Archive | Internet

Google Books, Dead for Now

As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.

But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.

Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?

Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.

There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected [...]

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Northwestern University School of Law Panel on Democracy and Technology

This Friday, I will be taking part in a panel at the Northwestern University School of Law on the implications of accelerating technological development for democracy. The panel will be held from 3:30 to 5 PM in the Atrium. It will focus on Northwestern law professor John McGinnis’ forthcoming book Accelerating Democracy, in which John argues that the internet and other new technologies can greatly improve democratic decision-making by increasing the flow of information to policymakers and voters. Northwestern lawprof Robert Bennett and I will be commenting on the book. More details on the event (which is open to the public) here. The panel is part of a conference sponsored by the Northwestern Journal of Technology and Intellectual Property.

I think there is a lot to John’s thesis, but I also have some reservations based on my work on deliberative democracy and political ignorance. I will also suggest that the information revolution strengthens the political knowledge-based case for political decentralization and privatization that I outlined in this article.

John’s book is likely to become a major work in this field. The panel will be of interest to legal scholars, people interested in democratic theory, and of course technogeeks. I suspect that we have Chicago-based readers in all three categories. All are welcome! [...]

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The Broadening of the Libertarian Movement

Like my George Mason colleague Bryan Caplan, I gave two talks at the Students for Liberty International Conference this weekend. And I emphatically agree with Bryan’s observation that the SFL students I met had vastly better social skills and are generally much more socially “normal” than were the young libertarians of my own generation (I graduated college in 1995):

The Students for Liberty conference has to be seen to be believed: the attendance (about 500 students), the energy (off the charts), and most remarkably of all, the high social skills. Twenty years ago, a pack of libertarian students would have been roughly as awkward and freakish as attendees at Comic-Con… or, say, me. Now I see hundreds of students who aren’t just smart, but smooth. What happened?

The best explanation I’ve got so far: the Internet. Back in the old days, libertarian students spent a lot of time alone with their books. It was awfully hard to meet others with a shared interest in liberty. This social isolation had two effects…..: Libertarians got a lot less practice sharing their ideas in a civilized and constructive way [and]… Few “people people” became libertarians because it was too depressing. As the Internet – and social networking, its favorite child – blossomed over the last two decades, these effects of libertarian isolation largely faded away.

A closely related trend is the high proportion of women among today’s young libertarians. By my rough estimate, about 40-45% of the SFL attendees were female. That’s a sea change from twenty years ago, when young libertarians were an overwhelmingly male group. Considering that women are on average less interested in politics than men are in general, the percentage of women in SFL is roughly what one would expect in a student political group that isn’t specifically [...]

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Kill Calder v. Jones!

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – [...]

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Internet “Censorship,” part 2 — Google, Verizon, and Net Neutrality

[Update: AARGH. Mea culpa — I had been working on some documents regarding the VIACOM -Google lawsuit, and then I started work on this posting about the VERIZON-Google announcement about “net neutrality,” and so my initial posting erroneously talked all about the “Google-Viacom announcement,” as many of the commenters pointed out … My apologies for the confusion!]

I have been reluctant to jump into the fray here, because — well, because “net neutrality” is a really complicated subject, and because I’m on vacation, and I’d sure rather go for a bike ride, or lay down some more tunes, or head down to the pond, or . . . rather than sort through the sense and nonsense being written in light of the Google-Verizon announcement. But there is so much nonsense piling up out there, that I feel as though it’s worth adding a small note to the debate.

First of all, if you’re interested in the issue — and you should be, because important principles are at stake, and because the Internet is a public resource of immense value and unimaginable potential value, and because the debate over “net neutrality” implicates both these principles and the future of that public resource — and are trying to think through the implications of the recent Google-Verizon announcement, start here (the announcement itself) and then go here (Larry Downes’ excellent summary/discussion of what the proposal actually says, as opposed to hysterical pronouncements about what it might mean for the future of humankind). Although you would think, from much of the public discussion (see the articles in today’s New York Times), that Google and Verizon have cut a deal to chop up the Internet into small pieces and feed it into the fire, or at least that Verizon has [...]

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Internet “Censorship,” part 1:

No, this is not about the Verizon-Google deal — I’ll be posting about that momentarily. This is a somewhat more mundane illustration of a different phenomenon (though one that is related, perhaps obliquely, to the issue of “net neutrality” at the heart of the Viacom-Google kerfuffle). It turns out — at least if this story at alternet is to be believed — that the insanely popular social media site (25 million hits/month) is being “gamed” by “a group of influential conservative members [who] have just been caught red-handed in a widespread campaign of censorship, having multiple accounts, upvote padding, and deliberately trying to ban progressives.”

It’s not pretty, although pinpointing the precise locus of wrongdoing — and I think there is wrongdoing here — is not a trivial matter. Surely, people who want to vote to “bury” all articles presenting “progressive” (or, for that matter, “conservative”) viewpoints are entitled to do so (aren’t they?). Nothing wrong, that is, with “deliberately trying to ban” progressives/conservatives, at least where “ban” means “make them go away by using the voting system in the manner in which it was intended to be used.” Nor, I suppose, is there anything wrong with organizing a community of “activists” who search out objectionable (to them) content and try to bury it. But sites like Digg are valuable — and they are valuable — only insofar as they embody, implicitly, a kind of “one person/one vote” principle. If that goes away, the value of the site goes away with it; if 50 people have 50 different accounts each, then I’m not, as a user, getting much useful information when I see that a particular article had 2500 negative and 2500 positive votes . . .

[Update: From some of the comments [on the blog, and/or sent to

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The Iceland of the Internet, Cont’d

Several months ago I posted an item about efforts underway (organized by some of the folks at to

“put together what sounds like a reasonably serious proposal to prepare a jurisdictional “safe haven” for information on the global network, a set of highly-protective laws for anonymity protection, free expression, immunities for information providers, and the like for those who make information available on the net, and it appears that they have some serious supporters in Iceland who are interested in trying to put this into place via legislation.

Now, news comes that it is closer to becoming a reality — Iceland’s parliament has (unanimously) passed legislation to establish Iceland as an Internet “media haven.” Could turn out to be a very interesting development — more information on the proposal is available here. [...]

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The Future of Privacy: Facial Recognition, Public Facts, and 300 Million Little Brothers

It’s been a pleasure to blog this week.  I hope you’ve enjoyed this conversation and I’d love to continue it.  If you’re interested in reading more, check out our book, Wild West 2.0.  It is the most-discussed Internet policy book of 2010 (Jimmy Wales called it “an invaluable guide” to the “brave new world of the Internet”) and it sold out once already.  Or, contact me directly through my site at  Thanks again to Eugene and the whole Volokh Conspiracy for inviting me to participate this week.

This week, we’ve discussed the “Wild West 2.0” metaphor for the Internet.  Today, I’m going to present a few quick ideas that didn’t make it into this week’s posts.   I don’t have enough space to flesh them all out, but I hope to provoke some thoughts and discussions that will continue beyond this week.

What will widespread surveillance and facial recognition do to privacy?

It’s always been the law in the U.S. that images you take in public are yours to use non-commercially.  There are a few exceptions around security, peeping Toms, and so-called “upskirt” photography, but basically you can take a photo from any public place and make any non-commercial use of it.

There are good reasons for this policy, ranging from a basic respect for the free press and free expression, to the First Amendment.

But, today, facial recognition is quickly becoming available on a wide scale.  For just one example, an application called allows Facebook users to use photo recognition to find their friends in photos (even if they have not been tagged, or if they have removed their tag).  Using the tool, it’s often possible to find hundreds of untagged photos of your friends (or yourself) posted by other people.

The developers [...]

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Fixing the CDA 230 Subsidy While Preserving Online Anonymity

Thanks again for the great responses in comments.  I’ve learned a lot about how people think about the Internet of 2010 and whether it fits the “Wild West 2.0” model.

On Monday, we discussed why the Internet of 2010 resembles the closing of the Wild West frontier.  On Tuesday, we talked about whether CDA 230 is appropriate for the Internet of 2010.  Yesterday, we talked about why CDA 230 is a subsidy to online libel.

Today, I want to present some ideas to preserve the best parts of anonymous free expression, while fixing the subsidy that Section 230 of the Communications Decency Act gives to libelous speech.  I’d love to hear your thoughts.

Online Anonymous Speech is a Good Thing

Anonymous online speech can be powerful and beneficial.  You are free to leave anonymous or pseudonymous comments on this site, which encourages free discussion of political issues.  Protesters in Iran can spread ideas, corporate whistleblowers can speak out, and the government is deterred from at least one form of intrusion into personal life.  On a personal level, you can explore your identity, research controversial causes or issues, or just vent frustration.  All of these are good things and worthy of preservation.

But in the offline world there is also accountability for anonymous speech that is libelous or invasive of privacy.  By taking control of the media away from The New York Times and putting it in the hands of individual bloggers, the Internet have empowered free expression and opinion, but also empowered hundreds of millions of people to anonymously libel each other and invade each others’ privacy.

Updating the Assumptions Underlying CDA 230

CDA 230 was based on a number of guesses about how the Internet of the then-future would work.  We’ve had almost fifteen years to [...]

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Internet Freedom of Expression Guaranteed:

And by the Chinese, no less! How do I know this? Because the Chinese government has released its first “White Paper” on the Internet, and it says so. Entitled “The Internet in China” and released by the Information Office of the State Council — the full text is available here; a story in the China Daily is here; and James Fallows’ somewhat overlong and rambling blog posting about it is here — it declares that:

Chinese citizens fully enjoy freedom of speech on the Internet. The Constitution of the People’s Republic of China confers on Chinese citizens the right to free speech. With their right to freedom of speech on the Internet protected by the law, they can voice their opinions in various ways on the Internet. Vigorous online ideas exchange is a major characteristic of China’s Internet development, and the huge quantity of BBS posts and blog articles is far beyond that of any other country. China’s websites attach great importance to providing netizens with opinion expression services, with over 80% of them providing electronic bulletin service. In China, there are over a million BBSs and some 220 million bloggers. According to a sample survey, each day people post over three million messages via BBS, news commentary sites, blogs, etc., and over 66% of Chinese netizens frequently place postings to discuss various topics, and to fully express their opinions and represent their interests.

The paper, however, stresses that “effectively protecting Internet security is an important part of China’s Internet administration, and an indispensable requirement for protecting State security and the public interest,” and notes that Chinese law prohibits the spread of “contents subverting State power, undermining national unity, infringing upon national honor and interests, inciting ethnic hatred and secession” as well as such things as pornography and [...]

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Google Changed Reputation and Privacy Forever

In the early Internet, it was impossible to find isolated references to people, places, and things.   Many users navigated using directories like the original Yahoo, and early search tools like Gopher (structured documents) and Archie (FTP) were limited .

The search engines changed everything.  Starting with Lycos and AltaVista, information was freed from obscurity.  Suddenly, no matter where on the Internet your name might be mentioned, a search engine could find it.

On Monday, we discussed why the Internet is a new frontier.  On Tuesday ,we questioned whether Section 230 of the Communications Decency Act of 1996 still fits the Internet of 2010.  Today, I’ll explain how the rise of search engines since 1996 has changed reputation and privacy, and why CDA 230 subsidizes libel by preventing speakers and facilitators from internalizing the costs of their actions.

Google Has Changed How Information is Consumed

I don’t think Google is evil.

But Google is far from perfect.  Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.  For example, the top five Google search results for any search term get 88% of the clicks.  The over-attention given to the first few Google results is partly user error, but it’s also a form of rational ignorance on the part of searchers: Google gives good enough results most of the time, so there is little incentive to look deeper.

The attention given to the first few Google results would be fine if Google always provided accurate, balanced, and relevant information.  Unfortunately, it doesn’t.  Google has no way to measure whether websites contain information that is true, fair, or proportionate.  Instead, Google uses rough heuristics—most notably the number of links to a page—to try to calculate a page’s popularity.  Popularity substitutes for relevancy, often [...]

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The Communications Decency Act of 1996 Meets the Closed Frontier

(Thanks for the great comments!  I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)

Anonymous and pseudonymous speech dates back at least to the early days of the printing press.   Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran.  And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.

That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy.  Yesterday, I explained why the Internet is a new frontier.  Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.

To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it.  I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity.  My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.

Offline Speech Combines Practical Anonymity with Legal Accountability

Offline, speech has never been absolute.  In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts.  If someone publishes false statements about you, you can sue them for libel.  If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted).  And so on.

What makes this legal regime [...]

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The Closing of the Internet Frontier?

A gold rush.  A wide-open anything-goes frontier.  Prostitution.  Gambling.  Drugs.  Lax law enforcement. Vigilantism and mob justice.  Petty scammers at every turn.

The subject?  Not the dusty Wild West of American history, but instead the Internet of just 10 years ago.

In the last decade, the Internet has gone from open frontier populated by a select few, to a regular part of life for a majority of Americans and Europeans.   Predictably, the change from sparse frontier to societal integration has caused rather significant cultural clashes between early adopters and latecomers.  Disputes rage about whether we should view and regulate the Internet like an open frontier or like the rest of “offline” society.

This week, I will try to answer that question by exploring the similarities between the Internet and the original Wild West frontier.  I’ll examine what the close of the Wild West frontier teaches us about the next 10 years of the Internet.  As an example, I’ll focus on what the frontier experience tells us about online privacy and laws like Section 230 of the Communications Decency Act.  On Friday, I also hope to take a quick look at the broad impact of the Internet on the future of privac.

I look forward to discussing these issues with readers; this site has managed to consistently attract some of the brightest and most civilized commenters online.  I’m happy to take questions, comments, and suggestions.  And thank you, Eugene, for the kind introduction; I’m proud to be able to contribute to such an important community.

The Internet as Frontier Experience

The history of the Internet echoes the history of the American West.  We go into much greater detail in the book (Amazon), but even at a glance the parallels between Wild West 1.0 (1800s America) and Wild [...]

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