Posts about publicness

Privacy wingnuts

July 23, 2010 by Jeff Jarvis
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I’ve been looking for a classic example of so-called, self-appointed “privacy advocates” gathered by the press going off the deep-end (if you have any, please send them to me).

And then this dropped in my lap: a reputed outcry by these putative privacy advocates against Wal-Mart putting RFID tags on pants.

What could possibly violate our privacy with tracking pants in a store to make sure there aren’t too many extra-large sizes on the shelves? (That was my experience with Wal-Mart when I tried to buy sweats before my surgery; I wish they’d restocked the mediums.)

Well, say the advocates the Journal found: “While the tags can be removed from clothing and packages, they can’t be turned off, and they are trackable. Some privacy advocates hypothesize that unscrupulous marketers or criminals will be able to drive by consumers’ homes and scan their garbage to discover what they have recently bought.”

Yeah, and then what? So they find out that I bought 33/34 jeans. And with that precious personal data they will do what? Blackmail me because I’m no longer the svelte 32 I once was? Sell me illegal diet aids? Sell me ice cream? Target advertising for medium jockeys to me? Subject me to public ridicule as a pencil-necked geek?

Don’t the reporter and editor at the Journal stand back and laugh at the absurdity of this worry? Don’t they ask the next, obvious question: “Yeah, and…?” Isn’t that their job?

Ah, but they report more and find further cause for worry:

“Some privacy advocates contend that retailers could theoretically scan people with such [encoded] licenses as they make purchases, combine the info with their credit card data, and then know the person’s identity the next time they stepped into the store.”

And that would be worth the trouble and risk for the store how? That would give them more data than they already have from credit cards and other means?

So often, articles calling on “privacy advocates” leave them unnamed — anonymous and private, you understand. The Journal digs up one Katherine Albrecht, “founder of a group called Consumers Against Supermarket Privacy Invasion and Numbering and author of a book called ‘Spychips‘ that argues against RFID technology.” Group? Just how many people go to her meetings? And does the book come with tin-foil underwear? The “group” was founded to oppose grocery-store loyalty cards. Yes, we see the damage they have done to countless lives.

Her own site says that she has “earned her accolades from Advertising Age and Business Week and caused pundits to label her a PR genius.” I dare say. She next got the Journal to swallow her silliness.

Listen, I’m all for privacy. I’m working hard to define it in my book on publicness. I will vigorously defend the need and right to control one’s information. There are plenty of serious and difficult issues to discuss. But this kind of idiocy does not serve the cause. It only finds a spy under every leisure suit. In the long run, it turns the cause of privacy into an object of ridicule. And that’s wrong.

But this is often the case with technology and privacy. Technology spawns fears — and worries these advocates — because it introduces change and it’s really change that they fear. Here’s a tidbit from my manuscript illustrating the point:

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Alan F. Westin, in his influential 1967 book Privacy and Freedom … found many devices to fear: LSD “may greatly affect the individual’s daily personal balance between what he keeps private about himself and what he discloses to those around him” and could again be used for government surveillance. Westin worried about radio pills, miniature transmitters, and even about fluorescent powders and dyes—not to mention radioactive substances—that could be applied to “hands, shoes, clothing, hair, umbrella, and the like, or can be added to such items as soap, after-shave lotion, and hair tonic” to track the unsuspecting person.

Secret, miniature cameras, infrared film, microminiature microphones the size of match-heads, battery-operated tape-recorders, hidden “television-eye” monitoring, telephone tapping, “truth measurement” by polygraph tests, personality testing, brain-wave analysis, dossiers of personal data, and the means to steam open envelopes and measure TV audiences—these all concerned him. He speculated about “invisible magnetic-ink tattoos [that] might be applied (for example, to babies at birth)” and transmitters that could be implanted and “wireless, battery-operated television ‘eyes’ the size of buttons,” not to mention U-2 spy cameras from above as well as the ability to read brain signals.

Westin warned of the dangers of computers. In 1966, he wrote, there were 30,000 computers used in the U.S., 2,600 of them in the federal government. What happens, he asked, when we come to the day when “computers in the field of health will eventually establish total medical profiles on everyone in the country ‘from the hour of birth’ and updated through life. Each record will be almost instantly accessible to medical personnel.” Oh, if only.

Westin listed his fears of technology’s impact on privacy 45 years before you read this. How many of his dreads came to life? Few if any, I’d say. That is not to mock him nor even to diminish his warnings, only to put the fears technology fosters into context as we grapple with the concerns attached to our more-modern sciences.

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LATER: I looked at all the coverage I could find on Google News and I found but one piece that, like me, dared to question the “Cassandras of the privacy movement.” CNBC’s Dennis Kneale wrote:

One day RFID tags will permeate the U.S. and global economies, cutting costs for manufacturers and retailers and letting them better respond to consumer tastes. A whole new stock-sector boom could loom as well, in companies that cash in on this inevitable tech trend.

That is, unless the Privacy Police gets in the way. . . .

Um, so what is it I should fear that Wal-Mart will do with this new data horde showing that I just bought a pair of boxers? (Alright let’s stipulate: We’d be less keen on Wal-Mart’s knowing we just bought Spanx.)

The privacy guys always do this—raise well-intended but fear-provoking possibilities at the advent of most any new, promising technology. It is part of what the 1990s Internet sage, Nicholas Negroponte, called the “demonization of bits.” If a salesperson follows us around a store watching our purchases, fine; but use technology to do it and suddenly it’s Orwellian.

Playing the privacy card seems a bit antiquated in this exhibitionistic era of gleefully revealing your inner-most foibles and fetishes to potentially millions of other equally indiscreet folks on Facebook.

: LATER: RFID Journal blasts “privacy nonsense” around chips.

: UPDATE: The WSJ’s RFID expert believes that the chips are a fulfillment of an end-time biblical prophesy. Did I say wingnuts?

Google takes the FTC to school

July 20, 2010 by Jeff Jarvis
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Google just issued a response to the Federal Trade commission’s staff discussion draft on potential recommendations to support the reinvention [read: preservation] of journalism [read: newspapers]. (here was my reaction). It’s a wonderful document that takes the FTC — and the news industry — to school on the First Amendment, copyright, fair use, antitrust, media history, business, and technology. The government and publishers should be embarrassed to need such remedial education.

Highlights:

This says it best:

The large profit margins newspapers enjoyed in the past were built on an artificial scarcity: Limited choice for advertisers as well as readers. With the Internet, that scarcity has been taken away and replaced by abundance. No policy proposal will be able to restore newspaper revenues to what they were before the emergence of online news. It is not a question of analog dollars versus digital dimes, but rather a realistic assessment of how to make money in a world of abundant competitors and consumer choice.

Google’s doc leads off with promotion of its efforts to work with news organizations: Living Stories, traffic sent to news sites, technology help, and so on. They might as well just have linked to James Fallows’ paean and Eric Schmidt’s Wall Street Journal op-ed. You’ve heard these points before. My problem with them, as I’ve said, is that Google is trying to make friends with an industry that only wants enemies to blame for its failures. But at last, Google stops pulling punches and slaps down the industry’s self-deluding myths and the FTC’s dangerous ideas.

“[T]he current challenges faced by the news industry are business problems, not legal problems,” Google says,”and can only be addressed effectively with business solutions. Regulatory proposals that undermine the functioning of healthy marketplaces and stall the pace of change are not the solution.”

Google points out that newspapers’ circulation peaked between 1890 and 1920; that newspapers declared radio would kill them and only newspapers should hold the sacred and hallowed mission of news; that newspapers declared TV would kill them and characterized broadcast reporters as “parasites” (a lovely tip of the hat to Rupert Murdoch). We won’t buy that again. “The internet, rather than being the cause of journalism‘s downfall, provides a unique opportunity for news organizations to renew and reinvigorate journalism,” Google says.

Google lectures the FTC and the industry on internet business basics: “Unfortunately, the Discussion Draft does not acknowledge the basic economics of search engines and similar services and instead erroneously suggests that search engines are somehow cannibalizing newspaper advertising revenue rather than serving as an important connection to potential consumers.” Aggregators, Google points out earlier, send traffic and business opportunities to publishers. And Google does not make a significant amount of revenue from news … just as newspapers do not (subsidizing it with more lucrative verticals).

Google lectures the FTC et al on the unbundling of news. Fact o’ life. It then offers a primer on how publishers should be treating the readers who come to them via links.

Google restates the FTC’s dissection of newspaper revenue: 80% advertising, 17% newsstand, 3% subscriptions. “Pay walls,” it says, “could be an effective way to raise the 3% revenue figure.” A zinger for publishers. But Google’s fine with pay walls if publishers want them. It’s just not fine with government regulating them. “Innovating to create products and services that consumers want to pay for,” Google says, “is the only way to guarantee long-term subscription revenue growth, and none of the policy proposals are designed to foster that kind of innovation.” A zinger for the FTC (one I wish Google had dwelled on more since it does know innovation.)

Another zinger to the industry and the FTC comes as Google points out that classified revenue implosion had “nothing to do with copying or free-riding and everything to do with the emergence of a new, more effective and more efficient product into the marketplace. The FTC would ordinarily regard such a situation as a cause for celebration – consumers are getting a better product at a lower price – not an opportunity to slow down that innovation through regulation.”

Google salutes the flag the FTC raised on making government information more accessible — but then Google went the extra step to suggest “harmonization of state and federal law relating to copyrightability of government information.” There, the agreement ends.

Google decries proposals to extend copyright law and limit fair use and repeats its fine arguments against the antiquated notion of hot news from its FlyOnTheWall brief. “Facts, hot or cold, cannot be protected by copyright since there is no author of them,” Google instructs the FTC. “This has been the law of copyright since its inception….”

Google goes after proposals to establish taxes and fees to support legacy news operations. And it attacks efforts to let news organizations fix prices and charge aggregators. The doc makes the FTC eat its own words: “The FTC‘s long-standing position regarding antitrust exemptions properly subordinates a desire to advantage individual firms (here, print news organizations) to the need for a competitive, even playing field that offers the maximum good to consumers.”

Bottom line: There’s no need for the FTC’s meddling:

….Google continues to work with publishers to find ways to ensure that journalism survives and thrives on the Web. We remain optimistic about the future of journalism: The Fourth Estate is too crucial a part of a functioning democracy, and the Internet too powerful a medium, for journalism to die in transition to a Web-first approach. News organizations have more readers than ever, more sources of information than ever, more ways to report and tell stories than ever, and more potential ways to generate revenue than ever. Journalism will change, but the free market and free society will ensure that it won‘t die.

Amen and good night.

Comments to FTC 20 July 2010

Related: Here’s a segment of On the Media this week with me lambasting the FTC:

It’s still about friends

July 20, 2010 by Jeff Jarvis
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Three examples of back-handed positive coverage for Facebook:

* bNet praises the anticipated Facebook Stories campaign about the service’s 500 million friends:

Stories of communities using Facebook to come together to help a family in need; stories of finding a long-lost love on Facebook; of finally being able to easily share photos with grandpa, and so on. It will be cheesy. And it will work. Facebook will always have its detractors, but this effort will reinforce the reasons why those 500 million people got on Facebook in the first place — to connect with their fellow humans in times of happiness, sadness and hilarity. (Oh, and because people they know in the real world pressured them into it.)

This campaign is hardly genius. In fact, Facebook execs seem a little slow on the uptake in finally sharing individual users stories now — the social net has been collecting them for years. As Facebook marketing honcho Randi Zuckerberg (yes, sister of that other Zuckerberg), told AllThingsD on Friday: “In the past, it’s been all about the numbers and milestones, and we realized we had never taken the opportunity to celebrate users.” Well, duh.

“Facebook Stories” may finally show Facebook that the best way to combat constant assaults from the privacy police and regulators is with stories of Facebook-inspired engagements, how it helped raise funds for causes important to some parts of its community, and, of course, with pictures of the new puppy shared amongst far-flung family members, replacing anger with “Awwwwww.”

The writer, Catharine Taylor, just can’t resist the snark. Why? Is that the new cool: diminishing rather than understanding the motives of 500 million people? Complain about Facebook’s execution at will, but there’s a phenomenon to be understood here, not dismissed.

* MediaPost reports that those suing Facebook over its privacy changes are going to have a problem: proving damage.

The main hurdle that plaintiffs in privacy lawsuits encounter centers on the difficulty of proving damages. Simply revealing information about another isn’t seen as causing injury — at least not the kind of injury that courts compensate people for.

Facebook now is arguing that a potential class-action lawsuit against it for having changed its privacy settings should be dismissed precisely because the members who are suing haven’t alleged any tangible injuries. “Plaintiffs fail to make a single factual allegation that specifies what information, exactly, Facebook has allegedly improperly disclosed or that Facebook publicly disclosed information that any Plaintiff intended to remain private,” Facebook argues in papers filed last week in federal district court in San Jose, Calif. “Instead, the complaint relies exclusively on vague, generalized allegations that say nothing specific about the named plaintiffs or how they have been harmed by Facebook.”

Right. I’m looking at that same issue in a broader sense in my book on publicness, wondering what the real damage is in privacy matters. Apart from identity theft and stalking — crimes in their own right — it’s sometimes hard to say what the damage is other than to spark fears. But fears aren’t damages.

MediaPost’s writer, Wendy Davis, also reports something positive for Facebook but then she, too, can’t resist the slap: “Facebook reportedly is ready to announce that it now has 500 million members. But if those members don’t repeatedly return to the site, their value to Facebook is limited. And with new social networking options in the works, Facebook could decide it’s in the company’s interest to rethink its approach to privacy.” That’s one of those on-the-other-hand remarks reporters make to inject faux balance: ‘Well, I’ve just told you how 500 million people use this service and the people who are complaining apparently don’t have a legal leg to stand on but I’m still going to say that they should change.’

* And then Forbes points to this video by Casey Neistat in which he says he loves Facebook and endeavors to explain it to the poor souls who can’t figure it out but at the end says using Facebook comes at the utter destruction of one’s privacy … though the video doesn’t back that up.

A Movie for Anyone On FaceBook from Casey Neistat on Vimeo.

Complaining about Facebook has become so hip it’s square. It’s knee-jerk, obvious, repetitive. Let’s move the conversation along. Facebook represents — no, it serves — changes in society and we journalists would be wiser trying to investigate the roots behind it than trying to root against it. Yes, Facebook has been clumsy about its changes lately. Stipulated. But 500 million people can’t all be wrong. Can they?

Errata=beta=collaboration

July 19, 2010 by Jeff Jarvis
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One of my great joys researching Public Parts, my book about the benefits of publicness, is finding parallels between today and the early modern period of the 16th and 17th centuries (aka the renaissance) with the introduction of tools — the press, the stage, music, art, maps, markets — that enabled people to create publics and how that changed how the world operated (the way we are changing it again today).

Here’s one example from Elizabeth Eisenstein’s book, The Printing Press as an Agent of Change (recommended by Clay Shirky) about how errata in printed books led to collaboration.

In their early days of printing, books — and other publications — were not treated as temples of perfection, as they are today (which is why their contemporary producers — authors, editors, journalists, publishers — look down so on the ever-imperfect internet). Indeed, before Gutenberg, scribes had long entered errors into books as they were copied and recopied. Printing, Eisenstein says, both multiplied errors in so many more copies and also represented a “great leap” toward standardization because the errors were easier to find.

early printing press

Print, at first, did not step toward perfection but away from it. “[A]n age-old process of corruption was aggravated and accelerated after print,” Eisenstein says. Errors could spread farther faster (sound familiar?). It was because of the fear of what this new technology could cause that printers were fined for publishing the “wicked Bible” of 1631 (which omitted the “not” from the Seventh Commandment … look it up).

But this process of error was turned to advantage by some. Sixteenth-century editors and publishers, Eisentein says, “created vast networks of correspondents, solicited criticism of each edition, sometimes publicly promising to mention the names of readers who sent in new information or who spotted the errors which would be weeded out.” So publishing became collaborative; that’s what printing allowed.

Eisenstein quotes Lloyd A. Brown from The Story of Maps about map publisher Ortelius:

By the simple expedient of being honest with his readers and inviting criticism and suggestions, Ortelius made his Theatrum a sort of cooperative enterprise on an international basis. He received helpful suggestions from far and wide and cartographers stumbled over themselves to send him their latest maps of regions not covered in the Theatrum.

We call that transparency and collaboration now.

Eisenstein goes farther. She says that publishers “often encouraged readers to launch their own research projects and field trips…. Thus a knowledge explosion was set off. The ‘fall-out’ from Ortelius’ editions, for example, encompassed treatises on topography and local history ranging from Muscovy to Wales.” (My emphasis) She argues, according to James A. Dewar and Peng Hwa Ang in Agent of Change (a book of essays on Eisenstein), that “this feedback reversed the slow degradation of recorded thought and ushered in the era of accumulation of thought on which the Scientific Revolution was built.” Says Eisenstein: “The closed sphere or single corpus passed down from generation to generation, was replaced by an open-ended investigatory process pressing against every advancing frontiers.”

Demonstrating that there’s nothing new that’s not old, when Cory Doctorow spoke to executives of Holtzbrinck in Berlin a few weeks ago (I also spoke), he told how he is doing similar things with his latest book, giving credit to readers who find errors and constantly making the book better thanks to them. And, of course, Cory’s BoingBoing is the product of sharing and collaboration.

This attitude — from the 16th century and from Cory — changes the way we look at books and media, not as sculpture cut out of rock but as still-wet clay. The problem we’ve had in recent history — from the industrial age to today — is that we made mistakes too expensive to admit and that cut us off from correction and collaboration with our public and from the free explosion of knowledge Eisenstein talks about. But the internet — always wet — begins to fix that, doesn’t it? We go back to the future.

In fact, Eisenstein argues that the printing press fixed this exact same problem vis a vis its predecessor technologies. “The sequence of improved editions and ever-expanding reference-works was a sequence without limits — unlike the great library collections amassed by Alexandrian rulers and Renaissance princes.” Their books were static, finished and done. Printed books had editions and readers who could improve them. We lost that advantage — and attitude — over the centuries.

We also lost the openness to collaboration that this new flexibility brought. It’s not just about technology, though. It’s about a worldview, a different relationship between producer and public. Eisenstein quotes David Hume writing to his publisher: “The Power which Printing gives us of continually improving and correcting our Works in successive Editions appears to me the chief Advantage of that art.”

This cultural attitude in the early days could have just as easily gone the other way (as eventually it did anyway). Ann Blair writes in Agents of Change that in the early modern period a few “humanists called for a system of censorship, never implemented, to guarantee that only high-quality editions be printed.” How often do we hear today suggestions to license or at least anoint quality in our new, uncontrolled press?

I don’t want to make it seem as if early books were all temporary and changeable. As Eisenstein next points out, the advantage of printing was that it made permanent knowledge that had been diffuse and was all too easily lost in a few hand-made copies that could be destroyed. It was printing, she said, that enabled Thomas Jefferson to collect all the laws of Virginia, adding (my emphases):

It seems in character for Jefferson to stress the democratizing aspect of the preservative powers of print which secured precious documents not by putting them under lock and key but by removing them from chests and vaults and duplicating them for all to see.”

Bringing knowledge together and making it public is what enables the public to add to it, to correct it, to be inspired by it.

Sound familiar?

The German privacy paradox, continued

July 13, 2010 by Jeff Jarvis
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German researchers have found that—heated rhetoric about privacy aside—people are willing to give away personal information in exchange for a bargain. They’re even willing to give it away for nothing.

The Social Science Research Center in Berlin brought together 225 students at the Technical University there and offered them the chance to buy the same DVDs from two different online stores. Each store required the customers’ name and postal and email addresses. But one store also required date of birth and personal monthly income. That store also offered a one-euro discount on every item. Of 42 purchases made by this group, 39 opted to give away the additional personal information to get the discount.

What puzzled the researchers is that even when the discount was taken away, the two stores attracted equal business. “Thus the more privacy friendly firm failed to attract more customers even though prices were equal at both stores,” the study says (PDF here).

In spite of all of this, in a post-study questionnaire, 75% of the participants said they “have a very strong interest in data protection” and 95% said they “are interested in the protection of their personal information.” So they say one thing and do another. The rhetoric about privacy should perhaps be judged accordingly.

At the same time, German media and government are quite heated about privacy. The New York Times separately noted the irony that Germans by their actions don’t show such profound concern about privacy. To which a German government official who’s going after Google and Facebook told The Times that “his agency was trying to protect consumers from themselves.”

Whoa. Any time a government says it is trying to protect its citizens from themselves, beware. That is a government that is trying to get citizens to behave the way it wants them to behave, whether they want to or not. Isn’t that exactly the opposite of what government should do? And beware media that keep telling the public what it thinks they should care about whether they care about it or not. They, too, are out of touch.

Yes, privacy matters. But we need to get past the rhetoric, past the heat, and examine what people really do, what risks they are really under, what benefits they pass up when they decide not to share. That’s what my book will examine.

(Here’s my presentation in Berlin on the German privacy paradox.)

Will video become intimate?

July 12, 2010 by Jeff Jarvis
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There’s something surprisingly tragic about Apple’s latest touching, brilliant commercials for the iPhone 4′s FaceTime. At the end of each of these commercials — the first four below are vignettes about two new babies, one new hairdo, and a new set of braces — I feel a need for the people on either end to hug. But they can’t.

Now, of course, the video call only brings them closer together than a plain old telephone call could have — or an email or an SMS or (does anybody send them anymore?) a letter. That’s what makes Facetime so miraculous: it is finally almost like being there. They can almost touch. And that’s what’s tragic: they can’t.

This is to say that FaceTime is terribly intimate. And that’s what struck me, too: In an instant, the video of the people shifts from broadcasting to intimacy, from making a YouTube video millions may see to making a call for one. Is this how we’ll use video now, to connect two-at-a-time? Or will that now seem smalltime? Will we use the front-facing camera to face the world still? Will video be public still or private?

I don’t know the answers to those questions. We’ll know only when these tools get into the hands of enough people — and when developers use the camera to create new applications and when AT&T gets its act together so we can use the camera anywhere, not just on wifi.

Maybe the original video vision of Seesmic (before it became a Twitter app) comes to life: we hold video conversations. Maybe the camera only makes it easier for anonymous pervs to peddle their penises on Chatroulette. Maybe we walk away creation toward communication. Maybe we leave time-shifting for live. Maybe we invent new forms of phone sex. Maybe Leo Laporte uses them to reinvent the podcast and cable news uses them to reinvent vox pop. Or maybe nothing changes as we already have cameras everywhere; these are merely more portable.

Watch the commercials and see what visceral ping it elicits in you.

See MC Siegler breaking down the emotional appeal of the iPhone ads on TechCrunch here and here.

Publicness bibliography

July 7, 2010 by Jeff Jarvis
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A few of you asked for my bibliography of sources for my research on publicness. Here are some key books so far (I don’t mean to show off with the German entries; I’ll be lucky if I can dig into them but I hope to try). Dates (usually) refer to first publication. This does not include many newspaper articles (many great ones from the NYTimes at the turn of the last century), blog posts, and online essays.

Arendt, Hannah; The Human Condition; Chicago; 1958

Benkler, Yochai; The Wealth of Networks: How social production transforms markets and freedom; Yale; 2006

Bok, Sissela, Secrets: On the ethics of concealment and revelation; Vintage; 1983

Brin, David; The Transparent Society; Basic Books; 1998

Calhoun, Craig; Habermas and the Public Sphere; MIT; 1992

Cayley, David; The Origins of the Modern Public, a series of CBC Radio’s Ideas; 2010.

Cowan, Brian; The Social Life of Coffee: The emergence of the British coffeehouse; Yale; 2005

Febvre, Lucien and Martin, Henri-Jean Martin; The Coming of the Book: The impact of printing, 1450-1800; Verso; 2010 (third edition)

Franzen, Jonathan; How to be Alone; Picador; 2002

Girouard, Mark; Life in the English Country House; Yale; 1978

Gould, Emily; And the Heart Says Whatever; Free Press; 2010

Habermas, Jürgen; The Structural Transformation of the Public Sphere: An inquiry into a category of bourgeois society; MIT; 1989 (originally published as Strukturwandel der Öffentllichkeit, 1962)

Habermas, Jürgen; Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research; Communication Theory 16, 2006

Jackaway, Gwenyth L.; Media at War: Radio’s challenge to the newspapers, 1924-1939; Praeger; 1995

Kirkpatrick, David; The Facebook Effect: The inside story of the company that is connecting the world; Simon & Schuster; 2010

Lane, Frederick S., American Privacy: The 400-year history of our most contested right; Beacon; 2009

McKeon, Michael; The Secret History of Domesticity; Johns Hopkins; 2005

Mills, C. Wright; The Sociological Imagination; Oxford

Münker, Stefan; Emergenze Digitaler Öffentlichkeiten: Die sozialen median im web 2.0; Suhrkamp; 2009

Munson, Eve Stryker, ed.; James Carey: A critical reader; University of Minn.; 1997

Nissenbaum, Helen; Privacy in Context: Technology, policy, and the integrity of social life; Stanford Law Books; 2010

Postman, Neil; Amusing Ourselves to Death: Public discourse in the age of show business; Penguin; 2005 (20th anniversary edition)

Potter, Andrew; The Authenticity Hoax: How we get lost finding ourselves; Harper; 2010

Prosser, William L.; Privacy; California Law Review, August 1960

Rosen, Jay; What Are Journalists For?; Yale; 1999

Scharr, Peter; Das Ende der Privatsphäre; Goldmann; 2007

Sennett, Richard; The Fall of Public Man; Norton; 1974

Shirky, Clay; Cognitive Surplus: Creativity and generosity in a connected age; Penguin; 2010

Simons, Martin; Von Zauber des Privaten: Was wir verlieren, wenn wir alles offenbaren; Campus; 2009

Solove, Daniel J.; Understanding Privacy; Harvard; 2008

Spacks, Patricia Meyer; Privacy: Concealing the eighteenth-century self; Chicago; 2003 (A surprising gem)

Starr, Paul; The Creation of the Media: Political Origins of Modern Communications; Basic Books; 2004

Vaidhyanathan, Siva; Naked in the ‘Nonopticon’; The Chronicle of Higher Education; February 15, 2008

Veyne, Paul ed.; A History of Private Life (five volumes); Belknap Harvard; 1987

Warner, Michael; Publics and Counterpublics; Zone Books; 2002

Warren and Brandeis, The Right to Privacy, Harvard Law Review, December 15, 1890

Westin, Alan F.; Privacy and Freedom; Atheneum; 1967

Wilson, Bronwen and Yachnin, Paul; Making Publics in Early Modern Europe: People, things, forms of knowledge; Routledge; 2010 (affiliated with the Making Publics project

There is no hot news. All news is hot news.

June 28, 2010 by Jeff Jarvis
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The most dangerous defensive tactic parried by legacy news organizations today is their attempt to claim ownership of “hot news” and prevent others from repeating what they gather at their expense for as long as they determine that news is still hot. It is a threat to free speech and the First Amendment and our doctrines of copyright and fair use. It is a threat to news.

The old companies — NY Times, Advance, Gannett, Belo, McClatchy, Scripps, AFP, AP, Washington Post, et al — are lining up against the new companies — Google and Twitter — on hot news as they file briefs in the TheFlyOnTheWall.com case. I’ve just read both briefs and will give you highlights in a moment.

Hot news also makes an ominous appearance in the Federal Trade Commission’s thinking about rescuing legacy news companies as it proposes a constitutionally abhorrent doctrine of “proprietary facts.” And hot news is a factor in the dissemination of Rolling Stone’s story about Gen. Stanley McChrystal, which the Times’ David Carr writes about today, scolding Time and Politico for reproducing the story because RS hadn’t (and because it was so hot).

Hot news refers to a 1918 case, INS v. AP, in which one wire service — barred from transmitting news from Britain in the war — rewrote the others’ news for its clients three time zones away. It was cited in the Fly case, in which brokers — Barclays, Merrill, Morgan Stanley, et al — complained that the web site repeated its analysts’ recommendations. Now news companies want to use hot news to restrict aggregators and others; Google and Twitter are trying to cut them off at the pass.

Hot news is ridiculously obsolete. What’s hot today? As Tom Glocer, head of Thomson Reuters, said, his news is most valuable for “miliseconds.” Hot news limitations should be repellant to journalists, even desperate ones, because every journalist builds on the facts revealed by others. It should further be repugnant to them as it constitutes a form of court-supervised prior restraint. Hot news restrictions would be suicidal to news organizations — even though they foolishly think it would protect them — because it would restrict everyone’s ability to spread the news via links and send journalists audience. Hot news should worry every citizen because the free flow of information is vital to a democracy.

The architecture of news and media — how it is gathered and shared — has changed utterly since 1918 … and 1998. That’s what makes the Rolling Stone story instructive. McChrystal’s quotes leaked and spread instantly, having significant and instant impact on news and the affairs of state. The fact of the quotes was hot news indeed. As I asked four days ago, under hot news, would the magazine have been able to prevent others from repeating these facts? Ridiculous, no? Because Rolling Stone did not publish its own story online and because it was so hot, Politico and Time published PDFs of it — even though Time is a party to the Fly brief — which Carr perhaps rightly scolds them for. But maybe he should also scold Rolling Stone for not recognizing the importance of its news and recognizing the opportunity in sharing it. Once Rolling Stone did put the story on the web, the other publications linked to it. The link economy works when given a chance. So does the First Amendment.

“Once facts are made public,” says the Google-Twitter brief, “they belong to the public.” Once McChrystal’s quotes were known, they were part of the democratic dialog. To restrict us — anyone — from repeating them is to steal from the public. (That is a key argument in my next book.) “The reporting of truthful information,” says the brief, “is one of the most protected forms of speech under the Constitution…” These parties aren’t just fighting about old and new media. They are fighting about the nature and value of the public sphere.

The two briefs illuminate the worldviews of the two camps all too clearly. The legacy companies’ brief argues that hot news is “necessary to protect the news industry’s incentive to gather and report news….” It complains about “free riders” who may repeat their news at lower cost. “One of the greatest concerns among news originators,” they say, “is inexpensive technology that allows easy aggregation of news.” The legacy companies nowhere even acknowledge the economic value of links to their news.

The news companies complain about newspapers going bankrupt, not acknowledging that fate came as the result of high debt and mismanagement. They even have the balls to whine that news is a “low-margin business under economic pressure” (though not long ago, it was a high-margin monopoly). They say they are not going after occasional use of others’ facts — since they all do it — but instead the “systematic” (read: computerized) gathering of their news. They do not acknowledge the tools — robots.txt — that allow them to cut off aggregators. It’s an intellectually disappointing, morally weaselly attempt to get anticompetitive aid from the courts while blithely ignoring the profound constitutional implications for news and the democracy.

The Google-Twitter brief issues many calls to the importance of free speech and news in a democracy that only a few years ago the news organizations would have been saluting. It cites a 1991 case, Feist Publications v. Rural Telephone Service, in which the court said that “[t]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Thus even competitors “remain free to use the facts contained in another’s publication to aid in preparing a competing work.” Says the brief: “Central to Feist is the rejection of the notion that ‘sweat of the brow’ can itself create intellectual property rights. ‘The primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.”‘” Hot news, they argue, “attempts an end-run around the Copyright Clause.”

Google-Twitter remind the court that news organizations all use each others’ facts: TV stations repeat newspapers’ reporting without attribution and now newspapers do the same to TV. Indeed, the brief says Feist establishes that “the freedom to use facts — even to “free-ride” on facts gathered by others through great effort — is constitutionally protected. Friend Spencer Reiss just told me how he moved mountains to cover Nelson Mandela’s release from prison in time for a hard Newsweek deadline only to find that his editors in New York got what they needed from TV. That is our news ecosystem; it’s not new, only bigger and faster.

“In a world of modern communications technology,” the Google-Twitter brief says, “where anyone with a cell phone may disseminate news throughout the world even as it is occurring, the notion that a single media outlet should have a monopoly on time-sensitive facts is not only contrary to law, it is, as a practical matter, futile.” They worry that news organizations would pay sources not to cooperate with competitors and that judges would become “super-editors” determining the hot time period of, in their example, news about the Times Square bombing.

Worse, even the fear of litigation would “chill the lawful dissemination of important news by fostering uncertainty among news outlets as to how long they must ‘sit’ on a story before they are free of a potential ‘hot news’ claim.” During last week’s damaging storms in the New York area, I saw a Long Islander complain that by keeping its news behind a wall, Newsday was ill-serving the safety of its community. Says Google-Twitter: “Breaking news may involve a threat to public health or security, but the district court’s opinion, if affirmed, would stifle the dissemination of such crucial facts — a particularly dangerous outcome in circumstances where the time-sensitive nature of the event is the precise reason why the facts should be widely disseminated as quickly as possible.” If Newsday has a better forecast than a competitor, could it keep the fact of a warning of danger to itself?

In the U.S. and Europe, news organizations are trying to extend copyright and limit fair use but the Google-Twitter brief is eloquent in objection. “Under Feist, this Court has repeatedly confirmed that facts must remain in the public domain, free from any restraint or encumbrance.” It quotes another case: “[A]ll facts — scientific, historical biographical, and news of the day … may not be copyrighted and are part of the public domain available to every person.” Another: “[R]aw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Another: “[A]llowing the first publisher to prevent others from copying such information would defeat the objectives of copyright by impeding rather than advancing the progress of knowledge.” Do news organizations truly want to oppose the progress of knowledge?

Says the Google-Twitter brief: “The modern ubiquity of multiple news platforms renders ‘hot news’ misappropriation an anachronism, aimed at muzzling all but the most powerful media companies. In a world of citizen journalists and commentators, online news organizations, and broadcasters who compete 24 hours a day, news can no longer be contained for any meaningful amount of time.” This fight sn’t just about a few huge companies. This fight is about our rights.