Presentation to the Middlesex Law Association.

 

The “Streisand effect” is what happens when someone tries to suppress something and the opposite occurs.  The act of suppressing it raises the profile, making it much more well known than it otherwise would have been.

Wikipedia defines it as:

The Streisand effect is an Internet phenomenon where an attempt to censor or remove a piece of information backfires, causing the information to be widely publicized. Examples of such attempts include censoring a photograph, a number, a file, or a website (for example via a cease-and-desist letter). Instead of being suppressed, the information quickly receives extensive publicity, often being widely mirrored across the Internet, or distributed on file-sharing networks.

http://en.wikipedia.org/wiki/Streisand_effect

Note that I’m cited as a source in the Wikipedia article – not sure if this advances the notion that Wikipedia is unreliable because it uses dubious sources, or the notion that it is reliable because it uses authoritative sources?  

That source reference is a Free Press article I wrote on the subject.

http://canton.elegal.ca/2005/11/07/attempt-to-suppress-can-backfire/#more-246

The term was coined by Mike Masnick of the Techdirt blog (a blog I recommend following) in 2005. 

http://www.techdirt.com/articles/20050105/0132239.shtml

So why the Streisand effect?

The name came from a story that surfaced when an environmentalist taking photographs of the entire California coastline to track erosion included a photo of Barbra Streisand’s house.  The photo was one of 12,000 posted on the web site.

Streisand claimed the picture violated anti-paparazzi laws and demanded it be taken offline.  They refused.  She sued, claiming $10 million US in damages.

Few people would have cared about the uninteresting shot of the coastline had Streisand not reacted to the photo.  Instead, her actions caused a whirlwind of media coverage and gave mass exposure to the photo.

Here’s a page from the site for the California coastline project that talks about it:

http://www.californiacoastline.org/

http://www.californiacoastline.org/streisand/lawsuit.html 

The site includes:

• The image of her house.
• Copies of the demand letters.
• Copies of the court records.
• An image of the cheque she paid for court costs.
• Links to many articles that appeared in the press.

The FedEx example

Another example happened to FedEx when it threatened legal action to shut down the website of a young man creating home furnishings out of FedEx boxes.

Jose Avila, a computer programmer from Arizona, was unable to afford furniture for his new apartment. He decided to pursue an unusual and innovative solution to his problem by designing and building home furniture for himself using nothing but FedEx boxes and supplies.

Pleased with his work, the computer programmer decided to create a website dedicated to his work, using the domain fedexfurniture.com.

FedEx was not amused and sent Avila letters demanding he take down his website and threatened a lawsuit.

The company claimed the website infringed on its trademark and copyright.  Avila simply posted the FedEx letters on his site — resulting in more attention.

The website exploded into a mass of news and media coverage — little of it sympathetic to FedEx.

The fedexfurniture.com site is no longer live – but thanks to the Wayback machine – here are a couple of views of what it looked like at the time:

http://web.archive.org/web/20050807023231/http://fedexfurniture.com/index.html

http://web.archive.org/web/20050822234211/http://www.fedexfurniture.com/

Canon Fake Chuck Westfall example

Chuck Westfall is a camera tech guru and technical adviser for Canon.

Never heard of him?  As Techdirt points out: “before this, who actually cared about a fake blog of a guy most people had no clue even existed?”

Someone set up a parody site called Fake Chuck Westfall that Canon took a dislike to.  Their letter to try to stop the site didn’t work, was published and ridiculed, and more people found out about the site.

http://fakechuckwestfall.wordpress.com/

http://techdirt.com/articles/20090216/0156343778.shtml

http://thomashawk.com/2009/02/canon-has-no-sense-of-humor-tries-to-shut-down-fake-chuck-westfall-blog.html

The reasons for the failures

There are several reasons why attempts to suppress can backfire. 

• The claims in the demand may be technically correct, but little real harm is being done.
• There is no wrong other than the person has an opinion you don’t like.
• The claims may be so exaggerated and over-reaching that the demand loses credibility.
• The claims are just plain wrong, or are against the wrong entity, making it clear that the writer does not understand the issues or how the internet works.

What are the alternatives?

• Do nothing, in the hopes that the few people that see it will not pay much attention to it.
• Consider whether it can be turned to your advantage.  Consider, for example, whether FedEx could have done something to get some positive press from it.
• Have the client post its own comments.  For example, if it is a customer service issue, apologize and say what the business’s policy is, or thank the person for pointing it out and that you have changed the policy so it won’t happen again, or how what happened is counter to policy.  Or if the person got their facts wrong, point out what the facts really are. 
• Offer to work with the person.  For example, some suggested that Hasbro and Mattel should have made a deal with the 2 brothers from India who designed the popular Scrabulous game on Facebook, rather than shutting them down for infringements on their Scrabble game. 
• If a letter must be sent be very careful with the drafting.  Keep in mind that you are drafting it for multiple audiences, including the offender, their lawyer, the public, and the courts.  Assume the letter will be published and ridiculed.  Be firm but don’t go over the top or make specious claims or demands that will result in your position losing credibility.
• If the entity offending is a reputable firm, deal with them directly and quietly.  Resist the temptation to air the beef in public.  For example, if Google Street shows images that may violate privacy.

http://www.techdirt.com/articles/20090324/2046174242.shtml

The nastygram decision process:

1. Determine why the client is upset

2. Determine what result the client wants

3. Determine what the other party has done

4. Determine if what the other party has done is legally or otherwise improper

5. Determine what remedies/results are possible/likely

6. Assume the nastygram will be made public and ridiculed

7. Consider if sending a nastygram might do more harm than good by attracting more attention (the “Streisand effect”)

8. Discuss all the above with the client

9. If a nastygram is warranted, word it carefully

 

http://canton.elegal.ca/2006/01/04/think-before-sending-nastygrams/

If interested in more:

Search for “Streisand effect” on Techdirt or on my blog.

Check the sources in the Wikipedia article

See this blog devoted to the Streisand effect.  http://www.thestreisandeffect.com/

Search for the “Streisand effect” on the net. 

 

My contact info:  www.davidcanton.tel

That’s the title of my Slaw post today.   It reads as follows:

Take a look at the article by that title on the Canoe Tech page.

It questions whether the tendency for people to put reply messages on emails that they are on vacation, or talk about their vacation plans or current locations on Facebook and Twitter is setting themselves up for breakins. Most people would not have a home voice-mail saying they are away, or let newspapers pile up on their doorstep while they are away – so is letting the world know about it by one’s web 2.0 tools any different?.

Take a look at the article and feel free to add your 2 cents worth in the comments.

Michael Geist recently appeared before the Standing Committee on Transport and Communications to discuss the state of telecommunications in Canada.    The committee is conducting a study on the wireless sector and access to high-speed Internet.

Michael’s opening statement and the transcript make interesting – and frustrating – reading. 

Its no surprise that Canada is falling behind in both the speed and costs of access to the net – both wired and unwired.  Michael does a good job of summarizing the issues and the data.

For the London Free Press – June 8, 2009

Read this on Canoe

Do you have a reasonable expectation of privacy when using an employer-owned computer?

That was the issue before the Superior Court of Justice on March 12 in Regina vs. Cole.

According to the facts of the case, a school information technologist found nude photos of a 16-year-old Grade 10 student on the defendant’s computer.

The defendant, a teacher at the school, had put the photos on a school-owned laptop computer he used. He apparently obtained the photos by getting access to a student’s e-mail account. The student had sent the photos of herself to a friend.

The teacher was charged with possession of child pornography and with fraudulently obtaining data from the student’s hard drive.

The school board’s “acceptable use” policy stated, in part:

“Information technology systems and all data and messages generated on or handled by board equipment are considered to be the property of (the) school board, . . . not the property of users of the information technology . . .

“School board information technology generally must be used only for business activities. Incidental personal use is permissible so long as (i) it does not consume more than a trivial amount of resources, (ii) it does not interfere with staff productivity, (iii) it does not pre-empt any business activity.

“Inappropriate content — Users may not post, access or attempt to access material that is inappropriate for a school or administrative office environment, such as (but not limited to) offensive, sexually explicit, obscene, profane, inflammatory, or degrading materials.”

The defendant argued his right to be protected from unreasonable search or seizure was breached when the information was retrieved from the computer.

The court held that once the defendant accepted the use policy, he had no privacy interest in the school-owned computers.

The court stressed four points:

- By accepting the Acceptable Use Agreement, the defendant knew data on the computer was not private.

- As a supervisor of the school’s computer system, the defendant knew the data were accessible by the school.

- Because of those points, the defendant’s computer password was not an indicator of privacy.

- The defendant knew the computer and its software were owned by the school.

This is not a surprising result and follows conventional wisdom. While this was a criminal case, similar reasoning would probably apply to civil matters.

The case points out that from an employer perspective, it is very useful to have proper policies in place for employee use of equipment. The best approach is a policy that covers acceptable use of work-related technology.

From an employee perspective, one should keep in mind that employer-provided computers are work tools. It’s not a good idea to use them for anything that the employer or the law might take issue with, or anything you don’t want others at work to see.

Michael reports that the CRTC’s just released decision based on their new media hearings that were held in February is that they will continue to not regulate media over the internet. 

The CRTC’s press release says in part:  “While broadcasting in new media is growing in importance, we do not believe that regulatory intervention is necessary at this time,” said Konrad von Finckenstein, Q.C., Chairman of the CRTC. “We found that the Internet and mobile services are acting in a complementary fashion to the traditional broadcasting system. Any intervention on our part would only get in the way of innovation.”

I concur with Michael when he says:  Overall, the decision to avoid new regulations and levy schemes is a good one.  Further, the intervention on undue preferences is both welcome and represents a potential first step in addressing the broader concerns associated with net neutrality.  The CRTC is the first to get criticized when it gets things wrong (or does nothing at all), but deserves praise when it gets things right.

Techdirt points out a post by Howard Knopf on his Excess Copyright blog (not sure how I missed this last week, as I follow Howard’s blog) that points out that because of increasing capacities and lowering prices, the copyright levy on blank CD’s is the majority of the price. 

And if the levies that were sought in 2002 had made it through the process, the DVD levy would be about 10 times the current price of  a blank DVD, and a 120 gig iPod that sells for under $300 would have had a levy of $2,520!!

For the London Free Press – June 1, 2009

Read this on Canoe

The federal government recently tabled an anti-spam bill aimed at reducing spam originating in Canada.

The anti-spam bill, officially known as the Electronic Commerce Protection Act (ECPA), also would apply to text messaging, instant messaging, phishing, spyware and botnets.

The ECPA is lengthy, but basically makes electronic communication for commercial purposes subject to consent. Thus, sending mass e-mails to random addresses would be prohibited.

Section 6 sets out the consent principle: “No person shall send or cause or permit to be sent to an electronic address a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied.”

The section also stipulates that a commercial electronic message must identify the sender and how they can be contacted.

Implied consent can be found where there is an existing relationship between the sender and recipient.

An “existing business relationship” can arise from business transactions within the last 18 months or “an inquiry or application, within the six-month period immediately preceding the day on which the message was sent.”

Section 8 prevents unauthorized installation of software, which aims to prevent the surreptitious installation of spyware and other malware.

The bill contains significant penalties for those who breach the rules — as much as $10 million.

As is often the case with legislation, the overall goals are laudable — no one would argue that anyone should be able to send spam or install malware on people’s computers– but it has the potential to cause headaches for normal businesses that no one would consider spammers.

The bill should not impede normal commercial practices, and would not be good for either business or consumers if it impedes commerce.

The draft legislation needs careful review and possible amendments on two fronts:

- First, to make sure a business that sends an e-mail to a specific person to solicit business, even though it has no existing business relationship, is not prohibited. It’s one thing to send out a mass e-mail to thousands of people. However, it should be acceptable to solicit on a one-on-one basis. And, sending a mass e-mail to one’s customers advising of things such as corporate events or new developments should be allowed absent contrary instructions.

- Second, to make sure the software provision does not negatively impact the process of placing cookies or providing software updates — provided, of course, they aren’t malicious in nature.

The bill has passed second reading and has gone to committee for review. Interested parties should take this opportunity to comment on the bill.

Once the dust settles, the bill is passed with its final wording, and the effective date is known, all businesses will need to pay attention to the bill’s requirements to ensure they are not offside.