Copyrights and Property Wrongs

by Corey Robin on September 27, 2014

Jeffrey Toobin has a fascinating piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.

Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so ghastly that the coroner wouldn’t allow Catsouras’s parents to see the body.

Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.

Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or our loved ones shared on the internet. Because it provides such a powerful sluice for the spread of that information or those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.

In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:

The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”


While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they deal with them at all, in a piecemeal fashion.

Europe’s position, Toobin reports, comes out of the continent’s long experience with state surveillance, with governments making use of personal data in ways that presumably the American state has not. He cites the case of the Nazis in the Netherlands and the Stasi after the war. (Though what about J. Edgar Hoover? I remember reading somewhere—though I’ve never been able to find where, which makes me wonder if I just made it up—that the ratio of government informers to population in the US during the Second World War was almost on par with that of postwar East Germany.)

In any event, Toobin concludes, there’s a difference between Europe and the US when it comes to the right to privacy on the internet.

And yet…

As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.

As Siva Vaidhyanathan helpfully explained to me, Google is required by law to honor the claims of those who own specific words or images by refusing to link to that copyrighted material and by removing, when asked, any links to it (Google also will not allow anyone to post copyrighted videos on YouTube, which it owns.)  So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them.

That threat of copyright violation, Toobin explains, can be very effective.

In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”


I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin expertly presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.

What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.

I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is  a property right. (Siva said he thinks it’s just that copyright has powerful corporate defenders and wealthy lobbies; privacy does not.)

The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. And though Henry Farrell wrote to me in an email that there is an increasing trend in the US to treat privacy as a property right, the fact is that the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).

Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.

It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not. (If I remember correctly—it’s been a while—one of the cornerstones of the legal theory of hate speech, at least as scholars like Mari Matsuda, Charles Brown, Kimberlè Crenshaw, and Richard Delgado laid it out, was the attempt to extend the protections of libel law to an entire social group or class, so that disfranchised collectivities, like African Americans, could receive the same legal protections for their social status that powerful individuals traditionally had received for theirs. As they argued, when the personal reputation of a wealthy individual is at stake, the law could be far less solicitous of the free speech claims of that individual’s critics, reputation being a kind of property right that the state ought to protect. As I say, it’s been a while since I read this literature, so I could be completely misconstruing it. But I digress.)

The whole discussion in Toobin’s article reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and other public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause because the travel of African Americans to and from the South involved interstate commerce, and ending segregation in these public accommodations would facilitate such travel and, by extension, interstate commerce.

In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was nonetheless discomfited by the Court’s resting Title II on that provision of the Constitution. He would have preferred to rest it on Congress’s power under the 14th Amendment.

Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.


But American being America, commerce ruled. And rules. Like property.

What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”

{ 185 comments }

1

yo 09.27.14 at 4:18 am

google “publicity rights” — it’s not just for movie stars.

2

Chris 09.27.14 at 4:47 am

So the ultra-rich get to edit their lives. Like the Walton sister who got her DUI expunged. It doesn’t exist anymore. How are such abuses stopped?

3

david 09.27.14 at 6:52 am

the Douglassian interpretation of private property, if it had prevailed, would have had an interesting impact on jurisprudence over the last five decades or so:

But there are stronger and more persuasive reasons for not allowing concepts of private property to defeat public accommodations legislation. The institution of private property exists for the purpose of enhancing the individual freedom and liberty of human beings. This institution assures that the individual need not be at the mercy of others, including government, in order to earn a livelihood and prosper from his individual efforts. Private property provides the individual with something of value that will serve him well in obtaining what he desires or requires in his daily life.

Is this time-honored means to freedom and liberty now to be twisted so as to defeat individual freedom and liberty? Certainly denial of a right to discriminate or segregate by race or religion would not weaken the attributes of private property that make it an effective means of obtaining individual freedom. In fact, in order to assure that the institution of private property serves the end of individual freedom and liberty, it has been restricted in many instances. The most striking example of this is the abolition of slavery. Slaves were treated as items of private property, yet surely no man dedicated to the cause of individual freedom could contend that individual freedom and liberty suffered by emancipation of the slaves.

There is not any question that ordinary zoning laws place far greater restrictions upon the rights of private property owners than would public accommodations legislation. Zoning laws tell the owner of private property to what type of business his property may be devoted, what structures he may erect upon that property, and even whether he may devote his private property to any business purpose whatsoever. Such laws and regulations restricting private property are necessary so that human beings may develop their communities in a reasonable and peaceful manner. Surely the presence of such restrictions does not detract from the role of private property in securing individual liberty and freedom.

Nor can it be reasonably argued that racial or religious discrimination is a vital factor in the ability of private property to constitute an effective vehicle for assuring personal freedom. The pledge of this Nation is to secure freedom for every individual; that pledge will be furthered by elimination of such practices.

instead zoning, too, has become understood to be in tension with private property, and regulatory taking has developed a complex raft of jurisprudential criteria

4

Chris Bertram 09.27.14 at 7:00 am

Seems to me that the piece is running together two things that ought to be distinguished, in treating privacy law and copyright as two means to achieve the same objective.

You need copyright law so as to give the creator of a work protection against exploitation and a means to profit from their work. Sadly, copyright law is somewhat broken at this point, since, on the one hand it is being stupidly extended to suit large corporations and, on the other, it doesn’t work effectively to protect creators. See, for example, this rather good piece on an insect photographer:

http://arstechnica.com/tech-policy/2014/09/one-mans-endless-hopeless-struggle-to-protect-his-copyrighted-images/

Privacy law, on the other hand, needs to protect people against some intrusions (telephoto lenses into their living rooms, upskirt photos by voyeurs – recently protected in Texas under the First Amendment), without banning legitimate activity like street photography in public places (for which you also need a definition of “public place”).

Then there’s the third issue of rights in an image that aren’t part of the image owner’s copyright. So, for example, I could take a picture of you in a public place and issue it to the public with a CC license, but if a large corporation then used my image of you in an ad, you’d have rights to redress, compensation (in many jurisdictions). AFAIK, identifiable subjects of photos in the US do have rights against *some kinds* of commercial exploitation (which is why photographers get model releases) but not other uses (such as photos to illustrate a newspaper piece about some event). But it is quite murky, and easy to do the wrong thing.

5

Martin Bento 09.27.14 at 8:45 am

I suppose if we’re going to take a copyright-centered approach, we should decide that you automatically get a copyright in certain kinds of information about you and representations of you. This is a bit of a haul, as the purpose is, as stated, different from the intended purpose of copyright. And, as with libel law, it can go overboard. But the notion that getting stuff purged from search engines achieves most of what getting it purged from the Internet would do without necessitating actual censorship of the Internet is very important. Although I suppose we could see search engines specializing in contraband information if this becomes widespread. But it is hard to maintain high visibility on the Internet and be doing something illegal; enforcement is never perfect, but this approach is promising.

6

John Quiggin 09.27.14 at 9:49 am

The First Amendment is an even more striking instance of US deference to private property rights. Upskirt photos are protected speech, but your employer can sack you for your political opinions (even if you do your best to conceal them) or for failing to demonstrate support for his opinions.

7

Brett Bellmore 09.27.14 at 12:39 pm

“It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe,”

Perfectly natural: The ‘right to be forgotten” is, in essence, a right to dictate to others that they forget what they know, that they erase records they own. An individualist nation does not give people rights in OTHER people’s mental states and knowledge.

It’s a perfect example of the way positive ‘rights’ involve entitling people to diminish other people’s rights.

8

Anarcissie 09.27.14 at 2:10 pm

Brett Bellmore 09.27.14 at 12:39 pm @ 7 —
Actually, privacy rights as discussed here restrain publication, not memory.

9

Bruce Wilder 09.27.14 at 2:24 pm

And copyright restrains publication, not knowledge.

10

Maria 09.27.14 at 3:29 pm

“What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.”

As someone who spends time fighting for privacy and against maximalist copyright protections, I think it’s got little to do with US individualism versus European collectivism, and more to do with organised and richly funded business lobbies creating a body of law that reflects their financial interests. Mind you, the business lobbies have long started to dismember what privacy protections we have in Europe.

What’s mildly positive, though, is how the ‘right to be forgotten’ has triggered the expression of quite a lot of previously latent alarm amongst Europeans about the privileged role Google occupies, and its effective monopoly status. That’s really gathered some steam, this summer, and is no bad thing.

11

MPAVictoria 09.27.14 at 3:40 pm

Speaking just about naked pictures published without the permission of their subjects, I like Emily Bazelon’s idea. She suggests making it illegal to publish a naked image of a person without their consent.

12

Tom Slee 09.27.14 at 3:40 pm

While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press.

There are few better ways for Americans to piss off non-Americans than to argue that a non-American law violates the First Amendment.

13

Tom Slee 09.27.14 at 3:50 pm

I suppose if we’re going to take a copyright-centered approach, we should decide that you automatically get a copyright in certain kinds of information about you and representations of you.

I think a lot of people have gone down this road through to a “markets in personal data” approach to the issue. It’s an approach that appeals to many in the technical world because you can immediately think of ways to incorporate it into software platforms and license agreements.

Despite their initial appeal, markets in personal data are about as attractive as markets in personal organs.

14

bianca steele 09.27.14 at 3:54 pm

The problem that led to the upshot statute in MA was just that they were not “naked” pictures. It was already illegal to take pictures of naked people without their permission. And it was illegal to take pictures of people in their houses, through the windows, without their permission. One assumes TX has not struck down those peeping Tom laws too.

15

Thornton Hall 09.27.14 at 4:03 pm

One of the very important lessons that every college student should learn by studying abroad is that the US obsession with free speech is not a necessary condition for free society. It’s one of those things that is so deeply ingrained in American world view it’s hard to imagine that it is a contingent choice.

Why are we different from Europe? It’s a convenient opportunity to blame our corporations and financiers, but the written Constitution is explanation enough. The positive law makes all the difference. The European Court decision wasn’t like our Supreme Court interpreting a vague concept like “due process”, it came out of the constitutional moment that occurred in Europe in 1989:

Following the fall of Communism, in 1989, the new democracies rewrote their laws to put in place rules intended to prevent the recurrence of these kinds of abuses. In subsequent years, the E.U. has promulgated a detailed series of laws designed to protect privacy. According to Mayer-Schönberger, “There was a pervasive belief that we can’t trust anybody—not the state, not a company—to keep to its own role and protect the rights of the individual.”

It’s not that our culture is different so much as the fact that our positive law on the subject was written in 1789! Constitutional moments are brought on by severe crisis: the Civil War, the Great Depression, and the Civil Rights Movement. We haven’t had a crisis of privacy to the same extent and so we have the old law.

16

Plume 09.27.14 at 4:29 pm

Brett @7,

What a strange deduction. That the protection of your own individual privacy means denying the “rights” of others to know everything about you. That would include what is most deeply personal about your life. Do you really mean that? Do you really see that as some kind of abridgement of the rights of others? That they start out with the “right” to know all about you?

Wow.

17

Plume 09.27.14 at 4:40 pm

A truly excellent book on the matters of copyright law and abuse is Lewis Hyde’s Common as Air. But it’s much more than that. It’s an examination of the history, focusing on early America, of the changes in what is consider protected intellectual property versus what is kept in the commons.

Hyde cites, among many examples, the case of Bob Dylan’s free use of older music when he started out in the early 60s — which would be next to impossible now. Copyright would prevent it. Also, MLK’s “I have a dream speech,” which can’t be excerpted legally without permission from his grandson’s organization . . . . even though MLK borrowed freely from other sources in the making.

I seems an unfortunate linkage to go the copyright route, when it comes to arguments for or against personal privacy. It can pit the right to personal privacy against the idea that it is in our best interest to have the largest possible intellectual legacy for common use. It’s seems like “common sense” that the two things are rarely in fact linked. Or should be.

18

Watson Ladd 09.27.14 at 6:10 pm

@MPAVictoria: Remember Abu Ghraib? Now imagine if the US government had a law to criminalize publication of those photos.

19

Corey Robin 09.27.14 at 6:30 pm

Okay, I’m imagining it, Watson Ladd. Now tell me how subsequent history would have been any different.

20

Ze Kraggash 09.27.14 at 6:51 pm

Naked is embarrassing, I suppose. What about other embarrassing moments: stumbling, grimacing, picking one’s nose? I don’t want any of those pictures of me either. On the other hand: am I allowed to photoshop someone’s face to the nude maja?

21

Watson Ladd 09.27.14 at 7:50 pm

Well, no one would have seen what Lynne England was accused of doing. Or imagine the world without photos of naked corpses found at Auschwitz, or that 10-year old girl burned by napalm. The abuse of privacy laws to cover up information isn’t a hypothetical: it’s why the files containing information on tax evaders in Switzerland were leaked illegally.

Imagine if a supreme court candidate rented Triumph of the Will repeatedly from Netflix and that was the only film they watched. Turns out that revealing this information is a felony.

D-notices have been used to conceal cost overruns in defense programs. We should not be surprised that powers to avoid discussion are used to prevent discussion of matters of public importance.

22

CP Norris 09.27.14 at 8:00 pm

I’m skeptical that this boils down to a fundamental difference between the US and Europe. The Guardian seems fairly angry about these takedowns and is fighting them with the pen.

23

Tom Slee 09.27.14 at 8:01 pm

@Watson Ladd: We should not be surprised that powers to avoid discussion are used to prevent discussion of matters of public importance.

But equally, we should not be surprised that powers to expose unwanted information is used to the benefit of those with power. I am not convinced there is any law for or against transparency that cannot, in an unequal society, be used by those at the top of the tree against those lower down. The problem is the inequality.

24

dsquared 09.27.14 at 8:21 pm

Remember Abu Ghraib? Now imagine if the US government had a law to criminalize publication of those photos.

Privacy laws, unlike copyright laws, tend to have public interest exceptions.

25

afinetheorem 09.27.14 at 8:21 pm

The “right to be forgotten” case is interesting because there wasn’t even any need for a slippery slope – the initial case itself was the end of a slope. A prominent lawyer going bankrupt is surely relevant information for future clients, is it not? This wasn’t a case like an arrest followed by no conviction, where the initial reports, archived forever, would not mention the eventual innocence. It is merely a fact. The endpoint seems pretty clear – the wealthy and famous will be able to wipe their indiscretions from the public record.

I would love the government itself to play a more active privacy-enhancing role. Court and arrest records in general should not be online, for instance.

26

Main Street Muse 09.27.14 at 8:51 pm

“Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.”

While I think the debate over privacy, freedom of speech and copyright protections is important, I found it impossible to get past this horrific story. Who are these people who share pictures of a decapitated teenager to friends on Halloween? Who are the people who then share these photos to a wider audience?

This poor family! Were the police officers punished at all for such an egregious violation of privacy, not to mention a terrible lapse in morality and ethics? I hope they went to jail, but because this is America, I’m sure they’re still on their police beats, unpunished and oblivious to the pain they have caused this family.

27

Plume 09.27.14 at 8:56 pm

Some of the solutions here would just be common sense.

Corporations shouldn’t have “privacy” rights — or at least in the same sense as humans. Individual human beings should.

Throw in illegal or suspected illegal actions, and you have yet another way of separating things. It is not illegal, for instance, to take nude selfies. There is no “public interest” served by making them public.

Basically, if a company’s actions could do harm to the public, the public should be able to know about it. About their risks. Texas, for instance, has laws in place to protect the privacy of businesses so that local populations don’t know about toxic sites, fire risks, risks of explosion, etc. etc. They don’t even have fire codes or mandated sprinkler systems, etc. Business is put first. The health and safety of people is an afterthought.

http://www.nytimes.com/2013/05/10/us/after-plant-explosion-texas-remains-wary-of-regulation.html?pagewanted=all&_r=0

Excerpt:

Texas has always prided itself on its free-market posture. It is the only state that does not require companies to contribute to workers’ compensation coverage. It boasts the largest city in the country, Houston, with no zoning laws. It does not have a state fire code, and it prohibits smaller counties from having such codes. Some Texas counties even cite the lack of local fire codes as a reason for companies to move there.

But Texas has also had the nation’s highest number of workplace fatalities — more than 400 annually — for much of the past decade. Fires and explosions at Texas’ more than 1,300 chemical and industrial plants have cost as much in property damage as those in all the other states combined for the five years ending in May 2012. Compared with Illinois, which has the nation’s second-largest number of high-risk sites, more than 950, but tighter fire and safety rules, Texas had more than three times the number of accidents, four times the number of injuries and deaths, and 300 times the property damage costs.

As federal investigators sift through the rubble at the West Fertilizer Company plant seeking clues about the April 17 blast that killed at least 14 people and injured roughly 200 others, some here argue that Texas’ culture itself contributed to the calamity.

28

Bloix 09.27.14 at 9:05 pm

#15 – the First A as we know it today is a product of the last few decades of the 20th c, not of the 1789 Constitutional Convention. First of all, by its terms it does not apply to states or to the executive branch or to judicial activity or to the actions of the government as an employer -the extensions to those areas all occurred in the last few decades. Second, it did not even bar Congress from enacting laws against what would now obviously be considered free speech. Eugene V. Debs spent five years in prison and was disenfranchised for life for giving a speech supporting draft resisters in the First World War. The Supreme Court upheld his conviction.

29

Frank Wilhoit 09.27.14 at 9:13 pm

The “right to be forgotten” is simply a form of censorship and a means of reducing accountability. Neither of these goals are acceptable. The foregoing statement was, and is, not conditional.

Speaking as a creative artist, the only practical effect of copyright is to suppress new work. Unpacking that assertion would take a lot of space, so “details on request”.

There are two copyright reforms that are absolutely necessary: 1) prohibit assignment of copyright; 2) anything that ceases to be exploited falls thereby into the public domain.

It is not widely understood that copyright law over most of the world has now been defined in such a way that the public domain is now closed; nothing will ever enter it again. Canada is an exception: for the moment, they are being pretty good about life-plus-50, but this makes them an outlier and it cannot be expected to stand.

30

Thornton Hall 09.27.14 at 9:39 pm

@28 That’s just not true. Strong free speech protections were in state constitutions before and after the Bill of Rights was incorporated thru the 14th.

31

Antoine 09.27.14 at 10:22 pm

Re. Europe vs the U.S. , in the case of France (the case I know ) , I always thought it was a aristocratic/democratic and catholic/protestant divide . In accordance with their aristocratic values, the French, in the public sphere, are concerned foremost by reputation , and try as much as is possible to protect it , while the anglo-saxons value “sincerity” ( lying in public is a cardinal sin , cf perjury , Clinton in Lewinski case ) . Sincerity for the French is a form of naiveté ( Snowden is a simpleton ) . The “right to be forgotten” protects the public persona and reputation at the expense of public sincerity .

32

dsquared 09.27.14 at 10:49 pm

The endpoint seems pretty clear – the wealthy and famous will be able to wipe their indiscretions from the public record.

No, from search engines and subject to a public interest test. The courts were clear on this; nobody wanted the newspapers themselves to remove anything from their websites.

33

MPAVictoria 09.27.14 at 11:14 pm

Maybe I am an idiot but I fail to see what public interest is being served by publishing photos of someone naked without their consent.

34

Watson Ladd 09.27.14 at 11:14 pm

Instead of burning books, one should remove them from the card catalogue. That way you get to make them hard to find, while still avoiding censorship in the eyes of everyone else.

35

Matt 09.27.14 at 11:40 pm

@28 That’s just not true. Strong free speech protections were in state constitutions before and after the Bill of Rights was incorporated thru the 14th.

That only did people any good if they were prosecuted under state law, though. If they were prosecuted under federal law (as Debs, mentioned by Bliox, was, as were many others supporting socialism of various sorts) then the state constitutions did them no good. The Debs prosecution is really one of the low-lights of American history – someone prosecuted, and sent to prison, for engaging in what was, by any plausible theory, _core_ free speech.

36

Anarcissie 09.27.14 at 11:44 pm

Watson Ladd 09.27.14 at 11:14 pm @ 33 — Back before the Internet, it was pretty hard for most people, especially those without the right connections, to get something published, although of course everyone (with sufficient money) was perfectly free to buy or rent a printing press. If one did get something somehow printed, it was pretty hard to get it distributed or noticed. Even if it was made widely available, it was pretty hard to get it into bookstores and libraries. So, while there was no censorship, a large amount of material was effectively suppressed. In that sense, it was unnecessary to remove the card catalog; the unwanted material never got into the catalog in the first place.

37

Collin Street 09.28.14 at 12:16 am

D-notices have been used to conceal cost overruns in defense programs. We should not be surprised that powers to avoid discussion are used to prevent discussion of matters of public importance.

But D-notices have no legal authority, Watson. They’re — formally — nothing more than requests, without teeth.

[There’s no point worrying about “what bad guys would do if they got into power with law X in place”, because the bad guys will do the same thing as if law X isn’t there: whatever they want, the legal formalities be damned.]

38

Joshua W. Burton 09.28.14 at 1:18 am

The idea that (1) privacy is a property right, but (2) a very special inalienable sort of property right, whose violation is neither subject to implied consent nor settled by financial compensation, is straight Talmud. See Bava Batra 2:2 and 3:7 in the Mishna, with disputes in the Gemara (BB 59a/b) leading to Ḥoshen Mishpat 154-55, 157 in the medieval Shulḥan Arukh. In Jewish law, the category is הזק ראייה (ḥezek re’iyah), “damage by seeing” or visual trespass.

Among the interesting and still relevant parameters that the sages identified (the prototypical Talmudic example is a window overlooking a courtyard): the mere existence of the possibility of visual trespass already creates a tort, because knowing you may be observed without notice impairs your enjoyment of privacy. Also, the offense is ongoing and renewed, every moment that the window exists, and not dependent on any action by the offender — and, therefore (unlike, say, a habitual walking trespass or a surveying dispute) no failure to object in the past can confer implied future consent, and no fixed sum of money can extinguish an unmeasurable future loss. The Rashba (13c, Barcelona) goes even farther, citing Numbers 24:2 as evidence that the modesty of the people in their dwellings (“encamped tribe by tribe”) is Divine will — or, in modern cant, a “fundamental human right” — and that a local custom not to insist on privacy protections, of whatever unanimity and pedigree, is erroneous and has no legal force.

The Israeli Supreme Court, at least, loves to root its foundational rulings in this kind of source, leaving the question of whether they are doing so in the spirit of the USSC citing Marcus Aurelius, or citing John Marshall, to artfully ambiguous winks and nods. I think European and American courts, looking for deep conceptual guidance upon which to build a legal theory of virtual trespass in the digital age, could find something here as well.

39

Joshua W. Burton 09.28.14 at 1:27 am

dsquared @31:
No, from search engines and subject to a public interest test. The courts were clear on this; nobody wanted the newspapers themselves to remove anything from their websites.

And when I build a website entitled “stuff they took down from Google,” filtered for your prurient convenience by month and subject? Note, in particular, that the Internet Archive wayback machine is already pretty close to this: is it a search engine, or a news source? How automated does its “investigative journalism” have to be, before the contents of its caches cease to be protected content and become mere search results?

40

Joshua W. Burton 09.28.14 at 1:29 am

That’s hezek re’iyah, not ḥezek re’iyah.

41

temp 09.28.14 at 1:52 am

How much can it really matter in practice? Nothing that goes on the public internet ever gets off. As strong as copyright may be in the US in legal terms, millions of people use piracy as their primary means of access to copyright material. Contrary to the New Yorker article, it is still very easy to find the celebrity naked selfies (it was the third link on google for a one-word search).

42

Thornton Hall 09.28.14 at 3:23 am

@35 Oh c’mon. There were no Federal Crimes until the 20th Century! The Secret Service guards the President because Treasury Agents going after counterfeiters were the only non-soldiers with guns.

And in territories there were some US Marshals.

43

Thornton Hall 09.28.14 at 3:26 am

The Debs decision stands for the same thing as Korimatsu: the Court will do crazy shit it the name of national security. It’s just not a good landmark for 1st Amendment history.

44

Thornton Hall 09.28.14 at 3:33 am

@33 One of the central themes of free speech absolutism is to rule this question out of bounds. Part of the problem is that so much of the discussion takes place in the press. They see the 1st Amendment and the “marketplace” of ideas theory as the justification for making a living by exploiting misery. Somehow even TMZ is vital for democracy in this scheme. It’s all so very noble.

Meanwhile, the actual heros are Ellsburg, Snowden, Manning and (though cowardly) Mark Felt.

45

Joshua W. Burton 09.28.14 at 3:50 am

Thornton Hall @42: The Secret Service guards the President because Treasury Agents going after counterfeiters were the only non-soldiers with guns.

I’ve always thought it would be interesting to put together a list of all the Federal departments, agencies and branches that can shoot you. I’ll start . . . would love it if more knowledgeable folks would join in.

Department of Agriculture (forest rangers)
Department of Commerce (IRS, US Mint, NOAA)
Department of Defense (DCIS, service MPs)
Department of Energy (nuclear security officers, national lab guards)
Department of Health & Human Services (FDA)
Department of Homeland Security (Coast Guard, customs, air marshals, TSA)
Department of Justice (FBI, ATF, US Marshals, Bureau of Prisons)
Department of the Interior (park rangers, Fish & Wildlife, Indian Affairs)
Department of State (diplomatic security service)
Department of the Treasury (USSS)
Department of Veteran’s Affairs (have their own police)
CIA, NSA, Federal Reserve, Capitol police, Library of Congress, Smithsonian, National Zoo, US Postal Service, US Supreme Court bailiffs . . . .

46

Joshua W. Burton 09.28.14 at 4:01 am

Department of Transportation (FAA, Merchant Marine Academy)
DEA, NIH, EPA, NASA, General Services Administration, Amtrak, Social Security and the Railroad Retirement Board, Tennessee Valley Authority, Office of Personnel Management, the Government Printing Office . . . .

47

Meredith 09.28.14 at 5:26 am

“I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is a property right.”
This put me in mind of problems in my Massachusetts town with drainage issues and property. I don’t know if it’s just my town or state codes, but unlike in many communities in the northeastern U.S., here in my MA town, if changes made by owners of an adjacent property turn my garden into a swamp or my basement into a river, I have no recourse, at least, none I (or others like me) have yet found.
But then, I learned recently of an interesting case. A property owner’s basement was flooded because of a leaking town water main. The town refused responsibility for flood repairs, with good legal justification, apparently. Until the homeowner’s lawyer found a way. The town’s water had trespassed! The town paid up.
Which is to say, law works in mysterious ways but its mysteries do have their own logic.
I’ll conclude: as deep background for all this, I’d check into the idea of the patent, from its colonial(ist) origins. God and the state.

48

dsquared 09.28.14 at 5:59 am

How automated does its “investigative journalism” have to be, before the contents of its caches cease to be protected content and become mere search results?

As the post above makes clear, the relevant concept is not “protected journalism”, it’s the extent to which your hypothetical website impinges on people’s right to a private life, considered against the relevant public interest.

49

Joshua W. Burton 09.28.14 at 2:05 pm

I’m sorry; I don’t mean to be stubborn, but I’m still not understanding the delimiting principle (between “search engines” and “the newspapers themselves”) in light of Costeja and with regard to the privacy / public interest test. The ECJ ruled that Google could not have the foreclosure notice appear in a web search, while, as you say, no one wanted La Vanguardia to redact the digitized article.

Can the publishing newspaper index their own article for search? Can a third party, say a physical library (that also stores physical microfiche of La Vanguardia for its patrons)? Can a specialized search engine that indexes legal proceedings in Spanish real estate? That indexes potential free speech infringements by courts throughout the world? That indexes whatever’s fit to print?

If, as @32, “nobody wanted the newspapers themselves to remove anything,” then the newspaper enjoys a public interest exemption from the EU Data Protection Directive that Google does not enjoy. I’d like to understand what kind of an entity I would have to be, in order to aggregate a lot of newsworthy data about individuals, make it publicly searchable, and still be more like La Vanguardia than like Google.

50

Watson Ladd 09.28.14 at 2:21 pm

Collin, you may be right about the legal mechanism, but the Zircon affair involved police raiding reporters, confisticating copies of a film that would have embarrassed the government using the secrecy of the projects involved as an excuse.

51

Bloix 09.28.14 at 2:23 pm

#35 – “There were no Federal Crimes until the 20th Century!”
The Sedition Act was enacted in 1798. The Comstock Law was enacted in 1873. To name two federal statutes that criminalized speech.

52

Tom Slee 09.28.14 at 2:32 pm

I’d like to understand what kind of an entity I would have to be, in order to aggregate a lot of newsworthy data about individuals, make it publicly searchable, and still be more like La Vanguardia than like Google.

That’s a really interesting question and I don’t pretend to have a solid answer, but surely a precondition is that you are accountable for your service.

A newspaper has to stand by the facts of its stories (in principle at least) or it is guilty of libel. There is a mechanism for calling newspapers to account. When push comes to shove Google does not stand by the results of its searches, and does not want the responsibility of doing so — it maintains that it is not accountable for them.

53

Anarcissie 09.28.14 at 3:16 pm

‘A newspaper has to stand by the facts of its stories (in principle at least) or it is guilty of libel. ‘

Only in very limited cases. Generally, a newspaper is free to tell lies. And Google and other media are certainly free to publish notices that X said Y about Z, etc. without having to check the truth of Y, just as you are.

54

Tom Slee 09.28.14 at 3:55 pm

@Anarcissie – Generally, a newspaper is free to tell lies.

I dispute that. There are several mechanisms of increasing severity for imposing *some kind* of accountability on newspapers. There are direct complaints (which may lead to apologies or corrections); there is a Press Complaints Commission or equivalent, and then there is libel as a last resort. To answer JWB’s question: journalists and newspapers get their privileges because they submit to some form of accountability mechanism.

What is Google’s accountability mechanism? Whether the “right to be forgotten” sticks or not, the idea that Google does not need to be accountable for it’s service cannot hold. The days of “it ain’t me guvnor, it’s the algorithms” are surely over, and it’s a good thing.

55

dsquared 09.28.14 at 4:31 pm

49 doesn’t appear to have read 48 and I’m not inclined to repeat myself.

56

Anarcissie 09.28.14 at 4:34 pm

When I say ‘a newspaper is free to tell lies’ I mean they are free to do so without being punished by law. (As are any other media.) It’s called ‘free speech’. They may be sued for libel, but that is a rather restricted area. In general, lying is legally permissible. I believe that principle has been upheld in court more than once. (I am surprised it even got to a court.)

It is possible that newspapers and other media might be punished by their customers for lying. On the other hand, their customers might prefer lies. The popularity of certain media cannot be explained otherwise.

In any case, given the principle of freedom of expression, I can’t see how Google could be restrained from truthfully reporting someone else’s statements or expressions. The fact that they choose to suppress some things, or downgrade the position of others in their search results, seems more troubling — what are they hiding? However I suppose they can reasonably argue that if they did not edit their results they would be overwhelmed by SEO gamers, vandals, trolls, spammers, and so on; and no doubt, just as they have a right to speak, they also have a right to refrain from speaking, for whatever reason.

The quasi-monopoly position of Google is disquieting, but it is what the people have chosen, just as the people chose to allow Microsoft to afflict us monopolistically for a generation. They didn’t acquire it by force or fraud, as far as I know.

57

Tom Slee 09.28.14 at 4:54 pm

56 doesn’t appear to have read 54 and I’m not inclined to repeat myself.

58

Joshua W. Burton 09.28.14 at 6:30 pm

55 doesn’t appear to have read 49 or 48, and I think we have epistemic closure.

59

Jake 09.28.14 at 7:07 pm

The concept of holding Google accountable for its searches is an interesting one – what did you have in mind?

Newspapers don’t have to stand by the truthfulness of someone they quote, just that they quoted them accurately (I think? Maybe different in other countries…) and Google is doing something much closer to quoting someone than original reporting.

So maybe Google can libel someone by linking to a story about them that was believed true at the time but is now known to be false; surely whomever is publishing the story thus linked has an obligation to correct it as well. Or not?

60

Zamfir 09.28.14 at 9:12 pm

@ Tom Slee, I am not a lawyer, but I think the relevant point was that Google was deemed to act as a database that collected information on individuals. There is an EU directive specifically about that. It includes that the database keeper has to put in good effort to keep the database information correct and up to date, and that they need a reason why they want to keep specific information on file.

Google claimed that there automatically- generated search result were not a file on a person, but just a reflection of the wider internet. The court rejected this, partially because google puts in signifciant effort to filter the information and to present it as a useful set of information on the person.

So I think ( but again IANAL) that the difference between the news paper a
nd google is that the newspaper does no organize its old articles as a file on individual people.

Google’s first line of defense was that they did not fall under European law, because its search engine was based in the US and its European daughter firmz only sold advertisements. The affair left me with a bad taste about Google. The legal wrnsgling, the lobbying and its astroturf organizations warning about Freedom, tthd deliberately publicized deletions of controversial cases.

I couldn’t see any suggestion that google cared about people worries, or was in good faith willing to find a widely acceptable compromise.

61

Thornton Hall 09.28.14 at 9:14 pm

@51 This must be how I make the economists feel!!! Random bits of history referenced without understanding are no substitute for legal training.

The Comstock Act was about the postal service, which only serves to emphasize the exact point I was making. The only areas of Federal Criminal Law in the 19th Century were directly related to core executive branch activities such as printing money and operating a post office, where as states were sovereign in the area of what are called “police powers” to legislate protections for the health, safety, and morals of its citizens. Moreover, to the limited extent that the Comstock Act is about Free Speech, it is an early time, place, and manner restriction. You, I am sorry to say, do not have the right to commandeer a federal employee for the purpose of distributing sexy pictures. You can distribute them all you want, but the federal employee who delivers the mail won’t do it for you.

And the Alien and Sedition Acts are important for exactly the opposite reason you cite them for. Rather than marking out a clear Federal Power, the response and subsequent repeal of those acts established a clear precedent in favor of free speech.

62

Brett Bellmore 09.28.14 at 9:26 pm

Of course newspapers, in America at least, tell lies without legal consequence. They do it by quoting liars, and the pick which lies they want to tell, by picking who they quote.

And then, when you contact their corrections department with evidence that something they’ve published is untrue, they tell you their only responsibility is getting the quote right. (Which I agree should be their only legal responsibility, but not their only moral one.)

Google, by contrast, doesn’t even pick and choose. They’re about as responsible for what’s on the internet, as the phone book is responsible for telephone conversations.

63

Barry 09.28.14 at 9:38 pm

Thornton Hall
“@35 Oh c’mon. There were no Federal Crimes until the 20th Century! The Secret Service guards the President because Treasury Agents going after counterfeiters were the only non-soldiers with guns.

And in territories there were some US Marshals.”

Let’s start with ‘everywhere there were Federal Marshals’, and work from there.

64

Joshua W. Burton 09.28.14 at 10:00 pm

Zamfir @60: So I think (but again IANAL) that the difference between the newspaper and Google is that the newspaper does not organize its old articles as a file on individual people.

Aha — now we’re getting somewhere. So the privacy / public interest balance dsquared mentioned before he got cranky is met by the newspaper, not by better serving the public interest (by, for example, being informative and trustworthy and accountable), but by better protecting individuals’ privacy (by having a crappy search feature that is insufficient to the invasive purpose). The Costeja test is not journalistic accountability, it’s just Luddism. Build a better UI to existing, public data, and you tip the balance and become a privacy violator.

This isn’t necessarily a stupid approach: sometimes, large quantitative changes in indexing efficiency become qualitative changes in threat model. Phil Agre made this point about ubiquitous face recognition almost 15 years ago; search on “privacy Chernobyl.” I am not even sure I disagree with the ECJ line, but as a practical matter of jurisprudence, it’s an extraordinary precedent for a lower court to be asked to follow. “Your search feature must be at least this bad, or you can’t archive your own newspaper.”

65

Thornton Hall 09.28.14 at 11:23 pm

@63 I don’t really understand the motivation here. Sometimes things just aren’t up for debate.

The US Marshal Service were agents who were paid not a salary, but collected fees for doing things like serving civil process and conducting the US Census. They did have a role enforcing the fugitive slave act, which really has nothing to do with anything.

What’s going on here? Is there some theory of Maxism or Anarchism or Veganism or something that needs for there to be Federal Law Enforcement cracking down on free speech? Why keep debating this point?

The 20th Century growth of the Federal role in criminal law is a well documented and important phenomenon. Why disagree?

66

Collin Street 09.29.14 at 12:11 am

Collin, you may be right about the legal mechanism, but the Zircon affair involved police raiding reporters, confisticating copies of a film that would have embarrassed the government using the secrecy of the projects involved as an excuse.

You kind of need to think about the legal mechanism behind D-notices if you’re trying to frame the law so as to prevent abuses of D-notice type instruments.

D-notices have no legal authority
-> states don’t need legal authority to engage in those sorts of abuses
-> a refusal to authorise censorship will not prevent D-notice abuse

Which was my point, which I thought you were arguing against.

67

Tom Slee 09.29.14 at 1:04 am

Zamfir – thanks. Surely the fact that Google ranks information makes it more than a database, which is pretty much by definition an unordered collection, but then IANAL either.

JWB #64: Build a better UI to existing, public data, and you tip the balance and become a privacy violator.

Your use of “better” does, as they say, a lot of work here. The ranking is not just a matter of efficiency or “better”, it’s a judgement of significance and is essential to Google’s function (the algorithm was called PageRank, after all). It is true that the “right to be forgotten” action focuses on the binary fact of an entry being in the index or not, and that is unfortunate, but the issue is mainly a problem when Google elevates entries that mischaracterize people high up on their list. They have to be accountable for their definition of “better” at some point, beyond what sells to advertisers.

68

Zamfir 09.29.14 at 4:59 am

For those interested, here is the ECJ’s press release.

http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf

On closer reading, my posts are above are not correct. The processing of information was an important reason why Google carries a responsibility as data collector, but it is not a difference with the newspaper. The ECJ decision is solely about Google, because a Spanish court had already ruled on the newspaper.

69

Brett Bellmore 09.29.14 at 10:32 am

” Surely the fact that Google ranks information makes it more than a database, which is pretty much by definition an unordered collection, “

Granted, my last programming course was in the early 80’s, but when did they change the definition of a database to demand that it be perfectly useless?

70

Tom Slee 09.29.14 at 12:06 pm

Brett Bellmore – one of the foundational rules of relational databases is that the order of rows has no significance, yet they are very useful: it’s the query that imposes the order just as it’s Google’s PageRank and its successors that impose an order on search results.

(Also: it is depressing to be part of a constructive discussion and then have you insert something that is eye-rollingly sarcastic, ungenerous in your reading, and self-confessedly ignorant. Why would you bother? It invites a sarcastic response and there are enough of those kind of dialogs elsewhere on the Internet.)

71

bianca steele 09.29.14 at 12:32 pm

Tom, that’s not quite right, but I applaud your willingness to increase the amount of technical obfuscation on the Internet in order to win an argument. OTOH I would feel bad taking away humanities majors’ ability to use figurative language to describe technology in their own fora, and no one should expect to come to such a place for technically accurate information. So carry on.

72

Collin Street 09.29.14 at 1:54 pm

> Why would you bother?

Well, he could be doing it deliberately or subconsciously to disrupt conversations that are going in directions that make him feel uncomfortable.

Or he could just be fucked in the head to the point that he doesn’t care/realise how disruptive his behaviour is.

[you see why I say that autism is the charitable conclusion?]

73

Tom Slee 09.29.14 at 1:59 pm

bianca – I (literally) do not understand your comment. I *think* you are suggesting that my comment is inaccurate (“not quite right”), intended to confuse (“technical obfuscation”) and nefarious (“obfuscation… in order to win an argument”), but I am not sure who the humanities major is in your comment (me? Brett Bellmore? others?)

Maybe this part of the thread has outlived its usefulness, but I do *sincerely* believe that there is something deeply wrong with the idea that Google’s search results (yes, including ordering — what it highlights and what it buries ten pages deep) should have the full protection accorded to journalism without any accountability mechanism (however faulty). And with the idea that Google search results are somehow protected by freedom of speech.

74

Brett Bellmore 09.29.14 at 2:11 pm

Tom, I learned to program in the ancient days of core memory and punch cards, when we actually *sorted* databases. A hash was something you had for breakfast. So excuse me for being surprised to be told that NOT being orderly is now considered a defining characteristic of a database.

75

Layman 09.29.14 at 2:33 pm

“So excuse me for being surprised to be told that NOT being orderly is now considered a defining characteristic of a database.”

Excuse me for surprising you further, by telling you that ‘orderly’ and ‘ordered’ are not necessarily the same thing.

76

sPh 09.29.14 at 2:40 pm

Relational databases as defined by Codd are unordered. Codd discusses this choice vs. other hierarchical (IMS) and ordered databases which were widely used in the 1960s in his original paper (A Relational Model of Data for Large Shared Data Banks, Communications of the ACM, Volume 13 Issue 6, June 1970; Pages 377-387; ACM New York, NY, USA)

Ordering in a relational database is done via the ORDER BY operator on the SELECT statement. Without an order by, no specific return order of rows is guaranteed.

This concept is restated explicitly in the documentation for the Oracle RDBSM, PostgreSQL, and DB2. However, there are of course implementation realities underneath every actually-used system, and Microsoft chose to implement Access in particular and later MS SQL Server in such a way that it appears to the beginning programmer that there is a defined order to rows as they are entered into the data store. Even with MSSQL this is not 100% true, but learning in that environment leads to some horrendous bugs (I’ve seen life-threatening ones) when Microsoft-trained programmers work in an Oracle or DB2 environment.

If Brett trained on IMS or strictly indexed flat file databases of the 1965-1985 time period then he may not be aware of this.

77

JanieM 09.29.14 at 2:44 pm

RAMSDEN. [touched on his most sensitive point] I deny that. I will
not allow you or any man to treat me as if I were a mere member of
the British public. I detest its prejudices; I scorn its narrowness; I
demand the right to think for myself. You pose as an advanced man. Let
me tell you that I was an advanced man before you were born.

TANNER. I knew it was a long time ago.

(From Man and Superman, by GBS)

78

William Timberman 09.29.14 at 3:00 pm

The more powerful the computing hardware, the less need there is for highly structured and separately stored metadata. If Google (and the NSA) demonstrate anything conclusively, it’s that search and ranking algorithms can construct metadata on the fly. If all your books are e-books, and you have adequate access to the cloud, as Google and the NSA do, you don’t — or soon won’t — need a card catalog or its electronic equivalent to be a successful researcher, or a successful snoop for that matter.

This, it seems to me, is the real reason why the debate has shifted from what is published to what and how much is stored, who has custody of and access to it, and how long it is kept.

79

Layman 09.29.14 at 3:03 pm

Tom Slee @ 73

I share your concern. Consider that what Google claims to do is analogous to what credit reporting agencies (e.g. Experian) purport to do: In response to a query about an individual, they provide relevant information. There are regulations governing credit reporting though they are poorly enforced – agencies must provide accurate information, must validate the information on demand, must correct or remove inaccurate or irrelevant information, must provide you with the information they have provided in response to such requests. I imagine such regulations don’t permit agencies to decide which information to emphasize and which to suppress, though such things are factored into their overall reported score.

80

Brett Bellmore 09.29.14 at 4:21 pm

“If Brett trained on IMS or strictly indexed flat file databases of the 1965-1985 time period then he may not be aware of this.”

Bingo, I did a very brief stint of programming in 1983, and that’s about it, just a filler job until I started my real career. Just surprised that somebody would define a database by not being ordered, rather than just not define it by being ordered. Seems gratuitous…

81

Dave Timoney 09.29.14 at 4:37 pm

Unfortunately, this post, like the New Yorker article, makes the error of assuming there is a dichotomy between US free speech and European respect for privacy. There isn’t. Both boil down to property rights.

The EU Court’s judgement in the Costeja case concerned the plaintiff’s right to curate his profile to suit his current self-image: [Google Search] “enables any internet user, when he makes a search on the basis of an individual’s name, to obtain, through the list of results, a structured overview of the information relating to that individual on the internet … [which constitutes] a more or less detailed profile of the person searched against”.

This was summed up by Viviane Reding, the relevant EU Commissioner: “Companies can no longer hide behind their servers being based in California or anywhere else in the world”. And “The data belongs to the individual, not to the company”. As this suggests, this is a tussle between neoliberal power blocs over national data assets.

The US focus on free speech does not imply a lesser regard for property rights, but the reality of current power relations. The US tech giants have control of the property – our data assets – and see free speech as the easiest way of defending the status quo. The EU is not arguing for a negative freedom, in the sense of the right to be obscure and thus not individuated, instead it is advancing a positive freedom, the freedom to own and manage.

An interesting aspect of the judgement is the continuing European evolution of personal data as an extension of the person, which contrasts with the US fashion for seeing the person as an extension of data: the quantified self.

More detail here: http://fromarsetoelbow.blogspot.co.uk/2014/05/i-do-not-care-to-remember.html

82

bianca steele 09.29.14 at 4:55 pm

Tom–

I don’t know whether you’re trying to throw random, not quite to the point, misleadingly phrased factoids at BB, to win the argument, or whether you’re insisting on some “deeper” or–to use CS’s terms–“less autistic” use of language that a mere techie wouldn’t understand, sincerely, and not just to throw your opponent off-balance. (The off-balance throwing seems to have inspired Zamfir to rethink a few times and come up with a clarification of his first argument, which I guess is a bonus, but not a direct effect of any work performed by your comments.) “One of the foundational rules of the relational database” is an incredible non sequitur. To claim that any order imposed by a database is imposed by a query isn’t even a non sequitur (even in a relational database, it’s perfectly possible to have a column to represent a sequence). And so on.

I’m making no claim about what protections Google should have, where, but where these discussions always go is to the claim that the concepts that are appropriate for use in the political and legal argument are independent of possible, merely technical objections, and that if you criticize you must be the enemy. I don’t believe that’s the case in reality but if it’s true on the Internet, I’ll just be bowing out.

83

Bruce Wilder 09.29.14 at 5:19 pm

Layman @ 79 (3:03 pm): I imagine such regulations don’t permit agencies to decide which information to emphasize and which to suppress, though such things are factored into their overall reported score.

There’s a lot to unpack in that single sentence, including imagining that there are such regulations, but what I would draw especial attention to is that there is “a score,” a single index number, compiled and then used in the society as a control.

The score is the part of the system, where the claim of copyright is designed to be legally strongest — the data is just copyright-immune data, but synthesizing a score gives the score the legal protection due to property. Then, the score’s use as a control, extends this property interest into a means to exploit the individual person — a part of one’s identity owned by business and used to exploit the individual.

We have all this instantaneous access to statistical data, and our use of it is to reduce it to an index number, a single dimension, and eliminate human judgment. It is not obviously a technical requirement: we have vast, distributed computing hardware power — a moderately powerful laptop could both house the entire credit-reporting database and compute any number of profile scores, to help an individual make sense of the data for particular purposes. But, we don’t do that. We don’t create a user interface that enhances human judgment in a supple way, enabling easy use of access to vast data resources. Instead, we rely on a “score”.

Eliminating human judgment facilitates a greatly increased scale and concentration of power and authority. The function of the index number is to eliminate human judgments, but it does so, at a cost in informational efficiency. The use of scores in mortgage-lending and security underwriting played a central part in creating the “gaming of the system” that created the widespread fraud, which in turn drove the bubble that led to the 2008 Global Financial Crisis. The loss of informational efficiency need not be trivial in its consequences.

An index distills information and filters information, and its use as a control invites the subjects to game the system, but maybe that’s a feature, not a bug. When faced with identifiable human judgment in a potential credit or employment decision, the subject of the judgment, attempting to “game the system” is simply entering into negotiation with the judge.

I think one could argue that the credit-and-payments system has already been transformed into a dark game of economic stratification, in which the powerful few exploit the powerless many.

My liberal instinct is to want to empower the individual. I think I would try to find legal and technical means to mask a person’s identity, and give the individual control of the data generated by the individual about herself. I think the law should prohibit centralized storage of any, but anonymous data about individuals. My identity and my data should be mine, legally and operationally.

84

TM 09.29.14 at 6:10 pm

“So the ultra-rich get to edit their lives. Like the Walton sister who got her DUI expunged.”

That’s not a good example. Alice Walton’s DUI was dismissed because the police witness didn’t show up at trial (apparently he had been suspended – nice coincidence). You can still find her mugshot on google of course.

85

TM 09.29.14 at 6:44 pm

Here’s a story of a guy who was arrested for taking pictures at a public beach. In the US.

http://www.wisn.com/news/south-east-wisconsin/milwaukee/mukwonago-man-accused-of-taking-pictures-of-women-children-at-bradford-beach/21820204

Also, “Georgia passed a bill in 2010 that makes it illegal for anyone but a parent to photograph or videotape a child”

http://communications-media.lawyers.com/privacy-law/child-photography-or-videotaping-consent-laws-are-changing.html

86

Min 09.29.14 at 6:56 pm

Anarcissie:

“the people chose to allow Microsoft to afflict us monopolistically for a generation.”

Excuse me? Microsoft aggressively developed and maintained its monopoly. For a long time, if you wanted a reasonably priced PC without Microsoft software before Linux came along, it was very difficult. Some 25 years ago I bought a new computer and I tried to get one without MSDOS. Finally I located a dealer in Georgia (in the US) who said that he would install another operating system on a PC that he sold you. I called him up and asked for DrDOS. He said fine, but it would cost me an extra $99 (which was what both DrDOS and MSDOS were selling for on the shelf). I complained about the extra charge, since both cost the same. He replied that his contract with Microsoft required him to charge for MSDOS even if he did not install it. (IMO that should be an anti-trust violation, but there we are. :( )

87

TM 09.29.14 at 7:00 pm

“Remember Abu Ghraib? Now imagine if the US government had a law to criminalize publication of those photos.”

Remember Edward Snowden? Now imagine if the US government had a law to criminalize publication of those documents.

Oh wait.

Do I really need to point out that the US has a shockingly awful record when it comes to the protection of whistle-blowers? First Amendment or not, it seems there is always a way of punishing those who speak out about power abuses both by government and big business. Americans like to be self-righteous about how fervently they defend free speech rights but reality looks different. For starters, wikipedia Ag-Gag laws and Food libel laws.

88

Trader Joe 09.29.14 at 7:06 pm

@79 and @83
The main way credit scores are distinct from information provided by Google is that the consumer authorizes the collection of the data and its transmission to credit reporting agencies. You may not always realize you are doing this, but in all of the 4 point font print in every credit card app, loan agreement, setting up a bank account – virtually any financial agreement you ever put your name to includes a clause that you consent to have that information sent to credit agencies for purposes of compiling credit scores.

Most stuff that might appear about a person in a Google search didn’t get their by implicit consent.

Bruce you probably recall a time, not all that long ago (certainly in the 1990s), when a persons credit score was practically a state secret, unless you were willing to pay for it – it was a big deal when credit scores were made available to a person for free. Prior to that time only the banks and credit agencies knew – the subject rarely had any idea, unless it was bad.

89

TM 09.29.14 at 7:10 pm

54: “journalists and newspapers get their privileges because they submit to some form of accountability mechanism.”

That is complete fantasy. It’s not how it works (certainly not in the US). For example, anonymous speech is (at least in principle) no less protected than speech printed in a newspaper with a masthead.

In Germany, there is actually a requirement that printed materials (including flyers) name person that assumes legal responsibility for the content. (http://de.wikipedia.org/wiki/Verantwortlich_im_Sinne_des_Presserechts) No such requiorement exists in the US (unless I’m totally mistaken).

90

TM 09.29.14 at 7:44 pm

“it was a big deal when credit scores were made available to a person for free.”

They are not. You still have to pay to get access. Credit scores are a good example for the US attitude towards data as corporate property: not only does the individual have zero legal ownership of any data concerning them – their data has become private property of a corporation, it can be bought and sold and repackaged without restriction.

I disagree with Dave at 81. The European approach to privacy is not principally based on “data as property”. One pillar of European privacy law is that anybody can demand to know exactly what personal data are stored by a corporation. It is essentially a right to know, which enables individuals to verify the accuracy and legality of the data storage but doesn’t give them any property rights. Also note how this understanding of privacy rights doesn’t conflict with transparency – in this respect, European is pro transparency and US law is against.

As an example, it is currently impossible for you to know how your insurance company rated you. Their rating models are considered top secret and consumers have no rights whatsoever to find out specifically what data were used by the company. I know because I once tried to find out why my premium suddenly shot up, when absolutely nothing had changed and the state average premium hardly changed. I went to the insurance commissioner and they wouldn’t release anything that the company considered “proprietary” information. (They also, of course, were completely uninterested in assisting consumers, as opposed to the industry.)

91

Layman 09.29.14 at 7:44 pm

Bruce Wilder @ 83, just wanted to say that I appreciate your post, as I always do.

My original comment on scoring was less than clear. I mean to say that FCRA may prevent credit agencies from suppressing, or alternatively promoting, particular credit events in an individual’s credit history; but it doesn’t prevent those agencies from using scoring algorithms which in effect suppress some data while emphasizing other data.

I like your idea permitting people to own their own data, but I can’t imagine a path which gets us from here to there. We can’t even put an end to the obnoxious uses of that data, e.g. telemarketing, because lawmakers refuse to put real restrictions in place, businesses routinely violate the weak restrictions that do exist, and regulators won’t enforce them – all in the name of supporting the ‘job creators’. The system requires people to buy, and nothing can be allowed to impede the act of selling.

92

Ze Kraggash 09.29.14 at 8:15 pm

23 “But equally, we should not be surprised that powers to expose unwanted information is used to the benefit of those with power. I am not convinced there is any law for or against transparency that cannot, in an unequal society, be used by those at the top of the tree against those lower down. The problem is the inequality.”

Right, a very convincing argument against the “freedom of speech” in a capitalist society. If you believe that your government is democratically elected and democratically accountable, you definitely have to be against the “freedom of speech”, as the only result of it, as a practical matter, is the empowerment of the oligarchs to manipulate the public. All of the media need to be financed by the government, and maybe by mass-organizations financed by small donations. Too bad about the first amendment in the US. There, the game’s been rigged right from the beginning.

93

Trader Joe 09.29.14 at 8:17 pm

@90
In the U.S. every person is entitled to three free credit reports per year. It is law. I couldn’t say what the rules are elsewhere, perhaps they still cost money, I don’t know.

I’ve also found (in the U.S.) that if you inquire at your bank or from your credit card companies, more likely than not they will give you one as well. In my experience in dealing with the credit report companies, particularly Experian, they will all explain rather thoroughly what is in the report, how it impacts your rating and what you can do to improve your rating. They are equally repsonsive in assisting with getting corrections if appropriate and I rarely encounter outdated information (although sometimes its still there). There is far less mystery to this report than there used to be and the transparency has made that happen.

94

UserGoogol 09.29.14 at 8:32 pm

A hair-splitting I think is important is that doesn’t sort pages based on people, it does it based on phrases. When you enter the phrase “mario costeja gonzalez” into Google, it doesn’t return information about the person Mario Costeja González, it returns websites that contain the phrase “mario consteja gonzales.” That being said, Google is moving towards semantic search, in which case the search would be about a particular thing in the world, and not just instances of particular phrases. (For instance, if you search “David Mitchell” it pops up a sidebar about the novelist and asks if you mean the comedian instead.)

95

TM 09.29.14 at 9:01 pm

TJ 93: The credit reports are free but the scores are not. Would you mind minimally paying attention before claiming to know better?

You are correct that credit reports are fairly thorough and transparent – although again, the score algorithms are considered top secret (although I suspect that everybody in the industry has access to the algorithms, it’s just consumers who can’t know). Insurance ratings are worse, there is no transparency whatsoever. AFAIK you can’t even buy your insurance scores and there is no insurance rating report(equivalent to the credit report) that consumers could get their hands on.

96

TM 09.29.14 at 9:14 pm

P.S. To be precise, since 2011, a lender must disclose the credit score if they deny a loan based on that score.

97

Trader Joe 09.29.14 at 9:36 pm

tm @95
Absolutely wrong smart ass. The scores are free too. Spend two minutes on the rest of the site….yes it comes up first as just a credit report, but if you click through you’ll find the score too. Just try it. Did mine two weeks ago….a 12 year old could figure it out.

Not sure about the algorithms, but they tell you everything that impacts the score and a range of how much (hard to verify though admitedly).

And, as you note, not only must the lender disclose the score on a denial…they will also disclose on request. Discover prints the score on your statement every month….its hardly a mystery.

98

Bruce Wilder 09.29.14 at 11:48 pm

As I hinted earlier, I think one should view the score as a tactic in the on-going negotiation of the social contract.

Arguably, it is meant to legitimate the economic disenfranchisement of the poor and to disempower the merely middle-class. You cannot negotiate in person, yet it is an “individual” score, so you can also not engage in collective politics. It is a faceless algorithm, but it is “transparent”, and you are encouraged to actively monitor and manage your score, by governing your own behavior, and taking pride in your credit score as if it was an emblem of honor in the community, which I suppose it is. You are supposed to not even notice that there’s another party, another active agency involved, with opposed interests.

One of the more curious aspects of the score is the way it changes, when some business inquires. When a car dealer or employer requests your credit score, that “hit” lowers your score, even if there’s no actual credit event, even if you don’t borrow money, say. It is almost eerie, this “transparent” but only faintly visible hint of the power “the system” exercises over you.

And, as to the feasibility of my earlier suggestion that we might want to think in terms of owning our own identities, it’s worth noting that though it’s not possible, apparently, to own your identity — how would we get there from here? — it is possible, here in the place we are, to have your identity stolen. You can’t own it, but it can be stolen. Sweetly ironic, yes?

99

TM 09.30.14 at 12:10 am

TJ 97, rolleye. First of all, I agree that credit reports are more transparent compared to, for example, insurance rating. In part this transparency is very recent. I do object to your claim about credit scores being free. It’s not terribly important but let’s be accurate. The credit score isn’t part of the credit report, which the law says must be provided for free. If a lender provides it to you for free, that is their business decision, but there’s no law that requires them and most lenders won’t.

“they tell you everything that impacts the score and a range of how much”

Not true. They disclose some important factors but nothing quantitative and, as you admit, nothing is verifiable. The algorithms are trade secrets and are not disclosed, AFAIK not even to government regulators. Of course there is experiential data about how the scores react to different data but there is no official disclosure and none is required (and of course the algorithms can change).

Before you come back making wild claims about how wrong I am, let’s settle this as follows: if you can come up with a URL where I can look up the FICO algorithm, I will stand corrected. If not, please don’t bother.

100

TM 09.30.14 at 12:16 am

“It is almost eerie, this “transparent” but only faintly visible hint of the power “the system” exercises over you.”

Note also that canceling a credit card or paying back a loan can result in a lower credit score (and result in higher insurance premiums!). Also, people who have never borrowed money have by default low credit scores (lower in fact than people with a record of missed payments), even if they can prove that they have paid all their bills on time for so many years. The “system” doesn’t try too hard to pretend that it’s really about credit worthiness.

101

TM 09.30.14 at 12:23 am

TJ 97:

Why don’t my free credit reports include credit scores?

Your credit report and your credit score are not the same thing. Your credit report is all the information that a credit reporting company has gathered about you. Credit reporting companies calculate your credit score by plugging the information in your credit report into their exclusive credit score formula.

Federal law gives you the right to ask for a copy of your credit report from each nationwide credit reporting company every year for free. However, the law does not require the credit reporting companies to give your credit score for free.”

https://www.annualcreditreport.com/whatIsCreditReport.action

http://www.consumerfinance.gov/askcfpb/6/i-got-my-free-credit-reports-but-they-do-not-include-my-credit-scores-can-i-get-my-credit-score-for-free-too.html

102

Layman 09.30.14 at 12:47 am

Yes, your score can go down if you borrow too much money, or if you don’t borrow enough money. It can go down if you don’t pay down debt quickly enough, or if you pay down debt too quickly. And, it’s secret – if you want to know what’s being done to it, you must pay the folks doing the stuff to it to find out. What’s a poor wage slave to do?

On the other hand, there are some rules, weak as they are, and poorly enforced as they are. If your report is wrong, it must be corrected. If it can’t be verified, it must be removed. If information is old, it must be dropped. Does this suggest a direction for regulating search engines?

103

Anarcissie 09.30.14 at 3:29 am

Min 09.29.14 at 6:56 pm:
‘Excuse me? Microsoft aggressively developed and maintained its monopoly.’

— often by unethical means. But on the whole, people who should have known better, like big hard-headed businessman data processing managers, went quietly along with it. The field actually seems to seek monopoly — IBM, then Microsoft, now Google and Facebook and Twitter and Photoshop and Flash and the handful of major Internet ‘we’re not common carrier’ carriers who have local monopolies. A minority fight them, but the majority Obey, most of the time.

104

Tom Slee 09.30.14 at 4:45 am

bianca #82. The unordered database thing just came in because some of the discussion seems to focus (as does the right to forget, from what I know) on the question of whether an item is in Google’s collection of links or not, whereas it seems to me that their ordering of those links is pretty crucial. Anything beyond that was a reaction to BB #69 (and BB thanks for retracting somewhat). I had no intent to play techier-than-thou.

TM #89. It is odd that you say my claim is “complete fantasy” and then say that it exists in Germany. My own points of reference are the UK and Canada. YMMV.

105

Ze Kraggash 09.30.14 at 7:29 am

“ordering of those links is pretty crucial”

What they should do is allow you to construct your own query, specify your own sort order.

Already, in google News if you click on “Search tools” you can switch from “Sorted by relevance” (controversial, imo, as it gives priority to the NYT, CNN, and such) to “Sorted by date” (perfectly impartial).

106

Brett Bellmore 09.30.14 at 9:45 am

“Note also that canceling a credit card or paying back a loan can result in a lower credit score (and result in higher insurance premiums!). … The “system” doesn’t try too hard to pretend that it’s really about credit worthiness. “

Well, yes: A “credit rating” rates how good a borrower you are from the perspective of a lender. The question being answered is not, “Will you pay back the loan?”, but, “How much money will the lender likely make?” Somebody who pays off the loan quickly won’t represent a loss, but they’ll pay less interest, and thus be less profitable.

I hadn’t really noticed that ‘the system’ was trying at all to pretend otherwise. Must have gone right over my head.

OTOH, you are allowed to challenge inaccurate data going into the formula. That makes credit ratings enormously more transparent than, say, the ‘no fly’ list.

107

TM 09.30.14 at 3:27 pm

BB, of course they do pretend that the credit score is about credit risk. That is what any official statement by the financial industry (e. g. http://www.myfico.com/crediteducation/creditscores.aspx) says (and that’s also what regulators go along with). Of course those of us who are as clever as Brett Bellmore know better than to believe industry propaganda. Now what was your point again?

108

TM 09.30.14 at 4:07 pm

TS: “TM #89. It is odd that you say my claim is “complete fantasy” and then say that it exists in Germany. My own points of reference are the UK and Canada.”

The point of contention was whether freedom of the press covers lies. The answer is that yes, in most cases it does. There are some mechanisms of accountability, to a different extent in different countries (practically none in the US, a very limited extent in Germany, a bit more in the UK), but they are universally weak. I disagree that freedom of speech is a privilege accorded to the press in return for them accepting to be held accountable. I do wish there were effective mechanisms for holding the mass media accountable but in reality, there aren’t. It’s not just Fox News in the US that gets away with systematically telling lies. The same is, or has been, true for Germany’s Bild Zeitung or Britain’s Sun and Daily Mail.

109

Bruce Wilder 09.30.14 at 4:17 pm

TM:Now what was your point again?

I think this was his point:

BB:. . . you are allowed to challenge inaccurate data going into the formula. That makes credit ratings enormously more transparent than, say, the ‘no fly’ list.

BB’s recurrent theme is that the authoritarianism of government is worse than the authoritarianism of big business, therefore it behooves us to take power away from government.

It’s a maddening stance to me, as a card-carrying liberal, who believes in democratic institutions and the need for the public good of countervailing power, but he’s often able to score trollish points against naïve leftists. (Not saying that he’s really scored against TM; just explaining what I think he’s arguing.)

I would think it rather obvious that the credit rating agencies concede a degree of transparency only because of the modicum of pressure from popular sentiment, which gets expression in law and regulation (aka government). BB might argue that government regulators are captured by the financial sector, and the appearance of pressure is so much kabuki.

BB’s counterfactual imaginary might be that there’s a rough balance of power established between consumer sovereignty and business, expressed through the market. The political channel, at best, is illusionary and, at worst, runs both ways, so that the political channel is likely to be captured by business (or more generally, “special interests”) and used against the general welfare. What checks business in the market is competition and the inability to resort to violent compulsion (the distinguishing feature of government power). If “special interests” (whether business of naïve socialists) capture government and use its monopoly on violence to compel people, that’s really, really bad, and the best protection we have is to weaken government constitutionally and materially. The natural propensity of government to arbitrary exercise of power is illustrated by the no-fly list. The limits imposed by the market and competition on arbitrary exercise of power by business is, supposedly, illustrated by the balance struck by the credit-rating agencies, which offer supposed “transparency” and friendly, responsive customer service (“your call is important to us, please wait for the next available representative”).

110

Anarcissie 09.30.14 at 4:18 pm

It seems to me the lies of the New York Times are more pernicious, since some people still actually believe in what the Times prints.

111

Bruce Wilder 09.30.14 at 4:34 pm

Anarcissie : The field actually seems to seek monopoly . . .

One might actually imagine that successful monopolies were able to deliver large economies to their customers, and competition sometimes erases the ability to invest and results in wasteful redundancy and noisy, but valueless clamor.

112

Thornton Hall 09.30.14 at 4:52 pm

@111 Everyone talks about Steve Jobs and Thomas Edison, but the word digital would still refer to fingers and toes if it weren’t for the invention of the transistor at Bell Labs. Damn monopoly!

113

Plume 09.30.14 at 5:12 pm

A monopoly which doesn’t deal in profits, has no reason to shaft workers, or pollute, can add tremendous efficiencies, reduce waste and unnecessary redundancy and provide a much higher standard of quality and value.

But a monopoly which operates to maximize profits, can not do the above. It must shaft workers, pollute, create enormous waste and has every incentive in the world to reduce quality standards and value.

This is the difference between a public non-profit and a private for-profit. It’s not rocket science.

It’s amazing that ads which claim to “save you money!!” are actually ever effective. Because that’s obviously not the intention of any capitalist business. They don’t want to save you money. They want you to spend as much of it as possible on their products, and they have to price their product well above their own costs in order to make profits and pay obscene executive salaries (and often shareholders). They never want you to save a penny if it can be helped.

The lies of the New York Times are pernicious. No question. But I think the lies of American marketing are worse, because they’ve become second nature, and almost no one pays any attention to them anymore.

114

Brett Bellmore 09.30.14 at 5:18 pm

“A monopoly which doesn’t deal in profits, has no reason to shaft workers, or pollute, can add tremendous efficiencies, reduce waste and unnecessary redundancy and provide a much higher standard of quality and value. “

That statement is unintentionally hilarious to anyone who realizes we don’t have angels available to run our monopolies.

115

MPAVictoria 09.30.14 at 5:21 pm

“That statement is unintentionally hilarious to anyone who realizes we don’t have angels available to run our monopolies.”

Which is why public provision of highways, power and sewage has been a complete disaster….

116

Trader Joe 09.30.14 at 5:37 pm

@97 TM
If the point you are trying to make is that there is no transparency of algorithms related to credit scoring are not transparent then fine, agreed.

However when you write as @93 “The credit reports are free but the scores are not.” and then proceed to provide multiple links to free credit reports….its at that point I know you are both not trying and dead wrong as far as seeing what I’m saying.

Google “Free Credit Scores” and I promise no less than 30 links to places you can get your score and it will be completely free….there’s a handly list at the link for those who might like a comparison among them

http://www.nextadvisor.com/credit_report_monitoring/compare.php?h1=3&a=2&kw=mcrfcsx5+free%20credit%20score&ref=r.search.yahoo.com

yes, you may need to sign up for something which you can later cancel…but they are still free – usually for at least 1 week. Likewise on the credit report site, if you actually download one, you select one of the three major agencies and depending which of the three agencies you take your free credit report from, you can easily click through to where you can get your score for free (Experian is the exception).

You accuse me of not trying….please follow your own advice.

117

TM 09.30.14 at 5:50 pm

TJ, as I have said, the reports are free but the scores are (generally) not. I have provided the links at 101. The link you point to is hilarious – all of these services charge fees on the order of $15-30 *per month*. I’m not going to follow up on any further comments from you – this is getting ridiculous.

118

TM 09.30.14 at 5:53 pm

BW 109: It was a rhetorical question… And yes of course any rights we have with respect to credit agencies are the result of government regulation.

119

Plume 09.30.14 at 6:00 pm

Brett,

It doesn’t take angels at all. Just the public, non-profit model. That does the trick pretty much all by itself. And, given the fact that people are people, regardless if they work in the private or public sector, if they work within a non-profit, all public structure, they’re going to produce far more beneficial goods and services than the same sorta folks do in the private sphere. They have completely different incentives and rationales for what they do.

Again, it doesn’t take angels. It takes a much better mouse trap.

120

Bruce Wilder 09.30.14 at 6:04 pm

Nothing ever does the trick, all by itself. Not ever.

121

Plume 09.30.14 at 6:10 pm

The above. Talking about all things being equal, etc.

As in, yeah, if you have rotten leadership in the public sector, good leadership in a private sector enterprise can sometimes tilt the balance in favor of the private — in that particular case. But if you get average Joes and Janes running both, then the superiority of the public model will triumph. And, of course, you get the flipside at times: Rotten private sector and excellent public sector leadership. In that case, the benefits of the latter are that much more apparent.

In the aggregate, the superiority of the non-profit, public model shines through.

122

Trader Joe 09.30.14 at 6:14 pm

@117
Can you really have that much trouble with reading comprehension?

Pick the first one – 30 day free trial. You sign-up, you get your score, you cancel the trial – Free. No money. I’ve done it. Thousands have. Its really free. The link at 101 is to a completely different thing…its not a score, just a report as you said in the first place. You said you can’t get scores – you can, really and for free too. Please try it before saying I’m wrong….plenty of times I’m wrong, this time I’m not.

123

Bruce Wilder 09.30.14 at 6:19 pm

I wonder if getting your score changes your score. Probably.

124

Plume 09.30.14 at 6:23 pm

Trader Joe,

That’s a good point. A lot of service businesses build that into their pricing. They assume that some savvy customers will go for the free trials and then leave. They adjust their prices accordingly. Other service companies, like Cable and Satellite, offer special deals all the time, and they adjust their prices higher to absorb those losses, which will include savvy consumers who negotiate for those same deals, even though they don’t technically qualify. They assume this will happen.

I’ve done that as well.

This would, of course, break down if everyone were a savvy consumer, and everyone sought the special deals, and played hardball to get them. Then those service companies would have to make other adjustments, probably eliminating the special deals, etc. etc. But they count on the lack of savvy consumers, so they don’t go into a (pricing) arms race of sorts. They count on most of their customers not knowing enough to play hardball.

125

Ronan(rf) 09.30.14 at 6:42 pm

“Can you really have that much trouble with reading comprehension?”

He does.

126

David in NY 09.30.14 at 6:50 pm

Thornton Hall @ 30

Strong free speech protections were in state constitutions before and after the Bill of Rights was incorporated thru the 14th.

I would just object to the use of the word “strong.” I don’t think that any state got anywhere near where the Supreme Court did — forbidding prior restraint, requiring “compelling” interests to curtail speech rights, requiring that any such curtailment be narrowly “tailored” — significantly before the Supreme Court got there. Maybe there are examples, but my recollection from a little research decades ago was that states generally permitted “reasonable” restrictions on speech. Could be wrong, but that’s my recollection.

127

Bruce Wilder 09.30.14 at 6:52 pm

They count on the “savvy consumers” congratulating themselves on their superior acumen, to blunt concern for, and political solidarity with, the less savvy, who become the victims of predatory credit practices, including the overcharging for these credit monitoring services.

The general pattern of usurious finance is to create “insurance” on terms that transfer income from poor people and people, who work for a living, to people, who have accumulated big piles of money (aka wealth). The credit system is used to facilitate usury. Politically, part of the deal is that the upper middle class is offered small benefits to quiet their concerns. My credit card gives me cash back, for example, something that is systemically pernicious, increasing the charges merchants bear, as well as increasing the burdens imposed on people, who rely on credit card borrowing, and can easily fall into a usury trap, where they are paying interest rates so high that they make it impossible to pay back the debt. Poor credit scores are part of the system that prevents people with high-interest debt from going into a competitive market place and getting low-interest loans, that they might actually be able to repay. That’s when the credit reporting system only pretending to be about credit-worthiness gets teeth and bites people.

128

TM 09.30.14 at 7:09 pm

For Pete’s sake. I can sometimes get free cheese samples at the deli (yes, even at Trader Joe’s!). Apparently for TJ and Ronan that justifies the statement that “all cheese is free in this country”. And you guys accuse others of deficient reading comprehension. ‘Nough said really.

129

Bruce Wilder 09.30.14 at 7:18 pm

I do think that having some major portion of banking and insurance enterprises organized on mutual principles — mutual insurance, non-profit credit unions and savings and loans — would be a sensible element of financial reform. It was not accidental that the the savings and loans had to be wiped out by the early reforms of Carter, Reagan and Volcker, or that the pseudo-scandal of Whitewater was anchored in the failure of a savings and loan.

130

Plume 09.30.14 at 7:26 pm

Bruce,

And, again, your criticism of the system would logically lead you to stop supporting it. That’s the next logical step. But “liberals” refuse to go there, clinging instead to the unicorn chase of “reform” in a system that perpetually blocks it . . . . or allows just enough to prevent full scale revolt.

The logical step, after looking at your own critique of the system, is to dump and replace the system with an alternative . . . one with social justice baked right in. But when that idea is raised, “liberals” tend to go on the attack and defend the very system they just got finished bashing.

Bizarre.

131

Plume 09.30.14 at 7:28 pm

And that “bashing” is entirely justified, of course. And then some. And then some more to the nth power, etc.

132

The Temporary Name 09.30.14 at 7:41 pm

But “liberals” refuse to go there, clinging instead to the unicorn chase of “reform” in a system that perpetually blocks it . . . . or allows just enough to prevent full scale revolt.

Simple reforms have led to some pretty good places to live. It should be obvious why people want to reform instead of revolt when there are working models out there.

133

Plume 09.30.14 at 7:49 pm

Yet, even after those reforms we have just 85 humans holding as much wealth as the bottom 3.5 billion, and just 400 Americans holding more than the bottom 60% combined. Even after those reforms, we have one family, the Waltons, holding more wealth than the bottom 40%. We have all the fruits of any “expansion” since the recession going to the top 10%, with nothing going to the bottom 90%. Most of those fruits, of course, have gone to the top 1%.

We also have the richest 20% consuming 85% of all resources, and the latest report from the WWF telling us that we’ve lost 52% of our wildlife since 1970.

The data tells us the system isn’t working. Well, except for the rich. The eye test tells us that, too.

134

The Temporary Name 09.30.14 at 7:53 pm

Yet, even after those reforms

What we’re looking at is the repeal of them.

135

Luke 09.30.14 at 8:02 pm

re: IT consolidation. I’m normally willing to agree with Bruce’s point about economies of scale etc., but in the case of Microsoft in particular, it’s not clear to me where their competitive advantage was, aside from shady business practices. Why was DRDOS worse than MSDOS or Unix? And please don’t tell me that Windows was ever a better OS than Mac OS back in the day. Lost productivity due to bugs and crashes , training costs, etc. always meant that PCs were a false economy even when they were cheaper — but IT people never believe me when I say this. At some point, everyone just decided that Windows PCs were the only way to go. Does ubiquity breed ubiquity?

136

Luke 09.30.14 at 8:03 pm

Bleh. In the above, I meant ‘why was MSDOS better than DRDOS or Unix?’.

137

Plume 09.30.14 at 8:05 pm

Even in the heyday of the Keynesian golden age, we still had massive poverty in America, huge levels of inequality, especially for women and minorities, and major poverty overseas. Yes, parts of the middle class did better than they had done before, and we had our one and only middle class boom.

But, before that time, and after that time, it’s been pretty abysmal for nearly everyone. Except at the top.

If under the very best conditions for a system, it manages middling success for a small demographic in certain countries, but not in most, it’s hardly something to write home about. And that boom was an aberration, historically. From the advent of capitalism on, it’s been non-stop exploitation and misery for most, with only pockets of success.

Americans are all too ready to take those pockets as indicative of the whole.

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Plume 09.30.14 at 8:09 pm

Unix is the best of the bunch.

On the Windows thing. It’s similar to the Betamax versus VHS. The better protocol lost. But Mac wasn’t and isn’t all that, either. It does, however, have a much louder and more aggressive fan club. Well, Windows probably doesn’t even have a fan club, so that’s like comparing apples and . . .

139

TM 09.30.14 at 8:21 pm

Plume, I hate to say it and I wish the world were better than that but… the best argument against revolution is to look at the outcomes of past revolutions (I know, revolutions were always derailed by reactionary elements – but exactly that is likely to happen again). And while I sympathize a lot with the sentiment that there ought to be a better system than what we have, honesty requires me to admit that I don’t know what it would look like and how to get there, and from what I read I take it that nobody else knows (I hope for a book forum on Naomi Klein’s new book but I suspect even she doesn’t know). So I’m open to any ideas about radical systemic transformation but I really see no alternative to drudging reformism and least-worstism in the here and now – while noting that reformism in the past has always depended on the power of radical social movements.

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MPAVictoria 09.30.14 at 8:24 pm

“I really see no alternative to drudging reformism and least-worstism in the here and now – while noting that reformism in the past has always depended on the power of radical social movements.”

I happily sign on to most of this. Sweden and Denmark are pretty nice places to live for a large part of their populations. Why don’t we aim for that?

/Though a big part of me would love to raise the red flag over city hall.

141

Bruce Wilder 09.30.14 at 8:37 pm

Plume @ 130

You think capitalism is the foundation of fault in our society and civilization, and I think human nature is the foundation of fault in every society and that civilizations rise and fall, as any living thing grows, withers and dies. I don’t think any of us have the answer, so I’m wary of expedience in the service of idealism. My idea of a suitable method of reform is periodic prudent renewal and experimentation, guided by principles founded in reason and experience with the supreme desideratum being that the political system be kept open to pluralism and change.

So, you favor non-profit, public institutions as a replacement for a system of for-profit institutions, because “the superiority of the non-profit, public model shines through.” I favor a pluralistic mix, because I think all models have their characteristic shortcomings and hazards, but some degree of competition can be a useful check and a means of applying each model in the most favorable circumstances for success.

I think popular political deliberation is seriously handicapped by the common difficulty of imagining just how complex and irredeemably problematic a large-scale system of distributed decision-making in social cooperation — particularly one in which hierarchy and authority figure prominently — must be. Many political philosophies attempt at one point or another to simply deny that hierarchical authority exists or is necessary and useful, as well as dangerous and problematic. Economics, which serves as our civic religion, pretends we live and work in a market economy, despite the pervasiveness of bureaucracy, public and private. So, though most of us have personal experience of working and living with hierarchy, we don’t know what to make of it, politically. It’s a problem that extends to the difficulty of discussing the politics of it.

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TM 09.30.14 at 8:47 pm

Once more TJ 122 – I think this is relevant after all. What you call a “free” service is really your giving some company ALL your private data – SSN, credit card info, email and physical address, everything – in return for a free peek into your credit scores. Yes you can cancel the service (hopefully you will remember in time and hopefully they will honor your cancellation) but *even so, you have already given them your data and given them permission to use it for whatever they like*. So even on your terms, this is not a free service – they get a lot of valuable stuff from you! You are not the first to think you are outsmarting capitalism…

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The Temporary Name 09.30.14 at 9:06 pm

while noting that reformism in the past has always depended on the power of radical social movements.

An important note.

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Thornton Hall 09.30.14 at 9:19 pm

@126 I’ve never looked into the question of how strong state level protection of free speech was before the 14th Amendment and incorporation doctrine, so I’m sure you’re right that “strong” is overstating the case. And the history of local government teaches us that even “strong” in principle doesn’t work out that way in practice. The closer government gets to the people, the more it reflects their base prejudices. The history of block grants, for instance, is the history of how to make neutral programs racist.

It’s actually apropos of a few threads of thought here: people seem to forget that the power of the Federal Government has increased in response to specific problems and that the more powerful result has always significantly reduced human suffering. The Articles of Confederation (the constitution that Scalia seems to be interpreting) were a disaster, with state finances that made Detroit a model of fiscal rectitude. But even with the Constitution, the common man was often penniless, with financial crises every five years or so. Then the Industrial Revolution came along and turned poor farmers into poor urban tenement dwellers. Finally, with the New Deal, life got better for everybody for 30 to 40 years.

And the Reds here point to the 40 years since 1973 and say: “See, it always gets worse. Viva la Revolution!”

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Brett Bellmore 09.30.14 at 9:25 pm

“and that the more powerful result has always significantly reduced human suffering.”

If you doubt that, merely consider the Japanese internment. It was a marvel of suffering reduction.

Seriously, “always”?

146

Ze Kraggash 09.30.14 at 9:46 pm

Thornton Hall: “the power of the Federal Government has increased in response to specific problems and that the more powerful result has always significantly reduced human suffering”

Jeez. I read this piece today and I thought the guy might be a bit too dramatic. But at least he and I live on the same planet.

147

Anarcissie 09.30.14 at 9:58 pm

Luke 09.30.14 at 8:02 pm @ 135 — Apparently a lot of people, included hardheaded businessman manager types, are passive authoritarians: they desire the security of being in a herd and following a leader. In the 1970s, personal computers became a possibility, but they did not go over in the business world until they were blessed by the sacred three letter acronym IBM. Subsequently the divine aura descended from them to Microsoft and Intel, who made the IBM PC. Both offered significantly inferior technology, but were selected as the result of accident and influence. For instance, Motorola was too busy to take on the IBM business, and Intel wasn’t because their products were less popular, for a reason. Actually, Microsoft offered virtually no technology at all; what became MSDOS was written by someone else, and Bill Gates sold it to IBM before he owned it (or so the legend goes). IBM, who at one time had a 75% market share, had perfected the commercial technology of Fear, Uncertainty, and Doubt, which IBM was able to cast on other vendors in the minds of its herded customers; Microsoft and Intel adopted this approach, while casting off IBM. The near-universal adoption of their products was not because of their superior quality. It was hardly the first instance of an inferior product winning in the marketplace.

In liberal capitalism, the key to maintaining a monopoly in a profitable business is force (because otherwise imitators will figure out how to provide the same good or service and compete). Usually that is government force. Microsoft’s quasi-monopoly was based on the force of copyright, for example denying potential interoperating vendors they didn’t like knowledge of their protocols and interfaces. However, they secured their monopoly in the first place through some kind of herd instinct among their potential customers.

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Val 09.30.14 at 10:02 pm

Bruce Wilder @ 141
“Plume @ 130

You think capitalism is the foundation of fault in our society and civilization, and I think human nature is the foundation of fault in every society … “

Ha, but what do you think human nature is? Weber thought it was the nature of men to compete and fight over “women, slaves, cattle, scarce land” and that’s what politics and the state arise from.

I don’t agree. I’m not sure if it’s the nature of ‘men’, but I’m pretty certain that it’s as much the nature of human beings, most of the time, to cooperate, get along and look after each other. I’m not saying competition, conflict and violence aren’t part of our “nature”, but they’re not the nature of our nature, so to speak.

People think they are because of patriarchy, but according to Gerda Lerner, that’s only been around a few thousand years, so I guess we will eventually get rid of it – hopefully in time to save ourselves and at least some of the other species on this planet.

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Val 09.30.14 at 10:06 pm

Sorry that should be “women, cattle, slaves, scarce land” in the Weber quote. Poor slaves

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Thornton Hall 09.30.14 at 10:30 pm

@146 So you’re arguing, what, exactly? (And I don’t believe you read the piece you linked to. No one could read that. It’s not really the kind of thing you read. Look at, maybe.)

Seriously, what are you arguing? Cliven Bundy, happy slaves on the plantation? Milton Friedman, the 19th Century was the Golden Age of philanthropy?

If we’re not on the same planet, I’d like to learn what planet I am on. (Perhaps mine will stay cool forever?)

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Bruce Wilder 09.30.14 at 10:40 pm

Val @ 148

As I once tried, unsuccessfully, to get across to Plume, cooperation and conflict are two aspects of the same thing — they increase in tandem, as a society becomes more organized and interdependent. Social institutions attempt to mediate relationships, in ways that facilitate the cooperation and resolve the conflicts; the getting-along, the negotiating, the exploitation, the oppression, the resistance, the fighting — the politics — never ends, and as social cooperation increases in its complexity and effectiveness, increasing the productive surplus, the stakes increase.

Hierarchy will end, like all instruments of domination, when domination stops being effective as a means of organizing cooperation productively, and also when it ceases being an efficient way of resolving conflicts (aka the means by which the strong exploit the weak).

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Bruce Wilder 09.30.14 at 11:15 pm

Anarcissie @ 147: In liberal capitalism, the key to maintaining a monopoly in a profitable business is force . . .

That’s a seriously misleading over-generalization. Monopolies are not solely a product of government grants; they arise out of technological possibilities and business competition, even where the details of regulatory discretion by the state are tangential.

In the story of the evolution of the Wintel monopoly, “force” counted for little or nothing. Copyright re:MS-DOS was hardly a factor; both IBM and DR shared the intellectual property claims, and could and did put out directly competing products. The contract terms that Min referenced — that Microsoft charged a license fee per hardware unit, regardless of whether MS-DOS was installed — was initially very important. Gates leveraged being the “default” OS on the IBM PC to very aggressively try to find and provide the market other network economies: drivers were one focus and programming tools were another. Microsoft’s first product was BASIC and its programming tools were their core product — their most valuable asset quickly became their developers and their accumulated stock of available programs and devices. Microsoft and Intel cooperated for a very long time in shepherding the rapid development of the basic PC design and the ecology of compatible software and hardware devices.

I think the claim that Microsoft’s OS software was inferior in quality is basically true, but needs serious qualification. IBM and Microsoft divorced over IBM’s insistence on investing heavily in the 16-bit 80286 processor, in developing OS/2, while Microsoft correctly saw that 32-bit computing would soon dominate, and chose to invest in an advanced OS architecture, based on the 32-bit 80386: WinNT. Windows 3.x was crap, but it was crap that could run on cheap, crap hardware, which was more valuable to the market, than a quality OS that could run quality hardware.

Gates recognized early on the potential of graphical interface OS. He actively supported MacOS from the get-go, with Word and Excel. Gates went to John Scully, the brain-dead former Pepsi-Co exec most famous for firing Steve Jobs, and tried unsuccessfully to talk him into licensing MacOS, the business model, he would follow, later, with Windows.

My point is not to rehearse these controversies, but to point out that it was never a simple morality play, of good guys and bad guys. Monopoly was not forced onto people at gunpoint; it was a clever business deal, in which Microsoft and Intel delivered value from carefully cultivated and managed network and ecology economies. The outcomes were path dependent and I wouldn’t argue that they were optimal in any global sense, but a realistic view would be that competition is always constrained and strategic. For a time, the Wintel monopoly achieved a rapid rate of technological progress and innovation, both within the immediate domains of the respective companies and within the ecology they created with that “monopoly”.

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Thornton Hall 09.30.14 at 11:32 pm

@152 I’m curious about the world “optimal” in your last paragraph. I get your meaning and I’m sure you’re right. I’m just thinking about a comment thread that includes Marxists and Neoclassicals and how the fact that the way things work out in the world is never optimal. Thus, there is always some room between the world and the goal. So we see Plume making grandiose statements about ending hierarchy and Brett believing that he could always be more free from gov’t intervention. Quiggin joins in with counting up the costs of climate mitigation because there is always some future optimal result to consider.

It’s sort of like in probability where before some crazy coincidence happens, the chances are a million to one. But after it’s happened the chance is 1:1. It’s a certainty in retrospect.

The notion that there is some optimal amount of whatever seems like so much looking back at the past and making a great deal out of what the probability was of what happened happening.

The two aren’t really analogous, but what I’m getting at is the large amount of logical space occupied by things that are imaginable, optimal, analyzable, publishable and totally irrelevant.

154

mattski 09.30.14 at 11:47 pm

Bruce,

Hierarchy will end, like all instruments of domination, when domination stops being effective as a means of organizing cooperation productively, and also when it ceases being an efficient way of resolving conflicts

I don’t think hierarchy ends. Rather, it becomes more or less entirely voluntary. And anyone who doesn’t see that hierarchy is already voluntary in large swaths of our culture is missing something very important.

When someone else has knowledge or skill that I admire and seek to emulate I voluntarily give them authority. Thank goodness.

155

mattski 09.30.14 at 11:49 pm

Addendum: some hierarchy needs to be involuntary. Like when you get drunk and assault someone you either get fined or have your ass thrown in jail.

156

Val 10.01.14 at 12:06 am

@151 and 154
I would like to continue this discussion but feel it is going a bit off-topic to the OP, and also I should do some work. However there was a brilliant cartoon on twitter this morning which is relevant – in a way, I think – to this discussion, and to the closing thoughts of the OP on commerce and capital

(anyway I just think everyone should see it)

https://twitter.com/_Paul_And_/status/516981581748375552/photo/1

157

Val 10.01.14 at 12:12 am

Hmm that’s a bit funny (peculiar) on this thread when I think about it. There are images of real people in that cartoon, I hope they didn’t mind having their images used like that!

What if they wanted to get rid of them? they’d be chasing it all over the twittersphere!

*oops sorry*

158

Bruce Wilder 10.01.14 at 12:30 am

Thornton Hall: . . . the way things work out in the world is never optimal

It might, just by chance, be optimal, but we wouldn’t have any way of knowing that, even if it were. We have a concept of optimal, defined in the context of an analytic model, where information is complete. In the world in which we live, a world of radical uncertainty, where we don’t know what we don’t know, concepts like “optimal” or “maximize” cannot be defined, at least not without the significant qualification of arbitrary constraints. When we use those terms, it is as metaphors, a kind of poetic expression, applied optimistically to the case of “constrained maximization,” which is very different in its moral and material implications from global maximization.

It’s not entirely crazy, because we do know some things, and we can learn more. When Dr. Pangloss proclaims that we live in the best of all possible worlds, he’s making a pious affirmation out of the limited awareness we do have, of both the power of the knowledge we do have, and the limits of that power.

The emphasis textbook economics places on analytic comparative statics as a method may be seriously ill-advised, given that we live in a world in which we are trying dynamically to learn and do better. It is often a bad way to frame a problem in business as well as public policy, leading people to target a place instead of a path. And, it is, I suppose, a misunderstanding born of applying analytic models as if they are descriptive, without the intervention of operational models that Popper calls for. The global optimizations of an analytical model are carried over, with too little self-awareness from economists.

Monopoly is unambiguously bad in stasis, but monopolies are never in stasis — none of us are. It is one of the little curiosities of capitalism that huge firms form in and dominate major industries, sometimes for decades. In business strategy studies, people talk about “first mover advantages” because major and dominant firms are so often among the oldest firms and are thought to have been among the first firms in an industry. (Sometimes, this is an illusion; a product of history being, literally, written by the surviving winners.) Certainly, Microsoft was among the first firms to write software for micro-computers, though it was pure accident that it acquired its position in operating systems — logic would have given that opportunity to Gary Killdall’s Intergalactic Digital Research, and Gates initially referred IBM to that firm for an OS.

The point is that “first mover advantage” is not something that accrues to the first firm in an industry, necessarily, but, rather, to the first among the early firms to initiate a process of dynamic growth and adjustment. Microsoft Excel is the dominant spreadsheet, because neither VisiCalc nor Lotus 1-2-3 managed progress well enough, and Excel, unfortunately, isn’t good enough today for many applications it is put to, because its parent’s dominance retards further improvement.

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Plume 10.01.14 at 12:56 am

Bruce,

The reason you couldn’t “get that across” to me is because it’s not true. If it were, I’d agree with you. But conflict and cooperation do not, and never have, necessarily been some set tandem, as you describe them. That’s not the history of the human species on this planet, and it’s not logical.

Val,

I agree with your sentiments. I think it is “human nature” for the vast majority to get along, to cooperate, to try to live in peace with one another. There are, however, a small percentage of humans whose “nature” is to dominate, rule, conquer and control. That small percentage tends to write the rules for the rest of us, and our histories. It also tends to be very successful in getting the rest of us to accept its notions of what “human nature” is. In other words, sociopaths and alphas, of one degree or another, have very successfully brainwashed all too many into believing that they, too, carry the characteristics, drives and pathologies that are really unique to that tiny percentage.

Or, to take it to a slightly more complex plane. Human nature itself (within each of us) is a battlefield of competing drives, tendencies, traits, desires, etc. etc. But for most of us, cooperation and the desire for peace virtually always win the day. For a small percentage of the human tribe, the inner battle is won by the forces who desire conflict, to dominate and rule. For that small percentage, the traits, tendencies, desires, goal, etc. etc. that come to the fore are those of the aggressor, the leader by force, the conqueror, not the follower.

Capitalism suits them to a T. It doesn’t suit the rest of us at all. Because it’s taylor-made for people who, in a different time and place, would rule by other means. Not just in the workplace, or in an industry, but on actual battlefields, taking over land instead of markets or other companies, etc. There are lots of degrees, of course, in between. But, boiled down, capitalism is a gift to alphas and sociopaths. It gives them legal writ to practice what should be considered illegal and immoral: systematic exploitation, theft and appropriation.

Actual, real, existing socialism, in its most egalitarian and democratic form (OTOH), would be a gift for the vast majority of us . . . .

160

Anarcissie 10.01.14 at 1:05 am

@152 — it is necessary for me to overgeneralize and oversimplify in order to fit whatever I have to say into the comments section of an article which is mostly about something else. However, ‘my aim is true.’ I just have to digress a little more for the sake of humor. Microsoft ‘supported’ Apple by lifting the window-and-pointer system from Apple, who sued them, but since Apple had lifted their window-and-pointer system from Xerox, Xerox sued Apple in turn. Xerox had lifted the idea and earliest realization of the technology from Douglas Engelbart, who as far as I know didn’t sue anybody — one of the few creative, honest, benevolent persons in a world dominated by blowhards, grifters and thieves. Microsoft learned its lesson from this experience, and later backed SCO in a completely spurious lawsuit whose sole purpose was to create the aforementioned FUD among potential Linux users.

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Plume 10.01.14 at 1:10 am

Also, Anarcissie,

The public sector invented the computer, GPS, touch screen tech, satellite communications, the protocols for the Internet and the Internet itself. The blowhards in the private sector who continuously claim to have “invented” this or that never admit that the public sector did anything. But without its R and D, we have no Ipad, no Windows, no Google or Facebook. They don’t exist. Because the public sector did the legwork for the previous several decades to make it all possible. And the private sector just wasn’t going to spend that kind of money, over that long period of time, without generating profits that weren’t possible until much, much later.

In short, they weren’t going to take the first step. Or the second. Or the third. The public sector had to before they jumped in.

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Bruce Wilder 10.01.14 at 1:36 am

Anarcissie @ 160, Plume @ 161

Yes!

163

Val 10.01.14 at 2:19 am

Plume @ 159
there’s a lot I could say, but I’ll try to be brief. Arguing from personality types doesn’t seem to work, because for many thousands of years many people lived in much more egalitarian and less hierarchical societies, presumably with a wide variation of personality types. BW may argue that’s all to do with simple numbers and face to face contact but I don’t agree, though I won’t get into that here.

it’s historically contingent why these forms of social organisation arise, and maybe we can’t ever explain it exactly, but I think you should at least think about the relationship between patriarchy and capitalism. Carolyn Merchant is a good starting point I think

164

Thornton Hall 10.01.14 at 2:27 am

I think some of the thoughts about monopolies and for profit corporations are based on the world post-Friedman shareholder maximization theory of firm combined with low taxes that makes it such that Bell Labs wouldn’t exist in today’s business culture. But today’s culture is not set in stone.

165

Luke 10.01.14 at 2:52 am

Whenever I hear the term ‘human nature’, I reach for my gun. Or I would if I had one. It’s either metaphysics or it’s a tautology. Same thing, I guess.

Anyway: re: Microsoft et al., my interest was was not so much in kremlinology and the wonder years as in how Wintel/IBM expanded and throttled everything later on — ’90s an onward. Here’s an anecdote: a person responsible for auditing assets like computers at a major institution does a study on the cost-effectiveness of the various components of this institution’s mixed computer park (fleet? network? plant?). It turns out that the Macintosh machines win hands-down once training, lost productivity, repairs & maintenence etc. are factored in to the cost.

They rush to the IT department with their findings. Blank looks ensue. Impossible. PCs are simply cheaper and better. Macs are for niche applications only. Linux? No, we use PCs here.

Once you’ve trained people to use one product — or even, to make a particular rationality part of their person — you might not even need the whip, or the breach of copyright writ. Which brings us back to the OP. Europeans value privacy, Americans value free speech?

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Plume 10.01.14 at 3:17 am

Val,

As far as we know, humans lived communally for our first 250,000 years or so, and I bring that up when cheerleaders for capitalism say that our current system just fits “human nature.” Because we’re all supposedly greedy and selfish, etc. No. Not really. A small percentage is. But most people really aren’t. Reading David Graeber’s Debt helped remind me of how often we actually share, without remuneration, even within the halls of corporate America. We’re a sharing, social, giving species, and one that will “naturally” cooperate given the right environment. Conflict and competition aren’t “natural” without artificial environments that provoke those things or make them necessary. At least for most of us.

I’m not arguing per se from “personality types” so much as saying that historical records give us what common sense also says is true. A record of a small percentage of very aggressive people who end up controlling (or trying to control) huge majorities and get them to do their bidding. To me, the logical conclusion to draw from history, and just day to day observation, is that the vast majority of people would be perfectly content in a fully cooperative environment, and simply don’t require “competition” or “conflict” or victories of this or that kind — especially on a daily, quarterly or yearly basis. They’d actually rather stay out of the race and do other things. Those far more aggressive make that impossible, and the system of capitalism suits them, the 1%, to a T.

Thanks for the tip on Merchant. Will take a look. Is her last name ironic in the context of her work?

167

Ze Kraggash 10.01.14 at 6:35 am

@150 Sorry about the sarcasm; regrettable relapse, I shouldn’t have done it.
What I meant to say is that concentration of power (except perhaps in emergency situations) is generally a bad thing.

168

Martin Bento 10.01.14 at 10:25 am

This sentence:

“Surely the fact that Google ranks information makes it more than a database, which is pretty much by definition an unordered collection”

is rank nonsense masked by pedantry. Bellmore may be too unsophisticated technically to argue effectively that it is nonsense, but nonsense it is nonetheless. Codd specified that database columns should not have an intrinsic order, and the intrinsic order that concerned him was one based on the specifics of data storage – he was advocating a more abstracted approach to data. He never suggested that relational databases (by the way, the sentence above requires the qualifier “relational” to even be technically correct. If you’re going to be pedantic, you should at least be accurate. No, “pretty much” is not a suitable substitute.) could not include sortable values, and they always have quite commonly included such. If including sortable values disqualifies a database, then college student records that include GPAs are not databases, nor driver’s license records that include expiration dates.

Furthermore, this is not even an accurate characterization of pagerank in its current form and ends up inadvertently defending precisely the elements of it that are a major privacy concern. In the early days, pagerank was simply an attribute assigned to pages, but now Google customizes its results to the user. This is more purely “Codd-like” in that there is now no meaningful pagerank fully independent of the query (though, again, pagerank is just a sortable value, not an intrinsic row order). because it depends on who is asking (and even at that, what possible difference does it make to the issues under discussion whether Google’s database conforms strictly to Codd’s criteria anyway?)

To make this work, Google tracks us all over the Internet and takes notes. It even tracks us here at crooked timber, which uses Google analytics (cue Tom Slee in the background: “Crooked Timber is helping Google steal my kidneys!”)

The parenthetical brings up another point: we are fighting for credibility on this issue, and this is ill-served by stupid and hyperbolic comparisons, such as that of selling personal information about yourself to selling your organs. If y0u sell a kidney, you no longer have it, and this has serious, possibly fatal, consequences. Selling knowledge of your musical tastes is not comparable to this, and pretending it is just makes us look foolish.

Then comes the demand that Google be legally responsible in some way for its search results. If Google has to be responsible for its search results, do you think it will include crooked timber in those results? Could crooked timber indemnify it effectively if it did? Do you think it will include Tom Slee? Do you think it will or could include any site that lets random people comment at will? If Google has to be responsible for its search results it will, and will legitimately have no choice but to, restrict those results to entities that can themselves cover the full liability of anything they might print, and can be expected to indemnify Google (and Google will probably get them to sign such agreements). New York Times, Forbes, Fox News, sure. Whitehouse.gov. Yeah. Bloggers? Forget about it. Even wikipedia, usually near the top of relevant results – gone.

I agree that copyright is not an ideal solution to privacy concerns, not least because intellectual property has become a monster and generally has to be reduced not extended. The advantage is that it is a legal and philosophical framework that is already in place and broadly accepted, so there is less of a legal climb. Still, I can understand people wanting to pursue a more purely privacy-oriented approach, and I would be perfectly amenable to that as well.

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Thornton Hall 10.01.14 at 2:26 pm

@167 I understand that for a great many people: “concentration of power (except perhaps in emergency situations) is generally a bad thing.” is obviously true.

But it is not true, even in a loose sense of the word “generally”.

The Dark Ages were the most recent peak of local power. Feudalism has local in its name!
The failure of the old Confederacy to expand Medicaid is the most recent example of how local power works.
“Albion’s Seed” is basically the argument that local power, honor, and violence go hand in hand.

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Anarcissie 10.01.14 at 2:38 pm

Local power is also a concentration of power.

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Bruce Wilder 10.01.14 at 3:47 pm

I suppose it is churlish of me to wish for some account of what power is, how it arises, and in the context of that account, some denotation of what “concentration of power” is supposed to mean, before leaping ahead to “it’s a bad thing”, followed by the heaping of pejoratives.

What I would say about feudalism as a political system (and manorialism and monasticism as an accompanying economic system) is that it was the first quickening after the dark age nadir of political and economic organization. Power wasn’t so much “concentrated” as it was nearly non-existent. That left a ruthless and murderous thug the opportunity to erect a motte-and-bailey castle and loot the neighborhood on an on-going basis, while the Catholic Church tried to rally the barely literate remnant of a dead civilization to contain or distract the thugs with taboos, rituals and romanticism.

Looking back into that distant mirror at human nature in a different, not-capitalist political culture, I can certainly pick out elements of human nature that were pacific and communally cooperative, in the hierarchical frame of the manor and the church. On the whole, though, it’s not a pretty picture — it’s brutal, filthy, ignorant and murderous.

Was power concentrated? There wasn’t much power to concentrate, because there wasn’t much organization of the political economy, such as it was. It would make more sense to complain that it was the paucity of organization and power that made for misery.

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Anarcissie 10.01.14 at 3:59 pm

In the present discussion, I think power means the ability of one person to override the will and interests of another. ‘Concentrating’ power would be a significant instance of it, for example Alice robbing Betty at the point of a gun. If Alice, emboldened by success in singular instances, decides to start a gang and practice her gun talents on the general population continually, that would be a further concentration of power which might begin to approach feudalism.

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TM 10.01.14 at 4:03 pm

144, 145, 146:
“the power of the Federal Government has increased in response to specific problems and that the more powerful result has always significantly reduced human suffering”

I would also call this an overstatement. But I would note that TH (unless I’m misreading him) refers to federal government power mainly in the domestic sense of reigning in or overruling states powers, not in the sense of bombing other countries. And in that reading he has a pretty good case (although still I wouldn’t sign on to the “always” part). Interestingly, this is also exactly the way the right wing construes federal power. To them, Medicaid expansion is “big government”; bombing other countries, organizing the overthrow of foreign leaders, and torturing terror suspects on the other hand has never ever been decried as “big government”, and neither have the internment of the Japanese. The “big government” or “federal overreach” rhetoric is always (and now I’m deliberately using the exclusive qualifier) and has always been reserved for domestic programs, mostly programs to improve the lives of the poor and disadvantaged. I have never heard a single right-winger or right-wing libertarian use the “Big Government” epithet with reference to Bush’s Iraq invasion, Guantanamo, or the Patriot Act. Never ever.

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Bruce Wilder 10.01.14 at 4:09 pm

And, if someone calls 911 on Alice?

What’s that? What is it, that there is a 911 to call?

(Side note: I just read an opinion piece, comparing and contrasting the case of some Ohioan gunnuts demonstrating open carry in public with the case of the young man shot and killed by police in a Walmart for carrying a toy gun. In both cases, 911 was called. The people with actual guns were not killed.)

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Martin Bento 10.01.14 at 7:11 pm

Minor correction: Codd specified that database rows should not have an intrinsic order; columns, of course, do. Nothing hinges on this, of course.

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Thornton Hall 10.01.14 at 11:38 pm

@172

I think power means the ability of one person to override the will and interests of another.

This statement is part an parcel of the Neoclassical hegemony over thought. You Marxists and Anarchists play right into their hands with your similar obsession with the individual.

Remember in 9th grade, when your teacher assigned you to do a group project and you found yourself surrounded by 4 rank morons? Those morons were going to get a B- no matter how well this group project turned out, but for you to keep your A+ average required you to subordinate their will to your own. In the end, everybody was better off. One moron got a B instead of a B-, you got your A+, and everyone in the group learned a little bit about Edgar Allen Poe.

It’s called cooperation, and it requires that “individual will” not be treated as an absolute good.

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Thornton Hall 10.01.14 at 11:49 pm

@173 Your point about the two-faced Reaganist attitude toward power is well taken.

One thing about the Reaganists, when they channel the Id of their base, the do a damn good job of it. It actually helps reveal the strangeness of the academic take on power, which focuses on what the Federal Government has done to El Salvador instead of what the Federal Government has done FOR Alabama.

I do not excuse the role of the US in the suffering of millions around the globe. But if that’s the first thing you think of when somebody talks about the increase in Federal power after the civil war, then you are not normal. It really is almost diagnosable to skip over the role of the Federal government in the lives of black people here in America, especially when what you jump to is actually quite mild compared to chattel slavery.

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Thornton Hall 10.01.14 at 11:57 pm

@171 If only the anarchists and the libertarians understood the Feudalism is exactly what you would get if we were all made “free.”

Oh, and try to convince someone like Noah Smith (a libertarian at heart) that organized religion made the Spanish Empire more humane the English one?

It can’t be so. Can’t be. Hierarchy. Magic. Bad. Bad. Bad.

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Anarcissie 10.01.14 at 11:59 pm

Thornton Hall 10.01.14 at 11:38 pm @ 176 —
I was trying to give a succinct definition of power as people seemed to be using the word in the present discussion, at the request of Mr. Wilder. My definition was not meant to advertise individualism, nor did it treat individual will as an absolute good. I’ll observe, though, that as willful beings we desire to work our will, so that if another overrides our will, it will probably displease us. One could then project one’s will and one’s displeasure in its frustration on the gods and say the former was absolutely good and the latter was absolutely evil, but I myself am disposed to leave the gods alone.

If anyone believes my definition is incorrect, it would seem most constructive to replace it with a better one.

As for the example you give, a person’s behavior in an authoritarian situation is likely to reflect a need to deal with the authority in one way or another.

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Thornton Hall 10.02.14 at 12:16 am

I’ll observe, though, that as willful beings we desire to work our will, so that if another overrides our will, it will probably displease us. One could then project one’s will and one’s displeasure in its frustration on the gods and say the former was absolutely good and the latter was absolutely evil, but I myself am disposed to leave the gods alone.

huh? what’s the “former” and what’s the “latter”?

And school is “an authoritarian situation”? Would you have it any other way?

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john c. halasz 10.02.14 at 12:42 am

@176:

“This statement is part an parcel of the Neoclassical hegemony over thought. You Marxists and Anarchists play right into their hands with your similar obsession with the individual.”

Wow! That affords a new insight into how well in-formed you are.

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Anarcissie 10.02.14 at 1:57 am

Thornton Hall 10.02.14 at 12:16 am @ 180 —
“I’ll observe, though, that as willful beings we desire to work our will, so that if another overrides our will, it will probably displease us. One could then project one’s will and one’s displeasure in its frustration on the gods and say the former was absolutely good and the latter was absolutely evil, but I myself am disposed to leave the gods alone.”
‘huh? what’s the “former” and what’s the “latter”?’

Of ‘one’s will’ and ‘one’s displeasure in its frustration’, the former is ‘one’s will’ and the latter is ‘one’s displeasure in its frustration’.

‘And school is “an authoritarian situation”? Would you have it any other way?’

How I would have it is irrelevant.

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Anarcissie 10.02.14 at 2:09 am

Bruce Wilder 10.01.14 at 4:09 pm @ 174 —
‘And, if someone calls 911 on Alice?’

It may connect to one of Alice’s henchpersons.

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Luke 10.02.14 at 3:14 am

Bruce, you’ve got feudalism backwards. Benefices, subinfeudation and all that — it is power extending from the top down, in a situation where currency and clerks aren’t working and so something else needs to be tried. The chuch is a part of this process, doing what it can to stamp out literacy where it remains so as to reinforce its monopoly on the word, as its institurions spread down and out with the support of the king’s iron fist.

Feudalism was, to borrow a phrase from Foucault, a ‘mode of governmentality’, not some Hobbesian lack of control. Of course, it also contained its own strong centrigugal forces, hence the appearance of anarchy.

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dax 10.03.14 at 2:00 pm

“I’m skeptical that this boils down to a fundamental difference between the US and Europe. The Guardian seems fairly angry about these takedowns and is fighting them with the pen.”

This commits the well-known error of supposing the UK is part of Europe. The UK is in the Atlantic for a reason.

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