Yesterday was the “Fairness Hearing” in the Google Books Settlement case. The New York Times has a good report on it. Judge Chin’s questions suggest he is worried that the settlement goes way beyond what was needed to settle the issues between the parties—which is true, of course. A class action lawsuit over copyright infringement should not be a platform for a world-changing business partnership, with the biggest rewards going to the infringer.

Alas, so far I see nothing to suggest that the privacy issues with the settlement have caught the judge’s attention. I found this paragraph from the ACLU particularly interesting:

Because the settlement does not contain any privacy protections for users, Google’s system will be able to monitor which books users search for, which pages of the books they read and how long they spend on each page. Google could then combine information about readers’ habits and interests with additional information it collects from other Google services, creating a massive “digital dossier” that would be highly tempting and possibly vulnerable to fishing expeditions by law enforcement or civil litigants.

Among the reasons Google will rue the day it decided to roll out Buzz as an opt-out product with your social network harvested from your Gmail address book is that it renders worries like the ACLU’s far more credible. With all that useful data about reader behavior, Google itself will be highly  tempted to repurpose it. After all, it has shown itself willing to do that with your address book, which many of us consider confidential information—why not do it with the information about which books, and which pages of which books, you spend your time reading?

Declan McCullagh of CNET reports that the FBI is pressing Internet Service Providers to keep records of what Web sites customers visit and to keep the logs for two years, to assist in its criminal investigations. It has also asked Congress to require ISPs to keep such logs, arguing that it is only trying to preserve the investigative capabilities it had in the telephone era: for 24 years, phone companies have been required to keep for 18 months logs of the toll calls their customers have placed. McCullagh writes,

What remains unclear are the details of what the FBI is proposing. The possibilities include requiring an Internet provider to log the Internet protocol (IP) address of a Web site visited, or the domain name such as cnet.com, a host name such as news.cnet.com, or the actual URL such as http://reviews.cnet.com/Music/2001-6450_7-0.html.

While the first three categories could be logged without doing deep packet inspection, the fourth category would require it. That could run up against opposition in Congress, which lambasted the concept in a series of hearings in 2008, causing the demise of a company, NebuAd, which pioneered it inside the United States.

Many interesting details there, in particular that the line between “content” and “non-content” information is so fuzzy on the Internet. Would search queries, for example, be content or non-content?

This is way too much information retention.

“There needs to be some legislative changes to the definition of what matter is,” the head of the Massachusetts District Attorneys said yesterday, after the Supreme Judicial Court read the state laws very closely and agreed with the defense that lewd text messages were not “matter” as defined in state law. It’s a great example of how hard it is to write laws that both stay current as technology changes, and are not so over-broad, in an effort to cover cases no one has yet thought of, that they unintentionally wind up criminalizing innocent activities.

Here is the heart of the statute (MGL Chapter 272, Section 28):

Section 28. Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished by imprisonment in the state prison for not more than five years ….

“Matter” is defined elsewhere as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” Now that list was drawn up with some care–it obviously includes everything they could think of at the time, which seems to have been several technological generations ago. I wonder if anyone has similarly challenged whether DVD’s constitute “motion picture films”?

In his opinion, the judge noted that the legislature had changed the law a few years ago to lengthen the prison term to five years, but didn’t bother to change the list of media. So, he concluded, computer to computer communications aren’t covered, and the court has to assume the legislature didn’t intend to include them. The omission is easily remedied, but  it’s not up to the court to do that.

So one creep at least dodged a bullet, and the legislature will no doubt change the law going forward. But it’s a great reminder that the law is a statement of rules, not intentions.

And that it gets stale, not just because of technology changes. Until I was browsing the state’s web site, for example, I didn’t know that adultery was still illegal in Massachusetts (MGL Chapter 272, Section 14):

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Fornication (“sexual intercourse between an unmarried male and an unmarried female”) is still illegal too, but less serious (“punished by imprisonment for not more than three months or by a fine of not more than thirty dollars”).

Any criminals out there?

I’ve now both listened to and read Secretary of State Hilary Clinton’s speech on Internet freedom. (That’s a link to the State Dept. home page, where it is still featured. I imagine it will move off shortly.)

It’s a good speech, I think. At least it was good enough to annoy the Chinese. A columnist for the People’s Daily snorted that Google had been reduced to an “ideological tool” of the US government and noted, correctly, that Google is losing the competition with the native Chinese search engine, Baidu. (Note: You can compare for yourself the search results returned by the US version of Google, the Chinese version of Google, and Baidu. But be aware that the link for Chinese Google takes you to servers inside the US, while the link for Baidu takes you, I think, to China. The result is that you may not see google.cn, the Chinese version, as the Chinese experience it. When I tried Googling “Falun Gong” inside China, I lost the Internet connection to my hotel room.)

The China Daily simply denies that Clinton is telling the truth. [A Foreign Ministry spokesman] “said the speech indicated China restricts internet freedom. ‘It is a far cry from the truth,’ he said.” And the People’s Daily accuses the US of hypocrisy. “It is common practice for countries, including the United States, to take necessary measures to administer the Internet according to their own laws and regulations. The Internet is also restricted in the United States when it comes to information concerning terrorism, porn, racial discrimination and other threats to society.” The paper goes on to cite Steve Ballmer as one of the good guys. “Noting that most countries exert some sort of control over information, Microsoft Chief Executive Steve Ballmer said Friday his company must comply with the laws and customs of any country where it does business.”

In fact, in her speech, Clinton, after stirring invocations of the US First Amendment and the Universal Declaration of Human Rights, conceded the point about Internet freedom having its limits. Here is the crucial paragraph:

Now, all societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al-Qaida who are, at this moment, using the internet to promote the mass murder of innocent people across the world. And hate speech that targets individuals on the basis of their race, religion, ethnicity, gender, or sexual orientation is reprehensible. It is an unfortunate fact that these issues are both growing challenges that the international community must confront together. And we must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.

Now that passage contains a remarkable juxtaposition. A grand buildup.  A concession that there are limits to expressive freedom. A citation of the example of mass terrorism. OK, I’m listening. The next examples are the usual nondiscrimination categories, presented as hate-speech categories. Now I am getting worried; what counts as hate speech is so often in the ears of the listener. To be sure, it is easy to imagine a Tibetan rant about Chinese oppression that the Chinese could reasonably tag as ethnic hate speech. This is beginning to sound like a list of exceptions to freedom big enough to put almost anyone in shackles. Then there is the “issue” of anonymous speech. Secretary Clinton has nothing good to say about it, and then in a flat declaration puts Osama Bin Laden in the same box with millions of American teenagers—in the box of “those use the internet to recruit terrorists or distribute stolen intellectual property.” At this point I think the speech loses its operative edge. It leads inevitably to the conclusion that the speech control tools aren’t the problem—they are necessary in fact—only the way they are used.

So I finished the speech feeling good; it’s certainly better than a speech that emphasized cooperation at all costs, and that might have been expected. On the other hand it leaves me unconvinced that the administration actually has a consistent point of view on cyber-freedom.

One ironic footnote. The streaming video comes via a service called Brightcove. If you click on the “Information” icon on the video window while the speech is playing, you get Brightcove’s who-knew? privacy policy, which explains that “By using the Site, you agree to the terms and conditions of this Privacy Policy. If you do not agree to the terms and conditions of this Privacy Policy, please do not use the Site.” Much of the privacy policy does not apply to visits to the state.gov site, which requires no login and hence generates no personal information. But of course viewing the Internet Freedom video does send Brightcove your IP address, which Brightcove treats as “Non-Personal Information.” And, it says, “we reserve the right to share Non-Personal Information with affiliates and other third parties, for any purpose.” So Brightcove could, for example, sell Harvard University the information that I watched the Internet Freedom video via the wired jack in my Harvard office. Freedom does have its limits, but I might have hoped they fell a bit farther out than that.

I am of libertarian leanings, and I always hate acknowledging that we sometimes need the government to save us from ourselves. I am of two minds about laws against cell phone use while driving — even after a near-death experience las week, when a driver coming down the street in the opposite direction skidded on the ice into my lane of traffic, stopping inches from the front of my car — and never took her cell phone from her ear. (Perhaps she was reasoning correctly that her car was much, much bigger than mine.)

But we really need some regulation on the bright idea of Internet access from our cars’ instrument panels. As the New York Times puts it, Despite Risks, Internet Creeps Onto Car Dashboards.

Not hard to figure how this happened. We should have seen it coming. The technology is getting cheaper. We love the gadgets in our cars, and will trade a perfectly good vehicle for one with a better navigation system, something we never knew we needed. So bingo, we have touch screens with handwriting recognition, so the driver can scribble the name of the band he’s going to hear and get some news flashes about it.

Car regulators, please, please save us from ourselves. Or rather, save the partially sane among us from the idiots who will think they can multitask infinitely with their hands and brains.