[Air-L] on the Wayback Machine (was public/private [part1 of 2])

[Hugemusic]

This is not meant to be a legal point, but a philosophical one. The legal
issues are much more complex and ultimately, for this purpose, futile, IMHO.

My understanding is that there is a significant body of case law in the
Western world (possibly the US is the exception here because of their unique
approach to free speech), which holds that, for defamation purposes at
least, publication *does not have to be intentional*.  This makes sense in a
defamation context, because the damage done by defammatory allegations is
done regardless of the intent of the person who made them - a typo in a
newspaper can be just as damaging as an overheard comment, but neither
publication was intentional.

The implication of this is that once you put something in a public place, it
has been published ... QED.  Whether you meant your blog comment to be
private, whether you failed to realise that it was a public place or not, is
irrelevent.  The material has been published and must be dealt with on such
a basis ... Pandora's box is open and cannot be closed. It might be the very
fact and/or effect of accidental publication that is the object of study ...
Newspapers have been microfisched, complete with typos, for a very long time
...

As far as archiving goes, the Pandora analogy works well - once something is
on the 'Net it's almost impossible to erase it, and IMHO, you should not
attempt to.  There needs to be some record of what was there so that its
ripples can be understood. So, just as we teach our kids not to say hurtful
things when we're angry, so we have to teach our kids not to say private
things in public spaces ... and to withstand the Culture of Narcissism.

I therefore would back the notion that anything that is not locked away
behind a password on the Internet is fair game for researchers (but
diplomatic consent can make life a lot easier ...)

Cheers,
Hughie

The Genre Benders:  "I am leaving! I am leaving!"
    - out now at www.genrebenders.com
                        www.cdbaby.com/genrebenders





-----Original Message-----
From: air-l-bounces at listserv.aoir.org
[mailto:air-l-bounces at listserv.aoir.org] On Behalf Of Michael Zimmer
Sent: Tuesday, 14 August 2007 9:07 AM
To: air-l at listserv.aoir.org
Subject: Re: [Air-L] on the Wayback Machine (was public/private [part1 of
2])

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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