Barely Legally

Confessions of a Moot Court Bailiff

A Magical Wonderland

The internet is a funny place. In the very first days, when it included computers at all of four universities, the internet was very clearly an extension of the “real world.” For a great number of years, people just used their actual names on the internet: see the 1982 Usenet discussion of the creation of the emoticon. (This discussion quickly deteriorated into arch-nerdery, because the guys on the internet in 1982 were arch-nerds.)

At some point, (perhaps the Eternal September?) the internet took a turn for the anonymous. The problem with anonymity is perhaps best summed up in a cartoon, of all things. Specifically, in a mathematical equation within a cartoon. Normal people do crazy things on the internet, because they’re anonymous and they can do crazy things. You grow up understanding that actions have consequences, but when you’re SkiRacerX88, and not Jimmy down the street, there really aren’t any consequences for behaving like a jackass.

It Knows

However, the internet is the largest collection of information about any topic ever assembled. In the face of such unabashed hyperbole, the revelation that some of this information is about you, Dear Reader, should not surprise. (In fact, there’s even some information about me.)

To pretend that you’re anonymous on the internet is to open yourself up to hilarious consequences. The internet forums at 4Chan.org are famous for their anonymity: you don’t have to use your real name, and you don’t even have to use a username. But you’re only anonymous up until you make a big enough mess that someone goes through the few steps needed to find you. The guy who read Governor Palin’s email is a great example, because he made a really really big mess.

I’d like to discuss two news stories that illustrate the tension between some very different viewpoints about just how anonymous you are on the internet.

Can’t Stop the Music

The first regards a web site called Last.fm that collects data about the music its users listen to. When you register for the Last.fm service, you have the option of installing a plugin on your computer that sends data about your listening habits to the Last.fm servers. Users compare their musical tastes, and the site sorts out users into compatible groups based on the kinds of music they like.

sidebar: I think it’s telling that the internet has facilitated communication and co-mingling with other people to such an absurd degree that we have_ too many _people to talk to. Now sites can provide a service by telling you how much in common you have with other people, so you know whether or not you want to talk music with them. Sure, we both like the same Hendrix song, but you like the Stones and I like the Beatles; do we really want to have this conversation about “The Wind Cries Mary?” I’d rather have it with someone who can relate it to Revolver, thank you.

Back to my point about anonymity, the music industry is famous for their litigious approach to people infringing on their hard-earned copyrighted songs. (They liked Old Media, and the New Media isn’t their cup of tea. They’ve lawyered up and are being dragged into the sunset kicking and screaming.) When word gets out that U2’s newest album is being pirated before it even goes on sale, the music industry’s lawyers are on the case.

The difficult task of tracking down pirates is mitigated significantly when the pirates tell Last.fm (and through that site, the entire world) that they’re pirating the U2 album. Apparently, a number of people have forgotten to turn off their plugins that report their listening habits to Last.fm before listening to their shiny new (pirated) copy of U2’s new album. That number seems to be about 7,000.

Why on earth would you publish the exact time and date that you listened to an album that isn’t legally on sale yet? It could be because you’re forgetful. It could be because you don’t live in America. It could also be because you have a username like TheFly1983, or jetjaguar72, and you forget that this pseudonym is easily linked to your actual name in the actual world in your parents’ basement actual apartment. Which is, not coincidentally, where the guy serving you notice of the copyright infringement lawsuit is going to find you. The internet is a public place: do not advertise your exploits on it.

A Small Detour re: The Feds

As a legal note, the federal law that governs the release of server logs against the user’s wishes present a barrier to government agencies getting their hands on said logs, but not to private parties who want to do the same. Voluntary release of server logs (in this case, by Last.fm’s parent company, CBS) is legal if it’s to a private party (in this case, the music industry’s lawyers), even if it’s against the user’s (in this case, Mr. TheFly1983) wishes.

But if the FBI had asked CBS to turn over the server logs, the FBI would need a special subpoena for those records, or CBS would have been forbidden by law to hand them over. This also goes for your ISP’s logs: be kind to the people that know about your exploits if you do publish them on the internet. If you’d like to read the legalese, you’re looking for 18 U.S.C. 2702, which is part of the Stored Communications Act.

The Show Me State

The second news story is not about people with a false sense of anonymity; this is a story about a British couple living with a bad case of the digital willies. (A cursory Google search reveals that I am the first person to use this term on the internet for technophobia, as opposed to a reference to genitalia.)

It appears that one Mr. and Mrs. Boring (you really can’t make this stuff up) were horrified to learn that Google had taken a photograph of their house and put it on the internet. Google did this as part of its Google Street View product, which takes pictures of streets and puts them on the internet in a huge searchable database. For instance, here’s a picture of my law school.

The Borings do have a valid point in asking that the pictures of their property be removed from Google Street View. Their house sits on its own road, which is also apparently their driveway, and is marked “private.” Yet the Google Street View images let you see their driveway/private road, and now people can see the pool and houses that were already visible from the satellite maps.

The $25,000 question remains, though: who cares? I’d never heard of the Borings, and neither had you, Dear Reader. I suppose it’s possible that someday they could have upset someone who could use Google Street View to examine the Boring property. But that same person could just drive over to the Boring property and snoop about anyway: there’s no fence, no gate, and nothing but a sign marked “private.” Google hasn’t invaded the Borings’ privacy, just shown how superficial any expectation was.

Dismissed

The judge in this case has thrown out the lawsuit, although I think the Borings had a valid claim for trespassing if Google’s employees had set foot on the Borings’ property. It’s not necessary to cause any damage to someone’s property to be liable for trespassing: in America, we’re pretty big on sovereign property rights. (See also: that guy in Texas who shot some kids that broke into his house. Don’t mess with Texans.)

The lawsuit was by and large without merit for the same reason that other prior lawsuits relating to Google Street View were unsuccessful: you haven’t lost any privacy simply because your house is visible from the sidewalk. No one has invaded your home because you left your curtains open and people can see your cat. The fact that I don’t have to leave my house to look at your sidewalk is nicely tempered by the fact that the photos are months or years out of date. Your cat’s probably not perched on the back of that couch.

I’ve already alluded to the second big reason: nobody cares about Mr. and Mrs. Boring. Or Mary Kalin-Casey. Until they made a big enough fuss about the internet removing their privacy, they were all anonymous: nobody knew who they were. While it was possible to look at their pool or their cat, nobody did. Ironically, in their failed quests to salvage their privacy, they obliterated both their anonymity and their privacy. A quick Google search reveals the home addresses of both The Borings and the apartment building in which Ms. Kalin-Casey lived.

Does this mean that we live under the tyranny of the Techno-Info-Fascist rule of Google, and the only way to remain anonymous is to keep your mouth shut and hope that the great panopticon’s lantern is not shone on you? I don’t think so. Photographs of public places are hardly oppressive - that you are visible in public is not an invasion of privacy.

Honestly, the telephone book provides more useful information than Google does. Any crazed stalker will need to know where you live before he needs to know whether your house has red shutters or green ones. You could drive around for hours in Oakland, looking for a single beige apartment building. I just don’t see the harm or lost privacy in taking photos like this in public places.

The internet is not some magical wonderland, where social norms break down because information is digital. Publishing details of your criminal activities is always a bad idea, whether online or in the newspaper. And likewise, public places are just that: public, whether online or in the phone book.