Grounding for a metaphysics of legal theory in cyberspace: Informed by my failures and... You are now about to witness the strength of street knowledge.
Theory of distributed liability in the cloud. For what? Corporate? Criminal? What are we shooting for here Legal Eagles? Is this about process? What about distributed computing is like the corporate veil/hierarchy? How is use of cyberspace analogous to corporate action? If it is distributed computing, why not apply corporate theory, corporations are all about distributed authority and, like cyberspace, the reach of a corporation is usually spread across various jurisdictions that often overlap. Toward a theory of rights in cyberspace. Remember the SETI project. Are distributed rights akin to shareholder voting rights? Does Citizens United apply? Perhaps that action in the cloud should be regarded by the same standard as that of an individual stakeholder in cyberspace. Could rights that would imbue to a holder of 1 share per URL edited; be the model? And thus, could there be voting trusts, proxies, and, liability for wrongdoing. Conflicts could be settled according to the shareholder's agreement. What are the basic shareholder rights? Voting, proportionate stake, buy-sell agreement? Dissolution upon what? What is required for a quorum? How does this relate back to liability? What about a criminal act? What about a tort? What is crowdsourcing? Why am I thinking about RICO? How and what kinds of conspiracies can be claimed via communications made on social networks? Argue for a theory against this! This is a terrible and frightening idea. Where is cyberspace? The cloud is a social construct. Many simple corollaries apply in existing law that will give rise to an acceptable theory. Why do these standards not apply to wikileaks? We could write it on Wikipedia. Here, I'll start:...
Is a discovery related Listserve discoverable? Shouldn’t you append a confidentiality notice for the sake of the clients? Recently I tried to friend a deceased person. What happens to your FB page after you die? All that IP... Leave the rights to it in your will. And the password. Several childhood friends have made a career of politics. When I friended one recently, I deleted that headline from my wall. Was that the right call? What if you use FB to disseminate your employer's ideas or improve the pecuniary value of her brand? Does that make all your content subject to his Licensing Agreement?
What is the difference between a FB wall feed and a blog? HTML features, for starters. Is there a legal difference? Isn't code protected expression via the First Amendment?
The great redistribution of wealth will take place when monetizing one's blog becomes part of the standard canon of knowledge. To protect? To liberate? Publish means you put something out there in the world, irrevocably. Privileges will not apply. (Attorney-client, doctor-patient, cleric-penitent) HIPPA sanctions might. The rules that apply to all American legal proceedings are the rules of evidence. Who is on you FB block list? Why? Drop the names of people when you network socially if you are willing to accept responsibility for the legal fees associated with a lawsuit for violation of privacy or libel or anything else someone like me might think of. When the news broadcasts Sara Palin’s FB page, are they really being her Friend? What does it mean to "like" something, legally? It's a subscription, isn't it? Does MTV owns some rights to your page bc you use your FB page to to disseminate the articles you write for them? Google case says maybe, no?
If you need a warrant to go into a hotel room whilst a guest is checked in, shouldn't you need a warrant to access that individual’s browsing history if they purchase internet access whilst lodged in said hotel?
Should I friend my husband's tenants? Can this status be used to conflict me out of a legal matter? Is having something appear on your wall an effective form of notice? Can you credibly say you didn't know if it was on your wall? What is a permalink? What if someone who owes you money and claims poverty posts pics of a fabulous vacation on FB? Isn’t that art?
Why are people so rude in the virtual world? Is writing on someone's wall like visiting their porch or patio? Is Twitter like a CB radio? Foursquare and Gowalla are games! If I can drop a virtual balloon animal at a building that I have never visited, why do you think it pertains to your criminal investigation? Who owns the rights to an image you upload to Foursquare? Geo-tagging is the essence of these issues because it had limitless applications and has the potential to be borderless.
Is FB the largest trove of ethnographic information ever collected? I regularly weed, or edit my FB page. This is less about censorship and more about tweaking for anyone who joins later and wants to get a comprehensive look. Doesn’t that make my page more like art? How long does something deleted stay on the FB servers? What's their document retention policy?
You usually hold the copyright to any photo you take. Post it if you like and tag it so the subject is aware of its existence in cyberspace. If they don't like it, they can untag it. (Issue of notice- I didn't know it was out there.) If there are people in your photos you don't know, crop them out. Karma. Do you want people uploading your image to the web? Remember Photoshop exists, as does GIMP. Are you sharing, as opposed to publishing?
What happens when you introduce two attorneys who are both related to you via a social network? Should you get a referral fee?
If you generally make it a practice to go to a party and spend the whole night talking about politics, then the fact that everything on your FB page is about politics reflects who you are.
Many people will never meet you in veridity and the only thing they will know about you is the you presented via social networking. Who are you?
Reread Citizens United. Read Warshak UNTIL YOU KNOW IT INSIDE OUT. Teach it to everyone who can read and argue for its adoption in foreign countries. What does it mean to publish something? Are there degrees of published? What's the framework? How is it different from "sharing" via a social network?
If the ultimate issue in law is related to conflict of law principles, where does a theory of individual rights in cyberspace fit? What are the relevant laws? Electronic communications. Cross border communications. Long arm jurisdiction. If the ultimate game is about _by whose rules will we play_? Then the ultimate question becomes, who has the sufficient balance of reason and force to decide?
What does it mean to be a citizen of the US when we live in a world where we can conduct cross-border communications with few constraints and no apparent contact with Homeland Security? Can voting machines be hacked? Methods of authentication... PKI keys... Enable Authenticity, storage or preservation duty, permanent public access. Does Public Access mean free?
What if someone makes a practice of viewing the private page of another in order to spy on one of the other's contacts? ie: Person A and person B are FB friends (they are friended via that social network). Person C logs into person B's account (w/B's consent) in order to view information on person A. This is not addressed by the recent ethics opinions in Pa and NY.
We know person B can't be a lawyer with intent to fool. What about business contacts? Can your assistant log in and let C look at her friends? By making it prohibited for C, it is harder for C to be coerced. *Coercion is what concerns me most.*
What about those fed statutes that make intercepting an electronic communication illegal? Can't they be used to argue that intercepting a person's FB page is illegal. It is an electronic communication, is it not?
Neuroscience Axiom: When it gets dark enough, we begin to see in black and white and our mind fills the blanks in with color. Perception.
Rights relating to the stuff we upload. Remember Steven Jackson Games, 1986 electronic communications privacy act. Publishing photos containing children. Minors following you on Twitter? Posts and Tweets. Fifth Amendment right to self incrimination. Why can’t every country adopt our corporate bylaws and TOU?
What about a model TOU, like the NYC and San Francisco rent stabilized leases? Landlord-tenant issues. Some inalienable basics, ie a corollary to having heat and running water. If I let the city install a water meter on my property that transmits data to a third party contractor that is not the government, isn’t that a taking pursuant to theory of eminent domain?
Electronic discovery/satellite law offices. What if your discovery database got hacked? Do the people who telecommute at your office access sensitive corporate communications via WIFI for which the encryption is no longer secure?
How about a central databank to keep track of important pieces of art, kinda like Foursquare for works of art. They’re doing this in Iraq, just found out via NYT.com. Germany has a (draft?) law about not using an individual’s FB content in hiring. Florida bar uses social networks in admissions process. Why can’t all the apps for my phone have a standardized privacy provision? I’m worried about installing them and having my clients sue me. Should several small groups control the flow of information the way they control oil? Freedom of speech. When indemnity does not apply. Publishers have legal immunity sometimes. Are you a publisher?
(Author is an enthusiastic member of the Science and Technology Committee of the American Bar Association and gratefully acknowledges her interaction with the other members of this group in inspiring the thoughts contained in this Big Bang.)