Civic Nerdom

(This is a response to a piece written by Edward Felten for Tech Policy. Check that out first, then read one.)

One technicality that Felten is overlooking is the user’s informed consent upon registration. When users sign up, they opt-in to the terms as offered by Facebook. Then Facebook, its third party partners, and FTC, all convince themselves that the user actually read and understood the offered terms, and knowingly consented to them. This is the basis of informed consent online, and despite everybody involved knowing that the ‘informed’ part is a farce, it is what makes Facebook’s claims of consent (tenuously) binding, while making users’ claims of consent a meme.

As an informed user who consented, you know about and consented to the clause that allows Facebook to change the terms of its agreement with you, and get automatic consent from you. Basically, because you read the terms (you did read them, right?), you consented not only to the terms and conditions as defined at the time you registered, but you also agreed to all future versions of the terms and conditions. At no point did Facebook agree to the same perpetual consent of terms and conditions as modified by you. Facebook never opted in on the clause ‘Our continued availability of our website, and hosting of your content, constitutes our acceptance of your amended terms.’ This is why the legal incarnation meme doesn’t work: Facebook isn’t bound to consent to changes defined by users to the terms and conditions in the same way that users are bound to consent to changes defined by Facebook.

OK, so that explains why a Facebook user can not simple change his/her agreement. Now lets look at the terms of use that Felten includes, courtesy of Cory Doctorow

READ CAREFULLY. By reading this post you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

The problem with this is there is no informed consent at all. In order to be informed of the terms as defined above, I have to read them. But by reading them, I consent. I can not be informed of the terms and decide not to consent. For all of the flack that Facebook takes about unilaterally defining its agreement with me, I at least had the option to decline after reading when I registered with Facebook.

All that said, I agree with the spirit of Felten’s post. The informed consent distinction is easily overlooked by people because websites and the FTC overlook the informing part everyday. It’s no wonder that Felten writes “any explanation as to why [legal incantations] should be unenforceable would tend to undermine Facebook’s own claims about its terms of use and related statements.” Everybody involved knows the consent system is built on looking the other way. If Facebook calls attention to that, the court, or policy makers, might finally call into question just how binding those terms and conditions truly are.

Besides, in a day and age in which operating agreements are no longer negotiated, why should corporations have all the fun of broadcasting legalese?

Earlier this week I got the chance to do a little Q & A with Minnesota’s version of TechCrunch, Tech.mn. Here’s an excerpt:

What excites you most about where technology is headed?

There is a growing movement, inside and outside of government, to use technology to serve civic needs. More government information is being digitized and opened up for coders to make useful apps that help citizens interact with their governments. From government’s point of view, more digital information means greater use of computing to plan and execute government actions. And while most of the major media hasn’t caught on yet, more available data means innovative and deeper reporting on important issues. Hopefully, that will someday turn into substantive public discussions about policies and public issues.

Check out the rest of my answers from Know this Nerd.

This morning I ran across a couple of articles – a piece on the electricity usage of data centers by James Glanz of the New York Times; and a thorough rebuttal by Guy-Who-Knows-His-Stuff Diego Doval. Together, the articles got me worked up enough to write a post for the first time in nine months.

Glanz’s article boils down to “data centers use a crazy amount of electricity,” and implies that “data centers are indifferent, inefficient users of electricity.” In response, Doval provides a step by step breakdown of nearly everything that is wrong in the NYT article. For a moment I want to use some rough math to reinforce one of Doval’s points – that Glanz’s accusation of the industry’s indifference to energy efficiency is flatly wrong.

Worldwide, data centers accounted for about 0.5% of electricity use in 2000. That percentage grew to roughly 1.3% in 2010. As worldwide electricity consumption also increased from 2000 to 2009 (sorry, couldn’t find 2010 numbers) by around 31%, we can calculate that absolute power usage by data centers worldwide grew in the neighborhood of 350% between 2000 and 2010. During that same period, the number of Internet users grew from 304 million to 1.97 billion. That is roughly a growth of 550% in users alone, and does not capture the significant per user growth in data transmission, storage, and processing that also occurred in that decade. In other words, 550% just starches the surface of growth in demand for computing, networking, and storage resources. But with 550% growth in demand as a floor, we can see the demand placed on worldwide computing resources has clearly grown faster than the energy consumption of those computing resources.

The above numbers represent something that is pretty well known: the computing industry has and continues to improve its energy efficiency. In fact, the computing and data center industries are relative utopias of energy efficiency compared to most other segments of the economy. What other segments have equipment turnover that is measured in months and consistently improves energy efficiency each generation? What other market segments have seen energy efficiency gains that roughly match demand growth? Compared to most other industries, computing and data storage are poster children for addressing energy efficiency.

What frustrates me about Glanz’s article is that such a highly visible article is so off the mark. If you want to focus public attention on an energy efficiency issue, why focus attention on an industry that is largely addressing it’s issue? How about an article on aging home appliances? Or aging automobiles? Or aging power plants?

Furthermore, the data center and computing industries are not perfect. Want to hold those industries accountable? How about an article on asinine patent wars? Or a continuing disregard for user privacy? Or a reliance on an ad based revenue model that may well collapse any day? Want to take those industries to task on environmental grounds? That high turnover I mentioned creates mountains of environmentally toxic e-waste every year. Why bend over backwards to frame an industry’s strength as a deficiency when there are so many actual deficiencies to highlight?

If you happened to visit my blog on the 18th you know that I participated in the SOPA/PIPA black out. I was firmly on the opposition side because those bills are are simply bad policy. They are vague, burdensome of distributors, cruel in punishment, and lack judicial oversight. In fact, had they passed, I’m sure the resulting law would have been struck down in a fairly quick court challenge of constitutionality.

As a 25 year old that is socialized to Internet culture, there are a few generational/cultural divides that I observed during the public debate on SOPA/PIPA. These divides have come up in the past, they will come up again, and understanding them will be key to developing online intellectual property policy:

1.) Remix vs Hollywood – The backlash to SOPA was so strong because, in part, a whole culture felt threatened by a powerful industry from a different culture. Internet culture, and by extension the culture of Millennials, lives and breathes on remixing existing IP as a form of expression. Thus, many saw this bill as an attack on their form of expression.

2.) Market of Ease – Netflix and iTunes have done more this decade to curtail piracy than law or the RIAA/MPAA because they developed a business model from the consumer perspective. They knew that consumers wanted and expected easy and cheap access to media in the Internet age, and have been wildly successful because they are selling this ease of access to consumers. What happens when the industry does not sell easy access but instead dictates obstacles that a consumer must overcome? The consumer becomes a customer of pirates, because the ease of access offering of pirates is superior to anything else on the market. In the wake of the MegaUpload takedown it has been astonishing to see how many people outside of the US relied on pirating sites for access to American media because, in many international markets, there is no other provider of easy access to media.

The final section of The Friendly Guide to Regulating the Internet has been added:

It’s very difficult to say whether interfering with the sovereignty of other nations is good or bad, as it depends a lot on the situation at hand and your own view of the situation. One thing is certain however, some regulations of this global network of ours involve international diplomacy, which can make the creation or implementation of laws way, way, way more difficult.

Read the introduction to online national sovereignty at FriendlyToS.

Another addition to The Friendly Guide to Regulating the Internet

This is intellectual property in a nutshell: IP hurts, but we need it. It encourages the creation of speech by limiting the creation of speech. IP is a confusing concept that is sometimes great, sometimes dangerous, sometimes unnecessary, and thanks to the Internet, a part of your everyday life.

The Friendly Guide to Regulating the Internet: Copyright as Incentive for Content Creation

Just put up part 4 of The Friendly Guide to Regulating the Internet.

If you’ve ever uploaded a home video to YouTube then you know the difference between a distributor of content and a creator of content. YouTube did not create the video you uploaded, you did. What YouTube did was distribute the content you created – it provided the tools and infrastructure that allow others to watch your video. And while YouTube didn’t make your video, if your video ended up getting millions of hits, you know your Internet fame would not exist without YouTube’s distribution.

Read the full post at FriendlyToS.

A few weeks ago IBM released its 5 in 5 predictions – five technology trends that the company’s top scientists and executives predict will transform our lives within five years. Below is the video for prediction number 4 by Paul Bloom: The digital divide will cease to exist.

Being a tech and policy nerd, this one caught my attention. What is interesting about this prediction is the list of obstacles left out. Bloom is right to predict that the technology will exist in five years to eliminate the digital divide and do all sorts of cool things. That’s because the technology already exists.

Mr. Bloom fails to discuss what will change about the other obstacles of the digital divide – economics, politics, education – and how those changes will lead to increased access and use of Internet technology. These obstacles are very difficult. They involve competing demands for limited resources, tumultuous histories, complicated interests, and resource intensive practices. Technical innovation can help in addressing these obstacles. But in the end these obstacles are the result of human systems, not technical ignorance.

I am happy to see IBM involved in the digital divide discussion. The discussion needs technical leaders to supply technology, reduce costs, and customize products to varying cultures. However, the digital divide is about a lot more than just the technical difficulties of mobile Internet access. I hope IBM can learn from the mistakes of the One Laptop Per Child project and recognize that technological determinism is not a sound approach to solving the divide.

Part three of The Friendly Guide to Internet Regulation is out.

The power to remove the speech of others is dangerous. Even when used with good intentions, removing the speech of others can end important arguments and innovations. For this reason, speech regulations usually allow a person to challenge the removal of his or her speech. Speech regulations that do not allow challenges are generally considered bad policy, and either do not become law, or do not survive the scrutiny of the courts.

Find the full post at FriendlyToS.