Computer Ethics Paper 2
Due: Wednesday, June 21, 2017
Topic option 1: Third-Party Doctrine
Do you have a "reasonable expectation of privacy" -- in the sense of police
surveillance -- for 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
- Smith v Maryland 1979, allowing the police to obtain telephone call
records without a warrant
How broadly should the third-party doctrine apply? And if it does
contradict a reasonable expectation of privacy, which rules should apply?
Should the third-party doctrine apply to email? Generally, if you write a
letter to someone, and they open it, your letter can be subpoenaed from
the recipient. But they can object. No third party ever sees your letter.
Email, on the other hand, used to be subpoenaed regularly directly from
the ISP. The Sixth Circuit found this unconstitutional in US v Warshak,
and ruled that a warrant was needed.
What about phone metadata? For the metadata of a single individual, this
was decided by the Supreme Court in Smith v Maryland. In that era, third
parties held a lot less digital data on each of us than they do now. And
there was probable cause to suspect Smith.
What about cellphone location data? Traditionally, nearest-tower data has
been considered to be a business record. GPS data, however, conceptually
requires involvement of your phone, and often is not considered
a business record, though this is a narrow distinction.
What about library records? Internet search records? Facebook history?
Sometimes the third-party doctrine is defended on the grounds of the transaction
theory of privacy: the third party has just as much interest in the
data as you do. This makes some sense for bank records, which the bank
does need and use; what about these other records?
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.
Another argument is based on the idea that some third-party
data has an essential business application for that third party: banking
records, phone company records of the called number, nearest-tower data
and email recipient addresses, to give a few examples. But other
third-party data has no business relevance to the third party: the contents
of email messages, or phone GPS data, or the photos or other data we store
in the cloud.
Yet another approach is that, today, we all have so much information held
by third parties that some form of protection is essential; the
third-party doctrine was forged in an era where there was very little
third-party data and is now simply outdated.
See the course notes here
Orin Kerr, in defending the third-party doctrine, acknowledged it is
sometimes thought of as the Fourth
Amendment rule scholars love to hate. For a recent blog post by Kerr
on this topic, see here.
Topic option 2: Defamation Policy
Has §230 of the Communications Decency Act gone too far? This law, along
with the DMCA, has enabled the rise of third-party-content sites. Some of
these are mainstream, such as YouTube and Wikipedia. Some, like Reddit, are
known for the freedom provided for users to say what they want. And some,
like The Dirty, are simply in the business of encouraging salacious gossip.
§230 has made it nearly impossible to take down user-posted content. Should
this rule be relaxed?
The original goal of §230 was to protect sites that did family-friendly
editing, which is arguably the opposite of protecting offensive
content. If you do not think §230 should be changed, try to identify the
important principles behind §230 and defend them. Consider addressing why
you feel §230 cannot be modified without losing part of its essential
If, on the other hand, you are in favor of change, outline some sort of
alternative. Spell out whether websites hosting user-posted content would be
liable for defamatory content, or whether they would simply have to remove
defamatory or otherwise offensive content. If the latter, outline what
process would be invoked to have the content taken down. Some approaches may
be via a voluntary (or semi-voluntary) "website code of ethics"; as an
example, note how Google has limited visibility of user posts on YouTube,
and made it harder to post anonymously.
Here are a few other things to keep in mind.
Compuserve escaped liability because they did no editing
of user-posted content. Should this position continue to receive the highest
protection, or should some limited editing of user-posted
content be considered the norm?
Should new §230 rules require some element of family-friendly editing, or
editing to attain some other socially beneficial goal? If a site engages in
some form of editing of user-posted content, under what circumstances should
the site escape liability?
Should sites that "encourage" inappropriate posts, by explicit and
intentional policy, be held responsible?
Another approach is to create a take-down requirement for disparaging posts.
If so, how would you protect sites from celebrities or politicians who
wanted nothing negative about them to appear on the Internet? Who decides
what is disparaging? What if the original poster cannot be found, or cannot
afford to defend their opinion in court?
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
Expected length: 3-5 pages (1000+ words)