Internet

While 86% of Americans Oppose Behavioral Targeting of Voters, Campaigns Embrace It

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

Thumbnail-Bobbi-Leal-ii.jpgWith the dramatic 2012 Presidential election behind us, new information about the campaign funds are being released. A recent Huffington Post article outlining the campaign funds allotted toward the mining and analysis of internet data about potential voters. President Obama and Mitt Romney’s campaigns spent a combined total of $13 million dollars on this controversial practice.

The Minnesota Journal of Law Science and Technology’s recent publication, “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” points out that campaigns utilize data mining as a way to more effectively target voters. The mined data includes information gleaned or purchased from both public and private sources. To make use of the internet’s information on the individual, the campaigns use algorithms that match the attitudes of voters on specific issues with individual behaviors and tendencies. The individual behaviors they might look at include where you shop, which team you root for, which petitions you sign, who your friends are, and even what mobile device you use.

With a continued decrease in the number of undecided voters, the practice of using digital data to target particular individuals is an effective one. Further, online targeting can reach voters who would normally have no access to traditional campaigning, such as those in remote counties.

A study by the University of Pennsylvania Annenberg School of Communications revealed that a large majority of Americans (86%) are against behavioral targeting and tailored advertising for political or other purposes. However, privacy practices in the political context are not regulated like in the commercial sector due to protections afforded by political speech.


Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

by Ian Birrell

Thumbnail-Ian-Birrell.jpgSince at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.


Growth of Social Media Outpaces Traditional Evidence Rules

by Sabrina Ly

Thumbnail-Sabrina-Ly.jpg Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.


Censorship Remains Viable in China– but for How Long?

by Greg Singer, UMN Law Student, MJLST Managing Editor

Thumbnail-Greg-Singer.jpgIn the west, perhaps no right is held in higher regard than the freedom of speech. It is almost universally agreed that a person has the inherent right to speak their mind as he or she pleases, without fear of censorship or reprisal by the state. Yet for the more than 1.3 billion currently residing in what is one of the oldest civilizations on the planet, such a concept is either unknown or wholly unreflective of the reality they live in.

Despite the exploding amount of internet users in China (from 200 million users in 2007 to over 530 million by the end of the first half of 2012, more than the entire population of North America), the Chinese Government has remained implausibly effective at banishing almost all traces of dissenting thought from the wires. A recent New York Times article detailing the fabulous wealth of the Chinese Premier Wen Jiabao and his family members (at least $2.7 billion) resulted in the almost immediate censorship of the newspaper’s English and Chinese web presence in China. Not stopping there, the censorship apparatus went on to scrub almost all links, reproductions, or blog posts based on the article, leaving little trace of its existence to the average Chinese citizen. Earlier this year, the Bloomberg News suffered a similar fate, as it too published an unacceptable report regarding the unusual wealth of Xi Jinping, the Chinese Vice President and expected successor of current President, Hu Jintao.

In “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China,” published in the Winter 2012 version of the Minnesota Journal of Law, Science & Technology, Jyh-An Lee and Ching-Yi Liu explain that it is not mere tenacity that permits such effective censorship–the structure of the Chinese internet itself has been designed to allow the centralized authority to control and filter the flow of all communications over the network. Even despite the decentralizing face of content creation on the web, it appears as though censorship will remain technically possible in China for the foreseeable future.

Yet still, technical capability is not synonymous with political permissibility. A powerful middle class is emerging in the country, with particular strength in the large urban areas, where ideas and sentiments are prone to spread quickly, even in the face of government censorship. At the same time, GDP growth is steadily declining from its tremendous peak in the mid-2000s. These two factors may combine to produce a population that has the time, education, and wherewithal to challenge a status quo that will perhaps look somewhat less like marvelous prosperity in the coming years. If China wishes to enter the developed world as a peer to the west (with an economy based on skilled and educated individuals, rather than mass labor), addressing its ongoing civil rights issues seems like an almost unavoidable prerequisite.


Political Data-Mining and Election 2012

by Chris Evans, UMN Law Student, MJLST Managing Editor

Thumbnail-Chris-Evans.jpgIn “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” I wrote about the compilation and aggregation of voter data by political campaigns and how data-mining can upset the balance of power between voters and politicians. The Democratic and Republican data operations have evolved rapidly and quietly since my Note went to press, so I’d like to point out a couple of recent articles on data-mining in the 2012 campaign.

In August, the AP ran this exclusive: “Romney uses secretive data-mining.” Romney has hired an analytics firm, Buxton Co., to help his fundraising by identifying untapped wealthy donors. The AP reports:

“The effort by Romney appears to be the first example of a political campaign using such extensive data analysis. President Barack Obama’s re-election campaign has long been known as data-savvy, but Romney’s project appears to take a page from the Fortune 500 business world and dig deeper into available consumer data.”

I’m not sure it’s true Buxton is digging any deeper than the Democrats’ Catalist or Obama’s fundraising operation. Campaigns from both parties have been scouring consumer data for years. As for labeling Romney’s operation “secretive,” the Obama campaign wouldn’t even comment on its fundraising practices for the article, which strikes me as equally if not more secretive. Political data-mining has always been nonpartisanly covert; that’s part of the problem. When voters don’t know they’re being monitored by campaigns, they are at a disadvantage to candidates. (And when they do know they’re being monitored, they may alter their behavior.) This is why I argued in my Note for greater transparency of data-mining practices by candidates.

A more positive spin on political data-mining appeared last week, also by way of the AP: “Voter registration drives using data mining to target their efforts, avoid restrictive laws.” Better, cheaper technology and Republican efforts to restrict voting around the country are inducing interest groups to change how they register voters, swapping their clipboards for motherboards. This is the bright side of political data-mining: being able to identify non-voters, speak to them on the issues they care about, and bring them into the political process.

The amount of personal voter data available to campaigns this fall is remarkable, and the ways data-miners aggregate and sort that data is fascinating. Individuals ought to be let in on the process, though, so they know what candidates and groups are collecting what type of personal information, and so they can opt out of the data-mining.


Obama, Romney probably know what you read, where you shop, and what you buy. Is that a problem?

by Bryan Dooley, UMN Law Student, MJLST Staff

Thumbnail-Bryan-Dooley.jpgMost voters who use the internet frequently are probably aware of “tracking cookies,” used to monitor online activity and target ads and other materials specifically to individual users. Many may not be aware, however, of the increasing sophistication of such measures and the increasing extent of their use, in combination with other “data-mining” techniques, in the political arena. In “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” published in the Spring 2012 volume of the Minnesota Journal of Law, Science, & Technology, Chris Evans discusses the practice and its implications for personal privacy and voter autonomy.

Both parties rely extensively on data-mining to identify potentially sympathetic voters and target them, often with messages tailored carefully to the political leanings suggested by detailed individual profiles. Technological developments and the widespread commercial collection of consumer data, of which politicians readily avail themselves, allow political operatives to develop (and retain for future campaigns, and share) personal voter profiles with a broad swath of information about online and market activity.

As Evans discusses, this allows campaigns to allocate their resources more efficiently, and likely increases voter turnout by actively engaging those receptive to a certain message. It also has the potential to chill online discourse and violate the anonymity of the voting booth, a central underpinning of modern American democracy. Evans ultimately argues that existing law fails to adequately address the privacy issues stemming from political data-mining. He suggests additional protections are necessary: First, campaigns should be required to disclose information contained in voter profiles upon request. Second, voters should be given an option to be excluded from such profiling altogether.


Censorship, Technology, and Bo Xilai

by Jeremy So, UMN Law Student, MJLST Managing Editor

Thumbnail-Jeremy-So.jpgAs China’s Communist party prepares for its once-a-decade leadership transition, the news has instead been dominated by the fall from power of Bo Xilai, the former head of the Chongching Communist Party and formerly one of the party’s potential leaders. While such a fall itself is unusual, the dialogue surrounding Bo’s fall is also remarkable–Chinese commentators have been able to express their views while facing only light censorship.

This freedom is remarkable because of the Chinese government’s potential control over the internet, which was recently outlined by Jyh-An Lee and Ching-Yi Liu in “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China” recently published in the Minnesota Journal of Law, Science & Technology. Lee and Liu explain how early on in the internet’s development, the Chinese government decided to limit a user’s ability to access non-approved resources. By implementing a centralized architecture, the government has been able to implement strict content filtering controls. In conjunction with traditional censorship, the Chinese government has an unprecedented amount of control over what can be viewed online.

Lee and Liu argue that these technological barriers rise to the level of de facto law. Within this framework, the Chinese government’s history of censorship indicates that there are rules against criticizing the party, its leaders, or its actions.

Chinese internet reactions to the Bo Xilai case are notable because thy have included criticism of all three. Posts expressing differing opinions, including those criticizing the government’s reaction and those supporting the disgraced leader, have not been taken down. Such posts have remained online even while commentary on China’s next leader, Xi Jinping, has been quickly taken down. Given the Chinese government’s potential control and past use of those controls, the spread of such dissent must be intentional.

Whether this is part of a broader movement towards more openness, a calculated response by the party, or a failure of Chinese censorship technology remains to be seen. Regardless, the changing nature of the internet and technology will force the Chinese government to adapt.


Digital Privacy: Who is Tracking you online?

by Eric Friske, UMN Law Student, MJLST Managing Editor

Thumbnail-Eric-Friske.jpgFrom one mouse click to the next, internet users knowingly and unknowingly leave a vast array of online data points that reveal something about those users’ identities and preferences. These digital footprints are collected and exploited by websites, advertisers, researchers, and other parties for a multitude of commercial and non-commercial purposes. Despite growing awareness by users that their online activities do not simply evaporate into the ether, many people are unaware of the extent to which their actions may be visible, collected, or used without their knowledge.

Scholars Omer Tene and Jules Polontensky, in their article “To Track or ‘Do Not Tract’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” discusses the various online tracking technologies that have been used by industries to document and analyze these digital footprints, and argue that policymakers should be addressing the underlying value question regarding the benefits of online data usage and its inherent privacy costs.

With each new technological advance that seeks to make us more connected with the world around us, our daily lives and our online presence have become increasingly intertwined. Ordinary users have become more aware that their online activities lacks the anonymity that they once thought existed. However, despite this awareness, many users may not know what personal information is available online, how it got there, or how to prevent it. Moreover, some tracking services are undertaking efforts to prevent users from evading them, even when those users intentionally attempt to keep their online activities private.

Corporations have begun to recognize the importance of providing consumers with the opportunity to choose what information they wish to share while on the internet. For example, last May, Microsoft announced that Internet Explorer 10 will have a “Do Not Track” flag on by default, stating that it believes “consumers should have more control over how information about their online behavior is tracked, shared and used.” Not unexpectedly, the Interactive Advertising Bureau, a global non-profit trade association for the online advertising industry, denounced Microsoft’s move as “a step backwards in consumer choice;” although, some have argued that these pervasive tracking practices are actually robbing individuals of free choice. It should perhaps be noted that the popular internet browser Firefox already possesses a Do Not Track feature, though it is not engage by default, and Google has stated that it will include Do Not Track support for Chrome by the end of the year.

Regardless, while academic and political discussions on how to address these concerns continue to simmer, internet users who desire privacy must learn how to protect themselves in an online environment replete with corporations that are relentlessly trying scavenge every morsel of information they leave behind, something which may not be an easy task when tracking is so prevalent.


Don’t Track Me! – Okay Maybe Just a Little

by Mike Borchardt, UMN Law Student, MJLST Managing Editor

Thumbnail-Michael-Borchardt.jpgRecent announcements from Microsoft have helped to underscore the current conflict between internet privacy advocates and businesses which rely on online tracking and advertising to generate revenues. Microsoft recently announced that “Do Not Track” settings will be enabled by default in the next version of their web browser, Internet Explorer 10 (IE 10).

As explained by Omer Tene and Jules Polonetsky in their article in the Minnesota Journal of Law, Science & Technology 13.1, “To Track or ‘Do not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” the amount and type of data web services and advertisers collect on users has developed as quickly as the internet itself. (For an excellent overview of various technologies used to track online behavior, and the variety of information they can obtain, see section II of their article). The success and ability of online services to supply their products free to users is heavily dependent on this data tracking and the advertising revenue it generates. Though many online services are dependent on this data collection in order to generate revenue, users and privacy advocates are suspicious about the amount of data being collected, how it is being used, and who has access.

And it is in response to this growing environment of unease concerning the amount and types of user data being collected that Microsoft has added these new Do Not Track features (All other major browsers are set to include do not track settings, with Google’s Chrome the last to announce them. These settings, however, will likely not be enabled by default. This, however, may not be the boon for user privacy that some have been hoping for. Do Not Track is a voluntary standard developed by the web industry; it relies on browser headings to tell advertisers not to track users (for a more in depth description of how this technology works, see pgs. 325-26 of Tene and Polonetsky’s article). This is where the problem arises-websites can ignore browser headings and track users anyway. Part of the Do Not Track standard developed by the industry is that users must opt in to Do Not Track-it cannot be enabled by default. In response to Microsoft’s default Do Not Track settings, Apache (the most common webserver application), has been updated to ignore do not track setting from IE 10 users. With one side claiming that “Microsoft deliberately violate[d] the standard,” and the other claiming that the industry is ignoring privacy for profit, the conflict over user data collection seems poised to continue.

A variety of alternatives to the industry implemented Do Not Track settings have been proposed. As the conflict continues, one of the most commonly proposed solutions is legislation. Privacy advocates and web companies, however, have very different views about what Do Not Track legislation should cover. (For differing viewpoints see “‘Do Not Track’ Internet spat risks legislative crackdown). Tene and Polonetsky argue that a value judgment must be made, that policymakers must evaluate whether the “information-for-value business model currently prevailing online” is socially acceptable or “a perverse monetization of users’ fundamental rights,” and create Do Not Track standards accordingly. Unfortunately, this choice between the generally free-to-use websites and web services users have come to expect on one hand, and personal privacy on the other, does not seem like much of a choice at all.

There are, however, alternatives to the standard Do Not Track proposals. One of the best is allowing the collection of user data to continue, but to legally limit the ways in which that data could be used. Tene and Polonetsky recommend a variety of policies that could be enacted which could help to assuage users’ privacy concerns, while allowing web services to continue generating targeted advertising revenue. Some of their proposals include limiting user data use to advertising and fraud prevention, preventing the use of data collected from children, anonymizing data as much as possible, limiting the retention of user data, limiting transmission of data to third parties, and clearly explaining to users what data is being collected about them and how it is being used. Many of these options have been proposed before, but used in conjunction they could provide an acceptable alternative to the strict Do Not Track approach proposed by privacy advocates, while still allowing the free-to-use, advertising-based web to thrive.


Mashing up Copyright Infringment with the Beastie Boys and Ghostface Killah

by Eric Maloney, UMN Law Student, MJLST Staff

Thumbnail-Eric-Maloney.jpgApparently, Bridgeport Music has never seen the episode of Chappelle’s Show declaring that “Wu-Tang Clan ain’t nothing to [mess] with.” The record label has decided to sue the group, specifically artists Raekwon, Ghostface Killah, Method Man, and producer RZA, for reportedly using a sample of a 1970’s recording originally by the Magictones on a 2009 Raekwon album track. The portion of the recording allegedly utilized in production of the song was sped up to change the sample’s key from E minor to F# minor, and constituted four measures of the original tune. The sample was only ten seconds long.

Wu-Tang Clan isn’t the only group currently under scrutiny for their use of sampling. The Beastie Boys are also facing an infringement suit, due to allegedly sampling two songs by a group called Trouble Funk in four of their tracks from the late 1980’s. This suit is different in at least one respect from the Bridgeport matter: the record company, Tuf America, will have to show not only infringement, but also explain why the suit shouldn’t be barred by the statute of limitations after over 20 years have passed since the Beasties released these songs.

These lawsuits are hardly novel; hip-hop and electronica artists have been subject to infringement liability for years now due to the rise in their use of digital sampling methods. The Beastie Boys especially have been repeatedly sued for using unauthorized samples. (See, e.g. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). For a great summary of the history of sampling in music production and court cases regarding infringement, see Professor Tracy Reilly’s article Good Fences Make Good Neighboring Rights in the Winter 2012 issue of the Minnesota Journal of Law, Science & Technology.

As Professor Reilly indicates in her article, the latest federal appeals court to directly address this issue has taken a hard-line stance: appropriation of any part of a sound recording is a physical taking, no matter how minute the sample may be. That case, Bridgeport Music v. Dimnesion Films, featured the same plaintiff record company that is now suing Wu-Tang Clan. The Sixth Circuit Court of Appeals in this instance held that there is no type of de minimis protection for use of small samples; instead, any unauthorized, direct sample of a protected recording subsequently used by an artist constitutes infringement.

The risk that courts run in following such a bright-line doctrine is that they may be a bit behind trends in culture and technology in dealing so harshly with those who choose to sample copyrighted works. So-called “mash-up” artists, such as Greg Gillis of Girl Talk, make a living through exclusively sampling copyrighted works and then distributing them for free under the penumbra of “fair use.” His sampling is both notorious and fairly obvious; there are websites dedicated to tracking which samples he chooses to use in his productions. Gillis is still able to make a living by touring and selling merchandise, while also speaking out against current copyright infringement standards.

As digital sampling techniques continue to improve and the demand for “mash-up” artists grows, the Bridgeport ruling will start to look dated in the face of the reality of modern-day music production. This is especially true in the case against the Wu-Tang Clan, where it appears somewhat absurd to condition liability on such a small amount of sampled music. For now, though, artists will need to stay on their toes and be sure to license any samples, no matter how minimal, or face the consequences. This doctrine may stifle creativity for the time being, but perhaps all this legal wrangling will give artists emotional fodder for future compositions. Either way, it’s becoming clearer as more of these suits are brought that greater clarity on the issue is needed, either from Congress or the courts. A better balance between encouraging creativity and protecting copyrights than what is given to us by Bridgeport can hopefully be found as this area of law continues to evolve.