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Google is offering a five-second delay feature in Gmail, giving you a chance to retract an email. We’ve all had that experience of having our blood run cold when we realize, even while our finger is still on the key, that we sent a message to the wrong person. I generally don’t like restrictive technologies designed to save us from ourselves, but this one sounds like a good idea!

There is a move afoot in Massachusetts to — well, it’s hard to tell from the early reports what exactly the legislation would do. Perhaps to punish people who abuse the elderly and the disabled; perhaps to ban pornography involving the elderly and the disabled. Who knew? I certainly didn’t, but an accompanying sidebar in the Herald reports that 20% or more of Japanese porn involves the elderly, and says ‚Ķ well, I will just quote the headline: “‘Wheelchair vamp dwarf’ porn is big business online.”

The problem is the casualness with which the officials quoted — one District Attorney, one a state representative — are ready to lump these forms of pornography in with child pornography. “Kind of a no-brainer,” says the state rep. Maybe a law is needed here somewhere, but please DO try to use your brain. Child pornography has extremely serious penalties, and is illegal to possess, on the logic that a child can never be a willing participant in the creation of the pornographic material — something plainly not true for the elderly and the disabled. (If child pornography is purely synthetic, so no children were abused to produce it, it may actually be legal. Unless it’s obscene, the problem with child pornography is not with adults seeing it, it’s with what had to be done to produce it.) Frankly, I doubt that any more laws are warranted. Harvey Silverglate has it right:¬†‚ÄúIt seems to be the latest in a long effort to broaden the definition of obscenity. We‚Äôve already got (laws) against coercion. Why is that not adequate?‚Äù

Certainly the morals police are at work in Pennsylvania, where schools are seizing cell phones, looking for naughty photos on them, and then coercing the students depicted in those photos into re-education camps about sexual evils. Some students are fighting back:¬†Students Sue Prosector in Cellphone Photos Case. These students are taking some risks, because of the severity of child pornography laws; like defendants in copyright cases, there is an overwhelming incentive to accept whatever deal is offered rather than go to trial, even if — as this story claims — the photos are in some cases nothing worse than a couple of girls at a slumber party, shown from the waist up, wearing bras. (Ah, says the prosecutor, but he, at least, found the photos “provocative.”)

And do we really think it should be part of the schools’ job in “protecting” its students to go through everything on their cell phones? Of course, that is nothing less than any U. S. border guard could do, under orders issued by the Department of Homeland Security under the Bush administration. (How about repealing that one, Mr. Obama?) Is this the way of life we want our children to grow up accepting as normal — even as good?

Google’s search engine isn’t perfect because it can’t read minds. In a sidebar in Chapter 4 we note that a search for “spears” returns few results that aren’t about Britney or her little sister — anyone looking for weapons was pretty much out of luck when we tried it. Google tended to give the results that most people want most of the time, and that is far more likely to be Britney than a pointed pole.

In recent weeks — I first noted it a month or so ago — Google’s search results seem to be less monotonous and the results pages have started to include some phrases at the bottom pointing to less common interpretations of the search phrase. (See¬†Google tinkers with ‘special sauce’ for searches.) So the top page of results for “spears” now leads with Spears Manufacturing (a maker of PVC piping) and includes a link to the Wikipedia page for the pointy kind of spears. And the links across the bottom of the page offer you searches for “spears weapons,” “greek spears,” and also “spears flash,” “spears underwear,” and “spears no underwear,” all apparently common searches for a particular subcategory of Britney material. Not sure if these links are intentionally to subsets rather than alternatives to the tyrrany-of-the-majority favorite.

In other Google news, StreetView has been rolled out in England, to much greater interest than I remember it exciting in the US. Reaction on privacy grounds has been strong (e.g. Who allowed Google to put my big knickers online?), as has voyeurism (e.g. Google Streetview Captures British People Drunkenly Vomiting). The Times (London) notes archly that the head of Google UK lives on a gated lane inaccessible to the Google Streetview camera ….

They’re completely blocking YouTube. No official explanation given, but it’s probably not unrelated to the fact that official sources are accusing the Dalai Lama of producing a phony video allegedly showing Chinese police beating Tibetan independence protesters.

Aside from the obvious moral that the Chinese government feels quite at ease getting tough when it tires of playing games, there is a larger moral for the rest of us: If you want to make what you think will be an important point, don’t worry about over-blocking. We tend, quite properly, to get outraged about the suppression of the isolated instance of offending speech, but in doing so we lose sight of the far more outrageous fact that the entire haystack is shrouded in darkness so that the needle won’t be seen.

We reported for the first time back in October on the case of RIAA v. Tenenbaum. The Recording Industries have taken one Joel Tenenbaum to task for downloading a few songs while he was a BU student, and Mr. Tenenbaum wants a trial. He is being defended by Prof. Charles Nesson of Harvard Law School. Prof. Nesson has challenged the very constitutionality of the Digital Millennium Copyright Act, on basis that the statutory penalties are so disproportionate to the actual damages that the law functions as a criminal statute even though it is a civil statute. That the DMCA is (for the most part) a civil statute has many consequences — the standard of proof is lower, and the defendant has no right to public defender, for example. The result is that defendants in copyright cases almost never contest; instead they settle up with the RIAA out of court.

There has been some suspense over whether the Obama administration’s Justice Department would enter into this controversy. On the one hand, the new administration prides itself on being the friend of the little guy. On the other hand, both the Vice President and several senior members of the Justice Department have reputations as friends of the copyright industry.

Today we have our answer: the Justice Department has indeed entered the argument, and sides unequivocally with the Recording Industries. The DOJ brief (pdf, 31 pages) urges the judge not to deal with the constitutional question if she can avoid it, and then dismisses every constitutional argument put forward by the defense. According to this summary by Recording Industry vs. the People, the Justice Department memo makes no response to the arguments put forward by the¬†Free Software Foundation in support of Tenenbaum’s case — citing various cases and authorities to the effect that the statutory damages set by the DMCA are unconscionably high.

It’s a disappointment — the DMCA is bad law, as we detail in Chapter 6, and we might have hoped for better from the new administration. But previous Justice Departments had sided with the Recording Industries, so perhaps this should have come as no surprise — even with the enlightened Elena Kagan as the government’s top lawyer.

Slashdot has a good precis, and almost 500 comments as of this writing.

Americans can learn a lot about what not to do with the Internet by observing what happens abroad. Unfortunately we too often take exactly the wrong lesson and decide that gee, if people in country X can try to control some social ill that the Internet has facilitated, we’d better try too.

For example, shortly after the Mumbai attacks, there were reports that the terrorists had used Google Earth to plot their path through the city. An Indian court called for a ban on Google Earth itself — to kill the technology, no matter how useful for good, because it had also been used for evil. Not to be outdone by the Indians, a California legislator last week introduced legislation that would require the blurring of Google Earth images. The rationale? To give Californians “the same level of protections that foreign governments extend to their own citizens.” As though we were in a protection competition with every nation of the world, and no other American value, such as freedom of information, was at stake.

An interesting game of cat and mouse has been playing itself out in China. Stirred to resist censorship of the Web, inventive Chinese technophiles have flooded it with cartoons and children’s ditties about grass-mud horses and river crabs. These are parables about censorship — the Chinese words for these creatures resemble, on the one hand, a dirty curse and the official euphemism for “censorship.” For awhile it looked like the perpetrators were untouchable — who could object to a little music video with some alpaca-like creatures romping through the grass? Alas, late last week China laid down the law — no more talk of river crabs on the Internet, or else. Will it work? We shall see. In the very same issue of the New York Times there is a story about a famous Chinese artist who is using the Web with apparent impunity to protest the suppression of information about official malfeasance in response to a terrible earthquake that killed many people.

But that’s China. Back to the world of democracies, for a taste of what may be coming our way. Australia adopted very severe anti-Internet-pornography rules, which are now being implemented. The list of banned sites has now been revealed, and it includes several legal sites, including one for a dental surgeon, one for a legal gambling site, and one for a tour operator. (Follow the link if you want to get to the full list on Wikileaks, but be warned that most of the sites in the list are pretty sketchy places.) A pretty furious reaction seems to be afoot, but the mistakes could easily have been predicted. How many false positives, that is, legal information mistakenly banned from the nation, are the Australians willing to tolerate in order to shut out the material that is officially illegal? Who is deciding on which sites are illegal, anyway (apparently these decisions are being made without any process at all in Australia). And how will American lawmakers respond when such measures are, as they have been and inevitably will be again, proposed in order to protect Americans?

Added 3/22: I should have included a reference to the micro-storm over Britney Spears’ new song “If You Seek Amy,” as in “all the boys and all the girls are begging to if you seek Amy,” pretty much the same trick as the Chinese are doing with the mud horses and river crabs. The Parents Television Council is outraged and claims that radio stations are violating the laws about broadcast indecency if they play the song before 10pm. We tell the tale of broadcast indecency in Chapter 8 — one of these days a case like this is going to work its way up the federal court system, and we’ll see if our judicial system follows the model set by Chinese authorities.

A few hours ago, the MIT faculty adopted a resolution that makes our scholarly articles freely and openly available to the entire world, though the MIT DSpace Institutional Repository. The policy applies to all of MIT:

Passed by Unanimous Vote of the Faculty, March 18, 2009

The Faculty of the Massachusetts Institute of Technology is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the Massachusetts Institute of Technology nonexclusive permission to make available his or her scholarly articles and to exercise the copyright in those articles for the purpose of open dissemination. In legal terms, each Faculty member grants to MIT a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, provided that the articles are not sold for a profit, and to authorize others to do the same. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Provost or Provost’s designate will waive application of the policy for a particular article upon written notification by the author, who informs MIT of the reason.

To assist the Institute in distributing the scholarly articles, as of the date of publication, each Faculty member will make available an electronic copy of his or her final version of the article at no charge to a designated representative of the Provost’s Office in appropriate formats (such as PDF) specified by the Provost’s Office.

The Provost’s Office will make the scholarly article available to the public in an open- access repository. The Office of the Provost, in consultation with the Faculty Committee on the Library System will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty.

The policy is to take effect immediately; it will be reviewed after five years by the Faculty Policy Committee, with a report presented to the Faculty.

The Faculty calls upon the Faculty Committee on the Library System to develop and monitor a plan for a service or mechanism that would render compliance with the policy as convenient for the faculty as possible.

I chaired the committee that drafted the resolution and led faculty discussions on it throughout the fall. So I’m particularly gratified that the vote was unanimously in favor. In the words of MIT Faculty Chair Bish Sanyal, the vote is ‚Äúa signal to the world that we speak in a unified voice; that what we value is the free flow of ideas.”

Our resolution was closely modeled on similar ones passed last February by Harvard’s Faculty of Arts and Sciences and by the Harvard Law School, also passed by unanimous vote. Stanford’s School of Education did the same, as did Harvard’s Kennedy School of Government just last Monday.

Harry blogged last month about the execrable “Fair Copyright in Research Act” introduced by Rep. Conyers of Michigan, which would repeal the National Institute of Health mandate on open-access publishing and forbid government agencies from imposing similar mandates. This act is harmful to the progress of science and should be scuttled. Now that there are unanimous votes supporting open access by faculty at world-leading institutions, Rep. Conyers should recognize what everyone else does, and deflate his ill-conceived trial balloon.

Jury trials are a carefully managed game of information control. The jurors are screened to try to weed out people who know too much ahead of time. Only certain kinds of information are admissible, and whatever is presented by one side can be challenged by the other. The jurors are supposed to isolate themselves from other sources of information — when they go home to their families at night, they are supposed not to talk about the ongoing events or to try to find our more about them. In extreme cases, when it is just too likely that information will assault them by accident, they may be sequestered.

The digital explosion makes such information quarantine an unnatural condition at best, and perhaps an impossible one. And indeed, the New York Times reports today that jurors are routinely using search engines to find out more about the events they are adjudicating. (As Jurors Turn to Web, Mistrials are Popping Up) In a recent trial, a judge at first hoped that only a single juror had been using Google to check things out — in that case, he could throw the juror off the jury and continue the trial.

But then the judge found that eight other jurors had done the same thing — conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked by the judge about the research, said, “Well, I was curious,” according to Mr. Raben.

Mistrial. But the impulse is so easy to imagine. I myself was once on a jury trial in a reckless driving case, in which the defendant was charged with careening down residential streets at high speeds. A crucial piece of evidence was a hubcap coming off as he screeched around a sharp corner. The jury deliberations lasted overnight. Were the trial taking place today, I could use Google Street View after I got home to see what that corner looks like.

Did anyone see this coming? Not the attorneys in the case, apparently.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

Hit over the head by the force of the digital explosion. One minute you have a stable, reliable social institution that is the descendant of centuries of experience, as good and as fair a system as democratic societies know how to create. A minute later, you have to wonder if it can survive at all, since it is premised on conditions that no longer exist.

The Obama administration is invoking “national security” to prevent the American people from knowing what is in the intellectual property protection treaty it is negotiating with foreign governments. (That page has a wonderful morph of Bush to Obama. Other coverage of this story is aggregated by Jamie Love here.) That’s right — the administration has turned down flat a Freedom of Information Act request for the details of the “Anti-Counterfeiting Trade Agreement” (ACTA), which has nothing to do with making phony money, but instead deals with peer-to-peer file-sharing and other forms of digital copying. With a straight face, the government is claiming that our national security would be endangered if American citizens were to know what deal is being cut with other industrialized countries about monitoring music and movie downloads. Yes — we actually do know a bit about what is in the draft treaty, because of a leaked document, which appears on Wikileaks. You can download it there — it’s a summary sent by a US ambassador to interested industry folks, but not to the public interest groups who generally are vigilant about the downside of high IP protection barriers. According to the Wikileaks digest,

The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.

For shame, Mr. President. This is government of the people, by the people, for the people? Tell us what is up.

On page 216 of the book, we joke that DMCA might stand for “Digital Millennium Competition Avoidance” rather than “‚Ķ Copyright Act.” The idea is that if a company puts a digital lock on any interface to its equipment, then the anti-circumvention provision of the DMCA makes it illegal for an maker of accessories to reverse-engineer the lock to figure out how to make a compatible accessory. Apple Computer has given us a classic example of this technique.

If you walk into any electronics store or any WalMarts, you’ll find lots of earphones that you can use with your iPod, in case you lose the ones it came with, or they don’t fit your ears, or whatever. The earphones are on the racks with slipcovers and lots of other non-Apple stuff that accessorizes iPods. Of course you can buy Apple earphones, but maybe you’d rather buy the ones that fit better.

Well, Apple wants you to buy Apple earphones. The way the capitalist world is supposed to work, Apple is supposed to achieve that by making better earphones, or by cutting its prices. Everyone else has the same incentives, and the consumer wins from the competition.

Oh, not in the America of the DMCA. Apple has engineered the new iPod Shuffle so that the replacement headphones won’t work unless they have built into them an “authentication chip” the headphone maker can get only from Apple. Now the headphone maker is prohibited by law from trying to figure out what the “authentication chip” does so it can make headphones you can just plug into the Shuffle without, in essence, asking Apple’s permission and paying Apple money. So Apple winds up controlling the headphone market.

A classic case of copyright law being put to a use that has nothing at all to do with the protection of books or music or images — just to kill competition, to the advantage of one company and to the plain disadvantage of the public.

Thanks to Fred von Lohmann of the Electronic Frontier Foundation for raising a stink.