Personal Web Publishing: Approaching a Crisis Point?

 

A couple of years ago a few e-business sites started warning about “the coming crackdown on blogging” (or similar words), and spreading a Chicken Little type message that the freewheeling days of self-expression (and evasion of competition in older business and social hierarchies) could be numbered. The most immediate threat then was campaign finance reform, and the idea that bloggers were inadvertently making illegal contributions in the form of intellectual barter.

 

That “threat” eased as the FEC (Federal Elections Commission) was able to interpret the law in a way to leave most bloggers and self-publishers alone.

 

Nevertheless, it is clear that the “free entry” mechanism that has enabled so many people to gain an audience on their own, without much in the way of usual accountability, does invoke some small, but actuarially difficult to quantity, risks to others around them, including employers, ISPs, and even neighbors and families. The possible problems are many, although many of them might turn out to become red herrings on closer examination.

 

I won’t go into gory details about all of the scenarios – some of it is the stuff of John Grisham or Scott Turow novels, in the Internet age – but I do want to outline some proposals that could make the Internet a lot safer for small fry, and for the insurance companies that some day could have to bond them.

 

Regarding SPAM:

 

The biggest threat here is sender spoofing. Although the CanSpam act makes it a crime within the U.S., the practical result might some day be to create a downstream liability risk or defense expense for the person spoofed, and it might cause hecklers to be able to make him or her look like a nuisance. . A problem related to spoofing has been fake profiles, impersonating other people, aided by “friend request” mechanisms, on social networking sites.

 

So the main solution is pretty much common sense. Start charging for email, with “electronic postage.” Make it something like one mil (one tenth cent) per mail (with some formula for multiple recipients and listservers). That would be easily affordable with almost any reasonable use. But it would take away the free public good that is so tempting for spammers and that also leads to the development of viruses and worms. Furthermore, take the revenue from the charge and develop a safer email protocol (than SMTP), one that can check  and validate sender ID and prevent spoofing. But an intermediate solution could be a market one: ISP’s could set up email to accept only postage-validate email, processed by escrow companies. ISP’s could also scale back on offering unwanted email accounts on shared hosting set up just for publishing.

 

Regarding Identity Theft:

 

Credit grantors (banks, credit card companies, mortgage lenders, car finance companies, even computer stores and other department stores) should be required to perform more due diligence in identifying borrowers. A lynchpin of the process should be use of NCOA (National Change of Address) belonging to the USPS and communicating with customer updating software run by other companies like Group-1 and Harte Hanks. A lot more development would be needed to enable lenders to do this properly (including development of the NCOA system itself within USPS). But in the high-tech age it is ridiculous for homeowners to have to shred their own junk mail to protect themselves.

 

A political problem will be how far to go down the food chain with the due diligence requirement. Should large business and small business be treated differently?

 

Another issue would regard the legality of making residence addresses and other contact information of persons available without their consent, which some specialized “skip tracer” search engine companies do now, probably barely within the realm of what is legally permissible.

 

Regarding Internet Censorship:

 

This is the issue that I have most direct familiarity with since I am one of the plaintiffs challenging the Child Online Protection Act (COPA) of 1998, which has finally had a formal trial before a federal judge in Philadelphia. A ruling might come out before spring 2007.

 

The legal and constitutional arguments focus on some arcane concepts (“least restrictive means analysis” in comparison to the First Amendment). The social problem is broader. Should people without kids or better-off people with kids be expected to restrain themselves to protect less well-off families? Should speakers be required to have enough financial mass to afford potentially expensive audience screening measures?

 

Here, again, the marketplace and technology can provide low-cost solutions to make it easier for many parents to watch their kids. Commercial pornographers already use adult-id cards for most of their content, and adult-id cards as they are set up now and credit cards (for free content outside of financial transactions) are clumsy to use for identification, and would drive away traffic. However, a content labeling scheme (conceptually similar to movie ratings) could be set up with hooks implemented in browsers and new PC’s. Much of this exists already (look at the ICRA), and even digital images can be labeled with watermarks, but there are many situations where labeling is not yet practical. However, software vendors and ISPs could set up a workable system.

 

A very disturbing trend has been the exposure of the extent to which males seek underage persons (mostly for heterosexual contact) in chat rooms, as has been exposed by the NBC Dateline program. Law enforcement stings hopefully are starting to provide a deterrent to this problem.

 

Regarding Copyright

 

We are already seeing a spirited debate on the way copyright ought to work in the Internet age, particularly with respect to objections to the DMCA (the Digital Millennium Copyright Act) and whether it interferes with legitimate fair use by consumers.

 

We see a debate in the writing community about electronic reproduction rights. And a big legal debate about downstream liability when companies base their businesses on the idea that people (often kids) will use their wares to pirate music and movies. All of this has serious implications for the “free entry” concept developed by default on the Internet, as newbies can be unwelcome, if legally legitimate competition, for people who make a living in the media with older paradigms.

 

But one measure is to pay attention to the quality of the content itself. Many of the movies that get pirated are the obvious suburban mall cash cows with little originality (but these are the films that provide jobs and union or guild benefits). The independent films made by auteurs seem to have little problem. Personally, I understand and feel both sides of the copyright debate.

 

Regarding Employment and individual “Right of Publicity”:

 

Within the past eighteen months or so, major media has reported increasing concerns about the contents of personal weblogs or sites and especially social networking site profiles of job applicants and existing employees. These concerns seem to go beyond well established legal concerns over confidentiality to concerns about potential liability and a desire to use weblog content as, like dress, an indicator of personal suitability for employment. What we are seeing in the workplace is a looming debate over who owns a person’s “right of publicity” when there is a free entry portal to become known by the whole planet. The mathematics of binary searches (well known to programmers on job interviews) has led to an unprecedented issue concerning public reputation.

 

The legal term for this problem might be “implicit content”, the meaning of some media material beyond its objective content, especially what it implies about the ultimate motives of the speaker. This could even have unprecedented implications in criminal law in cases where intent or purpose is an issue. Another concern is the “nuisance” problem were a speaker could indirectly endanger others by attracting vandalistic hecklers, creating unprecedented security, legal and ethical conundrums. These notions have increased since 9/11 and are better known in Europe and Britain than in the United States. Ultimately, there is an underlying question about social values: how far may an individual go in self-expression when he or she resents the commonly expected adaptive (and competitive) means of socialization into familial, union and business hierarchies controlled by others but “taking care of everybody.” This has been a flashpoint within libertarian thinking for years.  

 

Related to this problem is the proliferation of databases about people, from various companies, for credit reporting, insurance claims losses, debt collections, foreclosures, and evictions. At some point this collection process can get out of control (as we know with identity theft). Could someone set up a database tracking people’s reputations on the Internet? Already companies promise to watch and manage “reputations” for individuals and maybe for their employers.  

 

One remedy that comes to mind is restricting the audience. There are well-established ways to exclude search engine robots, and recently social networking sites and blogger software has been offering ways to whitelist viewers who may see content. But that defeats the purpose of publishing in the first place. Some social networking companies are also offering this capability, especially for younger subscribers.  ISPs could explore offering identification and geographical services like Idology and quova on their shared hosting platforms to make the cost reasonable. Ultimately, we face a constitutional and legal debate over the “right to publish” at the individual level, as a specific component of the First Amendment.

 

Regarding Education:

 

One anomaly that seems very striking to me is that conventional hard-copy (book and magazine) publishing is rather careful about diligence and procedure in avoiding lawsuits. There are also practices in the publishing industry where authors indemnify publishers against any claims.

 

The indemnification claims often carry over into self-publishers where ISPs or cooperative publishers hold authors responsible for any indirect damage that they cause. Actual suits against novice writers have, so far, been very rare, partly for rather transparent business reasons. But what seems clear is that newbies, most of all teenagers and college students, who enter the public space ought to have some training in copyright and defamation law. Although high schools have been approaching this issue in journalism classes and have formal plagiarism programs, they need to do a much more thorough job on education students on responsible use of blogs and social networking sites than they have done so far, even to the point of testing these concepts on state standard exams (on English or social studies) since this has become such an important part of our society. Curricula would need to be developed.

 

Conclusion:

 

The future of self-expression on the Internet, as we have come to count on it, could hang in the balance. Particularly disturbing are attracting or encouraging various kinds of scams and crimes. Another problem is more subtle: some people interpret the chutzpah of ordinary people on the Net as out of line and disrespectful of cultural norms that they have been used to counting on. But we need to get beyond ideology and constitutional debate and look for real solutions to these problems. The last thing I could ever accept is being forced to promote someone else’s message before I can promote my own.

 

©2006 by Bill Boushka, subject to fair use.

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