Saturday, June 03, 2006

Arm Twisting

Now that the Attorney General is sitting down with major Internet service providers and search engine companies to pressure them to save logs of user activity with the identifying data of individual computers for up to two years, it is worth pointing out how file-sharing is getting little attention in the rhetoric from the Department of Justice, despite the fact that its policies are aimed directly at common peer-to-peer practices.

Just by reading articles like "U.S. Wants Companies to Keep Web Usage Records" in the New York Times and "Online Privacy Again at Issue" in the Los Angeles Times, it isn't immediately apparent what could be at stake. Privacy advocates may be on the alert, but the free culture crowd may not yet be adequately alarmed by the threat to the creative commons posed by this oversight.

My U.C. Irvine colleague and computer law expert David Kay immediately saw the problem with mandating record-keeping, ostensibly to catch child molesters and terrorists. Any record kept can be subpoenaed in any legal proceeding, including civil cases. Thus those who are concerned about intellectual property violations can also use these records to catch "pirates." Of course, this provision could implicitly encourage recognized copyright holders to commit litigious copywrongs that abuse those wishing reasonably fair use of those works.

It is also worth examining the actual surveiling technologies that are being funded by their programs and praised in their epideictic rhetoric. For example, among those being commended by the Attorney General recently was Wyoming agent Flint Waters who developed software designed to catch sexual predators, software that could also be used to monitor other prohibited peer-to-peer transactions. Dubbed Operation Peerless and later Peer Precision, the system targets file sharing specifically, although such technical specifics are glossed over in Gonzales' speech:

For his extraordinary contribution to cybercrime investigations we are honoring Special Agent Flint Waters, the head of the Wyoming ICAC, with the Attorney General’s Special Commendation Award. He has taught law enforcement officers nationally and internationally in the use of software he developed. Ernie Allen of the National Center for Missing and Exploited Children will honor him with its Law Enforcement award as well.

Yet again, I will plug Siva Vaidhyanathan's excellent book about file sharing (and much else): The Anarchist In The Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. He argues that dangerous conflicts between competing stakeholders for oligarchic interests and anarchistic ideologies are putting the public sphere at risk, and that file sharing only represents one recent manifestation of peer-to-peer activities that are perceived by prevailing institutions as subversive.

For those older than the iPod generation, who might not care about peer-to-peer networks, it is important to realize that the Justice Department's requests go far beyond file sharing. Very broadly adopted practices like e-mail and web surfing are on the DOJ's wish list as well. In other words, if I copy and paste an article that I have access to because of my New York Times "Select" subscription and e-mail it to another digital rhetoric scholar, could the New York Times legitimately subpoena my e-mail? If I post an image on a class website that I thought was out of copyright but wasn't, can someone monitor who visits my webpage and downloads the image? Academics are already getting DMCA cease and desist orders -- including people in my own program -- and these proposed measures are even more expansive.

So, once more, this time with feeling, I present my two theses about these perceived dangers to our security from terrorists and child molesters with which we are being frightened by the Department of Justice:

1) Political discourse about terrorists on the Internet actually says more about domestic anxieties created by an emerging American information culture that challenges the familiar institutions of the traditional culture of knowledge. Read more about House Intelligence hearings on the subject.

2) Our children are most at risk from inappropriate appeals on the Internet that come from commercial entities, particularly without adequate information literacy training in the schools and from the public library system. As a former employees of two social services agencies, I can assure my fellow citizens that the vast majority of children who are sexually molested are exploited by members of their own families, which a de-funded social safety net only exacerbates. Read more about the "Virtual Global Taskforce" that is praised by the White House.

Lately, I have been writing about how government-funded videogames serve as objects of public rhetoric and how they make visible certain ideological conflicts and uncomfortable political truths about war, pedagogy, and rehabilitation. I am using Bruno LaTour's tome on Making Things Public: Atmospheres of Democracy as a model for critical dialogue about old and new forms of the traditional res publica.

The problem with making child pornography the focus of political debate is that it is by definition not a public object, not visible. As witness Alice S. Fisher said in her May third testimony before another House Committee:

I have seen some of these images, and, just like the Attorney General said, they make your stomach turn. I don't think many people realize how difficult it is for the law enforcement professionals who have dedicated their careers to this difficult work. It is revolting to view even one of these images. Imagine having to view hundreds and thousands of them - repeatedly, on a daily basis - in order to build the cases against offenders. That is what these dedicated professionals do, and it is challenging and traumatizing on a deeply emotional level. I join the Attorney General in personally thanking all of those in law enforcement and elsewhere who are enduring those challenges and working hard to protect our children.

We criticize the mobs rioting over Mohammed cartoons that represent the unrepresentable, but -- as repulsive as these images may be -- are we turning over our democratic institutions to a similar retreat from open debate in the public sphere around a shared visual culture? Will we give up our privacy on the grounds that there are images that are, as Foucault said, objects of knowledge only to be viewed by sanctioned professionals and experts?

You can watch the webcast of the hearings to see how illegal downloading of songs is directly linked to transactions involving child pornography in the rhetoric of legislators in formulating Masha's Law.

Furthermore, although programs from the Department of Justice, such as Project Safe Childhood, sound laudable, investigators express interest in casting an even wider net that includes conduct limited to consenting adults, according to Attorney General Gonzales.

I realize that child pornography and sexual enticement are not the only criminal activities that threaten our society. Obscenity debases men and women, fostering a culture in which these heinous crimes against our children become acceptable. That’s why I formed the Obscenity Prosecution Task Force in the Criminal Division, which has worked together with their partners to investigate obscenity cases.

Check out "Gonzales Breaks Up PBS Porn Ring," while we can still laugh about such things.

(I am beginning to work out this larger argument in a longer form here. Please do not cite this PDF yet, as it is only a protean draft intended for very limited circulation.)

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Blogger Lupton said...

This is an important post. I think you bring real clarity to the issues, which are symptomatic as much as real. We like our predators to be monstrous and imaginable; we don't like them to be linked to systems of marketing.

6:19 PM  
Anonymous Anonymous said...

Looks like the DOJ will get what it wants. On June 27 and 28 the House Energy and Commerce Oversight Committee held additional hearings related to the prior Justin Berry hearings.

The witnesses included reps from Microsoft, Google, Yahoo, Verizon, Comcast, Myspace etc.

The main focus seemed to be data retention by the ISPs of all subscribers.

It's apparent by the prepared remarks of the witnesses, as well as the actual hearing testimony, which is available through LexisNexis Academic, that Google, Yahoo and others are doing as much if not more that the DOJ in combatting child pornography/predators.

And once again, the Committee used statistics that were found to be foundationless (21 billion dollar industry, and 50,000 child predators on-line).

1:07 PM  
Blogger anon said...

It seems that the DOJ will get what it wants.

The House Energy and Commerce Oversight Committee held addtional hearings on June 27 and 28 pursuant to the Justin Berry hearings.

Witnesses included reps from Yahoo, Microsoft, Google, Verizon, Comcast, Myspace and others.

The main focus appeared to be data retention of subscriber information by ISPs.

It appears from the prepared remarks, as well as the hearing testimony, which can be accessed through LexisNexis Academic, that Google, Microsoft, Yahoo and the rest are doing as much if not more in combatting child pornography/predators, than the DOJ.

The Committee also continues to use statistics that have been exposed as foundationless (20 billion dollar industry, and 50,000 predators on-line).

1:29 PM  
Anonymous Anonymous said...

This is a nice post with some good points about internet privacy, but you know absolutely nothing about child pornography, how and why it is created and by whom. Some education on this topic would give your arguments much more credibility.

James R Marsh
Attorney for Masha Allen

12:54 PM  
Blogger Liz Losh said...

Dear Mr. Marsh,

Because I am a specialist in public rhetoric (how government officials communicate with the governed and vice versa), you may be correct that I have done relatively little research into private communications among subgroups. I do, however, know something about child abuse, because I worked for a social services agency for many years and have received state and county training in assessment and intervention techniques.

This is part of why I am so reluctant to continue to draw attention to potentially troubling aspects of your client's testimony. She is a minor, after all, and I certainly don't dispute that she was abused or the social and psychic consequences of that trauma. Your firm obviously does excellent work in both nondiscrimination and digital rights cases.

Since you handle RIAA cases, however, I don't understand why you even allowed a discussion about the file sharing of songs to enter discussion as relevant to your client's situation. The rhetoric of legislators around Masha's Law perpetuates the criminalizing of file-sharing practices in ways that are very counterproductive to the needs of your other clients.

2:41 PM  
Blogger Liz Losh said...

The above post mistakenly identifies James R. Marsh as Masha Allen's attorney. He recently contacted me to correct the record stating that he is an attorney who is familiar with Masha Allen's case and that any other professional relationship express or implied is incorrect.

12:31 AM  

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