Ignorance of the law is no defence.
If the code of cyberspace is law, as Harvard Professor Lawrence Lessig suggested in 2000[1], then what excuse do legislators, judges and legal practitioners have to be ignorant of it? Because this seems to be the case – including myself. Despite having been a lawyer for over 25 years, I have not studied computer programming since 1984!
However, I recognise that cyberspace is part of our world. The rule of law should extend to it, but it does seem to do so sufficiently, threatening the Rule of Law.
To rectify this, the use of technology needs to be studied and understood. Not just by a handful of I.T. specialists and academics – but by enough legislators, judges and legal practitioners to make a practical difference to its governance.
And understanding does not mean buying mobile telephones, having a website and buying items online. Nor knowing how to use Twitter or Facebook. Asking questions by tweets to encourage the participation of timid students in large classrooms would be good in an ideal world. But all types of use need to be considered. A teacher wanting to hide their lack of knowledge can ignore tweets or read them out incorrectly.
Maybe the start of learning should be understanding that a little can be much. And that this is exploited in cyberspace. Sometimes, to good use – like the crowd funding that enabled President Obama to campaign. Sometimes, however, it is leaves society feeling abused, without adequate legal protection.
Take the case of Rojas-Lozano v. Google[2] as an example. It involved the completion online of a reCAPTCHA, such as the one referred to in the judgment :
The first word identifies that the Web user is not a robot. The answer to the second is used by Google to improve Google Books and Google Maps. If the reply is spoken, then it may help improve Google’s speech recognition system.
Google has not hidden its use of reCAPTCHA technology from the public, writing an article on the subject in 2013[1].
On 3 February 2016, the judge dismissed the claim of Mrs Rojas- Lozano. She had alleged that it was unjust for Google to enrich itself by using people’s time without telling them. The judge disagreed, saying that a “brief” amount of time did not require remuneration in addition to “a free Gmail account and higher quality Google Books or Google Maps”. The judge found that no law exists in California entitling a person to compensation for typing “a single word as a condition for receiving a free service”.
I have underlined the judge’s use of the word ‘free’, because I cannot see how something can be free if you have paid for it with your time. I have always agreed that time is money, because every second is irreplaceable. It is a human being’s most valuable asset. Computer literate folk agree.
A New York Times article explained in 2011[2] that Google makes use of the fact that a human being spends 10 seconds on a CAPTCHA. With an estimated 200 million CAPTCHAs being filled in every day, some 500,000 hours are spent in total every day. 5 years later, the figures may well be higher now. Highly effective crowd sourcing – of people’s time.
The judge recognised that “instead of employing people”, Google uses its reCAPTCHA programme to get Web users to transcribe images that help improve Google Maps and Google Books. But to a company that is not in cyberspace, 500,000 hours a day would involve employing and paying many people, and paying much tax!
Map and speech recognition systems are offered by competitors of Google. Does the current law give Google an unfair advantage? It would be difficult to see how a competitor could develop a service similar to Google Books, if it had to pay tax on 500,000 working hours a day, not having the benefit of reCAPTCHA users.
The judge ends her judgment by saying that the claimant would have filled in the second reCAPTCHA had she known that it was used to assist Google with its other services. Because, the judge says, to not do so “defies common sense”. The judge made this presumption because the claimant’s lawyer did not know the answer(!). But is that statement correct? Could it not be common sense? Personally, I would not have filled it in, if I had another choice. I do not like feeling either tricked or forced into doing something that I do not want to, just to receive an unrelated service. And there are alternatives to Gmail (Mrs Rojas-Lozano came across reCAPTCHA when trying to open a Gmail account). However, according to the judge, it seems that I do not have common sense.
The case demonstrates that the law lies in the hands of those who control cyberspace, not with democratically elected legislators or the courts. Google is not in the wrong given the law as it stands. It is simply relying on the law neither classifying online software as goods or services nor recognising that every second of a human being’s time is valuable.
Can the Rule of Law not do more to ensure fairer treatment in cyberspace? I suggest that it can and should. The crowds involved in crowd sourcing, whether sourcing their money or time, need better protection.
I suggest that the time has come for legislators, judges and legal practitioners to help the Rule of Law catch up with technology. When does training start?
Author : Jenny Gracie
Jenny Gracie is an Associate Fellow of the IHEJ, Solicitor (non-practising) and former member of the Council of the Law Society of England and Wales and a French court-approved translator and interpreter [‘Expert de justice près la Cour d’appel d’Amiens’].
[1] Lawrence Lessig, Code is law, On Liberty in Cyberspace , Harvard magazine 01.01.2000
[2] Rojas-Lozano v. Google, Inc., 15-cv-03751 (N.D. Cal. Feb. 3, 3016); the judgment can be found at : https://docs.justia.com/cases/federal/district-courts/california/candce/3:2015cv03751/290472/62
[3] Article by Google in 2013 about the technology : http://www.nytimes.com/2011/03/29/science/29recaptcha.html?_r=1
[4] http://www.nytimes.com/2011/03/29/science/29recaptcha.html?_r=0
