From Soup to Nuts: Copyright, Social Networking and Electronic Surveillance

Tracy Mitrano

Cornell University

Copyright: Let’s Review

• The law and technology are out of sync with current business models and social norms– Google Library Project and the fair use question– Viacom Sues YouTube/Google for 1 billion – Peer to peer technologies, including web based

products such as BitTorrent• 85% of allegedly copyright protected material transmitted

over commodity networks

Because the protocols are free, who controls the pipes and content controls the Internet

Higher Education: Academic Delivery

• American Association of Publishers pre-litigation letter to Cornell University– Two letters from the provost to all faculty advising

them of compliance • 70% less use of e-Reserve Materials• If it is behind authentication, does that make it okay?

– Cornell Electronic Course Content Copyright Guidelines

• http://www.copyright.cornell.edu/policy/Copyright_Guidelines.pdf

– Fair use checklist and faculty sign-off with input into course management systems.

Berkman Center White Paper

The Digital Learning Challenge: Obstacles to Educational Uses of

Copyright Material in the Digital Age

http://cyber.law.harvard.edu/media/files/copyrightandeducation.html

Recording Industry Association of American

(RIAA)• Digital Millennium Copyright Act Notices

– Conduit– Safe Harbor

• Settlement Letters– To forward or not to forward, that is the question…

• Preservation Notices– On the basis of what law rests compliance?

• http://www.cit.cornell.edu/policy/memos/riaa.html

• Intellectual Property and Free Speech • http://fairusenetwork.org/resources/OSPreport-2007.pdf

What’s going on…

• Waitin’ on the new business model– “We designed the CD to last 10 years…”

• Carey Sherman, President of the RIAA, 2003

• In the meantime, have the means become the end?– Taking a page out of patent law’s

playbook, has intellectual property become the business model instead of the product in the entertainment arena?

Why is Higher Education in the Bull’s Eye of the Target?

• Object lesson for commercial ISPs?– Bruised by Verizon v. RIAA, gearing up for

another session?

• Who among US Congress will defend us?– Follow the money…

• Because they are looking for the deep pocket?– What does “knowledge” mean in DMCA?

• Because we actually care about our students and missions?– Citizenship, appropriate use and code of conduct

Social Networking Technologies: Let’s Begin

Who said, “e-mail is …

… for old people.”

…for formal communications.”

…lame.”

?

The Choices Are:

• My undergraduate student, 22 years old.

• My son, Nikko, 15 years old.

• The Chronicle of Higher Education.

• A vice president of EDUCAUSE.

Who among us …

• … has a page on Facebook?

• … uses some form of social networking technology for their work?

• … has forbidden their son or daughter to use one?

Web 2.0

• Examples– http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web-20.html

– http://en.wikipedia.org/wiki/Web_2

– http://www.facebook.com/

• YouTube– http://www.youtube.com/watch?v=6gmP4nk0EOE&eurl

Pew Internet and American Life Project

• 55% of online teens have created a personal profile online, and 55% have used social networking sites like MySpace or Facebook.

• 66% of teens who have created a profile say that their profile is not visible to all internet users. They limit access to their profiles.

• 48% of teens visit social networking websites daily or more often; 26% visit once a day, 22% visit several times a day.

January 2007 Report:• 91% of all social networking teens say they

use the sites to stay in touch with friends they see frequently, while 82% use the sites to stay in touch with friends they rarely see in person.

• 72% of all social networking teens use the sites to make plans with friends; 49% use the sites to make new friends.

• Older boys who use social networking sites (ages 15-17) are more likely than girls of the same age to say that they use social networking sites to make new friends (60% vs. 46%).

And now narcissism?

• Self-esteem movement + technology =– Excessive vanity– Sense of entitlement– Lack of empathy– Aggression when insulted– Ignoring the needs of others?

• According to Jean M. Twenge, “Why Today’s Young Americans are More Confident, Assertive, Entitled -- and More Miserable Than Ever Before”

Countered by William Strauss…

• Of “Millennials Rising” fame, would suggests that Twenge’s characterizations are “harsh, unfair and unsupported by data…”

• Anyone remember Christopher Lasch and the “Culture of Narcissism” in the 1970’s?

If there is really nothing too new under the sun…

What is interesting is how technology influences human development studies,

including now debates about the relative *narcissism* of every

adolescent generation.

What is all the fuss about?

• Criminals push the technological envelope– Pedophiles and MySpace

• Private concerns hire high profile *security* officers– N.B. Some confusion over/between physical and

technological security

• Public– Bush-Gonzalez-F.B.I. focus

» Communications On-line Protection Act 1996» Overruled» Communications Decency Act» Provisions about pornography overruled

» Child Online Protection Privacy Act: in effect, parental permission for any personally identifiable information of persons under 13 years of age

Early Press

• Remember the Columbia University student arrested after on-line sexual fantasy date turns bad?– Hot wax…

– Eventually overturned and now he is suing NYC for false arrest…

– Poor judgment on the part of the girl date?

What is it about a computer that lowers inhibitions?

• Absence of physical social cues that consciously and unconsciously keep behavior in check.

• Deeply personal relationship with computers, not unlike an analyst-analyzand relationship, allows for unimpeded expression.

• Human-computer interaction for impulsive and/or innovative people generates additional excitement and encouragement for expression.

Reason to make the technology illegal?

• H.R. 5319– Would render all social networking technologies

illegal• Passed by entire House 2006!• Died at the end of the session, but, notwithstanding

grandstanding politics, a window into the mindset of Congress on the relationship of technology to social order.

“This guy voted against a bill to stop pedophilia!!”

Dawning of Facebook

• Original technological settings to .edu domain– Early press reports of debauched and crude

behavior;– Illegal activity with respect to underage drinking

and illegal drugs;– Libelous, defamatory or uncivil discourse

“Tracy, what are you going to do about Facebook?”

Thoughts on Facebook Cornell University 2006

• Physical safety and personal privacy– “Like to be available, but not announced!”– “Didn’t like people looking at me when I wasn’t

there!”• Different expectations for a new generation but not none

at all?

• Marketability– Branding

• Try on a new identity– Nikki’s story– Bonnie’s story– Hillary’s story…marketing for whom?

Thoughts on Facebook Cornell University 2006

• Architecture:– .edu includes more than your fraternity brothers!– New friends and communities: networking is both

social and technological– New business model based on privacy settings

• In response to push announcements about changes on an individual’s page in Fall 2006

• Have to be a friend or join a group or community• How many degrees of separation now?

• Appropriate use and privacy policy• Anonymized sale of data

Law …

• Communications Decency Act– Section 230: I.S.P. Immunity

• Is Facebook/MySpace an I.S.P. or a higher layer application?

– Disney.com and the Cubby…Prodigy…section 230 line of cases

• Individual liability still pertains for privacy torts:– Invasion of privacy, misappropriate of likeness,

intrusion of seclusion…– If you can find the defendant (with a deep pocket)!

… and Policy

• Prohibit social networking technologies?• Select groups and higher standards

– Northwestern athletics

• Speech codes, free speech and citizenship– University of Southern California

• Education for appropriate, if not propitious use?– Purdue University

• Institutional transparency?– Admissions, Judicial Administration, Student Life,

Campus Police?

The Time is Now!

• Cisco buys the source code of a little-known social networking site in order to create an out-of-the-box product for its customers.

• To what use for higher education?– Cool tool for Alumni and Development

– Replace course management systems?– Electronic mail communications

• RIAA letters, poster in Facebook at CU• Go to where the students are, user-friendly environment

To What Use Libraries?

• Means to share and build information– Like Wikipedia or Citizendium but less as a

single static repository and more as a way to get birds of feather to share engagement in ideas and topics

– United with teaching and learning in colleges and universities

• By-pass course management systems, go to where students go, generate learning sites for more collaborative, peer to peer exchanges

Electronic Surveillance: Let’s Review

• Electronic Communications Privacy Act of 1986 (ECPA)– “Wiretapping Act” that collapsed telephony and

data networking technologies– Always had a content/conversational detail

component aligned with Fourth Amendment Jurisprudence

• Content: probably cause of criminal activity + judicial supervision

• Conversational detail: easy access with a subpoena

– Problem?• Different technologies offer different content

When Last We Visited the USA Patriot Act…

• Passed October 2001 and renewed in 2006– Including “sunset” provisions that amended

both ECPA and the Foreign Intelligence Surveillance Act

• FISA: separate court system, ex parte motions, originally passed in 1978 but under current circumstances assumed new meaning

– That allowed for easy access to conversational detail

ECPA and FISA Amended

• The standard for content of communications remains the same under both Title III and FISA Courts:– Probable cause of criminal or terrorist

activity respectively

• Patriot Act lowered the bar to access for conversation detail – File a paper with a clerk in the FBI

No Wonder!

• Saturday New York Times, March 10, 2006– “FBI Head Admits Mistakes in Use of

Security Act”• Talking about Patriot Act, and the use of

“administrative letters” generic phrase for conversational detail requests

What’s the Problem?

• “Mueller conceded that the bureau had improperly used the USA Patriot Act to obtain information about people and businesses.”– No central clearing house, database or

repository for these requests– No oversight for appropriate use– Confusion over content/detail = content

Consequently…

• Inaccurate reporting to Congress• No one really knows how many letters

have been issued• Or where the records are of either the

requests or the responses• Or what has been done with the

responses in either criminal or terrorist investigations

Fundamental Principles

That is not what our forefathers intended to be the case with the powers of a

government, particularly federal government, and suggests a diminution

of intended counter-balance to the Constitution:

The Bill of Rights, due process and government accountability.

History

Libraries can be proud of a long tradition of providing information and offering knowledge to the public domain as a

fundamental component of our constitutional rights and citizenship

obligations as members of this democratic republic …

The Present

Libraries have embraced new technologies -- as well as the

opportunity that those new technologies suggest for learning and pursuit of

wisdom … while being mindful of the legal and political challenges that

underpin these technologies given their particular tracking and surveillance

capabilities.

You were the first …

To grasp the significance of amendments to the 1976 copyright law and help us

understand the consequences of these legal constraints on teaching and

learning, research and free speech.

You were the one…

To lead the charge against the USA-Patriot Act for its impact civil liberties

by:

Prompting debate

Informing the media

Lobbying for reform

You are still charged …

With charting the direction for the constituents of colleges and universities to find meaningful access to information and, like Virgil guiding Dante, guiding us

all through the pathways by which we continue to pursue our missions of teaching, learning and outreach.

Back to the Future

Integrate traditional values of libraries and the seminal role that they play in our

democratic republican society with the age old missions of higher education in these interesting times that require us to balance law, technology, market forces

and social norms in the name of an ethical ordered liberty.