Category: Law

To tell the truth

It was toward the end of Craig Wright’s cross-examination on Wednesday when, for the first time in many days, he was lost for words. Wright is in court because the non-profit Crypto Open Patent Alliance seeks a ruling that he is not, as he claims, bitcoin inventor Satoshi Nakomoto, who was last unambiguously heard from in 2011.

Over the preceding days, Wright had repeatedly insisted “I am the real Satoshi” and disputed forensic analysis – anachronistic fonts, metadata, time stamps – pronouncing his proffered proofs forgeries.. He was consistently truculent, verbose, and dismissive of everyone’s expertise but his own and of everyone’s degrees except the ones he holds. For example: “Meiklejohn has not studied cryptography in any depth,” he said of Sarah Meiklejohn, the now-professor who as a student in 2013 showed that bitcoin transactions are traceable. In a favorite moment, Jonathan Hough, KC, who did most of the cross-examination, interrupted a diatribe about the failings of the press with, “Moving on from your expertise on journalism, Dr Wright…”

Participants in a drinking game based on his saying “That is not correct” would be dead of alcohol poisoning. In between, he insisted several times that he never wanted to be outed as Satoshi, and wishes that everyone would “leave me alone and let me invent”. Any money he is awarded in court he will give to charities ; he wants nothing for himself.

But at the moment we began with he was visibly stumped. The question, regarding a variable on a Github page: “Do you know what unsigned means?”

Wright: “Basically, an unsigned variable…it’s not an integer with…it’s larger. I’m not sure how to say it.”

Lawyer: “Try.”

Wright: “How I’d describe it, I’m not quite sure. I’m not good with trying to do things like this.” He could explain it easily in writing… (Transcription by Norbert on exTwitter.)

The lawyer explained it thusly: an unsigned variable cannot be a negative number.

“I understand that, but would I have thought of saying it in such a simple way? No.”

Experience as a journalist teaches you that the better you understand something the more simply and easily you can explain it. Wright’s inability to answer blew the inadequately bolted door plug out of his world’s expert persona. Everything until then could be contested: the stomped hard drive, the emails he wrote, or didn’t write, or wrote only one sentence of, the allegations that he had doctored old documents to make it look like he had been thinking about bitcoin before the publication of Satoshi’s foundational 2008 paper. But there’s no disguising lack of basic knowledge. “Should have been easy,” says a security professor (tenured, chaired) friend.

Normally, cryptography removes ambiguity. This is especially true of public key cryptography and its complementary pair of public and private keys. Being able to decrypt something with a well-attested public key is clear proof that it was encrypted with the complementary private key. Contrariwise, if a specific private key decrypts it, you know that key’s owner is the intended recipient. In both cases, as a bonus, you get proof that the text has not been altered since its encryption. It *ought* to be simple for Wright to support his claim by using Satoshi’s private keys. If he can’t do that, he must present a reason and rely on weaker alternatives.

Courts of law, on the other hand, operate on the balance of probabilities. They don’t remove ambiguity; they study it. Wright’s case is therefore a cultural clash, with far-reaching consequences. COPA is complaining that Wright’s repeated intellectual property lawsuits against developers working on bitcoin projects are expensive in both money and time. Soon after the unsigned variable exchange, the lawyer asked Wright what he will do if the court rules against him. “Move on to patents,” Wright said. He claims thousands of patents relating to bitcoin and the blockchain, and a brief glance at Google Patents shows many filings, some granted.

However this case comes out, therefore, it seems likely Wright will continue to try to control bitcoin. Wright insists that bitcoin isn’t meant to be “digital gold”, but that its true purpose is to facilitate micropayments. I haven’t “studied bitcoin in any depth” (as he might say), but as far as I can tell it’s far too slow, too resource-intensive, and too volatile to be used that way. COPA argues, I think correctly, that it’s the opposite of the world enshrined in Satoshi’s original paper; its whole point was to use cryptography to create the blockchain as a publicly attested, open, shared database that could eliminate central authorities such as banks.

In the Agatha Christie version of this tale, most likely Wright would be an imposter, an early hanger-on who took advantage of the gap formed by Satoshi’s disappearance and the deaths of other significant candidates. Dorothy Sayers would have Lord Peter Wimsey display unexpected mathematical brilliance to improve on Satoshi’s work, find him, and persuade him to turn over his keys and documents to king and country. Sir Arthur Conan Doyle would have both Moriarty and Sherlock Holmes on the trail. Holmes would get there first and send him into protection to ensure Morarty couldn’t take criminal advantage. And then the whole thing would be hushed up in the public interest.

The case continues.

Illustrations: The cryptographic code from “The Dancing Men”, by Sir Arthur Conan Doyle (via Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.

Nefarious

Torrentfreak is reporting that OCLC, owner of the WorldCat database of bibliographic records, is suing the “shadow library” search engine Anna’s Archive. The claim: that Anna’s Archive hacked into WorldCat, copied 2.2TB of records, and posted them publicly.

Shadow libraries are the text version of “pirate” sites. The best-known is probably Sci-Hub, which provides free access to hundreds of thousands of articles from (typically expensive) scientific journals. Others such as Library Genesis and sites on the dark web offer ebooks. Anna’s Archive indexes as many of these collections as it can find; it was set up in November 2022, shortly after the web domains belonging to the then-largest of these book libraries, Z-Library, were seized by the US Department of Justice. Z-Library has since been rebuilt on the dark web, though it remains under attack by publishers and law enforcement.

Anna’s Archive also includes some links to the unquestionably legal and long-running Gutenberg Project, which publishes titles in the public domain in a wide variety of formats.

The OCLC-Anna’s Archive case has a number of familiar elements that are variants of long-running themes, open versus gatekept being the most prominent. Like many such sites (post-Napster), Anna’s Archive does not host files itself. That’s no protection from the law; authorities in various countries from have nonetheless blocked or seized the domains belonging to such sites. But OCLC is not a publisher or rights holder, although it takes large swipes at Anna’s Archive for lawlessness and copyright infringement. Instead, it says Anna’s Archive hacked WorldCat, violating its terms and conditions, disrupting its business arrangements, and costing it $1.4 million and 10,000 employee hours in system remediation. Second, it complains that Anna’s Archive has posted the data in the aggregate for public download, and is “actively encouraging nefarious use of the data”. Other than the use of “nefarious”, there seems little to dispute about either claim; Anna’s Archive published the details in an October 2023 blog posting.

Anna’s Archive describes this process as “preserving” the world’s books for public access. OCLC describes it as “tortious inference” with its business. It wants the court to issue injunctive relief to make the scraping and use of the data stop, compensatory damages in excess of $75,000, punitive damages, costs, and whatever else the court sees fit. The sole named defendant is a US citizen, María A. Matienzo, thought to be resident near Seattle. If the identification and location are correct, that’s a high-risk situation to be in.

In the blog posting, Anna’s Archive writes that its initial goal was to answer the question of what percentage of the world’s published books are held in shadow libraries and create a to-do list of gaps to fill. To answer these questions, they began by scraping ISBNdb, the database of publications with ISBNs, which only came into use in 1970. When the overlap with the Internet Archive’s Open Library and the seized Z-library was less than they hoped, they turned to Worldcat. At that point, they openly say that security flaws in the fortuitously redesigned Worldcat website allowed them to grab more or less the comprehensive set of records. While scraping can be legal, exploiting security flaws to gain unauthorized access to a computer system likely violates the widely criticized Computer Fraud and Abuse Act (1986), which could be a felony. OCLC has, however, brought a civil case.

Anna’s Archive also searches the Internet Archive’s Open Library, founded in 2006. In 2009, co-creator Aaron Swartz told me that he believed the creation of Open Library pushed OCLC into opening up greater public access to the basic tier of its bibliographic data. The Open Library currently has its own legal troubles; it lost in court in August 2023 after Hachette sued it for copyright infringement. The Internet Archive is appealing; in the meantime it is required to remove on request of any member of the American Asociation of Publishers any book commercially available in electronic format.

OCLC began life as the Ohio Library College Library Center; its WorldCat database is a collaboration between it and its member libraries to create a shared database of bibliographic records and enable online cataloguing. The last time I wrote about it, in 2009, critics were complaining that libraries in general were failing to bring book data onto the open web. It has gotten a lot better in the years since, and many local libraries are now searchable online and enable their card holders to borrow from their holdings of ebooks over the web.

The fact that it’s now often possible to borrow ebooks from libraries should mean there’s less reason to use unauthorized sites. Nonetheless, these still appeal: they have the largest catalogues, the most convenient access, DRM-free files, and no time limits, so you can read them at your leisure using the full-featured reader you prefer.

In my 2009 piece, an OCLC spokesperson fretted about “over-exploitation”, which there would be no good way to maintain or update countless unknown scattered pockets of data, seemingly a solvable problem.

OCLC and its member libraries are all non-profit organizations ultimately funded by taxpayers. The data they collect has one overriding purpose: to facilitate public access to libraries’ holdings by showing who holds what books in which editions. What are “nefarious” uses? Arguably, the data they collect should be public by right. But that’s not the question the courts will decide.

Illustrations: The New York Public Library, built 1911 (via Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.

Objects of copyright

Back at the beginning, the Internet was going to open up museums to those who can’t travel to them. Today…

At the Art Newspaper, Bender Grosvenor reports that a November judgment from the UK Court of Appeal means museums can’t go on claiming copyright in photographs of public domain art works. Museums have used this claim to create costly licensing schemes. For art history books and dissertations that need the images for discussion, the costs are often prohibitive. And, it turns out, the “GLAM” (galleries, libraries, archives, and museums) sector isn’t even profiting from it.

Grosvenor cites figures: the National Gallery alone lost £31,000 on its licensing scheme in 2021-2022 (how? is left as an exercise for the reader). This figure was familiar: Douglas McCarthy, whom the article quotes, cited it at gikii 2023. As an ongoing project with Andrea Wallace, McCarthy co-runs the Open GLAM survey, which collects data to show the state of open access in this sector.

In his talk, McCarthy, an art historian by training and the head of the Library Learning Center at Delft University of Technology, showed that *most* such schemes are losing money. The National Gallery of Liverpool, for example, lost £71,873 on licensing activities between 2018 and 2023.

Like Grosvenor, McCarthy noted that the scholars whose work underpins the work of museums and libraries, are finding it increasingly difficult to afford that work. One of McCarthy’s examples was St Andrews art history professor Kathryn M. Rudy, who summed up her struggles in a 2019 piece for Times Higher Education: “The more I publish, the poorer I get.”

Rudy’s problem is that publishing in art history, as necessary for university hiring and promotions, requires the use of images of the works under discussion. In her own case, the 1,419 images she needed to use to publish six monographs and 15 articles have consumed most of her disposable income. To be fair, licensing fees are only part of this. She also lists travel to view offline collecctions, the costs of attending conferences, data storage, academic publishers’ production fees, and paying for the copies of books contracts require her to send the libraries supplying the images; some of this is covered by her university. But much of those extra costs come from licensing fees that add up to thousands of pounds for the material necessary for a single book: reproduction fees, charges for buying high-resolution copies for publication, and even, when institutions allow it at all, fees for photographing images in situ using her phone. Yet these institutions are publicly funded, and the works she is photographing have been bought with money provided by taxpayers.

On the face of it, THJ v. Sheridan, as explained by the law firm the law firm Pennington, Manches, Cooper in a legal summary, doesn’t seem to have much to do with the GLAM sector. Instead, the central copyright claim was regarding the defendant software used in webinars and presentations. However, the point, as the Kluwer Copyright blog explains, was deciding which test to apply to decide whether a copyrighted work is original.

In court, THJ, a UK-based software development firm, claimed that Daniel Sheridan, a US options trading mentor and former licensee, had misrepresented its software as his own and had violated THJ’s copyright by using the software after his license agreement expired by including images of the software in his presentations. One of THJ’s two claims failed on the basis that the THJ logo and copyright notices were displayed throughout the presentation.

The second is the one that interests us here: THJ claimed copyright in the images of its software based on the 1988 Copyright, Designs, and Patents Act. The judge, however, ruled that while the CDPA applies to the software, images of the software’s graphical interface are not covered; to constitute infringement Sheridan would have had to communicate the images to the UK public. In analyzing the judgment, Grosvenor pulled out the requirements for copyright to apply: that making the images required some skill and labor on the part of the person or organization making the claim. By definition, this can’t be true of a photograph of a painting, which needs to be as accurate a representation as possible.

Grosvenor has been on this topic for a while. In 2017, he issued a call to arms in Art History News, arguing that image reproduction fees are “killing art history”.

In 2017, Grosvenor was hopeful, because US museums and a few European ones were beginning to do away with copyright claims and licensing fees and finding that releasing the images to the public to be used for free in any context created value in the form of increased discussion, broadcast, and visibility. Progress continues, as McCarthy’s data shows, but inconsistently: last year the incoming Italian government reversed its predecessor’s stance by bringing back reproduction fees even for scientific journals.

Granted, all of the GLAM sector is cash-strapped and is desperately seeking new sources of income. But these copyright claims seem particularly backwards. It ought to be obvious that the more widely images of an institution’s holdings are published the more people will want to see the original; greater discussion of these art works would seem to fulfill their mission of education. Opening all this up would seem to be a no-brainer. Whether the GLAM folks like it or not, the judge did them a favor.

Illustrations: “Harpist”, from antiphonal, Cambrai or Tournai c. 1260-1270, LA, Getty Museum, Ms. 44/Ludwig VI 5, p. 115 (via Discarding Images).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.

Infallibile

It’s a peculiarity of the software industry that no one accepts product liability. If your word processor gibbers your manuscript, if your calculator can’t subtract, if your phone’s security hole results in your bank account’s being drained, if a chatbot produces entirely false results….it’s your problem, not the software company’s. As software starts driving cars, running electrical grids, and deciding who gets state benefits, the lack of liability will matter in new and dangerous ways. In his 2006 paper, The Economics of Information Security, Ross Anderson writes about the “moral-hazard effect” connection between liability and fraud: if you are not liable, you become lazy and careless. Hold that thought.

To it add: in the British courts, there is a legal presumption that computers are reliable. Suggestions that this law should be changed go back at least 15 years, but this week they gained new force. It sounds absurd if applied to today’s complex computer systems, but the law was framed with smaller mechanical devices such as watches and Breathalyzers in mind. It means, however, that someone – say a subpostmaster – accused of theft has to find a way to show the accounting system computer was not operating correctly.

Put those two factors together and you get the beginnings of the Post Office Horizon scandal, which currently occupies just about all of Britain following ITV’s New Year’s airing of the four-part drama Mr Bates vs the Post Office.

For those elsewhere: this is the Post Office Horizon case, which is thought to be one of the worst miscarriages of justice in British history. The vast majority of the country’s post offices are run by subpostmasters, each of whom runs their own business under a lengthy and detailed contract. Many, as I learned in 2004, operate their post office counters inside other businesses; most are news agents, but some share old police stations and hairdressers.

In 1999, the Post Office began rolling out the “Horizon” computer accounting system, which was developed by ICL, formerly a British company but by then owned by Fujitsu. Subpostmasters soon began complaining that the new system reported shortfalls where none existed. Under their contract, subpostmasters bore all liability for discrepancies. The Post Office accordingly demanded payment and prosecuted those from whom it was not forthcoming. Many lost their businesses, their reputations, their homes, and much of their lives, and some were criminally convicted.

In May 2009, Karl Flinders published the first of dozens of articles on the growing scandal. Perhaps most important: she located seven subpostmasters who were willing to be identified. Soon afterwards, Welsh former subpostmaster Alan Bates convened the Justice for Subpostmasters Alliance, which continues to press for exoneration and compensation for the many hundreds of victims.

Pieces of this saga were known, particularly after a 2015 BBC Panorama documentary. Following the drama’s airing, the UK government is planning legislation to exonerate all the Horizon victims and fast-track compensation. The program has also drawn new attention to the ongoing public inquiry, which…makes the Post Office look so much worse, as do the Panorama team’s revelations of its attempts to suppress the evidence they uncovered. The Metropolitan Police is investigating the Post Office for fraud.

Two elements stand out in this horrifying saga. First: each subpostmaster calling the help line for assistance was told they were the only one having trouble with the system. They were further isolated by being required to sign NDAs. Second: the Post Office insisted that the system was “robust” – that is, “doesn’t make mistakes”. The defendants were doubly screwed; only their accuser had access to the data that could prove their claim that the computer was flawed, and they had no view of the systemic pattern.

It’s extraordinary that the presumption of reliability has persisted this long, since “infallibility” is the claim the banks made when customers began reporting phantom withdrawals years ago, as Ross Anderson discussed in his 1993 paper Why Cryptosystems Fail (PDF). Thirty years later, no one should be trusting any computer system so blindly. Granted, in many cases, doing what the computer says is how you keep your job, but that shouldn’t apply to judges. Or CEOs.

At the Guardian, Alex Hern reports that legal and computer experts have been urging the government to update the law to remove the legal presumption of reliability, especially given the rise of machine learning systems whose probabilistic nature means they don’t behave predictably. We are not yet seeing calls for the imposition of software liability, though the Guardian reports there are suggestions that if the onoing public inquiry finds Fujitsu culpable for producing a faulty system the company should be required to repay the money it was paid for it. The point, experts tell me, is not that product liability would make these companies more willing to admit their mistakes, but that liability would make them and their suppliers more careful to ensure up front the quality of the systems they build and deploy.

The Post Office saga is a perfect example of Anderson’s moral hazard. The Post Office laid off its liability onto the subpostmasters but retained the right to conduct investigations and prosecutions. When the deck is so stacked, you have to expect a collapsed house of cards. And, as Chris Grey writes, the government’s refusal to give UK-resident EU citizens physical proof of status means it’s happening again.

Illustrations: Local post office.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.

Relativity

“Status: closed,” the website read. It gave the time as 10:30 p.m.

Except it wasn’t. It was 5:30 p.m., and the store was very much open. The website, instead of consulting the time zone the store – I mean, the store’s particular branch whose hours and address I had looked up – was in was taking the time from my laptop. Which I hadn’t bothered to switch to the US east coat from Britain because I can subtract five hours in my head and why bother?

Years ago, I remember writing a rant (which I now cannot find) about the “myness” of modern computers: My Computer, My Documents. My account. And so on, like a demented two-year-old who needed to learn to share. The notion that the time on my laptop determined whether or not the store was open had something of the same feel: the computational universe I inhabit is designed to revolve around me, and any dispute with reality is someone else’s problem.

Modern social media have hardened this approach. I say “modern” because back in the days of bulletin board systems, information services, and Usenet, postings were time- and date-stamped with when they were sent and specifying a time zone. Now, every post is labelled “2m” or “30s” or “1d”, so the actual date and time are hidden behind their relationship to “now”. It’s like those maps that rotate along with you so wherever you’re pointed physically is at the top. I guess it works for some people, but I find it disorienting; instead of the map orienting itself to me, I want to orient myself to the map. This seems to me my proper (infinitesimal) place in the universe.

All of this leads up to the revival of software agents. This was a Big Idea in the late 1990s/early 2000s, when it was commonplace to think that the era of having to make appointments and book train tickets was almost over. Instead, software agents configured with your preferences would do the negotiating for you. Discussions of this sort of thing died away as the technology never arrived. Generative AI has brought this idea back, at least to some extent, particularly in the financial area, where smart contracts can be used to set rules and then run automatically. I think only people who never have to worry about being able to afford anything will like this. But they may be the only ones the “market” cares about.

Somewhere during the time when software agents were originally mooted, I happened to sit at a conference dinner with the University of Maryland human-computer interaction expert Ben Shneiderman. There are, he said, two distinct schools of thought in software. In one, software is meant to adapt to the human using it – think of predictive text and smartphones as an example. In the other, software is consistent, and while using it may be repetitive, you always know that x command or action will produce y result. If I remember correctly, both Shneiderman and I were of the “want consistency” school.

Philosophically, though, these twin approaches have something in common with seeing the universe as if the sun went around the earth as against the earth going around the sun. The first of those makes our planet and, by extension, us far more important in the universe than we really are. The second cuts us down to size. No surprise, then, if the techbros who build these things, like the Catholic church in Galileo’s day, prefer the former.

***

Politico has started the year by warning that the UK is seeking to expand its surveillance regime even further by amending the 2016 Investigatory Powers Act. Unnoticed in the run-up to Christmas, the industry body techUK sent a letter to “express our concerns”. The short version: the bill expands the definition of “telecommunications operator” to include non-UK providers when operating outside the UK; allows the Home Office to require companies to seek permission before making changes to a privately and uniquely specified list of services; and the government wants to whip it through Parliament as fast as possible.

No, no, Politico reports the Home Office told the House of Lords, it supports innovation and isn’t threatening encryption. These are minor technical changes. But: “public safety”. With the ink barely dry on the Online Safety Act, here we go again.

***

As data breaches go, the one recently reported by 23andMe is alarming. By using passwords exposed in previous breaches (“credential stuffing”) to break into 14,000 accounts, attackers gained access to 6.9 million account profiles. The reason is reminiscent of the Cambridge Analytica scandal, where access to a few hundred thousand Facebook accounts was leveraged to obtain the data of millions: people turned on “DNA Relatives to allow themselves to be found by those searching for genetic relatives. The company, which afterwards turned on a requireme\nt for two-factor authentication, is fending off dozens of lawsuits by blaming the users for reusing passwords. According to Gizmodo, the legal messiness is considerable, as the company recently changed its terms and conditions to make arbitration more difficult and litigation almost impossible.

There’s nothing good to say about a data breach like this or a company that handles such sensitive data with such disdainx. But it’s yet one more reason why putting yourself at the center of the universe is bad hoodoo.

Illustrations: DNA strands (via Wikimedia.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon.

Game of carrots

The big news of the week has been the result of the Epic Games v. Google antitrust trial. A California jury took four hours to agree with Epic that Google had illegally tied together its Play Store and billing service, so that app makers could only use the Play Store to distribute their apps if they also used Google’s service for billing, giving Google a 30% commission. Sort of like, I own half the roads in this town, and if you want to sell anything to my road users you have to have a store in my mall and pay me a third of your sales revenue, and if you don’t like it, tough, because you can’t reach my road users any other way. Meanwhile, the owner of the other half of the town’s roads is doing exactly the same thing, so you can’t win.

At his BIG Substack, antitrust specialist Matt Stoller, who has been following the trial closely, gloats, “the breakup of Big Tech begins”. Maybe not so fast: Epic lost its similar case against Apple. Both of these cases are subject to appeal. Stoller suggests, however, that the latest judgment will carry more weight because it came from a jury of ordinary citizens rather than, as in the Apple case, a single judge. Stoller believes the precedent set by a jury trial is harder to ignore in future cases.

At The Verge, Sean Hollister, who has been covering the trial in detail, offers a summary of 20 key points he felt the trial established. Written before the verdict, Hollister’s assessment of Epic’s chances proved correct.

Even if the judgment is upheld in the higher courts, it will be a while before users see any effects. But: even if the judgment is overturned in the higher courts, my guess is that the technology companies will begin to change their behavior at least a bit, in self-defense. The real question is, what changes will benefit us, the people whose lives are increasingly dominated by these phones?

I personally would like it to be much easier to use an Android phone without ever creating a Google account, and to be confident that the phone isn’t sending masses of tracking data to either Google or the phone’s manufacturer.

But…I would still like to be able to download the apps I want from a source I can trust. I care less about who provides the source than I do about what data they collect about me and the cost.

I want that source to be easy to access, easy to use, and well-stocked, defining “well-stocked” as “has the apps I want” (which, granted, is a short list). The nearest analogy that springs to mind is TV channels. You don’t really care what channel the show you want to watch is on; you just want to be able to watch the show without too much hassle. If there weren’t so many rights holders running their own streaming services, the most sensible business logic would be for every show to be on every service. Then instead of competing on their catalogues, the services would be competing on privacy, or interface design, or price. Why shouldn’t we have independent app stores like that?

Mobile phones have always been more tightly controlled than the world of desktop computing, largely because they grew out of the tightly controlled telecommunications world. Desktop computing, like the Internet, served first the needs of the military and academic research, and they remain largely open even when they’re made by the same companies who make mobile phone operating systems. Desktop systems also developed at a time when American antitrust law still sought to increase competition.

It did not stay that way. As current FTC chair Lina Khan made her name pointing out in 2017, antitrust thinking for the last several decades has been limited to measuring consumer prices. The last big US antitrust case to focus on market effects was Microsoft, back in 1995. In the years since, it’s been left to the EU to act as the world’s antitrust enforcer. Against Google, the EU has filed three cases since 2010: over Shopping (Google was found guilty in 2017 and fined €2.4 billion, upheld on appeal in 2021); Android, over Google apps and the Play Store (Google was found guilty in 2018 and fined €4.3 billion and required to change some of its practices); and AdSense (fined €1.49 billion in 2019). But fines – even if the billions eventually add up to real money – don’t matter enough to companies with revenues the size of Google’s. Being ordered to restructure its app store might.

At the New York Times, Steve Lohr compares the Microsoft and Epic v Google cases. Microsoft used its contracts with PC makers to prevent them from preinstalling its main web browser rival, Netscape, in order to own users’ path into the accelerating digital economy. Google’s contracts instead paid Apple, Samsung, Mozilla, and others to favor it on their systems – “carrots instead of sticks,” NYU law professor Harry First told Lohr.

The best thing about all this is that the Epic jury was not dazzled by the incomprehensibility effect of new technology. Principles are coming back into focus. Tying – leveraging your control over one market in order to dominate another – is no different if you say it in app stores than if you say it in gas stations or movie theaters.

Illustrations: “The kind of anti-trust legislation that is needed”, by J.S. Pughe (via Library of Congress).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon

Surveillance machines on wheels

After much wrangling and with just a few days of legislative time between the summer holidays and the party conference season, on Tuesday night the British Parliament passed the Online Safety bill, which will become law as soon as it gets royally signed (assuming they can find a pen that doesn’t leak). The government announcement brims with propagandist ecstasy, while the Open Rights Group’s statement offers the reality: Briton’s online lives will be less secure as a result. Which means everyone’s will.

Parliament – and the net.wars archive – dates the current version of this bill to 2022, and the online harms white paper on which it’s based to 2020. But it *feels* like it’s been a much longer slog; I want to say six years.

This is largely because the fight over two key elements – access to encrypted messaging and age verification – *is* that old. Age verification was enshrined in the Digital Economy Act (2017), and we reviewed the contenders to implement it in 2016. If it’s ever really implemented, age verification will make Britain the most frustrating place in the world to be online.

Fights over strong encryption have been going on for 30 years. In that time, no new mathematics has appeared to change the fact that it’s not possible to create a cryptographic hole that only “good guys” can use. Nothing will change about that; technical experts will continue to try to explain to politicians that you can have secure communications or you can have access on demand, but you can’t have both.

***

At the New York Times, Farhood Manjou writes that while almost every other industry understands that the huge generation of aging Boomers is a business opportunity, outside of health care Silicon Valley is still resolutely focused on under-30s. This, even though the titans themselves age; boy-king Mark Zuckerberg is almost 40. Hey, it’s California; they want to turn back aging, not accept it.

Manjou struggles to imagine the specific directions products might take, but I like his main point: where’s the fun? What is this idea that after 65 you’re just something to send a robot to check up on? Yes, age often brings impairments, but why not build for them? You would think that given the right affordances, virtual worlds and online games would have a lot to offer people whose lives are becoming more constrained.

It’s true that by the time you realize that ageism pervades our society you’re old enough that no one’s listening to you any more. But even younger people must struggle with many modern IT practices: the pale, grey type that pervades the web, the picklists, the hidden passwords you have to type twice… And captchas, which often display on my desktop too small to see clearly and are resistant to resizing upwards. Bots are better at captchas than humans anyway, so what *is* the point?

We’re basically back where we were 30 years ago, when the new discipline of human-computer interaction fought to convince developers that if the people who struggle to operate their products look stupid the problem is bad design. And all this is coming much more dangerously to cars; touch screens that can’t be operated by feel are Exhibit A.

***

But there is much that’s worse about modern cars. A few weeks ago, the Mozilla Foundation published a report reviewing the privacy of modern cars. Tl;dr: “Cars are the worst product category we have ever reviewed for privacy.”

The problems are universal across the 25 brands Mozilla researchers Jen Caltrider, Misha Rykov, and Zoë MacDonald reviewed: “Modern cars are surveillance-machines on wheels souped-up with sensors, radars, cameras, telematics, and apps that can detect everything we do inside.” Cars can collect all the data that phones and smart home devices can. But unlike phones, space is a non-issue, and unlike smart speakers, video cameras, and thermostats, cars move with you and watch where you go. Drivers, passengers, passing pedestrians…all are fodder for data collection in the new automotive industry, where heated seats and unlocking extra battery range are subscription add-ons, and the car you buy isn’t any more yours than the £6-per-hour Zipcar in the designated space around the corner.

Then there are just some really weird clauses in the companies’ privacy policies. Some collect “genetic data” (here the question that arises is not only “why?” but “how?). Nissan says it can collect information about owners’ “sexual activity” for use in “direct marketing” or to share with marketing partners. ” The researchers ask, “What on earth kind of campaign are you planning, Nissan?”

Still unknown: whether the data is encrypted while held on the car; how securely it’s held; and whether the companies will resist law enforcement requests at all. We do know that that car companies share and sell the masses of intimate information they collect, especially the cars’ telematics with insurance companies.

The researchers also note that new features allow unprecedented levels of control. VW’s Car-Net, for example, allows parents – or abusers – to receive a phone alert if the car is driven outside of set hours or in or near certain locations. Ford has filed a patent on a system for punishing drivers who miss car payments.

“I got old at the right time,” a friend said in 2019. You can see his point.

Illustrations: Artist Dominic Wilcox‘s imagined driverless sleeper car of the future, as seen at the Science Museum in 2019.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Mastodon

Doom cyberfuture

Midway through this year’s gikii miniconference for pop culture-obsessed Internet lawyers, Jordan Hatcher proposed that generational differences are the key to understanding the huge gap between the Internet pioneers, who saw regulation as the enemy, and the current generation, who are generally pushing for it. While this is a bit too pat – it’s easy to think of Millennial libertarians and I’ve never thought of Boomers as against regulation, just, rationally, against bad Internet law that sticks – it’s an intriguing idea.

Hatcher, because this is gikii and no idea can be presented without a science fiction tie-in, illustrated this with 1990s movies, which spread the “DCF-84 virus” – that is, “doom cyberfuture-84”. The “84” is not chosen for Orwell but for the year William Gibson’s Neuromancer was published. Boomers – he mentioned John Perry Barlow, born 1947, and Lawrence Lessig, born 1961 – were instead infected with the “optimism virus”.

It’s not clear which 1960s movies might have seeded us with that optimism. You could certainly make the case that 1968’s 2001: A Space Odyssey ends on a hopeful note (despite an evil intelligence out to kill humans along the way), but you don’t even have to pick a different director to find dystopia: I see your 2001 and give you Dr Strangelove (1964). Even Woodstock (1970) is partly dystopian; the consciousness of the Vietnam war permeates every rain-soaked frame. But so did the belief that peace could win: so, wash.

For younger people’s pessimism, Hatcher cited 1995’s Johnny Mnemonic (based on a Gibson short story) and Strange Days.

I tend to think that if 1990s people are more doom-laden than 1960s people it has more to do with real life. Boomers were born in a time of economic expansion, relatively affordable education and housing, and and when they protested a war the government eventually listened. Millennials were born in a time when housing and education meant a lifetime of debt, and when millions of them protested a war they were ignored.

In any case, Hatcher is right about the stratification of demographic age groups. This is particularly noticeable in social media use; you can often date people’s arrival on the Internet by which communications medium they prefer. Over dinner, I commented on the nuisance of typing on a phone versus a real keyboard, and two younger people laughed at me: so much easier to type on a phone! They were among the crowd whose papers studied influencers on TikTok (Taylor Annabell, Thijs Kelder, Jacob van de Kerkhof, Haoyang Gui, and Catalina Goanta) and the privacy dangers of dating apps (Tima Otu Anwana and Paul Eberstaller), the kinds of subjects I rarely engage with because I am a creature of text, like most journalists. Email and the web feel like my native homes in a way that apps, game worlds, and video services never will. That dates me both chronologically and by my first experiences of the online world (1991).

Most years at this event there’s a new show or movie that fires many people’s imagination. Last year it was Upload with a dash of Severance. This year, real technological development overwhelmed fiction, and the star of the show was generative AI and large language models. Besides my paper with Jon Crowcrosft, there was one from Marvin van Bekkum, Tim de Jonge, and Frederik Zuiderveen Borgesius that compared the science fiction risks of AI – Skynet, Roko’s basilisk, and an ordering of Asimov’s Laws that puts obeying orders above not harming humans (see XKCD, above) – to the very real risks of the “AI” we have: privacy, discrimination, and environmental damage.

Other AI papers included one by Colin Gavaghan, who asked if it actually matters if you can’t tell whether the entity that’s communicating with you is an AI? Is that what you really need to know? You can see his point: if you’re being scammed, the fact of the scam matters more than the nature of the perpetrator, though your feelings about it may be quite different.

A standard explanation of what put the “science” in science fiction (or the “speculative” in “speculative fiction”) used be to that the authors ask, “What if?” What if a planet had six suns whose interplay meant that darkness only came once every 1,000 years? Would the reaction really be as Ralph Waldo Emerson imagined it? (Isaac Asimov’s Nightfall). What if a new link added to the increasingly complex Boston MTA accidentally turned the system into a Mobius strip (A Subway Named Mobius, by Armin Joseph Deutsch). And so on.

In that sense, gikii is often speculative law, thought experiments that tease out new perspectives. What if Prime Day becomes a culturally embedded religious holiday (Megan Rae Blakely)? What if the EU’s trademark system applied in the Star Trek universe (Simon Sellers)? What if, as in Max Gladsone’s Craft Sequence books, law is practical magic (Antonia Waltermann)? In the trademark example, time travel is a problem; as competing interests can travel further and further back to get the first registration. In the latter…well, I’m intrigued by the idea that a law making dumping sewage in England’s rivers illegal could physically stop it from happening without all the pesky apparatus of law enforcement and parliamentary hearings.

Waltermann concluded by suggesting that to some extent law *is* magic in our world, too. A useful reminder: be careful what law you wish for because you just may get it. Boomer!

Illustrations: Part of XKCD‘s analysis of Asimov’s Laws of Robotics.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Author Wendy M. GrossmanPosted on Categories AI, Future tech, LawTags , , 2 Comments on Doom cyberfuture

Power cuts

In the latest example of corporate destruction, the Guardian reports on the disturbing trend in which streaming services like Disney and Warner Bros Discovery are deleting finished, even popular, shows for financial reasons. It’s like Douglas Adams’ rock star Hotblack Desiato spending a year dead for tax reasons.

Given that consumers’ budgets are stretched so thin that many are reevaluating the streaming services they’re paying for, you would think this would be the worst possible time to delete popular entertainments. Instead, the industry seems to be possessed by a death wish in which it’s making its offerings *less* attractive. Even worse, the promise they appeared to offer to showrunners was creative freedom and broad and permanent access to their work. The news that Disney+ is even canceling finished shows (Nautilus) shortly before their scheduled release in order to pay less *tax* should send a chill through every creator’s spine. No one wants to spend years of their life – for almost *any* amount of money – making things that wind up in the corporate equivalent of the warehouse at the end of Raiders of the Lost Ark.

It’s time, as the Masked Scheduler suggested recently on Mastodon, for the emergence of modern equivalents of creator-founded studios United Artists and Desilu.

***

Many of us were skeptical about Meta’s Oversight Board; it was easy to predict that Facebook would use it to avoid dealing with the PR fallout from controversial cases, but never relinquish control. And so it is proving.

This week, Meta overruled the Board‘s recommendation of a six-month suspension of the Facebook account belonging to former Cambodian prime minister Hun Sen. At issue was a video of one of Sen’s speeches, which everyone agreed incited violence against his opposition. Meta has kept the video up on the grounds of “newsworthiness”; Meta also declined to follow the Board’s recommendation to clarify its rules for public figures in “contexts in which citizens are under continuing threat of retaliatory violence from their governments”.

In the Platformer newsletter Casey Newton argues that the Board’s deliberative process is too slow to matter – it took eight months to decide this case, too late to save the election at stake or deter the political violence that has followed. Newton also concludes from the list of decisions that the Board is only “nibbling round the edges” of Meta’s policies.

A company with shareholders, a business model, and a king is never going to let an independent group make decisions that will profoundly shape its future. From Kate Klonick’s examination, we know the Board members are serious people prepared to think deeply about content moderation and its discontents. But they were always in a losing position. Now, even they must know that.

***

It should go without saying that anything that requires an Internet connection should be designed for connection failures, especially when the connected devices are required to operate the physical world. The downside was made clear by the 2017 incident, when lost signal meant a Tesla-owning venture capitalist couldn’t restart his car. Or the one in 2021, when a bunch of Tesla owners found their phone app couldn’t unlock their car doors. Tesla’s solution both times was to tell car owners to make sure they always had their physical car keys. Which, fine, but then why have an app at all?

Last week, Bambu 3D printers began printing unexpectedly when they got disconnected from the cloud. The software managing the queue of printer jobs lost the ability to monitor them, causing some to be restarted multiple times. Given the heat and extruded material 3D printers generate, this is dangerous for both themselves and their surroundings.

At TechRadar, Bambu’s PR acknowledges this: “It is difficult to have a cloud service 100% reliable all the time, but we should at least have designed the system more carefully to avoid such embarrassing consequences.” As TechRadar notes, if only embarrassment were the worst risk.

So, new rule: before installation test every new “smart” device by blocking its Internet connection to see how it behaves. Of course, companies should do this themselves, but as we/’ve seen, you can’t rely on that either.

***

Finally, in “be careful what you legislate for”, Canada is discovering the downside of C-18, which became law in June. and requires the biggest platforms to pay for the Canadian news content they host. Google and Meta warned all along that they would stop hosting Canadian news rather than pay for it. Experts like law professor Michael Geist predicted that the bill would merely serve to dramatically cut traffic to news sites.

On August 1, Meta began adding blocks for news links on Facebook and Instagram. A coalition of Canadian news outlets quickly asked the Competition Bureau to mount an inquiry into Meta’s actions. At TechDirt Mike Masnick notes the irony: first legacy media said Meta’s linking to news was anticompetitive; now they say not linking is anticompetitive.

However, there are worse consequences. Prime minister Justin Trudeau complains that Meta’s news block is endangering Canadians, who can’t access or share local up-to-date information about the ongoing wildfires.

In a sensible world, people wouldn’t rely on Facebook for their news, politicians would write legislation with greater understanding, and companies like Meta would wield their power responsibly. In *this* world, a we have a perfect storm.

Illustrations:XKCD’s Dependency.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. She is a contributing editor for the Plutopia News Network podcast. Follow on Author Wendy M. GrossmanPosted on Categories Infrastructure, Intellectual Property, Law, Media, Net lifeTags , , Leave a comment on Power cuts

The safe place

For a long time, fear that technical decisions – new domain names ($)(, cooption of open standards or software, laws mandating data localization – would splinter the Internet. “Balkanize” was heard a lot.

A panel at the UK Internet Governance Forum a couple of weeks ago focused on this exact topic, and was mostly self-congratulatory. Which is when it occurred to me that the Internet may not *be* fragmented, but it *feels* fragmented. Almost every day I encounter some site I can’t reach: email goes into someone’s spam folder, the site or its content is off-limits because it’s been geofenced to conform with copyright or data protection laws, or the site mysteriously doesn’t load, with no explanation. The most likely explanation for the latter is censorship built into the Internet feed by the ISP or the establishment whose connection I’m using, but they don’t actually *say* that.

The ongoing attrition at Twitter is exacerbating this feeling, as the users I’ve followed for years continue to migrate elsewhere. At the moment, it takes accounts on several other services to keep track of everyone: definite fragmentation.

Here in the UK, this sense of fragmentation may be about to get a lot worse, as the long-heralded Online Safety bill – written and expanded until it’s become a “Frankenstein bill”, as Mark Scott and Annabelle Dickson report at Politico – hurtles toward passage. This week saw fruitless debates on amendments in the House of Lords, and it will presumably be back in the Commons shortly thereafter, where it could be passed into law by this fall.

A number of companies have warned that the bill, particularly if it passes with its provisions undermining end-to-end encryption intact, will drive them out of the country. I’m not sure British politicians are taking them seriously; so often such threats are idle. But in this case, I think they’re real, not least because post-Brexit Britain carries so much less global and commercial weight, a reality some politicians are in denial about. WhatsApp, Signal, and Apple have all said openly that they will not compromise the privacy of their masses of users elsewhere to suit the UK. Wikipedia has warned that including it in the requirement to age-verify its users will force it to withdraw rather than violate its principles about collecting as little information about users as possible. The irony is that the UK government itself runs on WhatsApp.

Wikipedia, Ian McRae, the director of market intelligence for prospective online safety regulator Ofcom, showed in a presentation at UKIGF, would be just one of the estimated 150,000 sites within the scope of the bill. Ofcom is ramping up to deal with the workload, an effort the agency expects to cost £169 million between now and 2025.

In a legal opinion commissioned by the Open Rights Group, barristers at Matrix Chambers find that clause 9(2) of the bill is unlawful. This, as Thomas Macaulay explains at The Next Web, is the clause that requires platforms to proactively remove illegal or “harmful” user-generated content. In fact: prior restraint. As ORG goes on to say, there is no requirement to tell users why their content has been blocked.

Until now, the impact of most badly-formulated British legislative proposals has been sort of abstract. Data retention, for example: you know that pervasive mass surveillance is a bad thing, but most of us don’t really expect to feel the impact personally. This is different. Some of my non-UK friends will only use Signal to communicate, and I doubt a day goes by that I don’t look something up on Wikipedia. I could use a VPN for that, but if the only way to use Signal is to have a non-UK phone? I can feel those losses already.

And if people think they dislike those ubiquitous cookie banners and consent clickthroughs, wait until they have to age-verify all over the place. Worst case: this bill will be an act of self-harm that one day will be as inexplicable to future generations as Brexit.

The UK is not the only one pursuing this path. Age verification in particular is catching on. The US states of Virginia, Mississippi, Louisiana, Arkansas, Texas, Montana, and Utah have all passed legislation requiring it; Pornhub now blocks users in Mississippi and Virginia. The likelihood is that many more countries will try to copy some or all of its provisions, just as Australia’s law requiring the big social media platforms to negotiate with news publishers is spawning copies in Canada and California.

This is where the real threat of the “splinternet” lies. Think of requiring 150,000 websites to implement age verification and proactively police content. Many of those sites, as the law firm Mischon de Reya writes may not even be based in the UK.

This means that any site located outside the UK – and perhaps even some that are based here – will be asking, “Is it worth it?” For a lot of them, it won’t be. Which means that however much the Internet retains its integrity, the British user experience will be the Internet as a sea of holes.

Illustrations: Drunk parrot in a Putney garden (by Simon Bisson; used by permission).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Follow on Mastodon.