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The Buzzfeed story showed how videos sent on Snapchat are stored locally on the recipient’s phone and can be viewed with a simple file browser without ever notifying the sender. The same is true with videos sent on Poke, although Facebook told Buzzfeed it was working on a fix:

“Of course, the average user of Snapchat or Poke isn’t going to use this method to save videos. However, users should be aware that their data on services like Snapchat and Poke isn’t as private as they think it might be. And a few motivated users will certainly take advantage of the loophole that’ll let them save the kind of videos that were never intended to last more than a few seconds.”

And the idea that Snapchat or Poke ever kept your photos from being widely shared always seemed a little silly to begin with. Notifying you that someone took a screenshot of your photo just alerts you that the photo is going to be saved — the feature does nothing to prevent anyone from taking those screenshots. It just creates a vague sense of mutually assured destruction between the two users. And of course you can always take a video or photo of another receiver’s screen without the sender ever knowing, and presumably really bright users will find other ways to save the content they want to save — it’s just a matter of time and persistence.

CEO and co-founder Evan Spiegel did not reply to a request for comment on this story, but told Buzzfeed: “The people who most enjoy using Snapchat are those who embrace the spirit and intent of the service. There will always be ways to reverse engineer technology products — but that spoils the fun!”

And in an interview earlier this month, he told me he knows they can’t stop the most dedicated users from copying content if they really try: “We don’t want to get into an arms race with really clever people. Which is why we’re not advocating ourselves as a secure platform. We’re not for like, CIA documents.”

But for young teenagers potentially sending explicit photos — or even just goofy pictures they don’t want posted for all eternity on Facebook — that distinction might not mean very much, especially in an age of digital bullying and less leeway for online mistakes. So maybe the quicker everyone realizes that anything on a smartphone can become public, no matter the marketing perceptions these apps create, the better.

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My GigaOM colleague Mathew Ingram summed up the problem as it relates to Google and its ilk in a post Wednesday morning, based on reactions to Google’s new all-or-nothing privacy policy that integrates user data from across the company’s services. Essentially, Google claims it’s looking out for consumers by providing an experience that’s both personalized and social, while critics claim the new policy is lax on privacy safeguards and is little more than a ploy to raise more advertising revenue.

On the other side of the spectrum is the European Union, which revealed a sweeping privacy proposal on Wednesday that would place heavy regulations — and steep fines — on companies that gather data on European consumers. Among the regulations are a “right to be forgotten” rule that requires companies to completely erase all data about a consumer upon request and a rule requiring formal consent by consumers if companies want to store their personal data. As proposed, violations could result in fines of up to two percent of the offending company’s annual European revenues.

Why the web is wrong

It’s no accident that the EU thinks such strict regulations are necessary, or that its counterparts in the U.S Congress, Federal Trade Commission and Department of Commerce are considering regulations of their own. Users do want some semblance of privacy online, and most aren’t gullible enough to buy the explanations given by Google, Facebook, etc. that these companies’ ever-creepier uses of data are all about improving the user experience. They are to some degree, but they’re also about being able to provide more-targeted advertising so sites can sell more ads. It’s a dicey situation Wired‘s Tom Carmody summed up nicely:

I don’t think Google is evil, at least in the sense that Google (and we) thought of “evil” in the tech industry a decade ago. I think it’s become something else, something more than a little uncanny, something that despite conjecture, projections, fictions, and a combination of excitement and foreboding, we haven’t fully prepared ourselves to recognize yet.

But companies such as Google — and almost every company offering a service via the web — don’t help their cause with policies that might as well just read “It’s our way or the highway.” Google kindly explained its new policy in a blog post yesterday, giving users a month’s notice about the changes. The company even gives users the option to delete or export their account data and erase themselves from Google’s system, but I think those are essentially empty gestures.

One of the most spot-on tweets I saw on the matter read, “Am I the only one who assumed Google was already sharing user logs between its various services? New privacy policy won’t change my usage.” If you don’t consent, you miss out on everything Google, Facebook, Twitter, you name it have to offer. In a web-centric world, that’s not much of a choice at all.

Why the EU is wrong too

EU Justice Commissioner Viviane Reding

However, that doesn’t mean what the EU is trying to do or what FTC has proposed is the right answer. Like it or not, web companies rely largely on advertising in order to keep their services free — and advertisers demand more bang for their bucks as platforms and data-analysis practices mature. It’s fine that governments are looking out for consumers when it comes to data being shared too widely, but users might not be too happy if their favorite services get around the need to court advertisers by simply charging a subscription fee.

And when it comes to stifling innovation, overly strict privacy regulations aren’t too different from the overly harsh intellectual-property regulations contained in legislation such as the Stop Online Piracy Act or the Protect IP Act. One great part about the web is that it’s software-based, and problematic features can be rolled back, often before any real damage takes place. But if doing business in Europe or elsewhere becomes too burdensome or too risky, some companies might never dare to or have the resources to reach their full potential, some companies might remain within U.S. borders, and some good ideas might never get off the ground.

I think it’s safe to say users want a rich web experience as much as, if not more than, they want complete and total privacy, so cracking down on one at the expense of the other isn’t such a great idea. We might not always like how Google and Facebook use our data, but we certainly like the services they provide.

How to empower consumers

I think the answer lies somewhere in between the Hobson’s choice web companies provide and the axe-like control mechanisms government regulations seek to provide, in the form of creative solutions that help — or force — websites to compete on privacy.

Here are some rough ideas for how such solutions might look:

• A paywall of sorts, similar to what the New York Times  has in place, but users pay for privacy instead of access. Platform providers could perhaps offer an a la carte contract that lets users pick what features they want for free (i.e., what data they’re willing to hand over to advertisers) and what features they want to pay for (i.e., what data they want to keep private).
• Third-party-run collectives that operate like insurance companies (or labor unions), only instead of dictating what they’ll pay to hospitals, they dictate what privacy requirements they’ll accept for their members. We have 400 million users signed up (the threat might be) and you’ll either give them these terms or we’ll find someone who will. Conventional wisdom suggests this should be a nonprofit operation, although users might be willing to pay a small premium for guaranteed results.
• Monetary credits that reward users for sharing. In Facebook’s ongoing right-to-publicity lawsuit, for example, a major issue is how much more Facebook can charge for Sponsored Stories (i.e., ads that appear in a user’s news stream when a friend interacts with participating companies) than for regular ads. If users don’t want to pay for privacy, and if sites don’t want to stop using user data, perhaps the answer is to give users a piece of revenue pie that’s created by their data.

However, getting anything accomplished might require web users to revolt against Google, Facebook, Twitter et al, and demand meaningful change. As Nicholas Carr has suggested, the alternative really is letting governments implement privacy policies, and the millions of web users who backed their favorite sites in fighting SOPA might not be willing to do the same when it’s those users’ direct interests that are at play.

Feature image courtesy of Flickr user hillary h; Viviane Reding image courtesy of Вени Марковски; protest image courtesy of Stan Oleson.

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So, now that the rushed and ill-conceived SOPA and PIPA are essentially dead as currently written thanks to President Obama’s opposition, Congress has an opportunity to rethink and recast the bills in light of the myriad complaints cited by their opponents. While it’s at it, Congress might want consider other methods for ensuring the United States keeps its place atop the burgeoning Internet economy. Based in part on what I heard during hours of policy panels at last week’s CES event, here are five questions Congress needs to answer in 2012.

1. Internet or Internets?

On the one hand, Congress embraces the idea of a single, open Internet even while discussing the topic of online privacy. During a panel on congressional tech policy, Rep. Cliff Stearns (R-Fla.) said that online privacy legislation will happen, but Congress will not take a broad European Union-style approach to the issue. As the Entertainment Software Association’s Christian Genetski noted in a subsequent panel on privacy, and as we’ve explained before, overburdensome data-protection laws can cause problems for international commerce and stifle innovation in arguably America’s most-promising industry.

On the other hand, supporters of the House’s SOPA and the Senate’s PIPA legislation might as well be encouraging a collection of separate, but interconnected, national networks. Jayme White and Ryan Clough, staffers for Sen. Ron Wyden (D-Ore.) and Rep. Zoe Lofgren (D-Calif.), respectively, noted on a panel dedicated to combating piracy that allowing U.S. companies and courts to unilaterally cripple foreign web sites is not so different from how China censors content or even imposes restrictions on foreign imports.

2. Who does SOPA really target?

Still, nobody denies that trying to enforce intellectual property rights against foreign infringers is a noble goal. But one big problem with SOPA and PIPA is that they also have the potential to come down hard on U.S. companies that even appear to run afoul of their harsh, possibly unconstitutional penalties. Howard University professor Lateef Mtima said “this is being framed almost like an old Western,” because while there will be a showdown at noon between rightsholders and pirates, there will also be a lot of collateral damage.  Those could be web startups, small businesses or, as Casey Rae-Hunter of the Future of Music Coalition pointed out, online storage services that independent artists — copyright holders themselves — depend on for storing, sharing and collaborating on music.

Rep. Darrell Issa (R-Calif.) was adamant that SOPA’s and PIPA’s reliance on U.S. courts contradicts the acts’ alleged targets. He argues, including in his alternative OPEN Act, for reliance on the International Trade Commission, the body typically charged with handling IP concerns that cross international boundaries. Not only is the ITC experienced in shutting down the cashflow for foreign entities not bound by U.S. law, he argued, but such an approach leaves rightsholders with their existing avenues for addressing IP concerns within the U.S. legal system.

3. Privacy or security?

It strikes me as very possible that people conflate online data privacy (i.e., how sites use and display personal data) with online data security (i.e., how sites protect data from cybercriminals), especially in the wake of mega-breaches like the one that hit Zappos earlier this week . While both important issues, the approaches to solving them are very different.

If security is the biggest concern, cracking down too hard on privacy might prove to be a bad idea. It could be detrimental to innovation, as well as to the ad-driven business models that keep so many popular services free to use. In the wake of the FTC’s intrusive, 20-year legal settlements with Facebook and Google, Genetski suggested it might not be such a bad idea to have a lawyer present in product meetings. However, in a web world that’s both fast-moving and full of largely hypothetical harms, I’m not so sure that’s a good thing.

But if privacy really is our concern, Harvard’s Susan Crawford suggested an approach near and dear to my heart (something on which I recently elaborated in a GigaOM Pro report on data (sub req’d)). Perhaps the best method is to enable a marketplace whereby companies can compete on privacy, thus letting the free market, not Congress, decide what’s acceptable and what’s not. We might find consumers are open to a lot more than many assume they are.

4. Can we auction off spectrum already?

The only reason we’re talking about any of these issues is because the web has enabled a world of almost perpetual connectivity where we can access content and share information to our hearts’ content. But that’s a big “almost,” as one CES audience member noted to the panel of Republican lawmakers. Inside the Las Vegas Convention Center, he explained, mobile data connections were extremely bogged down, leaving many attendees unable to access email or the web.

There is a goldmine of wireless spectrum freed up from when television made the switch from analog to digital, and today’s 4G devices could really benefit from it. Running up to this year’s election, there’s a lot of talk around boosting the economy and growing jobs. More access to wireless broadband means more apps, more devices and more productivity, all of which lead to more tax revenue and more jobs. So maybe Congress finally needs to figure out how it will make that currently unused spectrum available and force operators to use the excess spectrum they already have available.

5. How can we connect rural America?

Rep. John Shimkus (R-Ill.) noted on multiple occasions during the CES congressional panel that despite all the talk about 4G and web apps in the country’s metropolitan areas, the situation isn’t the same in America’s rural areas. Many rural Americans aren’t as wired (although not necessarily by choice) or as tech-savvy, nor are they typically as affluent. The web is an increasingly important platform for social interaction and information, and while access might not be a fundamental right, not having access is certainly a major hindrance.

I can speak from experience having just spent nearly a week in not-too-rural Wisconsin with no 4G access and, in some places, no DSL or cable broadband. Shimkus cited the potential for legislation such as SOPA and proposed privacy legislation to raise the price of web applications that might now be free, which would in turn cut off access for many people, assuming they had reliable Internet connections in the first place. As technology legislation makes its way through the process, there’s a real possibility for rural America’s concerns to get overshadowed by those of the myriad corporate interests involved, and that would be a big mistake.

Feature image courtesy of Flickr user ctj71081; private-property image courtesy of Flickr user PaulHorner.

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Ask Newt about SOPA or online privacy.

Imagine if your son or daughter created a brilliant mash-up for their English class that you thought was a perfect display of his or her personality, so you decided to share the mash-up on your family blog. Unfortunately, little Susie or Johnny included a brief movie clip or perhaps a fraction of a song in their class project, and suddenly your blog is gone thanks to a complaint from a rightsholder and the passage of the Stop Online Piracy Act (SOPA). If you want your blog back you can take the offending material down, and if you don’t want to do that, then you could sue arguing fair use. Regardless, it’s up to you to figure out what’s wrong and fight to have your blog re-instated.

A growing problem as the web and technology becomes more central to how we share, communicate and work is that an average person doesn’t know how abstract laws can affect their lives and the media doesn’t expose how well (or poorly) politicians understand technology. As a result, certain companies with lobbyists are getting away moulding our laws and policies in their favor and in the process they are going to hinder how Internet works and thrives.

Horror stories about SOPA abound, but what about your cell phone? Can a police officer search the contents of your phone during a traffic stop? Can a customs agent rifle through your laptop files as you return from a trip abroad? What about the history of your Google searches or checkins on Foursquare, can those be used against you in a court of law? These are not idle issues and instead of focusing on who is a socialist or paying  attention solely to where someone stands on social issues such as abortion or gay marriage, the broader media, politicians and citizenry need to start paying attention to and thinking about tech policy.

So while debates over the Stop Online Piracy Act (SOPA) will continue to rage as we head into an election year in the U.S. France, The U.K and other places, we should ask elected officials about how they view the Internet and how connectivity can change the world.

Thomas Friedman danced around the issue in his New York Times’ column Tuesday, when he suggested politicians need to be asked about how we can bring to bear the budding infrastructure we’re building to connect people and things to solve some of our problems. Sure the web is disruptive, and disruptive is scary, especially for politicians, but as technology becomes more engrained in our lives it also becomes a target for politicians. So we need politicians that understand it and view it as a tool, yes, one that can be abused, but also one that can be harnessed for society’s benefits, such as improving rural access to healthcare.

Rather than letting the web turn into a partisan issue kind of like spectrum policy has become, or letting industry interests try to cut the web off at the knees as the content industry seems to be doing with SOPA, it’s time to shape some questions that can help voters understand how politicians stand on various issues such as privacy, censorship and the real issues where the government’s views on technology will impact citizens’ lives. I’m not suggesting every Congressman must have a detailed understanding of what a DNS server is, but it’s time they stopped equating the Internet with nerds, and look ahead to how the web can improve government, lower costs and maybe solve some pressing problems.

Here are a few questions I’d like to see at the upcoming debates, but feel free to offer more in the comments below. Honestly, as citizens we also need to be thinking about how we would answer these questions (or want our politicians to answer them) as well.

• As the Internet is changing the skill sets demanded by employers, what does the federal/state/local government need to do to ensure our educational system keeps up? Are there subjects we need to add? Procedures we need to change? Skills our administrators and teachers need? Infrastructure that should be as important as a chalkboard is in classrooms?
• As people store more information online, what do you see as the biggest risks for consumers, corporations and governments? What laws need to change?
• Can you name an area of government where you see adding connectivity or developing a program that uses connectivity could improve service and/or save taxpayers money?
• Our digital footprints are forever and we’re now leaving digital records of every casual search, photograph, thought and place we visit. When much of this information was in a physical form, to get at this data required the government to justify the need to invade someone’s privacy. Our current laws don’t always protect digital information in this same way. Should it?
• Do you consider our current wireline broadband market competitive? How do we keep improving it? Is fiber to the home to as many places as possible a good goal for the government to pursue, recognizing it could cost taxpayers billions?

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