’s free speech is capable of reaching a much larger number of people than in the analog world (N.B. unless one is a well-known public figure). Does the right to free speech include the right to have that speech be accessible to all? During the time of the Framers, it was not logistically possible to have full accessibility to speech; however, today it is. If the internet were a public forum, then maybe everyone should have access to the speech of those in the forum (unless someone’s speech disrupts the integrity of the forum), but the internet is not a public forum. It seems that the Government has little justification in trying to ensure that “the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.” (2)

Connecting last week’s readings to the net neutrality debate, it is interesting to consider how the marketplace of ideas would fit in. J.S. Mill believes that such a market allows the truth to be revealed. In the case of net neutrality one can argue both for and against mandates. Those who would be in favor could argue that if all voices are not represented equally then the truth may never be achieved. Those who are against mandates could argue that the marketplace for BSPs would become static and little innovation would occur with mandates -- possibly limiting the development of the internet itself and the information that we can find on it. In a way BSPs participate in a Darwinian process where the best ideas and sites succeed and thus become easily accessible.

Spam of a Different Flavor

In the past, people have objected to solicitation because it was overly personal. Watchtower dealt specifically with the question of door-to-door solicitation, and it was only because their method was so personal, I believe, that the plaintiffs succeeded. On the other hand, we object to spam email precisely because it is so impersonal. Unlike the Watchtower Jehovites, spammers rarely feel strongly about spreading an idea or recruiting members for a cause. Rather, they are commercially motivated, whether by legal means or through some kind of fraud, and the way they solicit reflects this. They do not care whom they reach, so long as a tiny fraction of these people respond and buy their product.

One worry with spam email regulation is that it will chill the speech of non-commercial groups like the Jehovites who also wish to reach the largest possible audience. In practice, however, this rarely takes place. Those who feel strongly about spreading the good word, or overthrowing the government, or whatever, tend to prefer the personal touch or simply lack the technological know-how to spam on a commercial level. In the case of Jehovah’s Witnesses, the religion even mandates this personal relationship. While I am intrigued by Alex’s prediction that “[m]ass emailing provides a remarkably powerful and inexpensive medium for small groups to promote their ideas”, I cannot remember the last time I received spam from a non-commercial enterprise without first requesting to be on the mailing list. It is in the interest of smaller groups to address a more selective and responsive audience. The obvious argument to the contrary, of course, is that the more people they reach, the more supporters they will find. By choosing to remain selective, however, small groups add to their legitimacy. I am much more inclined to engage with a group that does not harass me via unwanted email on a regular basis. Many groups have realized this themselves, I think, and therefore do not spam. Thus the regulation of non-commercial email in some states does not bother me as much as it seems to bother some of my classmates.

My question for this week is, “Is CAN-SPAM effective?” As of 2004, it wasn’t, according to this article. But I am interested to learn if anyone’s spam actually conforms to the model set out by the FTC. Mine doesn’t.

The opinion delivered on the Watchtower case incited within me a strong reaction against the position taken by the court because I initially felt that the Court did not focus enough attention on the issue of privacy. I was incensed that Jehovah's Witnesses could so easily disregard the rights to privacy that individuals have within the home of self-regulating whatever speech individuals wanted to receive or participate in. Door-to-door proselytizing violates that privacy by essentially imposing the Jehovah's Witnesses faith to individuals, and it was from this perspective that I at first rejected the Court's decision in overturning Stratton's ordinance. However, after reading the articles on spam regulation and taking into account the discussion on anonymity and free speech from last week's class, I recognize that my reaction to the decision of the Watchtower case has the potential to overly restrict free speech in that having to register for a permit, it is essentially the government who is deciding on which speech can be allowed to be delivered door-to-door rather than the individuals who want to do the speaking. The ordinance issued by Stratton essentially put the Jehovah's Witnesses in a tough spot of having to "inform the government of [their] desire to speak to [their] neighbors and then obtain a permit to do so" and I agree with the Court in saying that no organization should be put under that restriction.

However, I do want to discuss further this boundary between free speech and privacy because I believe it to be an underlying issue that connects door-to-door marketing and spam emailing. The boundary even in the real world it is unclear; I personally do not enjoy Jehovah's Witnesses stepping onto my private property to deliver their free speech nor the idea that I have to opt-into the system that allows me to place a "No Soliciting" sign on my private property. Regardless, if the default for spaces in society was set to "No Soliciting," where would individuals be allowed to solicit and speak their speech? My main question here is whether or not individuals consider their personal email (or potentially their work email) as their own private property. In my opinion, I do not think free speech and private property should ever intersect, though I am able to see the restrictive implications of my choice. I would therefore like to further discuss this issue for it would provide me with some insight in how to further interpret the behavior of Jehovah's Witnesses and spam senders.

I don't want any spam! and net neutrality

As someone who has abandoned old email accounts because of the sheer volume of spam they received per day, I empathize with those who protest the annoyance of spam. But the reasoning for the Watchtower ruling is compelling, and a mapping of it onto the Internet seems to justify much of unsolicited email with political and religious leanings. Watchtower, however, does not totally protect unsolicited commercial efforts - the opinion even states that if the city ordinance just concerned commercial efforts, the city might have had a case given the city’s entitlement to protect its citizens from fraud and privacy - and so in mapping onto the web, commercial spam is seemingly unprotected and undermines much of the CAN-SPAM legislation which does protect a company’s right to spam. The Watchtower ruling reaffirms the idea that ‘the little person’ has a right to speak to an audience, not necessarily the right to profit from them.

Though the federal government may be entitled to regulate commercial spam, law is probably not the most effective tool in combatting commercial spam - the sheer volume and number of senders makes it extraordinarily difficult, and except for cases where senders of spam are engaging in criminal activity like stealing information, legal intervention does not seem worthwhile. The Virginia case, for example, was able to prosecute one spammer, and yet there are millions abroad and out of easy reach for the government. But what if people who don’t want any spam? The architecture of the internet can provide this protection from much better than the law; like a fence around the home, spam filters have become so pervasive and increasingly effective that the impact of spam is dramatically diminished. Moreover, the BSA study seems to suggest that, though virtually everyone receives some sort of spam, few actually read it, suggesting social norms and education regarding spam has reduced the issue - educating people, then, seems to be a powerful tool.

Regarding net neutrality, the fundamental issue surrounding Tribe and Goldstein’s argument, which the Benkler reading brings up, is that TG value the privileges of BSPs over the rights of individuals and their entitlement to freedoms of speech recognized by the First Amendment. Though TG say that an open Internet would be good, they maintain that BSP’s are motivated by a desire to ‘innovate in their products’ to meet the BSP’s ultimate goal of fulfilling the consumer’s need for a robust internet. What TG omit is that these companies are not motivated by a humanitarian concern for others, but rather by profit - not necessarily an inherently bad thing, but a fact which warrants regulation to ensure that the profit motive is not resulting in a destructive manipulation of the medium. TG also claims that government regulation to protect neutrality will slow the growth of the internet and the BSP’s ability to produce a good product; this claim is ludicrous - entire highly critical, profitable industries, like banking and utilities - are heavily regulated and largely meet the needs of its customers.

I may be confusing BSP’s, ISP’s and their respective roles, but it seems to me that these companies are not providing and producing content on the internet, but rather providing access to said content created by others. Given this, I do not see how ISP’s can decide what type of content an individual can and cannot consume, so the “traffic management techniques” which TG bring up seem unjustified (if an ISP wants to ensure a fast internet/good product for its consumers, it ought to expand bandwidth rather than manage what content is important or not). Moreover, as the Public Knowledge YouTube video notes, given this “traffic management technique” ISPs could easily abuse the system to increase profits, for example bottlenecking protocols like Skype or BitTorrent in exchange for its own paid alternative.

TG also makes the point that if BSP’s had greater control of internet traffic, it could enhance the aggregate majority’s ability to get information faster -- but what about minority? They are just as entitled to access to information, this implementation of a majority ruled internet would bottleneck their ability to access information and would likely squash out information and content on the internet that is unpopular, bringing up issues akin to opt-in programs’ we discussed in previous lectures. Without net neutrality protecting equal access to all information, how can you know that that extraordinary but not mainstream thing you have yet to see and experience is extraordinary if you have no access to it?

Question: What are other ways we can protect people from spam besides educating and spam walls? Are there more effective ways afforded by law?