I'm not a lawyer either :) But to complicate your argument below (and Hughie's in a separate thread), a couple of thought experiments: Say I place content on a "publicly accessible" webpage without creating any incoming links or notifying anyone. Web crawlers won't find it. A search engine won't index it. While on the open and public Internet, unless a random URL-generator happens to guess the precise address of the page, no one will ever read it. Is this content "fair game for researchers"? Consider a different scenario: Walking down the street with a friend, I comment on the fact my rent check bounced, and she offers condolences. We're in public. We make the utterances loud enough that someone next to us could easily hear it, but not loud enough that someone across the street can. Now, this is a public utterance - we didn't have the conversation behind locked (password-protected) doors. Can this be archived for research? Better yet, can we setup microphones to automatically record every conversation uttered in public? Does the fact these conversations *can* be recorded and archived mean they, by default, *should be*? I feel we're saying the same about utterances on the Web - so what's the fundamental difference from a user perspective between the street and the Web? Both are a place where we engage in conversations and maintain relationships.... I fear we're confusing what the Internet *is* and *is capable of* with *how it is used*. Yes, comments left on a personal blog are open for anyone to see. Yes, discussion board conversations can be archived. But that's not, I suspect, going through the mind of many casual users of this technology. It is a medium for communication, for connecting with people. I leave messages on my neighborhood parents discussion board because that's how I connect with that community. I use my real name because I'm among friends. Does that mean my comments are de facto fair game for any researcher who wants to scrape the database? I don't claim to have any answers here - just wondering how to work through the problem at hand.... -mz ----- Michael Zimmer, PhD Microsoft Fellow, Information Society Project, Yale Law School e: michael.zimmer@nyu.edu w: http://michaelzimmer.org On Aug 13, 2007, at 8:40 PM, Lois Ann Scheidt wrote:
My point was not related to the actual capturing of the pictures or their posting on the web...I have lots of questions about the ethics of both those acts. My point is that once they were posted on a publicly accessible website, the late night talk show hosts didn't substantially increase the potential audience for the posted pictures.
As for your final comment...clearly we disagree on that one in relation to research at least...and as I am not a lawyer I will make no comments outside that limitation.
Lois Ann Scheidt
Doctoral Student - School of Library and Information Science, Indiana University, Bloomington IN USA
Adjunct Instructor - School of Informatics, IUPUI, Indianapolis IN USA and IUPUC, Columbus IN USA
Webpage: http://www.loisscheidt.com Blog: http://www.professional-lurker.com
Quoting Michael Zimmer <michael.zimmer@nyu.edu>:
How are they not adding to the potential audience? When I'm sitting in the park, there are a finite number of people in the park who happen to be looking in my direction at the precise moment my finger enters my nose. Isn't that often part of the calculus when people do embarrassing things in public - that few people will see it, and those that do don't know me, etc.
Now, having said action captured by a camera -- a camera, mind you, that no one gave consent to (many public CCTV systems are required to at least post notice - not so with Google's cute little cars roaming our cities with their 11-lens cameras) -- and then indexed and uploaded by one of the world's largest brokers of information constitutes a significant shift in my expectations of the visibility of my action. I had never considered (nor had any say in the matter) as to whether it would be recorded, meta-tagged with a location (perhaps even the date), nor made available online.
Even if we feel that isn't a violation of contextual integrity (see Nissenbaum), I could perhaps rest assured that it is highly unlikely that someone happens to stumble upon that particular image from the millions captured by Google. Surely, few will find it, let alone my mother. Enter Mr Leno & Mr Letterman (don't know if it was them - but for sake of example...). Now, instead of me relying on the obscurity of the particular image to protect my embarrassment, its existence and URL has been broadcast to millions by two popular and trusted celebrities. Ping!
IMO, the whole "you did it in public anyway" argument holds little water...
-mz
----- Michael Zimmer, PhD Microsoft Fellow, Information Society Project, Yale Law School e: michael.zimmer@nyu.edu w: http://michaelzimmer.org
On Aug 13, 2007, at 6:43 PM, Lois Ann Scheidt wrote:
Not to mention the potential embarrassment to the gentleman from Arizona - I think it was Arizona - who was captured sitting on a park bench picking his nose. The potential embarrassment would be increased - at least in some writers estimation - because all the late night talk show hosts pointed directly at this guy in their monologues...even giving the URL in some cases.
HOWEVER, since the action in question - said nose picking - took place in public and was captured and posted on the web...the late night talk show hosts might have been shining a brighter light on the whole thing but they were not adding to the potential audience.
Lois
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