Convergences

Facebook without Faces? Musings on Privacy and Change

That which is not explicitly permitted, is forbidden. That which is not explicitly forbidden, is permitted. Two competing models of thinking about policy and law. I find these interesting to bear in mind in considering the current policy debate about privacy online, which I rejoined on June 18 at the American Constitution Society’s 2011 Convention (they have video of the panel posted here).

The privacy debate has been going on now in full throttle for over a decade. In 1998 I wrote a fun paper on privacy, Privacy As Censorship:  A Skeptical View of Proposals to Regulate Privacy in the Private Sector. My post-ideological views of regulation today are somewhat different. Today, perhaps both the private sector and consumers would benefit somewhat from more clarity as to their rights and duties in this space. However, I agree with my past self in thinking that there is considerable tension between innovation and free speech on the one hand, and privacy on the other.

The current flap about Facebook’s rollout of technology that helps users tag their photos by recognizing faces is a case in point. Facial recognition technology seems kind of scary, as seen on tv. But much of this reaction is irrational. Every human being is in significant part a facial recognition device—being social animals, doing this sort of thing is important to us. Our own brains are designed to be quite good at it. Some details on the way it works in humans are covered at LiveScience and Science Daily.

Now, the rollout of the technological equivalent on a large scale has a different potential impact than facial recognition by biological humans, including a potential for mischief—but also potential to do good. Alas, the current coverage of the issue is such that speculation about potential harms is rampant—and the potential benefits almost entirely neglected. Alarmism sells better than good news. But this makes a poor basis for policy that affects innovation.

If one is bound to speculate about alternative futures, commitment to fairness and balance means devoting at least as much energy to possible positive outcomes (ranging from the trivial, such as time saved in tagging photos, to the nontrivial, such as use in identifying bad guys or abducted kids) as possible negative ones. Or hold off on speculation until real harms have been identified—along with the actual perpetrators. (And note that some of the pressure to push for more restrictive privacy rules for online services stems from the fact that enforcement against actual perpetrators of things like online fraud or stalking tends to need improvement).

Those who seem about to let a speculative parade of horribles drive innovation policy also rarely do so consistently. One panelist argued that Facebook should be held morally responsible for downstream abuses of their technology—even potential abuses. But if we are painting with the broad brush of moral culpability, well, what about others who work to advance facial recognition technology? There are all sorts of researchers who could be pilloried, unless one is bound on insisting, a la Plato, that researchers as “philosopher-kings” and should be exempt from the rules that govern the rest of us. One researcher mentioned by the panel ran an experiment showing that facial identification technology could be used to photographs to names and then to social security numbers (an example of similar research is here—not the same study discussed by the panel). But if someone might use Facebook’s technology to make mischief, well, someone might use such an academic paper as a nice blueprint for how to conduct identity theft. 1) If one is concerned with moral responsibility (rather than legal liability narrowly conceived) why a social networking service would be blamed for downstream abusers but a researcher not be makes little sense. Facebook’s rollout is commercial, certainly—but professors do not work for free, and many end up with lucrative consulting contracts related to their research.  2) Some might note that Facebook goes a step beyond the researchers in actually supplying the technology, often a distinction useful in considering legal liability, but in the vast array of other contexts in which online services do nothing more than supply platforms or tools capable of mischief—such as illegally distributing copyrighted content, for example—very few think that online services automatically should be liable for that, and none would impose liability when no actual harms have been reported.  If one is concerned with innovation policy, it makes little sense to support the development of new ideas only so long as they are not commercially developed. If one’s goal is gaining knowledge of the larger consequences of facial recognition technology, well, as much or more is likely to be learned from Facebook’s rollout than from academic research.

One might also think about the controversy as an illustration of the conflict between free speech and broad privacy rules. An advertiser-supported magazine article detailing exactly how to write facial recognition software or use it on Facebook images would be protected by the first amendment; several courts have ruled that software itself is a form of free speech. Facebook has in essence provided user with an editing and publishing tool, another angle on the free speech question. How exactly a court would view all this (commercial speech doctrine and all) is well beyond the scope of this blog—but that there is a fundamental conflict seems undeniable.

One set of questions legitimately raised by the rollout of new services by online sites involve contract law. How should we view changes to a site’s practices and policies that are introduced after one has signed up? Is it enough that one may cancel one’s account and that the EULA reserves the site’s right to make changes? Even if not, certainly in the online environment consumers are unlikely to benefit from a rule that a site’s first offerings are set in stone.

All for now.
-SS

Review of Paul Seabright's The Company of Strangers

Paul Seabright's book The Company of Strangers: A Natural History of Economic Life is one of the most interesting and thoughtful works I have read in decades, and I highly recommend it to anyone interested in public policy and economics, especially those working in international development, environmental studies, finance, or international relations.

Seabright begins by asking some fundamental questions about human economic life. One of the most puzzling of these is, given that it is almost unheard of for animals, including our own prehistoric ancestors, to cooperate with anyone outside of their own family, how are modern societies based on trust, in which one routinely deals with total strangers and non-relatives, possible? He goes on to explore the history of prehistoric and modern developments which make cooperation with non-relatives possible. In the course of this exploration he explores money, markets, property, military defense, agriculture, cities, language, writing, the banking system, and other vital institutions.

On the way, he develops the theme of human "tunnel vision," the tendency of individuals to act according to their own individual preferences, without regard for the consequences of this for the group as a whole. Sometimes these consequences are good, including, with the spread of trade and markets, rising standards of living even for the poor--and sometimes bad, like pollution. (Other economists, like James Buchanan and Viktor Vanberg, have developed similar themes in their paper on "action interest" versus "constitution interest," in which the individual's narrow self-interest is contrasted with the interest of the group as a whole. Adam Smith's "invisible hand," John Locke's concept of the "common good," and the concept of the "general welfare" referenced in the U.S. Constitution are working the same territory). 

As I proceeded through the chapters in this book, I became very curious to see where the author was going with all this. In wrapping up, he presents several main points. One of these is that globalization is the natural outcome of thousands of years of the evolution of the human mind and human institutions. The second is that although globalization has many benefits, it will also give rise to serious problems in some quarters--and human evolution does not naturally equip us to resolve these problems easily. Some new practices and institutions might be needed (he does not try to specify what these might look like). He also warns about the dangers of the current trends in the balance of power. With the United States so easily able to dominate the rest of the world in conventional military might, trust will be very hard to build and maintain. Thus in a nutshell, he cautiously defends globalization, and warns against overuse of military power. This is all very much worth thinking about and worthwhile.

Reading the book today, however, some years after it was written, I must say that the ideas he develops in the first part of the book about trust and human institutions, now lend themselves to speculation about political crises other than concern with globalization. One example is the trouble with balancing national budgets which has come to the fore in the past year or so. There is good bit of tunnel vision underlying this; everyone seeks to take from the federal coffers, as if they were bottomless--but the money must come from somewhere, and such a system is not sustainable in the long run. And, perhaps related to this, as if everyone were half expecting to be called on to pay this very large piper, there is a general crisis of trust.

One of the subjects that Seabright explores is the question and how problems that arise--crises in trust, pollution, unemployment--are resolved. Markets, though fragile, can be self-correcting at the micro level, though this can be painful. Sometimes, though, new institutions and rules evolve, and sometimes can be designed through an intellectual and political process. But the design process itself is a human one, beset with problems of tunnel vision.

I hope that next, therefore, Seabright will tackle the question of whether the systems and forces he identifies have natural limits--whether there are some problems that will systematically fail of being corrected at any level. That is, it it would be comforting to think of the evolutionary process he describes (in which problems develop, followed by solutions at one level or another, followed by the next set of problems and solutions arising in turn) goes on forever, with the problems humanity must confront being of a progressively higher order. But it seems more likely, since the process of improvement is an accidental one, resulting from the fortunate confluence of a lot of factors, that at some point, at some level of complexity, at some scale, or at some scope, that human institutions like democracy and markets will reach the limits of their effectiveness, and we will be stuck with systemic problems that require a whole new order of solution to resolve.

Just how hard it is for human beings to escape their own situation of individual patterns and preferences, and the institutions that had adapted to cope with these patterns, I explored for myself in the weeks following my reading of this book, as a sort of thought experiment. As I went about my business during the day, I tried to be conscious of the larger consequences of my actions for others, particularly when my actions imposed costs on others without my directly being aware of them. The effect of this kind of consciousness can be, I found, at times quite paralyzing. Throwing away garbage, in particular, becomes a depressing act, but still unavoidable, as it certainly cannot stay in the house. Engagement in markets (aka shopping!)  was made more enjoyable; it is amusing to be more aware of the highly evolved levels of trust required for this seemingly simple act, and how it would go against the grain for other primates. 

On the whole, an excellent book, though for every insight it offers one finds a new cause of frustration. Understanding the origins of problems is only one small step towards fixing them. It sometimes seems as if humanity is more likely to happen upon effective rules and institutions mainly be accident, in an endless and brutal process of trial and error, than by deliberate design.

Are confusing and conflicting patents the same as NO patents?

Nanotechnology

I recently read “Patenting Nanotechnology” by law prof Mark Lemley. Excitement about (and fear of) nanotechnology seems to be waning rather than waxing. The article nonetheless includes a curiously paradoxical line of argument about intellectual property that I think is worth setting out in detail.

Presently there is some concern that there are already too many overlapping nanotechnology patents, and/or too many nanotechnology patents that cover basic research concepts as opposed to actual useful products. A number of observers have warned that these patents could interfere with ongoing nanotechnology research. This is a familiar theme over the past couple decades of patent scholarship.

Of course, patents (with all their warts) were around during the nineteenth and twentieth centuries, too, when a lot of important advances were made in technology. All kinds of things from sewing machines to radios were developed, and it all worked out okay in spite of much patent nonsense being involved.

Now, here is where Mark comes up with a twist on the familiar arguments. To help make his paper about nanotechnology more interesting, he seems to want to build up the case that nanotechnology is different from earlier technologies, so that the patent system might cause problems for nano that they did not cause for earlier technologies. So he goes through each earlier technology in some detail, and argues that in each case, in effect, for each of these key earlier technologies, patent protection was in effect non-existent. In the case of sewing machines, for example, the patents were tied up in litigation; in the case of radio, WWI intervened and the patents were taken over by the government.

Therefore, he argues, nanotechnology will be the first important technology that is in effect actually protected by patents. He goes on to conclude that there is no reason to worry about this yet. This conclusion seems sensible enough. So… what?

With his argument that previous key technologies were in effect devoid of patent protection as a practical measure, even though they were patented, well, he’s created a mythical monster, the worm who eats his own tail. I don’t think he fully realizes this, so I will play with the idea a little bit.

The argument is, in effect, that when a technology is tied up in patents to such an extent that no one has a clearly enforceable right to it… well, in effect, this is just the same as the technology’s having no patent protection at all. It’s a free-for-all. 

If this is right, well, no need to worry about the anti-commons then, is there, not for nanotechnology nor for anything else. If the muddle with patents gets bad enough, well, everyone just ignores them, or stakes his own claim, or the whole business gets swept aside with compulsory licensing. On the other hand, if all these key technologies developed in a free-for-all, why bother with a patent system at all?

To which I say, hold on a minute! First, just because patents end up getting into a legal muddle after a technology is developed, does not mean that the incentive system that patents creates was not important to their initial creation. Investors are looking to the future, and if things don’t turn out as well as they expect, they’ll have to make the best of it. But that doesn’t mean that our ground rules can treat future expectations as irrelevant to investment.

Second, even if patents get tied up in litigation, well, is this the same thing as having no patent protection at all? In the case of sewing machines, yes, there was a lot of litigation. But there were a limited number of parties to that litigation, and ultimately it was all sorted out (Adam Mossoff’s paper on this offers details).

What I end up taking away from Mark’s paper is this:

--The problem of too many patents (or patents on the wrong sort of idea) is unlikely to emerge as a practical barrier to scientific or technological development for a wide variety of reasons.

--The problem of too many patents (or patents on the wrong sort of idea) is nonetheless worth thinking about, because systemic problems might affect whether investors are likely to see returns on their investment. Mind you, the effect is likely to be small, compared to other factors like entrepreneurial skill in producing and marketing a new idea.

--Too many patents might create a situation similar to the situation one would see with no patents at all, but the details matter. But accepting this idea without looking closely at the context could do quite a lot of mischief.

Mark, being tolerant, will forgive my wrenching his argument out of its context.

-SS

Dominant Information & Climate Change

Many years ago, I worked for the Program Analysis Office of the U.S. Bureau of the Budget (yes, this was before the M was added to OMB; it was just BoB).

One of the things we learned was the extreme difficulty of analyzing government programs. The variables are too many and too uncertain, and one quickly winds up following chains of abstract conjecture that have little relation to reality. So we learned to look for Dominant Information -- facts determinative of outcomes under wide varieties of assumptions -- call it DI.

For climate change, such DI is now available, and it is not good for Al Gore.

CO2 is indeed a Greenhouse Gas (GHG). It absorbs outgoing radiation on particular wave lengths, with a resultant warming effect. On this, there is no scientific dispute. The question is whether this effect matters. Looking at CO2 alone, it does not. The effect would be quite small. To get to the predictions of doom, and thus to justify the destruction of industrial civilization, requires computer models based on the assumption that the small initial effect of CO2 is somehow amplified by positive feedback mechanisms.

Some 20 climate change models exist, and every one of them assumes that such positive feedback exists, and thus that a minor uptick in CO2-induced warming will cause a major upward movement in temperature. Note the "assumes"; there is no empirical evidence of this.  If the assumption is wrong, if there is no positive feedback, then the problem becomes negligible.

(Why does every model make the same positive feedback assumption, you might ask? Probably because any model that assumes anything else would not show a problem, and that is no way to get the government to renew the builder's grant for next year.)

Recent empirical work indicates that this assumption of positive feedback is in fact wrong, that the actual feedback mechanisms are negative. See Lindzen (p.4); Carlin (pp.13-27). This means that the models of disaster not only have no empirical support, but that they are contradicted by the only empirical evidence that has been found.

This, my old BoB bosses would have said, is DI, in a pretty pure form.

As Lindzen says:

In a normal field, these results would pretty much wrap things up, but global warming/climate change has developed so much momentum that it has a life of its own – quite removed from science. One can reasonably expect that opportunism of the weak will lead to efforts to alter the data (though the results presented here have survived several alterations of the data already). Perhaps most important, these results will of necessity ‘offend the sensibilities of the of the educated classes and the entire East and West Coasts,’ and who would want to do that.

The tech world should be interested in this, because it is incredibly energy dependent. Tech as we know it cannot survive an energy drought. 

For more on the implications, see more Alan Carlin comments.

Open Government, Climate Change & Science

At The American: Opening a Can of Worms: Government and Climate Change Data, which examines the Administration's drive for Open Government in the context of the recent climate change science exposes. 

Questions are also being raised about data underlying climate change work in the U.S. See, e.g. 

Daniel Henninger has a fine column in the WSJ today making the point that the crisis is not just of climate change policy but of Science as an institution. For years, the proponents of drastic and economically painful actions have wrapped themselves in the toga of "science says," with little contradiction by the scientific community as a whole. Indeed, those scientists who have disagreed have been attacked vehemently. 

I don't think most scientists appreciate what has hit them. This isn't only about the credibility of global warming. For years, global warming and its advocates have been the public face of hard science. Most people could not name three other subjects they would associate with the work of serious scientists. This was it. The public was told repeatedly that something called "the scientific community" had affirmed the science beneath this inquiry. A Nobel Prize was bestowed (on a politician).

Global warming enlisted the collective reputation of science. Because "science" said so, all the world was about to undertake a vast reordering of human behavior at almost unimaginable financial cost.

So it appears that important data was lost, analytic methodologies corrupted, and the enterprise turned to political ends -- without a peep from all but a few members of the scientific community.

That community better push hard for the U.S. government to open everything up so it can self-correct.

The WSJ also ran a poll asking readers if they believe in human-caused climate change. The vote was 9-1 against. Granted, WSJ's readers are a conservative lot, but they are also well-informed, and that split is incredible.

 

Strange Days

The tech sector of the economy needs energy like an organism needs air, the cheaper and more reliable the better. So tech's indifference (or endorsement) of various schemes to make energy more expensive and less reliable have never made sense, especially given the growing scientific doubts about the validity of the climate change hypothesis.

To complete the upside-down quality of the debate, for truth one can now go to -- Pravda, and "The American Self-Immolation,Truly a Sight To See":

That brings us to Cap and Trade. Never in the history of humanity has a more idiotic plan been put forward and sold with bigger lies. Energy is the key stone to any and every economy, be it man power, animal power, wood or coal or nuclear. How else does one power industry that makes human life better (unless of course its making the bombs that end that human life, but that's a different topic). Never in history, with the exception of the Japanese self imposed isolation in the 1600s, did a government actively force its people away from economic activity and industry.

Even the Soviets never created such idiocy.

Open Season

A new D.C.organization has come into existence:

The mission of [Open Source for America] is to educate decision makers in the U.S. Federal government about the advantages of using free and open source software; to encourage the Federal agencies to give equal priority to procuring free and open source software in all of their procurement decisions; and generally provide an effective voice to the U.S. Federal government on behalf of the open source software community, private industry, academia, and other non-profits.

So far, so good. For companies to support Free & Open Source Software (FOSS) is a legitimate business choice, a mechanism by which they engage in cooperative efforts to commoditize the software portion of the hardware/software/service package so as to leave more profits for the other two parts, or scope to sell complementary offerings. Software-focused companies, such as Microsoft, have a mirroring strategy of commoditizing hardware and reducing the need for services so as to make the software portion of the package more valuable.

So there is no problem here as long as the advocacy is limited to touting the benefits of FOSS as a business approach -- even Microsoft hops on this bus occasionally -- and advocating a level playing field. Users, including governments, should indeed consider whether FOSS provides them with the best products at the lowest total cost of ownership.

Problems could arise, though, because FOSS has always had an ideological as well as a business side, and quite a few members of the OSA Steering Committee are from this side of the movement. So OSA could easily segue into lobbying for FOSS based on ideological rather than commercial arguments. It will be interesting to see how the "level playing field" language works out in practice.

Dana Blanklenhorn of ZDNet takes a candidly cynical view of the enterprise, with the headline "Open source actively lobbies for a piece of the federal pie," and the observation:

The key player here, however, is Sun Microsystems. People affiliated with Sun and its contracting unit, SunFederal, dominate the group. This is not obvious just looking at their board of directors, but a little Google work brings it into focus.

Can Science Rule Society?

The Obama administration has been greeted with enthusiasm by scientists who see the potential for “research-based policy.” Reason, not ideology, will govern. The New Scientist, among other zines, headlines “Let Science Rule: the Rational Way to Run Societies.” (May 28, p. 40-43) This is part of a larger theme: Behavioral economics is taking off.