January 27, 2001, 3:40 PM — In keeping with the subject matter of this week's stories, I wanted to write a column about the best and worst in IT ethics for the past year. Unfortunately, there weren't a lot of candidates for "best," but a wheelbarrow full of "worst" nominees.
I'd like to think the Toysmart fiasco would qualify as worst, but that was so predictable it would have been like shooting fish in a barrel. Corporation has valuable asset. Corporation goes belly up. Valuable asset can help satisfy clamoring creditors. 'Nuff said.
Of course in the end, it wasn't the vaunted "self-regulation" that saved the day. It was the heavy hammer, or the threat of one, wielded by government. Left to their own devices, the people settling Toysmart's estate would have sold out the customers in a heartbeat. So much for self-policing!
I was left with two choices: Carnivore and Amazon.com. Carnivore is the more dangerous of the two, despite any assurances the government might give us. It tests the limits of Constitutional protections, but at least with the government, we can theoretically bring pressure and make changes.
The coming year will tell us more about Carnivore and its analogs, although I'm not hopeful the situation will improve. The extreme rightward slant of the administration and its proposed cabinet doesn't bode well for those concerned with civil and constitutional rights, despite centrist assurances that gushed forth during the campaign and the confirmation hearings. We'll have to watch and see whether the administration's deeds match its words.
Charles Nesson, William Weld Professor of Law at Harvard, speaking about the Amazon action, asks us to imagine that we take our car to a parking lot. We're given a stub, as we usually are, and it contains a legal disclaimer boilerplate that we all see, but that nobody bothers to read.
When we return to retrieve the car, the parking lot attendant tells us that the car isn't there. When we want to know why, he points to the boilerplate, which says that the parking lot can change the terms of the agreement at any time. While we were away, he says, the lot owners changed their policy -- now posted on the wall -- so that it allows them to sell cars that they think are really nice. And our car qualified.
Now, I'm sure that even Jeff Bezos would raise a considerable stink if that were to happen to him. It's curious that he didn't see things in that light when Amazon took its action, which, while possibly legal (I'm not a lawyer, and don't know), is ethically indefensible.