Hasta La Gadget!

Newly leaked pictures show what is billed as the Sony Xperia Z3. Alongside it is the Z3 mini, which looks much the same as the big brother, just a touch smaller. If the pics are accurate, it seems Sony is moving on with their recently rehashed design language for hardware. The Xperia Z3 is the same blocky form factor we’ve … Continue reading

Did you buy Google Glass? If you did, and live in the UK, you’ll have to shelve it should you want to visit the cinema. A newly placed ban on the heads-up wearable means that nearly 4,000 screens in 750 theatres across the UK won’t take to your Glass-wearing ways. The ban comes days after Google released their wearable for … Continue reading

NEW YORK — New York Times foreign correspondent Rod Nordland apologized to Iraqi journalists on Monday after claiming in a series of tweets this past weekend that an Iraqi army official had given cash payments to members of the press.

Nordland stood by his allegation that several Iraqi journalists accepted envelopes with cash following Saturday’s news conference with army spokesman Lt. Gen. Qassim Atta. But in a statement, Nordland emphasized that he didn’t intend to lump all Iraqi journalists together.

“I would like to apologize to any of you who felt my criticism of bribe-taking by some of your colleagues was intended as blanket condemnation of all Iraqi journalists; it was not,” Nordland said. “From what many have told me, my remarks were frequently mistranslated to suggest that. I am well aware of the courage and dedication many of you have exercised during many years of war and turmoil, and the risks you take particularly from the extremists who have threatened this country for so long.”

Nordland wrote that his “remarks were intended as satirical and directed against what I would hope is a small group who are willing to accept such payments.” He noted that he’s worked with Iraqi journalists who were “honest and above reproach, and would never have made any comment intended to include them in my criticism.”

In a Skype interview from Baghdad, Nordland reiterated that his tweets “were frequently mistranslated to suggest that I thought all Iraqi journalists were bribe-takers.” Nordland told HuffPost the Iraqi journalists he knows “are not (and they are not the kind who would waste their time going to a press conference where you can’t ask questions usually.”

The controversy kicked off Saturday following Atta’s daily news conference. Nordland commented during it on how dozens of journalists weren’t asking questions. After the event, Nordland suggested he’d figured out the reason why: they’d been bribed. An army official, he tweeted, had passed out envelopes to journalists on the press bus. The Times’ group — which included Nordland, a translator and a photographer — had received an envelope with three $25,000 dinar notes, worth about $20 each.

In a series of tweets, Nordland included photos of the cash payment given to The Times and Iraqi army official providing the envelopes. He also suggested that those accepting the money were “whores” and likened the practice to prostitution:

How much does an Iraqi journalist cost? $20.83. pic.twitter.com/G9PXPqQNzA

— Rod Nordland (@rodnordland) June 28, 2014

The mystery of Gen Atta’s heavily attended presser solved: entire press corps bribed. pic.twitter.com/l9UPtCfj2P

— Rod Nordland (@rodnordland) June 28, 2014

Iraqi military bribe master in the press bus after Gen Atta’s presser, and the payoff. pic.twitter.com/Ea6pxYoc5w

— Rod Nordland (@rodnordland) June 28, 2014

Even whores don’t sell themselves this cheap in Iraq. pic.twitter.com/fVNqyKS43c

— Rod Nordland (@rodnordland) June 28, 2014

The Washington Post recently described Atta’s press briefings as “one cog of the government propaganda machine,” a daily effort to paint a rosier picture of the Iraqi army’s fight with militant group Islamic State in Iraq and al-Sham (ISIS). The Post also noted that some pro-government journalists pose with Atta for photos at the news conferences. Still, the allegation of cash bribes crosses a line, going beyond excessive chumminess between government spokespeople and journalists to corruption.

Still, it shouldn’t be forgotten that many brave Iraqi journalists have died covering the Iraq war and ongoing sectarian violence. The Committee to Protect Journalists found that over 150 journalists and 54 media support workers were killed between the U.S. invasion in March 2003 and its withdrawal in December 2011 — the majority of whom were Iraqis. During those years, the Times Baghdad bureau was rocked by the killing of a 23-year-old Iraqi reporter and interpreter who worked for the paper. Out of 100 cases of journalist murders in Iraq, none have led to a conviction.

Nordland told HuffPost that people who contacted him in response to the tweets defended the cash payment “as just tip money, or travel money, or phone card money.” He said that the equivalent of $20 is “probably in the vicinity of a day’s pay for most Iraqi journalists unless they’re employed by foreign organizations.”

Nordland said he “didn’t see what was inside others’ envelopes, since everyone else tucked them into their pockets straight away and looked out the window of the bus as if nothing had happened.”

“The brazenness of it was pretty remarkable,” Nordland added. “I hear now there’s a movement afoot among the recipients to all claim there were press releases in their envelopes and I invented the money.”

John Huppenthal, superintendent of public instruction for the state of Arizona, has recently come under fire for a slew of bigoted online comments he made in 2010 and 2011 under assumed names. He made a tearful apology last week after being outed as the man behind the Internet commenters Falcon9 and Thucydides. As these personalities, Huppenthal called Obama a “slime,” referred to welfare recipients as “lazy pigs” and advocated banning all Spanish-language media.

But blogger David Morales at Three Sonorans wants to remind you that Huppenthal has said reprehensible things publicly too.

In an interview Morales posted to YouTube back in 2010, Huppenthal declined to criticize the Founding Fathers for owning slaves, saying they were above reproach.

“Our Founding Fathers brought all the freedoms that have enabled all the prosperity that’s created the culture that we have in America,” Huppenthal says in the interview. The following exchange then takes place:

Morales: Even Jefferson, who owned slaves?

Huppenthal: Even Jefferson, who owned slaves.

Morales: How is that freedom?

Huppenthal: Well, he was the writer of the Declaration of Independence.

Morales: He also owned slaves, too.

Huppenthal: Well, there’s no problem with that.

Morales: There’s no problem with slaves?

Huppenthal does not directly answer the question.

As Arizona’s top education official, Huppenthal garnered national attention a few years ago for leading the effort to shut down a progressive Mexican-American studies curriculum in Tucson. The courses were credited by researchers with raising student achievement, and a state-commissioned audit recommended expanding them.

But Huppenthal ordered them to be discontinued in 2011 under a law he helped pass as a state senator the year before, arguing that the classes promoted Mexican-American ethnic solidarity and bred resentment against white students. In 2012, Huppenthal told Fox News Latino that he was considering taking his fight against Mexican-American studies to Arizona’s universities as well, which he said is “where this toxic thing starts from.”

A federal judge largely upheld the law used to prohibit the classes last year, but former students of the courses have appealed the decision to the U.S. Court of Appeals for the 9th Circuit.

Earlier this month, Huppenthal was revealed to be the author of a series of venomous comments on the blog Espresso Pundit. In one of those comments, he declared his support for the English-only movement, refusing even to capitalize the word “Spanish.”

“We need to stomp out balkanization,” Huppenthal wrote anonymously in one comment. “No spanish radio stations, no spanish billboards, no spanish tv stations, no spanish newspapers. This is America, speak English.”

Despite calls for his resignation from Latino advocacy and education groups and a snub from the Arizona Chamber of Commerce, Huppenthal says he will run for re-election this year.

Watch Huppenthal’s remarks in the video above.

This weekend, the results of an experiment conducted by researchers and Facebook were released, creating a fierce debate over the ethics of the endeavor. The experiment involved 689,003 people on Facebook whose News Feed was adjusted to contain either more positive or more negative emotional content. The researchers were looking for whether this had an effect on these people’s moods. And it did, albeit a small one. People exposed to more positive content had posts that were more positive, and those exposed to more negative content had posts that were more negative. This was measured by the types of words they used.

The experiment launched a fierce response from critics, some of whom decried it as unethical and creepy. In my view, it isn’t productive to castigate Facebook or the researchers, as the problems here emerge from some very difficult unresolved issues that go far beyond this experiment and Facebook. I want to explore these issues, because I’m more interested in making progress on these issues than on casting stones.

Consent

A primary concern with the experiment concern was whether people subjected to the experiment gave the appropriate consent. People were deemed to have consented based on their agreement to Facebook’s Data Use Policy, which states that Facebook “may use the information we receive about you… for internal operations, including troubleshooting, data analysis, testing, research and service improvement.”

This is how consent is often obtained when companies want to use people’s data. The problem with obtaining consent in this way is that people often rarely read the privacy policies or terms of use of a website. It is a pure fiction that a person really “agrees” with a policy such as this, yet we use this fiction all the time. For more about this point, see my article, “Privacy Self-Management and the Consent Dilemma,” 126 Harvard Law Review 1880 (2013).

Contrast this form of obtaining consent with what is required by the federal Common Rule, which regulates federally-funded research on human subjects. The Common Rule requires as a general matter (subject to some exceptions) that the subjects of research provide informed consent. The researchers must get the approval of an institutional review boards (IRB). Because the researchers involved not just a person at Facebook, but also academics at Cornell and U.C. San Francisco, the academics did seek IRB approval, but that was granted based on the use of the data, not on the way it was collected.

Informed consent, required for research and in the healthcare context, is one of the strongest forms of consent the law requires. It is not enough simply to fail to check a box or fail to opt out. People must be informed of the risks and benefits and affirmatively agree.

The problem with the Facebook experiment is that it exposed the rather weak form of consent that exists in much of our online transactions. I’m not sure that informed consent is the cure-all, but it would certainly have been better than the much weaker form of consent involved with this experiment.

This story has put two conceptions of consent into stark contrast — the informed consent required for much academic research on humans and the rather weak consent that is implied if a site has disclosed how it collects and uses data in a way that nobody reads or understands.

In Facebook’s world of business, its method of obtaining consent was a very common one. In the academic world and in healthcare, however, the method of obtaining consent is more stringent. This clash has brought the issue of consent to the fore. What does it mean to obtain consent? Should the rules of the business world or academic/healthcare world govern?

Beyond this issue, the problems of consent go deeper. There are systemic difficulties in people making the appropriate cost-benefit analysis about whether to reveal data or agree to certain potential uses. In many cases, people don’t know the potential future uses of their data or what other data it might be combined with, so they can’t really assess the risks or benefits.

Privacy Expectations

Perhaps we should focus more on people’s expectations than on consent. Michelle Meyer points out in a blog post that IRBs may waive the requirements to obtain informed consent if the research only involves “minimal risk” to people, which is a risk that isn’t greater than risks “ordinarily encountered in daily life.” She argues that the “IRB might plausibly have decided that since the subjects’ environments, like those of all Facebook users, are constantly being manipulated by Facebook, the study’s risks were no greater than what the subjects experience in daily life as regular Facebook users, and so the study posed no more than ‘minimal risk’ to them.”

Contrast that with Kashmir Hill, who writes: “While many users may already expect and be willing to have their behavior studied — and while that may be warranted with ‘research’ being one of the 9,045 words in the data use policy — they don’t expect that Facebook will actively manipulate their environment in order to see how they react. That’s a new level of experimentation, turning Facebook from a fishbowl into a petri dish, and it’s why people are flipping out about this.”

Although Meyer’s point is a respectable one, I side with Hill. The experiment does strike me as running counter to the expectations of many users. People may know that Facebook manipulates the news feed, but they might not have realized that this manipulation would be done to affect their mood.

One thing that is laudable for Facebook is that the study was publicly released. Too often, uses of data are kept secret and never revealed. And they are used solely for the company’s own benefit rather than shared with others. I applaud Facebook’s transparency here because so much other research is going on in a clandestine manner, and the public never receives the benefits of learning the results.

It would be wrong merely to attack Facebook, because then companies would learn that they would just get burned for revealing what they were doing. There would be less transparency. A more productive way forward is to examine the issue in a broader context, because it is not just Facebook that is engaging in these activities. The light needs to shine on everyone, and better rules and standards must be adopted to guide everyone using personal data.

Manipulation

Another issue involved in this story is manipulation. The Facebook experiment involved an attempt to shape people’s moods. This struck many as creepy, an attempt to alter the way people feel.

But Tal Yarkoni, in a thoughtful post defending Facebook, argues that “it’s not clear what the notion that Facebook users’ experience is being ‘manipulated’ really even means, because the Facebook news feed is, and has always been, a completely contrived environment.” Yarkoni points out that the “items you get to see are determined by a complex and ever-changing algorithm.” Yarkoni contends that many companies are “constantly conducting large controlled experiments on user behavior,” and these experiments are often conducted “with the explicit goal of helping to increase revenue.”

Yarkoni goes on to argue that “there’s nothing intrinsically evil about the idea that large corporations might be trying to manipulate your experience and behavior. Everybody you interact with-including every one of your friends, family, and colleagues-is constantly trying to manipulate your behavior in various ways.”

All the things that Yarkoni says above are true, yet there are issues here of significant concern. In a provocative forthcoming paper, Digital Market Manipulation, 82 George Washington Law Review (forthcoming 2014), Ryan Calo argues that companies “will increasingly be able to trigger irrationality or vulnerability in consumers — leading to actual and perceived harms that challenge the limits of consumer protection law, but which regulators can scarcely ignore.”

As I observed in my Privacy Self-Management article,”At this point in time, companies, politicians, and others seeking to influence choices are only beginning to tap into the insights from social science literature, and they primarily still use rather anecdotal and unscientific means of persuasion. When those seeking to shape decisions hone their techniques based on these social science insights (ironically enabled by access to ever-increasing amounts of data about individuals and their behavior), people’s choices may be more controlled than ever before (and also ironically, such choices can be structured to make people believe that they are in control).”

Yarkoni is right that manipulation goes on all the time, but Calo is right that manipulation will be a growing problem in the future because the ability to manipulate will improve. With the use of research into human behavior, those seeking to manipulate will be able to do so much more potently. Calo documents in a compelling manner the power of new and developing techniques of manipulation. Manipulation will no longer be what we see on Mad Men, an attempt to induce feelings and action based on Donald Draper’s gut intuitions and knack for creative persuasion. Manipulation will be the result of extensive empirical studies and crunching of data. It will be more systematic, more scientific, and much more potent and potentially dangerous.

Calo’s article is an important step towards addressing these difficult issues. There isn’t an easy fix. But we should try to address the problem than continue to ignore it. As Calo says: “Doing nothing will continue to widen the trust gap between consumers and firms and, depending on your perspective, could do irreparable harm to consumer and the marketplace.”

James Grimmelman notes that: “The study itself is not the problem; the problem is our astonishingly low standards for Facebook and other digital manipulators.”

Conclusion

The Facebook experiment should thus be a wake-up call that there are some very challenging issues ahead for privacy that we must think more deeply about. Facebook is in the spotlight, but move the light over just a little, and you’ll see many others.

And if you’re interested in exploring these issues further, I recommend that you read Ryan Calo’s article, Digital Market Manipulation.

This post first appeared on LinkedIn.

Daniel J. Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School, the founder of TeachPrivacy, a privacy/data security training company, and a Senior Policy Advisor at Hogan Lovells. He is the author of nine books including Understanding Privacy and more than 50 articles.