Tag: EFF

Privacy-ish Concerns

This week, I paid a small fortune to have the instrument cluster replaced on my car, and the mechanic, sympathizing as I wincingly wrote out the check, said, “The days of mechanical failures are over.” By this he was of course referring to the reality that everything we depend on is supported by integrated electronics and computers, the downside of which is that failures are often systemic and expensive rather than isolated and cheap.  In fact, I can’t think of any repair to any machine in the last decade or more that hasn’t required replacement of a control panel, and it’s these delicate electronics that make even products we still call “durable goods” not so durable as they used to be.  Given all that and other considerations like privacy and security, is the proverbial “smart home” desirable?   Frankly, if my coffee maker, smoke alarm, fridge, television, and thermostat all start talking to one another (and a company like Google is listening), I’m never going to sleep soundly again.

With its 3.2 billion dollar acquisition of smart device maker Nest, Google is clearly poised to enter the home through portals other than the computer and mobile device.  As this article by Steven Rosenfeld on AlterNet.org describes, Google is fairly unapologetic about invading privacy as a for-profit venture, which makes the company’s public denouncements of the NSA more than a little hypocritical.  The article lists several ways in which Google has already violated user privacy, including its achieving the dubious honor of paying the highest civil fine ever ($22.5 million) to the FTC for bypassing user security settings in Apple’s Safari browser.  While the fine may be a record-breaker, it is likely dwarfed by the market value of the illicitly gained data Google was able to sell to advertisers. So, not an effective deterrent, then.

I’ve been called a privacy skeptic by commenters on this blog and in other places because I’ve stated that I’m not extraordinarily fussed about the Snowden revelations.  Let me try to clarify. I’m not extraordinarily fussed about the Snowden revelations in context to the larger picture.  I think the 4th Amendment should be defended, even if that defense is on principle alone; but in the case of domestic spying, I do believe we may be substantially more focused on principle and hypotheticals than on practical, day-to-day reality.  In reality, it is unclear yet whether or not the intelligence-gathering agencies have broken any laws or violated anyone’s rights. In reality, Americans polled on the issue are split right down the middle, which suggests there may be little change in policy no matter what.  In reality, most people who work at these agencies really are more interested in finding terrorists, human traffickers, and other criminals than in reading the content of our boring-ass emails during their lunch breaks.  In reality, the only entity that has been caught reading the content of our boring-ass emails is Google, and this includes not only Gmail users, but people who have corresponded with Gmail users.  In reality, if the intelligence gathering agencies really want the dope on any one of us, they need look no further than most of the stuff we voluntarily put out there through social media.  And finally, if intelligence gathering agencies want robust information, they’re going to get it from Google, Facebook, Apple, Microsoft, DropBox, and Skype, all of which are named in the aforementioned article as supplying information to government agencies.

And this brings me to the latest email blast from the Electronic Frontier Foundation inviting users to an online protest on February 11th called The Day We Fight Back – Against Mass Surveillance.  Invoking the martyrdom of Aaron Swartz, the defeat of SOPA (again), and the disgruntlement with the NSA, the EFF wants us to raise the fists of solidarity against domestic spying.  And that’s fine, but where is there any mention of Google, Facebook, Apple, Microsoft, DropBox, or Skype as targets of this day of protest?  There isn’t.  Instead, these corporate entities are being portrayed as first-tier victims of intelligence overreach, several issuing transparency reports as though to say, “Look at all the data we have on you the government made us give them!”  So, assuming we successfully reign in the intelligence community (or convince ourselves we can), are we still cool with all the for-profit data collection these companies are doing because it’s supposedly voluntary?  Are we okay with prospective employers or insurance underwriters judging us based on our search data or Facebook profiles?  Because that’s a lot more likely than the average citizen attracting the attention of an analyst at the NSA?

I’m all for holding government agencies accountable, but not if we’re simultaneously letting private industry off scott free.  After all, private industry is actually better at this domestic spying thing, and they have a profit motive, which I happen to think is a more realistic concern than the hypothetical analyst who just wants to pry because he’s a creep.  To debate and protest domestic surveillance without focusing on these private companies seems incomplete to say the least. So why isn’t the EFF more critical?

Here’s the thing that worries me more than anything an Edward Snowden could possibly reveal:  when corporate interests seek to drive a wedge between the public and their elected representatives, it’s often because those representatives are (as they are meant to be) a barrier between the public and whatever the corporate interests would like to do to the public.  And that’s what I believe is happening here.  I don’t think the EFF gives a damn about actual privacy, otherwise the aforementioned companies would be in their crosshairs for this protest on the 11th.  I think the EFF wants to capitalize on distrust in “the government” in the service of protecting the Internet industry’s interest in maintaining our trust in the almighty cloud.  After all, what could be worse for Google, Facebook, Apple, Microsoft, DropBox, and Skype than if we all seriously began to care about privacy?

SOPA So what?

Silhouettes of tourists hiking on Bromo mountainDid you hear the echo?

This past weekend, as many people know (and even more people don’t), Saturday marked the two-year anniversary of the event known as SOPA Blackout Day.  In case you don’t remember it or missed it altogether, it was January 18, 2012 when various websites, most notably Wikipedia, went dark or semi-dark for the day in order to inspire users to take action and stop the SOPA and PIPA bills from passage in Congress. Google put out an online petition that a reported seven million people forwarded to Congress, and enough citizens called the Capitol that the phone system actually crashed.  In short, the protest worked.  It worked so well that members of congress got whiplash tying to figure out what happened to a pair of bills that had strong bi-partisan and White House support just days before.

It was remarkably easy to convince a lot of people that the proposed legislation was a threat to free speech and would break the internet as we know it, but I did wonder on the day whether or not the industry could keep banging the same drum indefinitely without getting on everybody’s nerves.  After all, one of the weaknesses of social media  is that it fosters flash trends and not so much sustained interest in any particular issue.  And, despite Google’s pre-anniversary email blasts and the EFF’s sponsoring a campaign called Copyright Week, I don’t think the message got very far outside the echo of the Valley.   It’s not surprising to see the industry attempting to use the same anti-speech refrain to rally public protest against the TPP trade negotiations, but I don’t think they can get lightning to strike twice.

A couple of posts ago, I essentially accused the Electronic Frontier Foundation of fear-mongering on this subject, saying that organization is acting more like a PR firm than a public advocate.  This yielded one response on Twitter from a member of the EFF, who sent this link to one of their many articles explaining what’s wrong with the TPP.  Read the piece for yourself without any preconceived bias — I personally don’t have strong pro or con attitudes about the TPP — and decide whether it’s being informative or manipulative.  Here’s my take on a couple of choice excerpts:

Lack of transparency:  The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.

In my opinion, a public advocate would explain that the TPP, while unprecedented in scale and scope, is not particularly unprecedented in its relative level of secrecy.  With any trade deal, there is always a fine line between transparency and efficiency inasmuch as one cannot hold a real-time, public referendum on trade negotiations among a dozen nations and hope to actually get anything accomplished.  On the other hand, legitimate concerns have been raised about congressional oversight of ongoing negotiations, and these concerns are not to be dismissed.  Regardless, if the EFF is providing a public service, then disinterested analysis seems the proper approach rather than purple prose like “shrouded in secrecy.”  This is especially true given the fact that members of the EFF themselves have attended TPP stakeholder events, where, in fact, “multi-stakeholders” have been invited to speak and interact with negotiators.  If the EFF felt that these events were inadequate or unfair, then they are within their rights to share those observations with the public, but given their consistent use of conspiratorial language, it seems that their mission is not to inform but rather to elicit an emotional, SOPA-like response to the TPP.   Here’s another excerpt:

The TPP Will Rewrite Global Rules on Intellectual Property Enforcement

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector.

This paragraph doesn’t actually provide any information to the average citizen.  I doubt anyone who doesn’t follow copyright issues consistently would even know what this paragraph means; but it sounds kinda bad, right? And since distrust of the government is at an all-time high, it’s relatively effective.  Why provide information, when you can use an atmosphere of distrust to pump out industry talking points like “copyright stifles innovation?”  What this paragraph actually conveys is we should not ratify a trade agreement that would reaffirm existing copyright law when we should in fact be reforming existing copyright law at home because we all know it’s broken. Of course, if you don’t think it’s broken — and polls indicate that most Americans still support the fundamentals of copyright — then this paragraph doesn’t say anything negative about the TPP at all.  What the statement is really doing, of course, is base-playing, rallying support among people who’ve already decided that copyright threatens speech and innovation, which means the EFF is campaigning, which is not the same as providing impartial advocacy.

For instance, what the EFF doesn’t tell you is how or why DMCA is controversial.  For creators, it is a nearly useless mechanism for requesting takedown of unauthorized use of their works; whereas to the EFF, DMCA is an insidious means for powerful interests to censor people through wrongful infringement claims.  Yet, if you actually look into the issue, you’d find that wrongful DMCA takedowns are fairly uncommon, often accidental, and are dwarfed substantially by the volume of unchecked infringement of protected works.  Just last week, Google alone reached the milestone of receiving its 100-millionth takedown request from the music industry, and Google will mostly get away with ignoring these requests because it’s very big and very rich.  So, is the DMCA controversial?  Hellz, yeah.  But the EFF isn’t necessarily going to tell you why.  Instead, it simply uses the word controversial to imply “not good” and then say that the TPP will “further entrench” what’s not good about it.  Sound vague?  Not by accident.

If you’re relatively neutral on copyright law, you might interpret that ratification of the TPP  could unreasonably expand copyright even in the U.S., and that would be false.  No treaty has yet changed domestic IP law, and even the portion of draft content leaked by Wikileaks reveals nothing inconsistent with existing domestic law. What the USTR would be seeking in this deal is to have signatory countries agree to establish and/or enforce their own IP laws that would essentially mirror laws we have in the U.S. This is neither sinister nor unusual, given that a lot of the trade we’re negotiating includes a lot of copyrighted property, like popular movies and TV shows. Moreover, it should be noted that, among countries that uphold copyright, the United States has the most liberal interpretation of fair use because we also believe in free expression, education, and social commentary.  So, the prospect of exporting our approach to copyright is not necessarily detrimental to individuals in foreign countries, although it would certainly be a pain in the butt for social media companies. Again, the EFF isn’t going to get bogged down in such gray areas because that’s not how one wins a campaign.

There are quite possibly some reasons to be concerned about the TPP, but even Timothy B. Lee, with whom I disagree on just about all things copyright, states in this article that the trade deal is being falsely hyped up as Internet censorship. Lee will say that the TPP “exports some of the worst aspects of copyright law,” but this is only true if you believe those aspects of copyright law are bad in the first place, which brings us back to the domestic debate.  And that debate is why I believe the EFF and similar organizations are expending so much energy on trying to kill the TPP — because its ratification makes domestic reform from their perspective more difficult.  If that’s the case, then again I argue the EFF isn’t providing the public service of demystifying some of these complex issues so much as they are rallying support for a very clear domestic agenda.  Among the problems with what they’re doing is that all the hype over copyright can direct attention away from what might be serious concerns related to this trade deal.

Today, of course, is a legitimate anniversary when we celebrate a man who sacrificed his life to exercise free speech more eloquently than most to address real threats to civil liberty.  People my age were in grade school just a few years after Martin Luther King was assassinated, and I was at that time in a school populated by mostly African American kids. The mood was still visceral; the immediacy of King’s legacy was part of our development into conscious beings; and King can claim credit for the many voices that followed his example.  And still we have people in this country who would shoot Dr. King all over again; so we’re not quite done chasing his dream.  By contrast, I have to say the sound of ivory-tower lawyers ringing the bell of freedom from the tyranny of copyright is just a tad decadent.

Hart asks why EFF still dancing in Lenz v UMG.

I don’t know about you, but I’ve had my Internet service cut out from time to time, and I’m strongly considering suing my ISP for periodically violating my right to free expression.  Sound absurd?  Good.  Then, I draw your attention to Terry Hart’s recent update in the case known as Lenz v UMG.  What happened was Mrs. Lenz, a grandmother, uploaded a video of her dancing grandchild to YouTube, and an automated system detected the Prince song “Let’s Go Crazy” playing the background, which triggered a DMCA takedown notice from Universal Music Group.  It was an error — music playing incidentally in the background like that would often be fair use — but I’m happy to report the Lenz clan have suffered no psychological damage stemming from the six-week period when the video was offline.  That was six years ago, but as Hart reports, the Electronic Frontier Foundation, as the saying goes, is still making a federal case out of it.

The EFF and other forces aligned against artists’ rights like to claim that malicious DMCA notices are rampant, but as Hart has pointed out before, if this were true, why pick a fight over a case as weak as Lenz?  Answer:  because this isn’t about rampant abuse of DMCA (or certainly about any harm done to Mrs. Lenz), it’s about establishing greater burdens for individual creators to protect their works online.  If it weren’t about that, who’s paying EFF’s lawyers to pursue this for all these years?  Hint:  Not the Lenzes.

“So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites? Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?”

See Terry Hart’s full article here.