For the London Free Press – August 11, 2008

Read this on Canoe

An American judge’s recent order requiring YouTube to release information to Viacom in a US$1-billion lawsuit had many privacy advocates in an uproar – and rightly so.

U.S. District Court Judge Louis Stanton recently ordered Google to hand over all YouTube viewership records.

Viacom sought this order to determine whether pirated content is more popular than non-pirated content, which would indicate that YouTube has a financial interest in allowing this practice and encouraging the violation of copyright laws.

YouTube is owned by Google. Viacom is suing Google for not protecting copyrighted materials. The lawsuit deals with copyright and materials published on YouTube, a controversial subject to begin with.

Many privacy advocates publicly displayed their rage and frustration against the order. In a July 3 commentary, the Washington Post’s Michael Arrington writes, “Judge Stanton is a moron. And Google simply cannot hand this data over without facing a class action lawsuit of staggering proportions.”

Though other privacy advocates have not been as blunt, they have voiced their opinion in the media, including on YouTube’s website.

The reason for their frustration is that although Viacom is to use the information for the sole purpose of litigation, there is no assurance it would not use the information for other improper and unintended purposes.

The information to be handed over to Viacom included viewers’ login IDs and IP addresses, which could be used to identify those individuals, their searches and what they have viewed online.

Many advocates have suggested that there are other ways to satisfy the needs of the lawsuit without releasing the information and that those options should have been explored before the order was granted.

One option would have been to take information out of the data that could be used to identify YouTube users. The loud outcry by many privacy advocates may have had an influence on Google and Viacom’s decision to agree to this approach. In short, the agreement is that the information handed over to Viacom will not be usable to identify YouTube users either directly or by reverse-engineering.

Not everyone is of the view that the Google-Viacom agreement will resolve the privacy issues raised by the order. Some privacy advocates are still frustrated and believe the database cannot be made truly anonymous and that some private user information is bound to be released to Viacom.

Though Stanton’s order was granted in an American court, Canadian YouTube users are affected by this decision.

Ontario Information and Privacy Commissioner Ann Cavoukian publicly urged Google to appeal Stanton’s ruling. She is of the view that users cannot be fully protected from the improper use of the information.

“It is not acceptable to allow copyright enforcement to come at the expense of users’ privacy,” she said.

There are two important lessons here. First, litigators and courts need to consider privacy issues when dealing with third-party information and limit its use as much as possible. Second, businesses should keep as little personal information as possible for as short a time as possible.

I received an email yesterday from the publisher of the Shelly Palmer blog pointing out a post entitled Senator Ted “Tubes” Stevens Indictment is Appropriate Metaphor for U.S. Communication Power Shift .  It uses Senator Ted “Tubes” Steven’s famous remarks to focus on the question of how tech savvy our political leaders are.  As the post points out, its scary that “Tubes” is the Vice Chairman of the Senate Committee on Commerce, Science, and Transportation and a member of the Subcommittee on Science, Technology, and Innovation. 

The post states:

Taken together, I started to wonder how would our current presidential candidates describe the Internet and its associated technology? Do they have a firm grasp on the issues surrounding our telecommunications future? Do they know what the technical limitations of the medium are? Is either candidate ready to lead us past the information age into the age of cloud computing, reduction mapping and explosive data?

The context of the post is the US presidential election – but its something we in Canada and indeed every country should ask ourselves.  To take it one step farther, we should ask if in addition to the technical issues, our elected officials understand the related social issues, and the expectations and understanding of a younger generation that has grown up knowing nothing but the Internet and the tools and opportunities it brings.

While Stevens’ “Tubes” remarks refers to pipes, the equivalent electronic metaphor might be vacuum tube politicians in a microchip age.

For example, there are many things in recent Canadian copyright bills that suggest the answer to those questions is no – and that no seems to be accross party lines.

Its all kind of scary if you ask me.

Digg has a post that refers to a Valleywag post that pokes fun at the fact that Apples stores use Windows Mobile devices to ring up orders on the store floor.

Its amusing to glance at the comments to the posts to see the Apple vs Microsoft camps do battle over that fact.

That’s the title of a post I just made on Slaw.

It reads as follows:

Simon Fodden noted in a post a couple of days ago that a couple of copyright commenters have stopped commenting because “the current state of copyright law is truly depressing”, or “ “corruption” of the political process”.

IMHO, one of the problems with the current state of copyright law is that legislators, lobbyists, interest groups and lawyers are for the most part all so bogged down in the details that they fail to see the big picture and fail to go back to the fundamentals to think things through.

As lawyers we are (or at least we should be) good at dealing with details. But lawyers and legislators need to remember that the details are just a subset of a bigger picture. Without that 40,000 foot level context to fit them in, the details can easily lead us astray. It’s easy to get so mired in the minutia that we derail, delay or compromise the bigger goal of the exercise.

It’s always worth taking some time to step back and think about fundamental goals or basic principles, even if they seem obvious.

This is true for many things, including legislation, contract discussions, and settlement negotiations.

So for copyright in particular, legislators need to first take a step back, and consider why it exists in the first place. Also consider the modern and potential future marketplace and technology. If, for example, some copying is beneficial or harmless to the copyright holder, how draconian does the legislation really need to be?

While the answers to those fundamental issues themselves are not without controversy, it at least makes it a lot easier to think through the positions of the various points of view and lobby groups.

The Electronic Frontier Foundation just issued a press release announcing the release of “a software tool for customers to test the integrity of their Internet communications”.

The intent is to be able to see if ISP’s are modifying traffic in violation of network neutrality principles. 

The press release states:  “Until now, there hasn’t been a reliable way to tell if somebody — a hacker, an ISP, corporate firewall, or the Great Firewall of China — is modifying your Internet traffic en route,” said Peter Eckersley, EFF Staff Technologist and designer of Switzerland. “The few tests available have been for narrow and specific kinds of interference, or have required tremendous amounts of advanced forensic labor. Switzerland is designed to make general-purpose ISP testing faster and easier.”

Read the press release