Fordham, continued again

The Social Impact of Intermediaries

Moderator: Joel R. Reidenberg, Associate Chief Academic Officer & Associate Vice President for Academic Affairs, Fordham University; Professor of Law and Director of CLIP, Fordham Law School

Helen Nissenbaum, Professor of Media, Culture & Communication & Senior Fellow of the Information Law Institute, New York University

Terms of Service: A Play in One Act. Cast: Archie, Dan, Eric, Jack, Maureen, Orin, Wendy, Helen, Valentine, a prof. of business ethics.

Archie: Google’s introduced behavioral ad targeting, and that’s creepy. I’m going to use TrackMeNot, a Firefox extension that obfuscates your real searches and makes profiling harder.

Eric: But that’s illegal! It violate’s Google’s ToS. Art. 5.3, you agree not to access the services by any means other than the interface provided by Google, including scripts and webcrawlers.

Archie: I’ve never seen that!

Helen: Are ToS the law?

Valentine: Why shouldn’t Google be able to impose any ToS they please?

Dan: This reminds me of eBay v. Bidder’s Edge or Intel v. Hamidi: would a court uphold these terms? As a matter of justice: Info intermediaries profit from free availability of info online, then they turn around and impose restrictions?

Helen: Consider the affordances of architecture. The limits of real property depend on the features of real property; characteristics of the medium should matter here too. Since generating logs is inherent in web traffic, does that mean that any manipulation of them is ok?

Archie: Why should site owners be in full control of our interactions? Can’t I defend my privacy?

Eric: This is a free market; parties set the terms. Walk away if you like.

Maureen: That imposes a burden on all individuals surfing—it constrains us from doing what comes naturally and makes us afraid of simple clicks.

Orin: We should write these rules into a technical handshake.

Joel: If automated access degrades efficiency of a site, there should be recourse.

Helen: Discernable harm, sure, but not just traffic the site doesn’t like, whether automated or not.

Prof. of business ethics: Moral issue: Information isn’t free. The intermediary takes info at the bottom of the food chain and creates value. If you don’t want to pay for information, you must be prepared to give it for free. Otherwise you’re like people who fast forward through TV using their DVRs.

Archie: Does that make me a free rider?

Wendy: we don’t know what owning a website entitles us to; shrinkwrap contracts may not be socially beneficial. We will not discover morality in architecture. We must determine the relevant public values to assess the reasonableness of terms and thus whether TrackMeNot is morally defensible.

Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment & Director of The Information Society Project, Yale Law School

Too many intermediaries; can’t really generalize. Flickr =/ Google Docs =/ Facebook. But he’ll do so anyway. In ancient days, people were very worried about the difficulty of accessing mass media and reaching other people. Old intermediaries, those threats of yore, are now circling the drain. Access is no longer the problem—new intermediaries encourage people to talk as much as they want, especially if they’re posting naked pictures of themselves.

Basic problem with respect to new intermediaries: they want people to post more stuff in order to feed the business model, but most of it, as Clay Shirky says, “isn’t for you.” So, there’s a lot of crap out there. How do you find the stuff that’s valuable, relevant, and credible? We’re in a deeply experimental period.

Mike Yang, Managing Product Counsel, Google, Inc.

There’s some regulator in Turkey who’s furious that something appeared on YouTube; someone else in Korea. You can’t compartmentalize these issues nationally—the panels have had an American view of what intermediaries are doing online. But every day he sees what users are doing internationally, dramatically changing their lives and societies. We take a bunch of stuff for granted in the US that can’t be taken for granted elsewhere, and intermediaries deliver a lot of that worldwide.

Yang doesn’t see the crap; he sees when the content challenges an existing regime: a government, a corporation, a social norm. 1% sounds like a pretty bad balance, but think of Google’s scale—if 1% of billions of users are empowered in a new way, that’s great. The legal department doesn’t get complaints about “my boyfriend posted a nasty picture.” They get the company, the government. They have a slanted view, but those things prove the power for good created by intermediaries. Google’s services create problems for a lot of people, and he tends to see that as good things: free speech causes problems; transformation of existing content makes people upset as it adds new creativity to the world.

Frustrating: the arbitrariness with which the law is being applied at this point. Often the upset person can’t reach the person who they think hurt them, so they lash out at the only party they can reach: Google. Often they can’t find a user even in their own countries. Google’s risk analysis: do I have servers in the country that can be seized? Do we have employees who can be thrown in jail? Google has to act differently when the litigant has a hold on it, whether that way or by the prospect of large damages. Result: arbitrary and chaotic application of international law, not good for users overall (though Yang was careful to say that chaos has its benefits for users as well).

Running joke: by the time the lawyers start thinking about it, it’s probably obsolete. This conference reflects the fact that the law is now focused on intermediaries. We’re at the height of intermediary power. Engineers say: the web is going to open source, openID, FacebookConnect—the concept of the unitary intermediary is not going to reflect the reality. The user will store login info with one provider. Gadgets and applications will be from other companies, and information will flow between all those different points. Some of the parties will be easily reachable by third parties, others not; the law is ill prepared.

Reidenberg: Hearing that social expectations are changing in a way that gets further from the scope of the law and governance and more towards private decisions. TrackMeNot is a private self-help response that fits into this. Yang suggests that international issues make the matter worse. Is law breaking down?

Balkin: Law? No. Yang will still have a job forever.

Yang says yes, he will, it’s just that it won’t be principled. Obeying the law is not the same as giving moral authority to the law while you help your client interpret it. His decisionmaking comes down to a practical assessment, which is scary—other companies may not make ethical decisions. Sometimes he does take ethical stands, but mostly we don’t and shouldn’t leave it up to companies to decide what is the right thing to do for society.

Balkin: Why isn’t it up to companies, which are part of civil society, to decide what the right thing to do is? JP Morgan in 1906 decided that governments couldn’t deal with a fiscal crisis, so he did—and made a bundle, exercising his financial power to stem a liquidity problem. He thinks Yang is basically right descriptively: the locus of power has to be decisions made by companies, many of them intermediaries, about how to structure free speech and control of information. Law is not where the action is.

Yang: Sure, companies have moral/ethical responsibility. But if you have a disagreement in society (comment: I’d say, if you have a law purporting to resolve that disagreement), government is where we’ve looked to resolve those differences, and the law as a tool is diminishing.

Nissenbaum: She’s ambivalent about use of personal info. The law should support the right of individuals to have a say—a company should not be able to enforce ToS that preclude individuals from taking steps to protect the privacy of their information. The law isn’t direct enforcement, but structuring.

Q: Does there have to be a tradeoff between new and old intermediaries? How would we think about quality control of speech?

Balkin: The printing press disrupted the authority of the Catholic Church, but we still have a Catholic Church. He thinks a third way—aggregation, mass participation—is going to develop particular techniques for assessing quality and value, which will be different from current ones, just like a secular world developing out of the printing press assessed quality and value differently from the pre-print world. There will be a tradeoff, but that’s not a reason to be pessimistic.

Eric Goldman: For Balkin: are you suggesting that the “third way” is not hierarchical? Google linking power; Amazon’s sorting of most popular products; eBay’s seller ranking—seems to be a lot of hierarchy.

Balkin: Quality, salience and accreditation are always problems. Government has one way—gov’t produces public goods. Hierarchical system outside gov’t: university, newspaper, publisher: structured as professions, to which people devoted their lives. New way: mass participation, linking, aggregation. Primarily a change in civil society. A different kind of hierarchy—instead of going to journalism school or getting a PhD, and being trusted because of credentials, people will produce knowledge in different ways, only some of which rely on education.

Yang: Net impact of Google is disaggregating. Google Books aggregated a problem that used to be diffuse, but the net effect is to disaggregate power. To the extent we aggregate power or influence, we are pretty subject to competition and the whims of our users. Critics say we’re omnipresent, but it’s because we’re giving users the services they want. (Isn’t that what NBC said?)

Nissenbaum: In relation to privacy in particular, we may want to strive for fairly abstract laws. The norms of info flow are very culturally specific, and we don’t want one nation to impose its culture on others—this is privacy-specific and not about other things we might think of as fundamental liberties.

Q: Civic groups as intermediaries between individual and government—interest groups, social groups, brotherhoods, etc. Social theory used to think those were key to avoiding tyranny. What happens today?

Balkin: Good point—his points were about knowledge, the question is about politics. Where do ideas of the good and the just come from? Various forces in civil society change common sense about rights and justice, and in a democracy that’s supposed to change the law. If democracy is premised on this circulation of ideas, what happens to that in our new world?

Blogosphere: a way of circulating ideas about politics, and it seems to be doing a pretty good job of supporting existing civil society, even amplifying them. There are technologies that actually make it easier for groups to form in real space. Susan B. Anthony had to get on a train and travel around the country, where she had to give the same speech, and they needed committees of correspondents writing to each other all the time. Imagine what Stanton and Anthony could do today—how much quicker to organize, raise money, stay in touch. Final point: if you’d asked a First Amendment scholar ten years ago what’s the biggest problem in democracy, the answer would have been: the flow of money in politics. In the last election cycle, there was much more participation in producing money for governance. It wasn’t perfect and was mostly about the presidential election, but disaggregation/new tech made it possible for more people to influence who gets political office, which improves the problem of corruption/the rich drowning other voices out.

Q: How much resistance to tech is about resistance to change in hierarchy?

Nissenbaum: A big part! Access to information is like any other resource. Shifts don’t always go from powerful to weak; some information may make the powerful more powerful.

Yang: Theme for him: the futility of resistance. Litigating Napster didn’t save the music companies. Litigating Grokster didn’t save the music companies. It’s not changing the technological fundamentals. Google encounters angry governments all the time, and sometimes they succeed in forcing alterations, but the trend line is not good for them. The only country that has successfully gotten its hands around the internet is China, and that’s because it built a firewall and has tens of thousands of people sitting in rooms looking for key words; it made the investment in regulating. The law is not the place where industries/governments should seek solace.

Reidenberg: Five years from now, what will be the most interesting intermediary, socially speaking?

Yang: Five years is a long time! But the trend is the absence of a big, central intermediary. Now that the accumulation of capital necessary to have big companies has occurred, we’ll see more control in the hands of the user.

Balkin: Key tech—forms of social interaction, of which Facebook is the most obvious example. There will be a titanic struggle between Facebook and other intermediaries about interoperability and sharing content—Yang (for obvious reasons) tells a story of a smooth move to interoperability; Balkin thinks there will be a fight.

Nissenbaum: Normatively, she hopes the tech continues to allow small groups/individuals to subvert existing systems. Given the structure of the web, individuals can have a big effect by writing code.