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The City of Bozeman, Montana is demanding that those applying for jobs supply passwords for their accounts with social networking sites such as Facebook and Myspace, apparently so the City can check out what kind of acquaintances they have. What about the guarantee in the Montana constitution, which states, “the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest”? Well, says the City’s attorney, that has to be balanced against the need “to make sure the people that we hire have the highest moral character and are a good fit for the City.” Montana is a funny state, not as individualistic as the mythology of Western America might make you think. Nor are Facebook and Myspace as private as their terminology may lead users to expect. Still, I’m guessing the city won’t keep this practice up long — for one thing, “good fit” tests are easily abused, and for another, these sites typically have a term of service such as (to quote Facebook’s) “You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.”

In Blown to Bits we spend all of Chapter 5 making the argument that (a) perfect secrecy is possible through public key encryption and (b) almost no one encrypts their email anyway. Why this would be the case is one of those small mysteries of the universe. Few of us actually know people who know that their email has been read, but most of the time we’d have no way to know that. If you are sitting in Starbucks and the guy with the double mocha latte is running a packet sniffer, you’d never know the difference.

Today’s New York Times has the kind of story that might lead more people to take the issue seriously. It seems likely that the NSA is snooping on more email than they’d like to admit. The simple fact that the cost of surveillance has plummeted in itself makes abuse more likely. (THe NSA doesn’t need to loiter at Starbucks. They can get access to ISPs’ switching equipment.)

If you use Google’s Gmail, you can encrypt all your mail. The preference setting is pretty obscure, and you have to opt-in: the default is no encryption. Chris Soghoian, I, and a number of other computer scientists and security experts have just called on Google to make encryption the default. Our letter explains it all: You can read it here.

The French anit-piracy law, adopted in France on the basis of strong support from President Sarkozy, has been¬†declared unconstitutional The logic is elegantly simple and equally applicable in the UDS. ‚Ķ “Internet est une composante de la libert?© d’expression et de consommation‚Ķ¬†en droit fran?ßais c’est la pr?©somption d’innocence qui prime” ¬†– “The Internet is a coomponent of the freedom of experssion and of consumpton ‚Ķ In French law it’s the presumption of innocence that prevails.” (Well, OK. So there is no “freedom of consumption” in the US Constitution, as far as I know!)

THanks to Carolinna Rossini for the pointer.

A couple of weeks ago there was minor epidemic of news about a report out of Ohio State University claiming that students who used Facebook get lower grades. Even the earliest reporting of this story drew skeptical comments (here is one from April 15 in the Ohio State U’s student newspaper). OK, so students would always be skeptical about anti-student news; but on April 21, the Wall Street Journal expressed its skepticism too. No matter; it was the story a lot of people wanted to hear, and it spread faster than the Swine Flu. Another reason to fear and hate the Internet.

Now Eszter Hargittai of Northwestern U and the Berkman Center, working together with two colleagues, has re-done the study with a large database of students and found … no relation at all between Facebook use and grades. Or maybe a small POSITIVE correlation.

Bet this story won’t go viral.

We make that argument (which we learned from a paper by Larry Lessig and Yochai Benkler) in Chapter 8 of Blown to Bits. The outcome of the Supreme Court case of Fox v. FCC, decided this week, suggests that the line of reasoning we outline has some traction on the Court.

The case, stimulated by Cher’s use of the F-word and Nicole Richie’s use of the S-word, was decided 5-4 in favor of the FCC, which would at first blush make it look like a loss for free-speech libertarians. But the case was decided on narrow administrative grounds; the only question on which the court took a position was whether the FCC had properly promulgated a reasonable regulation (its higher standard prohibiting even fleeting use of expletives at times when children were likely to hear them). The constitutional question of whether that regulation of free speech is in violation of the First Amendment the court let stand.

But the four in the minority seem not to support the restriction of broadcast speech at all. And one of the majority seems inclined in the same direction. That would be Justice Thomas. Although we might have expected him to have the least patience with foul speech on television, he takes the opportunity of writing his own opinion, concurring with the majority in its vote on the administrative question, but making plain that technological changes have shaken the court’s prior reasoning on the constitutional question.

The case has been sent back to the lower court, which will have to take up the constitutional question. Whatever it decides, if the decision is appealed, the Supreme Court may have an opportunity to come down once and for all on the federal government’s right to censor broadcast television.

A few passages from Justice Thomas’s opinion (full opinions here):

even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. …

Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services.… Broadcast and other video programming is also widely available over the Internet. …  And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. …

These dramatic changes in factual circumstance swell support a departure from precedent ….

John Markoff of the New York Times has an excellent article about software that is being used in oppressive regimes to enable access to web sites that are blocked or censored by government officials. Interestingly, the Falun Gong followers are the leaders; they have multiple servers supporting their workarounds. For a time they were letting Iranians use the same servers, until the Iranians overwhelmed the capacity of the servers. Rather than allowing the service degradation to make the software unusable, it’s been restricted to use by Chinese.

In a continuation of President Obama’s campaign for openness, a White House photostream has been created. The terrific photos were taken by the official White House photographer, but anyone can download them and use them. The photos are offered under a Creative Commons 2.0 Attribution license. All you have to do when you use the photo is to attribute it.¬†This is modern, open, and terrific.

Unfortunately, it’s wrong.

Neither the White House nor the official White House photographer can own these photos. The American people own them. They are federal property so they are your property. The government can’t own a copyright and a government worker can’t claim a copyright on work he did as part of his government job.

Doubtless attributing the photos is the right thing to do. But it can’t be a legal requirement.

It is also modern to assume everything is copyrighted, since that is virtually always the case. I’m sure the White House is trying to say these photos are in the public domain. But it’s awfully hard to say that. It’s pretty much impossible to give up your rights if you have them — the Creative Commons license was designed to do something very much like that. So the White House’s instinct is exactly right. It has simply forgotten that it, unlike any other creator of a creative work, can’t own copyrights in the first place.

No need to ask or to credit. You already paid for those photos.

The swine flu panic is going to be electronically mediated in a way no previous threat to public health has been. Flu information sites have sprung up in which news stories and data are being aggregated — the Flu Wiki Forum and Wikia’s Flu Wiki, which has a nice Google map mashup showing where the cases are.

The intrepid and slightly paranoid (I know he won’t mind my saying so) Chris Soghoian has another angle in his post on Swine Flu and the Threat to Privacy. Eight students from one New York City school are suspected of having contracted this strain of influenza while on a school trip to Mexico. If they were suspected terrorists, the government would by this time have gotten their cell phone carriers to turn over lists of all the people they had telephoned recently. It would be easy enough — yes, this is true — to ask the carriers to turn over lists of the names of all people with cell phones that had been within 100 feet of one of the students’ cell phones during their Mexico trip or thereafter. Now stored cell phone geolocation information isn’t that precise, so the data request would probably yield a lot of false positives — people in the same general area but not that close.

The information may well have been collected already. And that may well be exactly the right thing to do. After all, the first rule of epidemics is that controlling them becomes exponentially harder if they are allowed to spread; you don’t wait until they are severe before reacting. Do we know? If the data has been collected, do we have any confidence that it isn’t going to be repurposed, and that it will be discarded eventually?

Today’s news brings a nice juxtaposition.

A new law in South Korea would require those who run web sites to get and retain identifying information about the people who post on their sites. Google, which has been criticized in the past for complying with the demands of authoritarian regimes for information about its users, took the extreme step of disallowing all YouTube uploads and comments in Korea. Bravo — this will cost Google some market share, and may put pressure on the government. (Or perhaps not. YouTube is not the leading video site in Korea.) The government feels dissed and is saying as much to Google.

But today also reminds us that sometimes people using the Internet really are criminals and we are glad they are leaving electronic fingerprints behind. A series of assaults on women around Boston was solved very quickly because the alleged perpetrator was incautious enough to send an email from his home to one of his victims. Detectives obtained his IP address from the ISP and started to surveil his house. Security videos at the several crime scenes showed him tapping on his Blackberry; that was another good source of electronic forensics. (How many people could have used the same Blackberry from the three locations at the same times as the video camera showed this gentleman keeping busy?)

The two stories are not incompatible. Such records could be kept for a few weeks for police purposes and then discarded so they won’t be used for mischievous purposes later. Societies lose something by keeping data, and also lose something by deleting it. It’s just a question of making the right tradeoffs.

More on orphan works — copyrighted works whose copyright holders are unknown, often because they have been out of print for so long. the Google Books settlement would indemnify Google if it distributed a copy of an orphan work and the true rights holder turned up later on and sued.

The Internet Archive describes itself as “a digital library of Internet sites and other cultural artifacts in digital form,” and goes on to say, “Like a paper library, we provide free access to researchers, historians, scholars, and the general public.” The Archive maintains the WayBack Machine, which allows you to retrieve old copies of web pages, but it is also a founding member of the Open Content Alliance, digitizing texts and other materials for public access. It is therefore in something of the same business as Google — except for some crucial differences. The Internet Archive is a nonprofit and it is giving stuff away without trying to make money dong so. And thus far it has scanned only public domain works and those copyrighted materials for which it has gotten permission in advance — Google just scanned first and waited to be sued (that’s what brought about the proposed settlement). The Archive does not want to be disadvantaged by being forced to avoid orphan works, or to be subject to suits against which Google is immunized. So, although it is not seeking to interfere with the Google Books settlement, it is asking the court for the same protections Google is getting.

Both Google and the Authors and Publishers oppose the Archive’s move. Which seems to me in itself to raise a flag about the likelihood that the settlement will create a monopoly in the digital library domain.