People keep asking me what my research agenda is.  At the highest level, I’m (currently) focused on First Amendment architectures – the physical and technical artifacts of modern life that affect our ability to speak freely.   

In this vein, one of the papers I’m working on involves a particularly interesting artifact developed in the last 50 years or so – privately owned public spaces, or POPS.  POPS were developed in New York City as a part of the 1961 Zoning Resolution.  POPS were created to increase the availability of friendly, usable public space in a city that was increasingly becoming a haven for metal and concrete.   So, under the 1961 Zoning Resolution, developers who created POPS were able to secure bonus floor area that allowed them to build taller buildings, with more metal and concrete.  

The 1961 Zoning Resolution represented the first time New York City deployed its zoning power affirmatively instead of negatively – providing carrots instead of sticks to developers.  And it worked.  There are now 503 POPS at 320 office, residential, and community facilities across the City.  Perhaps the most famous among them, Zuccotti Park, the home of the City’s Occupy Movement.  Some are better than others, and that is because over the years, the City has refined the language to ensure that POPS are created in a way that in fact secures friendly, usable public fora. 

What fascinates me most about POPS is that they are a little discussed alternative to the traditional public forum. Public forum doctrine emerged from the understanding that for the First Amendment to be relevant, its promise of ‘no government infringement on speech’ must attach to another, unenumerated promise – one that guarantees people the right to access public fora so that they may be heard.   And so, the Supreme Court, in Hague and then more elaborately in Perry, decided that some government property, like streets, sidewalks, and parks, were presumptively open because of how fundamentally important they are to being able to speak and be heard.  This discussion gets more interesting when we consider the newest horizons of valuable real estate when it comes to being heard: social networks and search engines.  As many people have argued (see.e.g, Nunziato, Balkin, and most recently Ammori) the public forum as limited to sidewalks, streets and parks, is unhelpful when we’re living in a Digital World.   

This begs the question, how do we establish a public forum on the Internet?   The wires that we communicate through are owned by the private sector.  The social networking sites that we communicate on are owned by the private sector.    The government can’t simply declare Comcast’s pipes or Facebook’s network a public forum without being ready to fight a pretty egregious Takings claim and setting a dangerous precedent.     Yet, to preserve First Amendment values requires the establishment of something like a public forum online – the establishment of digital parks and street corners for a citizen to voice concern or compliments and be heard by his neighbors. 

I’m positing a POPS-styled incentive-zoning scheme on the Internet as a potentially viable solution.  What might the carrot be?  It could be a relaxation of antitrust regulation, privacy requirements, or even a promise of better intermediary protections in the face of ever-stronger copyright enforcement.  You could imagine an incentive zoning scheme that would allow private sector companies to maintain monopolies, despite the limitations of Antitrust law, or collect data on individuals, despite the limitations of FTC enforced privacy requirements, or protect intermediaries from copyright infringement claims on its network, under the condition that those private sector companies architect their communication conduits or services in way that preserves First Amendment values.  

The idea is not fully baked, and there are a number of issues to be considered.  Here are the ones I’m working through now:

• Why use incentive zoning to create public fora on the Internet instead of legislatively mandating public fora-style places on private networks, as we’ve done before with telegraphs, telephones, and cable?  
• At the crux of the incentive system is a trade-off.  Does this incentive system create an undesirable trade-off where our ability to speak is traded for our privacy or our protection from anti-competitive behavior?  Alternately put, am I suggesting a deal with the Devil?
• What would an incentive zoning agreement look like with a company like Facebook? Google? Comcast? AT&T? Those are very different companies and preserving First Amendment values on each will mean different things.  What would each company have to promise to do – and what would users give up in return?
• What about the First Amendment rights of Facebook?  Google? Comcast? AT&T? Assume Congress passes a law allowing incentive zoning as a way to create public forums on the Internet.  And then further assume that Facebook agrees to the terms of the incentive zoning agreement.  By doing that, is Facebook giving up its own First Amendment rights?

There are undoubtedly more issues, but that’s where I’m starting.  If you have suggestions or general thoughts on the matter – let me know.  I’m still very much in the first iterations of this paper. 

Alexander Furnas has a great piece in The Atlantic titled "Why An International Trade Agreement Could Be as Bad as SOPA," that clearly and concisely explains the issues with ACTA.   The main point Furnas draws, and one I agree with, is that while ACTA still has some bad provisions in it, its biggest problem is that it entrenches current IP laws (in the U.S.) in such a way that "democratically elected national legislators will have their hands tied by undemocratically drafted international agreements should they choose to alter or repeal their existing IP laws."   From an international perspective, there are even worse issues.  Multilateral agreements like ACTA often do not adquately protect the interests of poorer and less powerful countries that are not always granted a seat at the negotiating table before being asked to sign on to the agreement. All in all, not a great situation.  

The US ratified ACTA last year (whether it has done so legally is a separate issue) and the EU Parliament is now debating ratification.  Should be interesting.

I often use the word debacle for hyperbolic effect.  I’ll describe awkward social interactions or attempts in the kitchen as debacles.  But the way the government has handled the Megaupload case seems to be a debacle in the truer sense of the word: as defined by the Oxford English Dictionary, “a sudden and ignominious failure; a fiasco.”

In the case of Megaupload, the debacle is two-fold.  First, there are serious constitutional and sub-constitutional issues with the government’s behavior. For the purposes of this post, I will stick to the constitutional legal issues as they illustrate the broader themes that have turned this case into such a fiasco. Second, the Megaupload episode creates a number of practical issues in the short and long term – for Megaupload users and operators and users of cloud services generally.  I will discuss a couple of these too.

But first, a bit of history.  Feel free to skip ahead if you’re already up to speed with story of Kim DotCom and the demise of his Mega Empire.

A brief history of the Megaupload situation

There has been much ink spilled in tech mags and rags on what happened to Megaupload and its odd owner, Kim DotCom.   The short of is this:

-       Megaupload is a cyberlocker.  It's a place where you store large amounts of data remotely so that you can access it from any device, at any time, and if you so desire, share it with other people.

-       Some people used Megaupload for allegedly illegal purposes.  (I say “allegedly” not because I think there’s any question as to whether the service was used, by some, for illegal purposes, but rather because no court has formally ruled that Megaupload was used for illegal purposes.) 

-       Others did not.  For example, author Alex Beecroft explains, “I used MegaUpload a lot in order to send perfectly legal high resolution book cover art which I made with legally bought stock photos over to publishers so they could put them on their books. The high resolution files were simply too big to send in an email.  How am I going to get my cover art to its legal purchaser if people keep taking down file sharing sites just because some bozos are using them illegally?”  Other examples are shared by Ars Technica and TechDirt.

-       The FBI went after Megaupload and now U.S. prosecutors have blocked access to Megaupload’s various sites and have charged seven men with charges ranging from racketeering, conspiracy to commit copyright violations, conspiracy to commit money laundering, and multiple charges arising from criminal copyright infringement.

-       The indictment was issued January 5, 2012.  On January 19, 2012, the DoJ shut down Megaupload.  

-       After shutting down the entire website, on January 27, 2012, the DoJ sent a letter to Megaupload’s lawyers saying:

Now that the United States has completed execution of its search warrants, the United States has no continuing right to access the Mega Servers.  The Mega Servers are not in the actual or constructive custody or control of the United States, but remain at the premises controlled by, and currently under the control of, Carpathia and Cogent.  Should the defendants wish to obtain independent access to the Mega Servers, or coordinate third-party access to data housed on Mega Servers, that issue must be resolved directly with Cogent or Carpathia. It is our understanding that the hosting companies may begin deleting the contents of the servers beginning as early as February 2, 2012.

-       That’s right.  So every user at Megaupload effectively got screwed.  The good ones and bad ones alike.  But the story, thankfully, doesn't end there. Megaupload users have been granted a temporary reprieve from imminent loss of property when both Carpathia Hosting and Cogent Communications agreed not to delete any Megaupload data for at least two weeks.  And they are working with the fine folks at EFF to help sort out a way for folks to get their information back.

The Constitutional issues

4^th Amendment

-       The Constitution protects our right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures.” Security means that the government doesn’t get access to our papers or effects without a legally obtained warrant. 

-       The government seized the property of law-abiding people without a warrant.  That property may not have searched by the government, but the government definitively seized it between January 19, when it shut down the site, and January 27, when it transferred control to the hosting server companies.  And now, because they seized control of Megaupload and shut down its services without notice or plans for helping users retrieve their data, many people’s personal papers and effects are now inaccessible to them. 

1^st Amendment issues

-       The First Amendment prevents the government from limiting our right to free speech.  By shutting down an entire platform for communication and creativity instead of targeting the unprotected speech that was traversing across the platform, the government unfairly and unjustly infringed on the First Amendment rights of Megaupload users.   

5^th Amendment issues

-       The Fifth Amendment guarantees a right to both procedural and substantive due process.  Procedural due process means that the government must provide notice and an opportunity to be heard before taking away our life, liberty or property. Substantive due process concerns the protection of fundamental rights understood by but not specifically enumerated in the Constitution.  The scope of substantive due process is amorphous, but includes a right to privacy that protects against government intrusion into our most private affairs.  Both of these are at least partially at issue.  There has been a taking of legally owned property (though the government has now withdrawn any interest or claim to the property) with neither proper notice nor an opportunity to be heard.  Additionally, it may be argued, though it’s a long shot, that as our right to privacy extends fundamentally to what we do in our homes, this right protects who we privately communicate with from our computers and the materials we share with them.

-       There’s also an interesting takings issue that Evan Brown flagged on his blog.  Under the 5^th Amendment, the Government cannot take private property for public use without just compensation.  While the Government was quarantining and reviewing files stored on Megaupload’s servers, the government had functionally take private property for public use without just compensation.   That said, I don’t think this line of logic will hold up, mostly because of the questionable distinction between public use and police power that Brown points to as discussed on Volokh Conspiracy a couple years ago.

The practical issues moving forward

            The Short Term: The problem of the data hot potato

Of course, now that the government has executed the warrant, it no longer retains actual or constructive control over the information on Megaupload servers.  Now, unfortunately, the government has not reinstated the site to allow people to access their information.  Since the government can’t help reconnect legitimate users of the service with their data (for one thing, it is (likely) outside the scope of the warrant to even look at their files), that leaves Megaupload or the hosting services that rented server space to Megaupload.  The latter prospect seems dim, as noted by Carpathia in one of its recent press releases, “Carpathia does not have, and has never had, access to the content on Megaupload’s servers.”  Thankfully, the hosting provider wants to “assist lawful users of the Megaupload service.”  Carpathia has agreed to keep the data up for a short period of time (though it has no legal obligation to do so, and is likely not getting paid by Megaupload, whose bank accounts have been frozen, to do so) and is working with EFF, to help Megaupload customers obtain legal assistance so that they might get their data back.  Megaupload might be able to help, though I'm not sure it will.  It’s out of business and its terms of service states (according to Wired) users “have no proprietary interest in any of the files on Megaupload’s servers” and that “Megaupload can terminate site operations without prior notice.”  

Even with Carpathia working with EFF, its still a giant mess – do users make a list of all the content that’s theirs, attest to the accuracy of the list, and then submit it to Carpathia?  What happens if people lie?  What happens if people ask for their illegal content back?  Does Carpathia have to obtain permission from users before it accesses their data to determine who the rightful owners are?  How would it obtain that permission?  

The Long-Term: The future of cloud services

The Megaupload debacle changes the ball game of cloud services.  One of the things that got Megaupload in trouble was that they allowed users to share their cyberlockers.  As Kashmir Hill describes, “The New York Times said the crackdown ‘sent shivers down the spines’ of other online storage sites, such as Dropbox, Mediafire, and Rapidshare, since their models, like Megaupload’s, could also allow users to share pirated material. While RapidShare is unconcerned, at least one file-sharing site was scared straight out of its business model. As of Friday, FileSonic was “the world’s best file-sharing site….Over the weekend, the site, based out of the UK and Hong Kong, disabled its sharing function, so that users can only ‘upload and retrieve files that you have uploaded personally.’ Its tagline now identifies it only as ‘the unlimited storage company.’”

The shutdown of Megaupload threatens any company that provides legitimate cloud services. It also threatens people’s livelihoods and our ability to communicate.  A closer look at how people legally use file sharing sites, like Megaupload, give some insight into the industries and activities that would suffer if cloud services companies fear legal action and prohibit file sharing or if the government continues to shut down file sharing sites and seize people’s data. The anecdotes below are all taken from an Ars Technica article I linked to earlier, but here it is again.  In each of the following examples, Ars provides a concrete example of common, legal activities that could disappear if file sharing in the cloud does not remain a robust, easy to access service.

-       Publishing (and Sharing Pictures and Videos with Family):

    “A book editor named Cassandra Olivia says graphics designers and editors she works with use Megaupload to exchange files for review, and that she uses it herself for sharing family and vacation photos with relatives who are ‘just technologically adept enough to click on a link.’”

-       Legitimate Music Development and Sharing:

 “Another reader tells us of accessing Phish concert MP3s—which are distributed legally because the band permits recording.

   “Professional musician Suzanne Barbieri e-mailed us to note that she used Megaupload to store and share music in part because most of her projects ‘are too large for something like YouSendIt”…. “‘I do session work in my home studio and upload the files so the clients can download them,’ Barbieri says. ‘The work I do for them is usually urgent with tight deadlines, so I have to be able to upload files. A courier service would be too expensive and too slow. I also use Megaupload to get my own music to my record label.’”

-       Code Sharing and App Development

  “Another reader tells us in the forums that ‘I’m an Android phone enthusiast, and Megaupload was one of the best ways to distribute custom ROMs and other Android mods. In fact, the ROM my phone is running right now I downloaded from MegaUpload shortly before it was shut down. There are a number of similar sites for this use, but Megaupload was always the fastest.’”

 “Massimiliano Fanciulli tells Ars ‘I’ve used Megaupload for distributing betas of my app Sleepy before publishing it on the Android Market. It was quick and easy to upload and share things.’”

-       Activism and Litigation

 “‘We do a decent amount of video stuff here and so I have to move too-big-for-email files around with some regularity,’ staff attorney Michael Weinberg of Public Knowledge tells Ars in an e-mail. ‘I like sites like Megaupload because they do not require an account—you just upload it, get the link, and send it out. It is also easy to tell other people to use it because you do not need to make a new account.’ Public Knowledge is a prominent SOPA opponent, and Weinberg was using Megaupload throughout the SOPA debate and right up until yesterday’s action against Megaupload. ‘As luck would have it, over the weekend I used my home laptop to pull down the stream of the House Judiciary Committee SOPA markup,’ Weinberg says. ‘I wanted to transfer it here to work so that I could cut it up into a video we were using. I uploaded it, but before I had a chance to download it Megaupload was shut down. I can't speak for everything happening on the site, but Megaupload was providing me a completely legitimate service for a completely legitimate end.’”

Those are my quick thoughts on Megaupload debacle.  It has raised serious legal issues, serious practical concerns, and has potentially equated, in the minds of some, file sharing behavior with illegal behavior.  A fiasco in the true sense of the word.

I am not, traditionally speaking, a technocrat.  I just liked the word "technocracy" and I didn't particularly want to spend more than a few moments picking out a name for this blog.  For what its worth, I am in favor of a democracy where our technology related laws and policies are crafted and interpreted by people who understand technology.  So, not quite a pure technocrat by philosophy, but at the very least one that would support the election and appointment of more technologically savvy people to our various branches of government.

More in a bit.  Just wanted to get the record straight.