November 15, 2011

Week afer week, mock your readers for their lacking both sense and style, sting them with irreverant remarks under cover of humorous irrelevance, address social issues whose redress rarely enriches anyone but the lawyers involved. Truly Lucy Kellaway's "On work" column is hard to imitate.

She recently tackled copying (*). This is without a doubt central to our Information Age, whose technologies have cast aside all past assumptions on the topic. Copying in itself is nothing new however.

Copying comes naturally to Man. More than one hundred years ago, Gabriel Tarde had already contributed original studies on social imitation. Copying is very efficient, including for intellectual creation. Less than a century ago, Milman Parry demonstrated how Homer's famed epics were composed orally from the inspired memory of past poetic productions. Yet today copying remains understudied and woefully misunderstood.

Indeed "despite its undisputed value, copying has a shockingly poor image". Instead "we idolise creativity and innovation". Lucy Kellaway has a point. She got it while reading a business book on a train. Having read her, I dare delve deeper in the issue, knowing she will not mind my mimicry.

Certainly copying is a matter of taste.

Lucy Kellaway is in a commuter train, part of a crowd, unconsciously adopting her neighbors' behavior. She finds comfort in conforming. So far, so good. But if her carriage turned into a coach traveling the length of Long Island, would she then grab her cell phone and start yakking and yelling about her lack of life? Bad copy only raises the noise level. It shortens our social sustainability the way unpaid-for pollution threatens the climate.

Now picture Lucy Kellaway reading her book. Her neighbor reads a book too. A glance tells her it is the same book. She puts a sweet in her mouth, so does her neighbor. She purposefully turns her book upside down, so does he. What next? It could be the beginning of a roman noir. Assuming he proceeds to follow her home, I guess she would call the cops at some point. Which point is what my point is about.

It is surely a matter of justice to draw the line between what is fair and what is not. But nothing is simple.

Lucy Kellaway calls the police. Her shadow picks up his phone and answers "what can I do for you, M'am?". Far fetched? Read Adam Liptak's report on an ongoing US Supreme Court case (**). "A deputy United States solicitor general, said there were no constitutional limits to the government's ability to track people's movements in public", adding "the police could track the movements of the justices' cars without a warrant".

Being a British citizen is no protection and policemen are not the only ones in hot and legal pursuit. Commenting on the house of Rupert Murdoch, whose "[News International] admitted ordering covert surveillance of two of the lawyers representing plaintiffs in hacking cases", Philip Stephens reminds his readers that "unlike voicemail interception, [it] is not necessarily illegal" in the United Kingdom (***).

Increasingly based on plunder, our society simply lets the private sphere set by our sense of fairness shrink in proportion to what technology can do.

Countering this lazy trend, US "Chief Justice John G. Roberts Jr. suggested there might be a constitutional difference between discrete pieces of data and the collection of vast amounts of information". I go further and read a right to our own data in the US constitution but the musings of a chief justice carry slightly more potential to become law. We can only hope. Could legal research on privacy have overlooked such an argument?

Beware Amazon, Apple, Facebook, Google share the motto of those who copy copyrighted content. What could be done a little in the past, today may be done all the way. We live a binary life. Copying is now so efficient it has identified practical intellectual property and privacy with secrecy.

And so can the US the government be made to look the villain if so doing expose for profit companies as the bigger threat to society? Murdoch 2.0 will corrupt employees at Google, not police officers. Can Pronaocracy tolerate so much hypocrisy? I would be surprised to see the law change.

And no wonder. Copying is a matter of money. Still, it does not mean courageous officials are not trying their very best. Look at Germany.

Now Viviane Reading, the European justice commissioner, aims at revising the EU law. As current culprits are mostly US-based, she puts forward the primacy of consumer location. In her words as reported by Kevin J. O'Brien (****), "companies who direct their services to European consumers should be subject to E.U. data protection laws" and "this also applies to social networks with users in the E.U.".

"One legal expert was skeptical". It is so difficult to enforce the law against non state actors. Besides the EU law remains all bark and no bite as long as it allows bundling to force consumers to consent to private data transfers in order to conduct transactions which do not require it in the first place.

Meanwhile the FTC is about to sign an agreement under which "Facebook would agree to privacy audit for 20 years" (*****). Claire Cain Miller even recalls that "in March, Google and the F.T.C. agreed to 20 years of privacy audits". Isn't that sweet?

Take PricewaterhouseCoopers, the auditor of MF Global. Further recall "the last large scale audit that the CME Group conducted at MF Global [...] in January" and its "spot audit on Oct. 26 to verify that customer money was in the right accounts at outside banks". As "$600 million in client funds were discovered to be missing" a few days later, Ben Protess' reporting implies that the FTC may be copying the wrong model (******).

And why settle for 20 years? Isn't it how long Olympus hid its unsightly losses? "Why didn't the auditors function as a check on the cover up? [...] It is like the robbers had hired the police." Michiyo Nakamoto copied the words of "Tsumotu Okubo, an Upper House Diet member" (*******). No doubt Google will copy Olympus as efficiently as possible. Indeed count on roguish companies to imbibe the best of regulatory capture .

No amount of audit can fix a flawed mechanism. As with money and banks, under fiduciary duties, so with data and Facebook, with no such duties.

My mechanism may do a better job to enforce fair use for privacy (1). But isn't it better to copy proven failures than to risk a new invention?

Philippe Coueignoux

• (*) ............. Copying is the mother of all the best inventions, by Lucy Kellaway (Financial Times) - Nov 7, 2011
• (**) ........... Court Casts a Wary Eye on Tracking by GPS, by Adam Liptak (New York Times) - Nov 9, 2011
• (***) ......... Murdoch: the dynasty never to be, by Philip Stephens (Financial Times) - Nov 11, 2011
• (****) ....... Europe Plans to Tighten Web Privacy and Apply It to U.S. Companies, by Kevin J. O'Brien (New York Times) - Nov 10, 2011
• (*****) ..... F.T.C. Said to be Near Facebook Privacy Deal, by Claire Cain Miller (New York Times) - Nov 11, 2011
• (******) ... Futures Trading Firms in U.S. Will Face Federal Audit, by Ben Protess (New York Times) - Nov 11, 2011
• (*******) . Spotlight falls on Olympus auditors, by Michiyo Nakamoto (Financial Times) - Nov 11, 2011
• (1) ironically the ePrio technology relies on audits too, but to certify the behavior of a piece of code, not a human organization.