With all the concern about online theft, why do we trust online merchants
at all? For that matter, why do we trust people we've met on facebook,
Why we trust online sites:
Overall, it seems that lack of bad past experience has the most to do with why we trust. (Also, it doesn't appear to take much experience for many people to feel comfortable with something.)
What about personal sites? (Not necessarily dating, but those too.) How do we form online friendships (eg at discussion sites)? What about forming new friends on Facebook? What makes us think people aren't completely deceiving us? What about in face-to-face settings? Is that any different????
Some foreign governments have in the past expressed the concern that
Windows must have some sort of
back-door access mechanism accessible to the CIA.
Trusting software: how do we do this? What responsibility do vendors have?
Should there be an obligation for software to work on our behalf?
Should there be some sort of "fiduciary obligation"?
How much can you count on trusting your email software, or trusting your browser?
The organization Stopbadware.org is devoted to identifying (and defining) "badware" on your computer. One of their hardest jobs has been figuring out just what "badware" is. Here's an earlier definition:
What about DRM? What about Windows?
What about Android apps? Both free and paid?
In recent years, Stopbadware has shifted its emphasis from locally
installed software to websites that download malware, through
component; in fact, they largely serve as a clearinghouse for information
about bad sites.
The biggest problem stopbadware.org has is figuring
out what qualfies. You'd think this would be easy.
Most is spyware or viruses or some inappropriate "control" software (eg
Sony's "rootkit", below)
An older stopbadware.org definition:
1. If the application acts deceptively or
2. If the application engages in potentially objectionable behavior without:
Here is their current list, from http://stopbadware.org/guidelines/software, of things software must not do:
Stopbadware used to publish "alerts". RealPlayer (arguably a legitimate product) had been here (Spr 2008?)
Do these things make it badware?
KaZaa had been here in (Spr 2008?)
Spyware Striker Pro (Spring 2009)
(ironically, this is NOT "fake" spyware-removal software!)
Compare all this with the modern phone app:
Can we trust apps to limit themselves to the data they actually need to function? The answer is a resounding NO.
With all the concern about online theft, why do we trust online merchants
at all? For that matter, why do we trust people we've met on facebook,
Technological issues & trust: can we at least trust that we're talking to the person we think we're talking to?
Old-style PGP (Pretty Good Privacy) trust:
You need to VERIFY people's public keys (that the key matches the person). Otherwise you can get a bad key, write to them using it, and be victim of a man-in-the-middle attack.
(public key crypto: each person has a public key and a private key. If someone encrypts a message to you with your public key, you can decrypt it with your private key. Similarly, if you encrypt something with your private key, anyone can decrypt it with your public key, and in the process verify that it was encrypted with your private key. That last bit means that the message can act as your DIGITAL SIGNATURE.)
How can we be able to TRUST our keys?
Alice needs Bob's key.
SSL certificates (TLS certificates)
SSL = secure socket layer, old name
TLS = transport-layer security, new name
Any pair of entities can negotiate a session key:
You're guaranteed a random key provided the other side does not see your bits before choosing theirs. There are protocols to enforce that (eg exchanging encrypted bits and then exchanging special keys to decrypt them)
BUT: how do you know you're not about to give your credit card to a bad
guy with whom you've just created a session key?
What does this have to do with TRUST?
Do you trust the CAs listed in your browser? Huh? Have you even heard of any of them?
Firefox 2013: Edit => Preferences => Advanced => Encryption => View Certs
Of course, one of the real
reasons we trust online commerce -- that we have relatively few bad
experiences -- is related to
all this encryption in that it makes it much harder for bad guys to
eavesdrop. (The most likely location for bad guys, btw, is either in your
house or on the servers at the other end.)
Note this is powerless against phishing attacks. Although the new Extended Valuation SSL Certs might help. Might.
Back to why we trust online vendors:
Overall, it seems that lack of bad past experience has the most to do with why we trust. This seems to be the case with face-to-face and brick-and-mortar relationships just as much as with online situations.
What about personal sites? (Not necessarily dating, but those too.) How do we form online friendships (eg at discussion sites)? What makes us think people aren't completely deceiving us? What about in face-to-face settings? Is that any different????
Trusting software part 2: how do we do this? What responsibility do vendors have?
We've seen that people form trust relationships based on a fairly limited set of positive experiences (though a limited set of negatives, as well). Sometimes it seems that software has a lot to live up to, in that we trust it because we don't see bad experiences, but it is so easy for software to take advantage of us.
The images issue has been around for almost a decade; many email vendors
(and many freemail providers) have been reluctant to support
image-blocking until ~2006 or later. (There may be legitimate reasons for
that: it may be perceived as a hard-to-understand option.)
Browsers: browsers do all sorts of identification of themselves when they connect. Some of that is important; some is questionable. Most browsers do not leak "private" information, though they do leak the browser and OS you are using. Furthermore, this is hard to change!
Try http://www.jms1.net/ie.shtml, with internet explorer. (Actually, go to jms1.net, and you get redirected to the linked site if you're using IE. At one point there was a page on the site that would simply make IE die.)
IE's ActiveX security model is debatable; ActiveX is an approach to
security where you trust any signed
software. What signing authorities do you trust to look out for your
interests here? Java, on the other hand, trusts any source, but runs the
software in a "sandbox" where it supposedly can't damage your machine
(though recently discovered vulnerabilities make it essential to upgrade
your core Java regularly). Note that, in the real world, Java controls are
Java, it can still have a very negative effect on your browser.
Many browser plugins do leak
some degree of private information. When you register a plugin, you
connect some personal information to that plugin. Also, some plugins
contact the mothership at regular intervals.
SEVERAL media players (plugin or otherwise) may do some checking of licenses or with the mothership before allowing play. Perhaps most players from media companies behave this way.
What about compatibility lock-in?
To what extent should your OS be required to act on your behalf?
Palladium (aka Next-Generation Secure Computing Base):
locks you out of lots of things.
Trusted side: can't be reached by debuggers or viruses
Problem: machine now is autonomous; vendor has complete control. Do you trust your vendor?
Software updates, file compatibility,
From Windows Internals by
Russinovich & Salomon:
In the Windows security model, any process running with a token containing the debug privilege (such as an administrator�s account) can request any access right that it desires to any other process running on the machine...
This logical behavior (which helps ensure that administrators will always have full control of the running code on the system) clashes with the system behavior for digital rights management requirements imposed by the media industry on computer operating systems that need to support playback of advanced, high-quality digital content such as BluRay and HD-DVD media. To support reliable and protected playback of such content, Windows uses protected processes. These processes exist alongside normal Windows processes, but they add significant constraints to the access rights that other processes on the system (even when running with administrative privileges) can request.
Will all software vendors eventually request that their applications be
protected? It would sure put a damper on reverse-engineering!
The following Sony case has the rights of users front and center.
Sony introduced their "XCP" music-CD copy-protection scheme in 2005. It installed a private CD driver AND a hidden "r00tkit" (so named by Mark Russinovich, then of sysinternals.com) that conceals itself and hides some registry keys.
Is this legit?
How does it compare with Palladium (secure-computing platform)?
Users do click on a license agreement. Were they sufficiently warned? (The software was apparently installed before the EULA came up; and in any event clearly the EULA did not explain just what was going on.)
Note from Mark Russinovich, via wikipedia:
There is now a virus/worm out that takes advantage of the sony kit.
This or a later removal kit allegedly ADDED a bad ActiveX control.
Jurisdictional issues apply to both criminal and civil law. Oddly, criminal law is more ambiguous; we will start with civil law. For online shopping, one of the first questions is where did the sale take place? Here are some legal theories that have been applied (eg in the LICRA/Yahoo case):
The following are the traditional three rules for a US court deciding it has "personal jurisdiction" in a lawsuit:
The California dating/matching company eHarmony was sued for alleged
discrimination against homosexuals
New Jersey lawsuit by Eric McKinley, 2005
California lawsuit by Linda Carlson, 2007
How does jurisdiction apply? Should it have applied in New Jersey?
Is the fact that users must enter their address the deciding factor?
laws governing sales: the seller can sue in his home state. This is more or less universal.
But in consumer disputes, it is more likely the buyer with the grievance. Should the buyer always be allowed to sue in his or her home state? This subjects the seller to a potential maze of legal regulations.
Does it matter if the seller is a major retailer or a private individual?
The Blue Note Cafe was located in NYC
The Blue Note, St Louis (actually Columbia, MO) was a club, sued for trademark infringement by Blue Note New York because they had a web site.
The case: Bensusan Restaurant Corp v King, 937 F. Supp. 295 (SDNY 1996)
The case was brought in federal district court, which decided there was a lack of jurisdiction. Before that, however, note that the Missouri club began using the name in 1980, and the NYC club did not register the trademark until 1985. Note that, generally speaking, in this sort of situation the Missouri club retains the right to continue to use the name locally, while non-local use is reserved to the federal trademark-holder.
The district court did look at the "long-arm statute" of the "forum
state", that is, New York. The New York law provides that
The State-court interpretation of this was that the act had to be
committed in New York State,
and the federal court deferred to this interpretation.
Another part of the NY state law did provide for jurisdiction when the
other party was outside the state. However, the law also
The second circuit decided that Blue Note Missouri did not derive revenue from interstate commerce. End of case.
Blue Note St Louis had a mostly passive web site, although they did
advertise tickets online, to performances at the club itself. These
tickets had to be picked up at the
Missouri box office; they were never mailed. Does
this matter? Does it matter that the tickets were technically not
sold over the internet, but instead you had to call a phone number?
This case was decided on jurisdictional grounds: NY State did not have jurisdiction.
The second-circuit appellate decision is at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=docket&no=969344.
This was a reasonable decision, but notice that it sure doesn't offer
many guarantees that your website won't infringe on a trademark far far
Zippo v Zippo, 1997
zippo lighters v zippo.com
trademark infringement was an issue under Pennsylvania state law, but the lawsuit was filed in federal district court.
PA "long arm" statute
zippo.com was a news service. They had email customers in PA, and two ISP customers.
(1) the defendant must have sufficient "minimum contacts" with the forum state,
(2) the claim asserted against the defendant must arise out of those contacts, and
(3) the exercise of jurisdiction must be reasonable.
The decision addressed the jurisdictional issue, plus others: Pennsylvania did have jurisdiction
Note the gray area between a completely passive website, just an "electronic billboard", and "the knowing and repeated transmission of computer files over the Internet". Usually the latter means subscriber-specific information.
But also consider whether zippo.com should expect to be hauled into court
in every jurisdiction in which it has a customer, even
for complaints unrelated to that customer. In this case, as the
issue was the use of the trademarked name "Zippo", the jurisdiction based
on other customers might be
The Zippo court developed the following three-part strategy for assessing
long-arm internet jurisdiction:
The problem with this example is that nobody really knows what Case 2 should include.
What about google.com? Should Illinois courts have jurisdiction over
issues involving google.com search? What about google+?
Internationally, we already looked at LICRA v Yahoo, filed in France (and won by LICRA) for Yahoo's selling of Nazi memorabilia on its auction site in the US. Yahoo had initially agreed to comply with the French order, and then later changed its mind, and filed suit in the US asking that the US court declare that the french court did not have jurisdiction. That case ended in a draw (specifically, in a declaration that the case was not "ripe").
Suppose your bank makes an error. Where do you sue them? What if their
only presence in your state is online? Consider the case Soma
Medical v Standard Chartered Bank. SCB is located in Hong Kong.
Soma is in Utah. Soma did banking with SCB online. Some money disappeared.
Soma lost their lawsuit in Utah, because the court ruled that the fact
that SCB had a website accessible in Utah did not give the State of Utah
personal jurisdiction. [Michael Shamos]
NTP v RIM: RIM's network hub was in Canada. RIM lost on that point, but there remain serious questions
about whether US patent law extends to other countries.
Butler v Beer Across America
BAA is an Illinois company selling beer over the internet. Butler's minor son ordered beer, and it was delivered to him despite rules that required an adult signature. Butler sued BAA under an Alabama law that makes it illegal to sell alcohol to minors. In this case, Butler lost her bid to get Alabama jurisdiction, though the case was transferred by the Alabama court to Illinois.
This is somewhat related to trademark disputes, but an essential component is the claim that one party doesn't really want the trademark, but just wants to "extort" money from the other side.
Uniform Domain Name Dispute Resolution Policy -- ICANN
There is also the AntiCybersquatting Consumer Protection Act.
Some form of bad faith is usually necessary. But not always, if the effect is to resemble a famous trademark and if you have good lawyers. Sometimes the only "bad faith" or "intent to profit" is the offer of the domain holder to settle the case by selling the domain to the plaintiff.
All this is really about trademarks, not about jurisdiction. But the "flat" namespace of the web makes all trademark disputes national, or even global.
vw.net: virtual works
Peculiarity: vw.net, a one-man company with James Anderson as principle, offered to sell the name to volkswagen in 1998, and threatened to auction the name off if volkswagen did not buy. This triggers a presumption of domain-name squatting.
See http://vwx.com. Oops, I guess not; that site is now for sale. At one point, it was about Anderson's side of the case.
A possibly important point was that virtual works never used the abbreviation "vw" except in the domain name.
They (vw.net) lost.
Is this about cybersquatting? Or is it about the (lack of) rights of the
Little Guy to use their trademark in good faith?
american.com: formerly owned by cisco, later a private 'zine (the airline is aa.com), and now a more serious magazine The American
gateway 2000 v gateway.com
gateway.com was a computer consulting firm, run by Alan Clegg. There was absolutely no evidence that Clegg foresaw that in the year 2000 the name gateway2000.com would become obsolete, and reserved gateway.com in anticipation of a domain sale.
yahoo.com v yahooka.com [which see]
Case was actually never filed
state-law libel and jurisdiction
A state court in Clayton v. Farb, 1998 Del. Super. LEXIS 175 (Del. April 23, 1998), found that Delaware's long arm statute did NOT reach the defendant, who posted allegedly libelous and slanderous false statements about the plaintiff on his Internet site. The statute provided for jurisdiction over tortious activity outside of Delaware ONLY if defendant regularly conducted business in the state. The court found that access in Delaware to defendant's Internet posting did not constitute sufficient contact to support the exercise of personal jurisdiction.
This case was decided on JURISDICTIONAL grounds: Delaware did not have jurisdiction
Laws governing libel:
Truth is a defense, but can be expensive to prove. If you say something false about a public figure, they have to prove actual malice. If you say something false about anyone else, all they have to prove is that you were negligent.
We've seen Batzel v Cremers.
Cremers lost on the jurisdiction issue. Should he have?
Furthermore, what if the legal climate in the Netherlands was different for libel lawsuits? What if in the Netherlands the burden of proof lay with the plaintiff to prove something false, and Cremers was sued in a jurisdiction (eg England, which still has pro-plaintiff libel laws) where the burden of proof lay with the defendant?
Is a link to a defamatory site a form of defamation? (It probably
depends on the context)
Is a link to "illegal" software forbidden?
The injunction that 2600 Magazine may not link to deCSS still stands today.
from wikipedia (http://en.wikipedia.org/wiki/Universal_v._Reimerdes)
In particular the Second Circuit ruled that linking on the Internet happened so fast that it could be restrained in ways that might not be constitutional for traditional media.
Also, apparently the defendants more or less admitted that they were
providing links to deCSS for the
purpose of making illegal DVD copies. Things might have been
different had they linked for the
purpose of research.
While we're at it, contemplate 09
11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0. Is this a legal
Part of the issue with linking is that it can provide easy access to "forbidden" content such as circumvention software (deCSS) or copyrighted content (eg providing movie .torrents). For that part, providing the URL in "unlinked" form is probably also subject to regulation.
But the other part is conventional "deep links". These can be used to
view a given page out of context, or to view a given page in a border
provided by another page, or to avoid advertising. Should these kinds of
links be subject to prohibition?
Is linking to a site a form of using that site without authorization?
Possibly leading to a claim of trespass-of-chattels?
What about linking to other sites? Here are some issues the other site might have:
Search engines do this kind of linking and framing constantly.
For a while this was a serious issue, but it seems to be dying out. Lots of sites still have bizarre linking policies, though.
http://dontlink.com; alas, active site work stopped in 2002.
But see: http://www.americanexpress.com/shared/copyright/webrules.html, item 9, "Linked Internet Sites". Actually, this link is down as of Dec 2009, but it still appears on the americanexpress.com page!!
Symantec has a different approach: http://www.symantec.com/about/profile/policies/legal.jsp#linking (2009)
Symantec permits anyone to link to
Symantec's web site subject to the linker's compliance with the
following terms and conditions:
A site that links to Symantec's web site:
Rules 1-8 are entirely reasonable.
Once upon a time, long long ago, in a previous century (1998), Microsoft
was hauled into federal court on antitrust charges. The original issue was
probably that in 1995 Netscape released a better browser, and then a year
later Internet Explorer was bundled in with Windows. Microsoft, in fact, insisted that IE be the only browser
on new machines, if a vendor wanted a bulk windows license (individual
windows licenses were and are prohibitively expensive. (MS also famously
insisted that to get a bulk license, you had to at least pay for Windows
for all the machines you sold,
even if some of them were to be sold with a non-Windows OS (what would
that have been? Pre-gnome linux?).)
During the trial, MicroSoft submitted a video of a computer allegedly
underfunctioning because IE had been removed. Alas for MS, the video --
presented as representing a single session -- had been spliced.
MS's strategy was universally seen as a frontal assault on Netscape,
because MS apparently had the idea that it was important to achieve
dominance in the "browser" market.
But if you're giving it away free, there is
Once upon a time, some people at MS might
have had some notion that, after Netscape was broke, they could resume
charging for IE. That is the sort of behavior that antitrust law is
intended to prohibit. But a more likely idea was that, if MS controlled
the browser market, they would somehow "control" a crucial part of
e-commerce. And, to be sure, controlling the browser would mean that they
could introduce new server
features and be able to guarantee that the browsers out there would
support that feature.
As it turned out, controlling the browser market brought about as much
control of e-commerce as controlling the cash-register paper-tape market
would have brought control over traditional brick-and-mortar commerce.
MS famously lost their case, at the District Court level. For several
years they had to make it possible to remove IE from windows, either by
owners or resellers. This was also more or less the death knell for MS's
plan to "integrate" the browser with the desktop, ie, to build IE into the
Did this make any sense?
A browser is now seen as the
reason people buy computers. It needs to come with the computer, if for no
other reason that you can't download anything without one. How would I
install Firefox, for example, if I couldn't use IE once
to download it? Would I order a CD by mail?
By 2001, the US DoJ was no longer asking for MS to separate its OS and
Application divisions (ie breaking up the company). Instead, they asked
for more mundane restrictions, such as fairer licensing terms.
MS is at it again, but this time not from a position of strength. They
may have recently tried to get the Wall Street Journal to remove their
news content from google, in exchange for payment. This is an attempt to
get people to have a reason to use bing,
the new MS search engine.
Does anyone use bing?
Here's a couple articles:
More seriously, is this a case of antitrust?
Or is this a case of exclusive content licensing?
One issue is that google's use of the WSJ is considered to be fair use.
But google makes a heck of a lot of money by indexing this content, from
advertising. The estimate in the articles above is that it's in the range
of $10-15 million/year. This is sort of like the youtube lawsuits, where
the media companies really want
a piece of the advertising market that youtube gets for displaying "their"
The MS antitrust case should probably be compared to the ATT and IBM
antitrust cases. By the time the 1969 IBM case was dropped by the feds,
after thirteen years, it no
longer mattered. IBM no longer held market dominance. The ATT case led to
the breakup of ATT into the main ATT, now no longer in the local phone
business, and the "seven RBOCs". One of the RBOCs, SBC, has since acquired
most of the others, and the parent ATT itself (and has taken on the ATT
name). (I think the other separate RBOC is Qwest, formerly US West).
This is probably as good as any a place to bring up Network Neutrality. The idea there is whether ISPs should be allowed to throttle content from content providers that don't pay bribes. Is that antitrust? Or is it all about The Free Market?
Alas, at the heart of Network Neutrality is the fact that it is cable
companies that bring most Americans their internet. So when Netflix or
Hulu or Google (as owner of YouTube) argue in favor of network neutrality,
the opposition is trying to get you to watch TV as cable TV rather than as
internet. If an ISP were to reduce customers' bandwidth for YouTube videos
because Google did not pay them a fee, that might be a pretty solid
example of Network un-Neutrality. But what if Comcast applies their
bandwidth cap to Netflix and Hulu, but not to their own TV Anywhere, which
is actually a cable product and not, technically, an internet