Don't you love a good argument?
Why The 'Third Party Doctrine' Undermines Online Privacy Protections
from the fourth-amendment dept
There's been an interesting discussion going on between my colleague Jim Harper and legal scholar Orrin Kerr about the third party doctrine, the legal principle that, in effect, you lose your Fourth Amendment rights when you relinquish information to a third party. The doctrine has become increasingly important with the rise of modern technology because we now entrust a host of private data -- including our email, cell phone calling data, credit card transactions, and more -- to private companies, and the third party doctrine would seem to suggest that Fourth Amendment protections would not extend to such information. A couple of weeks ago, Kerr posted a draft paper defending the doctrine, arguing that it brings clarity and simplicity to privacy law and avoids the need for "a complex framework of sui generis rules." Jim strongly disagrees with Kerr, arguing that the third party doctrine was always misguided and that recent technological changes have simply made these flaws more evident.
Jim points out that when the Fourth Amendment was drafted, the vast majority of peoples' private activities occurred inside the home, and so it made sense to make the home focus of Fourth Amendment protections. But as people began conducting more and more of their lives outside of the home, with telephones, email, credit cards, and so forth, using the four walls of the home as the boundary for Fourth Amendment protection made less and less sense. And indeed, that's precisely what the Supreme Court recognized in the famous 1967 case of Katz v. United States, which held that the Fourth Amendment applied to wiretapping of public pay phones because the Fourth Amendment protects "people, not places." The same principle ought to apply to our emails, credit card transactions, and other data of a private nature: what matters is not where the data is located or who has custody over it, but whether the subject of surveillance had a reasonable expectation of privacy in his use of that data.
Kerr responded that "the real judges and Justices that make the rules" have recently shown greater sympathy for Kerr's view of the Fourth Amendment as a narrow doctrine of criminal procedure rather than a broad charter for protecting peoples' privacy. I agree with Jim that this isn't really responsive to his argument. Whether judges currently do see things Kerr's way tells us little about whether they ought to view them that way. Judges have gotten the Fourth Amendment wrong in the past. After all, Katz overruled Olmstead v. United States, a decision that had allowed warrantless wiretapping almost four decades earlier. So the fact that the courts have not yet extended Fourth Amendment protections to email or other digital records doesn't prove that a future court won't recognize that such information is as crucial to personal privacy as paper records and phone calls. Sticking with the third party doctrine would make the Fourth Amendment less and less relevant as technology changes because more and more private information to be held by third parties. If we want the Fourth Amendment to continue to be an effective protection for peoples' privacy, and I think we do, it needs to be continuously updated to reflect changing technological realities.
Another “Some courts get it wrong” brief
Law Profs File Friend-of-Court Brief Against RIAA
Posted by Soulskill on Saturday June 21, @08:19AM from the dissenting-opinions dept. Media The Courts
"A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor."
As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances." [Huh? Bob]
Interesting question more businesses should be asking, with some useful answers. For my Business Continuation class
Best Way To Store Digital Video For 20 Years
Posted by kdawson on Friday June 20, @03:57PM from the thanks-for-the-memories dept. Data Storage
An anonymous reader writes
"My kid is now 1 year old and I already have 100G of digital video (stored on DVDs, DVD quality) and photos. How should I store it so that it's still readable 10 to 20 years from now? Will DVDs stil be around, and readable, 10 years from now? Should I plan for technology changes every 5 to 10 years (DVD->Blue-ray->whatever)? Is optical storage better, or should I try to use hard drives (making technology changes automatic)? And, if the answer is optical, how do you store optical disks so that they last?"
Interesting idea: let an independent group evaluate your product. How long before pay is based on this type of review?
Forbes has launched a Digg channel, and Digg widgets
forbes.com — Forbes.com has integrated with Digg to showcase the most dugg and most recently dugg Forbes.com stories, slide shows and videos.
Perhaps using the Kindle to replace textbooks isn't the ultimate in new education technology?
N.M. school tries to reach students via podcast
By FELICIA FONSECA Associated Press Writer Jun 21, 7:12 AM EDT
... This past semester, nearly every one of the roughly 100 students at Fort Sumner High School was outfitted with the Microsoft media player, similar to Apple's iPod, enabling them to watch videos and listen to recorded lectures created or recommended by teachers and fellow students.
... Teachers got a $400 bonus for coming up with lessons to identify 20 downloadable digital lectures that supported their lessons and to develop five of their own.
Economics in action
U.S. motorists brave Mexico border violence for fuel
reuters.com — By Lizbeth Diaz TIJUANA, Mexico (Reuters) - U.S. motorists are risking rampant drug violence in Mexico to drive over the border and fill their tanks with cheap Mexican fuel, some even coming to blows over gas shortages and long queues.
Business opportunity: A small investment in an e-commerce site could yield big bucks!
Less Well Known Musicians Embracing 'Pay What You Want'
from the small-musicians,-big-musicians-alike dept
It still amuses me how often when we talk about specific music business models, defenders of the old system rush in to explain why any particular example is an exception. For years, we showed examples of less well known musicians embracing these kinds of new business models, critics would complain that they might work for unknown musicians who have "nothing to lose" and need attention more than anything else, but it would never ever work for a big star who has too much to lose. Then, of course, we talked about big time musicians like Radiohead and Nine Inch Nails embracing these kinds of models, and the critics said "well, sure, it works for them with their well recognized name, but it would never work for unknown artists." Hell, someone said that just yesterday in response to a post here, leading another commenter to jokingly (I hope) coin the phrase "Masnick's Law", which is loosely defined as
"in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that 'it only worked for them because they are big/small and it will never work for someone who is the opposite,' no matter how much evidence to the contrary might be readily available."
I might expand on that definition a bit to have it go beyond just big/small. People will keep looking for excuses why each example is an exception, (big/small just being an easy such reason) to the point that they'll eventually miss the fact that all of those exceptions are the rule.
Anyway, based on all of this, it will be interesting to see how Girl Talk's new album does. Girl Talk is a one man DJ once mentioned (positively) in Congress as an example of why traditional copyright laws might not make sense anymore. With the release of his latest album, he's decided to use a Radiohead-style model, with a few improvements. That is, rather than just a pure "give it away and pray," he's giving people an additional reason to buy -- though I think he could still put together a better model. His is set up so you can pay what you want (including nothing at all) and get 320 kbps MP3 files, but if you pay over $5, he offers FLAC files as well, and at $10 you'll also get a copy of the physical CD when it comes out. If you pay $0, he does ask that you fill out a little survey explaining why. There still are some problems with this model (it's still a little too much like a give it away and pray model), but overall, it's quite similar to Radiohead's experiment.
Now, of course, all the folks who insisted that Radiohead's model would never work for a relatively obscure musician are supposed to now insist that this model won't work at all for Girl Talk, right? But what happens if Girl Talk is actually happy with the results, whether in direct payment amounts or in the fact that it gets him more publicity? Will they finally admit that the model isn't just an exception?
I like lists. I like RSS Feeds. How could I not like this?
What RSS Feeds Do You Use?
Posted by Soulskill on Saturday June 21, @05:14AM from the attention-deficit dept. The Internet
"I'm looking to broaden my horizons in terms of news, industry information, and generally good-to-know stuff. I've found a lot of great blogs and websites over the years, but I'm wondering what Slashdotters read regularly? What's in your RSS feeds?"
We discussed this back in 2004, but the list of quality feeds has grown quite a bit in the past four years. Try to include at least a minimal description, so we know if we'll be looking at NASA news or up-to-the-minute cowboy boot fashion trends.
I'll save this for my web site class, but no doubt something like it will resurface whenever an organization and its employees are in conflict.
June 20, 2008 6:08 PM PDT
Let the fun begin: Yahoo auto resignation tool
In true Internet-foolery fashion, someone is having a little fun at Yahoo's expense following its latest executive exodus.
By visiting the newly created site Yahoorezinr.com, current Yahoo employees can expedite their resignation to Yahoo Chief Jerry Yang with a host of Mad Libs-style pull-down menus.
Another for the web site class
QuikMaps.com - Draw On Top of Google Maps
Google Maps are pretty fab and all, but haven’t you ever wished there were more color, more flash and more leeway to add doodles? The maps are primed for it and now, with QuickMaps, you can draw to your heart’s content on top of G-map of your choice (the Earth, stars, moon and Mars). You can add markers (and captions) and once you’ve complete your work, the map with all your added extras can be saved in your account. You’ll also be able to add your map to any website or blog and share it with pals. Each map may be accompanied by your own description and title; you can also import elements from another Quikmap, or from a KML or GPX file from the web or your computer.