Ubiquitous Human Computing

From Cyberlaw: Difficult Issues Winter 2010
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What is Ubiquitous Human Computing?

Professor Zittrain provides an excellent overview of the emerging field of "Ubiquitous Human Computing" in a recent paper. For the purposes of this course, focus on the paper's discussion of "fungible networked brainpower" as exemplified by Amazon Mechanical Turk, LiveOps and InnoCentive. Alternatively, these core ideas are expressed in video form here.

The Current Services

Amazon Mechanical Turk

Amazon's Mechanical Turk (AMT) product is the simplest ubiquitous human computing model currently available. It provides a marketplace for "Human Intelligence Tasks" (HITs), which are typically large collections of simple and repetitive tasks that nonetheless require a human mind to complete. The HITs are necessarily limited in scope because their maximum price is $10.


LiveOps's marketplace is a step up from AMT because it carefully selects those that can perform tasks. Out of 3500 candidates to become a LiveOps worker each week, LiveOps only selects 50-75 after a test and an interview.

Patrick McKenna, founder of LiveOps but no longer with the company, has outlined what he believes draws each party to LiveOps. Workers desire (1) access to work, (2) control over their own work schedules, and (3) independence. McKenna believes that the most important factor to workers in their schedule flexibility. Also very important to the worker is the lack of setup and takedown time - there is no LiveOps equivalent to the unpaid commute to and from work. There is also no LiveOps equivalent to the real-world workplace expenses of gas, work clothes and workplace eating. McKenna believes that the average LiveOps worker make $9 an hour, but that this amount is equivalent to earning $16/hour in a job involving the aforementioned expenses.

McKenna believes that work providers are drawn to LiveOps primarily because of its flexibility and capacity to maximize productivity from their workers. Work providers are also able to avoid costs associated with the real-world workplace - office space, setup and takedown time, etc. - LiveOps employers only pay for work when it is actually being done. The flexibility offered by LiveOps allows for work providers to quickly vary the size of their workforce - they do not need to keep a "reserve" of employees that are paid with no work to do in order to handle spikes in workforce needs.


InnoCentive's marketplace is again a step up from LiveOps in terms of complexity of its tasks and skills needed to complete them. InnoCentive's asks its workers to solve minor scientific problems posed by its work suppliers. InnoCentive offers its workers large awards, including awards of $1,000,000 for some solutions. InnoCentive refers to its work providers and workers as "seekers" and "solvers", respectively.



The Difficult Issues

Present Day Doctrinal Problem Areas

  • American Business Law Journal: The Information Revolution and its Impact on the Employment Relationship: An Analysis of the Cyberspace Workplace
    • This is a fantastic survey paper on the many issues raised with employment law in combination with cyber-workers.
    • This article seems to assume that cyberworkers will still be working in the United States, but this seems like an unrealistic assumption
    • Written in 2003, around the time LiveOps launched (2000)
    • Citation: 40 AMBLJ 301
    • Section II of this article examines how working over the internet blurs/challenges current law about the employee/contractor distinction.
      • "Under the right-of-control test, an employee is not an independent contractor if the employer has the ability to control the time, method, and manner of employment"
    • Section IV of this article examines how cyber-working affects non-compete agreements and copyright considerations (such as works-for-hire)
      • "The Internet exacerbates this tension by raising previously unheard of issues in drafting and enforcing non-compete agreements."
      • Work-for-hire: How does UbiComp affect the work-for-hire test established by Creative Non-Violence v. Reid? ( 490 U.S. 730 (1989) )
    • Section V - Employment Regulation
      • A: The Burlington/Faragher sexual harassment standard is not clear when applied to cyber-workers
        • "The Ninth Circuit held that remoteness will not dilute an employee's obligation to report sexual harassment."
      • C: Family Medical Leave Act - depends on employee/independent contractor distinction
      • D: Workers Compensation
      • E: Fair Labor Standards Act
      • F: The National Labor Relations Act
      • G: The Occupational Safety & Health Act
    • Conclusions
      • For employee/contractor distinction, "courts must use the existing and long-standing right-of-control test, but apply it with sensitivity to the unique characteristics of Internet-enabled workplaces."
      • As courts evolve toward the Zippo sliding scale, they must set some standard of how much contact remote employment creates between the employee's forum state and the employer.
      • Agencies need to adopt specific regulation to deal with cyberworkers
      • "When regulatory guidance is insufficient, the legislature must act"
        • Congress must clarify how unions can organize and communicate in cyberspace in order to protect labor and management rights.
  • Case study: Amazon's Mechanical Turk may violate employment/tax laws because the employee-employer relationship is between the requester and the worker [1]

Potential Difficult Problems in the Future

  • What if UbiComp is used for political lobbying?
    • In general, any mass movement could be created using UbiComp
  • Could employees "outsource" their own work using UbiComp? [2]
    • How can child labor be prevented?