Greetings What’s Next readers! After my podcast last week with hacker-lawyer Alex Urbelis, I started reading The Hacker Crackdown and have been amazed that more than 25 years later, the book’s observations about our relationship to technology feel so on-point. “We do not really understand how to live in cyberspace yet,”author Bruce Sterling wrote in 1992. “We are feeling our way into it, blundering about.” (I think it’s safe to say we still are.)
BTW: A mea culpa to readers over my story about social media giants at the California Supreme Court last week. I confused two (very similar) cases. The case argued last week was Facebook et. al. v. Hunter et. al., not Facebook v. Touchstone.
Watch This Space: Section 230 Goes Under The Knife
If you’re like me, you might have felt a little whiplashed by the debate around amending Section 230 to allow sex trafficking claims against internet platforms. First, big internet companies like Facebook and Google were against the “SESTA” bill in the Senate. Then they were for it. Then a totally different version of the Section 230 advanced in the House. And then those versions were all kind of mashed together. It’s hard to tell just where Big Tech stands now.
Over the past couple days, I spoke with experts on Section 230 and intermediary liability as well as lawyers who litigate sex trafficking cases about how the legislation alternately known as “SESTA” and “FOSTA” evolved and how it will impact future court cases. My takeaway: Yes, it exposes companies to new liability, and yes the language isn’t super clear. But is this really inviting death-by-litigation for internet freedom and tech startups? Far from certain.
Critics of the bill like Eric Goldman of Santa Clara University and Daphne Keller of Stanford’s Center for Internet and Society say one of the most worrying aspects is the fact that it has two different standards for liability—one based on the “intent” to facilitate trafficking and another based on “knowingly assisting, supporting, or facilitating” trafficking. The latter is vague, they say, and mashing them together makes it even less clear. They warn that it could expose internet platforms to liability even for good-faith moderating of their online forums.
But Karen Chesley of Boies Schiller Flexner, who is litigating a civil case against Backpage.com in Florida with the women’s advocacy group Legal Momentum, said fears about expansive new liability for tech companies are overblown. “It would be a tortured reading of the bill to say that accepting seemingly legitimate ads, without more, would create liability for knowingly facilitating sex trafficking,” she said.
Still, if you want proof that putting nuanced legislation under the knife in Congress is a messy affair, this Department of Justice letter is a pretty good indicator. The DOJ warned that the bill’s attempt to make new criminal trafficking law retroactive would very likely be unconstitutional. Damn the torpedoes! The provisions survived in the House-passed bill.
>> Think Ahead: The Senate is poised to approve the House-passed FOSTA bill before the end of next week. For internet freedom defenders, this debate isn’t about sex trafficking. The bigger picture for them is that this is the first chip in the wall for Section 230. What comes next? (Photo: Andrew Harrer/Bloomberg)
Protocol: Will This Case Uncover Bitcoin’s Origin?
You may not have heard of Craig Wright, but you probably have heard of “Satoshi Nakamoto,” the pseudonymous creator (or creators) of Bitcoin. Wright has been suggesting for years that he is, in fact, Satoshi. Now, this $10.2 billion lawsuitbeing pursued by lawyers at Boies Schiller Flexner might finally shed light on the cryptocurrency’s mysterious origins.
As my colleague MP McQueen reports, Wright is accused in the suit of stealing intellectual property and swindling bitcoin from the estate of a deceased IT security expert named David Kleiman. Wright and Kleiman, who met in 2003, worked together on bitcoin and mined the first 50 bitcoins in early 2009, according to the complaint filed in Florida by Kleiman’s brother.
As Motherboard detailed in an article last fall, Wright gained publicity after an anonymous tip in 2015 led the publication and Wired to pursue parallel investigations that suggested Wright was in fact Satoshi. But doubt has persisted for one key reason: “He didn’t, or couldn’t, do the one thing that everyone agreed would prove his claim and which the real Satoshi should be able to do: cryptographically sign the first block of Bitcoin data, created by Satoshi.”
>> Context: So does it matter if Wright is Satoshi Nakamoto or not? It’s debatable. Motherboard writer Jordan Pearson argues it’s not only a question of potentially huge economic importance to the Bitcoin market, but for the future of what is essentially a techno-political system.
In Futuro: GitHub Goes Legaltech (Kind Of)
This is one for the software copyright nerds. You know that advising an open source software project on managing legal license obligations can be heady stuff. Now, ZDNet reports , the massive software repository platform GitHub is making available a tool called “Licensed” that aims to make it simpler to keep track of all the different licenses used in a project. To me, it sounds like legaltech specifically aimed at the software industry—and that’s interesting.
“Licensed works in any Git repository, by finding, caching, and checking license metadata for dependencies. It can detect dependencies from multiple language types and package managers across multiple projects in a single repository. This flexibility allows Licensed to work equally well for a repository holding thousands of projects as it would for a repository containing a single project.” (ZDNet)
>> Takeaway: GitHub is not trying to replace you (yet). “Licensed is not a substitute for human review of each dependency for licensing or any other issues,” it wrote in a disclaimer.
Virtually Legal: VR, AR, and IP on Crash Course?
Keeping up with the internet is hard. Keeping up with virtual reality might be even harder. Over at LegalTech News, my colleague Rhys Dipshan writes about how the expansion of VR and augmented reality (AR) present new intellectual property challenges for the legal field.
Consider the scenario of a company wanting to put, say, a virtual Burger King in their video game. Maybe not so hard to figure out. That’s a new permutation of something that’s already a copyright issue in the gaming industry, noted Kimberly Culp, counsel at Venable. But it can get way more wonky and nuanced than that.
Christian Mammen, partner at Hogan Lovells, offered the example of the “famous picture of Albert Einstein where you see his white hair sticking up in all different directions.” If the image were placed in an AR game—“painted” via a device on the real-life world—that opens up the question of whether it would be fair use,Mammen explained.
>> Think Ahead: Aside from IP, there are also new questions about gathering user data that previously was not easily accessible to companies—like your eye movements. Info on how long you look at a virtual object might be super valuable to advertisers. Not creepy at all, right?
Dose of Dystopia
The legal system is fond of keep things adversarial. Artificial intelligence? Not so much. Wired details in a lengthy piece last week how tech security researchers are confronting the problem of “adversarial attacks” that can make AI perceive things that aren’t there, and vice versa. And it seems like they’re finding it hard to solve.
“Case in point: In January, a leading machine-learning conference announced that it had selected 11 new papers to be presented in April that propose ways to defend or detect such adversarial attacks. Just three days later, first-year MIT grad student Anish Athalye threw up a webpage claiming to have ‘broken’ seven of the new papers, including from boldface institutions such as Google, Amazon, and Stanford. ‘A creative attacker can still get around all these defenses,’ says Athalye.”
This problem can lead to a picture of skiers being labeled as a picture of a dog, or a photo of a rifle being perceived as a helicopter. Perhaps more dangerously, it could interfere with an autonomous vehicle’s ability to detect a stop sign. But I also wonder about an issue in the legal field that may seem more mundane. What if a lawyer is using an AI-driven discovery tool to find key documents; could a malicious actor plant data that would hide important files in the stack?
That’s it for this week. Keep plugged in with What’s Next!