Date: Thu, 20 Apr 1995 19:20:15 -0700
From: Phil Agre >pagre@weber.ucsd.edu<
To: rre@weber.ucsd.edu
Subject: Digital Media Perspective
[Digital Media Perspective is the kind of Internet advertising I approve
of. It's advertising alright, aimed at selling subscriptions to an expensive
newsletter called Digital Media. But it includes serious, useful, decently
formatted articles that, while not always aligned with my own intellectual
outlook, are neither spin-controlled nor self-serving. I actually felt good
about the time I spent reading this issue of DMP, which is pretty amazing
given the other things I ought to be doing right this minute. -- Phil]
Date: Thu, 20 Apr 1995 18:36:49 -0700
From: Digital Media Perspective <perspective@digmedia.com>
To: Digital Media Perspective <perspective@digmedia.com>
Subject: Digital Media Perspective 95.04.20
This publication should be viewed
with a monospaced typeface
such as Courier or Monaco
________________________________________
DIGITAL MEDIA PERSPECTIVE
________________________________________
April 20, 1995
________________________________________
Table of Contents
Where Sunshine Laws don't Shine:
E-mail privacy
Banker's Trust
When Planet Broadcast and
Planet Internet collide
Inside the April issue of
Digital Media: A Seybold Report
Special Digital Media subscription offer
for DM Perspective Readers
Who We Are,
How to Reach Us
How To Subscribe to DMP
and Get Back Issues
________________________________________
Where Sunshine Laws don't Shine:
E-mail privacy
by Margie Wylie
In mid-March, Oklahoma State University graduate student Michael
Blazek logged onto his university email server to find this message:
"Under Oklahoma law, all electronic mail messages are presumed to be
public records and contain no right of privacy or confidentiality
except where Oklahoma or Federal statutes expressly provide for such
status. The University reserves the right to inspect electronic mail
usage by any person at any time without prior notice as deemed
necessary to protect business-related concerns of the University to
the full extent not expressly prohibited by applicable statutes."
Blazek was mad. So mad that he called the local television station.
After a few cursory interviews, the reporter parroted the
university's position. "We aren't setting policy. We are just
explaining the law." said Natalea Watkins, director of communications
services and spokesperson for OSU.
Well, they are. Sort of.
With the exponential growth of online communications, legislatures
like Oklahoma's are passing blanket laws that deny individual rights
to electronic privacy, unless those rights are specifically protected
by law. While these so-called "sunshine laws" are usually meant to
protect average citizens, OSU's email warning demonstrates how laws
and statutes can be turned on their heads when applied to online
networks, and act against the people they are meant to protect.
_________________
Email and the law
The law OSU cites is the Oklahoma Open Records Act (ORA). The ORA
deems electronic communications that pass through public computer
systems to be public records, unless otherwise exempted by law. What
it doesn't say is that the majority of email traffic, like OSU's, is
protected by state and federal privacy laws. It's clear that most
student email is exempted from ORA, said Scott Fern, legal counsel
for the Board of Regents at OSU, who helped write the email warning.
ORA does not empower the university to inspect all the email on its
system at will and without warning or notification, added Fern, as
that would be a violation of the federal Electronic Communications
Privacy Act (ECPA) of 1986. But it does allow the university to treat
as public records any communication not specifically protected under
other legislation. "Those emails could be subpoenaed in an
investigation," Fern said.
"The mail messages maintained by the university may indeed be
'records' under the state open records (Freedom of Information) law,"
said Marc Rotenberg, counsel to the Electronic Privacy Information
Center, a public-policy lobbying organization based in Washington,
D.C. "But that doesn't begin to answer the question of whether they
must be *disclosed* under the law. It also has nothing to do with the
university's right to inspect the email, which is a completely
separate issue."
Whether or not the warning falls on the right side of the legal
stick, its tone and language do little to further the intent of the
ORA.
_______________
Good intentions
If OSU seems contemptuous of individual rights, it says it is only
following the lead of the Oklahoma legislature, where good intentions
paired with concern over electronic communications and ignorance of
the technology fuel sweeping sunshine laws. The pivotal assumption is
that a communication is public unless specifically afforded special
rights to privacy. Most people, though, expect that their
communications are private unless otherwise deprived of that right by
law.
Taken at face value, the ORA would designate any email routed over
the Internet and through any Oklahoma state-owned server an official
record of the State of Oklahoma, unless and until the senders (or
anyone else who cares) could prove otherwise. And, if the email were
routed through OSU's servers, the senders might never know it was
read, according to the university's warning.
However, the ORA wasn't created to let state officials eavesdrop on
college students. It was written to make it impossible for state
officials to hide their dealings from the general public through use
of electronic communications. In this case, OSU officials have been
able to subvert the intent of the law by simply posting a warning of
questionable legality. "This policy is contrary to the intent of the
ORA," Blazek said. "ORA was intended to let the public have access
the government's information, not [to let] the government, the
university, have access to students' information."
Ironically, the vaguely-worded warning lets state officials at the
university sidestep any public input because they claim they aren't
actually making public policy, which sunshine laws like ORA expose to
scrutiny, review and comment.
The wording of the warning leaves doubt about whether the state-run
university is declaring its systems to be open and their e-mail users
to be without privacy -- which is legal, but would be a policy
decision subject to public scrutiny -- or whether they are just
rephrasing Oklahoma's Open Records Act, which wouldn't allow the
university to trespass on the privacy of students to the extent
implied.
______________________________________
Contempt and confusion on the Infobahn
While OSU's legal department may understand the legal intricacies of
the warning, it's obvious that both students and OSU administrators
do not.
"People should not assume that email is private. It's not like a
letter sealed in an envelope," said Watkins. Not so. In fact, email
usually enjoys *exactly* the same privileges of privacy as does a
sealed envelope in the U.S. mail, according to the Electronic Freedom
Foundation (EFF), a Washington, D.C.-based electronic rights lobbying
agency. Watkins also said the university would read email if, for
example, a student were accused of sexual harassment or stalking
another student -- two instances that would not fall within the scope
or intent of the ORA. Statements like that make Blazek and other
students worry that some university officials may take the warning as
free reign to ride roughshod over their rights, and whether it's out
of the best of intentions matters little.
"[T]he university reserves the right to inspect email to protect the
'business-related concerns' that whoever is feeling trigger-happy
that day may have," said OSU sophomore Molly Bowling. How, she
wonders, will OSU define those concerns?
"I feel the students and administration have no way of protecting
ourselves. We can't even know if they're reading our mail -- how are
we supposed to make sure CIS is following 'applicable statues?' "
asked Bowling. "There's just no way to tell."
According to Blazek, the university continues to stonewall his
efforts to bring email policy under public scrutiny, saying its not
open to discussion. Watkins dismisses the privacy claims and student
dissent as frivolous: "The students are upset over everything. The
students are upset because they can't park right in front of their
classes. The students are upset because they don't like the toilet
paper in the dorms."
EFF online counsel Mike Godwin had a different view. "[OSU's] warning
is grounded, clearly, in an utter contempt for the notion that users
might want or need communications privacy," he said.
________________________________________
Banker's Trust
by Mitch Ratcliffe
Information technology is responsible for the consolidation of the
banking industry that has shrunk the number of independent community
banks by nearly 70 percent in 15 years. Computing power let bankers
manage larger, more diverse loan and customer portfolios from a
central office at the cost of face-to-face contact with small
business customers -- the real engine of a robust economy.
The obvious solution to the digitally-induced distance is to reverse
the flow of information from the corporate headquarters to many
thousands of neighborhood offices or home offices. A recent Wall
Street Journal feature made much of the vanishing community bank's
impact on small business startups and expansion. Even though a
well-placed loan with a local company can result in jobs and expanded
business for a bank, the lack of involvement with Main Street among
regional banks like Chemical Bank and BankAmerica makes these loans
riskier, not just because so many small businesses go under in the
first year or two, but because there is so much less information
about them. The most important kind of information about small
businesses and the stores on Main Street was lost when banking
shifted upscale to regional centers. Personal involvement with the
community is the linchpin to successful banking -- it always has been
-- but technology let bankers forget this simple truth.
We harp on the human element and the customer's participation in
business on the pages of Digital Media. The situation in banking is
an excellent example of how important turning technology on its
intended head will be to a robust electronic economy. According to
Dun & Bradstreet, small business will produce half of the three
million jobs that will be created in 1995. Digital networks, though,
give the Ptolemaic impression to users that they are at the center of
the economic universe, when in fact they are just one small body in a
vast system. Banks have built incredibly tall organizations that can
topple on the performance of remarkably few clients, or the economy
of a single region.
The hoarding of intelligence and assets in technology-rich companies
will eventually constrict the nation's economic potential. If today
the top one-fifth of the economy (households worth $180,000 or more
in assets) controls four-fifths of the wealth of the nation, the
continued concentration of assets will eventually squeeze out the
vast majority of businesses in the U.S., as well as the jobs they
produce.
Banks could avert a disastrous concentration of wealth by setting up
a network of employees who live and work in close contact with their
communities. Automatic teller machines and home banking promise to
off-load most of the day-to-day work in banking. So, take the people
who work those jobs today and set them up in their homes, with access
to a complete view of the financial markets and corporate lending
policies, as well as communications channels to the top of the
decision ladder.
A sound business argument can be made with a few numbers. Let's say
the average bank writes off 1.2 percent of loans as losses. On a
small business loan portfolio of, say $4.6 billion (what BankAmerica
sinks into small businesses), the annual losses will be roughly $55
million. Cut that default rate to one percent and the bank saves
about $10 million. Cut losses to .8 percent and the savings approach
$20 million. Considering that large loans carry lower interest rates,
in general, shifting some portion of a loan portfolio to a more
efficient community banking system promises larger returns on the
banks investments.
Regional banks could and should reassume the mantel of bankers past,
that of pillar of the business community -- a foundation not only of
the regional or global economy, but of Main Street, U.S.A. Day-to-day
experience with the businesses and people in their neighborhoods will
let this new breed of community banker champion the businesses they
feel will break out and become profitable. They can also get
face-to-face with business owners in times of trouble to gain an
accurate measure of management's response to tightening budgets and
economic downturns.
Community bankers are the best kind of marketing for the large
regional banks. For years, ordinary people have known the people who
handled their money. They came to trust people based on whether they
looked them in the eye while talking, or by the firmness of their
handshake. Banks need that kind of contact to convince new and
existing customers that they offer services that are necessary and
rewarding in the information age. It's simply a matter of using
technology to reach people.
________________________________________
When Planet Broadcast and
Planet Internet collide
by Neil McManus
The Internet haunted the National Association of Broadcasters
convention like the Ghost of Christmas Future. There was an entire
conference track dedicated to multimedia and the Net. Unfortunately
this track and an accompanying multimedia trade show were exiled to a
hotel apart from the main show in the Las Vegas Convention Center.
This made it easy for main NAB throng to ignore the Net while they
ogled the latest video cameras and attended sessions on how to keep
the FCC off their backs. But even NAB showgoers who avoided the
multimedia track, got a report on the Internet on a closed-circuit
news program broadcast to Las Vegas hotels. The NAB news report
concentrated on a fanciful Usenet group that deifies a guy called
Kibo. When the report ended, one of the TV news anchors stared at the
camera incredulously and said, "It's like the Twilight Zone out
there."
It's only human to trivialize what you don't understand. My guess is
that the producers of that TV news segment, and much of its audience
of broadcast professionals, prefer to think of the Internet as a
fringe phenomenon populated by kooks. It seems a lot less threatening
that way.
But the broadcast crowd would only be scripting their own eventual
downfall by ignoring the very real subversive nature of the Internet.
If broadcasters who write off the Net as a kooky place spent a few
hours on the Web, they might notice that the Progressive Networks
site lets people play National Public Radio reports in real-time on
their PCs
Lenny Foner Last modified: Thu May 18 01:28:11 1995