Principal, Xamax Consultancy Pty Ltd, Canberra
Visiting Fellow, Department of Computer Science, Australian National University
Version of 31 March 1995
© Xamax Consultancy Pty Ltd, 1995
This document is at http://www.anu.edu.au/people/Roger.Clarke/DV/NotesCFP95.html
Caveats: I've attempted to express the majority of these notes in a form the authors and session organisers might at least recognise; but I provide absolutely no warranties to that effect!! Shorter reports generally imply I either wasn't in the room, or I was only there some of the time. [Expressly personal comments are in square brackets].
More Caveats: I'm a regular at CFP, I was a member of the Programme Committee, and I was organiser and chair of the final session. My personal focus this year was on aspects of the digital persona; transaction anonymity and pseudonymity; and public policy about the information infrastructure generally, and particularly about public access on the one hand, and on the other the risk of 'kneejerk' regulation which will fail to do the good that's intended and will have serious side-effects.
The Conference on Computers, Freedom & Privacy, the fifth such annual event, was held at the San Francisco Airport Marriott Hotel, Tuesday 28 March to Friday 31 March, 1995. The Conference Theme was 'Defining Rights at the Crossroads of the Information Age'. At the time of going to press (what an old-fashioned expression!), the Conference pages were still available.
It was chaired by Carey Heckman, of the Stanford Law & Policy Center, attracted considerable private sector sponsorship, and involved a total of some 500 attendees.
It is essentially a U.S. conference [I was the only non-American on the Program Committee, and as far as I could tell the only non-American speaker (ignoring David Chaum, an American long-term in Amsterdam). The Conference is, however, in no way hostile to non-American activities; now let me re-phrase that ...].
John Morgridge, Chairman of Cisco Systems provided the ritual, but pleasantly original, review of the excitement level and exponential growth of the Internet, supplemented by insights into its impacts and use within a major supplier of communications technology.
Four speakers outlined developments in school record systems for the K-12 (Kindergarten through Grade 12) levels. The tensions were highlighted between:
[The data-intensity that is apparent, and the presumptiveness and interventionism of school administrators and State and Federal agencies, are far greater than what people in other countries experience / endure].
Jane Radin, of the Stanford Law School, identified two 'paradigms' underlying property law. The 'fungible or market' paradigm is based on a combination of free-market economics (i.e. create rights and let the invisible hand protect people's interests to the extent they want to - and can - pay); and legal positivism (which is based on the principle that 'the sovereign giveth and the sovereign taketh away').
The 'personal or self-constitutive' paradigm is, on the other hand, based on moral and social arguments, and justified by the importance of context in defining a person's individuality. She noted that the U.S. model of intellectual property is based heavily (although not exclusively) on the market paradigm [the French copyright concept of moral rights is an example of a form of property law heavily based on the self-constitutive paradigm]. She identified the tensions between the two, and argued that in the context of the Internet, the concept of intellectual property demanded re-formulation based on both paradigms.
[Jane mentioned the 'tragedy of the commons' as having been withstood during the early years of the Internet, through self-governance mechanisms, but expressed doubt that this approach would survive the onslaught of the new immigrants. Personally I think 'the commons' is as misleading a term as 'the information superhighway'. It's a physical metaphor, drawn not even from movable chattels but from the arena of fixed, 'real' property. Data and software are far less subject to exhaustibility than are physical resources, and, as Jane herself pointed out, far more copiable, temporary and in a state of constant metamorphosis. In the same way that we need information economics to cater for these differences, we need information law which reflects information's particular characteristics. Inappropriate metaphors will get in our way].
Four speakers presented the ways in which information technology will support the management of highways and the vehicles which travel on them; and the ways in which a vast amount of data will be generated, much of it directly or indirectly identifying vehicles and individuals. Important benefits are not hard to foresee. The technologists and the investors perceive privacy as a threat, but the privacy principles they are proposing to adopt belong to, and reflect the thinking of, the 1970s. New, powerful and potentially highly privacy-invasive technologies demand more imaginative and proactive approaches, and the embedment of intrinsic privacy features.
[Personally I think this is an extremely important topic, but I was well aware of the technology and the issues because I recently edited a couple of excellent papers for a special issue on identification technologies for the journal Information Technology & Policy (7,4 of December 1994); so I only sampled this session!].
Four speakers discussed what will be done with the large volumes of personal data that will arise from such services as video-on-demand, home shopping and home-voting.
[This session was organised and chaired by Alan Westin, who I have always regarded as being an apologist for corporate and governmental use of any data they wish to exploit, subject to the minor constraint of having to pay at least lip-service to self-regulated 'fair information practices'. The session did what it needed to confirm me in my biases. It was dominated by corporate lawyers, who explained what the consumer couldn't do about corporate use of their data. Anonymity was a charming but (fortunately) avoidable side-step. Marketing interests will continue to do what they want to do, which comprises anything that their specific customers and prospects (especially the well-off ones) won't actually object to in a meaningful manner, i.e. by not buying product; and will continue to deflect attention to government, which corporations prefer their customers to see as 'the real bogeyman'].
Four observers of the information society adopted a sceptical, (even 'neo-Luddite') approach to the information society, age and economy. Dropping the rhetoric and reducing the intellectual depth of the presentations, the speakers were very doubtful that society was coping with the dynamic changes being wrought by IT generally and the information infrastructure in particular. That failure to cope applies to semi-rational, political processes which produce 'public policy' and 'public programs', but also to the putative 'invisible hand' of the market.
Theodore Roszak, more down to earth than his co-speakers, expressed concern about such matters as the bizarre engineering of user interfaces; the large proportion of people who can't find the System Folder on their Macintosh or the config.sys file(s) on their PC; the continual need to buy arcane components, upgrades and enhancements that are obsolescent when they're delivered, and will be obsolete a year later; and the many people who are entirely over-challenged by the IT capabilities demanded by much of the current job-market. Broader ideas involved the mechanistic mind-set and logical positivist under-pinnings of 'the information cult'; and the way in which attractive electronic or virtual 'realities' draw people away from their cultural roots in physical reality and local communities.
[This panel (intentionally) had a less narrowly focussed theme than is the norm at CFP, its advantage being that it attracted a different kind of presenter from those who participate in the mainstream sessions, and brought a different level and kind of perspective from that which pervades the conference].
Thomas Jefferson made a guest/ghost appearance in the form of Conference Chair, Carey Heckman. Table discussions were stimulated around leading-edge issues in the application of IT, how to pay for it, and how to achieve equity in its distribution.
[No, the day didn't end there - CFPs are a 9am to 11pm commitment! But I mention the evening sessions in one block at the end].
Four speakers discussed patterns of public access rights and practicalities, particularly the role of public libraries in the new context. Particular attention was paid to rural areas and to less-developed countries, in which the basic telecommunications infrastructure may be much less well-developed, and the relative costs per additional connection can be much higher than is the case in urban areas in economically advanced nations.
Four speakers examined the degree to which minority groups participate on the net, ways in which they are (inadvertently) excluded, and techniques for increasing their participation.
[I urged that this panel be included in the program, because I saw California as one of the most sympathetic locations for the topic; so I'm embarrassed that a jetlag-induced broken sleep-pattern resulted in me not attending the session!].
Esther Dyson, of EDventure Holdings and well-known IT industry-watcher, spoke from her experiences of developing business in Russia. She stressed the lack of public confidence in the country's institutions and in one another. The government is only one of the mafia-style protection rackets in town; there's even a competitive market in mafias - you need to choose one with sufficient quality for your needs. An associated phenomenon is the fuzziness of information, and the distrust that people have for it. Because the Communist regime controlled most flows for 70 years, Russians have been conditioned to expect information flows to be intentionally and consistently manipulated, and therefore the concept of data quality is foreign to them.
These experiences can be applied to the Internet. In Russia, it pays to assume that the people and organisations around you are ignorant or bad [and the same applies to the data!]. The net's origins and history are very different from Russia's, but beware the emergence of similar patterns - it's not all sweetness and light out there. There is no prior experience about accountability in cyberspace. So lots of local 'governments' will arise, and are arising, probably including various mafias.
Finally, Esther stated that she was a supporter of the freedom of private individuals to use cryptography. On the other hand, she was very wary of 'anonymity', because it's the opposite of 'community', which is the very essence of the net.
[In subsequent discussion with Esther, she saw her last comment as a lead-in to the final panel at the conference (which I was of course delighted about). We agreed that the distinction between anonymity and pseudonymity is important].
Three speakers addressed a cluster of issues surrounding propaganda on the net. Congress was a primary focus. The White House web-server has carried edited, rather than full, versions of some documents (referred to during the session as 'Cyberspace with speech impediments').
The record of Congressional speeches [called Hansard in at least Britain and Australia] has traditionally only been released publicly after each speaker has had the opportunity to 'correct the proofs', including some degree of revisions and extensions. Real-time electronic manuscripts deny that opportunity.
In the lead-up to the Congressional elections in late 1994, publicly-funded web- and gopher-servers were purged of material from House members and Senators. [The conventional wisdom is that power is, or at least could be, exercised using the media generally, including the net, and the exercise of power may be, at least at this stage, differentially exploited].
In addition to Congress, Federal Government was discussed. The US Information Agency is that nation's propaganda broadcaster to the rest of the world (but banned from operating domestically). As it begins to exploit the Internet as a channel for its content, its content will become increasingly visible to Americans. Will that make it more accountable? Will that cause it to be in breach of the law that precludes it from operating domestically??
Finally, the Panel considered the question of activism and lobbying, the scope which the networked world offers to activists, the use that some groups have already made of it, and the possibility that the notion and process of activism may be somewhat modified by the existence of the net.
CFP attracts a large number of people who are heavily committed to free speech and who are inherently anti-regulation. It's a constant, but vital, battle to ensure that the balance between accountability and freedoms is continually in view. This pair of sessions was designed to drag delegates along the tightrope, forcing balancing acts on the part of everyone present.
As a lead-in, the Panel Chair invoked Piaget's cognitive theory, whereby adversarial, 'win-lose' attitudes develop early in children, whereas the capacity to negotiate on a 'win-win' basis is only possible in mature actors, and real insight into the relativity of perspectives and the absence of objective truth are only possible when a considerable degree of self-development has occurred. It was proposed that this be applied to explain behaviour on the net.
The other three speakers each described a case which raises difficulties. One involved the offer of a gratis Electronic Postal Service which was used as a cover for the collection of data for use in direct marketing (the gentleman concerned has the surname Suarez). A reporter criticised this practice, and was sued for libel by Suarez. The suit was brought in the State in which Suarez picked up the message, remote from the reporter's home-State. The suit was ultimately withdrawn. Apart from the strain on the reporter, the concern was that someone had sought to limit the freedom of Internet speech of another, using the mechanism of a libel suit. Moreover, because the courts have not yet ruled on such a matter, the law remains unclear and the threat of a lawsuit may therefore constrain speech.
Carnegie-Mellon University (over-)reacted to perceived obscene and otherwise objectionable content on local servers, by banning a range of newsgroups and ftp libraries. This resulted in a wall of flame from students and staff alike. The justification given by the University was the demeaning of women, and this resulted in a substantial backfire from the feminist lobby. The University has not acted rationally, having over-reacted in the first instance, and ignored legal advice subsequently. By the date of the conference, no resolution had been found. An important suggestion was for sysops/system managers to 'pre-counter', by establishing self-regulation in the form of a policy document and a mechanism for monitoring compliance with it.
On a local and restricted-use bulletin board within a California college, one student made derogatory remarks about the girlfriend of one of the staff. In contravention of the confidentiality rules of the bulletin board, one participant reported the remarks to the woman concerned. She commenced sexual harassment proceedings (although she had not seen the comments). The college went into administrative melt-down, and a series of largely irrational, and partly legally incoherent consequences arose.
Discussion took place around various aspects of alt.sex and alt.humour.funny (especially the black, racist and genderist humour).
An important distinction exists between a newspaper, which, being a publisher, has responsibility for content, and a service provider, which is not a publisher, and whose responsibility for content is far less (although certainly not zero), the primary responsibility resting with the person who posts the material.
The general feeling is that the primary control mechanism should be personal responsibility of the individual posting material. This is complicated by several factors. One is that Universities have deeper pockets than individual students, and network services have deeper pockets than many of their subscribers. Another is that systems administrators do have responsibility to take due care, especially when it is brought to their attention that material posted on their server may infringe a law, particularly a law of the jurisdiction in which they are located. Even then, however, the systems administrator must take care to respect the legal rights of the individual who posted the material!
A further question was raised concerning access to material from jurisdictions which have different standards of free speech from the jurisdiction in which the bulletin board is hosted. The specific instance raised was Singapore, but an English delegate raised the same question. [In addition, delegates were well aware of a case in which a California-based board which contained material acceptable in that State was accessed by someone in Tennessee. In U.S. law, the test for obscenity is applied on the basis of the standards of the community (not even the State) in which the material is disseminated. The result was a successful case against not the person in Tennessee who accessed the images, but rather the bulletin board operator].
A Hypothetical was run, based on a white supremacist, anti-zionist, 'coloureds are mongrels' group, led by one Hermann Hessian, which moves onto the net.
[As background to the discussion (especially for non-American readers, like Australians), the First Amendment to the U.S. Constitution 'guarantees' freedom of speech, and there is a very strong leaning towards inappropriate speech being neutralised by more speech, not by censorship. Caveats: I'm not a lawyer, I'm not an American, and I can't type fast enough. So the following rendition of events probably contains material errors!!].
The right of the group to run a closed group was confirmed, even by the Anti-Defamation League. One risk that was expressed was that the group could bring a bad name to free speech, and hence there might be a backlash which could harm freedoms for others.
More directly, there are some qualifications to the group's freedom of speech. There could be a case of incitement, in particular of racial hatred, which is likely to be an offence in some jurisdictions in which members of the group live. This would be of particular concern if a link could be found between, say, discussions within the closed group and desecration of a synagogue. In the event that communications on the closed group represented conspiracy to commit a crime, the criminal law may be able to be invoked, and electronic interception and other police actions enabled.
Once the materials escape beyond the group, additional concerns quickly arise. In the event that the materials are brought to the attention of a person in the persecuted group, it may, at least in California, represent a prima facie case of the new offence of 'stalking'. The long-standing offence of harassment may also be relevant, but this presumes that the person is aware of the threat, and the threat is credible.
The case of Jake Baker, an Ohio student, was brought up, in which a story was temporarily posted on alt.sex.stories, involving a fictional account of a violent rape and torture of a woman. One of the postings used the name of a woman in a class in which the author was involved. Baker has been charged with harassment of that woman. The case is being used as a justification for the Exon-Gorton Bill S.314 (Communications Decency Bill), currently before Congress, which seeks to prohibit "obscene, lewd, lascivious, filthy or indecent" messages on public on-line systems.
The Hypothetical was continued by developing the group's leader into a national figure, who is known to be encouraging actions against a particular racial minority. The question was raised as to whether a services provider, On-Ramp Inc., could refuse to provide services to Hermann and his group. It was also queried whether Cyber-Net News (not the real CNN, of course) could carry news stories about Hermann's notorious behaviour, or about the rumours about Hermann having a Jewish grandmother. It was suggested that a defamation case brought by Hermann might well fail, for various reasons, but could be brought, and could be prolonged and expensive, and could result in the financial and psychological destruction of a lone newsletter operator (the hypothetical CNN) [although perhaps not of the real CNN].
The further question was raised as to whether the Internet / Cyberspace is different, as an electronic community which self-regulates, and is free from conventional regulations. It was argued by lawyers that conventional laws will be applied by the courts [albeit at times with great difficulty, uncertainty, and more than a few errors, hopefully (eventually) reversed on appeal].
The Hypothetical was then modified to a freshman, whose secondary school had limited student access to newsgroups and other sources deemed inappropriate, and who is bemused and upset by materials they find in their first year of university, on the unrestricted net. Some of the University's sponsors get wind of this concern, and bring pressure to bear on the University to provide protections, such as locking out alt.sex. Despite legal advice not to do it, the University closes out alt.sex.
A discussion group at the University then gets personal about the freshman who started the snowball rolling. Some rather nasty and profane comments become known to the person concerned. The question was raised as to what response the University should make. It was suggested that conciliation may be more appropriate than immediate censorship or close-down of the discussion group.
From the floor, the question was raised as to whether the situation was influenced by the location in which the offensive material was stored. In particular, it was considered that offensive material under alt.sex.bestiality.pictures was less problematical than something hidden behind a person's home-page and pretending to be harmless (e.g. "click here if you can't work out how to use 'Bob'" [Microsoft's belated, ultra-simple and utterly patronising interface for real dummies]). It was argued that the issue is whether appropriate warnings have been given, such that the recipient has a real choice whether or not to view a potentially offensive picture.
Roger Wilkens, a law professor at George Mason University, a one-time senior public servant, and a leading afro-american, spoke on the challenges that IT needs to help the world confront, in particular the ongoing, unsustainable population explosion, and inequity in the distribution of information, but much more importantly of food, health care and physical security.
Willis Ware, of the Rand Corporation, and a 1995 recipient of an EFF Pioneers Award, provided a retrospective and prospective on security and privacy, with particular reference to the NII.
A panel of seven discussed aspects of the control exercised over strong cryptography by the U.S. Government, through the National Security Agency (NSA). The mechanism used is export restrictions on products and services considered by the U.S. to be of strategic importance [commonly referred to as ITAR, but I've forgotten what the acronym stands for].
Frankly, to outsiders like me, there was more interest in Stewart Baker's paper. This was on effective censorship in existing media and what that tells us about likely censorship over the global information infrastructure.
Five speakers debated the mutual impact of intellectual property in electronic documents and software, and the information infrastructure. The conventional arguments were rehearsed, to the effect that property is a fundamental necessity to ensure that innovators can gain a return on their investments, and hence incentive exists for more investment.
[The alternative argument was almost invisible, i.e. that copyright acts as an inhibitor of, rather than a stimulant for, innovation. This is based in part on the contention that technological change and the development of new advantages arises because of the copiability, replicability and enhanceability of new products; hence, to stimulate progress, copying should be encouraged. So the panel was hopelessly one-dimensional - as someone remarked, it's a pity there wasn't 'an enemy' present. The April issue of Wired Magazine, already on the newsstands, provided an insight into why it did not include the high priest of the anti-copyright movement, Richard Stallman of the Free Software Foundation. He and his Digital Liberty partners were reported on p.43 as regarding the Electronic Frontier Foundation (EFF), an important sponsor of CFP, as having sold out to Washington and the corporate big battalions].
[Even within its own limited scope, the panel adopted an excessively legalistic approach to the questions. The key questions are more practical: will the net undermine copyright more insidiously than did photocopiers and disk-copying software? And will it be feasible for copyright-owners to take advantage of the laws that governments give them, and exercise control over people who abuse their legal rights? If a consumer goods supplier pursues through the courts people who indulge in casual copying for use by themselves and their friends, it invites negative images of their brand-name. Systematic abuse by corporations and government agencies is, however, a target that does less harm to a company's image].
[Unfortunately, one of the most interesting aspects of current copyright developments did not get discussed. The U.S. has been using its economic and diplomatic muscle to convince countries around the world, and especially in East Asia, to adopt and enforce copyright law as the U.S. understands it. And this notwithstanding that in some of those countries, it can be justabout a hanging offence. It will be interesting to see whether this form of economic and cultural imperialism will prove to be as effective in protecting U.S. revenue streams as the government and the I.T. industry expects. What's more certain is that the presumptiveness with which the U.S. is seen to be acting will do little to reduce the 'ugly american' image prevalent in Asia].
The winner of the Student Paper competition, Leonard Foner from MIT's Media Lab, presented his paper. It reported on his prototyping activities in relation to communities of software agents. [He should have been disqualified from the Paper competition. His paper was far better than a lot of the panel presentations, so he should have been added into the main program!].
Five panellists presented the law enforcement perspective on activities on the net. The questions were raised of intention to commit a crime, awareness of the law, awareness of damage done, the prevalence of under-age experimenters on the net, the blurred boundaries between bad manners and crime, and obscenity on the net.
Of greatest importance was the debate as to whether the net was, should be or could be in some way separate from the criminal law. Speaking for the plea for special treatment are its differences from conventional communities, its vibrancy, its (hitherto) relative freedom and self-regulatory style, and its cross-jurisdictional and downright internationalist nature. Speaking against it are the extent to which it is now part of the regular community, and should be subject to similar standards.
A prosecution attorney supported the notion that downloading material from a bulletin-board system (BBS), an act which is initiated by the recipient not the BBS, represents the delivery of that material. The issue of delivery is important, because the law applicable to the material, and/or the criteria whereby the material is judged to offend or to not offend, depends on the jurisdiction in which the prosecution is brought.
[Most people (at least at CFP) have difficulty with the attorney's outlook, preferring that the recipient, who initiated the transaction, should be subject to the law concerning acquisition of materials within his/her own jurisdiction, and the BBS operator should be subject to the law concerning the making available of material in the jurisdiction in which he/she operates. This will admittedly lead to BBS being sited in California or, say, the Bahamas and Mexico, which have more permissive regimes, and individuals who live under restrictive regimes will have technical access, even though the exploitation of the technical possibility is illegal].
[Once again, the panel was one-dimensional, with all members being representatives of law-enforcing bodies. The intention was that alternative views emerge from the floor, but this was limited, because the panel was scheduled for only 75 minutes, and was the only one in the entire conference to commence late. The Panel Chair did what he could to overcome the one-dimensionality by encouraging questions between speakers rather than after the last speaker. This and the preceding panel re-emphasised the importance of building diversity into panels].
Five speakers discussed the way in which not just the reports on U.S. cases, but even the citations of case reports, are the subject of copyright. This is because the page-numbers, which are part of the citation, are also part of the page-layout, which is part of the representation, and hence the subject of copyright. That copyright is owned by a single corporation, Westlaw. The question was raised as to whether electronic publishing might change the pattern of citation, in particular by rendering redundant page-numbers and other elements of presentation.
[This was a disappointing session, for a different reason from the preceding two. The CEO of Westlaw was an excellent scrapper, but the real issue was never engaged: Should a sovereign entity, i.e. a nation or a sub-division within a nation, confer a real or effective exclusive right in materials emanating from the courts on a particular services provider? If State and Federal Government Justice Departments were to take steps to ensure that the final versions of all official judgements and case reports were their own, then the page-numbers, and hence the full citation, would belong to the State, non-exclusive licences could be granted, and a competitive market could be assured].
Six people presented background to the notions of:
Examples were given of ways in which IT-enabled anonymous and pseudonymous transactions can be undertaken in such a manner that the needs of the various parties involved can be satisfied. In addition, cultural background to the notions of identity and anonymity was provided.
[I thought this was an excellent session, and had the impression I wasn't alone. But then, having organised it, chaired it, and contributed to it, you'd better take that assessment with the requisite quantity of salt].
The Conference was rounded out, as always, by a preliminary day of separately-priced tutorial sessions, by vast volumes of discussions in the corridors, by 9:00 'til midnight less-formal meetings on specific topics for small groups, and by a lively session at which people were invited to get up on a soapbox and 'fly a kite'.
The 227-page Precedings are available in hard-copy, for $30 plus postage
Email firstname.lastname@example.org, fax: +1 415 548 0840, voice: +1 415 548 9673
This will be held at MIT, in Boston Mass, 27-30 March 1996
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