Cairns Blog

Where Have I Been?

I have been on a blogging hiatus since the beginning of the Obama-Biden transition project in the summer of 2008. In addition to the usual policy planning committees on the economy, environment, or education, the Technology, Innovation, and Government Reform (TIGR) team was an unprecedented effort to lay out a strategy for institutional innovation for the new administration while our work on Change.gov began to lay the groundwork for the practice of more transparent and participatory governance. One of the goals of TIGR was to develop early approaches for open and collaborative ways of working and deciding to making government more effective.

As a important step in implementing this agenda, President Obama signed the Memorandum on Transparency and Open Government as his first executive memorandum on January 21, 2009. The Memorandum calls upon all Executive branch agencies and departments to a government that is transparent, participatory, and collaborative. He also appointed the nation's first Chief Technology Officer and Chief Information Officer.

I became United States Deputy Chief Technology Officer responsible for Open Government and head of the White House Open Government Initiative. Instead of blogging here, I now blog with my colleagues at www.whitehouse.gov/open.

Here's an early story about some of our work.

In the meantime, my book Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful appeared with the Brookings Institution Press.

I am on leave as a law professor from New York Law School and its Institute for Information Law & Policy.  Peer-to-Patent is still taking volunteers through October.

Someday I'll go back to blogging.

Technology, Innovation, and Government Reform (TIGR)

Food IP: Hummous v. Hummus

New York Times has a story today about the battle between Lebanon and Israel over "Hummus."  Here's the story from Ha'Aretz

Open, Accountable and Ethical Government and the Democratic Platform

Michael Kinsley's Learning to Read Democrat in the New York Times today poked fun at the vagueness and redundancies in many parts of the democratic party platform.  One section we can be proud of, however, is the strong, specific, and visionary discussion of open government that sets the party's plan apart:

A Connected America  (p. 17)

In the 21st century, our world is more intertwined than at any time in human history. This new connectedness presents us with untold opportunities for innovation, but also new challenges. We will protect the Internet’s traditional openness to innovation and creativity and ensure that it remains a dynamic platform for free speech, innovation, and creativity.  We will implement a national broadband strategy, especially in rural areas, that enables every American household, school, library and hospital to connect to a world-class communications infrastructure.  We will rededicate our nation to ensuring that all Americans have access to broadband and the skills to use it effectively.  In an increasingly technology-rich, knowledge-based economy, connectivity is a key part of the solution to many of our most important challenges: job creation, economic growth, energy, health care, and education. We will establish a Chief Technology Officer for the nation, to ensure we use technology to enhance the functioning, transparency, and expertise of government, including establishing a national interoperable public safety communications network to help first responders at the local, state and national level communicate with one another during a crisis.

Open, Accountable and Ethical Government  (p. 47-48)

In Barack Obama’s Administration, we will open up the doors of democracy. We will create a new “open-source” government, using technology to make government more transparent, accountable and inclusive. Rather than obstruct people’s use of the Freedom of Information Act, we will require that agencies conduct significant business in public and release all relevant information unless an agency reasonably foresees harm to a protected interest.  We will lift the veil of secret deals in Washington by publishing searchable, online information about federal grants, contracts, earmarks, loans, and lobbyist contacts with government officials.  We will make government data available online and will have an online video archive of significant agency meetings.  We will put all non-emergency bills that Congress has passed online for five days, to allow the American public to review and comment on them before they are signed into law.  We will require Cabinet officials to have periodic national online town hall meetings to discuss issues before their agencies.

Implementing our Party’s agenda will require running an efficient government that gets results. We will develop a comprehensive management agenda to prevent operational breakdowns in government and ensure that government provides the level of service that the American people deserve.  Because we understand that good government depends on good people, we will work to rebuild and reengage our federal workforce.  We will make government a more attractive place to work.  Our hiring will be based only on qualification and experience, and not on ideology or party affiliation.  We will pay for our new spending, eliminate waste in government programs, demand and measure results, and stop funding programs that don’t work. 

We are committed to a participatory government.  We will use the most current technology available to improve the quality of government decision-making and make government less beholden to special interest groups and lobbyists.  We will enhance the flow of information between citizens and government—in both directions—by involving the public in the work of government agencies.  We will not simply solicit opinions, but will also use new technology to tap into the vast expertise of the American citizenry, for the benefit of government and our  democracy.

Americans want real reform that will help them pay their medical bills and put the country on the path to energy independence.  They are tired of lobbyists standing in their way. So we’ll end the abuse of no-bid contracts and tell the drug companies and the oil companies and the insurance industry that, while they may get a seat at the table in Washington, they don’t get to buy every chair. We will institute a gift ban so that no lobbyist can curry favor with the Administration. We will close the revolving door that
has allowed people to use their position in the Administration as a stepping-stone to further their lobbying careers. We support campaign finance reform to reduce the influence of moneyed special interests, including public financing of campaigns combined with free television and radio time. As a national party, we will not take any contributions from Political Action Committees during this election.

McCain Tech Plan

Dow Jones reports that McCain will release his Tech Plan in the coming week.  The Obama Tech Plan came out in November 2007.  The failure of the McCain camp to address technology until nine months later and only at this end-stage of the campaign signals how little understanding McCain has about the relevance of technology.

Former FCC Chairman and McCain advisor Michael Powell says: "We're talking about the policy of the U.S. president, not the FCC chairman."  The outdated notion that "Tech = FCC" is hardly surprising from a public figure who proudly tells the world that he doesn't use email.  The fact that McCain does not want FCC regulation  doesn't tell us much about what he does want or how he will use the power of the Internet to improve American education, create jobs, grow the economy, or strengthen our democracy.

Clearly, McCain  wants an opportunity to reiterate to his big donors and their lobbyists that he opposes "net neutrality" and government efforts to ensure an open and free internet. The idea, however, that innovative companies like Google sprung up in the absence of any government regulation (as the article suggests) is ludicrous.  The government created the Internet in the first place.  Without an open telecom regime, Google never would have been able to provision its services to us.

Without efforts to reduce media concentration and prevent monopoly, we would not have a competitive hi-tech environment in which innovative companies flourish.  The notion that government has no role to play abdicates responsibility for ensuring an Internet that promotes commerce and respects free speech.

In addition, without the right technology and broadband policy we don't have wired schools and literate children.  We end up without a job-ready workforce that can compete in the 21st century and we disadvantage low-income communities by forestalling access to the Internet.  No doubt, the telecom bloggers and their readers will have a ball critiquing the McCain regulatory proposals when they publish.

Most important to point out is that without the Internet, we cannot have a transparent, open, legitimate democracy.  As Craig Newmark (of Craigslist) aptly put it last week in the HuffingtonPost, the President has to care about technology because: "It has to do with staying in touch with your community and constituency....A president is the leader of the American community, a lot of people, many of which don't yet have Internet access or comfort. That's being addressed, too slowly, but we do have the critical mass online that a president needs to listen to, to be in touch."

This report of the McCain plan suggests that he would continue the Bush policy of closed and secretive back-room dealings.  He is obviously not focused on how to use new tools to ensure that government information is published online or that government does its business in the open.

He is not talking about how to use the Internet to solicit information back from the American people so that when an agency makes an important public decision it is on the basis of the best possible information.  He is not thinking about the  cyber-security threats that face us in an era of information warfare.  He is also not focusing on how to strengthen the critical technological infrastructure upon which our nuclear and electric power grids run.  He clearly doesn't care about how the Web could play a role in coordinating relief in the event of another natural disaster.  The fact that government depends squarely on technology to deliver its services efficiently is also not on the radar screen.

For someone who claims to be opposed to big government and government regulation, such a blinkered view of technology condemns us to a large, inefficient, centralized institutions.  For the only way to realize a smaller, leaner, more efficient and yet more trustworthy government is to begin to connect institutions to public networks.  If you want the private sector to do more, then government needs to be able to use new technologies to communicate its priorities to citizens, obtain information from them, interact seamlessly among government institutions, and coordinate action.

My Life. My Card. No, Wait, Not Your Life, Says Amex.

American Express is getting in on the crowdsourcing philanthropy act by hosting a new initiative, Members Project.  Propose good-for-the-world projects, vote on the projects of others, and Amex will dole out $2.5 million in funding to support the winning ideas.

Amex touts the project with the tag line: "Your Ideas. Your Decision. Our Money."  Sounds all to the good.  But Joe Merante, Institute for Information Law Student Research Fellow, read the fine print. 
Turns out that "your ideas," once submitted to the website, become Amex's ideas.  Not a license.  Not a right to reprint.  Not permission to put you and your project in their commercials.  No, an irrevocable assignment of all rights such that .

You irrevocably assign to American Express all rights (including copyrights) in any ideas or expressions of ideas that you provide on or through the Project Site, including without limitation the Project Submission and all comments, suggestions, graphics, ideas (including product and advertising ideas), and other information or materials you submit on the Discussion Boards and otherwise on or through the Project Site (collectively, "User Content"), all of which will become and remain the exclusive property of American Express, including any future rights associated with such materials.

Becomes a little difficult to do good for the world when you can no longer use your own plan to "Spare Change for Clean Beaches," and have the specter of an Amex lawsuit hanging over your head if you use "Palmetto Biodiesel," or "My Simple Rule for Better Health."

David Johnson Spearheads Virtual Company Legislation

Vermont is now on the path to becoming "the Delaware of the Net."  Professor David Johnson and a team of New York Law School students  helped to draft the nation’s first legislation that will make it easier to form and operate companies online, creating new opportunities for distributed work and innovation via the Internet.  The Governor of Vermont recently signed Digital Corporate Transactions H.0458 into law.  Johnson’s work with the State of Vermont is part of a larger project to foster a new type of economic production by allowing flexible collaboration among self-selecting, transient online groups.

Imagine a group of people all around the country who want to find a way to share their collective expertise and start a consulting practice together without meeting face-to-face?

Imagine people from around a neighborhood who already know each other face-to-face and want to have a way to open a bank account without the expense and hassle of a full-blown corporation?

Imagine the team that seeks the limited liability protections of the corporate form but wants to contribute know-how not capital to form an entity?

Vermont may be the answer for these digital age entrepreneurs.

Alison Clarkson  introduced the  "Digital Corporate Transactions" (H.0458) into the Vermont house.  It was subsequently integrated into "H.0888, Miscellaneous Tax Documents."  Governor Jim Douglas signed the bill into law on June 6, 2008.

Professor Johnson and his team of students at New York Law School’s Institute for Information Law & Policy endeavor to foster a new type of economic production by allowing flexible collaboration among self-selecting, transient online groups.

They drafted legislative provisions and also analyzed the tax implications of the pending legislation.  In addition, they have started to plan for future virtual companies by drafting model operating agreements, developing the business plan for a service organization to host and support virtual companies and brainstorming the graphical interfaces for a virtual company headquarters.

The key features of a virtual company are:

--Participants in virtual companies will pool their attention and effort, not capital

--Groups can come together online to create a legal entity that has the ability to own property (including the intellectual property they create together), open a bank account and contract with third parties

--Participants will govern their own affairs, rather than relying on a Board of Directors or Officers or other forms of top down management.

Metanomics article here.

Inc. Magazine article here.

James Au and New World Notes here.

Gigacom here.

A transcript of Professor Johnson's testimony before the Vermont Legislature is available here.

A recent essay about the current status of the Virtual Companies project is available here.

Prof. Oliver Goodenough of Vermont Law School, the Berkman Center at Harvard Law School and the Vermont Bar Association provided substantial assistance.  The Virtual Company project is part of a capstone class offered by the Institute for Information Law and Policy at NYLS.  For more information visit the Do Tank.

Vermont is now on the path to becoming "the Delaware of the Net."  Professor David Johnson and a team of New York Law School students  helped to draft the nation’s first legislation that will make it easier to form and operate companies online, creating new opportunities for distributed work and innovation via the Internet.  The Governor of Vermont recently signed Digital Corporate Transactions H.0458 into law.  Johnson’s work with the State of Vermont is part of a larger project to foster a new type of economic production by allowing flexible collaboration among self-selecting, transient online groups.

Imagine a group of people all around the country who want to find a way to share their collective expertise and start a consulting practice together without meeting face-to-face?

Imagine people from around a neighborhood who already know each other face-to-face and want to have a way to open a bank account without the expense and hassle of a full-blown corporation?

Imagine the team that seeks the limited liability protections of the corporate form but wants to contribute know-how not capital to form an entity?

Vermont may be the answer for these digital age entrepreneurs.

Alison Clarkson  introduced the  "Digital Corporate Transactions" (H.0458) into the Vermont house.  It was subsequently integrated into "H.0888, Miscellaneous Tax Documents."  Governor Jim Douglas signed the bill into law on June 6, 2008.

Professor Johnson and his team of students at New York Law School’s Institute for Information Law & Policy endeavor to foster a new type of economic production by allowing flexible collaboration among self-selecting, transient online groups.

They drafted legislative provisions and also analyzed the tax implications of the pending legislation.  In addition, they have started to plan for future virtual companies by drafting model operating agreements, developing the business plan for a service organization to host and support virtual companies and brainstorming the graphical interfaces for a virtual company headquarters.

The key features of a virtual company are:

--Participants in virtual companies will pool their attention and effort, not capital

--Groups can come together online to create a legal entity that has the ability to own property (including the intellectual property they create together), open a bank account and contract with third parties

--Participants will govern their own affairs, rather than relying on a Board of Directors or Officers or other forms of top down management.

Metanomics article here.

Inc. Magazine article here.

James Au and New World Notes here.

Gigacom here.

A transcript of Professor Johnson's testimony before the Vermont Legislature is available here.

A recent essay about the current status of the Virtual Companies project is available here.

Prof. Oliver Goodenough of Vermont Law School, the Berkman Center at Harvard Law School and the Vermont Bar Association provided substantial assistance.  The Virtual Company project is part of a capstone class offered by the Institute for Information Law and Policy at NYLS.  For more information visit the Do Tank.

iPhone to Enable Citizen Journalism

As James Grimmelmann timely reports on The Laboratorium:

Steve Jobs says:

10:41 am [The Associated Press] call it the Mobile News Network, and it gathers content from many trusted sources. It makes use of the location API by automatically showing nearby sources. Allows news video and photos to be viewed directly through the app. You can even report on news yourself by sending a first-hand report that includes photos and text. The app will be free at the launch of the App Store.  (emphasis added)

And James says:

"This is an amazing platform for citizen journalism, and it’s being delivered by one of the major names in news. Much will depend on what happens to those “first-hand reports,” but if the AP runs with this ball, it could be huge. Imagine an army of citizen-journalists, not just routing around the traditional media, but reporting with them. This is what happens when you give people general-purpose computers, portable anywhere, and hooked up to a worldwide network: amazing things are possible."

Another Cool Patent Thing

It seems there's another free patent pdf downloader out there.  Patent Retriever.  Any idea as to the difference?

Cool Patent Thing

Patent attorney Rolf Claessen has a free new tool to download patent documents in PDF format on the web.  It can be found here.

P2P: The Movie

Produced by IBM, this short movie with interviews with Chief Intellectual Property and Patent Counsel from IBM, GE, HP and others explains the Peer-to-Patent process, how it works and why an inventor will want to participate.  Check it out on YouTube here. 

Japan Announces Launch of Peer to Patent

IBM Japan, Ltd., Fujitsu Ltd., and other major IT companies plan to utilize outside specialists’ expertise for patent registration.  These companies will use a new patent examination system initiated by the Japan Patent Office (JPO) in June on a trial basis to have researchers and other experts who are knowledgeable about cutting-edge technology check whether their own inventions are suitable for patent registration.  The aim is to reduce the risk of patents becoming invalid because prior literature or other evidence is discovered after they are registered.
       

The new system adopted by the JPO is called “Community Patent Review.”  It covers disclosed patent applications chosen by IBM Japan or other companies after 18 months have passed since they were filed.  The JPO will recruit several hundred participants, including university researchers, to have them express their opinions about the trends for the latest papers presented at overseas academic conferences, the existence or absence of prior literature, and other issues, and it will make use of those opinions for patent examinations.

Ricoh Co., Ltd. also plans to use the new system.  Users of the new system can reduce the risk of another company claiming that a patent that has been obtained is invalid, and they may also be able to carry out licensing negotiations that are favorable to them.  This year dozens of patent applications centered on IT-related software and network technologies are expected to undergo examinations.

Currently, JPO examiners use databases to closely investigate prior cases Japan and overseas, such as existing patents and academic papers, and examine the novelty of patent applications.  However, as an official of the JPO’s examination policy planning section noted, the examiners “cannot fully investigate academic papers and manuals that are not included in databases.”  In 2006, there were 194 patents that became invalid because they were found to lack novelty.

The JPO will compile the results on the new system by the end of this year.  If it considers the new system to be effective, the JPO will call on more businesses to use it in the next fiscal year and thereafter.

The Future of JZ: Unstoppable

Stanford Law School, EFF and Creative Commons hosted grand and glam book (slash recruit JZ for Stanford Law School) party at the Ritz-Carlton in San Francisco.  The book was for sale but the edible cookie replicas were free!  As usual, Jonathan gave a fabulous talk to the several hundred  technorati and fleece-o-nistas from the Bay Area and a good time was had by all!

RunTime Revolution Donates Software to New York Law School

by Bill Marriott

Famous lawyers from both fiction and reality have always relied on a variety of tools to persuade judge and jury: surprise witnesses; dramatic closing arguments; reenactments of the crime scene.

But first and foremost, a good lawyer must be a master of logic. So it might not be such a surprise that a group of law school students have embraced Revolution Studio as yet another tool in their arsenal that helps them learn technology, teach law, and win cases.

Revolution’s popularity endures because it is the one programming system that enables content experts to focus attention on their areas of expertise, without the distractions of mastering the arcane syntax and byzantine rules of other languages. With Revolution’s natural language, anyone can break a complex problem into smaller pieces and arrive at a solution using logic that mirrors the way the human mind works.

In this way, Revolution reinforces the core analytical skills needed to be successful with large, complicated litigation.

Although New York Law School in Manhattan is one of the oldest independent law schools in the United States, it’s also one of the most innovative. Students use Revolution not just to sharpen their minds, but also to get things done. Recently, NYLS students have used Revolution to:

• Create compelling presentations that serve as demonstrative evidence at trial
• Model how organizations can make decisions more effectively
• Establish a pilot program for collaborative patent examination at the United States Trademark and Patent Office
• Educate students about the impact of technology on the legal system

"Without any training, the Runtime Revolution environment permitted our research team to quickly develop working prototypes of (i) interactive analytical flowcharts, (ii) statutory compliance tools and (iii) collaborative project management utilities for distributed environments.” -- Nick Nicolakis

And the list of potential applications of Revolution just gets longer as students and educators are inspired by the possibilities presented by the language.

“Faculty and students already have experience with using Revolution Studio to build interactive learning software, interactive diagrams that illustrate legal doctrines or explain statutory provisions, client counseling simulations, graphical courtroom demonstrations, and software kiosks to help pro se litigants,” said David Johnson, a Professor at the NYLS Institute for Information Law and Policy.

Because of the creativity with which NYLS has applied Revolution to so many aspects of everyday coursework, and the importance of educating future lawyers, lawmakers, and judges about technology issues, Runtime Revolution has gifted a copy of Revolution Studio to each faculty member, staff, and student of the school.

“Good software code, like good legal code, is precise and understandable to everyone,” said Kevin Miller, Runtime Revolution CEO. “We want everyone at NYLS to benefit from our unique language and its ability to create courseware and legal simulations.”

Miller added, “With Revolution, you have the ability to express complex algorithms and implement analysis strategies not possible with databases or spreadsheets.”

A legal compliance tool developed at NYLS, considered by the team as a "clickable statute," implements the "CAN SPAM" Act of 2004 as software code.. in a way that unambiguously determines whether an email passes muster with federal regulations.

Rick Matasar, NYLS Dean, expressed his appreciation of the gift and discussed the impact it will have on the quality of the school’s curriculum.  “Increasingly, lawyers use technology in every area of practice.  Familiarity with the basics is essential for the well-trained lawyer and for the law student who wants a “leg up” in the marketplace.  Lawyers practicing in fields that relate to technology directly, such as intellectual property, must understand how computer systems work. Every lawyer, whether doing transactional work (e.g., using software to generate deal documents) or litigation (with its increasing use of electronic discovery) needs to be able to evaluate technology tools used in practice.  We live in a world in which rights and obligations are importantly influenced by computer systems – so lawyers must understand not only legal code but also software code.”

Carrot Mobbing

Brent Schulkin in San Francisco has launched the first "Carrot Mob."  What's a Carrot Mob?  Well, it's a way to use the "carrot" of consumer buying power to encourage small businesses to help the environment.  The idea is to use web-based tools to organize a consumer flashmob that channels business to stores that commit to environmental improvements.

Here's the catchy video of the first Carrot Mob "Make It Rain" campaign in San Francisco's Mission District last month.  In short, the Carrot Mobbers asked local businesses how much they would be willing to invest in environmental improvements if the group were to organize a buying spree directed at that business.  The result for the winning bodega?  More than triple the sales of an average Saturday, lots of free advertising, oodles of community goodwill and a scheme to pay for improvements that, in turn, save the business money over the long run.

It's a great example of use of new media technologies to convene and organize a group of people that, working together, is more powerful at bringing about social change than any individual acting alone.  It takes the traditional boycott model and turns it on its head (a girlcott?) to create incentives for good  rather than an injunction against bad action.  It's a collaboration between the business and the consumer to everyone's benefit.  The video is really useful for creating a sense of that group and community and allowing people to feel themselves to have been part of something.  And, it demonstrates that civic activism can be fun!

Yet Another DRM Disaster

Microsoft announces that it will no longer issue DRM keys for music purchased on its now defunct music service.  As CNET explains: "This means that, while former customers can listen to their music on authorized computers for as long as the hardware lasts, they won't be able to transfer songs to a new PC after that deadline."  In other words, since the DRM won't work, you'll have to throw away the song.  Good grief!

Can the FCC fix the internet?

The Federal Communications Commission comes to Stanford this Thursday to hear from two panels of experts and members of the public on issues related to broadband network management practices.

Magic and Intellectual Property

Jacob Loshin's talk in the IP Surprise Lecture Series is now up online for viewing here.

His article: Secrets Revealed, How Magicians Protect Intellectual Property Without Law is available for download here.

If Code is Law, Why Lawyers Must Learn to Code

The Ninth Circuit handed down its decision in Fair Housing Council v. Roommate.com last week.  Chief Judge Alex Kozinski authored the 8-3 en banc opinion upholding the three-judge panel’s finding that Roomate.com is not shielded from liability under the Communications Decency Act because the design of the website renders Roommate.com an information content provider (aka an author) rather than a publisher.  The site’s required drop-down menus where users must specify answers to questions about sex, sexual orientation and presence of children offend anti-discrimination laws, says the majority. The Website’s search facilities enable users to search based on the same criteria.  The court found that Roommate is not entitled to CDA immunity for the operation of its search system either, because it “directs emails to subscribers according to discriminatory criteria.  By contrast, the dissent argues that providing drop-down menus should not be deemed to constitute “creating” or “developing” information.

The holding of the case centers around the design -- drop-down menus instead of free-form questions -- not the content of the Website.  According to the court, it “designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process. In other words, Councils allege that Roommate’s search is designed to make it more difficult or impossible for individuals with certain protected characteristics to find housing—something the law prohibits."

Naturally, reading the opinion, I was struck by the similarities to the Grokster and other peer-to-peer file sharing cases where the finding of indirect copyright liability turns on the design of the communications protocols, which induced others to infringe, or the P10 cases and Arribasoft cases where the technological architecture is crucial to determining if the technology itself was fair use or aided and abetted infringement.  Two years ago, the Sixth Circuit in Stewart v. Blackwell held that: the use of punch card and other outdated voting technologies that fail to provide notification and confirmation of a vote to the voter in certain Ohio districts but not in others led to “statistically significant disparities between the levels of residual voting among African-American and non-African American voters."  The court recognized that the choice of technology can mean the difference between the right to vote and disenfranchisement.

Yet despite this recent attention to technology design in the jurisprudence of cyber- and IP law, the discipline has, for the most part, taken little interest in design projects.  Though the law is centrally concerned with the regulation of social relationships that create the conditions for freedom of expression and human flourishing, technology design has largely been regarded as the purview of computer scientists, engineers and interface designers.

In the digital age, legal rules and legal doctrine, however, are not enough to protect civil liberties.  The rights and freedoms of free speech are protected by software code as much as by legal code. We have seen that the copyright act itself is powerless to protect the user's right to read in the face of strong digital rights management technology. We have seen the constitutional rights to privacy and freedom of association eroded by new surveillance technologies.   Yet the solutions we invent to these problems primarily focus on legal strategies.  What laws can we pass to regulate the design of technology?  How should judge’s rule to safeguard fair use freedoms?  We turn the question of technology design, into one of legal analysis.

Cyberlaw has become co-opted and domesticated by traditional methods of legal inquiry, focused on the solutions offered by legal institutions.

Cyberlaw should meld the design of East Coast Code and West Coast Code. Instead of asking only how legal doctrines apply to new technological environments, we could be asking ourselves how legal principles might inform how we design those technological environments.  As lawyers, we need to get into the business of doing design.

Law regulates construction yet lawyers do not need to learn engineering.  We regulate food without becoming chefs.  So why do lawyers need to learn and practice design?

First, I’m not sure that we don’t need to practice the epicurean and engineering arts more to serve clients better.  On my first day in practice as a telecommunications lawyer, the partner in charge gave me two textbooks to read and learn about spin and yaw and transmission frequencies.  But with the short shorts available to us in law school, self-evidently we cannot teach all subjects.  Still - we should be teaching the importance of knowing and understanding how law does and does not condition behavior in other industries, whatever they might be.

Second, when we teach through cases rather than interfaces, we avoid the complex questions (and answers) at the intersection between computer science and law, between legal code and software code, between statutory construction and engineering.  We are not giving students the toolkit to solve problems -- our highest and best use according to Brest and Krieger and the ABA.  If code is law, lawyers need to start designing code.

Third, law school is professional school that is intended to teach future members of the profession a set of skills that serve the normative goals of social justice and democratic values.  To complement the existing toolkit of lawyers. I'm not suggesting an interdisciplinary approach, whereby law taught with or informed by some computer science (“law and....”). Rather, I am suggesting that the professional training of cyber lawyers and the scholarly pursuits of cyberlaw academics should involve a central preoccupation with the design of technology. There is a critical media literacy as well as a critical media ability that we lack.

Fourth, if we are, indeed, interested in the pursuit of social justice -- and this is why tech design is different from engineering or cooking -- then lawyers and law schools need to be in the “business” of designing and architecting tools informed by these values.  It is the technological intermediaries that are the strongest forces shaping expression in the digital age.  The design of the interfaces determine what we and cannot do or say online.There are well-known exceptions but, for the most part, the new frontier of cyberlaw is tamed by the old conventions of the legal academy.

Fifth, the best offense against an IP maximalist agenda is a good offense.  The content owners are seeking to control our use of intellectual property, not only through lobbying and litigation, but through technological strategies.  We need to focus our efforts -- as some do -- on developing counter-measures, alternative technologies that promote freedom.

Sixth, lawyers like coders think in terms of procedure.  We are used to devising rules for social behavior and translating them into the text of legal code.  First you file a complaint then an answer then a reply and then a motion to dismiss.  This is not much different from coders who also devise a set of steps and then implement their work in software that controls and constrains some actions while enabling others.  Our professional rhetoric is merely two different dialects of the same language.

Seventh, there are opportunities emerging to use technology to participate in the work of governance.   By domesticating cyberlaw and limiting it to only a certain set of skills, we forego the opportunity to develop technologies for democracy.  If we leave it to the techies, we risk the opportunity to inform their design with our values.  If we do it by ourselves, however, we run the risk of not knowing all the options available to us.

Rebooting America Essay Contest Deadline May 1

All the details are here:
http://www.techpresident.com/blog/entry/23763/announcing_rebooting_democracy

Contributors include: Clay Shirky, Yochai Benkler, Susan Crawford, Craig Newmark, danah boyd, Scott Heiferman, Tara Hunt, Josh Marshall, Howard Rheingold, Brad Templeton, Mike Turk, James Rucker, Morra Aarons, Patrick Ruffini, Lisa Stone,  Joe Trippi  and me offering ideas on how to reinvent democracy in America using the Internet.

Here's the posting.

Want to win a free pass to PdF 2008? Send us your ideas...

Today we’re happy to announce a new PdF book project called Rebooting America: Democracy in the 21st Century, an anthology of essays from leading thinkers and activists (check out the impressive list here) that we'll be publishing to coincide with this year's Personal Democracy Forum conference June 23-24 in New York City.

The anthology features our essayists' response to this challenge:

When the Framers met in Philadelphia in 1787, they bravely conjured a new form of self-government. But they couldn’t have imagined a mass society with instantaneous, many-to-many communications or many of the other innovations of modernity. So, replacing that quill pen with a mouse, imagine that you have to power to redesign American democracy for the Internet Age. What would you do?

We’re quite pleased with the group of contributors we’ve lined up. But the collection wouldn’t be complete without reading your thoughts, too, so we’re inviting our readers to submit essays telling us how to make America better, stronger, more inclusive and participatory, and to vote on their favorite essays. Up to three winning essays will be included in the anthology.

Go here to submit your essay and to view previously submitted essays from other readers. If you like someone’s essay, vote it up, if you don’t, vote it down, and we’ll take your opinions into account. The book’s editors, Allison Fine, Micah Sifry, Andrew Rasiej and Josh Levy will be making the final decision.

Essays should run from 500 to 1500 words, and the deadline is May 1.  If you’re interesting in submitting your ideas, go to http://rebooting.personaldemocracy.com to get started. 

If you've already registered for PdF 2008, don't worry--you can still submit an essay. If you win, we'll refund your fee.

Larry and Eben

Today Larry Lessig gave his inaugural Change Congress speech at the National Press Club in Washington.

I was struck when listening to it by the parallels (superb delivery) and the profound differences to Eben Moglen's talk last year to the Scottish Society for Computers and Law.  Nominally, a speech about the computer industry after GPL v. 3, it was, in fact, a disquisition about freedom and the opportunity to transform law into a collaborative act of creative people.

Not surprisingly, their intellectual approaches to politics mirror their political approaches to intellectual property.

For Moglen, the crusader for open source licensing, it's not about software but about freedom and societal reform writ large.  He wants to upend the intellectual property regime as we know it and the monopoly industries that profit from it.   "If it is easily possible to give to each human being who wishes it everything of utility and beauty at low or zero cost, why is it ever moral to exclude anyone from anything she wants?”

By contrast, Creative Commons focuses on the individual.  Give people the freedom to decide how to dispose of their own intellectual property.  Preserve property but enable the means to give away the rights that we don't want to keep.

Now Powerpoint Goes to Washington, not to get rid of Congress, but to reform it.  Get politicians to pledge not to take money form lobbyists and to commit to public financing for elections but preserve the status quo.  Use wiki-based tools to deploy an army of collaborators to keep the politicians honest and accountable (though, I must add, that is not one of the better visualization tools available by a long shot!). It is the incremental approach, the practical approach, the doable reform.  And like Creative Commons, it'll happen and will take off.

Moglen says “What the Net can do to politics in the YouTube, Wi-Fi, MoveOn, Facebook,the MySpace, FlashMob era remains to be written out in full.”  He wants to move away from a political regime where governance is based on territoriality and, instead, let affiliation drive the legitimacy of governance.  The audience of lawyers was expecting to hear about software contracts and, instead, was treated to a lecture about democracy.  His vision is reflected in the verve he has brought to the free software movement which has fundamentally transformed innovation today.

While Eben is an optimist, inclined to trust people's ability to collaborate and work together, Larry is strikingly a pessimist, full of dismay at the state of the body politic.  Yet while Eben is revolutionary, nay, evolutionary, in his take on government, Larry wants to preserve the status quo (or at least pretends to and it is one way to get things done).

My own view is that we need to combine both: Lessig's orientation toward action and pragmatism with Moglen's boldness of vision.

We need to stop viewing our institutions of government and governance as static and reified in their current form and, instead, start asking, not how to use technology to make Congress more transparent but how to use technology to make us more powerful.

I don't want to blow up Congress (well, I do but that's for another day) but to extend its intelligence by connecting the power of the network to the structure of the institution and to change fundamentally the way government works.  Michael Schudson writes about the "monitorial citizen" who, because she is so busy and overwhelmed (read: not too bright) should play the role of policing government and making it more accountable.  This is what the Change Congress movement will do using the cool tools.  It's important and useful but it's not enough and does not fully recognize the potential of ordinary people to do extraordinary things.  It's pretty pessimistic, not about Congress, but about us.

The idea that all we are good for is to blog about what happens in Washington or even to make maps and mash-ups of when and with whom the politicians went to lunch is to ignore the larger opportunity to get involved with making the science that contributes to our understanding of public health and obesity, analyzing the data about global warming, participating in the drafting of policies about these and other fields and overseeing the work of those who implement them through citizen juries assigned to every official.  I'm all for "change Congress" but then let's really change it for the better!

Really Secret

Craig Newmark sent around the link for Lessig's Sunshine Week lecture today on corruption and transparency.

Today, at a lecture here in Washington, sponsored by Sunlight and Omidyar Network, he's launching the ChangeCongress project where he'll focus his academic interests on the issue of the systemic corruption of American democracy. Lessig will outline his hopes for ChangeCongress and how it will help citizens reclaim their democracy from the culture of corruption.

Check that link for the webcast and more.

Ironically, I can't access the webcast.  Despite 47 different downloads of various bits and bobs, the webcaster only wants to work with IE, which I don't have.  Too funny.  I'll wait for YouTube.

 

Secrecy

Historian of science, Arnold Pacey has written that the history of science and technology is the story of an evolution toward visual thinking and representations that render human understanding more visible.

It is perhaps, therefore, not surprising that Harvard historian, Peter Galison, author of two books I love, Image and Logic, and Einstein's Clocks, Poincare's Maps that make the arcana of particle physics more visible and more intelligible should be making a documentary about secrecy.

As the Harvard alumni newsletter reports appropriately during Sunshine Week

"Peter Galison, Pellegrino University Professor in the Department of the History of Science and the Department of Physics, and Robb Moss, Rudolf Arnheim Lecturer on Filmmaking in the Department of Visual and Environmental Studies, explore the shadowy world of concealment, classification, and cover-ups at the highest levels of American government in their new film, titled “Secrecy.” The film was accepted in the feature documentary competition at the Sundance Film Festival in late January, and it will be shown at the Harvard Film Archive on Friday (Feb. 29)."

“There is no doubt that secrecy is one of the central issues of our time,” said Galison. “It raises important questions about how democratic institutions function when things aren’t known. When is government secrecy necessary? What are its problems? What does secrecy do to those who are close to it?”

Photosynth, Infosynth, CivicSynth

The East Village Idiot is a popular blog for “bitching and whining, comically” about New York.  It frequently features postings complaining about such things as the condition of New York City’s streets. 

While the Urban Institute's  National Neighborhood Indicators Partnership (NNIP) provisions data about local conditions top down, New York City’s 311 is, at least in part, a bottom up solution to gathering information. New York City’s 311 service is a telephone hotline to access municipal government services.  In addition to using the hot-line to request information or find out about City benefits, 311 also functions as a complaint hotline to report street conditions, such as broken street lights and severe potholes.  South Korea offers a similar one-stop-shopping for public complaints as does the UK ePetitions website.  The City then reports out annual statistics on the most frequent inquiries on an aggregated and neighborhood basis.

FixMyStreet is a beta project in the UK developed by mySociety.org, a charitable project which builds demonstration websites for civic and community purposes.  FixMyStreet, which also created the ePetitions website, allows a resident to enter a UK postcode or street name, to pinpoint a problem on a map of that area, attach a photo of the broken street light or pothole or protruding tree roots and enter details of the problem.  MySociety then sends the reported broken paving or abandoned vehicle complaint to the appropriate town council for repair and resolution.

Launched almost a decade ago, Connecticut Policy and Economic Council’s CityScan project, does not simply encourage complaining.  It goes beyond the “bitching and whining” of the blogs and the hotlines and online petitions and, though the much older project, did more than simply channel complaints to government like FixMyStreet.

CityScan did one better by actively working with the institutions of local government in Connecticut’s most troubled cities.  Instead of dumping information on them, the group worked out a strategy for collaboration between the institutions of government and community members.  City Scan asked town officials to tell them (not the other way around) the number of derelict land-use sites, graffiti-defaced buildings and run-down parks the municipality will clean up each month.  It them mobilized young people and seniors in their own neighborhoods to use digital cameras and handheld computers to hold the city accountable to its promise. City Scan used the state of the art technology — which at that time were digital cameras and first-generation PDAs — to prepare visual reports and maps created from the data. The City of Gainesville, too, gives citizens the technology to create geographic maps and plot crime incidents from the community policy blotter. City Scan does not view citizens as simply passive consumers of information but as active collaborators in the work of governance.  The CityScan neighborhood groups worked with and held local government officials accountable while collaborating on the clean-up effort. CityScan offered the additional benefit of bringing youth and seniors together towards a common goal.

Projects like CityScan that directly connect the communities to the institutional decision-makers are still the rarity.  Despite technological advances, entrepreneurs are still creating complaint websites and blogs largely because we still cannot imagine for ourselves that WE not government are the locus for social change and innovation. Benedict Anderson in his influential book, Imagined Communities, writes of the need to transcend geography or other equally artificial boundaries and instead to imagine who needs to be part of a community. This is consonant with a systems approach to envisioning who is motivated to want to solve a problem.  By starting with the problem (not with the jurisdiction of a particular agency) and thinking across disciplinary boundaries, institutional scale and silos, we can solve a problem in myriad ways, bringing law and technology to bear in tandem. An environmental effort to improve land use conditions can be tackled both through traditional rulemaking and legislation but change would happen faster — and be less fraught by political manipulations — by also by using software to do the practices of environmental action, including information gathering, evaluation, drafting and organizing collective action.

As CityScan demonstrated, the question of land use is not only an issue for lawyers, government officials or even relevant industries but one that could be addressed to the unlikely community of teens and seniors.  They were able to participate in solving the problem as well as pointing it out. Now imagine adopting an approach like that of CityScan but using the latest tools available to us today, replacing old cameras with Microsoft’s Photosynth technology.

Jeff Jonas beat me to the punch by writing about Photosynth. the coolest tech thing since sliced virtual bread, which we were discussing at Legal Futures.  Take a look at this video about “Photosynth” presented by Blaise Aguera y Arcas at a TED conference last year.   

Breath-taking.

Photosynth seamlessly stitches together photos taken by any photographer with any equipment and at any scale (from detailed to panned).  Photosynth, for example, can assemble a large collection of photos from Flickr or any source, analyze them for similarities (it doesn't need tags) and assemble them to create, effectively, a three-dimensional recreation of a space.  Here's what Microsoft Live Labs, which acquired Photosynth, says about the project:

    * Walk or fly through a scene to see photos from any angle.
    * Seamlessly zoom in or out of a photo whether it's megapixels or gigapixels in size.
    * See where pictures were taken in relation to one another.
    * Find similar photos to the one you're currently viewing.
    * Send a collection - or a particular view of one - to a friend

The uninteresting reaction to Photosynth is to say: monumental privacy, copyright and trademark issues.  Oy!  But who cares.

As Jeff writes: "Now imagine the process of stitching together not just digital images … but all available data – across disparate data types (e.g., structured, unstructured text, images, video, audio, etc.)."

This is the future of the multiverse or, as Richard Bartle once put it at the State of Play conference (here more precisely) the Microverse, the ability to create our own virtual worlds.  Its just a matter of time before I can walk through and interact in the spaces created and re-created by photosynth and can integrate more than just visual information.

I can't help but think about the civic applications of this photo-documentation technology, which could create the ability for communities to record and document their own environmental and land-use conditions at any scale.

Photosynth recognizes patterns and edges in order to align the images and create lifelike three-dimensional experiences of a place, allowing easy zooming to show the neighborhood and the smallest details of graffiti and garbage.  Photosynth and the evolving visual technologies make it easy to do photo-documention of a community without any prior coordination or even tagging and labeling of the photos.  Meanwhile the Urban Institute's National Neighborhood Indicators Partnership (NNIP) furthers the development and use of neighborhood information systems — databases and mapping systems about local conditions — in local policy making and community building.  With partnerships everywhere from Des Moines, Iowa to Camden, New Jersey, the aim is to revitalize local communities.  But NNIP delivers data “top down” and does not involve communities in gathering data for themselves as they could do more effectively with Photosynth.

Because the software itself recognizes that a disparate collection of images are all of the same subject, puts them together, it creates an easy way not only to grow the store of data but to produce accountability and target clean up efforts like CityScan.  Meanwhile Helping Hands: Computer Support for Community-Maintained Artifacts of Lasting Value, a research project launched by Prof. John Riedl of University of Minnesota aims to make it easy for communities to create and maintain valuable resources like Wikipedia.  They deploy a recommender system to help people find parts of the project they will be most able and willing to improve. State laws requiring assessment of environmental impact or impact on community character may offer a useful framework and guideline for collection and a benchmark against which to measure improvements.

Neither law nor technology alone are enough, however, but a systems approach allows both to be brought to bear to create greater effectiveness and opportunities for engagement, not for its own sake, but to solve a problem in the world at scale.

PreCYdent's Web of Law Free Legal Search Engine

Right Coast blogger and author of the article, Web of Law on legal citation networks,  Thomas Smith, launches Precydent.

Here's an interview by Law Librarian Blog with Thomas Smith about the project.

And here's his email, inviting participation:

PreCYdent is a free legal research site that applies new search technology to law, which is much, much more effective at finding authoritative and relevant cases than Westlaw or Lexis.  The idea is that anybody, whether they are a lawyer or not, and whether or not they can afford what the big companies charge, ought to be able to do effective legal research online.

PreCYdent was founded by me and Antonio Tomarchio, a mathematician from the Politecnico di Milano (and my co-author) to remedy the deplorable state of the search technology that lawyers have to use in their online research.  The online legal research industry is dominated by a couple of big players that make billions of dollars a year offering obsolete technology at high prices to lawyers who don't have much choice.  This relative lack of competition is responsible in my view for the backwardness of the technology.

But it also turns out that making search technology that works well in legal databases is really, really hard.  Existing technologies, including Google's PageRank, do not work very well in legal authority networks.  But we created something that does work well.  If you are used to Westlaw or Lexis, I think you will notice the difference right away.  Our tests show we return relevant cases at something like 4 to 5 times the rate of Westlaw and Lexis.  But let us know what your impressions are.

Here's an interesting post about us by a technology blogger in Southern California (as you can tell, it's a candid, non- sock puppet review): http://www.techcoastreview.com/2008/03/precydent-setting-precident.html

We are trying to get the word out about PreCYdent as efficiently as we can.  If you know lawyers or others interested in law, or people interested in web apps and technology, we'd be grateful if you would forward this message to them.  The site is free, and we are not trying to sell anything to anybody, unless you count the ads in the margins.  We are committed to bringing free law to everybody interested in it.