Christopher Herot's Weblog

Is YouTube Similar to Videotape?

Wendy Seltzer points out that Wednesday's discovery order in Viacom v. YouTube, which requires Google to release the login names and IP addresses of every person who has ever viewed or embedded a YouTube video may be in contradiction to the Video Privacy Protection Act which prohibits a "video tape service provider" from disclosing "personally identifiable information."  The act defines "video tape service provider" as "any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials."

It would seem difficult to argue that video-on-demand is not "similar" to video cassette rental.   Google did cite this law in their argument, but the judge then cited a blog posting by one Google's own engineers that argued IP addresses are not personal because they are usually assigned dynamically.  That may be true in theory, but in practice most DHCP servers hand out the same address each time a given user requests one.  Many people exploit this property to host web sites on their cable modems and the address can stay the same for months, if not longer.

I suspect Google has decided not to appeal this order because if the information in their logs was held to be personally identifiable, the law would prohibit Google from retaining the data any longer than a year, a topic on which their privacy policy in conspicuously silent.

Privacy Lawsuit over Google Street View

Aaron and Christine Boring of Franklin Park, Pennsylvania are suing Google in the Allegheny County court for taking pictures of their home as part of Google Street View.  While the law is quite clear that a photo taken from a public place is fair game, the Borings live on a private road and assert that Google's photo vehicle ignored a sign to that effect.  They are asking for $25,000 in damages for loss of privacy and demanding that Google to remove the photos in question.   Of course by filing the suit they have already attracted far more attention than they ever would have gotten from Street View and a photo and detailed description of their house at 1567 Oakridge Lane is already available at the Allegheny County Web site.  Also, the photos from Street View are all over the web by now.

It appears that Google may have already removed the Boring images, although the house-number algorithm on Google Maps is sufficiently sloppy that it's not clear which photos match which of the five houses on their street.

On the legal side, I am not a lawyer and don't even play one on TV, but the status of a private road is not obvious.  In Massachusetts roads are often signed "Private Way - Dangerous" but that is intended as a warning that the road is not publicly maintained and thus may not be up to the usual standards of maintenance which aren't that great to begin with.  According to a recent article in the Boston Globe, such roads are indeed open for the public to pass.  Often the issue is one of whether there the way has traditionally been open to the public even if it is privately owned.  Perhaps Google will need to put a lawyer in each car as it takes its photographs.

Scoble + Plaxo vs. Facebook

Ther recent imbroglio over internet celebrity Robert Scoble being banned from Facebook raises some long-overdue questions.  It appears that Scoble used a beta version of a tool from Plaxo to extract his social graph from his Facebook account.  Facebook's automated mechanisms detected a heavier-than usual pattern of access and shut off his account until he appealed.  The account has since been reinstated, but not until it caused a Facebook group Facebook re-open Robert Scoble account !!!!! to gather 539 members and the TechCrunch post to generate 93 comments.  While the comments contained the usual quotient of foaming-at-the mouth, several legitimate points were raised:

• Scoble clearly violated Facebook's Terms of Use, to which of course all users carefully read before they "agree" to by clicking as they sign up.  "...you agree not to use the Service or the Site to...use automated scripts to collect information from or otherwise interact with the Service or the Site"
• Facebook goes to some lengths to obfuscate the email addresses on a profile by displaying them as bitmaps, which Plaxo cheerfully OCRs back into text.
• While Facebook touts its openness, is it really open if it prevents its users from taking their data with them, and whose data is it anyway?

This last point is the important one.  If I display my email address on my profile, or for that matter if I give someone by business card or tell them my email address, do I have any right to control what they do with it?  While I may have legal recourse if they use it so sent me spam, it's really no business of mine whether they load it into Outlook, Plaxo, or write it on the back of their hand with a Sharpie.  Perhaps the fact that the process is automated may give someone pause, that is only a matter of degree.

If we were to deal forthrightly with the matter of ownership of one's social graph, it might make sense to make a distinction between the nodes and the arcs.  Clearly the arcs of my social graph (who I am friends with) are my property, although one could make the case that the nodes (the information about each of my friends) should be controlled by the people described by the nodes. Ultimately this gets into the area of nondiscretionary controls, which as Ray Ozzie has pointed out, are easy to fake but almost impossible to implement.

Did Facebook Violate an Implicit Contract?

Christopher Caldwell offers a fresh perspective on the Facebook Beacon imbroglio in today's New York Times, entitled Intimate Shopping.  He applies the concept of "implicit contracts" which was developed by Andrei Shleifer and Lawrence Summers in their 1989 paper Breach of Trust in Hostile Takeovers.  Shleifer and Summers argues that the increase in share price after a hostile takeover stems from the new owners reneging on the implicit agreement between employer and employee that if employees work hard when they are young the company will take care of them when they are older.  The new owners can say they weren't around when that agreement was made and thus change arrangement ex post.  Anyone who lived through the Eighties can recall the moment when corporations discovered they could abandon such implicit contracts, for instance moving plants from Michigan to North Carolina, then to Mexico, India, and Asia.  Economists will argue that the resulting arrangements were more efficient and thus could lead to more prosperity, but those caught up in the change weren't always happy with the disruption.  Still, being on the early side of making those changes could be very lucrative, whether it was globalizing manufacturing, outsourcing services or, most recently, securitizing mortgages.

Caldwell points out that this same process is at work on the Internet.  The average user had an expectation that information on one's purchases would not be widely shared.  It turns out that this expectation is not grounded in any law or contract and thus open to reinterpretation by sites such as Facebook.  Had Facebook gotten away with it, they might have benefited handsomely, but in this case they overreached and had to retrench.  I'm confident this won't be the last time we see this dynamic play out.

Pew Report on Internet Privacy

The Pew Internet & American Life Project has released a new report entitled Digital Footprints: Online identity management and search in the age of transparency.  The result of telephone and on-line surveys, it provides some new data on how much information people share on-line and how aware they are of the information that's out there.

The research found that 47% of internet users have done searches to see what's online about them, up from 22% just five years ago.  Of those, 62% found what they expected, 21% found more than they expected, and 13% "reacted with disbelief at how little" the internet contained on them.

Most people were not concerned about the amount of information available, which is not surprising given that only 4% reported having problems with embarrassing or inaccurate data.

The survey divided the respondents into four categories:

• Confident Creatives (17%) say they do not worry about the availability of their online data, and actively upload content, but still take steps to limit their personal information.  There are lots of young people in this group.
• Concerned and Careful (21%) fret about the personal information available aboutthem online and take steps to proactively limit their own online data.
• Worried by the Wayside (18%) do not actively limit their online information but worry about in nonetheless.
• Unfazed and Inactive (43%)neither worry about their personal information nor limit the amount of information that can be found out about them online.

Another interesting finding was that 18% of college graduates reported that their employer expected them to maintain an on-line identity, although this could be as simple as posting a photo or name on the corporate web site.  People in education and real estate were most likely to fall into this category, although it also included such occupations as musicians, minister and lawyers.  However, this group only slightly more likely than others to create a profile on a social networking site such as Facebook. (25% vs. 20%).

Teens were more likely to have an on-line profile (55%) but less likely to make it visible to the general public (40% for teens vs. 60% for adults).  The report speculates that teens are listening to the cautions from their parents, although Nick Carr speculates that adults just live boring lives and thus have less to hide.

 

Facebook Backs Off on Beacon

In the next phase of its better to ask for forgiveness than permission approach to new features, Facebook has modified its controversial Beacon program to be opt-in instead of opt-out.  There is still no way to opt out of the entire program, but now each time a site is about to send an announcement back to Facebook the pop-up asks for permission instead of assuming no answer means yes.

I suspect what motivated Facebook to act was that some merchants, such as Overstock.com, had suspended their participation until Facebook changed the program.

Louse Story has a detailed account of Beacon's evolution in the New York Times, and Brad Stone has an interview with FacebookVP Chamath Palihapitiya who reiterated Facebook's philosophy of trying out features in the market instead of in the press:

A. “One of the things we try to do is listen to feedback as much as possible. Just to give you where a lot of this feedback is coming from, it’s coming more from the press than specific users,” he said. “Right now, the right thing to do is to make sure we speak to actual users, not the pundits.”

Has Facebook Stepped In It with Beacon?

In another example of its "Better to apologize than ask permission" approach, Facebook launched Beacon, a system that allows participating merchants to notice when a purchaser is a Facebook user and send "alerts" back to the Facebook newsfeed announcing the purchase to all of one's friends.  Like the newsfeed itself, Facebook may have underestimated the privacy backlash and will be forced to modify the system.  On the other hand, all the publicity, including a campaign by MoveOn.org will raise Facebooks profile among potential advertisers.  Once they get the privacy settings right they will have added an important innovation to online marketing.  I'll have to say I admire their approach.  Instead of agonizing around the conference table about each new feature (opening up the membership, the newsfeed, the F8 platform) they launch things into the world and see what happens.  As long as they are responsive to their users they will retain the old users while continuing to innovate and build their business which, after all, is free to users and needs advertising to keep it that way.

The most controversial aspect of Beacon is that it that the permission dialog at the merchant site is opt-out instead of opt-in and that at the Facebook site the opt-out is on a site-by-site basis, with no way to opt out of the entire program.   As David Weinberger points out, the defaults are kind of creepy, especially the opt-out toast that assumes you mean "yes" if you don't respond within a few seconds. [See the comments in Weinberger's post for a really interesting discussion of privacy.] For those who find all this too daunting, Nate Weiner has a simple and elegant solution: install the BlockSite add-in for Firefox and tell it to block access to http://*facebook.com/beacon/*.  That will prevent the merchant site from executing the http://www.facebook.com/beacon/beacon.js.php that sends your data back to Facebook.  Fred Stutzman explains how this works, which is that when you log into Facebook, Facebook stores your login ID in a cookie.  When the merchant site runs the beacon script that sends Facebook the ID, along with your IP address and the URL of the page you are visiting, thereby giving Facebook a complete picture of where you have been and what you've done there.  Cameron Marlow points out that this is what DoubleClick and Google AdSense have been doing for years, although with DoubleClick makes it easier to opt-out and to delete the data.  Wendy Seltzer thinks part of the problem is that Facebook has taken cross-site correlation to a new level, although they are at least being open about it.  Ethan Zuckerman likens it to cookie-theft Cross-Site Scripting attack, although in this case it's the result of a legitimate, if unprecedented, cooperation between Facebook and the merchant site.

I suspect the real reason the tin-foil-hats are upset and the rest of us are queasy is that Facebook shares this information with your friends, while DoubleClick only shared it with corporations.  Personally, I don't care if my friends know what video I rented, but I am concerned about the proclivity of insurance companies to make underwriting decisions on the basis of lifestyle choices, as they are threatening to do in Massachusetts.

Companies using or planning to use Beacon: AllPosters.com, Blockbuster, Bluefly.com, CBS Interactive (CBSSports.com, Dotspotter), eBay, Epicurious, ExpoTV, Fandango, Gamefly, Hotwire, IAC (CollegeHumor, Busted Tees, iWon, Citysearch, Pronto.com, echomusic), Joost, Kiva, Kongregate, LiveNation, Mercantila, National Basketball Association, New York Times, Overstock.com, Red, Redlight, SixApart(LiveJournal, TypePad, Vox), Sony Online, Sony Pictures, STA Travel, The Knot, Travelocity, TripAdvisor, Travel Ticker, viagogo, Yelp, WeddingChannel.com and Zappos.com

Yours for the Peeping

In today's New York Times, Penelope Green draws a parallel between people living in glass condos such as Richard Meier's Perry Street towers and the posting of one's domestic activities on Facebook.  While the article starts out with architects musing on the dialog between voyeurism and exhibitionism. it takes a darker turn at the end with Sherry Turkle worrying that we "no longer know where the self resides" and Jeffrey Cole concerned that we are not even aware of how little privacy we have left.

As Scott McNealy said almost 10 years ago: "You have zero privacy anyway, Get over it."