Joris van Hoboken

As reported across The Netherlands, last Friday, the Dutch Government decided to go ahead with their draft law implementing a data retention term for telephone and internet traffic of 18 months. Apparently, even the State Council, the official advisory body of the Dutch legislator, advised to lower the retention term to 12 months. Earlier this year, the data protection authority advised to take the minimal term of 6 months.

I will write more, when i get to see the legislative documents. Strangely it seems that in the country with a lot of protest against the directive - to the point that the Dutch parliament wanted the minister to vote against it in the European Council, we are heading towards a disastrous implementation.

There has been some attention in here the Netherlands about possible competition for Google. I have to admit I am rather skeptical about the success of these new search companies, although I wish good luck to any attempt. Every new search engine try to make it sound like they invented the wheel. One of them, which gets quite some attention is Cha Cha.

It is funny to see Cha Cha as a competitor of Google, while the people behind it (I expect underpaid Internet users) use the same sources of information one could use yourself to find the information, and of course especially Google. It is true that they are building their own index but they do that by using the ‘real’ search engines, so they can not do without. They only steal some traffic of the people that need help searching. I used it once for something I could not find. No success, but an interesting conversation. An excerpt here:

…

Me: you must be good at searching….

[ChaCha searcher: usually 40-70 hrs a week. most times, but Im on line all the time too]

ChaCha searcher: Well im learning how for sure. lol

Me: what is your favourite engine?

ChaCha searcher: actually chacha as we have a vast database of best sites on wel known topics. we build it daily.

Me: do the employees feed it?

ChaCha searcher: but google is best Im sure

ChaCha searcher: feed it, yes every serach is logged and saved to the data

ChaCha searcher: so we only have listing of the best top sites.

Mmm. That sound a bit like an impoverishment to me…

(Via Maria Gomez Rodriguez) By filtering out very popular legitimate content of Pearl Jam, AT&T has just shot itself in its anti net neutrality feet. If even a big band like Pearl Jam does not get respected by them, what will happen to the content of the millions and millions of smaller bands, broadcasters, legitimate music sharers, etc…

UPDATE: Lessig wrote about this issue on his blog. His post received some very interesting comments.

Google is going to test a right to reply for its News service in the US. It will let people who are IN the news comment ON that news. I am very much looking forward to see and hear about their experience. Is it more attractive to react to Google than to the newspaper that published about you? This will give communication departments of big organizations something new to do. Of course, you have to be able to confirm your identity, but no method is foolproof: “If you feel you have been wrongly attributed, please email [Google] at news-comments@google.com”

With this feature, Google really shows off its scale. With anything less pervasive than Google I think it would fail. Now i don’t know. I am confused thinking about what would happen if this is really going to work.

Yesterday, Marie-José Klaver of the NRC (the Dutch quality newspaper) paid attention to some of the future plans of search engines. I have been writing about some of those plans before. The idea is that these companies are planning to become even more nosy in the future. I was asked a few questions about the protection that EU data protection regulation grants us against extensive profiling by search engines and related companies. A misunderstanding about EU data protection is that it protects us against data collection and processes. That is only true in a limited sense, for instance with regard to sensitive data and bringing personal data to a country without adequate protection. In general everything is possible as long as the principles of the data protection directive are obeyed, such as informing the data subject and proportionality. Apart from that the oversight by Data protection authorities is relatively weak.

To quote myself: “Google has been collecting user data for almost 10 years and always left lot of room in its privacy policy for future uses of these data. The European data protection authorities did not really keep pace with these developments. In my opinion, they could have shown their teeth a little earlier.”

Much of the data collection is related to targeted advertisement. Interestingly, the FTC will have a hearing about that in fall.

The program - 15^th until 28^th of July - consisted of a rich mixture of plenary sessions, student presentations, personal contributions, social activities and plans for the future. I think it can be described most accurately as a storm, which slowly took hold of me and the other participants, and hopefully will have shaken some things up for good. The plenary sessions were the foundation on which further thinking, collaboration and discussion could be grounded. The tutoring, by Jonathan Zittrain, John Palfrey, and many others, was superior and magnificently diverse. I will get to speak about some of them in more detail below.

The 33 participants all presented a part of their work in smaller 45 minute afternoon sessions. These sessions were not so much meant to convince the others of the greatness of one’s work, but to get feedback and discuss various possible issues and options regarding the substance and methodology of the work presented. Apart from fellow participants, each session had an assigned faculty member to give feedback as well. I had the pleasure of having Urs Gasser comment on my work. He is an important (still young) information law scholar with positions in St Gallen and the Berkman Center at Harvard, and has published internationally on search engine law, which is my specific field. Apart from his feed back, others were there to comment in detail on my presentation which was critically but very well received.

One of the red lines in the program, continuing today, was the idea of exploring the history of the Internet and the ways it could be used to enrich our often specialized and mostly interdisciplinary studies of the Internet. It was Benjamin Peters, PhD candidate at Columbia University, New York, who started this thread of activities by putting together a small session, in which apart from him and me, David Weinberger, Lewis Hyde and Talha Syed were present. (Benjamin has also been writing about search engines and democracy) We discussed the relevance of history for our work and thought about the various ways a historical account of the development of technology could be used and for what scientific and rhetorical goals. My interest for this matter is both driven by a genuine interest in historical work, and the problem I face in the context of my research regarding the history of the web search engine. That history starts, either in the classical age, with the first libraries and classifications of knowledge, the rise of the library in modern history, the computerized information retrieval systems in the 1940’s, or in the beginning of the 90’s with the first search engines of the World Wide Web. It all depends what you look for and whether you want to present some kind of mainstream history of a phenomenon, study history for its own sake, or rather give an account of certain historical moments, whose outcome have resulted in the dominant present state of affairs, thus facilitating reflection on the contingency of societies’ legal, social and economic ordering. It is my present opinion that the growing dominance of search engines in the ordering of our knowledge, ideas, opinions and reputations are a radical historical event. I look forward to continue studying in this direction and applaud Benjamin’s efforts to organize a conference on the history of the Internet. I am currently, together with him and Balasz Bodo, looking into making an own contribution to that effort, of which I hope to write more later.

Apart from the numerous conversations and discussions I had in the periphery of the program – some of the most interesting with Balazs Bodo - I organized two small conversations myself, one about the connections and tensions between academic work and advocacy, and one about the conceptualization of the editorial layer of new intermediaries on the Web. Both were held during an enjoyable lunch at a local restaurant in Cambridge, MA.

My conclusion of the discussion about academics & advocacy, an important subject for me to understand and hear different ideas about, would be that it largely depends on your home institution. Its tradition of work and its network seem to determine to a large extent, the degree you would be able to combine the two effectively. Already the organizing institutions seem to have some remarkable differences. The Berkman Center, “a research program founded to explore cyberspace, share in its study and help pioneer its development”, lists advocacy as one of its primary efforts: “We engage in targeted efforts to effect law reform where we deem such activism to be necessary, both domestically and internationally, to protect and foster openness on the Internet.” The Oii is much less outspoken and seems more conservative. I think I can be happy to have the IViR as my home institution. They knew about my former work for Bits of Freedom when they accepted me and they are themselves involved in Creative Commons, a project that advocates a transformation in the use of copyright. I don’t see a problem myself. My aim is to be honest and conscientious, both in my work in academia and in my advocacy work. I believe in fair representation of arguments and judgments and put a lot of effort in getting to understand the people I do not necessarily agree with. Expert based advocacy fits perfectly into that scheme.

The second was about the conceptualization of the editorial layer of new intermediaries on the Web. Intermediaries such as search engines (Google), recommendation systems (Delicious), e-commerce platforms (Amazon, Ebay) collaborative encyclopedias (Wikipedia) and online hosting providers (YouTube, Flickr). All these platforms have ingenious systems of distributed algorithmic editorial control. Distributed, because the editorial output is determined by a range of non-institutional actors. Editorial in this context should be understood widely as the control (mostly algorithmic) of the content of information provided by these actors plus the way it is presented, ranked and made accessible. In the case of a search engine such as Google, the creators of websites are made part of the editorial layer of the search engine. For instance the title of a search engine result is written by the website editor and the ranking partly depends on the content and the links to and from the website. Also the user has a lot of control by choosing the right query and as a final example the amount of clicks on a result is used by search engines to adjust their ranking as well. The same applies in different forms to these other intermediaries, many of which allow tagging and use the tags to order their content. My question is first of all how we should study this new type of editorial control and finally what the distributive nature means for the accountability of the various actors involved. Tagging is one of the examples that is particularly interesting to study, as I learned from one of the participants, Alla Zollers, and one of the plenary sessions on the study of the blogosphere. She analyzes emergent social motivations for tagging. I will keep in touch around this issue with her in the future.

Apart from me, there were several others, most notably Michael Zimmer and Brian Fitzgerald, that put search engines firmly on the program’s agenda. Michael Zimmer, one of the participants, just finished his PhD at the Program in Media Ecology of the Department of Culture and Communication, New York University. His dissertation, under supervision of Helen Nissenbaum and others, start off with the idea of the perfect search engine’ and explores the Faustian bargain involved between perfect search and the resulting loss of privacy because of using it: “While designed to foster increased navigation within our spheres of mobility, the search for the perfect search engine also empowers the widespread capture of personal information flows across the Internet.” Interestingly, Michael and me, studying the privacy and freedom of expression implications of web search respectively, together grasp a fair amount of the fundamental normative questions relating to web search. So in our future work and discussions we will continue to be able to complement and learn from each other. Michael is a regular visitor of the Netherlands in his professional capacity, so also here we will run into each other, having the opportunity to discuss face to face. I should not forget to mention Jonathan Zittrain’s comments on Michael’s presentation. It was great to learn from him how to make a ‘perfect’ presentation.

Brian Fitzgerald, professor at the School of Law at the Queensland University of Technology came all the way from Australia, to speak about the future of copyright, focusing primarily on the liability of Intermediaries on the Internet. Search engines are one of his focus points. He and others just have a book out on the market, “Internet and e-Commerce Law - Technology, Law and Policy”, also addressing the issue of Intermediary liability in chapter 12.

Finally I would like to speak about the plenary session I probably enjoyed most, Talha Syed’s session on “The effect of IP rights/incentives on the motivational culture of innovative activity”, was a great philosophical talk about the problems of the current dominant thinking about the motivations of people to innovate. The readings were: Frey & Jegen, Motivation Crowding Theory, 15/5 Journal of Economic Surveys 589-611 (2001), Lerner & Tirole, The Simple Economics of Open Source, NBER Working Paper 7600 (2000) and Benkler & Nissenbaum, Commons-Based Peer Production and Virtue, 14/4 The Journal of Political Philosophy 394-419 (2006). From his introduction:

“Specifically, we will explore a series of positive and normative assumptions regarding motivations for innovative activity and the role of legal discourse and policy, assumptions that are usually shared by both advocates and critics: (1) that innovators are best modeled as “homo economicus”, i.e., maximizers of narrow self-interest, pursuing benefits that can be reduced along a single scale of pecuniary rewards; (2) that motivations for innovation are more or less invariant, or at least independent of institutional culture and legal policies; (3) that pecuniary incentives are neutral with respect to other motivations; and (4) that legal innovation-policy choices can be resolved solely on grounds of efficiency, freedom and/or distributive justice, remaining neutral with respect to the character of innovative activity.”

He explained us that although considering the current leading progressive information law theorists in the U.S., such as Benkler and Lessig, as allies, he would like to push them to take seriously the (underlying values of) intrinsic and social motivations of people, without translating them into the liberal framework; the liberal discourse of freedom, equality and efficiency. I agree it is a pity that much of the progressive liberal mainstream in legal theory takes their political standpoint as a given and does not address the possible counterarguments on the level of political philosophy and economy. I liked the talk so much because Talha seemed to have found a nice (Canadian?) middle ground between taking these great writers seriously and addressing the space for discussion in their political premises and assumptions. His reading list will also serve as an example for me in the years of study to come.

Thanks to all my colleagues, the tutors and not in the least the organizers for putting this great program together!