Showing posts with label social media. Show all posts
Showing posts with label social media. Show all posts

Greater Transparency through Twitter?

Posted by Janet | Comments (0)

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Remember President Obama's promise for transparency, participation, and collaboration? As it turns out, transparency, participation, and collaboration are more difficult for federal agencies than it might seem—and the problem extends to agency use of social media.

Last December, the United States Office of Management and Budget released an Open Government Directive, establishing deadlines for action toward greater governmental openness. Included among the directives was a 120-day deadline, imposed on the Administrator of the Office of Information and Regulatory Affairs, to review existing policies that impede federal agency use of technology. The directive emphasized the importance of policies that "realize the potential of technology for open government."

In their efforts to reach greater openness, Federal agencies found themselves butting up against a 1980 law, The Paperwork Reduction Act, which requires all federal agencies to obtain permission from the Office of Management and Budget before information is collected from the public. Approval would be granted only if agencies could prove that the request was necessary, did not duplicate the work of other agencies, and would not be too burdensome on the public.

Agencies worried that use of social media tools—blogs, wikis, discussion boards and so on—might be interpreted as a collection of information. Because the PRA applies to information gathering "regardless of form or format", many agencies logically concluded that an online solicitation for comments or discussions would violate the Act.

Funny thing—it turns out that no matter how well intentioned lawmakers are when they approve some momentous legislation, sooner or later it will stand in the way of something good. The PRA, enacted into law in 1980, was designed to reign in that tyrannical weapon which the government inflicts upon the public from time to time: the information collection form.

The PRA approval process can take months and agencies pointed out that the Act hindered their ability to engage with the public in a timely matter. Waiting months for an approval from the OMB seemed ridiculous in an era of instant feedback made possible by Internet Technology.

“It ended up having a chilling effect when it came to public engagement,” [Vivek Kundra, the national chief information officer] said, adding that agencies would often use the paperwork as an excuse to avoid direct engagement with the public. Now, with the emergence of what he calls a “digital public square” there should be no other option.

Last week, following the directive, the Office of Management and Budget issued a memo, Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act. The memo seeks to clarify when the PRA applies to social media use by Federal agencies that are using either a governmental website or a third-party platform. Using existing policies, the OMB attempts to apply old law to new technologies:

There are three categories of data that the OMB excludes from the PRA. The first are "facts or opinions submitted in response to general solicitations of comments," next comes "facts or opinions obtained or solicited at or in connection with public hearings or meetings," and finally, "like items" that are not "information"—in other words, whatever else the OMB thinks goes along with the first two categories.

Using these three excluded categories, the memo provides that use of social media and other web-based interactive technologies do not necessarily trigger the PRA. More specifically, the memo offers the following guidelines:

  • A general solicitation for online comments to discussion questions does not count as information gathering. Comparatively, structured surveys posing identical, specific questions are subject to the PRA.
  • An invitation for suggestions or comments does not require OMB approval as long as the agency does not require members of the public to identify themselves beyond name and email or mailing address. If an agency requests additional information such as age, race/ethnicity, sex, employment or citizenship status, the PRA applies.
  • Interactive meeting tools are considered equivalent to in-person meetings and will not trigger PRA requirements. These tools include "public conference calls, webinars, blogs, discussion boards, forums, message boards, chat sessions, social networks, and online communities." Focus groups, however, are subject to the PRA.
  • Wikis generally will not trigger the PRA, unless they're used to collect responses to specific, identical questions.
  • "Social media tools that allow the public to rate, rank, vote on, flag, tag, label, or similarly assess the value of ideas, solutions, suggestions, questions, and comments posted by website users" are not subject to PRA.
  • Contests allowing members of the public to submit ideas, essays, videos, etc., are not subject to PRA, unless the public must fill out a survey to participate.
The memo opens the door to greater openness through blogs, microblogs, Twitter, Facebook, online discussion boards, video and photo sharing sites, and suggestion boxes. While many Americans embrace the use of social media to promote transparency and collaboration, some people do not believe that social media provides much governmental openness. As Liz, a commenter on The N.Y. Times Caucus Blog points out in response to a post on the memo, "The Obama administration could try for some transparency by oh, I don't know, holding a press conference and actually answering questions."

Unvarnished Spelled Online is D-E-F-A-M-A-T-I-O-N

Posted by jredmond | Comments (2)

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Review sites are commonplace across the web today as Amazon, Yelp, and TripAdvisor allow consumers hear what others have to say about products, restaurants and businesses. A new site called Unvarnished, currently in beta, seeks to offer the same service, but the subjects of review are in fact individual people. Unvarnished trumpets its service, calling itself an “online resource for building, managing and researching professional reputation,” and allows people to anonymously review one another, and respond to those reviews. Site creator Peter Kazanjy explains:

“It’s not about who’s best in bed, but rather about a person’s management style, productivity, integrity and relationships. Professional reputation resides in the brains of all your colleagues and co-workers, and it’s very hard to access that. This is the place for productive conversation about this topic.”

The New York Times Technology Blog lays out the process simply.

“Any member can review any other member, and if someone does not have a profile on the site, you can create one for them without their permission. The person being reviewed has very little control over what is written; they cannot delete a review, but can offer a written response, or perhaps ask their friends to contribute more positive portrayals.”

On the flip side, Unvarnished isn’t exactly drawing rave reviews itself. A quick scan across the web finds ample evidence. TechCrunch calls it a “clean, well-lighted place for defamation.” TGDaily “can’t imagine why anyone in their right minds would sign up for it.” ZDNet wonders how many lawyers are brushing up on the spelling of defamation. Thankfully the Los Angeles Times Technology Blog is already answering that question.

Wilson Sonsini Goodrich & Rosati lawyers Fred Alvarez and Kristen Dumont were asked to voice their thoughts. Alvarez stated:

“Absolutely it is litigation nightmare. The essential question is, ‘Who can I sue?’ Obviously, all the principles of defamation apply to things posted anywhere, including the Web.”

Dumont further added:

“It essentially encourages defamation because it guarantees a forum for venting. If you write something on your personal blog, your comments are less likely to be viewed/disseminated. But this forum is designed, in essence, for taking swipes at folks you don’t like. And it’s smartly leveraging Facebook’s very popular format to do so.”
So let’s examine where the liability could rest if an individual receiving overly critical and seemingly unfounded negative reviews decides to sue?

The Unvarnished site users, first on the list, won’t enjoy any of the immunities granted to the site itself under the law, and thus the standard laws pertaining to defamation and infringement apply. If a user is found to have posted defamatory content, the user will be liable. The anonymous nature of the poster is what will make locating the target near impossible. Having a verified Facebook account in order to sign up can aid in location on the backend, although it’s hard to imagine Unvarnished cooperating in identifying users without a court order.

If the reviewer is actually identified, the First Amendment and state constitutional free-speech protection will undoubtedly come into play in any type of defamation suits. Often, defamation is not protected, but in A.B. v. State of Indiana, A.B., a minor, posted expletive-filled comments on a social networking site, challenging the school’s anti-piercing policy. A juvenile court judge found that the comments constituted criminal harassment, but the Court of Appeals reversed, finding that the speech was protected by the Indiana State Constitution as political speech aimed at the principal’s policies. Would this only apply to those critical of an employer or manager working for a state entity? If so, then a majority of reviewers are unlikely to qualify under this rationale and would be open to liability, if you can identify them of course.

Unvarnished would naturally be the next target, but it could qualify for protection under Section 230 of the Communications Decency Act. This immunizes website from any liability resulting from the publication of information provided by another and usually arises in the context of defamation, unless the website, in whole or in part, creates or develops contested information. A recent 9th Circuit opinion has focused on this element and created uncertainty for social networking sites that may be relying on Section 230 to protect them from claims relating to the content that their users post or create.

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, two fair housing groups sued the website Roommates.com, alleging that the roommate networking service provided violated the Fair Housing Act. The district court found that the website qualified for Section 230 immunity and entered a summary judgment. On appeal, the Ninth Circuit reversed and remanded for a trial on the merits. The court found that the website created or developed information on the site by creating the questions that users answered when creating their profiles, and by channeling or filtering the profiles according to the answers to those questions.

Essentially, the ruling holds that, by channeling information to users and providing search capabilities, Roommates.com added an additional layer of information that it is at least partly responsible for creating or developing. The effects of this new “channeling” test could impact the ability of social networking sites seeking protection under Section 230. It seems this judicial precedent may not align with Congressional intent, and legislative clarification may be on the horizon. Otherwise, many social sites could find themselves open to liability for information posted by users and the result would be a reduction of social networking sites or a limit to the application of what existing sites now provide.

Either way, it’s difficult to see the positive angle if the site remains as currently constructed. Requiring reviewers to register and pass security protocol would be a simple and seemingly responsible way for Unvarnished to proceed towards legitimacy. It is far too easy to imagine the prospective employer who accesses Unvarnished and allows one well-worded negative review to significantly impact the recruiting process. Reputations are built slowly and painstakingly and should not be brought down by the swift keystrokes of a colleague whose contempt for success clouds an otherwise perfectly qualified candidate.

The Facebook News Feed Patent - A More Reasoned View. Part 1.

Posted by PMA | Comments (2)

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On Tuesday, February 23, 2010, the United States patent office awarded what some have called a game-changing social media patent to Facebook.  The patent describes a method for “dynamically providing a news feed about a user of a social network.”  That’s right, Facebook patented the social media newsfeed.  The patent’s abstract goes into more detail:
A method for displaying a news feed in a social network environment is described. The method includes generating news items regarding activities associated with a user of a social network environment and attaching an informational link associated with at least one of the activities, to at least one of the news items, as well as limiting access to the news items to a predetermined set of viewers and assigning an order to the news items. The method further may further include displaying the news items in the assigned order to at least one viewing user of the predetermined set of viewers and dynamically limiting the number of news items displayed.

Within days of the USPTO granting the “news feed patent,” the blogosphere was ablaze with incendiary posts and comments, almost unanimously speaking out in opposition to the award.  A Google search today for “Facebook news feed patent” comes back with more than 15,000,000 hits. 

Some of these critics argue that the core concept of a social media news feed was “obvious” and should, therefore, be barred from patent protection.  Others argue more broadly, asserting that software patents themselves are overly anti-competitive and detrimental to technological progress, which the U.S. patent system was designed to promote.  Both of these complaints have been charged against a number of software and Interned-related patents in recent years. In fact, one group formalized its dissatisfaction with Internet software patents by creating The Patent Busting Project.

Though the factual merits of challenging a specific patent must be examined very closely, it is certainly true that many legal scholars and practicing inventors believe that our current doctrine for assessing the validity of patents is itself somewhat challenged by the economic and practical realities of Internet software development.  However, stripping the away rhetoric , the core complaint in the blogosphere is that the Internet and e-commerce systems at issue simply aren’t very inventive, and certainly not inventive enough to warrant patent protection.  Take a look at the Patent Busting link listed above for a list of such suspect patents.

With respect to the Facebook news feed patent, when reading through the hundreds of comments posted at various blogs decrying the news feed patent as the end of social media, the concern about “inventiveness” can be seen throughout.  Many commenters assert that the news feed does not really seem like an invention at all.  One commenter summed this up saying: “Shoot, I’ll patent ‘friendship’.  Maybe ‘meeting’.”  Another commenter added:  “If you have 200 friends updating [their] profiles obviously you want a SUMMARY of it in 1 list.  They have INVENTED nothing[!]”.

Admittedly, “inventiveness” is not a legal standard by which the U.S. patent system gauges the validity of patent applications.  Rather, the patent system protects processes, machines, manufactures, and compositions of nature if they are shown to be new, useful, and non-obvious.  Said another way, under patent law, if it is not new, useful, and non-obvious, then it is not an invention and not protectable.  These requirements are statutory as part of the United States Patent Act, having been defined and developed through over 200 years of court decisions.

Though it is out of the scope of this post to analyze the Facebook news feed patent under existing patent doctrine, I think is interesting to unpack this idea of “inventiveness” as it stems from the uprising against the Facebook patent.  This is interesting to me in part because many of these voices are non-lawyer lay persons, who are basing their view in the common  (perhaps even pop culture) understanding of how patents work.

First, no one is arguing that the news feed is not useful.  In fact, a number of voices suggest that the news feed is so useful that excluding others from using it would be stifling and detrimental to the development of new socially beneficial technology.  In the language of patent doctrine, once could loosely analogize this view to the general bar against patenting natural phenomena.  Though this doctrine is usually applied to things found in nature (e.g. the laws of physics), the idea is that the basic building blocks of nature should be available to all, because no one really invented them.  Even though considerable effort might go into discovering these building blocks – which in many causes may be new, useful, and non-obvious – to exclude others from access would discourage technology progress and be bad public policy.

Second, patent doctrine also bars the patenting of results-based inventions, as compared to means-based inventions, which are patentable.  A classic example of this is the Telegraph Patent case, where the Supreme Court invalidated a patent that claimed:
. . .  the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances, being a new application of that power of which I claim to be the first inventor or discoverer.

The Court held that claimed invention was so broad as to really be just a description of the desired result and outside the boundaries of patentable subject matter. Conversely, the Supreme Court later up help Alexander Bell’s patent for the telephone because it describe a specific means for transmitting sound with electricity – apparently the patent lawyers got a little smarter.

As applied to the news feed patent, both bars might be applicable if the invention claimed only described “summarizing social media activities”  -- an interpretation asserted by a number voices in the blogosphere debate.  At that level of generalization, a “news feed” might fall outside patentable subject matter.  One would arguably be hard pressed to characterize the claims as a natural phoneme akin to the laws of physics – though, I think some bloggers are certainly trying to do just that.  Nevertheless, one could make a salient argument that such a broadly drafted claim really describes only a result (a summary of social media activities) and would not be patentable subject matter.

In actuality, the patent describes a complex and specific multi-step process for organizing different pieces of data from different sources (users) and organizing that data into individualized lists based on the relationships between users.  Despite Facebook’s patent, arguably other developers are still free to create their own methods to get similar results -- i.e. to solve the problem social media activity reporting.  Subsequent developers will simply need to pay close attention to the Facebook method and find their own unique approach to problem.  And of course, those who believe their businesses and websites would benefit from using the Facebook method are free to negotiate a license. 

One more thought (I will expand on this more in my next post).  Patent law’s constitutionally enumerated goal is to promote the progress of science and technology.  Many critics argue that locking up Facebook’s method of a social media news feed will be detrimental to technological process contra to patent law’s goal.

However, I would like to suggest that the opposite may be true.  Facebook’s exclusive control of their specific method will necessitate the second comers to the problem find their own solutions and develop their own methods.  Subsequent developers will need to make steps forward and not rely on the work of Facebook.  Exclusivity will demand progress.  And where progress and research is not economically practical, as determined by the cost of development versus the cost of licensing, then I would suggests that pragmatic and prudent path is to license Facebook’s technology and commit future research and develop resources to other novel and unsolved problems.

More to come in my next post.
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