A while back I blogged about cyberbullying in a post I called Beware the Cyberazzi. My post was largely motivated by my knowledge of a few sites that are dedicated to sabotaging the character and credibility of people in this community.

Today, Michael Geist has reported that a B.C court has ordered an Australian man to pay $179,000 in damages for posting hundreds of libelous comments on the Internet over a period of four years.

In an effort to support the community, Bob and I plan to interview an expert on cyberstalking and cyberbullying (hopefully a police officer) for an early episode of season three of the Canadian Podcast Buffet.

Violation of the site’s terms of use notwithstanding, a Brandon, Manitoba teen is facing several criminal charges for impersonating one of his teachers in Facebook.  The charges relate to impersonation with criminal intent.

Let’s get a few things out of the way.  I haven’t seen the Facebook profile in question, nor am I an expert in Canadian Law.  Clearly, the student overstepped some serious bounds.  After all, criminal charges don’t run out of your tap like water.  There has to be some significant evidence to merit charges.

In preparing for an interview I did with Calgary’s AM770 CHQR this evening, I initially considered the following to be my key points:

• most (if not all) of what ends up on the web is indexed and cached for all to enjoy in perpetuity
• Facebook is famous for its overcomplicated process to remove profile data and related links

I was wrong.

There is a moral, ethical and legal component to this issue.  And while parents bear a significant amount of the responsibility to educate their children on the use and abuse of the Internet, schools need to take a leadership role on access and education.

ACCESS

If the media is to be believed, schools have been increasing the amount of computer technology and Internet access available in the classroom over the last few years.  In some cases, schools limit what students are able to access.  That is to say, students can only access specific websites for specific purposes.  Content can be regulated specifically (by website name) or dynamically (by filtering by embedded content).  In other cases, schools explicitly allow access without control and then implicitly block access when sites or content become a problem.  In other words, they set the ball rolling and then wash their hands of the problem.  They take a “not in my house” approach after they’ve already made allowances “in their house”.

Having said that, most of what’s happening in Facebook is likely not happening on school computers during school hours.  A growing number of children have unlimited, high speed Internet access in their homes.  This leads me to my next point.

EDUCATION

I am confident that there is very little if any education on moral, ethical and legal concerns when using the Internet.  While “we” may be putting a lot of energy into helping children identify some of the more tangible threats (stalking, sexual harassment, hate crimes, etc…), I don’t believe much is being done to help students understand Acceptable Use and Terms of Use agreements on sites like Facebook.  A majority of people, students and adults alike, flock to the sites that are popular and blindly select any checkbox that is required of them in order to gain access to the site.  I would argue that many school administrations don’t understand the Facebook Terms of Use.  And yet, at least some schools have at one time allowed students to access these sites from school networks.

When I was in elementary school, library orientation was used to help us understand how to find information, how information was stored and related, how to synthesize the information and how to behave in the library.  Elmer the Safety Elephant taught us seven safety rules including how to cross the road and who we could and couldn’t accept candy from.  Both were integrated into our elementary school education.

Today’s children face more complex problems — and more of them.  The problems are ethereal and obfuscated for corporate interests.  We need to make sure students understand the moral, ethical and legal reasons for conducting themselves with respect for others.  We’re not doing that.

The thirty-somethings that use the social web were raised in a true social ecosystem and (for the most part) have managed to port their social skills to the digital world in an effective and productive way.  The digital natives are being raised in a digital social ecosystem where real-life interaction, and the appreciation of real people is limited or completely absent.  It would seem it’s easier for them to not be affected by nefarious Internet-based activities.

What’s the solution to the problem?

I believe education and simplification are key to any solution.  Since schools have taken it upon themselves to direct their students to the Internet to conduct research, they need to do more than just tell students how to do a Google search and then filter the results for their assignment.  The schools need to educate students to understand the digital culture.  And, it’s time for the corporate world, particularly the legal departments, to shorten and simplify their user agreements.  It’s no longer appropriate to put the onus on your uninformed and/or confused users and wash your hands of any responsibility.

I was a (small) part of an email exchange on the topic of how Facebook policies affect your corporate logo should you decide to put it on that site. It was Robin Browne who had kicked off the discussion and I deferred to Andy Kaplan-Myrth of the University of Ottawa Law and Technology program for an explanation.

In short, by putting your corporate logo on Facebook you do not surrender ownership of the logo. However, according to their terms of use, you implicitly grant a blanket license to Facebook for whichever use Facebook desires. This could include selling a license to your competitors to use your logo for whichever use they desire.

A lot of this is interpretation of the terms of use and how it relates to copyright versus trademark laws. There’s also a trade-off to consider where the benefit of exposure could outweigh the risks of licensing of your corporate logo.

You can read Andy’s complete explanation in his post, Using Logos on Facebook.

Following the Facing up to Facebook session at the University of Ottawa on Wednesday, Bob LeDrew and I chatted for quite a while about the privacy implications of social media. Specifically, we talked about services like Facebook and how they exploit trust and personal information for corporate gains — their own and their clients’. These companies do warn you on some level that, by accepting their terms of service, you forfeit your claims to privacy of your information and that you also assign full licensing rights (including for their own financial gain) for your content (text, photos, videos, etc…) to the them. However, they do this through obscure (certainly not plain English) terms and conditions. They also serve up what I call a ‘crippling and confusing suite’ of information sharing controls disguised as privacy controls.

Bob and I came to the realization that the key element in the discussion about privacy and an individual’s right to privacy in social media tools is the amount of complexity and confusion in the way the agreements are structured and what our real rights are. This is further complicated by the fact that privacy laws differ from country to country and while most countries have adopted strict privacy regulations in order to do business with the EU, the United States has managed to get by with a more relaxed set of rules called Safe Harbor.

From the Safe Harbor main webpage:

While the United States and the European Union share the goal of enhancing privacy protection for their citizens, the United States takes a different approach to privacy from that taken by the European Union.

This raises a lot of concerns when Canadian companies like Flickr move their data servers to the United States.

As we talked, I mentioned to Bob that what the world needs is a Privacy Commons — a simple and easy to understand deed to privacy which clearly communicates the privacy (or absence of privacy) controls built in to a service (I blogged about this in November). We fantasized about a simple Privacy Commons modeled after the Creative Commons that would elegantly and concisely allow service providers to designate privacy features in a deed-like interface, indicating elements like:

• do they collect personal identifying data
• is the data stored and transferred in a way that protects confidentiality
• is the data shared or sold
• does the company expect blanket consent to share/sell private information or do they require case-specific consent
• how long data is kept
• how data is destroyed

Some would argue that it would be hard to get companies to adopt this model. I suggest that companies that are committed to privacy would have no issues adopting a model which would make that immediately obvious to people.  At the very least, it will help people understand the privacy features of the site. In the same way that the Creative Commons took a while to stick and connect those with a common vision of making creative works available under specific implicit terms as well as send a message to licensing bodies, the Privacy Commons would take some time to prove that taking privacy seriously is good business.

Many cultural, political, business and media revolutions have taken place online over the last few years. A revolution for simplified privacy in an increasingly public world seems like a logical next step.

Two questions come to mind:

• Who would build a Privacy Commons?
• Does anyone else see a Privacy Commons as being beneficial?

I attended the Facing up to Facebook session at the University of Ottawa, yesterday. It was a panel discussion with Law and Technology Faculty Professors Jeremy de Beer, Ian Kerr, Jane Bailey, Val Steeves and Michael Geist and it was moderated by Andy Kaplan-Myrth.

The discussion was lively and informative and had a unique mix of social media participants (Profs de Beer, Kerr and Geist) and observers/researchers (Profs Bailey and Steeves). While there was a clear recognition of the role of social media tools such as Facebook, the discussion focussed largely on the impacts of these technological gathering places on culture and privacy, and their not-so-subtle use for corporate interests.

I found it particularly interesting when the panel explored the influence of culture on the need for social media tools and influence of social media tools on culture. Prof. de Beer introduced the room to John Fiske’s concept of Semiotic Democracy, “the delegation of the production of meanings and pleasures to viewers”.

The majority of the conversation focused on privacy concerns, the misrepresentation of information sharing controls as privacy controls and the use of aggregate information (not specific information) to generate consumer profiles. Prof. Bailey wondered if privacy is now passé. Indeed, social media tools are about publicity and micro-celebrity rather than privacy.

The session reinforced my realization that businesses that have stood up social media services (such as Facebook) are manufacturing a three-tiered privacy-crippled environment:

• crippling amounts of information that creates an environment in which privacy may be possible through obscurity
• crippling suite of options designed to perpetuate a false sense of privacy
• crippling terms of use agreements designed to protect the interests of companies through obscure language, excessive text and circular references beyond the patience and comprehension of most people

Excerpts of the Facing up to Facebook session are available in this week’s episode (#95) of the Canadian Podcast Buffet. The entire session will be released as a podcast through the University of Ottawa.

The University of Ottawa Law and Technology program hosts something called the Torys Speaker Series which features thought leaders and subject matter experts discussing issues related to law and technology. The next public session looks great!

Facing up to Facebook
A discussion panel on social media and social networking

Please join the Law & Technology group as Professors Jane Bailey, Jeremy de Beer, Michael Geist, Ian Kerr, and Valerie Steeves discuss legal issues arising from Facebook and related social media technologies.

Date: Wednesday, March 12, 2008
Time: 11:30 a.m. to 1:00 p.m.
Place: Fauteux Hall, room 351
Faculty of Law, University of Ottawa

Please RSVP to techlaw@uottawa.ca.
Join the Facing up to Facebook event page.

By the way, Michael Geist, Ian Kerr, Jeremy de Beer and Jane Bailey are all contributors to the book, In the Public Interest: The Future of Canadian Copyright Law, published September 2005 and available for purchase (CDN$50 for a printed copy) or as a Creative Commons, by-the-chapter, download.

The latest issue of Podcast User Magazine includes a photo of me, taken by Steve Garfield, as the header for my Defining Moments column.

While I submitted the photo as a candidate for the header, I didn’t expect it to run without a credit. More importantly, use of the photo without clearing it with Steve is a problem in this particular case since PUM makes revenue from advertising and the photo is licensed under Creative Commons attribution-non-commercial-share-alike.

Steve’s a cool guy, though, and has assured me that with appropriate credit, he is okay with the use of the photo in this particular case.

Earlier today, I submitted a request to have the PDF updated and posted an acknowledgment through the comment feature on the PUM website. The comment is in moderation.

Thanks, Steve, for taking a cool photo and for sharing it with us!

The Canadian Podcasting Legal Guide was unveiled by Andy Kaplan-Myrth and Kathi Simmons at Podcasters Across Borders and is now available for download (in html and pdf) from the Creative Commons Canada site.

The presentation by Andy and Kathi will be available for download on the Canadian Podcast Buffet in the next two weeks.

David Basskin, President of the Canadian Musical Reproduction Rights Agency (CMRRA), has agreed to a phone interview with me on the subject of reproduction rights in the new media space. We are currently working on scheduling the interview.

If you have a question that you’d like answered by the CMRRA, email it to me. I will do my best to work it into the interview (with no guarantees). You may want to review the CMRRA’s brochure on mechanical licensing before you send your question.

About a month ago, Charlie lamented that content licensing is still a bottleneck for Web 2.0 folks (Top Ten Reasons Why Web 2.0 Sucks). One of the reasons that podcasting shot to popularity the way it did is that it is not, nor should it be, mainstream media. Getting caught up in the inability to play today’s top 40 on a podcast suggests otherwise.

The apparent impatience for a licensing solution reinforces our dependency on what some people call “Internet speed”. However, most of the world doesn’t work that way — particularly those parts of the world that have been doing things a certain way for a long time. I don’t think farmers abandoned their horses for expensive tractors when they first rolled off the assembly line; when home computers first became the rage very few homes actually had them; and, it took a long time for the masses to adopt ATMs as a new way of doing business with banks.

The licensing issue will be addressed. The solutions will take time, input and a commitment from stakeholders to work towards a long-term fix that is a win for all involved. Until then, take advantage of the vast pools of quality independent content that can be used without cause for concern about licensing.  If we don’t take care of them, they’ll dry up.