Bits & Bobs for the Week of 22 May 2023
Bits & Bobs for the Week of 22 May 2023
Below is a collection of the interesting things I've been reading over the last week or so.
While I'm not trying to make this yet another law blog, this week's issue is quite law-heavy. For one, it's been a law-heavy past few weeks -- the US Supreme Court released a few major rulings (including the AWF v. Goldsmith and Twitter v. Tammneh cases), the GDPR turned five, and the Data Protection Commission marked that fact by dropping the Meta decision. Most of my week was spent unpacking the Meta decision in particular, and its implications to how we operate online. I've also seen more people share my growing frustration on how various law and policy decisions are beginning to run up against the complexities of compliance and enforcement.
Long Reads (> 20 minutes)
How to Make the Best Coffee at Home by James Hoffman: For the coffee nerd in your life, I recommend this book. It's heavily skewed towards espresso drinks and brewing, less towards the other bits related to coffee, but I'm a huge fan of Hoffman's YouTube channel and it makes for the kind of pretty coffee table book that you actually want to read. Preferably over coffee.
Obviously, I was also busy reading the 222-page monster DPC decision, In the matter of Meta Platforms Ireland Limited (previously known as Facebook Ireland Limited) I wrote a very long piece assessing how this decision may very well lead to many companies noping out of the EU market entirely, leading to a splintered internet -- where various countries create their own isolated, disconnected internets which favor sovereign data silos and technical protectionism over the interconnectivity and openness we've come to expect. I also discuss why the DPC's decision has created an unworkable and untenable decision for most businesses -- not just Meta & big tech, and how we're all likely to lose out because of it.
Medium Reads (5-20 minutes)
Washington's My Health My Data Act: Welcome to BIPA 2.0: Everything in privacy is fractally complex, and this piece by Andrew Kingman assesses how Washington's new My Health My Data Act (MHMDA) supports my conclusion. The law offers an overly broad definition of "consumer health data" (CHD) and a private right of action that will end up probably being a gigantic mess. Kingman catastrophizes that "Washington state will quickly become the new home for trial lawyers as they look to open a new spigot in punitive class action lawsuits" targeting businesses for picayune violations of the law. This, he argues, will drive businesses to treat the law's application to absurdist lengths, treating loads of day-to-day personal data as CHD and seeking opt-ins for uses that are probably outside the scope of the law. This will, in turn, lead to individuals unintentionally turning over more sensitive health information as they face "consent fatigue." Just think of how we all treat cookies and privacy notices... now multiply that for health data.
Kingman agrees that the legislature had the right aims -- namely, trying to fight back against the growing weaponization of personal health data post-Dobbs -- but that the law's breadth may end up harming the very groups it was intending to protect. He parallels that with similar pitfalls that have plagued Illinois' Biometric Information Privacy Law, where lawsuits have been brought for any number of technical reasons, even in the absence of actual harm. In the end, he argues that the "MHMDA is likely to go into effect as a bill that will frustrate consumers, obfuscate opt-in notifications for truly sensitive data, and result in the degradation of the everyday services and online experiences that consumers expect." Notwithstanding that Kingman has a bit of an agenda (he lobbied on behalf of businesses against this law), he does raise many valid points.
Short Reads (<5 minutes)
Tears of the Kingdom’s bridge physics are impressive - Polygon: I've been playing the latest Legends of Zelda game and it really is a marvel of programming, design & game physics. It's a breathtaking open world (which as David, my dear Husbot will attest, is like crack to me), and the development of the game, particularly its physics engine is so good that it gives players many different ways to play the game. Rather than forcing users into discovering the single solution to a puzzle or quest, TotK is extremely open-ended -- meaning that two players might solve a puzzle in very different and surprising ways. But, as the author (Nicole Carpenter) notes, this flexibility also means that "there are so many ways this could break.” And yet, it rarely does. According to Carpenter, Nintendo reportedly invested a year of TotK's development in polishing and QA testing the game, and also relied on most of the development team from previous Zelda games, meaning that things weren't being remade from scratch.
Graeme J. on LinkedIn: Perhaps a sign of the times - a lawyer recently had to write a bit of an apology letter (as an order to show cause on why he shouldn't be sanctioned) in the Southern District of New York for accepting ChatGPT-generated set of citations and corresponding research provided by co-counsel without doing a proper review. What's particularly interesting here is that the plaintiff's lead counsel had previously attested to the validity of the citations and conclusions drawn from them, but had to backpedal after the defense counsel informed the court that many of the cases cited either didn't exist at all, or didn't speak to the conclusions they were cited for. According to the record, the second lawyer admitted that he relied on ChatGPT without realizing its limitations, or you know, checking. Oops!
On the internet, you can, in some sense, live forever: Ryan Broderick writes a lot of great stuff in his bi-weekly Garbage Day Substack. In this week's opener, he discusses the (im)permenance of information on the internet, as more big tech companies have started to purge data from old or inactive accounts:
A friend of mine died a few years ago. She was diagnosed with cancer right after I moved to London. So I didn’t see her nearly as much as I should have. Instead, we tried to stay in touch online, but back then remote work and chat apps weren’t very good. She had an Android, I had an iPhone. And I was constantly changing phone numbers and SIM cards because I was traveling internationally a lot for work at the time. It was a mess, so we just settled on using Facebook Messenger to keep in touch.
We spent about a year talking and video calling on Messenger. And after she died I expected those messages to stay there. And then I logged in one day and they were all gone. Her family couldn’t have known this — I certainly didn’t — but when you convert a Facebook profile to a Memorial page, it erases that user’s chat history. I have screenshots of a few bits of what would end up being our last conversation, but that’s it. The rest is gone.
On May 8th, Elon Musk announced Twitter would be “purging accounts that have had no activity at all for several years.” And so I’ve been going back to her account a lot lately. ... There are ways to archive an account’s most recent 3,000 tweets, but she posted A LOT. So I’ve resigned myself to the idea that one day I will search her username on Twitter and it just won’t be there anymore. ...
I’m sure you’ve heard the old aphorism that everyone dies twice. Now, it seems, we die three times. First, when you stop breathing, second, when a corporation deletes your account, and, third, when someone says your name for the last time.
Broderick takes the opposite view to most privacy advocates who wish to ensure data minimization and storage limits are in place, and points (indirectly) to the inherent conflict between a view of the internet as a permanent record of humanity v. the importance of forgetting:
Erasing old content is, also, a fundamental betrayal of what the internet was created for. It was meant to be an infinitely expanding space of unlimited discovery. One that exists beyond what was possible in the physical world. You could be whoever you want, talk to whoever you want, and interact non-linearly across time and space. And a lot of companies got very rich by offering us the opposite: walled gardens and passive algorithmic recommendations jammed into linear feeds, which they marketed as more secure, more convenient, and more entertaining. ...
But there also really isn’t “inactive” content. Not really. It’s just dormant. As long as it’s online, it’s still just as alive as it was when it was first posted. ... Because on the internet, you can, in some sense, live forever. The signals we broadcast out into the void don’t have to fade away if we don’t want them to.
Finally, I really enjoyed this quote from Man's Search for Meaning: "With the end of uncertainty there came the uncertainty of the end."