LibertyVoice

Heads up GikII people; GikII 5 *will* be in Edinburgh June 28-29 2010. We have FINALLY managed to book a room!! More details soon. Already one paper offered on Gallifreyan legal procedure :-)

“We stand for a single internet where all of humanity has equal access to knowledge and ideas. And we recognize that the world’s information infrastructure will become what we and others make of it. ”

These two sentences, from Secretary of State Clinton’s groundbreaking speech on Internet freedom, sum up beautifully the challenge facing our Internet policy. An open Internet can advance our values and support our interests; but we will only get there if we make some difficult choices now.

One of these choices relates to anonymity. Will it be easy to speak anonymously on the Internet, or not? This was the subject of the first question in the post-speech Q&A:

QUESTION: You talked about anonymity on line and how we have to prevent that. But you also talk about censorship by governments. And I’m struck by – having a veil of anonymity in certain situations is actually quite beneficial. So are you looking to strike a balance between that and this emphasis on censorship?

SECRETARY CLINTON: Absolutely. I mean, this is one of the challenges we face. On the one hand, anonymity protects the exploitation of children. And on the other hand, anonymity protects the free expression of opposition to repressive governments. Anonymity allows the theft of intellectual property, but anonymity also permits people to come together in settings that gives them some basis for free expression without identifying themselves.

None of this will be easy. I think that’s a fair statement. I think, as I said, we all have varying needs and rights and responsibilities. But I think these overriding principles should be our guiding light. We should err on the side of openness and do everything possible to create that, recognizing, as with any rule or any statement of principle, there are going to be exceptions.

So how we go after this, I think, is now what we’re requesting many of you who are experts in this area to lend your help to us in doing. We need the guidance of technology experts. In my experience, most of them are younger than 40, but not all are younger than 40. And we need the companies that do this, and we need the dissident voices who have actually lived on the front lines so that we can try to work through the best way to make that balance you referred to.

Secretary Clinton’s answer is trying to balance competing interests, which is what good politicians do. If we want A, and we want B, and A is in tension with B, can we have some A and some B together? Is there some way to give up a little A in exchange for a lot of B? That’s a useful way to start the discussion.

But sometimes you have to choose — sometimes A and B are profoundly incompatible. That seems to be the case here. Consider the position of a repressive government that wants to spy on a citizen’s political speech, as compared to the position of the U.S. government when it wants to eavesdrop on a suspect’s conversations under a valid search warrant. The two positions are very different morally, but they are pretty much the same technologically. Which means that either both governments can eavesdrop, or neither can. We have to choose.

Secretary Clinton saw this tension, and, being a lawyer, she saw that law could not resolve it. So she expressed the hope that technology, the aspect she understood least, would offer a solution. This is a common pattern: Given a difficult technology policy problem, lawyers will tend to seek technology solutions and technologists will tend to seek legal solutions. (Paul Ohm calls this “Felten’s Third Law”.) It’s easy to reject non-solutions in your own area because you have the knowledge to recognize why they will fail; but there must be a solution lurking somewhere in the unexplored wilderness of the other area.

If we’re forced to choose — and we will be — what kind of Internet will we have? In Secretary Clinton’s words, “the world’s information infrastructure will become what we and others make of it.” We’ll have a free Internet, if we can keep it.

In yesterday’s State of the Union address, President Obama made an important commitment to openness and transparency in government:

It’s time to require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress.

This is welcome news. For the past few years, EFF has been litigating a Freedom of Information Act case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity. With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program.

So far, the Obama Administration has been fighting hard to stop the release of the names of these representatives, appealing a court order that required disclosure. Just last month, the Obama Administration argued to the appeals court that “there is no public interest in the compelled disclosure of the representatives’ identities.” To the contrary, the Administration argued, lobbyists had a “significant privacy interest in being able to communicate confidentially with the government.”

While it’s great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.

“3 Strikes” is a regime being introduced in various countries around the world to try to deal with illicit file-sharing. Already Taiwan, South Korea and France are putting their versions of the plan into action and other countries have similar proposals under discussion. In one form or another, could the same be coming to the United States?

It’s been a long time since a printed newspaper delivered to your doorstep or purchased on your way to work was the only way to get your daily dose of news. Now you can access those news publications on a laptop, smartphone, e-book reader, or—soon—on Apple’s tablet. In addition to an ever-expanding array of formats through which to read the same content, online publishing has enabled a whole range of new journalistic ventures from hyperlocal guides of stops along a light rail route to blogs focused on local government and politics. Even The New York Times has been making use of Twitter feeds and frequently updating blog posts in its coverage of the earthquake crisis in Haiti. Journalism is no longer only about storytelling; it can include a whole host of ways to inform the public.

Thus, it is strange that a deputy commissioner of the New York City Police Department was quoted saying, “[w]e provide public information, not data flow for entrepreneurs,” in explaining why the NYPD does not release a regularly updated data feed for software developers. That attitude may not prevail for long, as the federal government and various state and local governments are recognizing the value of independently developed apps using public data, and are making data available specifically for this purpose.

On December 8, 2009, the White House directed every federal agency to publish before the end of this month at least three collections of “high-value” government data on the Internet that had never been previously disclosed, with the objectives of “increas[ing] accountability, promot[ing] informed participation by the public, and creat[ing] economic opportunity.” On Data.gov, the public can see a list of the participating agencies and access the catalog of available datasets online. In Massachusetts, the Open Data Initiative is in its pilot period after launching in December 2009, and data from the Massachusetts Department of Transportation are available online. This has already resulted in an iPhone app using real-time bus location information that predicts when the next bus will arrive for users of the application. Similar efforts to make data available are underway in Washington, D.C., San Francisco, and New York City.

Even New York City, home to the deputy commissioner quoted above, has sponsored a software application development contest using its publicly available data, with winners to be announced next week. The gallery of applications in New York, San Francisco, and Washington D.C. include many that put city data to work making residents’ lives easier: from mapping parking meter outages to public library catalog availability, to finding the closest parks and recreational facilities. At a minimum, those applications may be sleek presentations of public information that encourage utilization of community resources and reinforce communities. But those and other applications have the potential to transform government data into tangible, accessible reporting that start to look like, and serve the same functions as, conventional journalism. For instance, there are interactive maps and reports on restaurant inspection results, maps of districts and precincts that summarize demographic characteristics, local public school profiles and comparison tables, self-updating maps showing aggregated crime data, as well as maps of historical election results by voting district.

In this context, journalism will be an evolving process of gathering and translating information, not just providing a narrative through storytelling, with the goal of informing the public. The title of “journalist” may apply equally to the geek at a computer crunching datasets as to the beat reporter. The public benefits of such endeavors are the same as that of traditional journalism: informing residents and voters about their neighborhoods, communities, and government while increasing government transparency and accountability. But even better, such journalism may be cheaper, decreasing the cost of investigative journalism.

Still, making data available is not the same as making data available without conditions. In making data available, governments have had to address legal issues. For example, Massachusetts will likely adopt what it calls the “6 no’s” which will apply to government-provided data: (1) no warranty or liability in providing the data; (2) no endorsement by the government, (3) no illegal use of the data; (4) no use of the system to damage hardware, software, or files; (5) no indemnification; and (6) no duty to continue or continue for free the provision of such data.

Developers using the data will do well to keep those terms in mind because these terms—and other, similar terms—present an array of legal issues:

• Who owns the data that an application is using? If a third party provides the data, does the third party have contractual rights to limit the distribution of data?
• Does the governmental body have a continuing obligation to provide the data that a given application is relying upon?
• Could there be liability for violations of privacy rights when data is aggregated across a variety of sources in a particular application?
•  Is there a risk of liability for defamation when an application publishes mistakes found in the government data source?

In the coming weeks, we’ll cover these and other legal topics specific to the challenge of using government data in software applications. And, by the way, if you’re a software developer using government data and have specific legal questions, our Online Media Legal Network can help connect you with a lawyer who’s savvy on FOIA, copyright law, and other areas of the law that could impact your project.

Photo "Newsboy. Little Fattie" courtesy of Wikipedia Commons. Library of Congress, Prints & Photographs
Division, National Child Labor Committee Collection.

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