Rebecca Schild

Last week, and for many a surprise, Google launched its new social networking platform, Buzz.  The new service is Google’s effort to amplify the “social nature” of their services by integrating them under one platform, and adding some extra social utility.   The social application runs from the Gmail interface, but also links other Google accounts a user may have, including albums on Picasa, and Google Reader.   The service also allows for the sharing from external sources, such as photos on Flickr, and videos from YouTube.  The service also allows users to post, like, or dislike the status updates of others which may be publicly searchable if the user opts.  Before a Gmail user may fully participate in Google Buzz service, a unique Google Personal Profile must be created. 

User Consent

Much of the buzz surrounding the new social networking service last week wasn’t paying much lip service to the new application.  Instead, an uproar of privacy concerns continued to dominate the Buzz scene, with many critics quickly labeling Buzz a “privacy nightmare”.  A formal complaint has been already filed with the US Federal Trade Commission in response to Google’s new privacy violating service.   A second-year Harvard Law student has also filed a class-action suit against the company for its privacy malpractices. 

Much of the privacy talk thus far has focused on issues of consent, or lack thereof, in this case.  Upon Buzz’s launch, Gmail users were automatically subscribed as “opting in” for the service.  Google has used the private address books of millions of Gmail accounts to build social networks from the contacts users email and chat with most.  To entice users into using the service, Gmail users were set to auto-follow all of their contacts, and in turn, to be followed by them, too.  Furthermore, all new Buzz users had been set to automatically share all public Picasa albums and Google Reader items with their new social graph.  It is argued that social network services should be opt-in, rather than opt-out, and that Buzz has violated the consensual nature of the social web. 

Illuminating the complications of building a social graph from ones inbox is the story of an Australian women, who remains anonymous.  As she claims, most of the emails currently received through her Gmail account, are those from her abusive ex-boyfriend.  Due to Google’s assumption that Gmail users would like to be “auto-followed” by their Gmail contacts (mirroring Twitters friendship protocol), items shared between herself and new boyfriend through her Google reader account had become public to her broader social graph, including her ex-boyfriend and his harassing friends.

In a blog response directed to Google’s Buzz team, the woman scornfully wrote- “F*ck you, Google. My privacy concerns are not trite. They are linked to my actual physical safety, and I will now have to spend the next few days maintaining that safety by continually knocking down followers as they pop up. A few days is how long I expect it will take before you either knock this shit off, or I delete every Google account I have ever had and use Bing out of f*cking spite”.  As this case demonstrates, the people we mail most often may not be our closest friends.   As email has replaced the telephone for many as the dominate mode of communication--some contacts may be friends, however, many others may not be.  

In response to the uproar, tweaks to Buzz’s privacy features have since been made.  Todd Jackson, Buzz’s product manager, has also posted a public apology to the official Gmail Blog late last week for not “getting everything quite right”.  The service will now assume the more user-centric “auto-suggest” model, allowing users to selectively choose the contacts they wish to follow, and will also no longer auto-link Picasa and Reader content.  However, as the EPIC’s complaint notes, many are still unsatisfied with the opt-out nature of the service, arguing that users should be able to opt-into the service if they so choose, rather than having to delist themselves for a service they didn’t necessarily sign up.  Ethical quandaries also still loom over Google’s misuse of the users’ private contact lists to jumpstart their new service. 

Contextual Integrity

The attacks on personal privacy resulting from Google’s model are vast.  As the case of the Australian woman illuminates, the concept of the “online friend” has completely taken out of context with Buzz’s initial auto-follow model.  Many of the contacts we make on a daily basis need not be made public through the Google profile.  For most, this Buzz’s privacy breach may be benign or annoying at most. However, those who are engaged in sensitive social or political relationships via their Gmail chat or email accounts, the revelation of common contact could have been potentially damaging for many.  A reporter from CNET has cleverly labeled Buzz’ as a “socially awkward networking”, as bringing diverse contacts under one umbrella doesn’t exactly make the most social sense. In response, Gmail users are required to sort through and filter their Buzz followers according, or choose to disable the service all together.

Besides questions of who is stalking whom, the assumptive and public nature of Google’s  new move has cast a shadow of doubt among Gmail users regarding the ability of Google to maintain the privacy and contextual integrity of the Gmail account.  Should one account be the place to socialize, and  “do business”?  Gmail is, and should remain, an email service.  However, Buzz takes the email experience into new and questionable grounds.  Do Gmail users feel entirely comfortable having their personal email, social graph, and chat functions all coming under the auspices of one platform?   Many users felt they had been lured into using a social networking service that they didn’t sign up for in the first place.   

Social Media Competition

In addition to Google’s attempt to integrate their various service offerings, Buzz is seen as an obvious attempt to bolster competitiveness in the social media market.  In 2004, Google released Orkut. While the service has become big in countries such as Brazil and India, it has been overshadowed by sites such as Facebook in other jurisdictions, and has not been able to prove itself as a mainstream space for networking.  In the past year, Google had also launched Google Wave, a tool that mixes e-mail, with instant messaging and the ability for several people to collaborate on documents.  However, the application failed to completely win over audiences, and was considered one of the top failures of 2009. 

With Google unable to effectively saturate the social media ecosystem, Buzz is an attempt to compete with the searchable and real time experiences provided by social media giants, Facebook and Twitter.  Increased competition within the social media market could be a positive development for privacy, as social media companies could arguably be compete on their ability to provide users with preferable privacy architectures.  To the contrary, however, such competition has thus far had negative ramifications for user privacy, as the recent Buzz and Facebook moves illustrates.  Facebook’s loosened privacy settings were a competitive knee-jerk to Twitters searchable and real time experience.  Through a Twitter search, individuals can come to know what people are saying about a certain topic, event, or product, and as a result, the service has received a great deal attention from users, and non-users such as advertisers, alike.   

In an attempt to one-up, their competition, the “Twitterization” of Facebook followed in two distinct stages.  First was with the implementation of the Facebook News Feed, which gave users a real time account of actions their friends on the site.  Many argued that this feature invaded user privacy.  However, it was argued by Facebook that they only were making available information that was already accessible through individual profile pages.  The News Feed, as it happens, effectively took user information and actions on the site out of original context by streaming this information live for others easy viewing.  Information users once had to rummage for had become accessible in real time on the homepage of the service. 

Secondly, Facebooks’ recent privacy scandal was a step towards making profile information more searchable and accessible to third parties, as is most often the case with the more public feeds on Twitter.  As one commentator notes,   “Facebook used to be very private but private is not great for search, to have great search you need all of the data to be publicly available as it mostly is on Twitter. Facebook have not quite nailed real time search yet but they are getting there and it will soon be a great way of examining sentiment across different demographics”.  As a result, information on Facebook, such as name, profile picture, friends list, location and fan pages have become open access information.  In addition, users on Facebook have been subjected to new privacy regime without notice, leaving their profile pages generally more open, and searchable through Google.    

Converging the Online Self

The impact Buzz alone can make on the social media landscape remains questionable (Gmail heralds only 140 million accounts, which is a deficient cry from Facebooks’ 400+ million dedicated users).  However, despite Googles’ in/ability to become claim hegemony over the social web landscape, the abuse of private information to launch a new service has raised serious debate over the privacy and the future of social networking.  The Buzz service marks more than yet another new social networking service that brushes aside the privacy of users.  As user control and privacy becomes an increasingly peripheral concern, Google’s shift toward privacy decontrol also signifies a worrisome supply-side shift towards the “convergence” of online identity.

Within this new dominant paradigm, privacy concerns are often interpreted as antithetical to competitiveness in the social media marketplace.  Instead of an imagined ecosystem based on user control and privacy preference, it can now be inferred that the competiveness of social networking services will continue to disrupt the delicate balance between the public and private online. Regardless that greater visibility and searchability of the social profile may not be in the public interest, Google’s recent move works to reinforcement of the new status quo of “openness”.  Furthermore, it is questionable as to how concentrated and integrated a user may want their online activities to become.  A critical discourse of online privacy must, therefore, take into account the ways in which the social web has renders the user increasingly transparent through networks of networking services. 

Google’s Buzz illustrates this point quite well.   Initially, Gmail was a straightforward email service.  Next, the AdWords advertising service and Gmail chat had become integrated into the Gmail experience.  Because Google was using the confidential emails of its Gmail users, privacy concerns began to mount upon the launch of the the AdWords service.  However, turmoil surrounding AdWords died down, notably as Google continues to reassert that is is bots, not humans, that are scanning the emails in order to provide the AdWords service.  Next, there gradually occurred a convergence of Google services under the single social profile, or “email address”.  A single Gmail account potentially includes use of with Google reader, calendar, chat, groups and an Orkut account.  In terms of behavioral targeted advertising, Google has recently announced that they will be providing personalized search results even to users who have not signed up for Google services.  This will be done through the placement a cookie on all machines to provide targeted advertising seamlessly through each Google search and browsing session.    

While many argue that the collection of non-personally identifiable information poses no privacy harm, this assumption needs reassessment.  As Google comes to offer us more, they also come to learn more, and Buzz signifies this trend towards a Googopolized social web.  To add another layer of complexity to Googles hegemony, users of the Buzz service are also required to create a “Google Profile”, which is searchable online and displays real time status updates, comments, and connections from other social network services, such as Facebook and Twitter.  As Google recently launched the beta version of the new Social Search, Buzz was just the service required to increase the relevance to the new service by encouraging Gmail users to publish even more personal information.  The creation of a personal Google profile, which is indexed and searchable, raises many concerns about privacy and identity, and doubts are continually raised over how much Google should come to know about us.

While Google’s services have arguably made the online social experience more seamless and tailored, it is questionable as to how relevant, or even desirable, such a shift may be.  At present, it may appear that Google is wearing far too many hats, and users should be wary of placing all eggs into one basket.      As the launch of Buzz has shown us, user consent and the contextual integrity of private personal information can be compromised when a diverse number of online services are integrated and given a social spin.    When competition among social web providers drives users to lose control of the private information which is inherently theirs, critical questions surrounding competition, convergence and privacy require critical exploration.  

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The perils of information exposure and the loss of privacy on social network sites (SNS) has become a talked about issue. Information once considered has private has in many instances become viewable by unintended audiences of parents, colleagues, college admission officers, employers, even the courts.  The recent Facebook privacy scandal, which left sensitive personal information for millions of users open and searchable via Google, heightened privacy consciousness amongst users, public interest groups, and Facebook itself.  As the free flowing nature of information on the internet has redefined practices surrounding the disclosure of information, new and multidimensional privacy challenges have arose as a result. 

The much-celebrated ethos of “openness” continues to attract numerous and diverse users to SNS, and without a doubt, these platforms have enabled users to stay connected and share information with the people around them -- for better or worse. However, it is within this inherently open context that notions of privacy are continuously being challenged and redefined.   While a particular user may prefer to keep certain information widely available to attract “potential friends” within a certain network or social circle, it may go without saying that the same user may not be comfortable with a family member viewing that same information, or having personal information open access to third parties.  It is this iterative tension between “openness” and privacy which beckons the need to balance the openness of SNS with the privacy of its members.

Privacy as a Semi-Public Personal Space

Most commonly, privacy has been interpreted by users as a “lack of access”, or the degree to which they are able to protect their information from the public gaze.  Various research examining the privacy (mal)practices of users have also, by in large, conceptualized privacy within this public/private binary.  The most popular SNS today do allow users to careful define their privacy level.  However, whether or not the information of a user remains open, restricted, or private will depend on the privacy preferences unique to the user, and to some degree, the architecture of a particular SNS.  Inferring from privacy in practice, researchers have generally labeled users as privacy fundamentalists, pragmatics, or the marginally concerned .  While making this distinction has been useful, is important to note that the diversity and complexity of relationships within a single networked space obscures the inherent simplicity of such typology.  With many online social networks becoming representative of offline affiliation, the challenges inherent to maintaining a diverse number of social relations online may lead researchers to interpret uncertain privacy practices as paradoxical.  Such a notion also calls into question the utility of categorizing users according to their privacy practices.

To illustrate such complexity, many users today are compelled to join sub-networks or groups within these sites, which then cluster users and relax the privacy settings between them.  While a college student may wish to keep weekend outings hidden from the professors they have connected with, they may also be tempted to reveal such information with his network of peers-- to which the professors may belong. The open nature of these sub-networks are inherently valuable for maintaining offline affiliations, friendships and collegial relationship. However, this also increases the likelihood invisible audiences of unintended users may gain access to potentially unflattering information to an .  By joining a network on Facebook, for example, the personal information of a users profile page becomes open to all “friends and networks”, even if the users may previously had their information set behind a more granular privacy settings. 

Within these open spaces, the ability of users to make appropriate or selective disclosures of information is becoming obscured.  While Facebook does allow for users to alter the settings after joining a network, such “openness by default” may catch many users off guard or only be brought to their attention once they face its negative repercussions.  Because the maintenance of a wide variety of such social relationships depends on the disclosure/non-disclosure of certain types of information, privacy in praxis has become an act of balancing the utility of social network with the privacy concerns they present. Users are now faced with the challenge of classifying certain pieces of information public or non public, or determining suitable practices of disclosures amongst a diverse social graph. It is not to be expected that such decisions will become easier within a context whose architecture is built on openness to make it “easier for friends to find, identify, and learn about you”. 

Privacy as Control over the Flow of Information

While the classification and coding of information vis-à-vis a diverse set of relationships forms the base of practice for most of the privacy conscious, this paradigm of privacy remains rather limited within a defined network of individuals, whether they be “friends”, within an intended audience, or not.  Within this framework, information is understood as being either socially or institutionally sensitive, as its exposure may affect certain social or institutional relationships.  Given the spatial and temporal context the “social profile” gives to personal information, it is reasonable to see how popular understandings of privacy have been within the public/private paradigm.

While this may be the case, it is important that users observe how the inherently “networked” nature of these spaces complicates the common privacy paradigm.  When a user joins a SNS, they enter into a complex and opaque set of networked relationships beyond those with their “friends” and “friends of friends”.  There exists sub-networks of third-party actors which constitute corporate entities, their partners and affiliates --may they be advertisers, third party developers, or a broad range of other service providers.  Many of which are granted access to your information in varying forms and for differing reasons.  With the introduction of the Open Social network, fronted by Google and various social advertising and developers networks, the ability for one to maintain the control and integrity of their information or “data” has become an increasingly complex endeavor.   

While the importance of maintaining non-public social spaces online should not be diminished, in a time when collecting, storing, aggregating and disseminating information has become increasingly easy and cost-effective, users of SNS must begin to conceptualize online privacy in a way which extends past the social context popularly understood to give “information” meaning.   Once information loses its contextual place of meaning, which may be the profile itself, users seem less apt to consciously consider the collection and dissemination of such data as a breach of privacy, or even a concern at all.  It may be true that the socially sensitive nature of such data is reduced once it is disassociated with a particular user, or that the click stream patterns and other information collected by advertisers through cookies may not always pose a direct and potential threat to our privacy as we’ve thus far conceived it.  However, a brief glance at the privacy policies, terms of use, and on-site practices of a few SNS illuminates that privacy must be seen as the control over the flows of personal information.that

Privacy vis-à-vis Third Parties

As many have illuminated, SNS are commercial enterprises with a business model based on the harvesting of personal information for marketing and other purposes.  Therefore, it may be naive for a users to believe what happens on these sites stays on these sites, or that privacy settings, however granular they may be, grants them adequate control over their information.  While SNS such as Bebo state that they “take your privacy very seriously”, the onus is on the user to determine whether or not the privacy standards of third party applications are up to par.  The transfer of responsibility for monitoring the privacy practices of third parties is characteristic of many popular SNS.  MySpace states in their privacy policy that they do not “control third parties” and cannot “dictate their actions”, while Facebook similarly states that they cannot guarantee that such third parties will “follow their rules”. 

As third parties are often governed by their own privacy policies, the unmonitored and unenforced nature of these networked relationships places further responsibility on the individual users to ensure that privacy practices are adequate.  This becomes quite difficult on SNS like Facebook, where third party developers are granted access to the personal information of all you and all your network members, including photos, videos, and other biographical information.

The relatively anonymous nature of these parallel sub-networks also obscures the ability of the user to take control over the accessibility of their information.  Further, the privacy policies of the various SNS give no indication as to “who” their affiliates, partners, and service providers are.  Most SNS also reserve the right to transfer personally identifiable information to its partners and affiliates if they have a “business reason to do so” and in all cases, advertisers are subject to their own privacy policies with regards to the information they collect -- some of it personally identifiable.  To complicate matters, all of the leading SNS, including Facebook, Orkut, Myspace, and Bebo, reserve the right to collect information about you from other companies and publicly available sources.  It is unclear as to what information is being collected or for what purposes, and unfortunately, such information is effectively kept “private”.

Redefining Privacy on Social Network Sites

Social network sites can be seen as open spaces which allow users to maintain diverse personal relationships.  However, the somewhat anonymous parallel networks of third parties which exist on these sites threatens the “open nature” of these sites vis-à-vis our privacy.  While users may maintain that the information they have provided is kept secure and private, these parallel third party networks negates the control an individual may assert over the flow of their information.   It is within this context that privacy needs to be conceptually redefined in relation to both user “information” as it appears on a social profile, and “data” once it is processed by third parties.  There is a need for an alternative paradigm to privacy on SNS which takes into consideration the flow, retention and use of personal information. 

While it may be too early to determine whether or not the expected digital dossiers complete with complex user-specific biographical data will be developed or come to threaten our privacy in a fundamentally new way, it is also premature and erroneous to assume that traditional notions of privacy are fundamentally antithetical to the net.  As communication become increasingly mediated by digital technologies, so to should our perceptions of privacy and ways of preserving it.  SNS must also become responsible for ensuring greater transparency in the flows and uses of personal information, working to standardize the privacy policies in such a way that makes the user experience one which is seamless with respect to privacy practices.  Initiatives such as the W3C’s P3P are a promising step towards nurturing a more nuanced understanding of privacy among internet users.  Only through understanding privacy as the control over the flows of personal information can be balance the interests of SNS users with the business models of these “open” networked spaces.

The workshop drew individuals affiliated with the arts in many different ways, making for a rich exploration of how legal governance has come to shape art as praxis, influence modern conceptions of “art” and alter the ecology of creativity. The two-day workshop offered artists pragmatic legal tools and advice, as well as the opportunity to discuss the friction between artistic freedom, legal rights, and juridical power in the art world. Judging from the workshop, artists appear to be increasingly concerned with their legal rights. With this said, they also seem to be equally critical of how legal systems may be shaping modes of artistic expression. This ambivalence made for an interesting two days of discussion.

Upon first glance, intellectual property regimes governing the sale, use and production of artistic work may appear wrought with ambiguities for those unfamiliar with legal technicalities. As the globalized nature of legal and technological infrastructures has given rise to complex new challenges for the governing of the art world, there was no shortage of questions from the group in attempt to crystallize their understandings. What does one do when a rights holder has not responded to a licensing request? Can an artist copyright their work when drawing from the public domain? The multiplexicity of the questions made one thing clear – the modern artist must be legally literate if they are to fulfill their rights and obligations under the law. Determining who owns the rights to what, and under what circumstances, can prove more challenging than one may initially assume.

How, and to what extent, the legal system is used by an artist depends on a host of factors. Some of theses factors may include whether or not the artwork has the potential to be commercially exploited, holds intrinsic or traditional cultural value to the artist, or whether or not it can be easily reproduced and distributed using digital technologies. Some participants were interested to learn how they could use the law to protect their work from illegal distribution, while others were keen to how they can contribute to the public domain, while maintaining certain rights to their their work. The increasingly commercial nature of museums and galleries and the risks they pose to artists seemed to be a pressing concern for many. Individuals cited cases of galleries buying the rights to entire bodies of work, thus rendering artists unable to reclaim their artistic rights and integrity.

The monetary value placed on artistic expression, coupled with a technological infrastructure which enables the dissemination of artistic works, appear to have artists seeking greater ownership of what they create. Furthermore, the threat of commercial exploitation seemed to have many artists questioning the possible implications of placing their work in the public domain. The exploitation of art for commercial gain strongly illustrated the need for legal rights to protect the moral and economic rights of artists, and it is within this context that a discourse of rights and proprietorship came to dominate much of the workshop. While only briefly touched upon, A a more nuanced discussion of the rights an artist may obtain under a creative commons license may have led discussion in more open directions. With such emphasis placed on how an artists is to protect their legal rights, the importance of public domain for the art world received little discussion.

While learning how to protect legal rights seemed to be a focus, a leveling sense of ambivalence prevailed as many began to critically questioned the role of the law in shaping artistic expression. From the dominance of the intellectual property framework to the very nature of legal language, legal structures appear to play an increasingly influential, yet ill-suited role, in answering the classic question “what is art?”. In the early 20^th century, legal and peer censorship played a prominent, yet more traditional role in determining what did or did not constitute art. India's 1954 nude art scandal involving Akbar' Padamsee's painting “The Lovers” and the similar ostracism of artist Marcel Duchamp for his Dada piece “The Fountain”, demonstrates these more traditional forms of legal and peer censorship, respectively. Today, a more nuanced method of censorship appears to have evolved alongside the complex legal structures governing artistic work. Under the intellectual property rubric, judges and lawyers, as much so as artists, are critiquing the integrity of art and, consequentially, shaping modern perceptions of authorship and creativity.

Many participants found the epistemological power of law in the contemporary art world to be questionable. As new art forms continue to transgress traditional boundaries of creativity and legality, copyright law is becoming an increasingly complex arena. To what extent does the pop art of of Andy Warhol blur the lines between artistic expression and trademark infringement? Does a series of painted lines a canvas demonstrate “some labor, skill and judgment”? Should conceptual artists be able to copyright their installations and freeze performances, however impermanent these works they may be? The work of artist Jeff Koons clearly exemplifies how copyright law may classify adaptive works as extralegal. His sculpture “String of Puppies” –a playful and colorful adaptation of a photograph, was determined by American courts to be an infringement of copyright, even though it had been clear that a great deal of “labor, skill and judgment” had been poured into the piece. Through the artistic gaze, the work was seen as “original” in its own right. To the legal eye, it was a clearly an infringement of copyright. Such a case demonstrates how juridical authority can, and is used, to impose rigid notions of creativity and authorship.

The role of intellectual property regimes in exacerbating power imbalances within the art world was another theme of concern for artists throughout the two days. Participants gave many examples which demonstrated the cumbersome processes artists must undergo to secure a performance license from foreign rights holders. While one performance manager thought they had secured the rights to a show, they were kindly notified by authorities that they had only in fact been given rights to the script, but were never granted permission to use the music. One can imagine how the increasingly globalized nature of intellectual property law can impose financial restrictions on small time performance artist in Bangalore to acquire all the licenses necessary to “legally” perform a classic Broadway show. Considering that shows are normally performed for smaller audiences and do not garner substantial profits, these legal structures often work to reinforce an asymmetric balance of power in the art world.  Other participants noted how emergent Artists Guilds in India are taking almost draconian measures to ensure copyright law is respected by artists and performers in and around the art scene in Bangalore.

The politics of power also permeated discussions of how governments are protecting traditional forms of artistic expression through geographical indication. Geographical indication seems to preserve the spatial contextuality intrinsic to the production of traditional art forms. However, bringing “traditional art” under the umbrella of intellectual property law also raised a host of questions. Considering the disjuncture which exists between supranational systems and local practice, who should hold the power to decide how folklore is protected? These methods of protecting the intellectual property of “the local” often present new tensions between geographical fluidity:rigidity, individual:communal modes of production, and legal representivity:invisibility.

It is evident that the law plays a necessary and functional role for governing the art world and protects many artists from undue exploitation. However, legal structures continue to gain greater epistemological power within the art world as a consequence. This has many questioning how the law may stifling artistic expression; notably as new technologies continue encourage new art forms through the use, adaptation, and remixing of copyrighted works. What will the future of art look like if judges, and artists alike, continue to survey the practice through the lens of legality to the extent they do today? As artistic and legal practices continue to evolve, it may become increasingly difficult to disentangle art from the complex political economy of interests that governs it.

Drawing from such concerns, I am compelled to question why a discourse of rights and protection, rather than one of obligation, continues to dominate discussion of the art/law nexus? If artists are concerned with these increasing legalisms, why aren't they encouraged to preserve the creative commons as often as they are advised to assert their proprietary rights? Wouldn't a discourse of artistic “responsibility” rather than “rights” set the art world on a path towards redefining the role of law and and reclaiming the power of influence over artistic expression? There is a clear need for the art world to recenter the line between legal rights and creative subjectivity, and I feel that more focus on protecting the public domain, rather than individual property rights, would be a proper step towards achieving this. Only by doing so do I believe that artists will be able to ensure that copyright law continues to serve its functional role without becoming a new form of creative censorship.

If the opinions I have expressed raise important questions for you, A.R.T. will be holding another workshop exploring art in the context of social media. As more artists are using the internet and social networking tools to promote their work, new benefits, as well as challenges have risen within this domain. A date for the workshop has not yet been set, however it is planned to take place early on next year.

The question in the title is the driving force behind a joint research initiative the Centre for Internet and Society has recently undertaken in collaboration with pioneering institutions, LexUM,and the South African Legal Information Institute.  Over the past fifteen years, institutions providing free access to legal materials have transformed the modes in which legal information is produced and used. However, there have been few analyses of the ways in which legal information repositories operate. Lessons learned, best practices and successful models have not been systematically documented, and administrators may not have access to useful guidance or peer support. The study will bridge this gap by analyzing a variety of free access to law initiatives around the world in greater detail.

In 1992, the first Legal Information Institute (LII) at Cornell University began to place primary sources of law and interpretive legal materials online, free of charge.  The Free Access to Law Movement soon expanded to form a broad network of LIIs who shared the belief that legal information is digital common property and should be accessible to all. Today, citizens around the world can access legal information in multiple languages through easily searchable databases. Among the resources available are statutes, bills, court decisions, bilateral treaties, law journal articles, legal reform documents and much more. This freely available legal information has helped make the law more accessible to audiences previously underserved by costly commercial databases, and has allowed comparative legal research to become more practicable than ever before.

Research will focus on gauging the broader societal effects of free access to law initiatives, as well as on understanding the diverse factors which contribute to or undermine their sustainability.The CIS will be overseeing research in Asia, while SAFLII and LexUM will cover South and West Africa, the South Pacific, Canada and Australia. The global scope of the study will facilitate the sharing of expertise and best practices within the global network of LIIs.

The value of creating a legal information commons has been clearly demonstrated. Access to legal materials helps to strengthen judicial systems, improve legal expertise, guide policymaking and maintain the rule of law. Legal transparency helps businesses assess risk and encourage entrepreneurship. Citizens and civil society actors require access to law to participate in the political process and assert their rights. These audiences form an important constituency for open access to legal scholarship and demonstrate the need to further examine the core benefits of free access to law initiatives.

Online free access to legal materials has also been an indispensable tool in underserved regions where a host of factors often undermine access to legal information. The following examples, derived from preliminary CIS research throughout Asia, demonstrate how free access to law can bridge various gaps in legal information accessibility. In some cases, laws may be completely unavailable. For example, bureaucrats may demand bribes before allowing access to copies of a law, or governments may wish to keep certain implementing guidelines or regulations a secret. In other cases, a law might have simply been lost through lack of proper storage or record-keeping.

A second problem occurs when laws and case law are available only in certain locations or certain forms. A law may be available only in hard copy or in one or two libraries in the capital city, for example. This causes difficulties for citizens and practitioners in remote areas who lack the resources to travel. Sometimes, the libraries containing the legal information also may require special permissions to access. In other instances, legal materials may have been digitized but not properly stored or networked.

Digitizing and uploading laws to organized, searchable databases presents its own challenges, and some governments lack the technical capacity to do so. However, digitizing and uploading laws does not guarantee general public access. In some countries, laws may be online but placed in pay-per-use databases. And some governments retain a copyright or similar intellectual property rights in their laws and other documents. This may mean that NGOs or LIIs cannot copy, consolidate, or re-post certain legal information without exposing themselves to copyright liability. The commercialization of legal information also restricts access to individuals and firms able to pay costly subscription fees.

Copyright and the commercialization of legal information can inhibit the free flow of legal information—notably when legal information can be better organized, preserved and disseminated further under more open standards. Because of the importance of free access to law, a significant focus of the research will be to identify factors that contribute to the sustainability and success of free access to law initiatives. This is of great importance in Asia, where the local capacities of LIIs require further strengthening before their databases can begin to rival their commercial counterparts.

Many challenges remain for the development and sustainability of free access to law initiatives in the Asian region. Searchable legal information must be provided in both English and regional languages, while local technical capacities require further development. Mariya Badeva-Bright of SAFLII also notes that LIIs need to secure working partnerships within the judicial branch of government in order to reduce the burdens of digitization and to promote common standards in preparation of legal material. The AsianLII has only begun to scrape the surface of valuable legal information that is potentially available and must continue to develop and strengthen partnerships in the region.

The study will have several concrete results. Upon completion of the study, a Free Access to Law Best Practices Handbook will be published and will serve as a comprehensive knowledge resource for both existing and nascent free access law initiatives. The handbook will outline various steps in creating and maintaining successful free access to law initiatives, while ensuring that important aspects of design and sustainability are not overlooked. Also, a comprehensive online library will host current and future materials relating to the free access to law movement, including a collection of free access to law case studies.

Research by the CIS, LexUM, SAFLII, and their respective team of researchers is expected to commence within the next few months.  In the end, the free access to law study will provide future initiatives and existing LII networks with proven and adoptable best practices. This research will increase the chance that nascent initiatives will be successful, and support the continued growth of the thriving legal information commons.