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The horrible, sad story of Megan Meier has been widely reported. Meier was 13 years old when she took her own life after being taunted by a MySpace friend named “Josh,” who turned out to be a fiction. Who exactly “Josh” really was, and whether that person committed a crime by telling Meier that the world would be better off without her, are matters now to be determined in a court of law.

According to an early police report,¬†Lori Drew, the mother of a friend of Megan’s, acknowledged “instigating” and monitoring the MySpace account, though she denies creating it. But officials in Missouri, where Drew and Meier lived, couldn’t find a statute under which Drew could be prosecuted. Now creative prosecutors have indicted Drew under federal statutes, claiming that she was engaged in interstate fraud. Why interstate? Meier and Drew lived within blocks of each other, and it would seem that whatever happened was purely the province of state and municipal authorities. But the MySpace servers are in California. Drew was, according to the theory, transporting bits across state lines to fraudulently inflict emotional distress on Meier, and that would be a federal crime.

One observer describes this use of federal fraud statutes as “aggressive,” which is legalese for “a stretch.” It will be interesting to see how this plays out. But it signals a much larger development. As Cyberspace unites the nation and the world, there will be many more cases in which federal and international authorities will be able to take an interest in what used to be local matters.¬†

We say that technology is neither good nor bad, it all depends how it’s used. The forces of good won one yesterday.

Kait Duplega’s laptop was stolen. Sometime later, a friend called her to say she was glad to learn that it had been recovered. The friend saw that the laptop was in use and connected to the Internet.

The New York Times story doesn’t explain how the friend figured that out. Perhaps Ms. Duplega uses Skype or some social networking software that informs her friends when her computer is connected to the Internet so they can contact her. In any case, the computer was still in the hands of the thieves. Ms. Duplega, who works at the Apple store in Westchester County, used a remote-access program to snap a photo of the thieves using the camera mounted above the laptop’s screen. Her roommate recognized the men in the picture, and the police arrested them.

This is a funny story. So is the story about the thief who stole a Global Positioning System and turned it on, which not only helped him know where he was, but made it easy for the police to locate him. But these tales are a little disquieting too. Do you care if your friends know whether your laptop is connected to the Internet? Depending on your habits, they might take that to mean you are ignoring them. In my own case, it would pretty accurately tell you when I am commuting or traveling, as those are about the only times I don’t have my laptop online. But if someone stole my computer, I might wish that like Ms. Duprega, I had set it up to share a few bits with the world about what it was doing. And what could someone else do with the bits on your computer if it were stolen? The men who stole Ms. Duprega’s machine were apparently planning to buy a bed–perhaps using her credit card number, stashed away on her computer.

The Wayback Machine is a marvelous invention. Using the Internet Archive, a huge series of periodic snapshots of the Web, the Wayback Machine enables you with a single click and see what the web page you are now viewing looked like months or years ago. It’s fun. It’s useful. Even the FBI uses it.

For some reason the FBI got curious about someone else who was using the Internet Archive for something, and asked if it might please know what human being was associated with a particular “address.” Brewster Kahle, the father of the Internet Archive, protested, and the FBI withdrew its request.

It’s important to realize how much that brief account leaves out. The FBI did not go to court to get a search warrant issued. No conventional police work needed if national security is at stake. The FBI issued a “National Security Letter,” which it can do on its own. NSLs have the further interesting property that recipients cannot lawfully disclose having received them. Kind of like the double-secret-probation of Animal House memory. We know about Kahle’s only because he successfully argued that he was running a library, and when the PATRIOT Act was renewed, an exception for libraries was built in.

I’m delighted for Kahle, but somehow the whole sequence of events does not leave me feeling happy. The FBI issues 50,000 NSLs annually. We find out about very few so there are no statistics about who gets them and how many of them are requests for IP addresses of people using web sites. We don’t know what counts as a library; I’m glad the Internet Archive seems to, but only because the State of California classifies it as such.

“Orwellian” is one of those terms that have been cheapened by overuse. But it’s hard to think of a reason not to use it here. According to the Electronic Frontier Foundation’s coverage, these are the terms that were presented to Kahle: “The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.”

He couldn’t talk even to his congressperson!

It’s a great victory, but it settles nothing, because the case never went to court. Nor has any other challenge to an NSL; in every one of the handful of cases in which an NSL was challenged, the FBI simply withdrew the NSL and the case evaporated.¬†

So the bottom line seems to be: 1984 is alive and well, as we report in Chapter 2 of Blown to Bits. There is no way to know how many ISPs, in situations as outrageous as Kahle’s but lacking the resources or the will to fight the FBI, simply comply with its demands and shut up. Whatever else the PATRIOT Act is, it’s a license for the FBI just to keep trying things, confident that it is almost certain to succeed even if it goes beyond the already vast powers Congress and the President have granted it.

One final, hopeful note. Where civil liberties are balanced against national security, significant numbers of people will usually go for the promise of security. But maybe people are getting fed up. Of the 77 comments on the Washington Post story linked to above, not a single one seems favorably disposed toward the FBI in this case. Of course, the FBI couldn’t really talk to the Post’s reporter ‚Ķ.

Watching the results come in from the Indiana primary I was reminded of the difference between public information and accessible information. Quantitative changes can have qualitative impacts. Information that was always nominally public, but nearly impossible to retrieve, is now completely accessible.

In the case of Hillary and Barack, the obvious example is FEC records. The Federal Elections Commission provides detailed information on who gave money to whom. Go to www.fec.gov and take a look at the interactive maps for the presidential election. They did a great job presenting information that was always public – but not readily accessible. Now, if you want to check on your neighbors, it’s a piece of cake.

Some people play both sides. Bill Gates gave the maximum ($2,300) to both Hillary and Barack. We always had the legal right to know. Now the information is just a mouse click away and that changes everything.

Campaign contributions arent’y the only example. My daughter bought a condo a while ago and was uncomfortable when all of her co-workers starting asking what she had paid. Why bother asking? Just go to Zillow, or any of its competitors and this traditionally public information is now readily accessible.

Lots of communities post property tax data. It used to take a trip to city hall. Now, no gas required, a couple of mouse clicks and you are there.

Curious about your neighbor’s house? In my case you can go to the town website and find everything from the property valuation to the kind of roofing material they used. This information was always public, but making it easy to retrieve has utterly changed our sense of privacy.

Careful. Snooping on your neighbors can be habit forming.

Try whozat.com. I learned things about myself I didn’t know. Seriously. And now I’m checking on you.

 

Yesterday afternoon I was in the offices of one of my large corporate clients Рa financial services company.  I needed to go online to gather some information and enlisted the help of one of their IT staff members to get me access.

The first thing I did was go to check my email.¬† I use Google’s Gmail client when I check mail on the web.¬† I like its user interface.¬† No luck!¬† I entered www.gmail.com and received a giant red warning “You are trying to access a site that is FORBIDDEN!”¬† Interesting.¬† My helpful IT guy said “oh, I forgot to tell you, we monitor every single thing that you do when you’re on the web.¬† We control what you can see, what you can’t see.¬† We read all your email.¬† We’re watching.”

Now, if I’d picked up the phone to make a call I’d have some measure of assurance that no one was listening.¬† Not so in the land of bits. I might just as well have been in China searching for Falun Gong.¬† Little Brother is alive and well.¬† You don’t need to be a government to impose surveillance and thought control.

Now this particular client isn’t a mom and pop operation.¬† The assets they handle exceed the gross domestic product of most nations. So maybe they think of themselves as a government, even a totalitarian one. But even so, I found the notion that they were watching my every move, controlling the websites I could access and hence the information I could receive, reading my email, a bit creepy.

It was one more reminder that technology had moved faster than the laws intended to manage its impact on our lives.  When telephones arrived we put in place legal protections for the privacy of our communications using them.  At some point, we will need to do the same for the bits that carry the substance of our lives.

I used to think that conservatives would oppose ubiquitous government surveillance. I figured it was the left that would be watching to make sure I was not smoking in the wrong place or saying something bad about the wrong people. That image of the politics of surveillance is outdated.

Today it is the right that wants the government to have carte blanche to listen in on our conversations. The rationale, of course, is that the government will keep us safe from terrorists if only we let it know everything we are saying. We should like being watched, to paraphrase Blown to Bits, because it means we are being watched over.

The Protect America Act, a six-month extension of the Foreign Intelligence Surveillance Act or FISA, expired recently. Here is one of the recent conservative rants on this subject, by Cliff May: “The law that gave America’s intelligence agencies the authority to freely monitor the communications of foreign terrorists abroad expired in February. A bill to restore that authority passed the Senate by a solidly bipartisan 68-to-29 majority. A bipartisan majority in the House would almost certainly vote in favor of the same measure but Speaker Nancy Pelosi (D-Calif.) —for more than two months—has used the power of her office to stop members from voting.” Another of the same ilk, by Robert Novak, describes the law as making it possible for the government to “continue eavesdropping on suspected foreign terrorists.”What such capsule summaries fail to mention is that the laws make it possible to eavesdrop on foreign terrorists by legalizing eavesdropping on anyone at all, including Americans, talking about anything at all, as long as the bits cross the US border. As EPIC’s summary explains, “[The Protect America Act] permits the warrantless surveillance of Americans when the surveillance is ‘directed at’ someone believed to be outside the United States—whether that person outside the United States is an American or not.” That means your emails and VoIP conversations with your family traveling abroad. And don’t think they don’t have enough agents to be listening in on you talking to your spouse—automated voice recognition is good enough now to recognize when you are mentioning bombs or Islam, however humorously.The price of liberty is eternal vigilance, but it does not require ceding to the government the authority to listen to Americans talking to Americans when they have done nothing to arouse suspicion. The conservatives should be ashamed of themselves for advocating that we surrender our Fourth Amendment rights by implying that these proposals don’t apply to us. They do.The limits of government surveillance should figure into the presidential campaign. Would the Dems take a stand on privacy and liberty? I’ll bet they wouldn’t, and that if any debate moderator were to pose the question, they too would tell us, in so many words, that the only way to keep us safe from terrorist attacks is to empower Big Brother to the max.

Sometimes its not what you say, but to whom and how you say it. And in the post-digital-explosion world the possibilities are utterly transformed.

Consider what happened with James Karl Buck.

On April 10th he was arrested in Egypt while covering an anti-government protest.¬† As he was being led off to¬† an uncertain future he sent a single word message to the Twitter.com blogging site.¬† In case you’ve¬†never looked at it, in their own words “Twitter is a service for friends, family, and co‚Äìworkers to communicate and stay connected through the exchange of quick, frequent answers to one simple question:¬†¬† What are you doing?”
When I first encountered Twitter I had two conflicting reactions.¬† The first was “you’ve got to be kidding, will anybody actually do this?”¬† The second was “why not?”¬† After all, I had witnessed inumerable¬†cell phone conversations that had no more content than the central twitter question “what are you doing.”
  
But I digress.
  
Jim Buck sent his single word message “ARRESTED” to his friends¬†via Twitter, and it was enough to make all the¬†difference.¬†¬†You can read the whole story on the web here.
 
From the Blown To Bits perspective this is a classic example of the fundamental transformation that the digital explosion¬†has wrought.¬† Information moves everywhere.¬† The degree of connectivity, the ability to convey information¬†broadly, is staggeringly different from what was available in the pre-explosion era.¬† Twitter didn’t get Jim¬†out of jail, the collective efforts of his friends did.¬† But in the absence of the web, his fate could well have¬†been quite different.¬†
 
Had the designers of the Internet not created a system that¬†could be adapted for use in ways that were not imagined by those very creators, had they not produced, in Jonathan Zittrain’s lexicon, a “generative¬†technology” James Buck might well be in an Egpytian jail today.
       

I was cutting through Harvard Yard yesterday evening on my way to the

Law School to hear Jonathan Zittrain speak about his new book when I ran into some of the loudest music I had ever heard. Wu-Tang Clan was performing on the steps of Memorial Church as part of Yardfest – a free concert for undergraduates.  Since my kids are in their mid thirties, Wu-Tang was not part of my musical experience.  They did, however, draw a big crowd.

Now when I was in school, a crowd this big would almost certainly have been for one of two things: a demonstration against the war in

Vietnam, or a demonstration in support of civil rights.  It was the sixties and those were the things that dominated campus life.  Either would have drawn a crowd, and, it’s highly likely that a couple of folks from the FBI with cameras would be there as well. J. Edgar Hoover liked to know who was attending those sorts of things.

There were no FBI folks at Wu-Tang yesterday.  That wasn’t because who attends a rap concert doesn’t matter to the FBI, it’s because pretty much everyone there had a cell phone in their pocket, and that’s all it takes to place you somewhere with decent accuracy.

Did you go to the Obama rally last October?   We can always ask Verizon.

All the technology is in place to do just that.  The phone company has to know where you are to route calls to you, and bits are so cheap these days that there’s no reason to throw them away, no reason not to keep the position history around.

I’m not saying that it’s all happening now, just that it can.  There is, however, plenty of evidence.  Consider Google maps for mobile’s ability to show where you are. (http://www.google.com/mobile/gmm/mylocation/index.html).  No need even for GPS.  And if Google can get this information in real time, who else can? This is one more example of intended consequences of technologies, one more example of the good side / dark side of bits.  If you want to be able to ask your Google to find the nearest Chinese restaurant, then the capability to track your location must exist. And if it exists, we can save it. And if we can save it ….you get the picture.