This Week In Law 251 (Transcript)

Denise Howell: Next up on This Week in Law: We’ve got Larry Downes, Robert Scoble, me and Evan Brown. We’re going to let our freaky line fly and what I mean by that is we’re going to talk about a lot of privacy impacting new technologies and how the law may come to terms with them. We’ll talk about cars and as they get more contextual what does that for you. We’ll talk about drones and how long they’re going to have to keep violating the FAA laws until the laws might change. We’ve got lots of great stuff on tap including Google and Viacom finally resolving their suit and Popcorn time proliferating despite the fact that it’s gone now and lots more on This Week in Law.

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Denise: This is TWIL – This Week in Law with Denise Howell and Evan Brown. Episode 251 recorded March 21, 2014

Hester Prynne vs. Davy Crockett

Hi folks, Denise Howell here and you’re joining us for This Week in Law. I’m so thrilled this week that we have 2 amazing guests who are going to help us understand everything about disruption and new technologies and where the law might get in the way or help those processes. We have the author of “Big Bang Disruption” Larry Downes joining us once again. Hello Larry.

Larry Downes: Denise, how are you?

Denise: Great to see you. Thank you so much for taking a break from your travels to travel to the studio and join us today.

Larry: Well you know I’m on this quest to find the proper configuration that will make me look as good as Evan Brown and I don’t think this quite does it but it’s a little closer.

Denise: You’re looking great. Also joining us – we’ve got a 3 person California panel plus Evan today, Robert Scoble is joining us for his first time on This Week in Law. We’re thrilled to have you Robert.

Robert Scoble: Thanks for having me on.

Denise: Robert also has a book in the works – The Age of Context has just come out. A very good compliment to Larry’s book as well. The 2 of you are writing about similar kinds of issues so I think that we have a great opportunity to look at how new technologies that may strike people as freaky might attract the attention of legislatures and regulators and might have problems on that front, but might also have a way forward. We’ll get into that. Evan of course is with us as well. Evan Brown from Chicago Illinois and the info log – Hello Evan.

Evan Brown: Hi Denise. I have no book to sell but I’m thrilled as well to be with you here to learn about disruption. This ought to be lots of fun so I’m really happy to be here. Good to see you.

Denise: Good to see you too. Robert, you spend a lot of time in your book talking about the freaky line. I think generally your book is a lot about privacy, so I think we’re going to start with some privacy related stories so let’s go there first.

Robert: My book is really about the good parts of the always surveilled world that we’re heading into. You’re going to soon walk into a grocery store and there are going to be sensors around you that will watch you shop to the point that they can tell that you’re pulling a box of cheerios off of the shelf and do things in real time because of that; add points to your loyalty program or say if you bought 3 boxes you get a discount and stuff like that. It’s crazy how fast it’s happening since we published the book last September.

Denise: So tell us what you mean when you talk about the freaky line.

Robert: Most people – I had dinner with the CTO at Ford at CES and he said you know our customers – Joey bag of doughnuts – Nascar Fan and they don’t know the depths at which they can be surveilled. You look at what the Tesla can study about you and if you turn on the right thing it knows that you’re doing doughnuts in the parking lot, it knows where you are, whether you’re at a grocery store parking lot or a strip club or a church or a school. Ford is like wow, this is a new freaky area for us. We know we are probably going to need to go there because Mercedes just announced a contextual car that does all sorts of stuff for you on behalf of this surveillance but this is an over the freaky line world where we’re not yet sure we want to go there. A lot of people are really struggling with this world where the phone is really stalking you full time and even the sensors can know that you’re holding it in your hand or that it’s in your pocket or that you’re walking or running or driving or biking. The moves app already does this right and we’re coming into an age where the operating system it’s self is going surveil you at a deep level, watch what you do and serve you in a whole number of new ways.

Denise: Right and this is obviously a good thing and a bad thing. There are certain wonderful things that this can facilitate that you write about in your book. Ways of living that we can’t even really imagine today. Can you give us some examples of how if the freaky line is managed properly and everyone’s consent is adequately obtained and customers are kept comfortable with how their data is used – give us some examples of how it can vastly improve your life.

Robert: If we were doing this show back when Leo was on KGO Radio in the early days, like 15 years ago; if we talked like “oh we’re going to give access to Gmail to 3rd party systems to study it”, we would go “whoa that is way over the freaky line for us”. Yet today I have an app called Tripit which I give access to my Gmail. Tripit is a non-Google company looking into my email for things like airline tickets and hotels and other things about my travels and it pulls them out and builds a service around those things. I was on a plane in Chicago at the gate about to leave and Tripit said your flight is being cancelled; here is another flight out of town. Click, bought the ticket, got a new seat and then 2 minutes later the pilot comes on and says we’re cancelling the flight because of mechanical issues; we’re going back to the gate and the customer service people will help you out. There was only 3 seats on that other flight so 100 something people spent the night in Chicago. That’s a little example that you’ve got to give up privacy – I give Tripit access to my Gmail, my credit cards and it knows a lot about me and then I get a lot of utility for that giving up of my privacy and that’s just a little tiny example. This system is really going to serve you in a deep, deep, way. The Google glass which is a – I’m having trouble with it right now but the code name of this was “wing man” and the idea behind it was that as you live your life it’s going to serve you. It’ll tell you hey you’d better leave for your next meeting or here’s a better experience in life or here’s a friend who is trying to get a hold of you. We’re going to see this kind of argument for several years as people decide whether or not to give up their privacy and give access to their email to various systems to do various things.

Denise: I think that everybody’s idea of where the freaky line is drawn is a bit different. It’s sort of a freaky continuum. For example; Evan with us today hasn’t used Facebook in a very long time. He decided a while ago it was too freaky for him, right Evan?

Evan: Right. That was a big part of it. Just so much information and connecting dots and assembling pictures in the composite is pretty freaky to me but there’s also just normal everyday life issues being able to exist more in the real space as well. This is all intriguing and that’s good that you’re saying that Denise – freaky continuum because there’s that and then it also seems like the line tends to move over time it would seem. Like Robert was pointing out in the old days turning over access to email was a big deal and it’s not so big anymore but just project that out into the future – our sensibilities are going to mature with the opportunities we have it would seem and we’re always just trailing that freaky line as it’s moving off into the future. Kind of like the rabbit at the dog races, you just keep chasing after that.

Robert: The freaky line is about to go really freaky in the next decade. I’ve seen pills already that you’re going to swallow that are going to study you from the inside. These cameras are 1 millimeter by 1 millimeter and they can actually video you as they go through you. The really bleeding edge futurists are even talking about getting a pill that’s going to give you knowledge and give you intelligence. That’s maybe 30 years away but I could see how that’s going to happen.

Evan: Tell us how you see that because that’s something that is really interesting to me where nano technology could play a role in cognitive enhancement, cognitive development; communications actual interfacing with the brain. What are some particulars you think should happen Robert?

Robert: At a research lab in Ireland I saw little micro needles made out of silicone which when you put your finger on them they feel like sand paper so it doesn’t hurt but it can already pull a couple of cells out of your skin to study it to see whether you have diabetes for instance. If you’re a diabetic right now you have to prick your finger on a big needle so this is good stuff. At SRI I saw a system where you just read 200 words off of a card and it can tell whether or not you’re suicidal. They’re doing this work for the government because soldiers are coming back; military people are coming back with PTSD and are committing suicides at high rates. They want to identify those people and get them help and all you have to do is read 200 words and it’s already about 70% accurate. This is not even putting something in my brain yet. This is just studying how I behave in the world and it is already somewhat accurate and as we learn more about how to interact with the brain and the brain sensors are coming down… I should have brought my brain sensor up here. I have a new brain sensor coming out this summer called Muse which has several EEG sensors on it. Those sensors used to cost 10’s of thousands of dollars and now its $200 that you’re going to be able to buy a band that studies your brain in a new way and lets you play games with yourself. It lets you do bio-feedback and those kinds of things. We’re heading into a weird, always surveilled, and really deeply integrated with your privacy world that’s going to bring all sorts of new legal challenges.

Denise: That’s a good tee up to ask Larry who has been focusing on how businesses find themselves put out of business by people who are more savvy about what the market wants or will accept. If everybody’s freaky line is a little bit different and if the societal norm one moves over time what does that mean for businesses who think we can’t go there because it’s just too far into where people’s privacy radar goes off.

Larry: As Evan said the thing is that we tend to adjust really quickly to what seems like something very freaky even a very short time ago. A lot of times you can manage the introduction a little better than a lot of companies do. Facebook did a very bad job for example with Beacon. Google has maybe done a slightly better job with Google glass but of course you’re going to have to overcome that creepiness factor at some point. I always find, especially when we’re talking about it from the policy perspective, it’s very difficult to talk about privacy at all particularly in the United States because we have this kind of dichotomy between 2 different ways of thinking about it. In a very American sense we have the Puritanical east coast view of it – sort of the Scarlett Letter view which is when you live in the village you’re completely transparent and everybody knows everything about you and that’s the way that the Puritans liked it. Then on the other side you’ve got the west coast view which is the frontier model – kind of the Davy Crocket when you want to leave and go somewhere else you can sort of let your entire identity go by and start over and be pretty anonymous. Those 2 very different views of privacy have never really been rationalized in American life. We often get these conversations where we talk about how wonderful some of these technologies are and what great things they’re going to do for us and then there’s another part of our brain that kind of freaks out and runs for the hills. As we say that creepiness factor doesn’t last very long either. If it’s so creepy the product just fails and we’ve seen lots of examples of that in the last 10 years but we just get over it and we just move on and forget that it freaked us out. There were some people that when Gmail came out they were asking the government to ban it because they thought the whole idea of software reading the mail and using the context to get ads was just something that shouldn’t be allowed to exist at all.

Denise: Robert you alluded to cars as being a big frontier for this. Before we get into that discussion and move past taking a pill to enhance your intelligence too far I did want to drop our first MCLE passphrase into the show. It’s going to be “blue pill” – to go ahead and help people demonstrate to any oversight bodies that they may need to that they listened to the show. Some people who tune into the show do so for continuing legal education credit or other professional credit so we drop these passphrases into the show to help them out if they need to prove that they did listen and learn something hopefully. If you want more information about that head on over to, find the TWIL page there and we’ve got all kinds of info for you on MCLE credit and the show. Let’s talk about cars. Let’s talk about contextual cars and services that may not be built into your car such as the one “trapster” that you wrote about Robert that leverage the fact that you’re moving around.

Robert: Trapster was a system like Waze where you could self-report cops and other obstacles on the road as you drove around and Waze really beat them in the market place. I have a feeling if I was at Nokia I would be pulling that back and rethinking what to do with Maps. Nokia owns Map tech and really has a lot of map data that they could use to build a new kind of Siri or something like that. Cars have seen 3 changes. 1: you’re seeing more and more autonomous driving technology into the cars. I talked with the head of BMW’s autonomous driving system at CES and he says it’s going to be about 15 years before we get a real car that can really drive without a human. Mostly because of legal issues; that car has to be proved that it won’t hurt people and that’ll take a long time even though the technology is pretty close to being done today it will take that long to prove – to drive the number of miles and do the kind of testing to convince the rest of us that this car won’t do something nasty to us. He said what they are doing, the car companies are investing in that technology because they’re going to take some of the autonomous driving technology and make the car that parks itself and keeps inside lanes and see ahead of traffic so it knows something about what is coming at it and maybe save your life by augmenting your capabilities while driving or even taking over during boring stretches of roadway and letting you go to sleep or do something like texting in the car which is really bad behavior right now. The car could easily take over on a drive through Nevada and drive itself. So that’s one side of things. They’re taking about connected cars right now and what they really mean by that is they are changing their strategy from thinking that you’re going to buy a 6000 dollar navigation system in the car to understanding that your phone is the center of your world and you’re going to walk into the car and the phone is going to automatically connect to the car. Then the car might even connect to other cars to do things like traffic controls and things like that. Right now most of the cars are just making that sync up to the car easier and you’re seeing products from Apple and Google that will further blur that line between your mobile phone and the systems in the car so that’s one thing. The 3rd thing is that the car is being turned into an API it’s self. In fact if you have a modern car you can buy a gadget from a company called automatic that plugs in underneath the dash and then turns the car into an API. The Tesla is probably the best of what this API lets you do. A friend of mine built a Google glass app to control his dad’s Tesla and he can ask Glass for how much power is left in the car, where it is the car parked, he can even ask it to open the moon roof by talking to his Glass. Because the car has an API or application programming interface that he can write iPhone or Android apps to, talk to that API and do things with the car. That’s quite an exciting change in cars which are leading to new capabilities. The Chevy Volt has an iPhone app for instance which lets you do all sorts of stuff with the car. It’s quite a fun world and most people are keying in on the autonomous driving because that’s the most fascinating feature that it brings up a whole number of legal issues. There is actually a law class at Stanford about how law will change when there is a robot driving your car. That could change at a really deep level because the sensors that are on top of the car can see how many people are in each car. You might not think about that but our human perception is not good enough in a split second to make a decision of life and death based on how many lives are going to be affected on each outcome. A computer can do that really fast and also the sensors can see things that you eye can’t see. They can have an infrared sensor that can see heat signatures coming from the cars and that brings up a whole fun area of new law and how our law systems might change if we had a world where cars could really self-drive themselves. Then it leads into whose responsible if the car does kill you or hurt you or hurt somebody else. That’s a lot of fun. I’m sure you guys could do a couple show on just that topic.

Evan: I think the biggest issue with that would be just the ethics that go into the programming of that. Like that one particular app you were talking about. They’re measuring how many lives are at stake. Wouldn’t it be odd if you could program it so that it recognizes that you have a choice between hitting a car with 1 person and a car with 4 people, but you’re more likely to die yourself if you hit the car with 1 person. Where do the ethics come from in programming that way in notions of self-preservation? Will it be incumbent upon the driver to choose the outcome that would not necessarily be in his or her self-interest?

Robert: You know you’re not going to get to choose this stuff right?

Evan: Then who does?

Robert: First of all there might be hundreds of algorithms being called on within a few micro seconds. I talked to Mike Montemerlo who built the algorithms for the Google car and I asked him how this thing is going to go through an intersection when 4 autonomous cars meet at the intersection at the same time. Humans are pretty good at that because we look at each other and go hey come on – go. We’re good at communicating with each other in that kind of situation. He said well I’ll just start going randomly and my car will watch the behaviors of the other cars. If they all go I’ll wait and then I’ll go at a random time again and try it again. How the algorithms work is very interesting but you’re not going to be able to choose 1 algorithm and say I want that to be turned on in this situation because there might be hundreds of algorithms all working at the same time to figure out the best path forward for the car.

Denise: All I can say is I’m glad deep minds can play 8 bit video games because it’s going to need those kinds of skills to make these decisions.

Robert: Remember the big blue contest that IBM had where they pitted a computer against a master chest player? We’re going to have a big blue in the next couple of years where a Stanford car is going to race a top human driver and is going to beat him or her. So you think about the fact that BMW at CES this year had a self-driving car that took journalists out on the race track and the car was able to do things like slide perfectly because the algorithms are so good and the sensors are so good and the computers are so fast that it can do a lot of fun stuff that humans really struggle with; even the top end drivers who spend 20 years learning how to really push their cars to the end of traction. Computers are going to pass that in the next 2 to 5 years no problem at all. They are already within a second of the top drivers because the computers can push the tires to the edge of traction and be consistent about it and also the computer can see 360 degrees and can see inputs that we just can’t even perceive like they know if you put sensors along the roadway you’d know what the wind speed is, you know what the traction index is based on water on the pavement. In fact they drove this car through some water and it handled it just fine. Sort of like Audi does on ice. I drove an Audi on ice at Davos and they turn on the traction control and it’s impossible to spin the car. It really doesn’t let you do that. It just slows down the car if you try to do something stupid. You turn it off and you can spin that car in a second. The computers are already helping us drive and in 15 years they’re really going to take over.

Denise: Right, we’ve talked a lot about this on the show actually and not just about the legal liability in the case of an accident consideration but the whole insurance industry and how it’s going to develop around things like well if you’re driving an Audi on ice you can’t skid and we know that so we’ll price you more attractively. Let’s get back to something that Robert mentioned a little while ago about all the data gathering that a contextual car can do and putting together when you are at the strip club or… There’s a whole profile of your life that could be put together from where you go and it doesn’t just put it together about the adult passengers in the car, it puts it together about every passenger in the car. Larry has written a lot about Coppa the child online privacy protection act. It’s obviously something that online companies are struggling with already today without having this kind of information about people. It occurred to me as we’re having this conversation Larry that Coppa could be on a head on collision with car companies. I never really thought about that before had you?

Larry: No I hadn’t and honestly the problem is these legal standards can never keep up with the change in pace of technology. That’s of course a theme we’ve talked about many times before. The only think that technology is doing is getting faster and the only thing that legal change is doing is staying at the same pace as best. I think Robert made this point that when you have the cars – of course cars are self-driving to a great extent already and we say the technology is already there to do a lot more of that. It’s not really that we have to figure out the legal standards but the law has to catch up and that’s something that makes law makers uncomfortable, it makes people who are already regulated – the car makers, insurance companies, it makes them very uncomfortable and really the delay is for them to catch up emotionally rather than to work out new standards. Working out new standards is not the hard part. So things like Coppa – if you went to the Federal Trade Commission and said ok what happens when the car knows everything that’s going on about it including the kids they would just give you a blank look and ask you to go away.

Denise: Well hopefully that blank look won’t last for long. What do you think about this Evan?

Evan: It’s tricky because we have a hard enough time dealing with the concerns of grownups here and it’s just another perfect example of how are we going to figure out how to implement the standards, the sensibilities that we already have? I would tack onto what Larry said; we already know the appropriate legal standards and we can look back at the development of the common law for hundreds of years to sort of get what are now the hard wired notions of what is right and how liability should be allocated and responsibilities, rights, obligations and all that stuff. This is the 999th example we’ve had where the greater amount of choices that we have do conduct ourselves occasioned by technology challenges us to figure out how to take those things that are hard wired and execute it into the present environment. It gets especially tricky and like a lightning rod when we’re dealing with kids especially with this Coppa thing.

Denise: So one way that the freaky line gets to be less of a concern for people is when they give meaningful consent and they have a good idea of how their data and their children’s data is going to be used. Robert before the show started you started telling us an antidote about when you were with Microsoft and spent some time with a member of the legal team there. As we’re talking through all this it seems to me like the purchases of many of our consumer goods now – not just the car but maybe the refrigerator and other things that can be gathering personal data about you are going to have to be accompanied by some disclosures along these lines and that the customer is actually going to have to give some consent.

Robert: I spoke at a privacy conference a couple of months ago and one of the sessions was what sign do they put on front of a smart store that warns you that you’re being surveilled in that store; I’ve seen 3D sensors from a company that watch your behavior as you go through the store. There’s a company called Shelf box that actually you tap into a display and it tells you stuff about that display. So if you’re in the cookie isle it knows you’re standing right there and on and on. At South by Southwest I went by a Bluetooth – and one of the guys had made a mat for the front of the meda that watches your behavior going over the mat. Our iPhones now have a thing called Bluetooth smart beacons or Apple calls them iBeacons that are pinging a number into the air if it’s turned on and right now it’s not but it will be soon. Someone will turn it on. Then devices around you know precisely where you are. That ping could be hooked up to Facebook for instance and all of a sudden I know who is standing with me. That’s a whole new era of surveillance that we haven’t really thought through and is way over the freaky line. Baseball stadiums are going to have 65 of these little radios starting at opening day. You’re going to walk in with your iPhone or your Android phone and if you have the major league baseball app it’s going to change as you walk around. Apple stores already do this with the Apple store app.

Evan: There’s a plausible pathway to this idea where you could – I’m thinking of how this would interface with Glass in a really cool or uncanny way where you talked about just walking into the concourse at the baseball stadium and you see somebody’s name pop up. With what you’ve articulated it seems like how that could actually happen right?

Robert: Right, it’s not just who you’re with it’s are you next to a famous landmark or are you next to the hot dog stand. That stand can now know you’re there and can show you stuff. You can get points if you buy a hot dog right now or do you want your hot dog delivered to your seat. We can make that happen too because we know where you sit.

Evan: It would be more relevant to market mustard for example than it would a car at that point.

Robert: By the way sports is about to really change because some of these sensors. I saw a little sensor pack that the football players are going to wear that streams off of them in real time their heart rate, the speed that they’re running, even the intensity of hits and that data can be put onto TV or something like a Google Glass if you’re staring at the field and you can watch your favorite players stats and know what his top time is and running. You could start playing all sorts of new games based on the sensor data that’s streaming off your sports people.

Evan: I would be so reluctant to do that if I were an athlete though because in physical sports there is the analog or whatever the corresponding thing to the poker face is. You may be really hurting and you don’t want your opponent to know that. It seems like you could get an awful lot of resistance here.

Robert: From what I hear the coaches really like this stuff because they can push their players to the edge of human performance and then back off. They can also track things like concussions at a whole new level because you can really see a lot more data about how hard somebody was hit and whether they were hit in a dangerous way. Also these sensors now – other sensors that the football players are wearing show whether they’re getting enough sleep at night and for their ultimate performance. At that level if you change let’s say the performance of an Olympic athlete by 1% that’s the difference between 50th place and Gold medal right. That’s a huge shift. They’re looking for any edge they can to push themselves and their teams to the edge so that they can get the utmost out of that human investment.

Denise: Right, I meant that coaches would hate it if the opposing coach could know everything about what’s going on with their own team.

Robert: It’s mutually assured destruction because you’re going to have all the data on the opposing team as well. You’re going to know everything that people are watching at home.

Denise: Coming back to this consent issues I just can’t imagine the consents and the waivers that athletes would have to sign to give up their – as someone on IRC is pointing out – their Hippa protected medical information for public consumption is a pretty serious thing. Larry I’m curious what you think since you have finger so on the pulse of – not to make a medical joke but Washington and policy – how you think that meaningful consent is going to play out with the various things that we’ve been discussing. Obviously our means for getting meaningful consent to data gathering on the web is less than perfect. People get presented with boiler plate agreements, they click or perhaps don’t click that they accepted the terms and then people can fight about what sort of consent has been given. When we’re talking about things like car or other devices that traditionally have not gather data about us how do you think that Washington is going to deal with this?

Larry: Badly. That’s the short answer. I think in the last 5-6 years I’ve been spending a lot of time in Washington the privacy is just the perennial topic that comes us. We have lots of bills that float around. Usually, unfortunately they just arise when there’s a catastrophe or some crisis and then Congress gets into gear and something gets put in – we’ve got to stop super cookies, we’ve got to stop Apple collecting the data on the phone when you’re not looking and all these other sort of mini panics that come up. There’s never really been any serious effort to do anything comprehensive about disclosure, about what to consent, about what actually is private and what’s protected and what’s not. It’s probably a good thing. I think like all forms of contract law, privacy consents or any other kind of consent most of the time the document itself is irrelevant. It only really matters when something goes wrong or when there’s something in the margins that’s really problematic that you actually would even look at the document or look to see what was agreed in the first place. I think that’s the best solution anyway. The companies don’t want unhappy customers and customers are increasingly able to leverage social media to make their displeasure known and get responses in a very almost sort of pitchforks and torches at the castle kind of way. Whether that’s the best way to do it, it’s much more effective than waiting for Congress or States or even for the Federal Trade Commission which has authority here to spend 2-3 years investigating something and coming out with a compromise, trying to split the baby, trying to figure out a remedy and of course by that point the technology has been come obsolete and we’ve moved onto something else. If we’re really going to get a better form of consent or better form of notice it’s going to come in the interactions between consumers and companies. It’s not going to come from policy.

Denise: We were talking about Gmail a while ago and how the freaky line for most people and Gmail has moved over time. That at first when you were presented with the notion that something would be algorithmically reading your mail and presenting you with ads based on what’s in there that that could be a freaky thing. Certainly Microsoft hit on that and did it’s campaign touting the fact that Outlook didn’t do such things. Some people haven’t come to terms with that being ok and Gmail related law suits are out there. A couple of them are in the news this week. There was an attempt to consolidate these suits together into a class action and that was not successful because of this issue of consent the court found that that’s going to be too particular to every individual plaintiff, whether or not they gave consent to what was going on. But the 2 groups of people who are involved in this law suit suing Google are students using the Google for education tools which I think is pretty interesting having had direct experience with that. My son was at a school that was using Gmail etc and me being me a whole bunch of things went off in my head as we went through that process. First being I was never asked to give consent of his use of the service. He’s under the age of 13 and there seems to be some kind of Coppa exception for this. Some students have hit on some of these issues and are suing Google over these consent issues. Also there are individuals who are not Gmail subscribers who are upset about the fact that although they may be protecting their privacy they think by not using the service; profiles are being, so they allege, prepared about them based on their correspondence with Gmail users. Robert it’s kind of interesting that several years down the road into using Gmail it seems that Google hasn’t ironed all this out.

Robert: And it’s getting worse because they’re doing things at Google now which is looking inside your email for contacts and so are other people. I use this calendar app called Tempo which I give it access to my calendar and my email and it looks for context based on what I put on my calendar. We’re just at the beginning of this stuff. We’re soon going to see systems that really understand everything we put into the computer and help us live our lives but some of that data could be used against us particularly if our governments go off the rails which they do once in a while, or our employers go off the rails which they do once in a while. This Google glass has an eye sensor; it knows whether I’m sober or drunk right. Does my insurance company get to see that data – I mean it doesn’t yet but it could. Does my employer get that data, does my wife get that data and on and on.

Evan: You’re making a point right there that I’ve thought about in sort of the early days of social media and I’ve brought it up on the show before so listeners will have heard me talk about this before. It’s the idea of social media or now expanding out into these more connected technologies, contextual providing technologies. Could this actually serve to be an integrity enhancer? The traditional example is the photo of your-self doing a keg stand. There are only 2 decisions there. 1 was to post the photo of you doing a keg stand or whatever but then there was the earlier decision point of whether to do the keg stand in the first place. Most people focus on the 2nd decision point forsaking the first one. If we know that we’re being watched and everything are we just going to be better humans, more moral, more kind to one another? It’s like Kant’s categorical imperative wired into the technology now.

Robert: I had this actually happen to me and I didn’t shoot the pictures but I got drunk at a London party and had a bit of fun but in 2009 Michael Arrington said “my god Scoble, did you think we wouldn’t see these”. Something very specific happened because of that. I didn’t get fired because I work for a cool company but I got invited to a whole new class of parties. I’ve had CEO’s walk up to me in the streets and say I’m inviting you to my party on Friday night because of those pictures. I’m like wow that’s a whole new shift in how we deal with each other.

Denise: Were you working for Microsoft at the time?

Robert: I was at Rack space. I’ve been at Rack space for 5 years now.

Denise: You were telling us before the show as we talk about Gmail and Outlook and the scroogled campaign that Microsoft is sort of in an ironic situation about its own email policies at the moment.

Robert: Microsoft looked inside a former employee’s Hotmail account to prove that he had stolen a windows source code or intellectual property from Microsoft and given it to a Blogger which they’re now charging him with a felony for stealing intellectual property partly based on going into his email account.

Denise: Right, so Microsoft is now saying that it’s going to add its own internal searches to its transparency reports so that you could see when Microsoft is looking at your email and to what extent the government has asked to. Do you have any take on this Larry?

Larry: I didn’t see this story yet but obviously as I’m sure we talked about many times before – the legal standard between what the government gets to do or at least theoretically what the government gets to do and what private actors including individuals and companies get to do is very different. It’s very different for an important reason which is the 4th amendment concerned with when the government is spying on you. They have armies and weapons that the rest of us in theory don’t have. So it’s probably not as surprising as it sounds but it’s probably also not a legal issue.

Denise: One thing that’s been an ongoing legal issues and a PR issue for technology companies since we’re talking about government surveillance as well is the extent to which the tech companies have known about Prism and the other data gathering programs that we know about through the Snowden leaks. This week we have word from NSA general council Rajesh D if I’m saying his last name right, who has said unequivocally that all of the data gathering was done with full knowledge of the tech companies. Larry Page talking up at TED once again confirmed as the other tech companies have all along that they know nothing about it. He was complaining at TED saying I don’t think we can have a democracy if we have to protect you and your users from stuff we’ve never had a conversation about. So Larry where do you think the truth is here?

Larry: I don’t know and I don’t know that we’ll ever really know what’s going on. The NSA still denies that the Prism ever went into effect. I don’t know that they’ve acknowledged that it’s anything more than a power point presentation that was leaked to the Washington Post through the Snowden stuff. We do know that things go through the Fisa courts; we don’t know exactly what they are although they’ve been giving us a little bit more information about that. We know about the collection of the phone records of the so called meta data. They’ve acknowledged that but most of the kind of extreme stuff in terms of web surfing and other data gathering they’re still categorically denying that it was ever done. I’m not sure what it’s going to take. The last time I was on we were talking about that blue ribbon commission that the White House put together to make recommendations. The government is now apparently meeting again today with some very senior tech CEO’s including Mark Zuckerberg who’s been fairly out spoken about this and the damage that it’s doing to US interests as well as internet interests. Will we actually get any real information about this and will it become more transparent, will we get better oversight? I didn’t hear a whole lot of that in Washington in the last several months. I think they just want the story to go away but I don’t think anybody, Republicans or Democrats are really quite eager to take it on.

Denise: Do you have an opinion Robert whether the tech companies know or didn’t know?

Robert: At Rack space we don’t cooperate except for when we get a very specific request and even then we try to push back. I believe that they largely didn’t know other than the official Fisa request, they did know about those. They might not know why they needed that data but when a court comes to you and says here’s a subpoena for very specific stuff what are you going to do? You have to turn it over. Otherwise they come after you legally. You can tap fiber lines between data centers and if you know anything about how data centers work you need to pass data to other data centers to make sure it’s duplicated in another place so that if a plane crashes into that data center it’s backed up. You want to do that also to get closer to the edge so a user in India has the same experience with your website that I do here in Silicon Valley. So there’s a lot of data duplication between data centers and you can easily tap into fiber lines without anybody knowing and pull all that data out. So it’s a tough thing. You’re now seeing these companies really upping their encryption so if someone is in between these data centers it’s a lot harder to get any pattern recognition out of that. It’s an interesting problem. I believe them for the most part that they didn’t know other than the official – request. They certainly did know about those.

Denise: Alright before we shift gears away from privacy and the freaky line to talking more about disruption I just wanted to pick your brains to see if anybody thinks that it matters that Twitter is no longer going to encrypt direct messages. My take is that if you are trying to have confidential conversations with somebody in an online way that a Twitter dm is probably not your go to thing anyway.

Robert: You should learn about Torchat or silent circle both of which fully encrypt your conversations. Even then I go back to don’t put anything in the computer that you don’t want on the front page of the New York Times. It’s too risky even with Torchat but Torchat is fun or useful for doing work that you don’t want governments or other companies to be able to look into easily.

Larry: Half of the time when I think I’m doing a direct message I wind up doing a Tweet anyway so I still don’t quite get the protocol.

Evan: That’s what I was thinking.

Robert: If you live a mostly public life it makes it really easy because you don’t have to think oh did I have the right privacy turned on, on this message or should I take this in a snap chat where the message disappears after a few seconds. If you let it all hang out then it’s easier to live life but I understand why most people don’t like to live the kind of life I’ve chosen.

Denise: You’ve done that for quite some time Robert and you really are the canary in the coal mine for the rest of us who are trying to decide how much is appropriate to make public and may have other family members who have different opinions on the topic too…

Robert: I talked with Mark Andreason about this and he’s noticing that humans will change the taboos. Look at how gay marriage is opening up around the world and smoking marijuana or using marijuana is opening up around the world. 20 years ago those were very taboo things and now they’re becoming almost normalized to the place where it’s now legal in what 2-3 states to smoke a joint. We have to change the law to support what we really want to do.

Denise: Every now and then even you run into something that you think is giving people too much transparency into your life. That’s why you wrote about trapster – when someone could call you up and say hey did you just make a U-turn – that that was a little too much.

Robert: You start looking at risks of this stuff being used against you and there are risks of not just the government going off the rails or companies trying to fire you because you have a pre-existing condition that they learned about or something like that but we have stalkers in our society, we have people who really don’t treat other people well and we call them criminals. It’s something that you have to worry about because with these new phones I can build systems that really share my location and my context and maybe even what meeting I’m headed to. So we do have to think about the consequences of openly sharing too much to too many people. Trapster is still over the freaky line for me. Trapster shows a blue line where you’ve driven and it was designed to try and show people that somebody had just driven that street right ahead of you so that you knew if there were cops there or something or that the data was fresh. It’s a good goal that they had but they did it in a very bad way. Waze has decided to do it in a completely different way and they don’t show a blue line but you can see the freshness of the reports as they’re made. They should have gone the Waze route because Waze chose a much better way to do it.

Denise: Do you ever have family discord on the issue, with your kids or your wife?

Robert: My kids are seeping in this world. We do and I wish my son would actually share more of his experience in school and share what he’s learning and he knows that there’s such a deep social cost to anything you do and he just doesn’t want to think about that right now. He had trouble with people stealing a friends phone. It was a girl that stole his friend’s phone and the girl started texting my son impersonating the guy and asking very personal questions about her. That got him into trouble. Kids really learn in a deeper way than adults do and there’s a whole raft of social costs to this new world and they learn very quickly how to deal with it and how to stay offline. I think this is why snap chat was so popular with high school kids where in my world it really isn’t popular at all yet. I can see some reasons for it but I don’t use it and most of the people in my world don’t use it. But the kids all use it because they know there is a real deep social cost to even liking somebody’s post. If you liked the wrong girls posts all of a sudden all the other girls are at you because why did you like her post if you don’t like my post - that kind of behavior. That happens in a very deep way in high school. We all remember that kind of drama between cliques and between friends in high school. That generally doesn’t happen anymore in the adult world and also we have a real incentive to share our lives in the adult world – we get jobs that way, we make friends that way and on and on. We get on shows that way.

Denise: Right, I wonder if this is generational and that we may be more prone to doing it as adults than maybe our kids are.

Robert: Well the kids are doing it at a higher rate. You know it is fun showing people Google Glass. I’ve show probably – I don’t know 800 people Google Glass and when kids get the Glass they really talk about it differently than older people. 1 14 year old I met at a Met’s game said this is my future and no older person said that. There is a generational approach. The guy who makes my shirts, Scott Jordan makes a pocket that’s transmission proof – a pouch and I was talking about this at the New York maker fair and a kid in the front row said I already made my own. I haven’t seen any adult make their own transmission proof pouch. The kids are hacking this world and are trying to figure out how to control it and control the consequences of it. I find that to be very fascinating and very positive.

Denise: I think you’re right. Let’s go on and talk about some businesses that are ripe for disruption or are being disrupted in keeping with what Larry’s been paying attention to and writing about. Just about all of the ones that I’ve flagged for this week are in the entertainment arena. So we’ve seen now 7 years down the road from the filing of Viacom’s billion dollar lawsuit against Google for Youtube’s supposed violation of copyright laws and liability for the infringements of its users so Viacom asserted; has now been settled. It reminded me of the wasteland. Not with a bang but with a whimper the case goes out – millions of dollars down the road. Lots of legal resources expended on something that the parties have now resolved before it would have reached another conclusion in the 2nd circuit court of appeal. Larry did this come as a surprise to you at all?

Larry: No this case had kind of worn out its welcome a long time ago and it was clear just on the procedural level of things that Viacom was not getting what it wanted. It was always going to be a very difficult case to win because essentially Viacom could have always gone after the individual infringers who were putting up unlicensed content on Youtube. Of course that was a pointless effort they knew, we all know that, so they were going after Youtube itself and eventually Google after the acquisition to try and see if they could prove that the company had some liability for either knowing or at least not looking close enough at what people were doing that they could attach liability to them. So on the one hand you could say, well this was a complete failure on the part of Viacom, they didn’t get anything, at least, of course, the terms are not being made public, but there was at least one report that said that no money was changing hands in the settlement, it was just going to go away, but that’s only if you think about litigation as being about the litigation, and it’s not, in this case, certainly it was more about trying to use yet another lever to change the power dynamic between the content providers on the one hand and the internet service companies on the other hand, and in that sense you could say, Viacom won quite a bit. Both YouTube and other video sites have changed their practices dramatically even though no court of law said they had to or that they would be liable if they didn’t,  In fact, YouTube they’ve enhanced this content id software, these bots that go around looking for copyrighted material and automatically taking it down. So much so that there was a story last month, that somebody had put up a clip of gameplay from Grand Theft Auto V.  Had it taken down. When they sort of investigated it, it turned out the reason was there was a long period of time where there was a siren going and somehow the content ID bot misunderstood that siren to be a famous jazz quartet so the man had it taken it down as a copyright violation of the  jazz recording, that of course wasn’t there!

Denise: (laughter)

Larry: In some ways, you know, we’ve pushed incumbent way over, maybe too far over in that case over the line to protect them.

Denise: That would be just a case in point for your book, right? YouTube is out there disrupting Hollywood but now that it has made these accommodations, maybe it is right for disruption itself to a content ID system that works better, that is less friction filled?

Larry: Yeah, obviously great thing about the kind of disruption that we have been studying in our research and in our book is, you becoming incumbent really fast. One day you’re the underdog dog, startup that everybody loves, and your customers give you a lot of leeway if things break down, they support you if people are going to go after you legally, whether you are Uber or YouTube. The next day you are the incumbent yourself and you may be right to being YouTube by someone else, if you have gotten into too much accommodation for all those other people that were trying to slow you down or change the trajectory of what you were trying to do.

Denise: What do you think, Evan?  Are the legal waters just too fraught with danger for someone to come in and try to return YouTube a more wide open, wild Wild West sort of an arrangement, where you’re not going to have these false positives like the jazz tracks siren?

Evan: (Laughter) That’s an interesting story, Isn’t It? A positive for Grand Theft Auto. Well, first of all you are the TS Eliot scholar among us here. I think it was the Hollow men not the wasteland that talked about this.

Denise: Oh, that’s right, it’s been a while since I read my Elliott.

Evan: Right, we don’t have to trouble ourselves with that so. Well, let me start with this, the whole YouTube Viacom dispute was a dispute. I guess, the best metaphor was like a dispute trapped in amber. We can go back and see the dispute arising from facts frozen in time in 2005 to 2007 that era here So, with content ID and those mechanisms by which things can be more smoothly monetize, that seems to be the way things that have gone like in that direction. It’s away from opening it up to the wild wild West like  you were setting up with the your question there. It wouldn’t seem to make a whole lot of sense if there actually is some monetization to be done from the platform this way. Because how else would YouTube have enjoyed so much success, I’m not missing something, am I? But it has made a lot of money from those sorts of arrangement, much more I’m sure than just an advertising-based model where everything is open, in content is open, there is no real monitoring no real attention paid to the type of content that is there. So, it might satisfy our more libertarian sensibilities about wanting systems to be open and not having a bunch of regulation, whether it be the business regulating it, or the government regulating it or what have you but it just seems like from a real standpoint of looking to make these things profitable, monetize alone, extracting a value from them that we. There has to be some sort of collaboration between the industry and the platform to make it actually turn into something.  It is the same shift that we saw the world pre-iTunes music, the distribution system for music was wide open, peer-to-peer networks al. Napster, Kazaa and Grokster you know those early days. There was a big fundamental shift where there was an effective monetization, I know it’s a little bit different but it seems to me the same principle.

Larry: Evan hits on a very important point here. We don’t know what would YouTube look like and what would some of the other servers that didn’t make it largely because of litigation. What would they look like now if this lawsuit and similar lawsuits had been brought? , Of course this is a question we can never answer.  It seems to be the model when you have disruptive innovation.  obviously if YouTube in its very early days had gone to Viacom and said license your content to us or set up this type of advertising sharing formula where you would get benefits when people put your stuff up because we will show the ad. Even if they had done that in the very early days, we know the content industries fearful of anything new or anything they didn’t control would have said absolutely not. What do the innovators do, they put the stuff out there, and wait and see, they get critical mass, they get momentum, they get the litigation, and then the litigation in some ways is what brings as Evan says brings the parties together to the table. To figure out, all right, how is this really going to work. We know it can’t work with you not participating, we know we can’t work with you suing us for trying to block us altogether from existing. So now, let’s figure out what it is. We talked about that in the book, we said that one of the things incumbents can do when they are up against a disruptor that is coming up too fast that they can’t respond to, is to use the courts, to use litigation to use things like patent, copyright. In particular to create, what we call the bullet time. Which is from the movie The Matrix. You have the ability to just slow down time for a little while so you can get out of the way of the bullet.

Denise: Okay, that has to be our second MCLE passphrase for the show, since we did Blue Pill, our second one is now bullet time. Thank you for that Larry. So, how about or Michael Robertson? Seems like the timing on this is incredibly ironic given that YouTube and Google have finally gotten Viacom off their back and have seemingly come out on top in this dispute. Michael Robertson the founder of MP3 tunes for that, came out on the other side of the analysis. And the court they are determined in the trial against him that, there were red flags that he should have been aware of. And he was willfully blind, and he infringed of the users and there should be liability at least for him MP3 tunes. Who knows, I will not quite sure to what extent anybody’s pursuing him personally.

Larry: Well. that was the point, they were pursuing him personally. Because the company was out of assets.

Denise: The Company was bankrupt.

Larry: What’s interesting about this is. It was a jury trial. Its finding was by jury we often don’t get that far along in this kind of, where we actually have a jury making a determination. We now are getting to the damages stages of this thing. They are fighting about what sort of evidence can come in, in terms of mitigation. It’s almost like he is trying to re-litigate the case. It is always dangerous. Evan will tell you as well this it is dangerous, it’s always dangerous to put something before a jury they can do anything and you never predict.

Denise: Right, so he will have the appellate process to go through and hopefully some distancing himself personally from what his company may have been up to but that just came down this week. To the litigation that has been going on against him in New York has concluded. Not in his favor. Popcorn Time, we have been talking about it on the last couple of shows at least. It was shut down and put up a message as to how it had checked with its lawyers for times it put in bold, and it is convinced of its legalities (laughter)

Evan:  (laughter) Two of those were voicemails.

Denise: (laughter) I don’t know do you think that they spend any time bunking with the lawyers, Robert? Maybe not or they would have gotten right?

Robert: The fun story I told before the show started, back at Microsoft I did a lot of videos with this $200 camcorder. It turned out I disclosed some information that I had no idea was not protected by a patent and they said you need to be trained to identify legal issues that are going to get you into trouble since you are a highly visible person out on the Internet on behalf of Microsoft. And they made me bunk with a lawyer for weekend at a conference, and that was really interesting because we went through all of these areas where Corporation can get into trouble by not knowing along very well. Patent time schedules is one of those where in the United States the patent starts when you disclose in. Overseas that’s not how it works if you disclose it is actually screws up the time tables and can maybe even reduce your ability to patent an idea. So, they were not too happy with me at that day.

Denise: The take away from this Popcorn story is, we saw the Popcorn Time app, go off-line with the protestation that we still think it’s legal but that doesn’t mean that you can’t still do exactly what Popcorn Time does. There was a good piece in Tech Crunch that keyed it up nicely when we read you that text. Scrolling down, and app loading

Evan: Pretty much that Popcorn Time is awesome. Easy to use, slick, all that stuff, right?

Denise: Well, no but hard to stop, I think was the point. Imagine for a moment if Napster was cloned hundreds of times. If there were a Napster Stanford, Napster M I T,, a Napster for your high school completely independent from yet just as powerful as the original. Imagine what would happen if Sean Fanning and Sean Parker and release the source code allowing any developer to essentially copy and build on that software. Imagine if Napster were open source. The RIA would have fought a war on 1000 fronts and loss. So, even though this particular node has been shut down, I don’t think the Popcorn Time problem is going away. The problem of having a much more user-friendly way of viewing torrents. Do you Larry?

Larry: Right, that’s exactly right. This is an arms race as it was in music, as it was before that with text, newspaper and magazines and so on.   The technology is always going to find ways of breaking with what it sees as unduly close systems. I think the Techron story that you are referring to goes into some pretty good detail and explaining what the consumers.

 (Video: website of TC-Popcorn Time is Hollywood’s worst nightmare, and it can’t be stopped) Through these proxy technologies are really struggling with; is a pretty strong business model through the studios trying to control the timing of releases of the products after they have had their initial showing in the movie theaters, they are still, they limit for example, when it goes on Netflix, and what terms it goes on, and other kinds of streaming sites because they are still in that very traditional and Disney, of course, classically had this model of the vault. Where once the movie was shown you put it away for 10 years, and then try to re-releasing as if it was brand-new. That’s of course their prerogative, to say that the best way to maximize our revenue but consumers are rebelling against that and using technologies like this even when you shut one down another one pops up. The question really is how are we going to reach some accommodation between copyright holders, who have writes here and justifiably so, and consumers who are saying we want a different model, we don’t want to wait, we don’t believe in kind of artificial scarcity, we went to see stuff when we see it. We’ll work with you on a payment model but you need to work with us on a timing model. But so far, they have not all come to the table. Every time we get yet another of these technologies that is harder to stop legally, it pushes the content industry closer to saying, all right, we are going to have to accommodate this in some way, even if we could stop this.

Denise: All right, well let us end the show going back to some transportation related issues. These have a lot of policy gloss on them this week.

Video: Legislation & Policy

Evan: That’s the kind of music you’d hear in a taxi.

Denise: Or in a siren in Grand Theft Auto. So, ironically enough Seattle, the hub of things innovative and cool and technology oriented and disruptive has decided to crack down on services like Lift and Uber. Can you tell us about that Larry?

Larry: Sure, again I’m sure we have talked about it before but the idea in the have now industry that has been highly regulated for decades in different ways, in different cities, states. And some ways the industries have taken over the regulations, and turn regulations that started out to protect consumers from dangerous drivers or underinsured drivers or, too much traffic, or if we had to many taxis on the road. These kinds of consumer attention concerns have turned into barriers into entries that protect the existing license holders, the medallion holders to compete with the more of the same or even different kinds of services. The problem that happens is, when you get these barriers to entry you as the incumbent have no incentive to innovate. I literally, the last time I went to Las Angeles a few weeks ago, just to experiment. I took a licensed taxi on the way out of the airport to downtown, and Uber-x on the way back from downtown to the airport. The taxicab driver at the airport didn’t know where Figueroa Street was, the main street of downtown Los Angeles, he was a terrible driver, he was noisy, the         cab was dirty, it smelled bad, and it cost me fifty-some dollars. The Uber-x driver showed up within a minute of my using the smart phone app to get him, got me to the airport in record time, and it was about half the price and much more pleasant experience. And really see in this example how regulation can get in the way of having any incentive to innovate. So in the Seattle case, the city Council has said too many of these new drivers on the road. The city has apparently not issued any new medallions for many years. so the question becomes, why hasn’t the city issued any new medallions, because they, the city fathers in all their wisdom and with great study and care and lots of data analysis, have figured out the traffic patterns and decided that, in fact, there is precisely the right number of taxi cabs in Seattle now and anymore would leave too many of them running empty, and clogging up the roads or is it because they are beholden to the existing taxicab, and limousine and para-transit associations. The other trade groups saying we don’t want to compete with these people and we bought these medallions on the understanding that we would have to compete with each other, or any  new entrant. That’s the struggle, I think. And one of the reasons that consumers have become so active kind of becoming lobbyists for startups on their behalf, unpaid lobbyists is consumers are saying, we don’t think you are really looking out for our best interests anymore, we certainly don’t think you have analyzed the data in a way that says it’s a bad thing for traffic or wasting gas or pollution or any other good reason to keep these services limited.  You are doing it because you were asked to by existing incumbents.

Denise: So, do you want to try and gaze into your crystal ball and let us know do you think this is just an exception and that Lift and Uber and other similar services are going to have more free reign elsewhere or is Seattle a harbinger of things to come?

Larry: No, I think what we saw in our research was better and cheaper always beats worse and more expensive. It may take time, it may take more lobbying, more consumer activism, it may take a lot of odd things but the fact of the matter is, and if you have the better innovation and it’s cheaper then what the incumbents are doing and they refused to respond competitively and they only respond legally that is not a strategy that works for very long, if it works at all.

Denise: All right, well maybe the same principle applies to this next story. About the Washington Nationals who used a small drone to capture publicity photos during their spring training. They did not have federal approval for that and as of right now commercial use of drones in the United States is against FAA laws. It seems like we are going to see a lot of people tripping up on that as drones become more and more popular. Of course, we have had the funny stories on this show before about delivering beer to ice fishermen and delivering tacos and you know there is clearly a desire to be using these things in a more widespread way. Here all the Nationals wanted to do was take pictures, I don’t think anybody would argue with the fact that this is a commercial use, it’s just you might have trouble getting your head around the fact this should be a prohibited use. What do you think Larry?

Larry: So, this has been a problem. There was another decision last week as well,  where the FAA at least an administrative law judge said, the FAA didn’t have any authority whatsoever over a different kind of drone being used for noncommercial purpose. Again, this is a problem we started talking about which was  that technology gets ahead of law, and as we get sort of faster, more cheaper, more powerful processors and all that other stuff; and we can start shoving sensors in to everything basically for free and figuring out what to do with it later .  this sort of accelerated pace of innovation compared to the same pace, we’ll be generous here, of the legal change is just going to lead to more and more of these what I referred to as a collision of the intersection of innovation and law. The FAA is supposed to in fact was ordered by Congress to come up with rules for how drones private, personal uses of drones, nonmilitary drones whether commercial or otherwise could operate whatever at low altitudes that they were going to do. The FAA has been in this process now for over a year, it’s probably a few more years away, before they actually get final rules, and then those rules have to be enrolled, they have to be challenged legally and all that other stuff. The world of technology is not going to wait for that, this is going to break through, it may be that this one case may be the beginning of legal argument that says. The FAA has no authority anyway and we can do whatever the hell we want without waiting for these rules.  It just may be the reality is going to overcome the law as we have seen in so many other places.  It is like if you put a speed limit of 10 miles an hour on the freeway, you can pull anyone over you want and give them a ticket but everyone is going to do it, to go to the correct speed, the appropriate speed. The law against them because it is so difficult to enforce or at least enforcing in a big way, isn’t really going to provide much of the disincentive.

Video :( REGWATCH: Nats violated at AA regulations with drone use)

Denise: So, Robert, in addition to taking pills to make us smarter, do you see a lot of businesses out there who want to leverage drones in some way?

Robert: Absolutely, there is a whole communities here in Silicon Valley that meets every weekend and test out new drones and flies new drones. And then there are new drone companies popping up that is doing various things. I think one of my friends is actually going to bring his drone to Sun Valley, and we are going to play around with flying it over us as we are skiing around. I feel a real problem, if these things, if they are flown improperly they can fly into flight paths of airlines, and a little drone could really, do damage to our airlines. You saw the guy that landed in the Hudson, he had two engines taken out by flying birds, and so the FAA has a legitimate claim. We need to control what goes up into the air space because there are deep consequences in letting people do whatever they want in the air and space, right? People are going to do it anyway because these things are so cheap. I have a drone that cost $200-$300.

Denise: Right, Evan any final droney thoughts?

Evan: No, this is, I just see a comparison between what we were talking about with self-driving cars taking so long how we were going to regulate this, which is frustrating but at the same time there are real interests, human, public safety interests at stake in all of this. Although it is frustrating, it takes a long time to regulate this, the stakes are pretty high.

Denise: Yeah, good point.

Larry: And also just bring it back to where we all started, of course. One of the things that drone technology raises that other disruptors don’t is a lot of privacy craziness that goes with it, as well.  So that goes into the mix and changes the way in which it’s going to roll out and maybe the speed or trajectory as well.

Robert: Yeah, and that brings up, and in journals in school we really studied journalism law a lot. And knowing the rules in the street are very clear, you can shoot anything pretty much and that. But if you have to take steps to get off the ,to get a better view over someone’s fence, then it starts getting really grey and in fact I believe that that really does violate somebody’s expectation of privacy, if you have to use a ladder to get a better view of somebody’s backyard or something like that. And using a drone, I’m sorry I live in a place where I have an expectation of privacy that doesn’t include you flying something up to my window. (Laughter) And so we are going to see this new kind of friction where people really don’t understand the law and have these $200 drones. In fact, I saw some at CES that are less than $100, and you can put a little Go-Pro camera on it, and you are streaming live, high def., HD video and infringing on people’s rights. That’s going to be an interesting problem for the law to figure out and to communicate to people that it is not appropriate.

Denise: Yeah, it’s interesting that you mention the Go-Pro marriage with the drone. Certainly as someone, sounds like you’re going to go skiing when you’re in Idaho, Robert. Certainly nicer to have that thing hovering next to you rather then plopped to your chest or helmet, so I could see why people wouldn’t want to go that direction I also wouldn’t want to smack into while I was skiing.

Evan: A drone that follows you down the run, that would be neat, a company that would do that. That would be pretty awesome.

Denise: It would be, but then you know how do you ski all the drones? Now you have to watch out for snowboarders and drones.

Evan: Well, of course with the sensors and guidance technology it would suggest a route.  If you were wearing Glass it would show you a dotted line where you would go down the run.

Denise: What was it Trapster, that will show you whether you made a turn at the bottom. All right, let us get on to our tips and resources of the week. Our tips are little nuggets that I discovered online from Robert. One was an interview that you gave Robert with, let me find it, I already pulled it up.

Robert: IT business?

Denise: Yeah that’s it, IT business. Social media tips. The one that I, obviously Robert is the King, the Uber of social media and so when he is giving social media tips, you want to listen. This interview was with Brian Jackson in February not too long ago. The tip that I thought was most compelling here Robert, that you gave talking about companies and how Brian asked you about, it’s so hard for some companies, someone like Verizon, , would come to mind or AT&T. When they try and have social media presence all they get is negative vitriol from their customers and your point was you have to deal with it head on, you have to figure out why you’re getting that kind of guff  and if you don’t care then why are you doing social media in the first place? I thought that was really good advice, do you want to expound on that at all for us?

Robert: No, people just react to when you’re passionate about something, so be careful about what you get passionate about, I guess. For me, the tip is, be careful of who you add as a friend and what inbound what you put on your screen. I have a bunch of people on Twitter that are streaming to me now, they are all hand-picked, and they are all people who are in the tech industry who are teaching me something interesting. And, if all they do is start posting cat photos, I unfollow them because that’s not what I’m not about, I’m passionate about seeing the future. So, if you’re running a social media team, you really need to think about your inbound, who you listen to and what you put as your outbound, what kind of content your put out there.

Denise: Right, and then the other tips from the Trapster’s posts that we had alluded to in a number of times on this show, that Robert wrote back in January. You gave three recommendations, Robert, of how to gain trust when you’re going to go over the freaky line that I think are very appropriate for us to highlight given our conversations here today. Your first is to disclose everything that you are doing to gather data. Your second tip is to make the data correctable if there’s a way to fix something that’s wrong, that’s going to go a long way to establish trust.

Video :( Scobleizer: Nokia’s Trapster is too far over the freaky line.)

Robert: What I meant by that I live a golf course, or a golf course goes around me, I don’t quite live on a golf course, but there’s a course, because of that some of these Apps not Googlenow but competitors to Googlenow keep telling me about golf stuff;, golf lesson, golf deals on golf clubs, golf balls, and golf clothes. I hate golf, I don’t like golf, and I don’t ever want to learn about golf, I don’t want anything to do with golf other than I live on a golf course. And I can’t correct some of these systems so they make me trust them less. They don’t behave how I would expect them to and I can’t tell it that you’re not behaving right, that bug me. Google asks you on the first one, if you go to you can see almost everything that they collect on you and that’s, that makes me trust Google, at least they are being honest. Hey, we are collecting data on you on searches, and on emails and on calendars. They show you how to do it but they don’t do the other two which is turn it off, which is the third one, and let me correct data is incorrect or let me augment the data you are collecting on me.

Denise: Right, that’s really a big point, if you are asking people to give you their private data in exchange for the  convenience you’re giving offer them, you better not being annoying them all the time instead of making things more convenient, that could definitely undermine trust. And the turning it off is key.  That one I think is hard for companies to do because if too many people turn it off companies don’t get valuable data. Alright, and our resources of the week. We have a couple of them. Evan you will like this one. I called it “Alexon for Disruptors”, this something I think that Fred Vonlomnen pointed me towards it’s at “20 Crucial Terms Every 21st Century Futurist Should Know”, it includes things like co-veillance, multiplexed parenting, which that has to do with three genetic parent and one commenter on the site said, “wait multiplexing parenting is that when I drop the kids off at three and go see the Lego movie?” There’s longevity dividend, effective altruism. Some really neat concepts, do you have any favorites Evan?

Evan: Well, I liked number four. Substrate-autonomous person, because this reminds me, well. I mean I think of Sorrel, I guess was the philosopher, the thinker, futurist that talked about different computing substrates supporting consciousness.  So that really resonated with me because that is the whole notion, the crazy idea probably not tenable in our current understanding of neuroscience, so I want to be not wanting to be too starry eyed about it but being able to download your consciousness and your memory onto a machine and then all the crazy questions that come from that. Not being confined to a biological substrate but to something else some other computing substrate to support your intelligence and your consciousness, is just one of the most mystifying and baffling concept that I can conceive of in my consciousness.

Denise: right, then one final resource is on February 28 or on or around, I think it was  February 28th , the White House has student film festival, and there’s a post up at The Fix at the Washington Post blogs that has some highlights from the students film festival I threw it in here because these are the people that in addition to the technologists who will be disrupting the film industries, and  there are some fun films from fifth graders, for example that you can check out and enjoy as the author of the post says “stop motion Transformers answering questions about the meaning of life. What’s not to like.” So, you can go and check out the student films and all of the rest of our resources and all the stories we’ve discussed today at, where we got all of those aggregated for you. And with that I am going to go ahead and let our illustrious and wonderful panel go on their way and enjoy the rest of their Friday and their weekend. Robert, so great to chat with you today,  Evan reminded me that you were on my old show IT Conversations, and I looked it up during the show and you were actually on the inaugural episode of that show way back in March on 2005, so I’m glad that you’re back in March of 2014, we’re still chatting away.

Robert: Thank you, it’s been a pleasure watching your career over the years.

Denise: And yours too. Anything you want a final note or plug before we go ahead and let you go?

Robert: No, Rack Space pays me to study the world of the future and it’s a lot of fun.

Denise: We can tell because you are very transparent about it and that makes a lot of difference when you’re having fun. So, we were really thrilled that you could join us today and we hope you can do so again sometime.

Robert: Thanks.

Denise: And Larry Downes as you said on Triangulation recently, when you were on the TWiT network, a semi regular on the show. We hope you’ll continue being a semi regular, because it’s always wonderful to chat with you. Your analyses and your writings and your abilities to put them into such understandable format for us all is greatly appreciated. We love it when you come on.

Larry: Well, thank you very much, Denise. As it turns out, now I know that really it basically takes me 40 minutes to get to the studio from my house and it almost takes me that long to get down the stairs to my home office so this is definitely the better way to do it.

Denise: Oh, good then we will have you come back to the studio, it’s always fun. Evan, great to see you.

Evan: Yes, the same. Wow, this has been a really fun conversation, looking forward to it all week. Robert, great to talk with you and Larry great to talk with you again, it’s been so much fun. And Denise looking forward to see you again next week for all the fun stuff we unpack. Friday to Friday.

Denise: Yes, and my dad’s birthday is coming up next month and I’m giving him copies of both Robert’s and Larry’s books. He is going to enjoy them thoroughly as I have. You should get out and enjoy them as well, if you haven’t done so already. And if you would like to enjoy more episodes of This Week in Law, or you are unable to join us live when we record live at 11:00 Pacific Time, 1800 UTC then you should head on over to our show page at and you will find our whole archive of shows there. We get great people to come on this show, I can’t figure it out but they do and we hope that you enjoy that as much as we do. We’d love to hear about more people that you think we should have on the show, or more topics you think we should cover. Email us Evan is, I’m, or find us on Twitter, I’m dhowell there, Evan is internetcases there or head on over to our Facebook of Googleplus pages. And we’d love to chat with you in any of those formats. Thanks so much for joining us on This Week in Law. See you soon!

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