Sensors and Journalism

The Traps of Open Source for Sensor Journalism

By Diana Marina Cooper As drones and similar technologies equipped with sensors become more available, journalists and media companies will have many legal and ethical issues to consider—including deciding whether the technologies they procure, develop, and use ought to be open or closed. At first glance, the journalism industry’s commitment to transparency and dissemination of knowledge suggests a natural allegiance with the open movement. However, the increased liability risks associated with open technologies could certainly sway the industry toward closed assets.1issues associated with open sensor technologies, and proposes industry-driven solutions aimed at mitigating liability risks and promoting ethical use. It proposes the development of an ethical licensing model to allocate liability and reduce the risk of harmful and unethical applications.2measure, this section suggests the adoption of an ethical code of conduct to govern the procurement, development, and use of open-sensor technologies by members of the media industry.

Links Between Journalism and the Open Movement Historically, the media industry and the open movement have exhibited a shared commitment to the dissemination of knowledge; both subscribe to the ethical ideal that information should be freely shared. Emerging trends within media, including the rise of participatory journalism, have nudged the industry even further along the ideological spectrum toward openness. Traditionally journalistic work was polished and “presented to the reader in its complete, hopefully perfect form.”3In contrast, the current shift toward open journalism reflects the notion that a journalistic work is a continuing process that “encourages reader participation from the start, and even after the story is ’finished.”’4and open journalism parallels the distinction between closed and open designs. While proprietary developers distribute closed designs in final form to end users, open technologies are developed through a collaborative and continuing process that blurs the distinction between developer and end user. The increasing convergence of ethical values between the media industry and the open movement suggests that as journalists incorporate sensor technologies into their work, they may be inclined to develop and use open designs. Legal and Ethical Concerns Associated with Open Designs While journalists may be drawn to open technologies, it is important to keep in mind that these designs may create more pronounced legal and ethical concerns than their closed counterparts. Before exploring the ways in which open technologies may be more problematic for developers and users, let’s outline the basic differences between the two.

Closed technologies are constrained by the applications and operating environments that are predetermined by their developers.5intended for modification and are not limited by the applications or environments in which they are originally deployed.6and open designs promote different liability outcomes and ethical considerations. Since developers of closed designs prescribe the applications and operating environments of their technologies, they are able to anticipate potential harms that may occur through the use of their products.7developers to incorporate safety features into their designs and to provide product warnings to end users. In contrast, since open designs are subject to modification and use in a variety of applications and environments, their developers are unable to anticipate potential harms that may occur downstream or to convey product warnings to users.8technologies prescribe permissible product applications and operating environments, they are able to rely on the defense of product misuse to shelter themselves from liability when their technologies are employed beyond the prescribed applications or environments. Conversely, since open technologies are intended to support an endless variety of applications and environments, it is unlikely that their developers could rely on this defense.10media company interested in using drones to capture the news. For the purposes of this example, assume the company has only two concerns: 1) legal liability associated with bodily harm or property damage caused by the drones; and 2) an ethical concern regarding the use of the drones to violate privacy. If the company opts to procure closed drones, the liability issues are fairly predictable. The drones may be built with safety features, such as “sense and avoid” technology that reduces the risk that the drones will collide with people or property. If the safety features do not function according to their specifications, then the developer or manufacturer—not the media company— may be held liable for any personal injury or property damage that occurs. However, if the journalist operator modifies the drone or tampers with the “sense and avoid” system, then that operator—not the developer— will likely be found liable. If, on the other hand, the hypothetical media company decides to use open drones, liability becomes more problematic. Assume the journalist operator makes various modifications to the “sense and avoid” radar, turning it into a multifunctional system that also features communication and weather modes. If the revamped drone crashes into a person, causing bodily injury, who will be liable? A court would have to engage in a complicated and technical analysis to determine whether the underlying technology or the modified upgrade is to blame. Moreover, the initial developer of the open “sense and avoid” radar will not be able to avoid legal liability by claiming alteration as a defense. Should the hypothetical media company be concerned that its drones may be used to violate privacy, it may be inclined toward adopting closed designs that incorporate privacy-by-design features. Since closed technologies are not subject to end-user alteration, individual operators are not permitted to adapt the underlying technology, the result being that any privacy protections would remain intact. If a journalist tampers with a privacy feature, then the journalist would be in violation of the end-user license. In the

case of open technologies, modification is permissible; there is no mechanism that requires downstream users to maintain features incorporated by upstream developers. Possible Industry Measures Although from a liability perspective open technologies may be more problematic than closed designs, the good news is that a variety of industry measures may be adopted to mitigate liability risks and address ethical concerns. 1) Ethical Open License Developers of open technologies can look to licensing as a mechanism for allocating liability and promoting non-harmful and ethical use of their technologies. An ethical open license model is one way to prescribe tailored obligations and restrictions on downstream design and use. For example, an ethical license might prohibit end users from removing safety or privacy features incorporated by upstream developers. It may also prohibit the incorporation of technologies used to circumvent drone-defense systems12protect their privacy from drones. By placing specific prohibitions on certain modifications or applications, upstream developers would have a means to shelter themselves from liability and to rely on the defense of product misuse. What distinguishes the ethical open license proposed here from typical open licenses is that it seeks to balance the goal of openness with other goals, namely the promotion of safety and privacy. Typical open licenses do not restrict downstream parties from making particular modifications or from using the underlying components in certain applications. The reason for this is that such licenses are preoccupied with protecting the ability of downstream developers to understand and modify the underlying technology. While this singular preoccupation is perfectly acceptable when software remains embedded in devices like personal computers, it must be tempered with the goals of achieving non-harmful and ethical use in the context of technologies like drones that have the ability to cause bodily injury and significant property damage.13typically emerged within three unique environments: academic (think the Berkeley Software Distribution [BSD] License and the MIT License), corporate (the Mozilla Public License and the Common Public License), and ideological (the General Public License [GPL] family). The style and substance of licenses generally reflect the environments in which the licenses have been developed. For instance, the GPL is presented in the style of a manifesto, and it is a restrictive copyleft license that is generally not compatible with closed proprietary offerings.14License (MPL) is drafted in a formal legalistic style, and is more permissive and suitable for use in proprietary offerings. Open licenses are generally managed and updated by the institutions with which they are associated, in conjunction with the broader open community. Take, for example, the revision process implemented by the Mozilla Foundation when it was preparing the second version of its MPL. As the custodian of the MPL, the Mozilla Foundation initiated a public process to engage users, lawyers, and the broader open source community to provide feedback on the MPL and offer suggestions for modification.15revisionary process that lasted almost two years, during which several alpha and beta drafts were released for further comment.

Media companies thinking about developing drones and other sensor technologies in-house ought to consider creating their own open licenses that address liability risks and ethical concerns associated with these technologies. From time to time, such companies may employ a consultative model to update their licenses by soliciting engagement from the broader journalism community. 2) Media Industry Code of Conduct A complementary solution to the ethical open license is the development of an industry code of conduct to govern journalists’ use of sensor technologies. Similar codes have already emerged in other industries; for instance, The American Society for Photogrammetry and Remote Sensing (ASPRS) has developed an ethical code to govern the use of sensor technologies by professionals in the mapping sciences industry. The ASPRS’s code promotes the recognition of the “proprietary, privacy, legal, and ethical interests and rights of others.”16condone, promote, advocate, or tolerate” the use of sensor technologies “in a manner that knowingly contributes to… [the] transgression of reasonable and legitimate expectation of privacy.”17drones and other technologies equipped with sensors will become more prevalent in the national airspace and it is likely that journalists and media companies will be among the early adopters. The ways in which the media industry develops and uses these technologies will doubtlessly impact public acceptance. Although open sensor technologies may be more problematic from a liability and ethics perspective, measures including ethical licensing and a code of conduct may be taken to mitigate liability risks and address ethical concerns.