The Question of the Intermediary

The Internet was supposed to empower. It allowed anyone to contribute to global knowledge. It allowed anyone to mine it for the collective wisdom of all. We seemingly had an incredible ability to act through democratized tools for speech and other political motivations.

But I fear some of that is changing as users become more dependent on intermediaries in their Internet use. While I might be able to garner unprecedented information from the net and while I might be able to connect and collaborate with users across the net, those benefits are increasingly dependent on third parties. Importantly, in US v. Miller, it was decided that individuals lost their "expectation of privacy" when they turned information over to a third party (a bank in that case). More and more, users are handing information to third-parties without recognizing the implications.

In the past, the Internet's intermediaries were obvious: telecommunication companies like ATT or Verizon controlled the wires through which packets travelled. However, regulation, such as the "common-carrier" provision or DMCA safe-harbor attempted to ensure their neutrality and non-interference. Recent developments, however, suggest that this may not last forever.

In addition to the traditional intermediaries, the shift to Web 2.0 web services presents a whole new slew of intermediaries. Email and Facebook, widely used web services present interesting case studies.

Say the government would like to see what emails a suspect was sending. They used to need access to a desktop email service - thus the suspect's computer. The Fourth Amendment was clearly in play and a warrant would be needed. Now, as people increasingly use webmail like Google's GMail, they are handing potentially private data to a third-party and trusting that firm with ensuring the security of their information. Questions of illegal complicity (such as ATT in wiretapping) or technical folly (such as TJMaxx data leaks) are suddenly in the hands of another firm.

Or take the example of Facebook, as Jonathan Zittrain does today. In the past, computer programs ran locally, on a person's hard drive, but today programs are being hosted by Facebook or other websites. As Zittrain points out, the intermediary has an overwhelming ability to control access and distribution.

Nick Carr's new book, which I reviewed here, discusses the implications of cloud computing and while he doesn't discuss the legal protections or vulnerabilities in depth, it makes clear that this is a radical change which will have profound effects.

Who knows if these profound effects will limit the freedom which the Internet has enabled so far?

Update: As always, the EFF is ahead of me. Cindy Cohn, the Legal Director of the EFF, has a great speech at the University of Chicago about the intermediaries and their importance.