Computer Ethics Paper 2
Due: Thursday, June 18, 2015
Topic option 1: Third-Party Doctrine
Do you have a "reasonable expectation of privacy" -- in the sense of police
surveillance -- for any kinds of data held by others?
The "third-party doctrine" says no, or at least that, if we do, it's too bad
for us and the government still does not need a warrant. This was originally
determined in the context of:
- banking records (US v Miller 1976)
- informants wearing a wire
How broadly should the third-party doctrine apply? And if it does
contradict a reasonable expectation of privacy, which rule should apply?
Email is a special case: your ISP, as third party, has no reason to look
at the contents. Nonetheless, the government still sometimes has success
with simply subpoenaing email, using the Electronic Communications Privacy
Act (ECPA).
For many other examples of third-party data, the third party does have a
reasonably direct need for the data: bank records are used by banks,
cellular nearest-tower records are used to provide service to your phone,
the dialed number is used to connect the call, etc. The third-party
doctrine is sometimes defended in cases like these on the grounds of the transaction
theory of privacy: the third party has just as much interest in the
data as you do. But what about library records? Internet search records?
Facebook history? Do the relevant third parties actually have an interest
in this data?
Often there is a point after which such data is no longer relevant to the
provider, such as nearest-tower cellular data after you've moved to
another cell, or library records once the book is returned. Should the
government still be free to subpoena it?
What about telephone GPS data? This is generally used by providers only
for advertising-related services.
For phone metadata of a single individual, the Supreme Court ruled in
Smith v Maryland, 1979, that only a subpoena was needed. In that era,
third parties held a lot less digital data on each of us than they do now.
The Patriot Act made it mandatory to turn over most subpoenaed business
records on third parties. Would it help if this were simply voluntary,
with a warrant available in case a third party refused and the
requirements for a warrant could be met? Or should "business records" be
interpreted narrowly, and perhaps not so as to include other data?
One common pro-warrant, anti-third-party argument is that it's just not
that hard for the police to get a warrant, and they should have to do so
whenever the information sought is moderately intrusive.
See the course notes here
and here.
Orin Kerr, in defending the third-party doctrine, acknowledged it is
sometimes thought of as the Fourth
Amendment rule scholars love to hate.
Topic option 2: Defamation Policy
You and two friends, Alice and Bob, are starting a new website in which user
comments figure prominently. Users comment on various products they have
used, and also on the reviews and comments provided by other users. Users
can also post pictures. Your goal is to create a social-network feel to the
site, although all posts will be public and users will be rewarded with
coupons. You anticipate that the majority of users will use their real names
on the site, though pseudonyms are permitted.
Right now you've agreed to a policy allowing the deletion of profanity and
obvious insults. However, you're having more trouble agreeing to a policy
for dealing with defamatory comments that don't fit into the obvious
profanity/insult categories. Alice has argued
We don't need to do anything; section 230 of
the CDA clearly means we have no liability for what our users post, and
thus no obligation to remove false, hostile or libelous content. Many
other sites, such as youtube.com and aol.com, don't seem to remove such
content. How would we determine if an allegedly defamatory post is in fact
true? Would we have to post the other side's position? The bottom line is
that we'd be censoring someone's post based on a complaint that may or may
not be well founded. We already know from prior experience that if users
say something negative about a product, corporate
sock
puppets will take offense and demand action. We have to stand firm.
Bob is not so sure; his position is that
We simply should not let hostile or
defamatory content remain. At the very least, the possibility that they
could be the victim of such an attack will discourage other users; we want
to encourage our users! We need to have a clear standard of
behavior; this is about "takedown" and not about arguing the points of
libel.The bottom line is that we cannot side with injustice, any more than
we can side with harassment.
Your job is to propose a policy and then argue in support of it. If you
leave something out of the policy, such as a way for users to complain that
they have been unfairly depicted, be sure you explain why
you don't think the feature is necessary. You should also make clear whether
features of your policy are there to address legal risk to the site or are
there to make users feel more comfortable.
You can take a legalistic approach, an ethical approach, or a combination.
When making ethical arguments in a business context it is sometimes helpful
to recognize that ethical behavior can be closely tied to a business's own
long-term self-interest.
Your paper (either topic) will be graded primarily on organization (that is,
how you lay out your sequence of paragraphs), focus (that is, whether you
stick to the topic), and the nature and completeness of your arguments.
It is, as usual, essential that
all material from other sources be enclosed in quotation marks (or set off
as a block quote), and preferably with a citation to the original source as
well.
Expected length: 3-5 pages (1000+ words)