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In B2B we briefly noted a couple of coming technologies in the advertising and marketing field—stores that would welcome you when they “saw” you coming in the door, perhaps suggesting things you might like to buy based on what they knew about what you had bought, etc. The New York Times reports today that it’s all here. It’s a good story, describing multiple technologies. It leads with the idea of pointing a cell phone camera at a window display after hours and having the item recognized from its image, so the shopper can buy it literally right out of the window. Here is another technology that I find particularly interesting:

Other retailers have begun testing a product from I.B.M. called Presence. Shoppers who sign up can be detected as soon as they set foot in a store. That enables Presence to offer real-time mobile coupons. And tracking shoppers’ spending habits and browsing time in various departments can help the system figure out who might be moved to suddenly buy a discounted item.

Presence can also make product recommendations. If a shopper was buying cake mix, Presence might suggest buying the store’s private-label frosting and sprinkles, too.

“We’re also able to do predictive analytics — predict what we think you might want based on what we already know about you,” said Craig W. Stevenson, an I.B.M. executive who oversees Presence.

We were imagining RFID chips in clothing as the identifiers. We should have expected that GPS phones would be ubiquitous and that people would happily tell merchants their whereabouts in exchange for small perceived rewards.

I am giving a talk with that title at Cornell on Thursday. It will be livestreamed at 4:15pm—details here. Thursday morning I am giving a talk on an earlier book, Excellence Without a Soul—that too will be livestreamed if anyone is interested. Same link.

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?

A Harvard Law School student has filed a class action lawsuit against Google for Buzz’s privacy violations. The student, Eva Hibnick, says “I feel like they did something wrong,” which is surely true but probably not her best lede. “The document cites the Federal Electronic Communications Privacy Act, the Federal Computer Fraud and Abuse Act, the Federal Stored Communications Act and California common and statutory law,” says ABC News. The kitchen sink, in other words.

The Electronic Privacy Information Center has already complained to the Federal Trade Commission (see here for EPIC’s press release, with a link to the complaint itself). This lawsuit seems like overkill, no matter how mad people are, given the risks we’ve written about elsewhere of stretching any available law to make a club with which to attack a technological innovation.

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I was on the Callie Crossley Show on WGBH radio in Boston yesterday giving Google a piece of my mind about Buzz. But I was gentle compared to Callie herself. You can hear the short segment here.

Google yesterday reversed the crucial error it made when it rolled out Buzz. It decided not to initialize the service to follow your email correspondents, but simply to show those people to you as suggestions. In other words, you now have to opt in to following people, rather than opting out if you don’t want to follow them.

Bravo. You can pick at the edges–the company responded at first just by making the opt-out clearer, and didn’t go to opt-in until it realized that the first change wasn’t making the tidal wave of criticism any less powerful. But all things considered, this is a very professional response to a very serious self-inflicted wound.

The Toyota analogy I mentioned earlier sticks in my mind. Was there something in their management structure that allowed this horse to get out of the barn? Will there be some mistrust of Google now, some greater awareness that the company never guaranteed Gmail users absolute privacy in the first place and that it retains the right to make commercially advantageous use of their data?

Sigh. It is so sad to see Google lurch from doing the wrong thing (helping the Chinese thought control regime) to doing the right thing (announcing they’d rather lose the business than keep censoring in China) to doing a spectacularly wrong thing: The much-hyped Buzz social network service sets up your initial group of contacts from the list of people with whom you’ve been exchanging email and instant messages. And then makes that list of contacts public to the world. So lawyers could be exposing their clients, doctors their patients, husbands their mistresses, journalists their tipsters, you name it.

Buzz is an opt-out service–you’re in it until you tell Google you want to be out. And it is hard to get out (though in the past few days Google has, in response to the furious reaction it’s gotten, made the instructions a bit more visible). Even if you get out of Buzz, however, your secret lover may be exposing you. Happy Valentine’s Day!

This reminds me of Facebook’s Beacon fiasco, in which the company did not think through the consequences of having members announce to their friends what they were buying. Except worse, because ANYBODY knows that your email contacts are private information. How could Google not have had this pointed out to them in some focus group? For that matter, don’t they employ some house skeptics who are there just to point out the kinds of flaws that lots of bloggers pointed out almost immediately after the product was released?

Google’s response, according to today’s New York Times, is that a lot of people like the way it works. Which I am sure is true, and is a reason why big industries get regulated. The interests of minorities, no matter how serious, are not as important as providing the majority a product they like. Except that this time it looks like Google miscalculated the size of the minority of people concerned about their privacy, and the intensity of their feelings. I hope Google, like Toyota, is doing some soul-searching about how they got into their current pickle.

Thanks to danah boyd for pointing me to this excellent post from a lawyers’ blog explaining and analyzing the privacy problem and giving specific instructions about how to turn Buzz off. Very much worth a read.

In a move that is remarkably aggressive even by the standards of totalitarian regimes, Iran has announced that Gmail will be banned and that a government-run email service will take its place. The Wall Street Journal explains,

An Iranian official said the move was meant to boost local development of Internet technology and to build trust between people and the government.

I get it. People will trust the government more if they know the government is watching all their email and there is nothing they can do about it. Wait, no, I don’t get it. Could you explain that again?

I have gotten two unsolicited emails over the past year from Iran. One was from a Gmail address, enclosing a manuscript about teaching for me to read. When I responded that we all think about the people of Iran and their struggles, the unguarded reply was “That is why I chose green for the cover of my book.” I hope that did not get him into trouble. Another, from a Yahoo mail address, asked for my help in locating a relative. Apparently the person writing thought the relative had gone to Harvard. I could find no evidence of that but I did find the fellow’s Facebook page, for which my correspondent was very grateful

These experiences left me wondering how thorough the surveillance is, and today’s announcement leaves me wondering if people will put up with it being heightened.

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.

That’s how the Department of Justice describes the Amended Settlement Agreement, or ASA–the version that Google and the Authors and Publishers came up with after digesting the various objections to the original proposal, including the DOJ’s objections. You can download the DOJ’s 31-page brief here. It is an exceptionally well-written brief, and I don”t mean just by the standards of legal writing. A few key paragraphs follow:

… [W]idespread lawful electronic distribution and use of copyrighted works, including in-print, out-of-print, and so-called “orphan” works, holds vast promise. Breathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost, creating a rights registry, and enhancing the accessibility of such works for the disabled and others are all worthy objectives. …

[T]he ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation. As a consequence, the ASA purports to grant legal rights that are difficult to square with the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright. Those rights, in turn, confer significant and possibly anticompetitive advantages on a single entity – Google. Under the ASA as proposed, Google would remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. Google also would have the exclusive ability to exploit unclaimed works (including so-called “orphan works”1) without risk of liability. …

[A]lthough Google’s activities are commercially motivated, its business plan would generate numerous public benefits. The ASA would achieve these benefits, however, in spite of and not in furtherance of the basic premises of the Copyright Act. …

Google’s exclusive access to millions and millions of books may well benefit Google’s existing online search business. Google already holds a relatively dominant market share in that market.18 That dominance may be further entrenched by its exclusive access to content through the ASA. Content that can be discovered by only one search engine offers that search engine at least some protection from competition. This outcome has not been achieved by a technological advance in search or by operation of normal market forces; rather, it is the direct product of scanning millions of books without the copyright holders’ consent and then using Rule 23 to achieve results not otherwise obtainable in the market.

These points are not technicalities. They go to the heart of the  case. As I said earlier, I feel that a high-noon moment is coming on, a showdown between Google, those representing themselves as the spokespeople for authors and publishers, the US government, and Judge Chin. Eric Saltzman, counsel to Lewis Hyde in the objections posted here earlier, has expressed to me his surprise that the process could have reached this point–he might have expected that the parties would have not only attempted to address the DOJ objections to the original proposed settlement, but would have sought some confirmation from the DOJ that they had succeeded. As it is, they have made a lot of changes without gaining a lot of DOJ support.

High noon is still scheduled to occur on February 18.

“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?