Re: [projectvrm] Beefy VRM Case Study?

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On Feb 10, 2018, at 10:59 AM, Guy Jarvis < " class=""> > wrote:

Whilst idly wikisurfing, I came across this interesting and perhaps VRM-relevant entry https://en.wikipedia.org/wiki/RanchersCattlemen_Action_Legal_Fund_v._Sonny_Perdue

That link is missing a hyphen. This one should work:

https://en.wikipedia.org/wiki/Ranchers-Cattlemen_Action_Legal_Fund_v._Sonny_Perdue

The case is ongoing and appears to (IANAL!) rest on American ranchers refusing to be commercially compelled to pay for speech they oppose, namely advertising that fails to differentiate the American sourced product from that of Canadian and Mexican competitors. 

Here’s the other pertinent case: https://www.r-calfusa.com/wp-content/uploads/2017/06/170619-COOL-Complaint.pdf

So a First Amendent assertion set against an Eighth Amendment reposte, namely that as Congress has enacted specific check off advertising legislation then the advertising concerned is Government Speech that trumps commercial rights.

There is clearly a live VRM conflict occurring, resulting in the above case, so I'm wondering how what is happening might help to develop effective VRM.

Not sure about that. VRM is a C2B thing, and both these cases (at least as I understand them) involve B2B complaints. Still, we would like as Customers to be able to operate with the same level of agency enjoyed by Businesses. Iain Henderson observed early on in our work that B2B agreements involved a great many variables (with potentially vast ontologies or lexicons), while B2C ones tended to involve very few.

Typical of the latter are take-it-or-leave-it “contracts of adhesion” proffered by companies to thousands or millions of customers (who pay) or consumers (who may or may not pay, and are called users in the tech and illegal drug businesses). Contracts of adhesion give companies limitless scale, and give those consenting to them the opposite: a need to click “agree" afresh every time it’s required, which might be multiple times per day. Contracts of adhesion include “clickwrap” and “browsewrap” agreements. Sorry to digress, but I want to serve up some background for other comments below.

The compelled speech centrality here (you will pay us to fund adverts that promote your competitors products) seems highly relevant to what is happening online with tracking and cookies (you will give us for free your personal data so that you will be targeted in ways you do not consent to).

That is interesting. As for relevant to our current work, not sure. But I’m glad you bring it up, Guy, and I hope you don’t mind me leveraging it toward work we’re already doing.

The commonality here being that the giving party's consent is rendered irrelevant by the taking party.

Perhaps for example if the outcome of this case is that First Amendment rights prevail then does that create a useful legal backstop (in USA at least) for individuals to repudiate and seek damages against those vendors who have effectively indulged in compelling speech in the form of non-consensual tracking?

That’s a good question—which is what people say when they don’t have an answer. Or at least not yet.

Perhaps leading in the direction of an answer, some of us spent time yesterday talking about future dialogs between a browser and a site in which the side proffering terms is the browser.

In fact we plan to have the first example of that in the form of a one term a site can agree to, and to have it up and working by the time the GDPR arrives in full force: 25 May of this year.

To unpack this a bit, the second party (site) might either immediately consent to the first party’s (individual’s/browser's) proffered term(s) immediately; or a back-and-forth might ensue, at the end of which there would be a mutual and recorded agreement (or set of them) reached—which might also be open to amendments and changes as the relationship, or just the task at hand (for example, moving from shopping to buying) goes forward.

Again, the first iteration is just the proffering, acceptance and recording of one term: #NoStalking.* But we need to be careful, in fleshing out what happens in this one Proof of Concept, that we not preclude more complex ones, downstream.

At this stage both the protocol and the means for recording provenance are provided by JLINC. (Code: https://github.com/jlinclabs.) We are also working with the IEEE toward a standard for machine readability of terms on the server side. (Description: http://standards.ieee.org/develop/project/7012.html.) Hats off to Iain Henderson and the JLINC crew for moving the former forward, and to John Havens and many others for doing the same with the latter. Also thanks to Harvard Law School’s Cyberlaw Clinic, Customer Commons’ counsel in developing this first of many terms to come. Also to the Berkman Klein Center for its patience in hosting ProjectVRM long enough for the start to start aligning, so we can get something with enormous potential launched into the world.

So back to Guy’s case here…

Seems to me the potentially relevant part of the First Amendment here would be "Congress shall make no law … abridging the freedom of speech.” Is a VRM utterance by an individual an example of free speech? Well, we should be able to say “Anybody have ripe avacados?” without getting slapped down. In fact, the ability to do that is one reason we have dozens of intentcasting startups.

Yet we're not talking about speech here—at least not in particular. We’re talking about contract. 

FWIW, the legality of “browsewrap” (where simply accessing a site means you’ve agreed to its terms of use) has been upheld in case law: <https://en.wikipedia.org/wiki/Browse_wrap#Case_law>.

But browsewrap only applies where sites have terms that say what that case law covers, and not all sites have those terms. What we’re talking about here is also a different form of interaction between browser and site, in which the browser proffers terms as the first party and the site agrees to those terms (and browsewrap terms on the site’s side either aren’t there or might be superseded). In other words, when consent goes the other way. This is new, and has potentially far-reaching implications if we can normalize it.

And this is exactly what we plan to do, starting with publishing as our target vertical, and with one publication inside that vertical: Linux Journal. I invite help with coding this on both the browser side and the site side. By May we hope to have Linux Journal running on Drupal 8. Right now it’s migrating from Drupal 6.

Guy  

* This is a name that was coined at a time when stalking had a broad meaning, and not just the specific one of a creepy guy stalking a woman. So we do need a new label for that term. Within Customer Commons we have been using as a placeholder “PrivacyPlease.” 

There are two problems with both #NoStalking and #PrivacyPlease, however, and we can use some help solving both at once. 

First is that we need the equivalent of Creative Commons' symbols and abbreviations, which look like this: 

Alas, there will be many more terms and use cases for Customer Commons’ purposes than there are for Creative Commons’ ones. (A huge difference being the one between contract and licensing.) Still, we think this is do-able, and we’d like to do it. (Perhaps those working on ontologies for intentcasting and/or IoT can weigh in.)

Second, #NoStalking has been out there on the Web for years and makes searching for what has been published already about this work easy to do. So perhaps we can come up with a placeholder for now: one that we can publicize. Once we have that, we also go back and change at least some of what has already been published. 

Doc