Chris Marsden, Oxford Internet Science JRA1 official workshop, 16 September 2014

1. Chris Marsden,
Oxford
16 September 2014

2. Much updated from my book
with Oxford’s Ian Brown: (2013)
Regulating Code, MIT Press
Brown (2012) Privacy attitudes,
incentives and behaviours
https://www.slideshare.net/blogzilla
/privacy-attitudes-incentives-and-behaviours"

3. Did privacy not exist in primitive villages?
Is privacy a feature of shame?
Is the walled garden the physical
manifestation of privacy?
Is privacy an Oriental construct based on
patriarchy?

5. Not least through
its inverse: the
Panopticon
Bentham claimed
privacy was
surrendered by
illegality

6. Every American law student learns Lord
Camden in the first week:
‘there is no law in this country to justify the
[police] in what they have done;
if there was, it would destroy all the comforts of
society, for papers are often the dearest
property any man can have.’

7. Benjamin Franklin colonial Postmaster General
Leaked letters by Massachusetts Lt. Governor
Thomas Hutchinson
to Thomas Whatley, Prime Minister’s assistant:
“For colonists to enjoy the same rights as
English subjects, an abridgement of what are
called English liberties might be temporarily
necessary.”
Franklin dismissed & censured by Solicitor
General
And never heard of again….?

14. “The shift from sailing ships to
telegraph was far more radical than
that from telephone to email”
- Noam Chomsky
“The American father is never seen in
London. He passes his life entirely in
Wall Street and communicates with his
family once a month by means of a
telegram in cipher” – Oscar Wilde

15. We used to call our undergrads
the ‘Napster generation’
36,000,000 broadband in 2000
Precursor to
YouTube/Facebook/
MySpace/Torrent label

16. Born c.1980-2000
Grew up with Internet (in the US at least) and
computer games
Entire university and adult life as
email/IM/Twitter/Skype users
Pew Research Center March 2014:
"Millennials in adulthood" are "detached from
institutions and networked with friends“
Confirms findings of Wellman (2012) Networked

18. . Until this situation has changed, this 29th
state must be our number one concern”

19. Andrus Ansip (58), Oettinger (61), Vestager (46)
Estonia, Germany, Denmark
New Schleswig-Holstein question?
Note the answer of Lord Palmerston to the last?
Only 3 people know the answer….
None with much previous Internet knowledge
Vestager probably knows most about Internet policy
http://www.nytimes.com/2014/09/11/business/international/eu-antitrust-
enforcer-will-be-margrethe-vestager.html?_r=0
Ansip hopefully picked up a lot through Skype etc.
Oettinger anti-Google, pro-BigTelcos:
http://www.ft.com/cms/s/0/a97527e2-3903-11e4-9cce-
00144feabdc0.html?hpt=ibu_bn4&siteedition=uk#axzz3DNFAFKza

20. Presented at 26th Human Behaviour and
the Evolution of Society conference
Workshop on Internet and Evolution of
Society
Prof. Chris Marsden
University of Sussex School of Law

21. European key policy concept for Internet users:
Producer + consumer + citizen
Rights to use and protect their data
Rights to fair information, goods, services
EU Code of Online Rights (2012)
Directive on Consumer Rights 2011/83/EU
http://eur-lex.europa.eu/legal-content/
EN/TXT/PDF/?uri=CELEX:32011L0083&rid=1
Rights to privacy, property, freedom of speech
Charter of Fundamental Rights (2009)
Towards prosumer law?

22. Not a new phenomenon
Pen friending via email from 1980s (+ spam)
MUDs playing online games 1990
Rise of GeoCities and blogging late 1990s
World of Warcraft + MMORPGs 2000
Web2.0 rise of MySpace, SecondLife, Orkut
Broadband: Facebook, Skype, Twitter, Google+
See work of Barry Wellman from 1980s
But what is different –
Ubiquity, big money, wider public policy interest
Obama the Facebook President
Twitterati?

27. Facebook (FBK) a billion users
Baidu 800,000,000
Skype 600,000,000
Google 2,000,000,000
Mergers:
FBK-Instagram
FBK-WhatsApp
MSFT-Skype
Google-many

29. Avoid AOL, News Corp, Microsoft, Yahoo! decline
Tricky task –buying emerging market leaders
‘Curse of AOL’ – eWorld, Netscape, Bebo
Yahoo! – GeoCities, Flickr
News Corp – MySpace
Microsoft – Hotmail, cable firms
FBK – Instagram, WhatsApp, 3rd party games
Teenage reaction: “I used those apps because they
weren’t Stalkbook!” That’s why they move to SnapChat
etc…

30. Why? WhatsApp is ‘free’
500m users
50bilion daily messages
Facebook IM client specific to mobile
1. So why are FBK buying WhatsApp?
2. Is there a market for free messages?
3. Is Facebook a monopoly?
Answers: No, No, No – say “experts”
Who owns the experts?

32. Facebook
Google
Twitter
Baidu
Vkontakte
Skype

33. US companies
Facebook
Google
Microsoft
US privacy policy – no generic law
Unlike European Directive(s)
European regulation – Ireland, Luxembourg
Dublin location – sales tax, regulation, corp. tax
Lux – eBay + Skype
World’s least competent privacy regulators?
Portarlington 30 people, Lux 13

34. To NSA
To advertisers
To employers
To friends
To your future

36. Not so much…ironically required by https
encryption default
Who do they target? Those using encryption
esp. TOR
‘If you have nothing to hide, you have nothing
to fear’
‘Metadata isn’t real data’
Be quiet, peasants!

38. Personal data is NOT metaphorical oil in digital
economy
unless bodies have seeped into the sediment.
Personal data accumulate with our treks into
cyberspace
Better metaphor is silk,
woven into tapestry of online personality.
Potential to move beyond a caterpillar-like role as
a producer of raw silk
Ability to regenerate into a butterfly or moth?

39. Billions weaving of prosumer-created sites
Silk created tapestries:
Wikipedia, FBK and MySpace
Arguably loss of ownership led MySpace decline
Prosumer boycott led by those preferring
control of own data
cocooned in own personal form: chrysalis or pupae

40. Widespread regulation of social networking
Including in US – Federal Trade Commission
European Court cases – both data retention and deletion
European Parliament pressure on PRISM post-Snowden
National regulators on cloud, Streetview and others
European Data Protection Supervisor pressure on merger
cases – competition law – conference 2 June

41. MySpace accounts
Hotmail accounts
Friendster
Bebo
SecondLife
Orkut?
Individuals stop use – accounts are zombies?

42. Not sufficient to permit data deletion
as that only covers the user’s tracks.
Interconnection and interoperability,
more than transparency and
theoretical possibility to switch.
Prosumers interoperate to permit social exit
Lower entry barriers -> increased consumer welfare

43. Human rights concerns become more critical,
reflecting the mass adoption of the Internet in
countries with serious democratic deficits,
notably in the Middle East and North Africa
concerns far predate the Arab Spring of 2011
Regulatory debate well rehearsed in US &
Europe since birth of the commercial Internet.

44. Balances against other fundamental rights,
privacy
freedom from racial discrimination or violence threats,
rights to private property including copyright
torts such as defamation and trespass in private law
Boyle (2001) condemned Chinese censorship
And US 1st Amendment promiscuous hate speech
“new efforts to establish codes of conduct about
harmful content on . . . this marvellous medium.”

46. Information
giants cooperate
with government to
share our data
• Legal procedures in
place
• Snowden & Greenwald
told us:
• Informal cooperation
• UK took 1 day to pass:
• DRIP Act 2014!

47. September 10:
DG COMP: Almunia refers proposed Google
settlement back for refinement
October:
DG COMP: Phase 2 investigation into
Facebook/WhatsApp merger?
October:
VP Digital: persuading Council of Ministers to adopt
new Data Protection Regulation?
January-March 2015:
VP Digital must produce investment plan and new
Digital Single Market proposal

48. How does this affect competition policy?
Are there 50 ways to leave your online lover?
Network effects
Silk roads of privacy & anonymity
Competition law
FBK + Google permanent monopolies?
Privacy rules as social exit barriers?

49. 1. Why do social networks decline?
1. MySpace/Bebo/Orkut/Friends Reunited
2. Is the visceral nature of offline social networking
responsible for success online
1. dating sites approximate strong human contact better:
Grindr, Tindr – Twitter?
3. Bad coding, European data protection and a more
aspirational demographic
1. Facebook v. MySpace/Bebo
4. ASmallWorld was Eurotrash Facebook and failed?
Weinstein’s brush with social networking failure:
http://gawker.com/5381040/harvey-weinstein-finally-sells-myspace-
for-millionaires

50. Economics and law are not enough
Computer science also needs help
How do we assess zombie networks?
Visceral durablity and/or temporary
elements of human sociality online
Economics of visceral?
Social psychology of visceral?
Evolutionary neuroscience of visceral?

52. 1. Personally identifiable data
EU Data Protection Directive EC/95/46
Ethics of personal data collection
User informed consent and reuse
2. Proprietary data
The unknown unknowns
Networks not shy about leaking:
Infamous Cornell study

53. “Prof. Hancock and Guillory did not participate in
data collection [nor] have access to user data.
“Their work was limited to:
initial discussions,
analyzing the research results and
working with Facebook to prepare paper
“Experimental Evidence of Massive-Scale Emotional
Contagion through Social Networks,” Proceedings of
National Academy of Science-Social Science.

54. “Because the research was conducted
independently by Facebook and
Professor Hancock had access only to results
not to any individual, identifiable data at any time
CU Institutional Review Board concluded that
he was not directly engaged in human research
and that no review by the Cornell Human Research
Protection Program was required.”
 http://mediarelations.cornell.edu/2014/06/30/media-statement-
on-cornell-universitys-role-in-facebook-emotional-
contagion-research/

55. “Computer scientists are simply not equipped to
evaluate the legality of research they perform,
“It is important that researchers seek the
assistance of qualified legal experts as they
design studies.
“Program committees should require that the
researchers identify the legal expert, and
independently contact the named legal expert
in order to verify that they do indeed believe that the
researchers' study did not violate the law.”
EU law often involved – US lawyers competent?
Soghoian, C (2012) Enforced Community Standards For
Research on Users of the Tor Anonymity Network,
Lecture Notes in Computer Science Volume 7126, pp 146-153

56. Report to UN General Assembly (La Rue 2011)
regional HR bodies (Council of Europe) best
practices: filtering but no harming free expression
 Viviane Reding, European Commission vice president:
“Copyright protection can never be a justification
for eliminating freedom of expression or
information
Art.17 (2) v. Art.11(1) EU Charter of Fundamental Rights
Blocking the Internet is never an option”