Information Flow

Wednesday, the South China Morning Post ran a story that cascaded around the tech world and even made the front page of many business sections.

The SCMP reported that Chinese officials have made a decision to lift the ban on politically sensitive foreign websites, such as Facebook, Twitter and the New York Times, within the Shanghai free-trade zone, a 28 square kilometer free-trade haven where China will relax rules restricting foreign investment and free-trade (the “free-trade zone” opens officially on Sunday).

Much of the subsequent media coverage focused on the opportunity for these companies in get a foothold in the Chinese market.  Unfortunately, that framing is problematic.  These companies originally had a foothold in China when the Internet market was still nascent.  In fact, they were the early market leaders.  Unfortunately for them (mostly U.S.-headquartered companies) they were blocked from the Chinese market by “the Great Firewall”.  At the time, the purported reasons for the blockings were that these sites presented a threat to public order and national security.  However, this thinly veiled rhetoric was pierced by reality, as the Chinese clones (aka copies of Twitter [Weibo], Facebook [RenRen] and Google [Baidu]) that filled the void contained nearly identical “objectionable” content:

Also in the aftermath of the Xinjiang riots, microblogging site Twitter was cut off by the Chinese firewall for similarly dubious reasons. Less than two months later, Chinese Internet giant Sina launched a near identical microblogging service. To further the business-over-politics angle of China’s foreign Internet purge, China’s wildly popular instant-messaging service QQ removed a censorship filter after users’ complaints. Dissidents and riot organizers can now use Chinese versions of Twitter to organize.

Even a seemingly harmless site, like photo-sharing website Flickr, has been blocked in China, while its identical clone Bababian has grown steadily with foreign technology and no foreign competition. Likewise, blog-hosting sites Blogger and WordPress have long been blocked in China. Instead, Chinese netizens use Tianya, the 13th-most popular site in China. Far from being a sanitized land of boring blogs about daily activities, Tianya also hosts China’s largest Internet forum, a vitriolic, sensationalized, and hate-filled arena that makes Western gossip sites seem like the Economist.

One prescient Reuters journalist highlighted the potentially bigger picture in an article whose name says it all: “Facebook and Twitter too late for China’s Internet.”  In an Internet world dominated by first-mover advantage and network effects, five years away from a market is an eternity that is going to be difficult to recover from.  Sure, if China opened up its Internet to foreign competition now, Facebook, Twitter and Google will surely advance from their current miniscule market share.  Unfortunately, they will be starting at an extreme disadvantage relative to the companies and online platforms that the Chinese have been using for the past 5 years.

MORE »

{ 0 comments }

A few weeks ago I examined how copyright law — like most legal subjects dealing with technology — is lagging behind the fast-moving and disruptive changes wrought by social media to old legal rules for determining rights to Internet content. Part of my critique was that in deciding ownership of user-generated content (UGC), courts have not yet evaluated the difference between posting content “in the clear” and restricting content to “friends” or some other defined class far smaller than the entire Internet community.

Things may at last be getting a bit more settled. A New Jersey federal court ruled recently that nonpublic Facebook wall posts are covered by the federal Stored Communications Act (SCA) (18 U.S.C. §§ 2701-12). The SCA, part of the broader Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510 et seq.) that addresses both “the privacy expectations of citizens and the legitimate needs of law enforcement,” protects confidentiality of the contents of “electronic communication services,” providing criminal penalties and a civil remedy for unauthorized access. It’s a decades-old 1986 law that was enacted well before the commercial Internet and either email or social media had become ubiquitous. Yet by interpreting the statute, in light of its purpose, to apply to new technologies, District Judge William J. Martini has done Internet users, and common sense, a great service.

Plaintiff Deborah Ehling, a registered nurse, paramedic and president of her local EMT union — apparently a thorn in the side of her hospital employer for pursuing EPA and labor complaints as well — posted a comment to her Facebook wall implying that the paramedics who arrived on the scene of a shooting at the D.C. Holocaust museum should have let the shooter die. Unbeknownst to Ehling, a co-worker with whom she was Facebook friends had been taking screenshots of her profile page and sending them to a manager at Ehling’s hospital.

Ehling was temporarily suspended with pay and received a memo stating that the hospital was concerned that her comment reflected a deliberate disregard for patient safety. After an unsuccessful NLRB complaint based on labor law, Ehling’s federal lawsuit alleged that the hospital had violated the SCA by improperly accessing her Facebook wall post about the museum shooting, contending that her Facebook wall posts were covered by the law because she selected privacy settings limiting access to her Facebook page to her Facebook friends.

Judge Martini concluded that the SCA indeed applies to Facebook wall posts when a user has limited his or her privacy settings. He noted that “Facebook has customizable privacy settings that allow users to restrict access to their Facebook content. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.” Therefore, because the plaintiff selected privacy settings that limited access to her Facebook wall content only to friends and “did not add any MONOC [hospital] managers as Facebook friends,” she met the criteria for SCA-covered private communications.

Facebook wall posts that are configured to be private are, by definition, not accessible to the general public. The touchstone of the Electronic Communications Privacy Act is that it protects private information. The language of the statute makes clear that the statute’s purpose is to protect information that the communicator took steps to keep private. See 18 U.S.C. § 2511(2)(g)(i) (there is no protection for information that is “configured [to be] readily accessible to the general public”). [The] SCA confirms that information is protectable as long as the communicator actively restricts the public from accessing the information.

That’s a bold move by a jurist sensitive to the constraints on Congress, especially one as polarized as we have in America today. It reflects a willingness to adapt the law to changing technology by application of the basic principles and purposes of legislation, even if the statutory framework is old and its language somewhat archaic. As Judge Martini observed with a bit of consternation, “Despite the rapid evolution of computer and networking technology since the SCA’s adoption, its language has remained surprisingly static.” Thus, the “task of adapting the Act’s language to modern technology has fallen largely upon the courts.”

MORE »

{ 0 comments }

When it comes to disruption, the advent of social media communications is decidedly in the front row. But along with revolutionizing personal (and political) relationships, the sharing of content on social media sites like Facebook, Twitter, Tumblr and Instagram — now a Facebook property — is steadily increasing pressures on a quite different regime, namely copyright law. The passage and forthcoming implementation in the UK of what has become known colloquially as The Instagram Act, boringly titled the Enterprise and Regulatory Reform Act, promises only to accelerate the conflict between new social media services and legacy copyright rules worldwide.

This author has written, and ranted, about ownership of user-generated content (UGC) for several years. The gist of the problem is not that social media providers want to claim ownership of UGC. None do, despite occasional outcries to the contrary, although they also insist rather unremarkably via terms of service (TOS) on a license to display UGC posts to those a user authorizes. Instead, the problem arises when third parties want to incorporate user-created content into their own sites or publications. After all, if CNN or Fox News broadcast tweets, status updates and Flickr photos as part of their news stories, wouldn’t these and other organizations be violating the inherent copyright users hold in their own content? Put another way, if posting users have legal rights to their UGC, doesn’t it follow that even “retweeting” constitutes unlawful copyright infringement?

In most of the world today, ownership of one’s creation is automatic, and considered to be an individual’s legally protected intellectual property. That’s enshrined in the Berne Convention and other international treaties, which abolished registration as a formal predicate for copyright interests (although not for judicial enforcement). What this means in practice is that one can go after somebody who exploits a creative work without the owner’s permission — even if pursuing them is cumbersome and expensive — once the work is registered with the appropriate governmental copyright authority.

Social media sharing throws all these regimes into chaos. Take first the issue addressed by The Instagram Act and, in a slightly different context, U.S. litigation over the Google Library service: “orphaned” works. The new UK law theoretically aims to make it easier for companies to publish orphan works, which are images and other content whose author or copyright holder can’t be identified. But whereas in the past, orphan works were often out-of-print books and historical unattributed photos, today millions of images are quickly orphaned online, as they move from Instagram to Twitter to Facebook to Tumblr without attribution along the way. The British response was to adjust copyright law so that an orphaned work can be republished without liability if a third party makes a “reasonably diligent” search to identify and locate the original owner.

MORE »

{ 1 comment }

Trade is a sensitive political issue — and an extremely uncontroversial economic one. While most economists agree that trade makes everyone better off, that “everyone” often appears limited to multinational corporations and Western powers. As a globalizing force, the Internet is beginning to upset that power dynamic.

It’s easy to see why free trade has seemed like the domain of big business. As Dan has argued, setting up shop in a foreign country is expensive, logistically demanding and impossible without vast resources and knowledge. While foreign markets have always been attractive to businesses, the complications of moving abroad entailed a hefty barrier to entry. Consequently, taking advantage of foreign markets has generally appeared to be the domain of businesses from wealthier countries. Many economists would argue these benefits permeate the global economy, and that each player ultimately benefits, but the political narrative centers on Western multinationals. The Internet, however, may change that. By eliminating costly middlemen, providing a common, transnational space and mitigating the resources needed to launch a successful business, the Internet has lowered barriers to entry for entrepreneurialism in developing nations. Businesses in these countries now have a very direct interest in lowering barriers, as they too can partake in access to new markets.

The Internet economy is still in its early days, but its empowering effects on poorer countries are already beginning to emerge. Ghana’s capital, Accra, hosts MEST, an entrepreneurial school of technology which graduates about 20 students a year. MEST trains young Ghanaians in programming and entrepreneurship, and operates as an incubator, giving teams of students seed funding to launch their own businesses. MEST is just one of a number of tech-based initiatives in Ghana which encourage entrepreneurship. Others include the Kwame Nkrumah University of Science and Technology and the Accra Startup Weekend. Students at MEST regularly attend the startup weekend, where they spend 36 hours building fully viable apps and ready-to-go businesses.

One such business, Dropifi, recently became the first African company to join 500 Startups, a “startup accelerator program.” Dropifi allows businesses to streamline their feedback forms, providing an integrated widget, spam filters, analytics and a host of features meant to simplify feedback forms. These days, Dropifi has around 6,000 clients in over 30 countries.

Dropifi’s success demonstrates the importance of the Internet to the future of international trade. On the one hand, businesses across the world benefit from the ingenuity and genius of David Osei, Kamil Nabong and Philips Effah — Dropifi’s founders. The Internet, with its accessibility, gave Osei, Nabong and Effah a platform to disseminate their idea, which filled a crucial niche in the global marketplace. Osei, Nabong and Effah benefit as well, and as they grow their business, they will bring jobs to Ghana and other parts of the continent, where they hope to “become leaders.”

MORE »

{ 1 comment }

Today’s guest post is by Konstantinos Komaitis, Geneva-based Policy Advisor to the Internet Society.

In June 2013, the Internet Society released a paper on how it would like to see the discussions of intellectual property evolve. The focus of the paper was on process rather than on substance. The goal was not to reinvent the wheel. On the contrary, the Internet Society, having paid attention to the way discussions have been shaping and the way the arguments have been evolving, took the initiative to put forth a set of best practices that should underline all intellectual property discussions regardless of whether they are taking place at a national, regional or international level.

Upholding transparency, encouraging multistakeholder and inclusive structures, respecting the rule of law, understanding the Internet’s underlying architecture and appreciating the Internet’s open standards are of value because they support better and more informed decision making. This was the basis for our paper. For the purposes of this blog, however, I will focus on the value of ‘openness’.

But, first, let’s put things in context.

Intellectual property is unquestionably one of the most debated issues of Internet governance and, over the years, it has emerged as a key issue in the policy agendas of many governments. The argument, primarily from countries with strong intellectual property economies is that online infringement of intellectual property rights is detrimental to the commercial interests of intellectual property holders and, therefore, to the global economy as a whole.

Many contest this view. They argue that intellectual property is becoming increasingly irrelevant and it is out of balance and out of tune with the realities of a global Internet that is constantly changing. They claim that intellectual property is antithetical to core Internet values and often go as far as to suggest that we should abolish intellectual property all together.

In all likelihood, the answer lies somewhere in the middle. When it comes to the digital environment, the issue is how to reconcile existing intellectual property regimes with the realities of the online environment. Whereas traditional intellectual property rules are based on a web of alienable ownership rights and territorial licensing frameworks and restrictions, the Internet is a global medium, which has often behaved similarly to public commons. The current legal principles surrounding copyright, trademarks and patents reflect a period when the sharing and the exchange of ideas did not have the same dimensions they have today.  What hasn’t changed, however, is the desire by creators of content to protect and benefit from their creations.

The question for all of us is how to structure an intellectual property framework for the Internet age – one that respects the needs of creators, is consistent with the global nature of the Internet, and is inclusive of a broader range of stakeholders.

MORE »

{ 0 comments }

Jonathan Swift, step aside.  Robert Samuelson’s brilliantly penned satire questioning the value of the Internet puts “A Modest Proposal” to shame.  His column for the Washington Post yesterday contends that he would “repeal” the Internet if he could.  So deftly written is this piece that the unprepared reader might be deceived into taking his work at face value.

Samuelson drops clues, however, that his tongue is firmly in cheek.  The defective internal logic is the first.  The Internet ‘merely’ provides us with email, Facebook, YouTube, and GPS, the column contends.  The Internet’s “upside” is small.  Yet we are so dependent upon it for communications and critical infrastructure such as energy, and health care that it constitutes a vulnerability.  Moreover, Samuelson seems to contend, it is so essential to modern communications that it is a virtual attractive nuisance for warrantless surveillance by NSA.  Thus, the Internet’s “downside” is under-appreciated.

Wait… what?  If we’re so dependent on the Internet for so many critical purposes, it must be good for something more than tweeting your breakfast (or the location of the National Zoo’s missing red panda).  Thus Samuelson keenly illustrates the views of the armchair Luddite:  At first glance, the inexpert observer might associate the Internet with nothing more important than trivial social networking use.  Familiarity breeds contempt.  When we are routinely confronted with pedestrian manifestations of the Internet such as email, it is easy to forget that the Internet has put the world’s information at our fingertips, that it enables telemedicine and e-commerce, unites far-flung family members, that it helped the reformist uprisings of the Arab Spring, permits healthcare experts to track and anticipate flu outbreaks, empowers political candidates to fundraise, and connect with their supporters in innovative new ways and up-end presidential elections.

MORE »

{ 0 comments }

Digital suppression is a tried and true political tactic of Turkish prime minister Recep Tayyip Erdogan and his “Justice and Development Party.” In that sense, it wasn’t surprising that Erdogan blamed Turkey’s latest rounds of protest on every embattled, authoritarian leaders’ favorite new culprit: social media (Ex: [1][2][3]).

The recent unrest in Turkey — suppressed anti-government protests now in their third week — began following a peaceful demonstration in Gezi Park. Activists were staging a sit-in; responding to plans to uproot a park and build replica, nineteenth century Ottoman barracks  (which would house a shopping mall). Police dispersed protesters with tear gas and water cannons, which unleashed a wave of latent anger across the country, as thousands marched against Erdogan’s increasingly authoritarian rule.

While in power, Erdogan has straddled a thin line between economic liberalization and religious conservatism. However, in his attempts to protect tradition and exert social control, Erdogan has repeatedly attacked and censored web-based platforms. Consequently, despite his purported steps towards reform and prosperity, Turkey’s Internet economy remains well short of its potential.

In 2005, Article 301 of the Turkish penal code took effect. Among other things, article 301 prohibits public denigration of “Turkishness” or the “Turkish government” and associated institutions. It’s worth noting that “insulting” speech was punishable even before the passage of Article 301. In fact, Erdogan himself, while mayor of Istanbul was arrested and jailed in 1997 for publically reading an “Islamic poem” — deemed incitement by the authorities.

The Internet has suffered from Erdogan’s social conservatism. In 2007, the Turkish parliament banned a series of websites, ostensibly “in an effort to curb child porn, prevent the dissemination of terrorist propaganda and stamp out illegal gambling.” Additionally, they blocked websites which allegedly disrespected Turkey’s founder, Mustafa Kemal Ataturk, or demonized religious sensibilities. In 2008, responding to complaints that certain YouTube videos criticized Ataturk, Turkish authorities blocked access to the entire site. Apparently, since (a) restricting certain videos and (b) blocking YouTube were insufficient, in 2010, authorities banned sites which shared Google IP addresses, to prevent anyone from circumventing the ban. In other words, Turkey’s determination (and unfortunately, ability) to restrict access to “troublesome” sites is well documented.

Furthermore, restricting Internet access is the antithesis of economic modernization. Erdogan has repeatedly committed to liberalizing Turkey’s economy and bringing the country into the EU. While Turkey’s economic growth over the past decade is impressive, the Boston Consulting Group issued a study of Turkey’s web-sector in 2012, noting plenty of room for improvement. FreedomHouse awarded Turkey an Internet freedom score of 46/100 (0 being the least free). To put that in perspective, Tunisia and Jordan were the next freest on FreedomHouse’s list. The Brookings institute has pointed to a well-defined positive correlation between Internet freedom and digital innovation and prosperity. In 2012, Internet-related industries accounted for a whopping 24% of GDP growth in mature economies. Mckinsey compiled a survey of ecommerce in 13 countries, which collectively account for 70% of the global GDP; and Internet commerce accounted for 3.4% of these countries collective GDP. In Sweden and the United Kingdom, the Internet accounts for 6.3% and 5.4% of the GDP, respectively. While generally, the Turkish economy seems promising, it lags well behind its aspirational contemporaries in the crucial Internet sector, which, in 2011, accounted for just 1.7% of Turkey’s GDP.  Erdogan must loosen his government’s hold on the web if he truly wants to deliver his economic promises.

MORE »

{ 0 comments }

There has been a lot of high-level political banter as of late over the fate of the US-EU Free Trade Agreement, otherwise known as the Transatlantic Trade and Investment Partnership (TTIP).  In the most recent macro political developments, the European Parliament voted for a resolution which essentially took cultural exemptions for audio and visual services off of the table and the Obama administration warned the UK that it would lose the benefits of TTIP if it decides to withdraw from the European Union.  And this is all before the talks have officially begun.

Today, CCIA’s CEO testifies at the U.S. International Trade Commission (for the complete written testimony, see here) on TTIP.  While the political intrigue and high-level maneuvering capture most of the headlines, the more important story is what this agreement can mean for modernizing trade agreements — particularly, to include provisions important to the Internet and Internet Commerce, an area that the international trade community has largely ignored.  The two most advanced and open economies in the world could potentially rewrite the rules of international trade in a positive way, especially if they solidify their positive ICT commitments from 2011 and learn from their failed attempt to foist controversial and misguided intellectual property rules on domestic legislatures through ACTA.  In the 21st century, it is just as important to protect bits from being blocked at the border as it is to protect Buicks.

{ 0 comments }

Foundem Has Lost It

by Glenn Manishin on May 23, 2013

In the ongoing saga of governmental antitrust investigations of Google, recent weeks have witnessed a new level of rhetoric and disingenuous use of the regulatory process to handicap, rather than promote, competition and innovation. The current case in point relates once again to search neutrality, but this time complaining rivals remarkably object to getting exactly what they’ve asked for over many years.

Just a little less than four months after the U.S. Federal Trade Commission (FTC) closed its monopolization investigation into alleged “search bias” by Google, the European Commission (EC) — the pan-European competition authority for the 30-nation European Economic Area (EEA) — released a set of proposed commitments by Google designed to resolve the competition “concerns” preliminarily outlined by EC competition chief Joaquin Almunia. That set off a firestorm of criticism from so-called “vertical” competitors (e.g., travel booking or consumer shopping sites), led by UK firm Foundem, a plaintiff against Google in its own antitrust lawsuit in England.

The first and most basic competition concern asserted by the EC was that Google gives preference to its own services, like travel search, by placing those “specialised” (in European spelling) search results above “organic” or “natural” search results. Google proposes to label these specialized results as paid placements and to add equally prominent links to vertical rivals alongside. Under the commitments Google would auction links for commercial services to qualifying rivals using a lengthy set of rules for transparent and equal treatment. It is precisely the paid link insertion remedy that Google critic and long-time legal adversary Gary Reback called for at an April 2013 FairSearch.org event in Washington, DC.

Foundem opposes that solution. But making heads or tails of Foundem’s rather incoherent response to Google’s EC settlement proposal is difficult. In part that’s because the response is a hodge-podge of discredited claims, incorrect assumptions and fuzzy reasoning. In part it’s because Foundem’s use of over-the-top language and Chicken Little predictions makes it impossible to decipher facts and reality from mere opinions and sour grapes. For instance:

If the Commission were to adopt Google’s proposals in anything like their present form, it would be unwittingly playing into Google’s hands — aiding and abetting Google in its long running strategy to transition commercial searches away from its natural search results and into its paid advertisements. Under these proposals, Google would not only continue to profit from the traffic it hijacks from rivals, but it would now also profit from the traffic it sends to rivals…. Any vertical search companies that survive the transition to such a radically altered and unfavourable marketplace would be left eking out a living on the slimmest of margins from the scraps left over from the traffic, and now revenues, that Google would be diverting to its own services.

If one separates the adjectives from Foundem’s substantive criticisms, there are four principal contentions it makes.

MORE »

{ 0 comments }

The European Commission announced plans yesterday with several other nations and NGOs to launch a platform called the Global Internet Policy Observatory (GIPO), development of which is likely to start in 2014, for increasing participation and engagement around Internet policy debates and decision making.  This initiative is encouraging “participation of all stakeholders across the world,” and intends to supplement existing fora, providing additional information and expertise.

GIPO plans to follow developments in policy, regulations, and technology, by:

  • “automatically monitor[ing] Internet-related policy developments at the global level, making full use of ‘big data’ technologies

  • identify[ing] links between different fora and discussions, with the objective to overcome ‘policy silos’

  • help[ing] contextualise information, for example by collecting existing academic information on a specific topic, highlighting the historical and current position of the main actors on a particular issue, identifying the interests of different actors in various policy fields

  • identify[ing] policy trends, via quantitative and qualitative methods such as semantic and sentiment analysis

  • provid[ing] easy-to-use briefings and reports by incorporating modern visualisation techniques”

The EC announcement demonstrates a commitment to Internet freedom, citing a February speech from Neelie Kroes, the Vice-President of the European Commission responsible for the Digital Agenda, entitled “Stopping a Digital Cold War.”  (The Obama Administration has similarly spoken out in support of Internet freedom, such as its statement during the controversial WCIT negotiations.)  As DisCo has previously covered, the proposals being put forth at WCIT would have threatened the Internet’s disruptive potential, and we remain committed to fighting to keep the Internet open.  In contrast with the closed WCIT talks, the Commission emphasizes the intent to involve all stakeholders in GIPO, including the developing world and “groups which may have so far been marginalised in Internet debates and decisions.”

The headline of the announcement refers to the current state of affairs as a “global Internet policy labyrinth,” a word which conjures a complicated and confusing maze.  GIPO’s crowd-sourced knowledge base intends to provide some much-needed guidance for navigating Internet policy.

{ 0 comments }