“Silos” by Sean Kelly. CC BY-NC-SA 2.0.

The push for “privacy” that demands an ability to allow us to restrict who sees what–enabled, for example, by new tools in Facebook and Google+–also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?

The Marketplace of Ideas

Core to many American arguments on behalf of the value to a liberal democracy (in the old sense of liberal) of the freedom to speak is the concept of a “marketplace of ideas,” articulated by both Thomas Jefferson and, perhaps most persuasively, by John Stuart Mill in On Liberty. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one’s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.

Republic.com and the Problem of Silos

In 2002, prolific author Cass Sunstein (in Republic.com, then again in Republic.com 2.0 in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, also limit the beneficial unifying effect that shared viewpoints provided.

Free Speech and Privacy

This concern is different, though possibly related, to that expressed by Eugene Volokh in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.

In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, and my own exposure to, the ideas of others. But in both cases, the marketplace is undermined.

But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill–and Volokh–argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls)–but that doesn’t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.

Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is our own individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.

Education

So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to force people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them–without rejecting the new and unusual out of hand–is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.

But I’m open to other ideas, so if you have any, please share!

Related articles

• Thinking about privacy and the First Amendment (inpropriapersona.com)
• The Echo Chamber Revisited (On the Media, npr.org)
• The Filter Bubble (amazon.com)

The Wealth of Networks by Yochai Benkler

In The Wealth of Networks: How Social Production Transforms Markets and Freedom, Yochai Benkler discusses his vision of the role of technology in social change. He rejects an overly deterministic vision of technology (which he connects with Lewis Mumford and Marshall McLuhan), but also rejects a view of technology as immaterial to a society’s direction:

A view of technologies as “tools that happen, more or less, to be there, and are employed in any given society in a pattern that depends only on what that society and culture makes of them is too constrained. A society that has no wheel and no writing has certain limits on what it can do.” (17)

Instead, he adopts a “simple” idea that is “distinct from a naive determinism”:

Different technologies make different kinds of human action and interaction easier or harder to perform. All other things being equal, things that are easier to do are more likely to be done, and things that are harder to do are less likely to be done. All other things are never equal. That is why technological determinism in the strict sense–if you have technology “t,” you should expect social structure or relation “s” to emerge–is false. (17)

To illustrate the point, he describes the different impacts that new ocean-going technologies had on Spain or Portugal (their land ambitions were curtailed by strong neighbors) and China (which focused inland). He also notes how the printing press impacted Protestant countries (where individual reading of the Bible was encouraged) differently than Catholic countries (where “where religion discouraged individual, unmediated interaction with texts, like France and Spain”).

He summarizes his position by saying the following:

Neither deterministic nor wholly malleable, technology sets some parameters of individual and social action. It can make some actions, relationships, organizations, and institutions easier to pursue, and others harder. (17)

In regards to modern networking technologies (like the Internet), he warns:

The same technologies of networked computers can be adopted in very different patterns. There is no guarantee that networked information technology will lead to the improvements in innovation, freedom, and justice that I suggest are possible. (18)

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts–drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day–struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism–liberty, opportunity, progress, and individualism–and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24–25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations–passed in the name of protecting the public’s speech–infringes on their freedom of speech.

(Interesting note: this move–discussed in Balkin’s 2004 article–is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

By Robert Horwitz

Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition. My own interest is in the revolutions in communications technologies that occurred with the spread of American post offices in the 18th century, the telegraph in the 19th, and the telephone–and then radio, TV, and cable–in the 20th. Horwitz writes:

Telecommunications constitutes one of the four essential modes or channels that permit trade and discourse among members of a society, the other three being transportation, energy utilities, and the system of currency exchange, or money. … These services are “connective” institutions. They are central to the circulation of capital and literally constitute both the foundation and the limit for the overall functioning of a society. This is why … they are called infrastructures.

In 1989, deregulation of industries overseen by agencies created during the New Deal was in full swing. The irony for Horwitz is that “deregulation has most strongly affected those regulatory agencies whose actions have been least odious to business.” Thus, agencies created later and earlier than the New Deal were largely unaffected.

History

Looking backwards, Horwitz says that the “emergency of regulatory agencies constituted the building of a national administrative structures in a state which had been institutionally localistic and court-centered.” He argues that in the 19th century, the courts provided the oversight of economic development that would eventually be taken over by modern administrative agencies. This changed in the 1890s, after laissez-faire economic principles had created “a general crisis of social control.” The era of big business necessitated an (eventual) government response.

Image via Wikipedia

The Progressive Era saw the first new regulatory bodies emerge, largely “in response to popular political activism.” This gave us what would become the Food and Drug Administration, the Justice Department’s antitrust division, and the Federal Trade Commission. New Deal agencies, on the other hand, were created to bring stability to specific markets, and was generally greeted with enthusiasm by businesses desperate for such stability. In the 1960s and 70s, the regulatory focus shifted to more general social protections, especially of citizens as a whole. This was the era of the Environmental Protection Agency and the Occupational Safety and Health Administration.

The New Regulatory Agencies of the 20th Century

Regulatory agencies of the 20th century are a new phenomenon. According to Horwitz,

Regulatory agencies constitute a new structure of federal political power in the American political system; they represent a mixture of legislative, executive, and judicial functions.

In the American system of separated powers, they are an odd delegation of Congressional power: legislatively created, administered by the executive branch, and often given quasi-judicial responsibilities to hear and decide cases (with judicial review, of course, the level of which has varied over time).

Image via Wikipedia

While industry regulation serves a certain level of private interest–especially in the creation of stability–much regulation involves what Horwitz calls the “public interest”: “something larger, something more general.” Although the 20th-century regulatory agency was a new beast in the United States, “the construction and maintenance of infrastructures usually have been the responsibility of governments” as far back as 13th-century England (in the Anglo-American tradition, at least–but remember that the Roman state built aqueducts and roads much earlier, for example).

In the United States, the Commerce Clause justified federal government intervention. Because this economically focused rationale underpins the American regulatory approach, Horwitz argues that, “[i]f there is a general concept of the public interest informing state intervention into infrastructure industries, it is a commerce-based concept.” Thus, in regulation transportation, “nondiscrimination” has been key. The goal? To ensure “[t]hat carriers would serve the needs of commerce rather than inhibit commerce.”

Image via Wikipedia

In telecommunications, the “common carrier principle is really little more than a commerce-based notion of the public interest.” It “guaranteed access to the means of transmission.” Granting individual people access was really just “a logical extension of expanding the marketplace.” But despite this limited original impetus, “common carrier law embraces principles broader than commerce” as it made the telephone “available (in principle) to all citizens.”

Liberty

Image via Wikipedia

Telecommunications, though, involves essential aspects of liberty, especially the ideals of “free speech” embodied in the First Amendment to the United States Constitution. Freedom of commerce does connect to freedom of speech is historically linked to the liberal (in the tradition of Locke and Mill) ideology of the free market. Thus, the ideology of free speech has for many years been to encourage the “marketplace of ideas.” The assumption, says Horwitz, is that “a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.”

But what happens when those “speech-entrepreneurs” are a few powerful corporations who demand significant money to utilize their infrastructure? The result can be that “those with wealth can disseminate their views, the First Amendment ‘right’ of most citizens is merely to listen and read. Yet a free marketplace of ideas implies dialogue.”

Image via Wikipedia

Today we have the Internet and the World Wide Web, which have the potential to turn everyone into contributors as well as consumers of information. Does this mean, then, that the natural form of these new mediums reduce of eliminate the necessity of their regulation? Or is regulation still needed to maintain a “free marketplace” of both ideas and commerce?

Deregulation

Deregulation can reduce the power of established cartels and allow for innovation and novelty: “It permits the resurgence of competition and the anarchistic play of market forces.”  This, though, is certainly not in the interest of established players–so why is modern deregulation so associated with big (entrenched) business?

Partly, says Horwitz, this is due to the divergence of “administrative rationality and economic rationality.” Regulatory agencies are conservative and bureaucratic by their nature, and the logic of rules be lost even as their enforcement continues. Irrationality–and the regulatory delay of agencies struggling to apply outdated rules to a complex environment–can lead to business uncertainty instead of stability. The burden on the regulated industries thus grows over time. This was made worse as the social goals of the 1960s and 70s created “new obligations, costs, and time delays.” The result? Deregulation won out in many–but not all!–contexts.

But really, each of these has choices is distinct, and in many cases their use-cases do not overlap. Carrier pigeons, for example, are really point-to-point messaging mechanisms, unless you have a flock–and they take time to breed, so they are a poor choice if you have need to keep people updated on a variety of different topics. And unlike the owls of Harry Potter, carrier pigeons go to places and not people–so tracking down your significant other in either Greece or Italy–why won’t they call?–is out. (You may, of course, find different ways to make these work for you–in the digital age, square pegs can be refactored to fit in round holes, after all.)

Image via Wikipedia

Facebook

Facebook is the ideal place for keeping in touch with real people I’ve really met, especially if I’m likely to lose track of them otherwise. It’s geographically diverse, lets me share enough to give people a sense they’ve got an idea what I’m up to, and (despite its best efforts otherwise) lets me otherwise stay private (with caveats). So who do I connect with on Facebook? Friends (of various levels) from high school, college, postgrad. Friends–not professional colleagues–from work. Tricky decisions of categorization abound, of course: is this colleague enough of a friend for me to connect with them on Facebook, or do they belong on LinkedIn only? Segregating people into groups with various privacy settings help, of course, as does not sharing things I don’t want the public to possibly see. Sure, this is friend-stuff, but nothing I put on Facebook would be too embarrassing, or cost me a job. Facebook has been pushing pages (AP, PBS, BBC, business generally) that share non-personal information, but I’m increasingly finding this a distraction from the reason I use Facebook: people.

Image via CrunchBase

LinkedIn

LinkedIn has been touted as the professional version of Facebook, but that’s only partly true. LinkedIn is not really about sharing day-to-day details about me, but rather about highlighting my accomplishments and work. But beyond that, it’s mostly a Rolodex of up-to-date business cards of people I’ve dealt with professionally. I will connect with any colleague (or one of my undergrads) on LinkedIn without hesitation, unlike on Facebook. In terms of privacy, well, the point is to be visible and findable professionally. So that’s what goes up there. No home addresses, no home telephone numbers, just business contact details.

Image via CrunchBase

Twitter

Twitter is for link sharing and quick conversations (very quick, and very short) with absolutely anyone I find remotely interesting. I don’t refollow anyone who follows me, only those I think are interesting. I share things I want to broadcast with the world (but am too polite to get a bullhorn). Sometimes it’s personal, sometimes professional, but always with the idea that anyone might read it. It’s great for more distant connections with people I may or may not ever meet, but who say and write about interesting things.

Image via CrunchBase

Google Plus

Google Plus is the new player, but it brings in some of the best of both Twitter and Facebook. Yes, I can put my actual friends in circles and easily limit what I share with just them (so that’s a bit like Facebook, but more focused). No, not everyone I know on Facebook is on Google Plus (and may never be). Google Plus also lets me follow people I’ve never met who say interesting things, like Twitter, but it emphasizes longer posts and more detailed, threaded conversations–without forcing me to dance with privacy settings as on Facebook, and without assuming these people are actually my friends (even if they could be). In many respects, I’m finding that it challenges quick-blogging services like Posterous and Tumblr more than Facebook or LinkedIn. It does seem a potential threat to Twitter, which I am finding myself more and more viewing as a social link sharing service as opposed to a discussion mechanism (but it’s GREAT for that).

Summary

So, here it is in short form:

Facebook: real people, real sharing of personal (but not too personal) information. If you actually know me in “real life,” friend me. If not, go elsewhere. I share semi-personal stuff here (what I had for dinner and who made it).

LinkedIn: real people doing real business networking. If I’ve met you in a professional capacity, connect with me. If not, well, tell me why we can do business! I share only professional info here.

Twitter: on the Internet, no one knows if you’re a dog, but we do care if you have something interesting to share. If you do, follow me and I might follow you back. If you don’t, follow me and I won’t follow you back. I share thoughts and links here.

Google Plus: real people (for now) sharing what they found interesting today, including articles, thoughts, stories, and photos. If you actually know me, I might add you to my Friends circle; if not, but you are interesting, you’ll make Following. Please give me commentary with your links!

Maybe next week I’ll explain how I use carrier pigeons.

Related articles

• Google+ will be squeezed out of social world, says LinkedIn CEO — Computerworld (mbcalyn.wordpress.com)
• It’s Google Plus vs. Twitter, Not Facebook (scalableintimacy.com)
• Different social networks for different purposes (inpropriapersona.com)

At least at the University of California, San Diego, the process involves tech transfer officers–6 for the life sciences, 3 for other kinds of technology, and 1 who does both–reviewing the research done at UCSD. They look for innovations that may be potentially turned into marketable intellectual property. According to Dr. Montisano, a life sciences tech transfer officer at UCSD, they do not “police faculty.” As a result, they sometimes do not learn of new technology until after publication, which immediately causes the loss of international patent rights, and puts U.S. patent rights on a 1-year timeline.

If they do manage to intercept the technology in time–either through researchers submitting it to them directly, or by discovering it after publication–they review the innovation, and may file a provisional patent application to preserve their rights (this allows publication). They then have a year to convert that to a full patent.

Once they have provisional protection in place, the office looks for a good licensee for the technology. They first put a description of the innovation on the UCSD web site, making it available to interested parties who may be seeking such technology. They also identify and actively target potential companies for licensing, focusing on those they know do work in the field and who may be interested in the technology.

The point, according to Dr. Montisano, is to get the technology out into the world through commercialization, not to make a fortune, and UCSD looks for licensees on this basis. Such a focus emphasizes the public nature of the university, and emphasizes the role of the tech transfer office as the buffer zone between private and public enterprise–they license innovations for money, but do so with a goal of benefitting the public.

Additionally, the distribution process also protects researchers from undue market influences. The university owns the invention, not the professor, or grad student, or research tech. 50% of the incoming money goes to the university as a whole, while the remaining 50% is split by the department between those who developed the invention and the department. Thus, even the incoming money is diluted and sifted, buffering the researchers themselves from direct contact with the commercial players.

More rules are in place when it comes to researchers profiting or being overly involved in the commercial enterprise while retaining their role at the university. A university researcher cannot be the executive of a licensee company nor a board member, but can sit on a scientific advisory board. Such a researcher can own shares in the company, though, suggesting at least one way for the market to more directly intrude on an individual academic. Nonetheless, to be full involved in directing a licensee, a researcher must leave the university and their post as an academic and fully enter the commercial world.

Finally, the office itself is insulated from the money involved. Although they bring in millions to the University of California, UCSD’s technology transfer office is funded entirely by the state. No funding comes through a percentage of license fees and no officer receives specific bonuses for signing deals. This emphasizes their focus on the public service of commercializing technology, rather than on their use as market-enablers.

Madey v. Duke

Even after Madey, many researchers continue to ignore patent protections, and continue their work as if they didn’t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.

Universities, now large licensors themselves of new technology thanks to Bayh-Dole and technology transfer offices, have turned to, in the language of Professor Robin Feldman, “open transfer” agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university and any other nonprofit they allow to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like open-source licensing does, to permit the continued free sharing and publishing in the academic community.

What do these clauses look like? In the case of the University of California, San Diego, Article 2.2 of the sample agreement for licensing captures this “open transfer” provision:

2.2 Reservation of Rights. UNIVERSITY reserves the right to:
(a) use the Invention, and Patent Rights for educational and research purposes;
(b) publish or otherwise disseminate any information about the Invention at any time; and
(c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.

Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits other nonprofit institutions to also use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken out of common law, university tech transfer offices have recreated through their own market-focused and neoliberal license agreements.

This approach suggests that, despite efforts to commercialize the “ivory tower,” there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.

There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are “in it for the science” and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year’s grace). Outside the university, industry values focus on profit first–even if many researchers have been taught to value the science by universities first.

Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA

Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.

The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, “legislators were concerned that for a variety of reasons, the government”–formerly the federal government owned the research it funded–“had proved ineffective as a shepherd of the inventions created with federal research dollars” (see Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: at the end of fiscal year 2009, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD’s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).

All the money suggests some obvious problems created by the “intrusion” of a neoliberal, market-focused approach into the “ivory tower” university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California’s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and–perhaps even more importantly–ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.

Related articles

• Technology Transfer and the Third Way (kfwhite.wordpress.com)
• Columbia University’s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses (xconomy.com)

In the old days, safes and locks kept client data secure. More recently, attorneys stored their data on local PCs and backed up to disk or tape, which is then stored under lock and key (preferably offsite).

Stealing data required physical access, Accessing data, though, could conceivably occur via legal means, including via subpoena and search warrant. The real protection from this was the existence of evidentiary privilege, which excluded legally protected materials regardless of how they were acquired.

Now on to Dropbox, Google, and so on. According to PC Magazine,

The updated terms specify that Dropbox will turn over data: to comply with the law; protect someone’s safety; prevent fraud or abuse on Dropbox; or protect Dropbox’s property rights. If Dropbox agrees to hand over data, the company will decrypt it before doing so. If you have encrypted it before storing it on Dropbox, though, it will remain encrypted.

…

Dropbox said it receives about one government request per month for its 25 million users. It also stressed that it doesn’t just hand over information when asked.

“Our legal team vets all of these requests before we take any action. The small number of requests we have received have all been targeted to specific individuals under criminal investigation,” Dropbox said in a blog post. “If we were to receive a government request that was too broad or didn’t comply with the law, we would stand up for our users and fight for their privacy rights.”

via Dropbox Defends Privacy, Law Enforcement Policies | News & Opinion | PCMag.com.

So what does this mean for lawyers storing client data? Well, if it’s protected under attorney-client privilege, it means that–as long as you trust Dropbox not to make a mistake–then such legal access is no more of a problem than with traditional files (and plenty of screw-ups occurred with traditional paper!). Trusting Dropbox is likely not much different from trusting any third party to store your data, paper or otherwise–and that’s pretty standard.

If, on the other hand, you are more concerned with non-privileged materials (trade secrets, perhaps, or other material that might be excluded at trial but still cause harm), then you likely should not trust your data to Dropbox or any other cloud-based or third-party solution of any kind. If you don’t want to go quite that far, try a system that fully encrypts your data first, before it goes across the wire and before it hits the remote server.

TrueCrypt then Dropbox meets these criteria, or a Dropbox-like service such as SpiderOak (which I use).

So the fact that Dropbox allows legal access to your data is not the end of the world for use of the cloud, even for lawyers. But for truly secure offsite storage, likely more secure than even old-fashioned paper storage, consider solutions that provide end-to-end encryption.

Related articles

• Dropbox Lied to Users about Data Security, Complaint to FTC Alleges (wired.com)
• Why Dropbox’s Privacy Policy Is OK (Just Proceed Carefully) (pcworld.com)

Image via CrunchBase

David Pogue writes about a new startup that’s trying to work around the limitations media companies have placed on movie providers like Netflix and Redbox:

At its California data center, Zediva has set up hundreds of DVD players. They’re automated, jukebox-style. You’re not just renting a movie; you’re actually taking control of the player that contains the movie you want. The DVD is simply sending you the audio and video signals, as if it were connected to your home with a really, really long cable.

via A Clever End Run Around the Movie-Streaming Gremlins — NYTimes.com.

Zediva seems pretty sure all this is OK under copyright law (“We’re confident that the law allows you to watch a DVD that you’ve rented,” said a company representative), but I thought I’d look a little deeper into the law. After all, the plan seems remarkably similar to an attempt by a hotel to do something similar for use of its guests. In On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787 (Dist. Court, ND California 1991), a federal court found that using a system of VCRs to play movies for guests violates copyright as a “public performance.” The hotel room itself is not a “public place,” but the transmission is to the public–and therefore infringing under 17 U.S.C. § 101.

On the other hand, in Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc., 866 F. 2d 278 (Court of Appeals, 9th Circuit 1989), the Court of Appeals held that renting videotapes in a hotel to guests to watch in their rooms is not a violation of copyright.

Similar to On Command, in Columbia Pictures Industries v. Redd Horne, 749 F. 2d 154 (Court of Appeals, 3rd Circuit 1984), the 3rd Circuit held that showing videotapes played on centrally located VCRs to patrons in private booths was a “public performance” because the booths were generally open to the public and was thus also infringing under 17 U.S.C. § 101.

Zediva’s system sends materials to private homes, not to a “public place.” This likely gets it out of the Redd Horne fact pattern. Nonetheless, Zediva does transmit to the public. Unfortunately, this does make it sound rather like On Command, so I would be very interested to hear details as to how Zediva’s situation is distinguishable, or why they should not fall under the same logic used in On Command.

Related articles

• Zediva’s Movie Rentals Are 50% Cheaper Than iTunes (techland.time.com)
• Crazy Zediva exploits copyright loophole to stream movies you can’t get online elsewhere (news.cnet.com)
• Is Zediva’s New-Release Movie Streaming Service Legal? (wired.com)