This week, Americans will gather with friends and family at barbecues, parades, and parties to celebrate the vision that our founders put in motion over 200 years ago. Americans hold dear the core freedoms that were established at our nation's founding, including the freedom of expression and the idea of a free and open marketplace where competition drives innovation. In the 21st century, these freedoms have been enhanced by one of the greatest tools ever created: the Internet.
The Internet has flourished into a central force in so many of our lives precisely because it has reflected our founders' vision. Like our nation, the Internet was founded on the principles of openness and competition. It has become the ultimate marketplace of ideas, where everyone has a voice and the best products or services succeed based on their own merit. But like our country, which is protected by a Bill of Rights that guarantees our basic freedoms, the Internet needs concrete, fundamental protections to ensure that it is not abused by those with the power to do so. That is why I was gravely disappointed when the D.C. Court of Appeals struck down the Federal Communications Commission's 2010 open Internet rules and why in the Senate, I am fighting to protect a free and open Internet.
Open Internet principles are the Bill of Rights for the online world. We should not allow an Internet that is divided into "haves" and "have-nots," where those who can afford to pay drown out the voices of those who cannot. Last month, I joined with Congresswoman Doris Matsui of California in introducing legislation to require the FCC to ban pay-to-play deals online. Pay-to-play arrangements would distort the open ecosystem that makes the Internet the unparalleled platform it is today.
The FCC is now considering how best to restore open Internet protections. Since FCC Chairman Tom Wheeler began a proceeding to consider new open Internet rules, nearly 300,000 Americans have commented on his proposal. The message is loud and clear: Americans want an Internet that is a platform for free expression and innovation, and where the best ideas and services can reach consumers based on merit rather than on money.
The outcome of this debate will have a profound effect on small businesses, community voices, and consumers. Our actions in the United States send a message to other nations around the world. Let us stand for an open Internet where all may have their voices heard.
Monday, June 30, 2014
Five Things IT Must Learn From the Automotive Industry
There is an overriding problem within the IT sector. It goes beyond challenges like the complexity of IT projects, the growth of BYOD, increased workforce mobility or dealing with legacy systems. The big problem in IT is the high degree of waste.
Whether you're talking about waste in terms of cost, network bandwidth, timespent, electricity use, or any number of other measures, ask anyone working in IT whether there is a waste problem and I guarantee they will not only agree, but agree emphatically.
Unfortunately, there is a general acceptance that this is just 'the way things are'; it seems the IT sector doesn't know what to do about this problem or have the incentive to fix it.
However, one has only to look at another field, the automotive industry, to see an example of an industry that is driving innovation and success through a sharp focus on efficiency, speed and performance. Here are the top five things that IT can learn.
1. Advancing its design process, engineering knowledge and technology - It should be no surprise that today's cars are much more sophisticated than the cars of 30, 10 and even two years ago as the automotive industry has been advancing these processes for decades.
Year on year, automotive engineers introduce new technologies, components and complexity to the design and production process, yet cars continue to perform better and more efficiently than before.
However in IT we don't behave in the same way - what we don't do is judge our efforts based on whether we are delivering significantly more IT for the same amount of money or, more importantly, for less. But that is the very textbook definition of efficiency; that 'less in' should equal 'the same or more out'.
2. Efficiency is analogous with sophistication - This is what is lacking in today's IT function. Modern cars have a way of doing everything 'under the hood', while for the driver, the whole experience feels as simple as driving any other car. Such sophistication should be running through the workings of every IT department, central to every process.
IT today is not sophisticated, as we waste energy and resources doing the same job over and over again. We need to stop trying to continuously reinvent the wheel and figure out the same thing that someone else has already spent time working out. Sophistication in IT is about capturing and codifying complex processes and creating software so it can be repeated again, and again, and again.
The irony is that IT teams are failing to use computers for the very purpose they were designed for: to speed up and automate complex or lengthy processes. Humans are not good at repeating things, but it's where computers excel.
3. Efficiency is a choice - Being efficient is an easy choice to make if you're looking to buy a car. The progress in design and development within the automotive industry means that fuel efficiencies can easily co-exist with technology and high performance.
But it's not an obvious choice to make for today's IT departments. Very few CIOs have a specific objective to reduce waste and make IT run more efficiently and other tactical measures such as meeting project deadlines and rolling out new software soon take the spotlight.
Like the automotive industry, IT needs to be making an active decision to become more sophisticated.
4. No drag on efficiency - Automotive engineers have derived maximum aero efficiency with very low drag. IT can do the same by eliminating unnecessary infrastructure, servers and software, freeing up budget and manpower to create a fast and agile IT environment.
By applying intelligent bandwidth throttling, IT data never competes with business data and the existing infrastructure is used to distribute software, operating system upgrades and deployments, removing the need for branch servers or desk-side visits.
5. Speeding up carbon reduction - Fuel efficiency cuts the carbon footprint and reducing miles per gallon is something that the automotive industry prides itself on.
Carbon reduction hasn't been a focus for IT departments despite the fact that effective PC power management can drastically reduce energy consumption by up to $36 per PC per year, cutting the cost of utility bills and reducing CO2 emissions.
It's time for IT professionals to start challenging the status quo. Let's stop accepting the waste problem in IT and start doing something about it.
The first hybrid car won at Le Mans in June 2012, but the real winner was new technology that enabled this game-changing feat. The tools to remove unnecessary technology cost from the business did not exist before for the IT department, but they do now.
Whether you're talking about waste in terms of cost, network bandwidth, timespent, electricity use, or any number of other measures, ask anyone working in IT whether there is a waste problem and I guarantee they will not only agree, but agree emphatically.
Unfortunately, there is a general acceptance that this is just 'the way things are'; it seems the IT sector doesn't know what to do about this problem or have the incentive to fix it.
However, one has only to look at another field, the automotive industry, to see an example of an industry that is driving innovation and success through a sharp focus on efficiency, speed and performance. Here are the top five things that IT can learn.
1. Advancing its design process, engineering knowledge and technology - It should be no surprise that today's cars are much more sophisticated than the cars of 30, 10 and even two years ago as the automotive industry has been advancing these processes for decades.
Year on year, automotive engineers introduce new technologies, components and complexity to the design and production process, yet cars continue to perform better and more efficiently than before.
However in IT we don't behave in the same way - what we don't do is judge our efforts based on whether we are delivering significantly more IT for the same amount of money or, more importantly, for less. But that is the very textbook definition of efficiency; that 'less in' should equal 'the same or more out'.
2. Efficiency is analogous with sophistication - This is what is lacking in today's IT function. Modern cars have a way of doing everything 'under the hood', while for the driver, the whole experience feels as simple as driving any other car. Such sophistication should be running through the workings of every IT department, central to every process.
IT today is not sophisticated, as we waste energy and resources doing the same job over and over again. We need to stop trying to continuously reinvent the wheel and figure out the same thing that someone else has already spent time working out. Sophistication in IT is about capturing and codifying complex processes and creating software so it can be repeated again, and again, and again.
The irony is that IT teams are failing to use computers for the very purpose they were designed for: to speed up and automate complex or lengthy processes. Humans are not good at repeating things, but it's where computers excel.
3. Efficiency is a choice - Being efficient is an easy choice to make if you're looking to buy a car. The progress in design and development within the automotive industry means that fuel efficiencies can easily co-exist with technology and high performance.
But it's not an obvious choice to make for today's IT departments. Very few CIOs have a specific objective to reduce waste and make IT run more efficiently and other tactical measures such as meeting project deadlines and rolling out new software soon take the spotlight.
Like the automotive industry, IT needs to be making an active decision to become more sophisticated.
4. No drag on efficiency - Automotive engineers have derived maximum aero efficiency with very low drag. IT can do the same by eliminating unnecessary infrastructure, servers and software, freeing up budget and manpower to create a fast and agile IT environment.
By applying intelligent bandwidth throttling, IT data never competes with business data and the existing infrastructure is used to distribute software, operating system upgrades and deployments, removing the need for branch servers or desk-side visits.
5. Speeding up carbon reduction - Fuel efficiency cuts the carbon footprint and reducing miles per gallon is something that the automotive industry prides itself on.
Carbon reduction hasn't been a focus for IT departments despite the fact that effective PC power management can drastically reduce energy consumption by up to $36 per PC per year, cutting the cost of utility bills and reducing CO2 emissions.
It's time for IT professionals to start challenging the status quo. Let's stop accepting the waste problem in IT and start doing something about it.
The first hybrid car won at Le Mans in June 2012, but the real winner was new technology that enabled this game-changing feat. The tools to remove unnecessary technology cost from the business did not exist before for the IT department, but they do now.
Teaching Our Kids to Be Robots
Nothing makes me feel inadequate like reading the tech news. Seems like every day some young person sitting in a garage somewhere gets an idea, finds an engineer to turn it into an app, figures out how to monetize that app or sell it to Facebook, gets mired in a lawsuit about intellectual property, has embarrassing old e-mails published on Gawker, settles that lawsuit, and winds up in the pages of Forbes and hosting a Ted Talk on how their small idea started a virtual revolution.
It was my understanding that I had until I was 50 to really make it in the world, or at least to achieve the kind of financial security that allows you to buy all your fruit organic. But now, millennials are parading around Silicon Valley like they own the place and the truth is many of them do.
These twenty-something tech entrepreneurs prove that you don't need to spend years toiling in the mailroom in order to get to the top. Great success can be just a few clicks and advanced HTML code away.
It's easy to get caught up in the excitement and the possibility of this wireless world, where all good ideas are equal and you can strike it rich before you're legally allowed to rent a car.
Yet, I have such doubt about what is happening to our souls in this age of artificial intelligence. To call upon the words of journalist Syd Harris: "The real danger is not that computers will begin to think like men, but that men will begin to think like computers."
I'm not one to stand in the way of human progress, without which we might never have string cheese or cronuts or American democracy. And I don't want to join a chorus of people throughout history who have irrationally feared change. I certainly wouldn't have wanted to be one of the paranoid naysayers who thought that once the Wright brothers successfully flew one plane, we'd all grow wings or that our Minnesota cousins would drop in too much.
But I lie awake at night worried we are too mired in and reliant upon technology; that we are too consumed to stop and think about its potentially damaging effects on the human experience.
When we were small, we dreamt of becoming marine biologists or firemen.
Today, we are raising kindergartners who will grow up imagining the trajectory of their lives completely differently. This summer, kids will go to start-up camps and learn to code. They will be encouraged to follow the paths of people not much older than them, whose precocious success they will try to emulate. They will be taught to simplify and look for solutions to all of life's little inconveniences. They will grow up in a world that values expediency, correctness and punctuality.
And if we're rearing children in a world that is obsessed with how technology can help us avoid error and save time, we must be careful not to completely diminish the great joy that is found in the small and happy accidents of life.
What did we ever do without our smartphones, we think to ourselves, as we tuck them in under our pillows at night and carry them into the bathroom with us in the morning. Our gadgets are part and parcel of our mundane lives. They tell us when to get up and what to wear; which roads to avoid; how to book a flight or buy a book without ever leaving our living room. There are apps that do our laundry and order us take-out, and do everything else to provide for the perfect Friday night with our cats.
Our devices take care of all the details, short of brushing our hair for us. Of course, some smartphones don't think we need to brush our hair and are programmed to remind us we are naturally beautiful.
It's tempting to think that we will one day be able to avoid all the small indignities of life that punctuate our existence: forgetting the words, missing the bus, stepping in a puddle, spilling a latte down the front of our new J.Crew button down that we bought to look like a professional.
But, as they keep developing iOS systems and Android updates to meet our every need, we may lose what makes us the most unique species second to the yeti crab: the ability to be wrong, to crash, to wait, and to wonder without consequence.
What did we ever do without our smartphones? We lived! We frolicked! We mistook strangers for friends and got on the wrong bus which took us somewhere great anyway.
Some of the best parts of ordinary life are when things go slightly awry, the kind of serendipity that only arises out of a pure mishap. If we never miss another light or run another stop sign or let the elevators close on our hands, then how will we ever meet Hugh Grant?
As humans, we are accident-prone. We walk into things, we fall down, we crash into each other and break hearts and bones. We burst into tears in public and our cars stall. We forget our umbrellas and confuse the rain for a sign that the heavens are unsympathetic. We mix up ingredients and names and end up making brownies that taste like dish soap.
We lie. We make things up. We get things wrong, from directions to baseball statistics to the name of our first-born cat.
But it is those moments of error that cause us to think, to re-examine and to explore. Technology can deprive us of these times of reflection and creation.
And it's not just me saying this. Scientists have proven it! When we let our technology do too much of the planning and thinking for us, we use our brains less and cause what scientists call biological atrophy. We may actually be getting stupider for all of our "smart devices."
In all this so called advancement, we are losing what differentiated us from the start: The ability to make a great big mess.
Who will we be if we aren't the the thinking, neurotic, irritated, hungry, problem-solving beings we've been since Cro-Magnon times?
Perhaps we'll become more like the computers who serve us -- boring and predictable and vulnerable to fates worse than the heart-bleed bug.
It was my understanding that I had until I was 50 to really make it in the world, or at least to achieve the kind of financial security that allows you to buy all your fruit organic. But now, millennials are parading around Silicon Valley like they own the place and the truth is many of them do.
These twenty-something tech entrepreneurs prove that you don't need to spend years toiling in the mailroom in order to get to the top. Great success can be just a few clicks and advanced HTML code away.
It's easy to get caught up in the excitement and the possibility of this wireless world, where all good ideas are equal and you can strike it rich before you're legally allowed to rent a car.
Yet, I have such doubt about what is happening to our souls in this age of artificial intelligence. To call upon the words of journalist Syd Harris: "The real danger is not that computers will begin to think like men, but that men will begin to think like computers."
I'm not one to stand in the way of human progress, without which we might never have string cheese or cronuts or American democracy. And I don't want to join a chorus of people throughout history who have irrationally feared change. I certainly wouldn't have wanted to be one of the paranoid naysayers who thought that once the Wright brothers successfully flew one plane, we'd all grow wings or that our Minnesota cousins would drop in too much.
But I lie awake at night worried we are too mired in and reliant upon technology; that we are too consumed to stop and think about its potentially damaging effects on the human experience.
When we were small, we dreamt of becoming marine biologists or firemen.
Today, we are raising kindergartners who will grow up imagining the trajectory of their lives completely differently. This summer, kids will go to start-up camps and learn to code. They will be encouraged to follow the paths of people not much older than them, whose precocious success they will try to emulate. They will be taught to simplify and look for solutions to all of life's little inconveniences. They will grow up in a world that values expediency, correctness and punctuality.
And if we're rearing children in a world that is obsessed with how technology can help us avoid error and save time, we must be careful not to completely diminish the great joy that is found in the small and happy accidents of life.
What did we ever do without our smartphones, we think to ourselves, as we tuck them in under our pillows at night and carry them into the bathroom with us in the morning. Our gadgets are part and parcel of our mundane lives. They tell us when to get up and what to wear; which roads to avoid; how to book a flight or buy a book without ever leaving our living room. There are apps that do our laundry and order us take-out, and do everything else to provide for the perfect Friday night with our cats.
Our devices take care of all the details, short of brushing our hair for us. Of course, some smartphones don't think we need to brush our hair and are programmed to remind us we are naturally beautiful.
It's tempting to think that we will one day be able to avoid all the small indignities of life that punctuate our existence: forgetting the words, missing the bus, stepping in a puddle, spilling a latte down the front of our new J.Crew button down that we bought to look like a professional.
But, as they keep developing iOS systems and Android updates to meet our every need, we may lose what makes us the most unique species second to the yeti crab: the ability to be wrong, to crash, to wait, and to wonder without consequence.
What did we ever do without our smartphones? We lived! We frolicked! We mistook strangers for friends and got on the wrong bus which took us somewhere great anyway.
Some of the best parts of ordinary life are when things go slightly awry, the kind of serendipity that only arises out of a pure mishap. If we never miss another light or run another stop sign or let the elevators close on our hands, then how will we ever meet Hugh Grant?
As humans, we are accident-prone. We walk into things, we fall down, we crash into each other and break hearts and bones. We burst into tears in public and our cars stall. We forget our umbrellas and confuse the rain for a sign that the heavens are unsympathetic. We mix up ingredients and names and end up making brownies that taste like dish soap.
We lie. We make things up. We get things wrong, from directions to baseball statistics to the name of our first-born cat.
But it is those moments of error that cause us to think, to re-examine and to explore. Technology can deprive us of these times of reflection and creation.
And it's not just me saying this. Scientists have proven it! When we let our technology do too much of the planning and thinking for us, we use our brains less and cause what scientists call biological atrophy. We may actually be getting stupider for all of our "smart devices."
In all this so called advancement, we are losing what differentiated us from the start: The ability to make a great big mess.
Who will we be if we aren't the the thinking, neurotic, irritated, hungry, problem-solving beings we've been since Cro-Magnon times?
Perhaps we'll become more like the computers who serve us -- boring and predictable and vulnerable to fates worse than the heart-bleed bug.
BMW's Trudy Hardy takes the #AOLBuild stage
Trudy Hardy a 19-year veteran in the auto industry joined AOL's BUILD series to share her experiences in marketing, product planning and strategy for such brands as Jaguar, Mini and in her current role as Vice President of Marketing North America for BMW.
A key sponsor in the Olympics, BMW's support of the U.S. teams has resulted in over 800,000 consumers visiting their sites, and has extended BMW's brand ideals in North America and around the world.
Watch the video below to hear more from Trudy about her marketing leadership at BMW.
For additional highlights, check out AOL Advertising's Steve Sturm and his coverage of the event here: AOL Build: Trudy Hardy, BMW North America.
Facebook's Emotional Manipulation Study: When Ethical Worlds Collide
The research community is buzzing about the ethics of Facebook's now-famous experiment in which it manipulated the emotional content of users' news feeds to see how that would affect users' activity on the site. (The paper, by Adam Kramer of Facebook, Jamie Guillory of UCSF, and Jeffrey Hancock of Cornell, appeared in Proceedings of the National Academy of Sciences.)
The main dispute seems to be between people such as James Grimmelmann and Zeynep Tufecki who see this as a clear violation of research ethics; versus people such as Tal Yarkoni who see it as consistent with ordinary practices for a big online company like Facebook.
One explanation for the controversy is the large gap between the ethical standards of industry practice, versus the research community's ethical standards for human subjects studies.
Industry practice allows pretty much any use of data within a company, and infers consent from a brief mention of "research" in a huge terms of use document whose existence is known to the user. Users voluntarily give their data to Facebook and Facebook is free to design and operate its service any way it likes, unless it violates its privacy policy or terms of use.
The research community's ethics rules are much more stringent, and got that way because of terrible abuses in the past. They put the human subject at the center of the ethical equation, requiring specific, fully informed consent from the subject, and giving the subject the right to opt out of the study at any point without consequence. If there is any risk of harm to the subject, it is the subject and not the researchers who gets to decide whether the risks are justified by the potential benefits to human knowledge. If there is a close call as to whether a risk is real or worth worrying about, that call is for the subject to make.
Facebook's actions were justified according to the industry ethical standards, but they were clearly inconsistent with the research community's ethical standards. For example, there was no specific consent for participation in the study, no specific opt-out, and subjects were not informed of the potential harms they might suffer. The study set out to see if certain actions would make subjects unhappy, thereby creating a risk of making subjects unhappy, which is a risk of harm -- a risk that is real enough to justify informing subjects about it.
The lead author of the study, Adam Kramer, who works for Facebook, wrote a statement (on Facebook, naturally, but quoted in Kashmir Hill's article) explaining his justification of the study.
The reason we did this research is because we care about the emotional impact of Facebook and the people that use our product. We felt that it was important to investigate the common worry that seeing friends post positive content leads to people feeling negative or left out. At the same time, we were concerned that exposure to friends' negativity might lead people to avoid visiting Facebook. We didn't clearly state our motivations in the paper.
[...]
The goal of all of our research at Facebook is to learn how to provide a better service. Having written and designed this experiment myself, I can tell you that our goal was never to upset anyone. I can understand why some people have concerns about it, and my coauthors and I are very sorry for the way the paper described the research and any anxiety it caused. In hindsight, the research benefits of the paper may not have justified all of this anxiety.
This misses the point of the objections. He justifies the research by saying that the authors' intention was to help users and improve Facebook products, and he expresses regret for not explaining that clearly enough in the paper. But the core of the objection to the research is that the researchers should not have been the ones deciding whether those benefits justified exposing subjects to the experiment's possible side-effects.
The gap between industry and research ethics frameworks won't disappear, and it will continue to cause trouble. There are at least two problems it might cause. First, it could drive a wedge between company researchers and the outside research community, where company researchers have trouble finding collaborators or publishing their work because they fail to meet research-community ethics standards. Second, it could lead to "IRB laundering," where academic researchers evade formal ethics-review processes by collaborating with corporate researchers who do experiments and collect data within a company where ethics review processes are looser.
Will this lead to a useful conversation about how to draw ethical lines that make sense across the full spectrum from research to practice? Maybe. It might also breathe some life into the discussion about the implications of this kind of manipulation outside of the research setting. Both are conversations worth having.
UPDATE (3 p.m. EDT, June 30, 2014): Cornell issued a carefully worded statement (compare to earlier press release) that makes this look like a case of "IRB laundering": Cornell researchers had "initial discussions" with Facebook, Facebook manipulated feeds and gathered the data, then Cornell helped analyze the data. No need for Cornell to worry about the ethics of the manipulation/collection phase, because "the research was done independently by Facebook."
Edward W. Felten is the Robert E. Kahn Professor of Computer Science and Public Affairs at Princeton University, and the founding Director of Princeton's Center for Information Technology Policy (CITP).
This piece first appeared on Freedom to Tinker, a blog hosted by CITP.
Is Facebook Making You Depressed? On Purpose?
I just read in today's New York Times business section that Facebook last week admitted to doing "psychological testing" on its readers by -- during a week in January 2012 -- trying to manipulate the feelings of 689,003 of its randomly selected users by changing the number of positive and negative posts that the readers saw. "It was part of a psychological study to examine how emotions can be spread on social media," according to The Times.
Tell the truth -- if you saw a lot of negative posts on Facebook would this bring you down and cause you to write more negative posts? And if you saw upbeat, positive news on Facebook would that lift your spirits? Of course it would!
That's what the Facebook study discovered, according to The Times.
So when this news about Facebook came out last week, there was a lot of outcry, as might be expected. "I wonder if Facebook KILLED anyone with their emotion manipulation stunt." tweeted one commentator, Lauren Weinstein, according to The Times.
This is a valid question. I happen to be a news junky who reads three newspapers every morning first thing, and I admit to checking Facebook about a zillion times a day to see what my children and friends are up to. Lately, there have been so many headlines about children being abused, kidnapped, shot, stricken with deadly diseases or locked in hot cars that I'm seriously considering cutting out the newspapers in the morning. And every time I see an item on Facebook that appears to chronicle a child's injury or disease or abusive childhood or tragic death, I avert my eyes and quickly scroll on by.
Part of the reason I've become hypersensitive to bad news about kids is the entry of a granddaughter into my life during the past three years. You forget how vulnerable and small and easily harmed your children were when they were new.
My daughter, the baby's mother, had the same reaction. She and her husband used to enjoy watching the TV show "Dexter", about a serial killer. But since the baby was born, she can't watch violence of any kind. As you can imagine, we both avoid shows such as "Game of Thrones" like the plague. (They'll probably incorporate that into the script, too, if they haven't already.) And, while I'd really like to see the Oscar-winning film "12 Years a Slave", I know I couldn't manage to sit through all the violence, but would probably run out of the theater, the way I did when I was seven and my crusty old grandmother would take me to Bible films like "Samson and Delilah."
Back to Facebook manipulating the posts we saw to find out what lots of negative or positive news would do to us. It seems the Facebook people are now feeling sorry and trying to explain themselves, in view of the public outcry.
"I can understand why some people have concerns about it, and my co-authors and I are very sorry for the way the paper described the research and any anxiety it caused," posted Adam D. I. Kramer, who led the study.
"Ultimately, we're just providing a layer of technology that helps people get what they want," said Chris Cox, chief product officer of Facebook, talking to The Times.
All the excuses of the Facebook executives are, for lack of a more pungent phrase, a bunch of hooey. I'm not a researcher or internet genius, but I do know that, when you feel happy, you're much more likely to react to ads, like the ones on Facebook, and buy something. When you're depressed, you're not.
Whenever I manage to diet off that pesky ten pounds of excess weight, I always happily rush out and buy clothes in my new size that will hang in my closet, price tags still attached, to silently rebuke me when they don't fit any more, and that's when, sadly, I have no urge to buy more clothes.
A happy Facebook reader is more likely to respond to the ads on Facebook than a depressed Facebook reader, and that's the whole reason for their little foray into psychological testing and emotional manipulation. The Facebook executives should confess this and be ashamed.
But unless they throw me out for badmouthing the site, I suspect that's still not going to ameliorate my Facebook addiction.
Tell the truth -- if you saw a lot of negative posts on Facebook would this bring you down and cause you to write more negative posts? And if you saw upbeat, positive news on Facebook would that lift your spirits? Of course it would!
That's what the Facebook study discovered, according to The Times.
The researchers found that moods were contagious. The people who saw more positive posts responded by writing more positive posts. Similarly, seeing more negative content prompted the viewers to be more negative in their own posts.
So when this news about Facebook came out last week, there was a lot of outcry, as might be expected. "I wonder if Facebook KILLED anyone with their emotion manipulation stunt." tweeted one commentator, Lauren Weinstein, according to The Times.
This is a valid question. I happen to be a news junky who reads three newspapers every morning first thing, and I admit to checking Facebook about a zillion times a day to see what my children and friends are up to. Lately, there have been so many headlines about children being abused, kidnapped, shot, stricken with deadly diseases or locked in hot cars that I'm seriously considering cutting out the newspapers in the morning. And every time I see an item on Facebook that appears to chronicle a child's injury or disease or abusive childhood or tragic death, I avert my eyes and quickly scroll on by.
Part of the reason I've become hypersensitive to bad news about kids is the entry of a granddaughter into my life during the past three years. You forget how vulnerable and small and easily harmed your children were when they were new.
My daughter, the baby's mother, had the same reaction. She and her husband used to enjoy watching the TV show "Dexter", about a serial killer. But since the baby was born, she can't watch violence of any kind. As you can imagine, we both avoid shows such as "Game of Thrones" like the plague. (They'll probably incorporate that into the script, too, if they haven't already.) And, while I'd really like to see the Oscar-winning film "12 Years a Slave", I know I couldn't manage to sit through all the violence, but would probably run out of the theater, the way I did when I was seven and my crusty old grandmother would take me to Bible films like "Samson and Delilah."
Back to Facebook manipulating the posts we saw to find out what lots of negative or positive news would do to us. It seems the Facebook people are now feeling sorry and trying to explain themselves, in view of the public outcry.
"I can understand why some people have concerns about it, and my co-authors and I are very sorry for the way the paper described the research and any anxiety it caused," posted Adam D. I. Kramer, who led the study.
"Ultimately, we're just providing a layer of technology that helps people get what they want," said Chris Cox, chief product officer of Facebook, talking to The Times.
All the excuses of the Facebook executives are, for lack of a more pungent phrase, a bunch of hooey. I'm not a researcher or internet genius, but I do know that, when you feel happy, you're much more likely to react to ads, like the ones on Facebook, and buy something. When you're depressed, you're not.
Whenever I manage to diet off that pesky ten pounds of excess weight, I always happily rush out and buy clothes in my new size that will hang in my closet, price tags still attached, to silently rebuke me when they don't fit any more, and that's when, sadly, I have no urge to buy more clothes.
A happy Facebook reader is more likely to respond to the ads on Facebook than a depressed Facebook reader, and that's the whole reason for their little foray into psychological testing and emotional manipulation. The Facebook executives should confess this and be ashamed.
But unless they throw me out for badmouthing the site, I suspect that's still not going to ameliorate my Facebook addiction.
Aereo: It's Over Now
After months of debate and speculation, the U.S. Supreme Court on Wednesday ruled against Internet TV service Aereo in a 6-3 decision. The decision was a win for broadcasters that argued Aereo violated their copyright. Even though lesser courts had sided with Aereo, the Supreme Court saw it differently, effectively killing Aereo (at least in its current form).
"It's over now," said Barry Diller, whose company IAC led a $20.5 million funding for Aereo in 2012. Diller said Aereo "did try" but has said in the past that there is "no Plan B" if the Supreme Court rules against Aereo.
21st Century Fox said the ruling was "a win for consumers that affirms important copyright protections." Aereo's founder and CEO Chet Kanojia said the ruling is "a massive setback for the American consumer" and that it sends a "chilling message to the technology industry." Aereo says it will continue to fight, but the definitive ruling leaves them with little room to operate.
My good friend, Gary Shapiro, CEO of the Consumer Electronics Association, wrote that the ruling "is a disappointment for startups, consumers and proponents of technological progress" as "more and more of us are demanding the ability to view TV programming on our own tablets and smartphones, not just our TVs."
The Supreme Court's ruling directly affected a very small slice of the current TV landscape. Aereo, which launched in 2012 in NYC, is only available in 13 cities and only has about 100,000 subscribers. However, its ramifications for the future are much, much greater - especially considering that in 36 months, more people will be watching primetime television programming online than on broadcast TV. This ruling delays the inevitable - and helps broadcasters keep their heads in the sand.
What the Ruling Means for Broadcasters
The Supreme Court's ruling against Aereo helps keep the status quo for broadcasters and major networks -- which is exactly what they wanted. Major networks were threatening to pull their stations off the air and move to subscription-only if Aereo had won -- they said Aereo would create a blueprint that would eventually let cable providers stop paying retransmission fees. (They were right about that specific point.)
The ruling is also a win for the NFL and MLB, both of which said Aereo exploited their copyrighted telecasts and both had threatened to move their games to cable if Aereo was deemed legal.
Les Moonves, CEO of CBS, says the ruling means broadcasters can stay in business: "We will continue to do the same high-quality, premium programming that we've done and we will deliver it. This is a pro-consumer thing."
What the Ruling Means for You
Even if you weren't an Aereo subscriber, the ruling limits your TV options -- and brings into question other cloud-based products you may be using.
Aereo aimed to disrupt cable. Diller said Aereo offered an "alternative to the bundle" that consumers are forced to accept from cable providers.
"It's not a big [financial] loss for us, but I do believe blocking this technology is a big loss for consumers," he said. "I salute Chet Kanojia and his band of Aereo'lers for fighting the good fight."
The ruling is a blow for cord-cutters -- both the ones who have already given up on cable and the ones who planned to do so in the near future. It eliminates an inexpensive option to get live TV on their computers, alongside other subscription services like Netflix and Hulu Plus.
A sea change is coming in the broadcast world. Consumers are unhappy with the expensive (and restrictive) subscription models cable and satellite providers are offering. The most recent yearly survey from Temkin Group found support for all of the largest pay TV providers had fallen in the past year. The survey also showed that these pay TV providers were the second worst in customer satisfaction across the 43 industries; the only companies that fared worse were Internet service providers.
As Gary Shapiro wrote, the ruling also means that "the migration away from local programming in favor of new alternatives offered by HBO, Netflix, Amazon, YouTube and other innovators in the content and delivery space will continue." Our expectation of TV is WiWWiWWiW (What I want, When I want, Where I want). Aereo offered broadcast TV that fit that model; traditional broadcasters do not.
What the Ruling Means for the Rest of the Tech World
The bigger fear is that a ruling against Aereo could disrupt and endanger cloud computing -- where storing videos and other content on remote servers is the name of the game. Justice Stephen Breyer said the ruling should not affect cloud-based content services or companies (like Google, Microsoft or Dropbox), but that could still be a future battleground.
Could these services such as Box, Dropbox and Google Drive, be next on the chopping block? The types of services that let you stream copyrighted materials stored on a server -- like music, books and movies -- in exactly the same manner as the technology Aereo was using. Aereo is afraid of these consequences -- that's the "chilling message" Kanojia spoke about.
"We know what the Supreme Court intends to do, which is to say [Aereo] is illegal and nothing else, at least presumptively, is," said Jessica Litman, a professor at the University of Michigan's law school. However, "there's a bunch of ambiguity in the attempted carve-out of cloud storage services."
The Future of Aereo and TV
Aereo doesn't have the revenue to pay the retransmission fees major broadcast networks do. It also doesn't have the money to begin an expensive legal battle. It's likely this is the end of the road for Aereo, unless it completely re-works its business model -- which seems antithetical to the basis for the company.
"If broadcasters won't adapt to what we as viewers want," writes Gary Shapiro, "they will continue to face challenges from disruptive innovators like Aereo." Let's hope so. I would hate to think that this ruling inhibits innovation in any way, but only time will tell.
Facebook's Psych Experiment: Consent, Privacy, and Manipulation
This weekend, the results of an experiment conducted by researchers and Facebook were released, creating a fierce debate over the ethics of the endeavor. The experiment involved 689,003 people on Facebook whose News Feed was adjusted to contain either more positive or more negative emotional content. The researchers were looking for whether this had an effect on these people's moods. And it did, albeit a small one. People exposed to more positive content had posts that were more positive, and those exposed to more negative content had posts that were more negative. This was measured by the types of words they used.
This post first appeared on LinkedIn.
The experiment launched a fierce response from critics, some of whom decried it as unethical and creepy. In my view, it isn't productive to castigate Facebook or the researchers, as the problems here emerge from some very difficult unresolved issues that go far beyond this experiment and Facebook. I want to explore these issues, because I'm more interested in making progress on these issues than on casting stones.
Consent
A primary concern with the experiment concern was whether people subjected to the experiment gave the appropriate consent. People were deemed to have consented based on their agreement to Facebook's Data Use Policy, which states that Facebook "may use the information we receive about you... for internal operations, including troubleshooting, data analysis, testing, research and service improvement."
This is how consent is often obtained when companies want to use people's data. The problem with obtaining consent in this way is that people often rarely read the privacy policies or terms of use of a website. It is a pure fiction that a person really "agrees" with a policy such as this, yet we use this fiction all the time. For more about this point, see my article, "Privacy Self-Management and the Consent Dilemma," 126 Harvard Law Review 1880 (2013).
Contrast this form of obtaining consent with what is required by the federal Common Rule, which regulates federally-funded research on human subjects. The Common Rule requires as a general matter (subject to some exceptions) that the subjects of research provide informed consent. The researchers must get the approval of an institutional review boards (IRB). Because the researchers involved not just a person at Facebook, but also academics at Cornell and U.C. San Francisco, the academics did seek IRB approval, but that was granted based on the use of the data, not on the way it was collected.
Informed consent, required for research and in the healthcare context, is one of the strongest forms of consent the law requires. It is not enough simply to fail to check a box or fail to opt out. People must be informed of the risks and benefits and affirmatively agree.
The problem with the Facebook experiment is that it exposed the rather weak form of consent that exists in much of our online transactions. I'm not sure that informed consent is the cure-all, but it would certainly have been better than the much weaker form of consent involved with this experiment.
This story has put two conceptions of consent into stark contrast -- the informed consent required for much academic research on humans and the rather weak consent that is implied if a site has disclosed how it collects and uses data in a way that nobody reads or understands.
In Facebook's world of business, its method of obtaining consent was a very common one. In the academic world and in healthcare, however, the method of obtaining consent is more stringent. This clash has brought the issue of consent to the fore. What does it mean to obtain consent? Should the rules of the business world or academic/healthcare world govern?
Beyond this issue, the problems of consent go deeper. There are systemic difficulties in people making the appropriate cost-benefit analysis about whether to reveal data or agree to certain potential uses. In many cases, people don't know the potential future uses of their data or what other data it might be combined with, so they can't really assess the risks or benefits.
Privacy Expectations
Perhaps we should focus more on people's expectations than on consent. Michelle Meyer points out in a blog post that IRBs may waive the requirements to obtain informed consent if the research only involves "minimal risk" to people, which is a risk that isn't greater than risks "ordinarily encountered in daily life." She argues that the "IRB might plausibly have decided that since the subjects' environments, like those of all Facebook users, are constantly being manipulated by Facebook, the study's risks were no greater than what the subjects experience in daily life as regular Facebook users, and so the study posed no more than 'minimal risk' to them."
Contrast that with Kashmir Hill, who writes: "While many users may already expect and be willing to have their behavior studied -- and while that may be warranted with 'research' being one of the 9,045 words in the data use policy -- they don't expect that Facebook will actively manipulate their environment in order to see how they react. That's a new level of experimentation, turning Facebook from a fishbowl into a petri dish, and it's why people are flipping out about this."
Although Meyer's point is a respectable one, I side with Hill. The experiment does strike me as running counter to the expectations of many users. People may know that Facebook manipulates the news feed, but they might not have realized that this manipulation would be done to affect their mood.
One thing that is laudable for Facebook is that the study was publicly released. Too often, uses of data are kept secret and never revealed. And they are used solely for the company's own benefit rather than shared with others. I applaud Facebook's transparency here because so much other research is going on in a clandestine manner, and the public never receives the benefits of learning the results.
It would be wrong merely to attack Facebook, because then companies would learn that they would just get burned for revealing what they were doing. There would be less transparency. A more productive way forward is to examine the issue in a broader context, because it is not just Facebook that is engaging in these activities. The light needs to shine on everyone, and better rules and standards must be adopted to guide everyone using personal data.
Manipulation
Another issue involved in this story is manipulation. The Facebook experiment involved an attempt to shape people's moods. This struck many as creepy, an attempt to alter the way people feel.
But Tal Yarkoni, in a thoughtful post defending Facebook, argues that "it's not clear what the notion that Facebook users' experience is being 'manipulated' really even means, because the Facebook news feed is, and has always been, a completely contrived environment." Yarkoni points out that the "items you get to see are determined by a complex and ever-changing algorithm." Yarkoni contends that many companies are "constantly conducting large controlled experiments on user behavior," and these experiments are often conducted "with the explicit goal of helping to increase revenue."
Yarkoni goes on to argue that "there's nothing intrinsically evil about the idea that large corporations might be trying to manipulate your experience and behavior. Everybody you interact with-including every one of your friends, family, and colleagues-is constantly trying to manipulate your behavior in various ways."
All the things that Yarkoni says above are true, yet there are issues here of significant concern. In a provocative forthcoming paper, Digital Market Manipulation, 82 George Washington Law Review (forthcoming 2014), Ryan Calo argues that companies "will increasingly be able to trigger irrationality or vulnerability in consumers -- leading to actual and perceived harms that challenge the limits of consumer protection law, but which regulators can scarcely ignore."
As I observed in my Privacy Self-Management article,"At this point in time, companies, politicians, and others seeking to influence choices are only beginning to tap into the insights from social science literature, and they primarily still use rather anecdotal and unscientific means of persuasion. When those seeking to shape decisions hone their techniques based on these social science insights (ironically enabled by access to ever-increasing amounts of data about individuals and their behavior), people's choices may be more controlled than ever before (and also ironically, such choices can be structured to make people believe that they are in control)."
Yarkoni is right that manipulation goes on all the time, but Calo is right that manipulation will be a growing problem in the future because the ability to manipulate will improve. With the use of research into human behavior, those seeking to manipulate will be able to do so much more potently. Calo documents in a compelling manner the power of new and developing techniques of manipulation. Manipulation will no longer be what we see on Mad Men, an attempt to induce feelings and action based on Donald Draper's gut intuitions and knack for creative persuasion. Manipulation will be the result of extensive empirical studies and crunching of data. It will be more systematic, more scientific, and much more potent and potentially dangerous.
Calo's article is an important step towards addressing these difficult issues. There isn't an easy fix. But we should try to address the problem than continue to ignore it. As Calo says: "Doing nothing will continue to widen the trust gap between consumers and firms and, depending on your perspective, could do irreparable harm to consumer and the marketplace."
James Grimmelman notes that: "The study itself is not the problem; the problem is our astonishingly low standards for Facebook and other digital manipulators."
Conclusion
The Facebook experiment should thus be a wake-up call that there are some very challenging issues ahead for privacy that we must think more deeply about. Facebook is in the spotlight, but move the light over just a little, and you'll see many others.
And if you're interested in exploring these issues further, I recommend that you read Ryan Calo's article, Digital Market Manipulation.
This post first appeared on LinkedIn.
Daniel J. Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School, the founder of TeachPrivacy, a privacy/data security training company, and a Senior Policy Advisor at Hogan Lovells. He is the author of nine books including Understanding Privacy and more than 50 articles.
Will Supremes Apply Cell Phone Privacy to Metadata Collection?
In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.
Warrants Needed to Search Cell Phone Data
There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.
In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee's cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects - protecting officers and preventing destruction of evidence -- do not apply to the digital content on cell phones: "There are no comparable risks when the search is of digital data."
Moreover, "[m]odern cell phones, as a category," Roberts noted, "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Responding to the government's assertion that a search of cell phone data is "materially indistinguishable" from searches of physical items, Roberts quipped, "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon." Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.
But the Court held that while a warrant is usually required to search data on an arrestee's cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child's location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant.
Metadata Collection Implicates Similar Privacy Concerns
The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that "[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns -- perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD." The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person's private life. A URL -- such as www.webMD.com/depression -- can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.
Roberts quoted Justice Sonia Sotomayor's concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).
And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment "search," and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a "search," a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party -- the phone company.
Roberts stated in the Riley/Wurie decision: "There is no dispute here that the officers engaged in a search of Wurie's cell phone." Likewise, Leon wrote that the issue of "whether a pen register constitutes a 'search' is a far cry from the issue in the [metadata collection] case." Leon added, "When do present-day circumstances -- the evolution of the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and the telecom companies -- become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now."
If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.
Marjorie Cohn is a professor at Thomas Jefferson School of law, deputy secretary general of the International Association of Democratic Lawyers, and a former president of the National Lawyers Guild. Her next book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, will be published in September. This piece first appeared on Jurist.
Warrants Needed to Search Cell Phone Data
There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.
In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee's cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects - protecting officers and preventing destruction of evidence -- do not apply to the digital content on cell phones: "There are no comparable risks when the search is of digital data."
Moreover, "[m]odern cell phones, as a category," Roberts noted, "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Responding to the government's assertion that a search of cell phone data is "materially indistinguishable" from searches of physical items, Roberts quipped, "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon." Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.
But the Court held that while a warrant is usually required to search data on an arrestee's cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child's location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant.
Metadata Collection Implicates Similar Privacy Concerns
The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that "[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns -- perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD." The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person's private life. A URL -- such as www.webMD.com/depression -- can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.
Roberts quoted Justice Sonia Sotomayor's concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).
And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment "search," and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a "search," a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party -- the phone company.
Roberts stated in the Riley/Wurie decision: "There is no dispute here that the officers engaged in a search of Wurie's cell phone." Likewise, Leon wrote that the issue of "whether a pen register constitutes a 'search' is a far cry from the issue in the [metadata collection] case." Leon added, "When do present-day circumstances -- the evolution of the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and the telecom companies -- become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now."
If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.
Marjorie Cohn is a professor at Thomas Jefferson School of law, deputy secretary general of the International Association of Democratic Lawyers, and a former president of the National Lawyers Guild. Her next book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, will be published in September. This piece first appeared on Jurist.
Winning The Wireless World Cup
Last week the highest court in the land recognized the centrality of mobile when Chief Justice Roberts wrote in an opinion, "modern cell phones...are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." You don't have to be from Mars to understand we are in the midst of a dynamic mobile revolution-nearly 500,000 U.S. fans streamed coverage of the USA-Portugal World Cup game on their mobile devices through the ESPN app alone. Five days later, the WatchESPN streaming platform set a record with 1.7 million peak concurrent viewers during the USA-Germany game.
With mobile data consumption heating up alongside the world's biggest sporting event, the U.S. sits atop the global leaderboard when it comes to wireless connectivity and entrepreneurial ingenuity. American consumers are benefitting from record infrastructure investment--$33.1 billion in 2013 alone--as well as 23 U.S. providers offering 4G LTE service and a variety of plans, devices and providers. Meanwhile, mobile visionaries are responding in-kind by developing cutting-edge wireless apps, services, and products that are redefining our mobile future.
In an effort to spotlight the power and promise of startup pioneers, tech communities, and coffee house coders, Mobile Future has launched the second annual The Mobileys competition. The national innovation competition celebrates and supports early-stage applications and other mobile products that leverage wireless connectivity in new ways to have a positive social impact. The application period is open and a blue-ribbon judging panel is in place that includes distinguished individuals from the worlds of tech, media, mobile, venture capital, and angel funding.
Last year's winner, Page Out, an app co-founded by a volunteer firefighter and a coder in Wichita, Kansas, that helps organize and mobilize first responders in an emergency, took the top prize of $10,000. Since receiving that honor, Page Out continues to grow and is now looking at international opportunities to expand the business. Other winners celebrated the role of mobile in education, the safe incorporation of connectivity into vehicles and the ability of mobile consumers to play a more active role in their health via mobile.
There is no doubt this year's applicants will represent the vision, creativity and tenacity that defines mobile futurists.
Soccer great Pele once said: "Success is no accident. It is hard work, perseverance, learning, studying, sacrifice and most of all, love of what you are doing or learning to do." The American innovation spirit can be summed up in much the same way. I can't wait to see what the next wave of mobile-fueled progress brings to us all.
Mobile Future Chair Jonathan Spalter, a technology executive and former senior federal government national security official, leads a coalition of technology companies/stakeholders dedicated to increasing investment and innovation in the burgeoning U.S. wireless sector.
Sunday, June 29, 2014
So You Are Shocked Facebook Did #psyops on People?
Well then. Let's start with a working definition of psyops.
Here is some background on the Facebook mass psychological testing as being reported recently. The study about the test itself, an interesting take on it by another scientist.
You should not be either shocked, or surprised. Companies in the social media space run an implicit yet often almost silent social compact with you. The social networking or social media company develops, tests and produces a product you want to use.
In order to use it, you have to click through terms of services or terms and conditions. These are lengthy legal documents created by very smart lawyers to basically protect the company from almost anything.
Most people literally never bother to read these "click thrus," and instead just literally do that.
Click thru.
By doing so, one should expect to be spied on by companies and governments alike. One should also expect to be used in a multitude of "experiments," "a/b testing," and "algorithmic adjustments." Expect this daily.
The social compact between you and the big social networking companies is implicit, if mostly silent. We get to use things like Facebook, Twitter, Instagram, Snapchat, Secret, Whisper, Google, Bing, etc. without paying in hard dollars (usually.) What we pay for it with is the invisible digital currency. That of your life on display for anyone with an algorithm, and a way to analyze that data can easily see. Either use these services and accept that in part or do not use the services. But this is the hard choice we all face, if you ever stop to think about it.
Here is some background on the Facebook mass psychological testing as being reported recently. The study about the test itself, an interesting take on it by another scientist.
You should not be either shocked, or surprised. Companies in the social media space run an implicit yet often almost silent social compact with you. The social networking or social media company develops, tests and produces a product you want to use.
In order to use it, you have to click through terms of services or terms and conditions. These are lengthy legal documents created by very smart lawyers to basically protect the company from almost anything.
Most people literally never bother to read these "click thrus," and instead just literally do that.
Click thru.
By doing so, one should expect to be spied on by companies and governments alike. One should also expect to be used in a multitude of "experiments," "a/b testing," and "algorithmic adjustments." Expect this daily.
People forget the internet is not theirs. It is actually "domain" of some powerful companies that access our data, b.c we give it up freely.
— Alan W. Silberberg (@IdeaGov) June 29, 2014. @IdeaGov we give it up, yes; but not so sure it is all that "freely" (& even less likely to be "knowingly"). Choice = merely an illusion.
— Adrienne Mead (@AdrienneMeadEsq) June 29, 2014The social compact between you and the big social networking companies is implicit, if mostly silent. We get to use things like Facebook, Twitter, Instagram, Snapchat, Secret, Whisper, Google, Bing, etc. without paying in hard dollars (usually.) What we pay for it with is the invisible digital currency. That of your life on display for anyone with an algorithm, and a way to analyze that data can easily see. Either use these services and accept that in part or do not use the services. But this is the hard choice we all face, if you ever stop to think about it.
Improving Healthcare and Reducing Cost Through Clinical Data Analytics
Jim needs to have his knee replaced. He is a 52-year-old former long-distance runner who has recently picked up on CrossFit and often wears a Fitbit. To schedule the surgery, he goes online and coordinates his family's calendar with the calendars of his surgeon and the pre- and post-operation nursing teams. He is asked a few personal questions: In the past year, did he ever have trouble covering co-payments? Does he have friends or family who can transport him to rehabilitation therapy? Does he have to climb stairs to reach his bedroom?
After a short wait he receives his Quality and Risk Report Card. The report card says he is an excellent candidate for total knee arthroplasty (TKA). However, his recent trip to the urologist for kidney stones and urinary tract infection (UTI) suggests prophylactic antibiotic therapy prior to the surgery to reduce the risk of surgical site infection. And, because of his lack of adherence to prior clinical treatment plans, a post-discharge care coordination team will be engaged before he leaves the hospital.
If all of this sounds worlds apart from the kind of surgery your father might have experienced, it is. I spoke with Randy Salisbury, chief marketing officer of Streamline Health Solutions, about how healthcare is rapidly moving from relatively subjective decision-making based on isolated incidents to more evidence-based medicine; becoming connected, predictive and personalized. The days of the trip to the doctor resulting in referrals followed by the same tests and questions repeated over and over are nearing an end. Patients are taking a more active role in their own care. With relevant historical information about the patient and the experiences of patients like them, care teams can avoid undesired outcomes such as surgical site infections, ongoing pain, stiffness and poor physical function. This can save thousands of dollars in unreimbursed follow-up care costs for hospitals and health systems and can help keep patient satisfaction high.
Randy Salisbury, CMO of Streamline Health Solutions
How is all this possible?
Although hospitals and health systems have long monitored financial and operational data, the difference comes with tracking clinical data. This includes information such as a patient's diagnosis, treatments, prescriptions, lab tests and hospitalizations.
Clinical data is extracted from a variety of sources, including electronic health records, information exchanges, disease registries, and even personal health devices and direct patient surveys. Examining clinical data completes a 360-degree view, enabling providers to analyze their patient populations, understand which individuals need the most help and proactively reach out to give them the care they need. When intelligently applied, clinical analytics help not only support a hospital's bottom line, but also improve patient outcomes and reduce avoidable readmissions.
What's behind the drive toward analytics?
For one, it's you, me and everyone else who waits to get help for a medical condition until they are sweating and complaining of chest pain and shortness of breath. It is no secret that "reactive" healthcare is more costly than preventive care designed to keep patients out of high-cost settings such as the emergency room.
Encouraging "wellness," in fact, lies at the heart of healthcare reform initiatives that move away from fee-for-service reimbursement and toward value-based, accountable care models that tie together cost and quality of care. For hospitals, this shift means that future success depends on the ability to use data and analytics to improve both financial and clinical performance.
How it works
In the past, evidence-based treatment has meant following well-studied care protocols. With increased access to clinical data and advances in computing power, however, predictive analytics can provide a new kind of evidence to drive action. Aggregating and analyzing information about a broad population of patients over extended periods of time can help care managers understand -- and therefore facilitate -- the root causes of good outcomes for individual patients and for patient populations.
Predictive modeling helps care managers identify patterns in a population's health in order to prospectively determine individual risk scores. These scores can then be used to triage the work of a care team, allowing them to focus first on patients at highest risk. In the earlier example of Jim, the TKA patient, predictive analytics helped identify him as a high risk for surgical site infection -- and therefore in need of prophylactic antibiotics -- or it might identify him as being inexperienced with physical therapy, which is a critical component of post surgery success.
Predictive modeling, whether based on claims data, medical records or patient-supplied risk assessments, can segment individuals prior to service and address a myriad of concerns before they turn into problems. This can be done through:
Clinical analytics can quantify everything from patient outcomes to readmissions and emergency department visits, to wait times and utilization of high-cost services. This new level of insight and transparency is good for both clinical outcomes and for business. In addition to setting internal benchmarks to measure cost and quality performance, for instance, clinical analytics also can help an organization compare how well it stacks up against its competitors and use that data to negotiate better payer contracts. It gives hospitals the ability to quickly make strategic decisions to improve clinical quality, reduce costs, optimize resources and enhance their competitive positions.
The benefits to patients are equally strong. By providing a holistic understanding of patients, analytics ushers in a new era of personalized healthcare. Clinical analytics have the power to arm individuals with timely, relevant information to help them make good health choices. This 360-degree view helps doctors predict risk for disease and response to treatment, supporting better diagnoses, safer drug prescribing and more effective treatments. Over the years, both as a patient and in his role as an executive for a leading healthcare analytics solution provider, Randy has witnessed this evolution first hand.
Forward-looking hospitals have already begun to embrace clinical analytics -- and that means their patients can enjoy a life well-examined. With that will come lower costs, reduced readmissions, improved outcomes, and a better overall patient experience.
This post was co-authored with Randy Salisbury, chief marketing officer of Streamline Health Solutions, Inc.
After a short wait he receives his Quality and Risk Report Card. The report card says he is an excellent candidate for total knee arthroplasty (TKA). However, his recent trip to the urologist for kidney stones and urinary tract infection (UTI) suggests prophylactic antibiotic therapy prior to the surgery to reduce the risk of surgical site infection. And, because of his lack of adherence to prior clinical treatment plans, a post-discharge care coordination team will be engaged before he leaves the hospital.
If all of this sounds worlds apart from the kind of surgery your father might have experienced, it is. I spoke with Randy Salisbury, chief marketing officer of Streamline Health Solutions, about how healthcare is rapidly moving from relatively subjective decision-making based on isolated incidents to more evidence-based medicine; becoming connected, predictive and personalized. The days of the trip to the doctor resulting in referrals followed by the same tests and questions repeated over and over are nearing an end. Patients are taking a more active role in their own care. With relevant historical information about the patient and the experiences of patients like them, care teams can avoid undesired outcomes such as surgical site infections, ongoing pain, stiffness and poor physical function. This can save thousands of dollars in unreimbursed follow-up care costs for hospitals and health systems and can help keep patient satisfaction high.
Randy Salisbury, CMO of Streamline Health Solutions
How is all this possible?
Although hospitals and health systems have long monitored financial and operational data, the difference comes with tracking clinical data. This includes information such as a patient's diagnosis, treatments, prescriptions, lab tests and hospitalizations.
Clinical data is extracted from a variety of sources, including electronic health records, information exchanges, disease registries, and even personal health devices and direct patient surveys. Examining clinical data completes a 360-degree view, enabling providers to analyze their patient populations, understand which individuals need the most help and proactively reach out to give them the care they need. When intelligently applied, clinical analytics help not only support a hospital's bottom line, but also improve patient outcomes and reduce avoidable readmissions.
What's behind the drive toward analytics?
For one, it's you, me and everyone else who waits to get help for a medical condition until they are sweating and complaining of chest pain and shortness of breath. It is no secret that "reactive" healthcare is more costly than preventive care designed to keep patients out of high-cost settings such as the emergency room.
Encouraging "wellness," in fact, lies at the heart of healthcare reform initiatives that move away from fee-for-service reimbursement and toward value-based, accountable care models that tie together cost and quality of care. For hospitals, this shift means that future success depends on the ability to use data and analytics to improve both financial and clinical performance.
How it works
In the past, evidence-based treatment has meant following well-studied care protocols. With increased access to clinical data and advances in computing power, however, predictive analytics can provide a new kind of evidence to drive action. Aggregating and analyzing information about a broad population of patients over extended periods of time can help care managers understand -- and therefore facilitate -- the root causes of good outcomes for individual patients and for patient populations.
Predictive modeling helps care managers identify patterns in a population's health in order to prospectively determine individual risk scores. These scores can then be used to triage the work of a care team, allowing them to focus first on patients at highest risk. In the earlier example of Jim, the TKA patient, predictive analytics helped identify him as a high risk for surgical site infection -- and therefore in need of prophylactic antibiotics -- or it might identify him as being inexperienced with physical therapy, which is a critical component of post surgery success.
Predictive modeling, whether based on claims data, medical records or patient-supplied risk assessments, can segment individuals prior to service and address a myriad of concerns before they turn into problems. This can be done through:
- preventive care and wellness activities
- chronic disease management programs that teach patients how to care for themselves, such as when to take their medications
- better care coordination, for example, making sure medical records are sent to a skilled nursing facility prior to a patient's transfer from the hospital
Clinical analytics can quantify everything from patient outcomes to readmissions and emergency department visits, to wait times and utilization of high-cost services. This new level of insight and transparency is good for both clinical outcomes and for business. In addition to setting internal benchmarks to measure cost and quality performance, for instance, clinical analytics also can help an organization compare how well it stacks up against its competitors and use that data to negotiate better payer contracts. It gives hospitals the ability to quickly make strategic decisions to improve clinical quality, reduce costs, optimize resources and enhance their competitive positions.
The benefits to patients are equally strong. By providing a holistic understanding of patients, analytics ushers in a new era of personalized healthcare. Clinical analytics have the power to arm individuals with timely, relevant information to help them make good health choices. This 360-degree view helps doctors predict risk for disease and response to treatment, supporting better diagnoses, safer drug prescribing and more effective treatments. Over the years, both as a patient and in his role as an executive for a leading healthcare analytics solution provider, Randy has witnessed this evolution first hand.
Forward-looking hospitals have already begun to embrace clinical analytics -- and that means their patients can enjoy a life well-examined. With that will come lower costs, reduced readmissions, improved outcomes, and a better overall patient experience.
This post was co-authored with Randy Salisbury, chief marketing officer of Streamline Health Solutions, Inc.
Friday, June 27, 2014
Learners at the Center of a Networked World
Technology is an essential element of our everyday lives. It empowers individuals with more information, more options and more customized experiences, at home and everywhere else.
Technology has transformed every aspect of our lives, but its current capacity and future potential to transform education and the very way children learn may yield its greatest results yet.
It has the power to accelerate learning, expand parental choice, provide better tools for teachers and make education more exciting and engaging -- both inside and outside the classroom. When education is reorganized around the interests and needs of students, and schools embrace the innovative tools available today, students can achieve extraordinary success.
Recognizing the need to rethink education in today's digital world, the Aspen Task Force on Learning and the Internet released "Learner at the Center of a Networked World." This landmark, cross-sector, cross-partisan report provides clear recommendations to state leaders on how they can advance learning and innovation while keeping the needs of children at the center of the debate and the solutions.
The Task Force is comprised of 20 innovative and respected experts in the fields of technology, public policy, education, business, privacy and safety. As a result of a year of study, outreach to stakeholders and public input, Task Force members are calling for a new paradigm of learning -- an innovative education system that places the student at the center of education.
This enables all students to learn in their own style, to learn at their own pace, and to collaborate with others while doing so. To realize this vision, states should consider policies and practices that embrace learning both on and offline; foster learning networks, equity of access, interoperability and digital literacy; and protect the safety and privacy of students.
Here are the highlights of our recommendations:
• Innovative education must be built on high academic standards and strong, transparent accountability to prepare students to thrive in a rapidly evolving, networked world. Students should have the power to decide in which learning opportunities they participate. We recommend states and districts develop competency-based systems for recognizing the acquisition of these skills. Students must have access to interoperable learning networks that allow them to earn credit for what they have learned regardless of where they learned it -- whether from a museum, a library, an after-school program, a massive open online course (MOOC), or in the classroom. In these competency-based models of learning, what you know is more important than where you go. These credits should be recognized by schools and institutions of higher education as well.
• Learners must possess the digital literacy necessary to effectively utilize today's media platforms. We must empower students and educators with the knowledge and skills to thrive online. We recommend reforming the Federal Communications Commission's E-Rate program to focus on broadband and internal Wi-Fi connections. Doing so will support the online, blended and flipped learning models that harness faster broadband connections in today's classrooms as well as the continued evolution of digital learning and other yet-to-be-developed education models of the 21st century. Meanwhile, the public and private sectors should explore innovative partnerships to bring broadband access to all students.
• Students must be able to learn in safe and trusted environments. Outdated laws and regulations should be modernized to keep pace with the evolving education landscape. But, trust must go beyond mere compliance with privacy laws. It must involve transparency and openness, data stewardship, accountability, oversight, and enforcement. We recommend policy makers and education leaders establish secure mechanisms for reporting students' academic progress.
• Schools and content providers must build trust with parents, students and teachers about student data. We recommend developing new technological solutions to protect data, including providing a privacy dashboard that allows parents to see their children's data and gives them the ability to turn on and off certain sharing features, leaving these personal choices to the students' families.
The education community has not yet fully taken advantage of the power of technology, and we are hopeful this report jumpstarts the national conversation about accelerating learning in the 21st century.
We hope to see education and business leaders, communities and parents commit to moving these recommendations forward in the coming year.
Most importantly, we hope education becomes increasingly centered on students and not adults in the system. Providing access to a quality education for every student is the key to restoring opportunity and the right to rise in America.
Jeb Bush served as the governor of Florida from 1999 to 2007 and is chairman of the Foundation for Excellence in Education. Rosario Dawson is an actress and co-founder of Voto Latino, a nonpartisan civic-engagement organization.
Technology has transformed every aspect of our lives, but its current capacity and future potential to transform education and the very way children learn may yield its greatest results yet.
It has the power to accelerate learning, expand parental choice, provide better tools for teachers and make education more exciting and engaging -- both inside and outside the classroom. When education is reorganized around the interests and needs of students, and schools embrace the innovative tools available today, students can achieve extraordinary success.
Recognizing the need to rethink education in today's digital world, the Aspen Task Force on Learning and the Internet released "Learner at the Center of a Networked World." This landmark, cross-sector, cross-partisan report provides clear recommendations to state leaders on how they can advance learning and innovation while keeping the needs of children at the center of the debate and the solutions.
The Task Force is comprised of 20 innovative and respected experts in the fields of technology, public policy, education, business, privacy and safety. As a result of a year of study, outreach to stakeholders and public input, Task Force members are calling for a new paradigm of learning -- an innovative education system that places the student at the center of education.
This enables all students to learn in their own style, to learn at their own pace, and to collaborate with others while doing so. To realize this vision, states should consider policies and practices that embrace learning both on and offline; foster learning networks, equity of access, interoperability and digital literacy; and protect the safety and privacy of students.
Here are the highlights of our recommendations:
• Innovative education must be built on high academic standards and strong, transparent accountability to prepare students to thrive in a rapidly evolving, networked world. Students should have the power to decide in which learning opportunities they participate. We recommend states and districts develop competency-based systems for recognizing the acquisition of these skills. Students must have access to interoperable learning networks that allow them to earn credit for what they have learned regardless of where they learned it -- whether from a museum, a library, an after-school program, a massive open online course (MOOC), or in the classroom. In these competency-based models of learning, what you know is more important than where you go. These credits should be recognized by schools and institutions of higher education as well.
• Learners must possess the digital literacy necessary to effectively utilize today's media platforms. We must empower students and educators with the knowledge and skills to thrive online. We recommend reforming the Federal Communications Commission's E-Rate program to focus on broadband and internal Wi-Fi connections. Doing so will support the online, blended and flipped learning models that harness faster broadband connections in today's classrooms as well as the continued evolution of digital learning and other yet-to-be-developed education models of the 21st century. Meanwhile, the public and private sectors should explore innovative partnerships to bring broadband access to all students.
• Students must be able to learn in safe and trusted environments. Outdated laws and regulations should be modernized to keep pace with the evolving education landscape. But, trust must go beyond mere compliance with privacy laws. It must involve transparency and openness, data stewardship, accountability, oversight, and enforcement. We recommend policy makers and education leaders establish secure mechanisms for reporting students' academic progress.
• Schools and content providers must build trust with parents, students and teachers about student data. We recommend developing new technological solutions to protect data, including providing a privacy dashboard that allows parents to see their children's data and gives them the ability to turn on and off certain sharing features, leaving these personal choices to the students' families.
The education community has not yet fully taken advantage of the power of technology, and we are hopeful this report jumpstarts the national conversation about accelerating learning in the 21st century.
We hope to see education and business leaders, communities and parents commit to moving these recommendations forward in the coming year.
Most importantly, we hope education becomes increasingly centered on students and not adults in the system. Providing access to a quality education for every student is the key to restoring opportunity and the right to rise in America.
Jeb Bush served as the governor of Florida from 1999 to 2007 and is chairman of the Foundation for Excellence in Education. Rosario Dawson is an actress and co-founder of Voto Latino, a nonpartisan civic-engagement organization.
Is YouTube's Fan Funding a Threat to Crowdfunding Services?
By Noah J. Nelson (@noahjnelson)
YouTube CEOÂ Susan Wojcicki told the crowd at the annual VidCon gathering of online video fans and creators something they wanted to hear yesterday: that the 800-pound gorilla of video was getting into the crowdfunding business.
Wojcicki announced Fan Funding, a pilot program now being used by a few YouTube creators that will allow viewers to tip the makers directly in any amount up to $500. This puts the video service in a similar, if not the same, business as crowdfunding sites like Kickstarter, IndieGoGo and Patreon. Actually YouTube name checks all three of those services in the short graph it put up on the Creator blog the site uses to communicate with its cadre of creators.
So here's the question: is this an existential threat to any of the crowdfunding sites? Let's go through them, as a group and case by case, after the jump.
For starters let's look at what YouTube is offering.
Fans will be able to make one-off payments to a creator via their channel. According to reporting by Tubefilter, the channel support page will be customizable by creators. At the moment, however, the pages I've looked at are uniform: pop-up overlays that allow for pledges in the amount of $1, $5 and "Other."
Tubefilter also reports that "(for) each transaction, YouTube will take a 5% cut, plus 21 cents." This will put the YouTube cut of direct support at the low end of the crowdfunding spectrum.
Kickstarter
Let's kick off the compare and contrast with the king of crowdfunding, Kickstarter. From a pure numbers stand-point the YouTube offer is better: Kickstarter takes 5% for itself and Amazon payments slices off another 3-5% in processing fees.
Kickstarter doesn't need to worry too much, however, as the framing between Fan Funding and what they offer could barely be more different. The all-or-nothing nature of Kickstarter makes it clear that the service is reserved for getting something specific--if not necessarily big--done. The structure of campaigns can be used to build excitement around a project in a way that a tip jar just doesn't do. It would be hard to imagine Seth MacFarlane offering to match funds for Reading Rainbow to the tune of a million dollars outside a campaign structure.
Moreover, Kickstarter isn't all that closely tied to YouTube as a platform. There are other verticals on Kickstarter that make up a large bulk of their traffic.
IndieGoGo
Much of what is true for Kickstarter goes for IndieGoGo, whose financial terms are a little better for all our nothing campaigns: 4% plus similar car processing fees. The sticker point comes with IndieGoGo's flexible funding rules. Under those terms creators get to keep whatever they get, but are penalized an additional 5%. Video creators who are not confident they will raise all that they need may find themselves better served by directing attention to a lower-risk tip jar.
Still, IndieGoGo is playing a larger game than YouTube videos.
Patreon
Here is the first service that might be adversely affected by YouTube's entry into Crowdfunding. The processing fees hover at around 4%, and Patreon takes an additional 5% as their cut. One economic advantage that can play into Patreon's hands will be scale: the service processes just one payment a month from patrons, and the credit card fees are split amongst all the creators who are pledged to.
Patreon also casts a wider net than YouTube, but it is undeniable that creators on the video service are a big part of their community of users. This means that the influx of Series-A capital which was announced earlier this week is well timed. Patreon is going to have to compete by providing a better service for their users than YouTube is able to supply. Part of that means customer service, something that YouTube has never had a good reputation for.
The other advantage over what's been done so far with YouTube Fan Funding (and we're talking 24 hours here, so let's not read too much into what has been done) that Patreon has is the campaign language they've been able adopt. Patreon doesn't frame the service they provide as just a tip jar, but as a tool for communities of fans to help creators work towards specific goals.
The Others
Subbable and Seed & Spark come to mind as other platforms that may be caught in the "splash zone" of YouTube's maneuver.
Seed & Spark has little skin in this game at the moment, as ongoing web series have not been a major part of their focus. On top of  that the super-transparent structure of Seed & Spark is light-years beyond the "give me money" button Google has built for YouTub creators.
Subbable, on the other hand, is one of the rare projects that the VlogBrothers Hank & John Green create that hasn't turned to gold. The very event where YouTube made the Fan Funding announcement, VidCon, is their creation. Perhaps Subbable hasn't been that much of a focus for the duo, who have found wild success in other endeavors. If it were to fold, would the brother's Green even miss it?
A Quick & Dirty Final Analysis
What I love most about crowdfunding as a beat is that despite the existence of self-proclaimed experts and some insane success stories we're still at the beginning of this model. Unless you count NPR and PBS, in which case we've had this model forever and now it's just "regular folks" who are taking advantage of the idea.
Fan Funding only adds to the options that digital creatives have for financing their work. I can see it benefiting established "brands" like The Young Turks and Soul Pancake a lot more than it does up and comers. A tip jar being less of a falling cry than a targeted campaign is. For creators who want to grow their audience along with their financial resources a considered strategy that deploys a higher-cost, but potentially higher impact service like Kickstarter or Patreon is going to be the way to go. One for jumpstarting a project or reaching behind current capacity, and the other for keeping a regular tide of cash coming in.
The current iteration of Fan Funding is low hanging fruit, but it's also a dessert course: the service just isn't structured to provide steady income or a big payday. Tuber's looking to sing for their actual supper are going to want to keep their options open.
YouTube CEOÂ Susan Wojcicki told the crowd at the annual VidCon gathering of online video fans and creators something they wanted to hear yesterday: that the 800-pound gorilla of video was getting into the crowdfunding business.
Wojcicki announced Fan Funding, a pilot program now being used by a few YouTube creators that will allow viewers to tip the makers directly in any amount up to $500. This puts the video service in a similar, if not the same, business as crowdfunding sites like Kickstarter, IndieGoGo and Patreon. Actually YouTube name checks all three of those services in the short graph it put up on the Creator blog the site uses to communicate with its cadre of creators.
So here's the question: is this an existential threat to any of the crowdfunding sites? Let's go through them, as a group and case by case, after the jump.
For starters let's look at what YouTube is offering.
Fans will be able to make one-off payments to a creator via their channel. According to reporting by Tubefilter, the channel support page will be customizable by creators. At the moment, however, the pages I've looked at are uniform: pop-up overlays that allow for pledges in the amount of $1, $5 and "Other."
Tubefilter also reports that "(for) each transaction, YouTube will take a 5% cut, plus 21 cents." This will put the YouTube cut of direct support at the low end of the crowdfunding spectrum.
Kickstarter
Let's kick off the compare and contrast with the king of crowdfunding, Kickstarter. From a pure numbers stand-point the YouTube offer is better: Kickstarter takes 5% for itself and Amazon payments slices off another 3-5% in processing fees.
Kickstarter doesn't need to worry too much, however, as the framing between Fan Funding and what they offer could barely be more different. The all-or-nothing nature of Kickstarter makes it clear that the service is reserved for getting something specific--if not necessarily big--done. The structure of campaigns can be used to build excitement around a project in a way that a tip jar just doesn't do. It would be hard to imagine Seth MacFarlane offering to match funds for Reading Rainbow to the tune of a million dollars outside a campaign structure.
Moreover, Kickstarter isn't all that closely tied to YouTube as a platform. There are other verticals on Kickstarter that make up a large bulk of their traffic.
IndieGoGo
Much of what is true for Kickstarter goes for IndieGoGo, whose financial terms are a little better for all our nothing campaigns: 4% plus similar car processing fees. The sticker point comes with IndieGoGo's flexible funding rules. Under those terms creators get to keep whatever they get, but are penalized an additional 5%. Video creators who are not confident they will raise all that they need may find themselves better served by directing attention to a lower-risk tip jar.
Still, IndieGoGo is playing a larger game than YouTube videos.
Patreon
Here is the first service that might be adversely affected by YouTube's entry into Crowdfunding. The processing fees hover at around 4%, and Patreon takes an additional 5% as their cut. One economic advantage that can play into Patreon's hands will be scale: the service processes just one payment a month from patrons, and the credit card fees are split amongst all the creators who are pledged to.
Patreon also casts a wider net than YouTube, but it is undeniable that creators on the video service are a big part of their community of users. This means that the influx of Series-A capital which was announced earlier this week is well timed. Patreon is going to have to compete by providing a better service for their users than YouTube is able to supply. Part of that means customer service, something that YouTube has never had a good reputation for.
The other advantage over what's been done so far with YouTube Fan Funding (and we're talking 24 hours here, so let's not read too much into what has been done) that Patreon has is the campaign language they've been able adopt. Patreon doesn't frame the service they provide as just a tip jar, but as a tool for communities of fans to help creators work towards specific goals.
The Others
Subbable and Seed & Spark come to mind as other platforms that may be caught in the "splash zone" of YouTube's maneuver.
Seed & Spark has little skin in this game at the moment, as ongoing web series have not been a major part of their focus. On top of  that the super-transparent structure of Seed & Spark is light-years beyond the "give me money" button Google has built for YouTub creators.
Subbable, on the other hand, is one of the rare projects that the VlogBrothers Hank & John Green create that hasn't turned to gold. The very event where YouTube made the Fan Funding announcement, VidCon, is their creation. Perhaps Subbable hasn't been that much of a focus for the duo, who have found wild success in other endeavors. If it were to fold, would the brother's Green even miss it?
A Quick & Dirty Final Analysis
What I love most about crowdfunding as a beat is that despite the existence of self-proclaimed experts and some insane success stories we're still at the beginning of this model. Unless you count NPR and PBS, in which case we've had this model forever and now it's just "regular folks" who are taking advantage of the idea.
Fan Funding only adds to the options that digital creatives have for financing their work. I can see it benefiting established "brands" like The Young Turks and Soul Pancake a lot more than it does up and comers. A tip jar being less of a falling cry than a targeted campaign is. For creators who want to grow their audience along with their financial resources a considered strategy that deploys a higher-cost, but potentially higher impact service like Kickstarter or Patreon is going to be the way to go. One for jumpstarting a project or reaching behind current capacity, and the other for keeping a regular tide of cash coming in.
The current iteration of Fan Funding is low hanging fruit, but it's also a dessert course: the service just isn't structured to provide steady income or a big payday. Tuber's looking to sing for their actual supper are going to want to keep their options open.
Public media's TurnstyleNews.com, covers tech and digital culture from the West Coast.
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WATCH: A Shark-Deterrent Wetsuit (And It's Not What You Think)
Ocean swimmer Hamish Jolly wished there was a wetsuit that could keep sharks at bay -- so he invented one. Find out how he did it, and how you could apply the same techniques to create an innovation of your own.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
Sharks, Galapagos and a Peaceful Coexistence
Click here to watch the TEDTalk that inspired this post.
As an ocean scientist, undoubtedly, the most frequent question I am asked is about sharks. Is it safe to go into the ocean?
Based on how sharks have been portrayed in movies, television and in the news, a great number of people believe that humans are considered a snack sensation in the ocean. In reality, people are not good shark food. No juicy blubber or rich omega-3 oils, essentially just a bag-o-bones and water.
Statistically speaking, you are more at risk when driving to work or toasting a piece of bread (fatal toaster accidents are more common than shark "attacks"). Most so-called shark attacks are not acts of intentional hunting; they are cases of mistaken identity or a response to a perceived threat or competition. In the historical record, even brief non-contact encounters or sightings have been called attacks. That does not mean that the tragedy for those who are injured or fatally wounded by sharks should be minimized. And creating tools, such as Hamish Jolly's intriguing wetsuits, which might help to minimize deleterious shark incidents, is certainly a good thing.
Shark Encounters
In all my years of diving, snorkeling and swimming in the ocean, including having twice lived underwater in the Aquarius Reef Base habitat for up to two weeks and diving six to nine hours a day, I have never been seriously threatened by sharks.
I've seen sharks, been approached by sharks and have been circled by a group of large, beefy hammerheads. Moments of apprehension quickly give way to fascination and a deep appreciation for their silent and powerful grace (no, they do not growl as has been suggested in several bad B-movies).
The Amazing Galapagos
I am currently in the Galapagos Islands as science advisor to Celebrity Xpedition, a small cruise ship. Here in the Galapagos, sharks are a wonder to behold. The Galapagos Park Service naturalists speak reverently about sharks and people here have taken action to protect them. With the passengers aboard we are actively on the lookout for sharks. It is one of the day's highlights if we are lucky enough to snorkel beside a whitetip reef shark or watch as a Galapagos shark swims slowly around the ship.
In addition to whitetips, we see skittish blacktip sharks and, if one is really lucky, a big fat hammerhead. Also known to cruise the Archipelago are the less frequently seen silky, tiger, bull, whale and mako sharks.
Sea lions here have been known to make a game of pulling the tail of a whitetip shark resting in a cave. I imagine it is an undersea version of "chicken" and not a practice I recommend. Sometimes we see Galapagos sharks feeding on fish alongside sea lions, pelicans and diving blue-footed boobies. It goes squarely against the ingrained notion that sharks are relentless hunters, feeding on anything and everything at hand. Sea lions are on the menu for the larger pelagic sharks, but, in coastal waters, they tend to co-exist without bloodshed.
Nature at Its Best
The Galapagos Islands allow one to experience nature like nowhere else on earth. The wildlife as well as the landscape is well protected and respected. Except for the inhabited towns, the islands are kept principally pristine (other than the vagaries of human introduced invasive species or the impacts of climate change). A licensed Galapagos Park naturalist must accompany all visitors, and animals have the right-of-way.
Watching and swimming with sharks in the Galapagos, where they are not attracted by bait or legally fished, helps us to understand and appreciate their true nature and important role as top predators in the ocean ecosystem. It also allows us to comprehend how humans and sharks, as well as other animals, can coexist with respect and remarkable interaction.
El Niño
As I sit here writing, we wait to see if a strong El Niño will occur this year as many scientists have forecasted. Years of experience and several days of snorkeling suggest that the water is warmer than usual for this time of the year. Strong El Niños in the Galapagos shut down upwelling thereby curtailing ocean productivity. Sea lions, marine iguanas, the iconic blue-footed booby and even sharks can suffer from the lack of food and many may die. It is not possible at this time to determine if climate change has or will strengthen El Niños, but, for now, we have our fingers crossed that the approaching one will be weaker than predicted. And we continue to go out on in search of the ever-majestic shark.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
As an ocean scientist, undoubtedly, the most frequent question I am asked is about sharks. Is it safe to go into the ocean?
Based on how sharks have been portrayed in movies, television and in the news, a great number of people believe that humans are considered a snack sensation in the ocean. In reality, people are not good shark food. No juicy blubber or rich omega-3 oils, essentially just a bag-o-bones and water.
Statistically speaking, you are more at risk when driving to work or toasting a piece of bread (fatal toaster accidents are more common than shark "attacks"). Most so-called shark attacks are not acts of intentional hunting; they are cases of mistaken identity or a response to a perceived threat or competition. In the historical record, even brief non-contact encounters or sightings have been called attacks. That does not mean that the tragedy for those who are injured or fatally wounded by sharks should be minimized. And creating tools, such as Hamish Jolly's intriguing wetsuits, which might help to minimize deleterious shark incidents, is certainly a good thing.
Shark Encounters
In all my years of diving, snorkeling and swimming in the ocean, including having twice lived underwater in the Aquarius Reef Base habitat for up to two weeks and diving six to nine hours a day, I have never been seriously threatened by sharks.
I've seen sharks, been approached by sharks and have been circled by a group of large, beefy hammerheads. Moments of apprehension quickly give way to fascination and a deep appreciation for their silent and powerful grace (no, they do not growl as has been suggested in several bad B-movies).
The Amazing Galapagos
I am currently in the Galapagos Islands as science advisor to Celebrity Xpedition, a small cruise ship. Here in the Galapagos, sharks are a wonder to behold. The Galapagos Park Service naturalists speak reverently about sharks and people here have taken action to protect them. With the passengers aboard we are actively on the lookout for sharks. It is one of the day's highlights if we are lucky enough to snorkel beside a whitetip reef shark or watch as a Galapagos shark swims slowly around the ship.
In addition to whitetips, we see skittish blacktip sharks and, if one is really lucky, a big fat hammerhead. Also known to cruise the Archipelago are the less frequently seen silky, tiger, bull, whale and mako sharks.
Sea lions here have been known to make a game of pulling the tail of a whitetip shark resting in a cave. I imagine it is an undersea version of "chicken" and not a practice I recommend. Sometimes we see Galapagos sharks feeding on fish alongside sea lions, pelicans and diving blue-footed boobies. It goes squarely against the ingrained notion that sharks are relentless hunters, feeding on anything and everything at hand. Sea lions are on the menu for the larger pelagic sharks, but, in coastal waters, they tend to co-exist without bloodshed.
Nature at Its Best
The Galapagos Islands allow one to experience nature like nowhere else on earth. The wildlife as well as the landscape is well protected and respected. Except for the inhabited towns, the islands are kept principally pristine (other than the vagaries of human introduced invasive species or the impacts of climate change). A licensed Galapagos Park naturalist must accompany all visitors, and animals have the right-of-way.
Watching and swimming with sharks in the Galapagos, where they are not attracted by bait or legally fished, helps us to understand and appreciate their true nature and important role as top predators in the ocean ecosystem. It also allows us to comprehend how humans and sharks, as well as other animals, can coexist with respect and remarkable interaction.
El Niño
As I sit here writing, we wait to see if a strong El Niño will occur this year as many scientists have forecasted. Years of experience and several days of snorkeling suggest that the water is warmer than usual for this time of the year. Strong El Niños in the Galapagos shut down upwelling thereby curtailing ocean productivity. Sea lions, marine iguanas, the iconic blue-footed booby and even sharks can suffer from the lack of food and many may die. It is not possible at this time to determine if climate change has or will strengthen El Niños, but, for now, we have our fingers crossed that the approaching one will be weaker than predicted. And we continue to go out on in search of the ever-majestic shark.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
There's Nothing Left To Be Afraid Of
Click here to watch the TEDTalk that inspired this post.
I must surely have a unique perspective on the subject of being eaten alive because, well, I have been. I lost my right arm from my elbow down to a shark and most of my right leg. But, strange as it might sound, I still don't bear the creatures any ill-will. In fact, I'm the first person to support the cause of shark preservation.
I've always been terrified of sharks. So even I found it a bit odd that I chose a career as an Australian Navy Clearance Diver. Then again, I've never been accused of doing anything too smart. But, doing my job, even my buddies knew that I was scared and used to pin pictures of giant Great Whites on my locker at work. Yet it was never enough to stop me. I had a job to do, a mission to complete, a task at hand and that always came first.
Besides, I told myself, I had more chance of dying on my motorbike on the way to work than when I was diving. That's what I reminded myself when I was underwater and started seeing shadows moving in the murk anyway. And the fateful day, four years ago, that a bull shark finally got me, I didn't see it coming... I was taking part in an anti-terrorism exercise, and I'd been swimming on my back.
So as someone growing up scared of sharks, I completely understand other people's fear; that all-encompassing terror of being torn to shreds in front of your own eyes. I get it, and I've coached many people to battle that and to be able to enter the ocean for the first time.
Because, of course, from the beginning of time, humans have feared what they don't understand and then tried to kill their enemies. We're seeing that happening right now with the Western Australian government deploying drum lines and killing sharks indiscriminately. They reckon that is much easier than to live happily alongside them. Meanwhile, those who preach saving animals and the planet are routinely portrayed as tree-hugging hippies with dreadlocks and smelly armpits.
But the world is changing and that's just as well because the planet and its inhabitants are in dire trouble. All of us.
Is it really logical to fear being eaten by a shark so much when far more people get killed crossing the street while looking at their smart phones? We have exponential world population growth creating massive shortages in food stocks, civil war in a post U.S.-stabilized Iraq disrupting fuel supplies, religious zealots murdering thousands, storm fronts wiping out whole towns, sink holes sucking up streets, mosquito-borne diseases killing over 700,000 people a year and more people killing themselves each year than are ever nibbled by sharks. We clearly need much more protection from ourselves.
On the plus side, science and technology are allowing us to re-align the balance between mother earth and ourselves. And thank God for those smart people, I say. Without them, I'd be walking around on a peg leg with a hook hand instead of this electronic leg with six micro processors, a gyroscope, an accelerometer and a hand that functions by measuring the electrical impulses created by the flexion of my forearm muscles. For a double amputee, I have an incredible quality of life.
At the same time, scientists have created a banana with six times the amount of vitamin A, which could potentially save so many lives blighted by malnutrition around the world. An Australian solar plant has generated "supercritical" steam that rivals fossil fuels. Tesla has created the first commercially available electric sports car, and it looks awesome. And another bunch of scientists, we now know, have created a shark-deterrent wetsuit to protect ourselves and, in turn, protect our sharks.
What a great idea! As well as looking after ourselves, we really need to look after our wildlife, too. It's the breadth and diversity of the animals that exist on our planet that help make our own lives so rich and meaningful. David Attenborough and the late Steve Irwin have for decades been attempting to share this wondrous world with all of us in the hope that we might find the same love for it that they have and to inspire others into acting as guardians against those that would do them harm.
There are not many of us who are going to go through an encounter with our worst nightmare that leave us with vital bits missing and with nothing left to fear. But our world is made more amazing by its danger, more exciting with its risks. People are hurt and killed every minute of every day, and yet we're not cave-dwelling troglodytes living in fear of everything around us.
Instead we embrace our world and relish in its grandeur. My message is to be inspired and amazed and frightened at its beauty and danger but, more importantly, do what you can to protect it and all that it holds before there's nothing left to love... or to be afraid of.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
I must surely have a unique perspective on the subject of being eaten alive because, well, I have been. I lost my right arm from my elbow down to a shark and most of my right leg. But, strange as it might sound, I still don't bear the creatures any ill-will. In fact, I'm the first person to support the cause of shark preservation.
I've always been terrified of sharks. So even I found it a bit odd that I chose a career as an Australian Navy Clearance Diver. Then again, I've never been accused of doing anything too smart. But, doing my job, even my buddies knew that I was scared and used to pin pictures of giant Great Whites on my locker at work. Yet it was never enough to stop me. I had a job to do, a mission to complete, a task at hand and that always came first.
Besides, I told myself, I had more chance of dying on my motorbike on the way to work than when I was diving. That's what I reminded myself when I was underwater and started seeing shadows moving in the murk anyway. And the fateful day, four years ago, that a bull shark finally got me, I didn't see it coming... I was taking part in an anti-terrorism exercise, and I'd been swimming on my back.
So as someone growing up scared of sharks, I completely understand other people's fear; that all-encompassing terror of being torn to shreds in front of your own eyes. I get it, and I've coached many people to battle that and to be able to enter the ocean for the first time.
Because, of course, from the beginning of time, humans have feared what they don't understand and then tried to kill their enemies. We're seeing that happening right now with the Western Australian government deploying drum lines and killing sharks indiscriminately. They reckon that is much easier than to live happily alongside them. Meanwhile, those who preach saving animals and the planet are routinely portrayed as tree-hugging hippies with dreadlocks and smelly armpits.
But the world is changing and that's just as well because the planet and its inhabitants are in dire trouble. All of us.
Is it really logical to fear being eaten by a shark so much when far more people get killed crossing the street while looking at their smart phones? We have exponential world population growth creating massive shortages in food stocks, civil war in a post U.S.-stabilized Iraq disrupting fuel supplies, religious zealots murdering thousands, storm fronts wiping out whole towns, sink holes sucking up streets, mosquito-borne diseases killing over 700,000 people a year and more people killing themselves each year than are ever nibbled by sharks. We clearly need much more protection from ourselves.
On the plus side, science and technology are allowing us to re-align the balance between mother earth and ourselves. And thank God for those smart people, I say. Without them, I'd be walking around on a peg leg with a hook hand instead of this electronic leg with six micro processors, a gyroscope, an accelerometer and a hand that functions by measuring the electrical impulses created by the flexion of my forearm muscles. For a double amputee, I have an incredible quality of life.
At the same time, scientists have created a banana with six times the amount of vitamin A, which could potentially save so many lives blighted by malnutrition around the world. An Australian solar plant has generated "supercritical" steam that rivals fossil fuels. Tesla has created the first commercially available electric sports car, and it looks awesome. And another bunch of scientists, we now know, have created a shark-deterrent wetsuit to protect ourselves and, in turn, protect our sharks.
What a great idea! As well as looking after ourselves, we really need to look after our wildlife, too. It's the breadth and diversity of the animals that exist on our planet that help make our own lives so rich and meaningful. David Attenborough and the late Steve Irwin have for decades been attempting to share this wondrous world with all of us in the hope that we might find the same love for it that they have and to inspire others into acting as guardians against those that would do them harm.
There are not many of us who are going to go through an encounter with our worst nightmare that leave us with vital bits missing and with nothing left to fear. But our world is made more amazing by its danger, more exciting with its risks. People are hurt and killed every minute of every day, and yet we're not cave-dwelling troglodytes living in fear of everything around us.
Instead we embrace our world and relish in its grandeur. My message is to be inspired and amazed and frightened at its beauty and danger but, more importantly, do what you can to protect it and all that it holds before there's nothing left to love... or to be afraid of.
We want to know what you think. Join the discussion by posting a comment below or tweeting #TEDWeekends. Interested in blogging for a future edition of TED Weekends? Email us at tedweekends@huffingtonpost.com.
Smartphones, Smart Ruling
Technology changes everything, including the influence of Supreme Court precedents. One of the most durable legal doctrines is stare decisis, the idea that courts should follow legal precedents in the interest of stability and predictability of law. But some precedents, especially precedents in Fourth Amendment search and seizure jurisprudence, become meaningless when technology intrudes, and then older and pristine bright-line rules have to give way.
In several recent Fourth Amendment cases that implicate new technologies, the government has argued that technology changes nothing, that the quality and quantity of the government's intrusions into privacy should not alter the rule or the result. So, for example, the government argued that its bulk telephone metadata program, operated by the National Security Agency, was a permissible investigative technique because it was a logical extension of the Supreme Court's pen register decision, which allowed the government to collect telephone numbers dialed by users. The court reasoned that since the telephone data is known by the company that processes and charges customers for the calls, the customer has no reasonable basis to expect that the data is private. But as Judge Richard Leon observed in a historic ruling, compared with the discrete and limited pen register device, the massive, indefinite, and historical collection of millions, probably billions, of present and past telephone calls, loaded into a vast database and retained by the government perhaps forever, or as long as the U.S. is fighting terrorism, is nonsensical and dangerous.
It may be that the government's position in the telephone metadata case is logically correct, however perverse. If, as the government argued, it is authorized to collect some telephone calls for a discrete period of time, as the pen register precedent holds, then the government should be allowed to collect all telephone calls forever. The government's logic is reminiscent of Benjamin Cardozo's famous warning to judges about the "tendency of a principal to expand itself to the limit of its logic."
The government's expansive logic similarly was employed when investigators installed a GPS device on the defendant's car and tracked him for a month. No warrant was obtained for the intrusion, but the government claimed that no warrant was necessary. The Supreme Court, in a landmark ruling, rejected the government's argument. As in the metadata case, the government argued that an earlier Supreme Court ruling squarely controlled a 30-year-old precedent in which the government put a beeper on a car and tracked its movements for a single short trip. Logically, if a motorist has no special privacy from being watched electronically by the government for a day, why should she have any special privacy for a week, or a month? But as Justice Sonia Sotomayor pointed out in her influential concurring opinion, technology changes dramatically the constitutional rules for privacy. The fact that the government can watch you for a finite moment in time does not give the government the right to watch you forever. The idea that we give up a certain amount of privacy when we appear in public or convey information to third parties is an ill-suited norm for the digital age, in which technology gives government the power to secretly watch people constantly, always, during both important and mundane activities, and to obtain precise records of all of these activities, and to store and mine these records indefinitely -- forever.
This week's unanimous cellphone search ruling by the Supreme Court, in an opinion by Chief Justice John Roberts, seems almost anti-climactic, or at least an easy call. According to the Supreme Court precedent, which the government relied on aggressively, the immediate search of a defendant and his possessions contemporaneous with his arrest is reasonable and requires no warrant. The fact that the property searched happens to be a cellphone should not matter, the government claimed, pointing to the well-settled doctrine of "search incident to arrest," which is based on two search rationales: The person arrested might have a weapon he could use to harm the arresting officer, or the arrested person might try to destroy evidence in his possession. Indeed, as the government argued, a cellphone might contain incriminating evidence that, upon arrest, could be destroyed, so, logically, a search of the cellphone is within the rule. In fact, in a leading case relied on by the government, there was no evidence that could be destroyed; the defendant was arrested for a traffic infraction. And the defendant could not gain access to the package that had already been seized by the police, so there was no realistic threat to the officer's safety. No matter, said the Supreme Court. The arrest itself justified the immediate search.
But technology changes everything, the court unanimously concluded, in rejecting the government's arguments. The court made the point succinctly, and powerfully. Cellphones are "a pervasive and insistent part of daily life," indeed "an important feature of human anatomy." More than 90 percent of American adults own a cellphone, the court noted. Because of its immense storage capacity, cellphones are different from cigarette packages, wallets, briefcases, and even diaries possessed by the person arrested. A cellphone "contains the sum of an individual's private life." The court showed a close familiarity with cellphone technology, describing "gigabyte storage capacity" (the smartphone capacity of 16 to 64 gigabytes, and 16 gigabytes translates into millions of pages of text, thousands of pictures, and hundreds of videos); "apps" (the average smartphone user has 33 apps, "which can form a revealing montage of the user's life," noting as well the expression "There's an app for that"); "cloud computing" (the capacity to display data stored on remote servers); and "remote wiping" and "data encryption."
The Supreme Court rejected the government's reliance on precedent and its arguments about the dire consequences of the court's decision on the ability of the government to fight crime. The court pointed out that the government wasn't being deprived of evidence, only being fored to accept the inconvenience of obtaining a warrant to search the phone. Also, if there are exigent circumstances, the government can make a warrantless search. But as in the metadata and GPS technology cases, in balancing the government's interests against the near-Orwellian intrusions into privacy, privacy wins, and even when the logic of earlier Supreme Court precedents might suggest otherwise.
In several recent Fourth Amendment cases that implicate new technologies, the government has argued that technology changes nothing, that the quality and quantity of the government's intrusions into privacy should not alter the rule or the result. So, for example, the government argued that its bulk telephone metadata program, operated by the National Security Agency, was a permissible investigative technique because it was a logical extension of the Supreme Court's pen register decision, which allowed the government to collect telephone numbers dialed by users. The court reasoned that since the telephone data is known by the company that processes and charges customers for the calls, the customer has no reasonable basis to expect that the data is private. But as Judge Richard Leon observed in a historic ruling, compared with the discrete and limited pen register device, the massive, indefinite, and historical collection of millions, probably billions, of present and past telephone calls, loaded into a vast database and retained by the government perhaps forever, or as long as the U.S. is fighting terrorism, is nonsensical and dangerous.
It may be that the government's position in the telephone metadata case is logically correct, however perverse. If, as the government argued, it is authorized to collect some telephone calls for a discrete period of time, as the pen register precedent holds, then the government should be allowed to collect all telephone calls forever. The government's logic is reminiscent of Benjamin Cardozo's famous warning to judges about the "tendency of a principal to expand itself to the limit of its logic."
The government's expansive logic similarly was employed when investigators installed a GPS device on the defendant's car and tracked him for a month. No warrant was obtained for the intrusion, but the government claimed that no warrant was necessary. The Supreme Court, in a landmark ruling, rejected the government's argument. As in the metadata case, the government argued that an earlier Supreme Court ruling squarely controlled a 30-year-old precedent in which the government put a beeper on a car and tracked its movements for a single short trip. Logically, if a motorist has no special privacy from being watched electronically by the government for a day, why should she have any special privacy for a week, or a month? But as Justice Sonia Sotomayor pointed out in her influential concurring opinion, technology changes dramatically the constitutional rules for privacy. The fact that the government can watch you for a finite moment in time does not give the government the right to watch you forever. The idea that we give up a certain amount of privacy when we appear in public or convey information to third parties is an ill-suited norm for the digital age, in which technology gives government the power to secretly watch people constantly, always, during both important and mundane activities, and to obtain precise records of all of these activities, and to store and mine these records indefinitely -- forever.
This week's unanimous cellphone search ruling by the Supreme Court, in an opinion by Chief Justice John Roberts, seems almost anti-climactic, or at least an easy call. According to the Supreme Court precedent, which the government relied on aggressively, the immediate search of a defendant and his possessions contemporaneous with his arrest is reasonable and requires no warrant. The fact that the property searched happens to be a cellphone should not matter, the government claimed, pointing to the well-settled doctrine of "search incident to arrest," which is based on two search rationales: The person arrested might have a weapon he could use to harm the arresting officer, or the arrested person might try to destroy evidence in his possession. Indeed, as the government argued, a cellphone might contain incriminating evidence that, upon arrest, could be destroyed, so, logically, a search of the cellphone is within the rule. In fact, in a leading case relied on by the government, there was no evidence that could be destroyed; the defendant was arrested for a traffic infraction. And the defendant could not gain access to the package that had already been seized by the police, so there was no realistic threat to the officer's safety. No matter, said the Supreme Court. The arrest itself justified the immediate search.
But technology changes everything, the court unanimously concluded, in rejecting the government's arguments. The court made the point succinctly, and powerfully. Cellphones are "a pervasive and insistent part of daily life," indeed "an important feature of human anatomy." More than 90 percent of American adults own a cellphone, the court noted. Because of its immense storage capacity, cellphones are different from cigarette packages, wallets, briefcases, and even diaries possessed by the person arrested. A cellphone "contains the sum of an individual's private life." The court showed a close familiarity with cellphone technology, describing "gigabyte storage capacity" (the smartphone capacity of 16 to 64 gigabytes, and 16 gigabytes translates into millions of pages of text, thousands of pictures, and hundreds of videos); "apps" (the average smartphone user has 33 apps, "which can form a revealing montage of the user's life," noting as well the expression "There's an app for that"); "cloud computing" (the capacity to display data stored on remote servers); and "remote wiping" and "data encryption."
The Supreme Court rejected the government's reliance on precedent and its arguments about the dire consequences of the court's decision on the ability of the government to fight crime. The court pointed out that the government wasn't being deprived of evidence, only being fored to accept the inconvenience of obtaining a warrant to search the phone. Also, if there are exigent circumstances, the government can make a warrantless search. But as in the metadata and GPS technology cases, in balancing the government's interests against the near-Orwellian intrusions into privacy, privacy wins, and even when the logic of earlier Supreme Court precedents might suggest otherwise.
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