From: Harris Cohen <hlc2105@columbia.edu>
  To  : Computers, Privacy & The Constitution mailing list <cpc@emoglen.law.columbia.edu>
  Date: Thu, 11 May 2006 11:05:22 -0400

[CPC] Paper 2: The Problem of Permanence

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*Paper 2: The problem of permanence*

* *

Like a lot of the teens of my generation, I spent a large chunk of my
adolescent free time at the local mall. The mall is the traditional venue
for the age-old occupation known as "hanging out." The practice primarily
involves wandering the mall's public spaces, hoping to run into friends who
might themselves be just "hanging out." In addition to minimum wage
employment, the mall's retail stores offered a chance to construct a public
persona for the benefit of other kids. Where you bought your clothes, which
CDs you bought, whether you'd dare be seen in the arcade=97these were part =
of
an induction into American consumerism, but they were also ways to project
elements of your personality you wanted your peers to see and identify with=
.



In the 21st Century, we do an increasing amount of our hanging out online.
As in the mall, we wander the public spaces of Facebook or MySpace, wearing
our consumer habits and entertainment preferences on our sleeves in the
hopes of finding some kindred shoppers to commune with.[1] While the basic
idea might be similar, the online experience is different in a key respect:
the memory of it need never fade with time. Memories of ill-advised pranks,
bad haircuts, tasteless jokes, or even petty theft in the "real" mall need
not last. Teenagers grow up, friends grow apart, Orange Juliuses get
replaced by Starbucks=97one is free to selectively forget incidents that ar=
e
uncomfortable and construct a memory of childhood that comports with one's
sense of self.



Online, though, mistakes can last forever. My own GMail account tells some
stories I'd rather forget. While most of the 4,500-plus messages I've
accumulated since starting the account almost two years ago are mundane, a
handful tell tales of disappointing academic experiences, failed romantic
relationships, and professional confrontations. Even worse are the chat log=
s
accumulated daily by my instant messaging client, written with next to no
forethought or consideration. The record kept on IM reveals more than a few
thoughtless comments and sarcastic quips I wish I could take back, or at
least prevent others from interpreting out of context. Absent this record, =
I
might have elected to massage the facts as they live in my own memory in
order to bend them to the model of myself I'd like to maintain as I grow
older. But that isn't possible in a world that automatically and
imperceptibly keeps a verbatim transcript of your every communication and
stores it forever. The evidence against you is always a keystroke away, and
even if you were to erase your hard drive and run for the hills, your
correspondents, your ISP, Google, AOL, and who knows who else have their ow=
n
copies.



My own online rap sheet isn't nearly as extensive as those being written by
today's college students. Thankfully, I went to college in the innocent
Pre-Facebook Era. Those photos of what happened on my 21st birthday are mad=
e
of ink and paper. I've got the only set, and I can (and likely will) burn
them one day and be done with it. Now, over 1.5 million new digital photos
are uploaded to Facebook every day[2], and every single one of them is a
public good, capable of infinite reproduction and perpetual storage. Not to
mention the countless homemade videos on YouTube, those embarrassing emails
about strangers we use to pass the time at work, etc.



The problem is amplified in the case of petty criminals and other wrongdoer=
s
who are alleged to have committed some reprehensible, though short of
felonious, sin against society. Traditionally, the law exacts punishments
that fit the crime; minor transgressions merit only minor penalties, and th=
e
transgressor is thereafter free to rebuild his reputation and self-worth. W=
e
have statutes of limitation, which assume that even unpunished wrongdoers
should live without fear or regret after some time. The Internet's perpetua=
l
memory destroys the transitory nature of punishment, as embarrassment is
likely to outlive both the perpetrator and the victim. For instance,
the *Village
Voice *recently reported on a website allowing women who have been verbally
harassed on public streets to post photos of their harassers.[3] These
photos, of course, may then live on the Internet indefinitely. Certainly
women deserve freedom from offensive catcalls, and the offenders deserve a
substantial penalty. But the law tells us that penalty should be finite.
What happens to society when transgressors lose the ability ever to earn a
life free of stigma?



Only time will tell whether this change in our capacity to remember will be
good for our psychological health. Psychologists agree that memory is key t=
o
our self-worth: Our minds are built to remember in ways that construct a
useful personal history for each of us which is consistent with our
self-images and our conceptions of the people we wish to be. As such, a
coherent vision of the past shapes our future behavior.[4] External signals=
,
amplified and kept alive indefinitely by technology, may drastically alter
how we reconstruct and react to our memories.[5] If we cannot forget
anything, nor decide for ourselves how particular memories fit into a model
of the past, we may find ourselves having difficulty shaping a model for th=
e
future.



Perhaps, then, the problem isn't permanence, but impotence. It isn't that
memories last, but that we've given up our control over what happens to
them. In the old world, for example, we owned the copyrights to our
correspondence and the photos we took.[6] By contrast, both MySpace and
Friendster purport to own perpetual blanket licenses to the content their
users create.[7] Further, any "memory copyright" we have is limited to the
content itself=97whoever owns chattel embodying that content may do with it=
 as
she pleases.[8] What do your rights mean, then, in a world where any MySpac=
e
visitor or email reader may have her own copy of your memories living on he=
r
hard drive? Given the exponential growth of "Me Media," we will soon find
out.



Word count: 995



[1] See John Cassidy, Me Media, The New Yorker, May 15, 2006, at 55.

[2] Id. at 54.

[3] See generally Kathryn Belgiorno, 21st Century Peep Show, Village
Voice, April
26, 2006.

[4] Memory, Stanford Encyclopedia of Philosophy, available at
http://plato.stanford.edu/entries/memory/.

[5] Id.

[6] See, e.g. Salinger v. Random House, 811 F.2d 90, 94 (2d Cir. 1987).

[7] See Friendster, Friendster Terms of Service Agreement at
http://www.friendster.com/info/tos.php?statpos=3Dfooter ("By posting Conten=
t
to any public area of Friendster, you automatically grant, and you represen=
t
and warrant that you have the right to grant, to Friendster an irrevocable,
perpetual, non-exclusive, fully paid, worldwide license to use, copy,
perform, display, and distribute such information and content and to prepar=
e
derivative works of, or incorporate into other works, such information and
content, and to grant and authorize sublicenses of the foregoing.");
MySpace, MySpace.com Terms of Use Agreement at
http://collect.myspace.com/misc/terms.html?z=3D1 ("By displaying or publish=
ing
("posting") any Content, messages, text, files, images, photos, video,
sounds, profiles, works of authorship, or any other materials (collectively=
,
"Content") on or through the Services, you hereby grant to MySpace.com, a
non-exclusive, fully-paid and royalty-free, worldwide license (with the
right to sublicense through unlimited levels of sublicensees) to use, copy,
modify, adapt, translate, publicly perform, publicly display, store,
reproduce, transmit, and distribute such Content on and through the
Services.")

[8] See 17 U.S.C. =A7 109.

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<p class=3D"MsoNormal"><b style=3D""><span style=3D"font-family: Garamond;"=
>Paper 2: The problem of permanence</span></b></p>

<p class=3D"MsoNormal"><b style=3D""><span style=3D"font-family: Garamond;"=
> </span></b></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">Like a lot of=
 the teens
of my generation, I spent a large chunk of my adolescent free time at the l=
ocal
mall. The mall is the traditional venue for the age-old occupation known as=
 "hanging
out." The practice primarily involves wandering the mall's public spaces,
hoping to run into friends who might themselves be just "hanging out." In
addition to minimum wage employment, the mall's retail stores offered a cha=
nce
to construct a public persona for the benefit of other kids. Where you boug=
ht
your clothes, which CDs you bought, whether you'd dare be seen in the
arcade=97these were part of an induction into American consumerism, but the=
y were
also ways to project elements of your personality you wanted your peers to =
see
and identify with.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">In the 21<sup=
>st</sup>
Century, we do an increasing amount of our hanging out online. As in the ma=
ll,
we wander the public spaces of Facebook or MySpace, wearing our consumer ha=
bits
and entertainment preferences on our sleeves in the hopes of finding some k=
indred
shoppers to commune with.[1] While the basic idea might be similar, the onl=
ine
experience is different in a key respect: the memory of it need never fade =
with
time. Memories of ill-advised pranks, bad haircuts, tasteless jokes, or eve=
n
petty theft in the "real" mall need not last. Teenagers grow up, friends gr=
ow
apart, Orange Juliuses get replaced by Starbucks=97one is free to selective=
ly
forget incidents that are uncomfortable and construct a memory of childhood
that comports with one's sense of self.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">Online, thoug=
h, mistakes
can last forever. My own GMail account tells some stories I'd rather forget=
.
While most of the 4,500-plus messages I've accumulated since starting the
account almost two years ago are mundane, a handful tell tales of disappoin=
ting
academic experiences, failed romantic relationships, and professional
confrontations. Even worse are the chat logs accumulated daily by my instan=
t
messaging client, written with next to no forethought or consideration. The
record kept on IM reveals more than a few thoughtless comments and sarcasti=
c
quips I wish I could take back, or at least prevent others from interpretin=
g
out of context. Absent this record, I might have elected to massage the fac=
ts
as they live in my own memory in order to bend them to the model of myself =
I'd
like to maintain as I grow older. But that isn't possible in a world that
automatically and imperceptibly keeps a verbatim transcript of your every c=
ommunication
and stores it forever. The evidence against you is always a keystroke away,=
 and
even if you were to erase your hard drive and run for the hills, your
correspondents, your ISP, Google, AOL, and who knows who else have their ow=
n
copies.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">My own online=
 rap sheet
isn't nearly as extensive as those being written by today's college student=
s.
Thankfully, I went to college in the innocent Pre-Facebook Era. Those photo=
s of
what happened on my 21<sup>st</sup> birthday are made of ink and paper. I'v=
e
got the only set, and I can (and likely will) burn them one day and be done
with it. Now, over 1.5 million new digital photos are uploaded to Facebook
every day[2], and every single one of them is a public good, capable of
infinite reproduction and perpetual storage. Not to mention the countless
homemade videos on YouTube, those embarrassing emails about strangers we us=
e to
pass the time at work, etc.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">The problem i=
s amplified
in the case of petty criminals and other wrongdoers who are alleged to have
committed some reprehensible, though short of felonious, sin against societ=
y. Traditionally,
the law exacts punishments that fit the crime; minor transgressions merit o=
nly
minor penalties, and the transgressor is thereafter free to rebuild his
reputation and self-worth. We have statutes of limitation, which assume tha=
t
even unpunished wrongdoers should live without fear or regret after some ti=
me. The
Internet's perpetual memory destroys the transitory nature of punishment, a=
s embarrassment
is likely to outlive both the perpetrator and the victim. For instance, the=
 <i style=3D"">Village Voice </i>recently reported on a
website allowing women who have been verbally harassed on public streets to
post photos of their harassers.[3] These photos, of course, may then live o=
n
the Internet indefinitely. Certainly women deserve freedom from offensive
catcalls, and the offenders deserve a substantial penalty. But the law tell=
s us
that penalty should be finite. What happens to society when transgressors l=
ose
the ability ever to earn a life free of stigma?</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">Only time wil=
l tell
whether this change in our capacity to remember will be good for our
psychological health. Psychologists agree that memory is key to our self-wo=
rth:
Our minds are built to remember in ways that construct a useful personal
history for each of us which is consistent with our self-images and our
conceptions of the people we wish to be. As such, a coherent vision of the =
past
shapes our future behavior.[4] External signals, amplified and kept alive
indefinitely by technology, may drastically alter how we reconstruct and re=
act
to our memories.[5] If we cannot forget anything, nor decide for ourselves =
how
particular memories fit into a model of the past, we may find ourselves hav=
ing
difficulty shaping a model for the future.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">Perhaps, then=
, the
problem isn't permanence, but impotence. It isn't that memories last, but t=
hat
we've given up our control over what happens to them. In the old world, for
example, we owned the copyrights to our correspondence and the photos we to=
ok.[6]
By contrast, both MySpace and Friendster purport to own perpetual blanket l=
icenses
to the content their users create.[7] Further, any "memory copyright" we ha=
ve is
limited to the content itself=97whoever owns chattel embodying that content=
 may
do with it as she pleases.[8] What do your rights mean, then, in a world wh=
ere
any MySpace visitor or email reader may have her own copy of your memories
living on her hard drive? Given the exponential growth of "Me Media," we wi=
ll
soon find out.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">Word count: 9=
95</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;"> </span>=
</p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[1] See John =
Cassidy, Me
Media, The New Yorker, </span><span style=3D"font-family: Garamond;">May 15=
, 2006</span><span style=3D"font-family: Garamond;">, at 55.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[2] </span><s=
pan style=3D"font-family: Garamond;">Id.</span><span style=3D"font-family: =
Garamond;"> at 54.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[3] See gener=
ally Kathryn
Belgiorno, 21<sup>st</sup> Century Peep Show, Village Voice, </span><span s=
tyle=3D"font-family: Garamond;">April 26,
 2006</span><span style=3D"font-family: Garamond;">.</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[4] Memory, S=
tanford
Encyclopedia of Philosophy, available at <a href=3D"http://plato.stanford.e=
du/entries/memory/">http://plato.stanford.edu/entries/memory/<;/a>.</span></=
p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[5] </span><s=
pan style=3D"font-family: Garamond;">Id.</span><span style=3D"font-family: =
Garamond;"></span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[6] See, e.g.=
 Salinger v.
Random House, 811 F.2d 90, 94 (2d Cir. 1987).</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[7] See Frien=
dster,
Friendster Terms of Service Agreement at <a href=3D"http://www.friendster.c=
om/info/tos.php?statpos=3Dfooter">http://www.friendster.com/info/tos.php?st=
atpos=3Dfooter</a>
("By posting Content to any public area of Friendster, you automatically gr=
ant,
and you represent and warrant that you have the right to grant, to Friendst=
er
an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to =
use,
copy, perform, display, and distribute such information and content and to
prepare derivative works of, or incorporate into other works, such informat=
ion
and content, and to grant and authorize sublicenses of the foregoing.");
MySpace, MySpace.com Terms of Use Agreement at <a href=3D"http://collect.my=
space.com/misc/terms.html?z=3D1">http://collect.myspace.com/misc/terms.html=
?z=3D1</a>
("By displaying or publishing ("posting") any Content, messages,
text, files, images, photos, video, sounds, profiles, works of authorship, =
or
any other materials (collectively, "Content") on or through the
Services, you hereby grant to MySpace.com, a non-exclusive, fully-paid and
royalty-free, worldwide license (with the right to sublicense through unlim=
ited
levels of sublicensees) to use, copy, modify, adapt, translate, publicly
perform, publicly display, store, reproduce, transmit, and distribute such
Content on and through the Services.")</span></p>

<p class=3D"MsoNormal"><span style=3D"font-family: Garamond;">[8] See 17 U.=
S.C. =A7 109.</span></p>


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