[Air-L] on the Wayback Machine (was public/private [part 1 of 2])

Michael Zimmer michael.zimmer at nyu.edu
Mon Aug 13 18:47:59 PDT 2007 

I'm not a lawyer either :)

But to complicate your argument below (and Hughie's in a separate  
thread), a couple of thought experiments:

Say I place content on a "publicly accessible" webpage without  
creating any incoming links or notifying anyone. Web crawlers won't  
find it. A search engine won't index it. While on the open and public  
Internet, unless a random URL-generator happens to guess the precise  
address of the page, no one will ever read it. Is this content "fair  
game for researchers"?

Consider a different scenario: Walking down the street with a friend,  
I comment on the fact my rent check bounced, and she offers  
condolences. We're in public. We make the utterances loud enough that  
someone next to us could easily hear it, but not loud enough that  
someone across the street can. Now, this is a public utterance - we  
didn't have the conversation behind locked (password-protected)  
doors. Can this be archived for research? Better yet, can we setup  
microphones to automatically record every conversation uttered in  
public? Does the fact these conversations *can* be recorded and  
archived mean they, by default, *should be*? I feel we're saying the  
same about utterances on the Web - so what's the fundamental  
difference from a user perspective between the street and the Web?  
Both are a place where we engage in conversations and maintain  
relationships....

I fear we're confusing what the Internet *is* and *is capable of*  
with *how it is used*. Yes, comments left on a personal blog are open  
for anyone to see. Yes, discussion board conversations can be  
archived. But that's not, I suspect, going through the mind of many  
casual users of this technology. It is a medium for communication,  
for connecting with people. I leave messages on my neighborhood  
parents discussion board because that's how I connect with that  
community. I use my real name because I'm among friends. Does that  
mean my comments are de facto fair game for any researcher who wants  
to scrape the database?

I don't claim to have any answers here - just wondering how to work  
through the problem at hand....

-mz



-----
Michael Zimmer, PhD
Microsoft Fellow, Information Society Project, Yale Law School
e: michael.zimmer at nyu.edu
w: http://michaelzimmer.org



On Aug 13, 2007, at 8:40 PM, Lois Ann Scheidt wrote:

> My point was not related to the actual capturing of the pictures or
> their posting on the web...I have lots of questions about the  
> ethics of
> both those acts.  My point is that once they were posted on a publicly
> accessible website, the late night talk show hosts didn't  
> substantially
> increase the potential audience for the posted pictures.
>
> As for your final comment...clearly we disagree on that one in  
> relation
> to research at least...and as I am not a lawyer I will make no  
> comments
> outside that limitation.
>
> Lois Ann Scheidt
>
> Doctoral Student - School of Library and Information Science, Indiana
> University, Bloomington IN USA
>
> Adjunct Instructor - School of Informatics, IUPUI, Indianapolis IN  
> USA and
> IUPUC, Columbus IN USA
>
> Webpage:  http://www.loisscheidt.com
> Blog:  http://www.professional-lurker.com
>
>
> Quoting Michael Zimmer <michael.zimmer at nyu.edu>:
>
>> How are they not adding to the potential audience? When I'm sitting
>> in the park, there are a finite number of people in the park who
>> happen to be looking in my direction at the precise moment my finger
>> enters my nose. Isn't that often part of the calculus when people do
>> embarrassing things in public - that few people will see it, and
>> those that do don't know me, etc.
>>
>> Now, having said action captured by a camera -- a camera, mind you,
>> that no one gave consent to (many public CCTV systems are required to
>> at least post notice - not so with Google's cute little cars roaming
>> our cities with their 11-lens cameras) -- and then indexed and
>> uploaded by one of the world's largest brokers of information
>> constitutes a significant shift in my expectations of the visibility
>> of my action. I had never considered (nor had any say in the matter)
>> as to whether it would be recorded, meta-tagged with a location
>> (perhaps even the date), nor made available online.
>>
>> Even if we feel that isn't a violation of contextual integrity (see
>> Nissenbaum), I could perhaps rest assured that it is highly unlikely
>> that someone happens to stumble upon that particular image from the
>> millions captured by Google. Surely, few will find it, let alone my
>> mother. Enter Mr Leno & Mr Letterman (don't know if it was them - but
>> for sake of example...). Now, instead of me relying on the obscurity
>> of the particular image to protect my embarrassment, its existence
>> and URL has been broadcast to millions by two popular and trusted
>> celebrities. Ping!
>>
>> IMO, the whole "you did it in public anyway" argument holds little
>> water...
>>
>> -mz
>>
>> -----
>> Michael Zimmer, PhD
>> Microsoft Fellow, Information Society Project, Yale Law School
>> e: michael.zimmer at nyu.edu
>> w: http://michaelzimmer.org
>>
>>
>>
>> On Aug 13, 2007, at 6:43 PM, Lois Ann Scheidt wrote:
>>>
>>> Not to mention the potential embarrassment to the gentleman from
>>> Arizona - I think it was Arizona - who was captured sitting on a  
>>> park
>>> bench picking his nose.  The potential embarrassment would be
>>> increased
>>> - at least in some writers estimation - because all the late night
>>> talk
>>> show hosts pointed directly at this guy in their monologues...even
>>> giving the URL in some cases.
>>>
>>> HOWEVER, since the action in question - said nose picking - took  
>>> place
>>> in public and was captured and posted on the web...the late night  
>>> talk
>>> show hosts might have been shining a brighter light on the whole  
>>> thing
>>> but they were not adding to the potential audience.
>>>
>>>
>>> Lois
>>>
>>
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>
>
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