legal | Paul Wallbank - Communications Professional

Freelancer and the sugar daddy problem

Attempts to create hands off marketplaces fail as the realities of managing millions of users becomes apparent

Last week Facebook’s Mark Zuckerberg announced the social media platform will be hiring three thousand content moderators following a string of shocking incidents on the company’s live streaming service.

Facebook were the most successful of the generation of businesses promising algorithms and the user community – coupled with common sense – would act as gatekeepers.

That was handy for their business models, as the reduced administration costs would mean a much more scalable and profitable business.

Managing users’ sins

Along with Google, AirBnB and Uber, Facebook found that relying on users’ feedback and their own algorithms wasn’t enough to cover the myriad of sins humans commit or one in a million edge cases which occur a thousand times a day when you have a billion daily users.

Even the biggest of the web2.0 companies, Google, found their core business being shaken as the limits of algorithmic advertising were explored and advertisers didn’t like where their brands were appearing.

Most striking was AirBnB who quickly found ignoring aggrieved landlords didn’t work when you’re a billion dollar company. Uber, Facebook and Google have similarly found the “we’re just an agnostic distribution platform” doesn’t fly when you’re boasting millions of users.

Freelancer and the sugar daddies

Which brings us to Freelancer, the labour sites were always problematic in this space as services are rife with ripoffs, misunderstandings and inexperienced operators – on both the seller and buyer side.

Another problem though which seems to be appearing is the advertising of adult services on this site, such as this advert which appears to be either an advert for a sugar daddy or a webcam performer – the mangled English makes it hard to tell.

Bizarrely a Freelancer administrator has removed some of the advert’s content but has left the post itself up.

Clicking on the related links brings up a whole range of strange projects including someone who needs a photoshop expert to insert an individual into sex photographs.

Holding the service harmless

It’s hard to say whether these posts comply with Freelancer’s Terms and Conditions as they are the usual vaguely written screeds seeking to shift all responsibility away from the company which have become the norm with online services.

The reputational risk to Freelancer though is real, as company listed on the Australian Stock Exchange it has public investor base and, given its competitive market, it has to appear respectable to user – becoming a Tindr for adult performers – is probably not where organisation would like to be positioned.

Hitting the profit margin

Ultimately though Freelancer’s problem in this space is the same as most online platform services, the promise of negligible administrative costs is an illusion as managing a large user base brings up legal, regulatory, reputational and even political risks as Facebook is finding.

Like many of the early promises of the internet, the idea of a hands off platform where users do the work while owners sit back and pocket profits has gone. Where there’s people and edge cases, there’s risk and those profits may not be as great as they appear.

Clerks, Dying Videos and Culture Clashes: Links of the week

The race to rescue VHS tapes, how Ford lost Google and the fascinating world of London legal clerks are among last week’s interesting links.

London clerks

Inside the antiquated, but very lucrative, world of London barristers’ clerks. A fascinating a look at one aspect of the English legal profession where old traditions have conveniently merged with modern fees.

Saving VHS tapes

One of the banes of modern culture is shifting standards. As VHS tapes decay, researchers are racing to preserve the culture of the 1980s and 90s, reports US National Public Radio.

Google and Ford clash cultures

Joint ventures and business partnerships are often problematic, as Ford found in their abortive autonomous vehicle project with Google.

The science of money and data mining

The use of data mining by private and government agencies is widespread and only going to become more so. Do we care about the consequences?

Last week I wrote a piece for Fairfax Metro – the Sydney Morning Herald and Melbourne Age – looking at how government agencies and private credit companies are mining data.

That story sparked a range of interest with my doing a twenty minute segment on ABC Brisbane today on the topic which morphed into a deeper discussion on surveillance, particularly with the Australian government’s ‘metadata’ laws.

I’ll also be talking on ABC Radio Perth on Monday, March 6 about this story at 6.15am local time (9.15am Sydney and Melbourne).

In the wake of the Australian government’s Centrelink scandal – a national disgrace that is only getting worse – it’s worthwhile discussing exactly what data is being gathered and how it is being used.

The answer is almost everything with commercial operators like Experian pulling in data from sources ranging from credit card applications to social media services although store loyalty cards remain the richest information source.

As the Australian Tax Office spokesperson pointed out, none of this is particularly new as they have been collecting bank deposit data since the Federal government introduced income taxes in the 1930s.

The arrival of computers in 1960s changed the scale and scope of tax offices’ abilities to track citizens’ finances and gave rise to the major commercial credit bureaus.

With the explosion of personal electronics and internet connected devices in recent years along with increased surveillance powers being granted to government and private agencies, that monitoring is only going to grow.

The best citizens can expect is to have their data protected and respected with financial providers only using what is ethical and relevant in determining our access to banking and insurance products.

Politically the only way to ensure that is to make it clear through the ballot box, the question is do we care enough?

Regulation and technology

It’s often easy to underestimate the effects of regulation on the development of industries and innovation.

Around the world jurisdictions are struggling with balancing regulation and innovation, last week in the UK Uber lost an employment tribunal case 0ver the employment status of its employees . While in Switzerland the country is struggling with rules over Blockchain as the nation tries to build a ‘Crypto Valley’.

Striking the right balance in regulation isn’t trivial. As the development of Silicon Valley’s finance models shows, government rules were critical to how the venture capital sector has evolved.

The US Small Business Investment Act of 1958 was the first step in the sector’s development with the creation of “Small Business Investment Companies” (SBICs) to fund and manage smaller enterprises in the United States. In 1978 the sector received a greater boost when pension funds were allowed to invest in the sector.

We’re now seeing a similar thing happening in the US where the Digital Millennium Copyright Act – a law passed to protect the Twentieth Century business models of record companies and movie studios – is being softened to allow end users to examine and maintain the software on the devices they own.

If the trial is allowed to become permanent, it will almost certainly see a far freer and innovative software environment which may even help overcome some of the security problems with the Internet of Things.

Often though that balance isn’t correctly struck and recently we’ve seen many poor decisions that have concentrated power, particularly in the financial and airline industries where governments have allowed huge conglomerates to dominate their markets which stifles innovation and growth.

Those innovation stifling regulations though don’t guarantee companies’ survival as the taxi industry discovered. Despite reams of laws and regulations protecting their licenses, Uber effectively blew up the business as they offered travellers a far better option to the often poor services provided by local cab companies.

Regulation is always going to be a balancing act between protecting the community’s interest and allowing business and society to evolve. It’s one reason why as citizens and taxpayers we need to be demanding our governments are open and transparent in their dealings and law making.

Enemies of the state

Governments around the world are resorting to common malware tools to harass and watch dissidents warns the Electronic Frontier Foundation

One of the sad truths of today’s online world is that dissidents, lawyers and journalists are ripe targets for governments that want to suppress who they perceive to be their enemies.

At the Black Hat security conference in Las Vegas today, the Electronic Frontier Foundation’s Eva Galperin and Cooper Quintin gave a demonstration of just what lengths governments will go in hacking their opponents.

In When Governments Attack, Galperin and Quintin illustrated how Syria, Ethiopia and Vietnam are all countries whose hacking campaigns they’ve encountered but the particular focus was on Operational Menul, which resolved around the Kazakhstan regime’s attacks on its opponents.

The government of Nursultan Nazarbayev is well known for its corruption, intolerance and global harassment of its opponents as Quintin and Galperin showed. What’s of particular interest to them is the use of off the shelf malware tools.

Using cheap commodity tools has the advantage of not leaving distinctive patterns that may give investigators hints to who has developed the malware. The downside of course is that most anti-viruses can detect these tools.

For the regimes this is not such a problem as most of their targets are relatively unsophisticated, as most of the activists, lawyers and journalists targeted by government agencies or their contractors do not have high level tech skills or use advanced security tools.

Another concern is how private contractors are employed by these governments. An interesting tactic used by the EFF is to commence legal proceedings against US based corporation for operations they’ve conducted against dissidents visiting or living in the United States.

Galperin and Quintin have three conclusions from examining these attacks.

Attacks don’t need to be sophisticated to work
None of this research is sexy
The tools and actors are not sophisticated

While the tools and actors in these sad tales are not sophisticated, the costs to the targets are usually high as they and their families can be subject to terrible consequences.

As we increasingly see both simple and sophisticated software tools available to be used against citizens we can expect to see more abuses by governments around the world. The job of organisations like the EFF is not going to get easier any time soon.

We citizens though need to do what we can to demand safeguards and legal protections from our governments. Those of us in democracies should be making that clear at the ballot box.

Breaking the APIs

Access to APIs is going to be critical in the connected world, but what if a service closes down?

One of the truisms of modern business is we live in an API economy where open Application Programming Interfaces allow software companies to connect their platforms that builds an ecosystem of developers and extends the functionality of their products.

But what happens when an API shuts down or a company starts applying the web2.0 principles of draconian legal terms and conditions to its data feeds? Pinboard, “the social bookmarking application for introverts” is illustrating how serious legalese can be for developers.

Maciej Cegowski, Pinboard’s founder, decided the terms and conditions imposed by popular automation site If That Then This (IFTTT) were too demanding and pulled his service from the platform.

In a blog post he lays out exactly why, citing IFTTT’s demands for rights over his service along with the option of the plaftorm being able to assign those rights to third parties.

For developers, IFTTT’s terms are almost impossible as the platform strips them of their intellectual property rights and restrains their trade. It’s a classic case of legal over-reach which is all too common in the control obsessed tech industry.

As we’re seeing software vendors releasing platforms to manage IoT devices through APIs and cloud services making their plethora of APIs a selling point, access to these becomes a serious matter for the software industry.

There is a worrying aspect for users in this as well, as those relying on Pinboard services driven through IFTTT are now effectively stranded and have to look for another site that provides similar functions.

While Pinboard is quite small, a larger service shutting down its APSs could have dramatic effects. This is even truer with Internet of Things devices that could use a service like IFTTT to run key functions.

Designing devices and services to cater for the possibility an API or web service may become unavailable needs to be priority for IoT vendors while for developers and users, the risk a service may stop is something that should never be far from their minds and factored into the business and purchasing decisions they make.

Taking responsibility for algorithms

In a smart connected world awry algorithms pose a number of risks. What should regulators do?

Who is responsible for the effect of renegade computer programs is going to become a serious legal topic as an increasing number of things become ‘intelligent” and connected to the internet.

Britain’s Financial Conduct Authority (FCA) is one of the first regulators to start looking at how companies’ algorithms. In their just released rules for wholesale traders, the FCA sets out the responsibilities for companies and their managers.

“We are determined to embed a culture of personal responsibility within the banking sector,” says the FCA’s Acting Chief Executive Tracey McDermott. “Clear individual accountability should focus minds, drive up standards, and make firms easier to run and to supervise. And if things go wrong, it will allow senior managers to be held to account for misconduct that falls within their area of responsibility.”

The definition of ‘misconduct’ when an algorithm goes awry will undoubtedly prove contentious, as will the idea of ‘personal responsibility’ in the banking sector.

While it’s too tempting to be dismissive of such move in the financial services industry, the FCA’s regulations are a pointer of what most industries are going to face over the next ten years as the more devices make decisions for themselves or communicate with other equipment over the Internet of Things.

In many areas the question of who is responsible for a rogue computer program will be left to the uncertainties of the legal system with no doubt many surprises, injustices, inconsistencies and unintended consequences so the earlier regulators develop a framework for dealing with mishaps the better.

Should the IoT start delivering on its promise of a connected world a poorly designed algorithm in even what should be relatively trivial devices or services may have the potential to cause massive disruption and damage. It’s hard not to imagine many other regulators in other industries are looking at how to attribute responsibilities, if not minimise risk, in a smart connected world.

Discrediting the dark web

The Dark Web is in decline after the Silk Road was broken up

The Libertarian dream of a free trade zone out of reach of authorities on the Dark Web has come to an end reports Wired.

Ironically it’s not the authorities that have discredited these sites but the untrustworthiness of the various contraband services’ operators that have doomed these illicit marketplaces.

While there’s still potential for these dark web markets to evolve into something more robust their current failure shows that radically changing existing institutions and systems is rarely happens quickly and without cost, as those with stolen Bitcoins are learning.

Liability and the Internet of Things

What happens when an internet connected device fails?

In The Australian today I have a piece discussing the legal risk of the IoT.

Lawyers warn that manufacturers, distributors and installers all face the possibility of damages should their devices malfunction or not perform as advertised.

This risk is compounded by the data analysis with Michael Stojanovic of international law firm Bird & Bird citing the example of a gas monitoring device accurately detecting and reporting a surge but a company being liable because they didn’t warn their customer something was amiss.

Equally there’s a risk with misreported or lost data. This in itself is presents a problem as many of the software vendors currently looking at supplying the IoT have a ‘best effort’ mentality where they don’t accept responsibility for service interruptions.

While that attitude may have stood up before courts over the last twenty years, it’s unlikely to get much sympathy from judges and juries when critical systems are affected.

Like everything else in life, the lawyers are coming for the IoT.

Who owns a smartcar’s smarts?

The question of software ownership in a smartcar opens a range of difficult questions about the internet of things.

Automakers Say You Don’t Really Own Your Car states the Electronic Frontiers Foundation.

In their campaign to amend the US Digital Millenium Copyright Act to give vehicle owners the right to access and modify their automobiles’ software the EFF raises an important point.

Should the software licensing model be applied to these devices then purchasers don’t really own them but rather have a license to use them until the vendor deems overwise.

Cars, of course, are not the only devices where this problem arises. The core of the entire Internet of Things lies in the software running intelligent equipment, not the hardware. If that software is proprietary and closed then no purchaser of a smart device truly owns it.

Locking down the smarthome

This raises problems in smarthomes, offices and businesses where the devices people come to depend upon are ‘black boxes’ that they aren’t allowed to peer into. It’s not hard to see how in industrial or agricultural applications that arrangement will often be at best unworkable.

Four years ago tech industry leader Marc Andreessen pointed out how software is eating the world; that most of the value in an information rich economy lies in the computer programs that processes the data, not the hardware which collects and distributes it.

That shift was flagged decades ago when the initial fights over software patents occurred in the 1980s and 90s and today we’re facing the consequences of poorly thought out laws, court decisions and patent approvals that now challenge the concepts of ownership as we know it.

Is ownership outdated?

However it may well be that ‘ownership’ itself is an outdated concept. We could be entering a period where most of our possessions are leased rather than owned.

If we are in a period where ownership is an antiquated concept then does it matter that our cars, fitness bands, kettles, smoke alarms and phones are in effect owned by a corporation incorporated in Delaware that pays most of its tax in the Dutch Antilles?

Who owns the smartcar’s data?

The next question of course is if the software in our smart devices is secret and untouchable then who owns the data they generate?

Ownership of a smartcar’s data could well be the biggest issue of all in the internet of things and the collection of Big Data. That promises to be a substantial battle.

In the meantime, it may not be a good idea to tinker too much with your car’s software or the data it generates.

The risks of government surveillance – how Australia’s data retention laws hurt

The Australian government is about to pass data retention laws which will be expensive and won’t work

This morning I’m speaking on ABC Radio’s Overnights about the risks of the Australian government’s law to force telecommunications companies to retain users’ metadata for two years.

While the act, currently before the Senate having passed the House of Representatives last week after the poorly named ‘opposition’ Labor Party supported it, mandates that telcos and ISPs will have to retain the details of users’ connection times, places and type of device for two years and that government agencies will be able to access this data without a warrant.

The program was broadcast on 26 March 2015 at 4.15am Eastern Time with Trevor Chappell and is can be listened to on the ABC radio website.

Some resources on the data retention bill follow;

How the Internet of Things could overtake the law

The internet of things is going to present challenges for governments and regulators.

Last March the Australian internet industry celebrated twenty years of commercial operations with the Rewind/Fast Forward conference that looked at the evolution of the online economy down under and its future.

Naturally the Internet of Things was an important part of the discussion looking at the internet’s future and one of the panels examined the effects of the IoT on industry and society.

During the session chairman of the Communications Alliance industry association, John Stanton, raised an important point about how the IoT creates problems for existing laws and the regulators as a wave of connected devices are released onto the market place.

The risks are varied, and Stanton’s list isn’t exhaustive with a few other aspects such as liability not explored while some of the issues he raises are a problem for other internet based services like cloud computing and social media.

Roaming rules

Having fought many regulatory battles over roaming charges and access between networks, it’s not surprising Stanton and the Communications Alliance would raise this as an issue.

Dealing with roaming devices will probably be a big challenge for mobile Machine to Machine (M2M) technologies, particularly in the logistics, airline and travel industries. We can expect some bitter billing battles between clients and their providers before regulators start to step in.

Number schemes

Again this is more an issue for mobile M2M consumers. Currently every SIM card has its own phone number once the service is activated. It may be that regulators have to revise their numbering schemes or allow providers to use alternative addressing methods to contact devices.

Data sovereignty

Where data lives is going to continue to be a vexed issue for cloud computing consumers, particularly given the varied laws between nations.

Short of an international treaty, it’s difficult to see how this problem is going to be resolved beyond companies learning to manage the risks.

Identity management

Data integrity is essential for the IoT and accurately determining the identity of individuals and devices is going to be a challenge for those designing systems.

Over time we can expect to see some elegant and clever solutions to identity management in the IoT however masquerading as a legitimate device will always be a way malicious actors will try to hack systems.

Privacy

For domestic users, the privacy of what remains in data stores is going to be a major concern as domestic devices and wearables gather greater amounts of personal information. We can expect laws to be tightened on the duties and obligations of those collecting the data.

Access Security

Who can do what with a networked device is another problem, should a malicious player or a defective component get onto the system, the damage they can do needs to be minimised. What constitutes unlawful access to a computer network and the penalties needs to be carefully thought out.

Spectrum allocation and cost

Governments around the world have been reaping the rewards of selling licenses to network operators. As the need for reliable but low data usage IoT networks grows, the economics of many of the existing licenses changes which could present challenges for both the operators and governments.

Access to low cost and low data access networks

Following on from the economics of M2M networks, the question of mandating slicing of scarce spectrum for IoT applications or reserving some frequencies becomes a question. How such licenses are granted will cause much friction and many headaches between regulators and operators.

Commercial value of information

How much data is worth will always be a problem in an economy where information is power and money. This though may turn out to be more subtle as information is only valuable in the eyes of the beholder.

Where information becomes particularly valuable is in financial markets and highly competitive sectors so we can see the IoT becoming part of insider trading and unfair competition actions. These will, by definition, be complex.

Like any new set of technologies the internet of things raises a whole new range of legal issues as society adapts to new ways of doing business and communicating. What we’re going to see is a period of experimentation with laws as we try to figure out how the IoT fits into society.