As the summer winds down, we’ve been feeling kind of philosophical. What does it all mean, and all that. As a practicing lawyer, I tend to focus on the little picture. We’ve got a problem, it relates to one thing, we try to solve it. FOCUS, dammit. That translates to the way I’ve written here at AM.com. A new piece of legislation passes, an interesting court case comes out, some government body releases a report, and we write about the minute details of a very small slice of law and the internet. We’ve never really looked at the big picture and the big issues. Until now.
There is actually a point to today’s endeavour, besides my usual desire to ramble on and on about something. This fall, I am thrilled to be an advisor to a new course at McGill University’s Faculty of Law, a seminar in Cyberlaw. As part of the first class next Tuesday, I will be rambling on about the internet and the law and asking what it’s all about (or something like that, who knows, I’m not really prepared). As an accompaniment to that lecture, I’m writing this post to show the seminar students how possibly insane their advisor is. So welcome, future cyberlawyers! Someday you too may be able to ramble incoherently on the internet, and be lauded for it. Just try not to be defamatory, mmmkay?
If you are not one of those law students, don’t run away! We’re gonna have some fun today. We’re going to cruise around the internet in a vintage VW minibus and look at some legal issues. Big picture stuff. Things that will make you go hmmm. We’re going to ask a lot of questions. Questions that may never be answered. But they are the type of questions everyone, and lawyers in particular, should be asking. So hop on the bus and let’s take a tour of the interwebz, one website at a time. This may be a long post.
Well, we might as well start at the top. What was once a nice little alternative to AltaVista is now a behemoth. It has probably taken over your online life, even if you don’t know it. Google’s business is not search, it’s data. It’s about knowing everything it can about your online activities and monetizing it. Google is tracking you.
Is that acceptable? You are getting a wide range of free services in exchange for your data. I personally don’t go an hour without using Gmail, or Google Docs, or Google Maps, or Google Translate, or Google Analytics, or, well, you get the picture. I’m not paying Google in money, I’m paying it in data. Now, the tiniest little mom and pop grocery store on the corner that maybe makes $100k a year has an enormous list of regulations and legal processes that govern its activity. Google and its FIFTY BILLION in annual revenues has barely any. How much government regulation should there be over data and personal information on the internet? If there is one overarching question of the internet and the law right now, that’s it. And what if it’s the government itself getting the data? Oooh boy, that’s a conundrum for lawyers.
Speaking of government regulation and data, welcome to the OPC! Here you will find PIPEDA, the federal legislation that ostensibly protects misuse of your personal information by corporations like Google. If you feel like your data has been compromised or is threatened, you can complain to the Commissioner. Then the Commissioner can… write a report. And that’s about it. Is that the type of government oversight we want / need? And frankly, how can one government do anything? As I always say, the internet crosses borders, while the law for the most part does not. Maybe we need international treaties to regulate the internet? Or to not regulate the internet?
Well we’ve escaped the ugliness of a government website so that we can hang out with our friends online. This will be fun! Or not, when you think about it. The list of legal issues with respect to Facebook is just too damn long to write out here. Luckily, I’ve done it elsewhere. And there was even a new one just yesterday! Facebook is the place where your online and offline lives meet. That has enormous implications for your legal rights and responsibilities. Should your employer be allowed to use your Facebook activities against you IRL? Should the government? Should anyone? Facebook does not allow you to be anonymous, and in fact requires you to use your real name under their Terms and Conditions. You are forced to be you on Facebook. Wasn’t the point of the internet to do what we wanted and not worry how it affected our real lives? Oh and BTW, it’s really close as to who makes more money off your data, Facebook or Google.
Now we’ve crossed the Anonymous Mountains and arrived on the other side. Here you can pretty much do anything anonymously and not worry about implications for real life. Reddit includes subreddits that most people would never admit to visiting in real life. DO NOT CLICK ON THE FOLLOWING LINKS. Dragons fucking cars? Butt Sharpies? It’s all there, all anonymous. Is that a good thing?
Anonymity allows for truly free speech. Is that a good thing? If you are living in a totalitarian country and need to protest the government, probably so. But should you be able to say what you want under the cloak of anonymity, perhaps defaming with impunity? What if I told you there were subreddits not just for weird pr0n, but some of the most hateful, misogynist, racist things you can imagine? Canada has hate speech laws, you know. Should you be able to make any comments you want anonymously, if they are not hate speech? Brian Burke doesn’t think so. Some governments don’t think so. That last link is not to China; it’s to New York State. Speaking of anonymity…
I must have taken a wrong turn, because I just can’t find this place anywhere! Here’s a hint, but they are just not going to give us directions. Sorry about that.
The internet has no police. Anonymous, kings of the “hacktivists”, are probably as close as there is. Should we allow some (loosely affiliated) group with no oversight to be the metaphorical judge, jury, and executioner? Maybe Project Chanology or Operation Tunisia were good things. Anonymous goes after homophobes and child pornographers. But should they be allowed to go after corporations for actions they don’t like? We have the courts you know. Are they the police or the criminals? Some lawyer is gong to have to figure that one out.
This internet tour may go on for a while. We should watch a movie or something to keep us entertained between stops.
I didn’t say we should steal a movie. The internet has made copyright infringement much easier than when you had to go buy Chinese DVDs from behind the mall only to find out you couldn’t play them because they were PAL-encoded. It has become so easy to infringe copyright these days that even respected lawyers do it. Can IP laws keep up with technology? Canada thinks they can. Should culture be free? And the internet facilitates creativity – should IP laws allow us to use copyrighted materials in furtherance of our own creative ends? What if we make money off of our creativity, but other people’s copyrighted works? This all sounds like a cue for a musical interlude:
OK we better steer clear of these IP issues for now, let’s go buy a movie legitimately.
What legal issues could our favourite little online retailer have? Oh man, what issue don’t they have? Start with the entirety of private law of contracts. e-Commerce laws. Traditional commerce laws. A huge patent issue. Taxes – Amazon may be headed to the U.S. Supreme Court over taxes. And like every other website, data and privacy. I recently was searching on Amazon for an iPhone dock with speakers so I could crank up some tunes on my balcony. I never bought one. But for the next two months, it seemed everywhere I went on the web there were Amazon ads for iPhone docks. It kind of freaked me out man. Online businesses bring a whole new set of issues, while at the same time highlighting the problems of applying offline laws online. Ask any American buying Canadian pharmaceuticals on the web.
It’s getting late on this tour; it’s well after midnight. Let’s head over to the dirtier side of the internet.
The Dirty (moderately NSFW)
As an individual, what rights should you have to your reputation and your likeness online? The Dirty puts that to the test every day. They post a picture of some non-famous person, then report that the person is a cokehead skank ho (for example). But what if that information is false? Well not to worry, The Dirty disclaims their way out of it:
The content that is published contains rumors, speculation, assumptions, opinions, and factual information. Postings may contain erroneous or inaccurate information. The owner of this site does not ensure the accuracy of any content presented on TheDirty.com.
We’re making shit up, but we’re telling you we are, so it’s cool! Should that be allowed? The issue of these individual rights is not limited to The Dirty. Let’s say I was at a friend’s bachelour party and got hammered and ended up sick all over some exotic dancers. This is all hypothetical remember. The bride’s cousin from Calgary takes a picture and puts it on Facebook. Someone tags my face in the pic. Before I can get it removed, it goes viral, with my name and the tag “respected lawyer loves to partaaaayyy!!!!”. My reputation sullied and my likeness used without permission, my legal career is essentially over. Thanks, internet. Where was the law to protect me?
The Gift Shop
Our tour has come to an end. Please enjoy the snack bar and perhaps you’d like to buy something in the internet gift shop. Google Glass maybe? Your purchase comes with a whole new set of privacy issues! Technology always seems to outpace the law. The challenge for any lawyer, public or private, is to try to keep up. Future cyberlawyers – good luck with that.