Thursday, March 31, 2016

More on the hyperlink issue, with a caution on weapons or security issues


I have written here before that there (April 13, 2013 is the biggest link) may be a minimal or marginal practical litigation risk in (knowingly) hyperlinking to defamatory material in a hyperlink. The risk might increase with video embeds.

However a May 2014 posting on a Trademark and Copyright blog by David Kluft discusses a Connecticut case, Vazquez v. Buhl, involving a CNBC link to a Buhl post apparently defamatory with respect to possible embezzlement. CNBC was named as a defendant for providing the hyperlink.
 
In the end, an appeals court ruled that CNBC was protected by Section 230, and denied the idea that CNBC had provided defamatory information of facilitated promotion of it.

On the other hand, there is an abstract by Sheri Wadwell from the Washington Journal of Law, from 2010, noting that the CDA Section 230 might not provide protection against fraud liability for knowingly providing hyperlinks to assist in securities fraud, link here.

The government has gone after people for deliberately linking to “classified” materials, as with the Barrett Brown case in Texas, often discussed here before.  The risk for an “amateur” blogger sounds very remote, but if “you” really do run into classified material somehow, tread carefully.  Considering contacting authorities under “see something, say something” if it is a credible threat.

And a British publication “Heartland” argues that hyperlinks themselves are less likely to be seen as defamatory in the US than UK .

All of this set ups a question about link to content that provides information on how to hack, or on how to build weapons.  This would be especially troubling with video embeds.  But a cursory search of YouTube will turn up videos on all kinds of destructive matters.  I won’t be too specific, but conducting DDOS attacks, writing malware, and building pressure cooker weapons will turn up. Perhaps the content would violate YouTube TOS and come down. One would hope so.  No problem with content on how to defend yourself (like by building Faraday cages).



When a blogger links to such a content, is he or she “abetting” terror (how some people would see it, especially if the blogger is an amateur and not part of the established press – that is, from the “fifth estate” rather than “fourth estate”) – or is he/she “reporting” on threats already posted and created by others?  What are the limits, if any, of blogger journalism?

Tuesday, March 29, 2016

Bridal association litigation takes down over 3000 sites, but some of these were legitimate and were destroyed by the aggressive litigation


Electronic Frontier Foundation today has a chilling story (by Daniel Nazer)  about site-blocking tactics that destroyed a few small businesses along the way, the sort of nightmare that SOPA could have created.

The alleged culprit is the American Bridal and Prom Industry Association which secured a temporary restraining order in Illinois shutting down over 3000 sites around the world for presumed trademark or copyright infringement.  Many of the companies served were domain name registrars, payment processors, or possibly advertisers.  The association claims that the defendants where Chinese hackers who had submitted fake WHOIS information, but some of the companies were legitimate, in various parts of the world, including Europe.

The EFF article explains several problems with the TRO’s, including jurisdiction, joinder, and due process.

But the ABPIA site’s home page confronts the visitor with the possibility that she could have been fooled by a fake website.  (Oh, it’s the “father of the bride” who arranges things, right? I don’t think that was true in my own parents’ case in 1940.)  Of course, fake websites are a problem in many business areas, because they could be vehicles for malware (even maybe ransomware) as well as lure payments away from the legitimate businesses they copy.

Search engines show that the downside of the litigation had not been reported much before. Here is a story on “ewednews” warning of the battle against online pirates back in 2012.   There seem to be other lawsuits, like described here in New Jersey  or this story.

The story is also cautionary.  Small businesses, whose owners really depend on their sites for a living (in a way that I personally don't right now, as if that "isn't fair") are indeed at peril for ordinary things. 

Sunday, March 27, 2016

No, "karma" doesn't justify "blaming the victim"


I have talked about “karma” before, in the scenario of bad things happening to good people.  I found some nice discussions online, like another Blogger posting here, or another one here.

Indeed, I cringe at watching reports showing the physical injuries to the gravely injured civilians in terror attacks, whether Boston, Paris, Brussels, or anywhere else, including mass shootings in this country, or even mass casualty auto accidents from DUI.



But I’ve also written that, at any point in time, “you are what you are” and recovery has to start with “you” (impersonally, as “vous” in French).   The literal fact is that “you” bear some of the penalty for the sins of the perpetrator. I have never been able to accept the idea of any honor in victimization, especially if that were ever to apply to me.
 
The worst challenge might come to “me” if I were in a relationship with a “you” in such circumstances.

I would surmise that perpetrators know this; if they are willing to perish themselves to carry out their own views of religious or secular “morality”, this sort of attitude could make people even more vulnerable.  That’s why “resilience”, especially “emotional resilience” (as well as economic and infrastructure-related) is a big component of morality.

Of course, today, we recoil at the idea of bringing combat to civilians. But I did go through a period of dealing with the male-only draft during the Vietnam era.  Being maimed in war after being drafted was the moral equivalent of being gravely injured in an attack today.  This gets into another moral area – the sharing of risks in a community. Indeed, enemies claim that civilians are morally illegitimate beneficiaries of what their governments do and therefore "deserve" punishment as much as soldiers.
 
I often encounter online comments that karma is a religious motion, and a negative idea that we don’t need because “karma” encourages a culture of “blaming the victim” and even encourages more aggressiveness.

No, it doesn’t mean that.  No one is injured in an unpredictable incident because of something he or she did earlier in life, or maybe (if you accept reincarnation) a past life.  But there is a bit of  a lesson in a story like “Cloud Atlas”.  We belong to communities and operate within them.  Everything we do depends on others and can affect others.  So everything constructive we try to do to advance ourselves or others close to us does risk, in some way, the possibility, however remote, of some kind of blowback. As Hoffer pointed out in 1951, freedom always means taking on some risk and contingent responsibility personally that many find unwelcome.

No one can get everything right and be productive in a community.  You could say, this Easter Sunday, that this is a reason that, however rarely, the Divine must intervene  -- even quantum theory predicts very rare variation from nature’s normal idea of causation and consequence.  So, “you” and “I” and everyone else needs Grace, need forgiveness, and need to offer forgiveness.   We may not like the social “hollowness” of the way “Heaven” is often portrayed by evangelicals (like in the film “Miracles from Heaven”, which I saw yesterday and reviewed on the Movies blog).  We may want something bigger and more enriching, which is why I think the Monroe Institute is on to something.
 
Here’s one other discussion board dealing with “blaming the victim”.

Friday, March 25, 2016

Fox and TvEyes in court battle that could affect how Fair Use applies to news aggregation


There is more development on the case of Fox v. TvEyes (Jan. 26).  TvEyes maintains a broadcast content index database, which Fox complained infringed on its copyright-protected programming.  EFF has an update story here.

The district court in New York apparently agreed that the concept as a whole constitutes Fair Use, but believed that some advanced features, such as link sharing and date-time sequencing, could go beyond what has been accepted as Fair Use.  The case is now before the Second Circuit.

Law360 has a fact sheet on the case here.

Hollywood Reporter wrote an article in December explaining the limitations on fair use implied by the lower court ruling here.  It’s hard to see how facilitating downloading wouldn’t be fair use if the original content were on the original copyright owner’s server.

My concern would be the potential fair use limitations for a website that consolidates the material from different news services into one common format.



One aspect of the case that is surprising is that Fox itself has “lobbied” judicially for expansive fair use implementation in social media, especially on Facebook and especially with terror-related materials.

Wednesday, March 23, 2016

With either Clinton, Trump or even Cruz as president, Internet "user" speech (without gatekeepers) could face unprecedented concerns over security exposures (especially "recruiting" and enticing) next term


Recently, Hillary Clinton responded to one of Donald Trump’s claim to that he would build a physical wall to keep out immigrants with “How high a wall is the Internet”?

This has come up before during the primaries, but just how significant is the Internet in recruiting members to criminal operations?  This is somewhat separate from the encryption debate now. Most of the operations conducted out of sight on the “dark web” involve operations, mostly overseas, of little or no significance to ordinary Internet use for political or cultural speech. The recruiting part, however, does involve these public sites, most notably Twitter.

A relatively recent piece on CNN by Dan Merica, dated Dec. 15, 2015, indicates that Hilary mainly wants the big social media sites to close terror-related accounts and censor violent recruiting content.  It looks like I gave the link to this story already, on a post Dec. 16.  A Fox station in Minnesota had produced another variation of this story then.  These sites do that already, but depend largely on users to report TOS issues.  As we know from previous issues, it is often very difficult to define unacceptable conduct in advance without a context.

One of the biggest concerns about recruiting is understanding why young people, especially join groups and join gangs.  Most people need to “belong”.  And they see a society where self-centeredness is a virtue, and where they don’t see how they can matter “as individuals”, unless they join and really believe something.

But, to return to the speech concerns: Can a president really and simply shut down social media sites altogether as a “national security” measure because of the recruiting issue?  It strikes me that a president Trump really might try to do this. "We're at war, folks." It's all too easy to visualize. "We've been soft, and we've made enemies," etc.   He had said this last fall before backing down a bit (Dec. 8). Or is it a no-brainer that the intelligence value of the gratuitous postings outweighs the recruiting (and cyberbully) risks?



Trump especially might be inclined to see “gratuitous” user content as not protected speech and dispensable.  (Some Supreme Court opinions, especially on COPA, might disagree with Trump.)  That is, speech that does not pay its own way, that doesn’t represent satisfying a legitimate economic need the way the market views it (ultimately, we hope, translated to a real human need).  But “gratuitous” speech, encouraged by a permissive environment that protects providers from downstream liability (and therefore from the need for gatekeeping) is a very effective way of makings sure that the established “press” really reports everything.  That’s the rub.  It is still a very important part our political system.  It keeps politicians in check.

Sometimes major media will report particularly disturbing (from a “political correctness” or aggravation viewpoint) aspects of a developing story and then not continue the reports.  A blogger likes me picks up that story, puts it on a blog (as well as Twitter and Facebook) and it stays out there for the search engines, and stays in play.  A couple of examples of sensitive stories:  one about reported visits of one of the France-Belgium suspects to the gay village in Brussels last fall;  another is a story about nuclear security in Belgium.  Both of these appeared in the establishment and were quickly pushed aside.

And some will be displeased with the presence of someone like me, who doesn’t have to “make a living” with his speech and content, when others do have to.  That gets translated to notions that there really need to be some gatekeeping processes in the market that determine who is heard, partly based on whether speakers show they can actually take care of others and give value to others, as a way of “paying their dues”, before they are “real”.    Indeed, I get irritated by calls to donate to other sites that can speak for my own interests, when right now I can speak for myself.  Should I take that for granted forever? I can see how all these considerations could factor in to future measures regarding gatekeeping as a security necessity on the Internet, especially the way a Donald Trump might see things.





Tuesday, March 22, 2016

Hulk Hogan verdict could curb some tabloid-like reporting


Hulk Hogan’s $140Million KO in courtroom could have chilling effect on media”, Paul Fahri writes in the Washington Post Style section on Tuesday, March 22, 2016.

The jury did not buy the idea that the tape was newsworthy because Hulk is a public figure.  But Gawker expects and appeal will admit more defense testimony.

Nevertheless, editors of “tabloid news” (at least) may think twice before publication, Fahri writes.
 
Fahri also asks the question, in the world of asymmetric self-publishing and blogging, “What is the press?”

It’s true that a case like this (or similar one in a Tennessee hotel) involves setting up or getting hold of very personal video.  That is something I wouldn’t do (although it’s possible that video shot in a disco could conceivably lead to issues).

Fahri, though, notes that the combativeness of people who post “revenge porn” (illegally in many states) will make this issue keep coming back.

I’ve had a few minor scuffles, but I keep them off line.

Monday, March 21, 2016

Socialist magazine, formed in a dorm room the way Facebook was, turns arguments about Effective Altruism on their head


Facebook isn’t the only content business started in a dorm room.  Think about the socialist rag Jacobin, started at George Washington University in Washington DC.  Dylan Matthews of Vox writes “Inside Jacobin: how a socialist magazine is winning the left’s war of ideas” ,
 of course propagating itself with capitalist methods.  The publication’s “modesty … undersells it.”
 
 The rag is a creation of Bhaskar Sunlkara and actually has five employees.

I’ll point out the article by Mathew Snow, “Against Charity” (or “against Effective Altruism”). https://www.jacobinmag.com/2015/08/peter-singer-charity-effective-altruism/   He starts with the child-in-pool problem, and expands.  (I wrote a short story based on this idea in 10th grade and got a B on it – the rescuer had to deal with a nuclear explosion at the same time.)   I’m reminded  of a local church where teens raise money to send a kid to high school in Belize because the government (despite all the rich people with real estate there) doesn’t pay for it.  When should people give of themselves in charity for things that really should be public functions?  It seems like we are asking about the morality of volunteer fire departments.



Search for the text about “relatively affluent individuals” who “haven’t bought those necessities from the capitalist class for the hundreds of millions that need them.”  (Why not “who need them” – make it more human, at least.)
 
One of the tenets of liberty (in the views of conservatism) is that inequality becomes destabilizing unless the better off take care of their own and many others to boot.

Sunday, March 20, 2016

When should "you" abandon "your own agenda"?


Judith Fulp-Eickstaedt gave a provocative sermon at Trinity Presbyterian Church this Palm Sunday morning, titled “The Way of Self-Emptying Love”.

Admittedly, the sermon may have been intended to play on this year’s most controversial presidential candidate without mentioning his name – so I’ll name him, “Donald Trump”.

At one point made a Rosenfels-like statement, “Love trusts power every time.”  Yes, I think Paul Rosenfels said something like that at the Ninth Street Center in New York in the 1970s when I was going there to talk groups and pot lucks.

Then, as to address our concerns about social and political equality (read “marriage equality”), she referred to Philippians 2:5-11.  Actually, this is not so much about group equality as it is about how we perceive ourselves as individuals in relation to or comparison to others.  “He made himself nothing.”  Well, not if he was a worldly political candidate (not satisfied to remain a “Little Rubio”).
 
Fulp said, that sometimes you have to “get your own agenda out of the way” and get over the psychological defenses that let you pretend you are better than most others and don’t need them.  (As far as agendas go, The Washington Blade had called itself "DC Agenda" temporarily for legal reasons in 2009.)
 


I recall, in late January 2010, while Mother was still alive but when the end was certainly coming soon, driving on US-15 in northern Maryland, through some cleansing and heavy snow showers,  toward Gettysburg, PA, and hearing Josh Groban’s song “You Raise Me Up” come on the car on my Sirius Blend service.   Tears did come to my eyes.  “I am strong when I am on your shoulders. You raise me up to more than I can be.”

I have indeed needed to be raised up.  I was not very competitive as a “normal male” when a boy (that forks to a long, separate discussion).  I was “fortunate” in family circumstance to live through the “tribunals” I was squished through in an earlier period of my life (William and Mary).  I am lucky to have come out of all of this as well as I did.  I could be placed under moral compulsion to raise up others (as specific human persons, not just from a distance) who otherwise need it, rather than cherry pick.  So, an indignant counselor (like at the Ninth Street Center in 1974 could ask), why won’t I? They call it karma.

All of this speaks to inequality, in a way that is much more personal than we usually want to consider.  We have created a world that is simply meaningless to a lot of people with less ideal circumstances, then wonder, with a great deal of fear, why they become radicalized, and then counterattack, challenging our basic moral assumptions about freedom as related to personal responsibility following only one’s deliberate choices.  Of course, there is more to this – the need for many young men just to belong to a group, even after marriage. But spiritual inequality is a good place to start understanding this.

I have to say, by the way, that Marco Rubio is a good role model for the most part, to have become a US Senator from his humble beginnings as a second generation American, as he describes them.

Here’s a related posting with more psychological stuff from Wordpress, yesterday.

Saturday, March 19, 2016

Partisanship precludes "intellectual honesty" -- but who can afford that? Maybe the sheltered and spoiled.


Mark Lee has an interesting perspective in the Washington Blade, “Both parties dumb down discourse.”

True, most of the major candidates have cowtowed to specific voters who say “I want” or “I need”.

   
Lee provides some interesting comments questioning the suitability of all the candidates, including the integrity of Hillary Clinton herself.  But Clinton (and to some extent Kasich) have tended to focus more on things that actually can be done with some specificity, such as (Clinton) removing the distortions in Obamacare.

I often get greeted by the idea that intellectual honesty and purity is a luxury of the spoiled privileged few, for those with fewer responsibilities for others and less involuntary exposure to personal risk. You can be spoiled and still not become a badboy like “Shane Lyons”.  I sometimes wonder if someone will propose more kids, more votes.


I can remember one time getting rather angry when a relative took it upon himself to recruit me into very partisan stuff inside the GOP.  And I acted with diffidence on a camping trip one time when someone tried to “save” me for Christ.


Kasich made an interesting comment recently, talking about “kindness”, about the man who takes a lonely widow out to dinner and invites her to wear her wedding dress.  It struck me how spoiled I must be, if I don’t know how to spoil others.


Friday, March 18, 2016

"Paperity": an aggregator for all open-source science journals


Here’s a major proposal by Marc Wojnarski, and Debra Hanken Kurtz, for a “Paperity”, a repository of all open-access (or open source) science and medical papers, without paywall, with major description here

The process would take “green” papers and sift them into “gold’, after unduplication and aggregation.  The repository would have a wiki-like organization and internal review process. It’s not clear if it might become part of Wikipedia (now in San Francisco), but that would sound likely eventually.

  

The project will be seeking grants and has applied for the Open Science Prize.  It will also look for Wiki editors.  

Thursday, March 17, 2016

Combativeness of some Internet users could jeopardize entire world of user-generated content (SyFy series)


The SyFy channel has a news show, half hour episodes, “The Internet Ruined My Life” (TV blog, yesterday).  Well, when I was in Army Basic, I was told an “Article 15” could “ruin my life.”  But, seriously, the show reports people whose lives were disrupted severely after the reactions to others to a single tweet, going viral.

One episode deals with Homeland Security’s scanning tweets of visitors, and misinterpreting idiomatic language or slang more common in other countries (even Britain) than in the US.  In fact, I’ve noticed, when translating Facebook posts or tweets in Chinese, Arabic, or other non-western languages that the posts look silly, but this could be due to inability to translate idiomatic speech.

Three other episodes so far deal with people being stalked, doxed, or otherwise threatened, or forced to leave employment after being targeted by very combative individual persons, after making controversial yet innocent-looking tweets or Facebook posts.

I wonder, where does this personal combativeness come from?  It seems to comprise a number of sources.  The attacker could be from a radical mass movement (what we call “radical Islam” or some branches of “right wing” evangelical Christianity or hyper-Zionism) that demands combative behavior as part of group solidarity.  More commonly, the attacker may have very strong “moral” convictions about a narrow issue, especially animal rights or abortion.  (Homosexuality per se is not an issue with most people today that it might have been a couple generations ago, when I was coming of age.)   Some people seem willing to break the law, risk arrest or at least loss of accounts for TOS violations, to go after others who challenge their moral space.  In fact, in a couple of the SyFy episodes, I wondered why more wasn’t done with Twitter and Facebook acceptable use channels.
 
In one case, an animal activist apparently attacked a restaurant in Los Angeles for serving a certain dish based on pork, when she hadn’t been there.  That raises another variation:  a person could invite litigation by “reviewing” (like on Yelp!) a business that he or she hasn’t actually visited in order to make a political attack.  That would obviously add fuel to a business plaintiff’s defamation claim, because the statements in a review can’t be true if the person didn’t even visit the business.

Another source of combativeness is the sense that others don’t have the same skin in the game as “me”.  That is, “I” will attack the potential competition (even simply women, in a male field) because “I” have real responsibilities in life and a family to support, when others don’t.  People like that could become more problematic for me.

I’ve often written here about “conflict of interest” in speech cases.  People whose jobs places them in a position to judge others (subordinates or customers) in the workplace, or to affect a business’s reputation, must be very careful about how they behave online.  Modern social media have changed the game since it was an issue for me (as with the 2005 situation when I was substitute teaching), but double lives are not possible today, and persons whose jobs put these in that position often must use full privacy settings and avoid expressing their own political views in a searchable way to a public audience.



When I wrote my first DADT book (1997) and began to post my comprehensive political world view (surrounding my own unusual autobiographical narrative) online, there was no turning back.
 
 Fortunately, I was already 54, and in my circumstances had somewhat of a financial cushion.  But it is very difficult to start a career narrowly focused on someone else’s objective, because I would have to bury my own narrative, with all its historical ironies, which I think people need to know about.
   
I’ve wondered particularly how a Donald Trump presidency could affect my own kind of public speech.  It could be seen as gratuitous, as not paying its own way, and taking advantage of permissiveness that allows problems like cyberbulling, fraud, and recruiting of terrorists from overseas – particularly from people who make it a point to become combative.  In my own mind, I see “freedom of speech”, “free press”, and “freedom to broadcast one’s own speech” as somewhat separate items.  The last of these is not necessarily so obviously guaranteed by the First Amendment, although the Supreme Court has tended (in cases like the CDA and COPA) to rule that it still is.

Tuesday, March 15, 2016

Defamation suit against "anonymous" Twitter user in CA can go forward; more on Facebook tagging


A defamation lawsuit filed by actor James Woods against an “anonymous” Twitter user “Abe List” can go forward in California, a Los Angeles judge has ruled, as in this CNN Money story.  The suit asks.
     
The user had been angry over Woods’s tweeting about USA Today and Planned Parenthood.
 
Besides anonymity, there is a question as to whether a reasonable person would interpret the tweet “literally” (as in Asperger mode).  Even I wouldn’t have believed the statement to be literal fact.  There is also the issue of celebrities “bullying” small people to “keep them in their place”.

I had a few incidents a number of years ago of being flamed (rather tastelessly) over innocuous statements I had made online, especially a review on AOL’s Moviegrill (no longer up) of the film
“The Perfect Storm”  (as well as Sebastian Junger’s book) back in 2000.  People will nisinterpret a comment by a reviewer of a film’s viewpoint as the reviewer’s attitude (for even mentioning it), and not even understand the subjunctive mood (which is harder to discern in English than, say, French).

In the meantime, the Facebook fake tagging continues.  I wonder what the point of it is.  I don’t have a wife (or husband, for that matter) who could be made jealous. I guess Section 230 covers you for torts committed by someone else posting on your Facebook wall or timeline, but I’ll check with EFF soon.

Monday, March 14, 2016

Research papers need a new business model; can you "adopt" someone by being tagged?


“It’s free”.  Maybe the public library, perhaps.   But not research papers. In the New York Times on Sunday, Review, p. 6, Kate Murphy asks “Should all research be free?”  Maybe she could quote Reid Ewing dancing in front of an LA Public Library.  Of course, Murphy is referring to the activism of Alexandra Elbakyan in Russia (discussed here Feb. 22).
 
She does discuss the business model of the academic research publishers, and suggests they really don’t have their own skin in the publishing game the way traditional publishers must.

So, yes, the old business model for (peer reviewed) academic publishing has an understandably high barrier to entry for professors and graduate students.  But the problem is access to them is very expensive even for other professors and students that need them to do further research.  Furthermore, high schoolers and undergraduates, otherwise individually capable of professional research, would be shut out by the old model.  Yes, medical or energy technology revolutions can start with science fairs.

Both Andraka brothers (with separate, unrelated projects), and Taylor Wilson, have proved this.  The paywall could mean that the revolution cancer detection and treatment, or in clean energy, or in detection of terrorist weaponry, that we really need, just doesn’t happen at all.



So the business model needs some rethinking.  Donald Trump wouldn’t like this, but too bad.
   
Here’s another topic.  Recently, I’ve gotten notifications from Facebook of being tagged in some photos, out of town or even overseas (places where I definitely was not present).  A couple of them appear to be images of kids in Africa needing sponsors from a particular faith-based charity.  When I check, I don’t see the tags there.  But the implication is maybe someone is trying to claim I have sponsored a child that in fact I have not (March 2).  I don’t know if I need to react to this or not. You cannot adopt a child just on a social media site.

Sunday, March 13, 2016

Donald Trump's "hypocrisy" on free speech


Marc Randazza has a nuanced perspective on Donald Trump’s relation (or lack thereof) to the First Amendment, here.
 
The column points out that Trump won’t condemn the use of violence, and sometimes (indeed) seems to encourage it, even if he thinks he is speaking in hyperbole as a “godfather”, a kind of Brando from the movies.

The other candidates, especially on the GOP side, seem underwhelming, especially Rubio.
Toward the end of the article, there is a caption, “let ideas, not gangs, rule.”

All of this reminds me of times others have warned me that if I stepped out of place and drew too much attention to my own views, I could put others besides myself in danger.  An offensive idea, to be sure, but one that still bears on the morality of my own life.  Trump is right in that we have to be very careful now that we’ve made enemies.  I am still concerned about how he may view amateur Internet use should he “somehow” win in November.

Saturday, March 12, 2016

Can "volunteers" be sued for violating non-disclosure agreements? Trump campaign tries to test the water, but what about community service?


NBC News is reporting that the Trump campaign, for “Republican” candidate Donald Trump, is requiring some volunteers as well as employees to sign Non-Disclosure Agreements, which could allow lawsuits.

However, most legal experts say that these agreements would be unenforceable, since the volunteers get no “consideration” in return.

But it’s obvious that volunteers who work with community service organizations (most of all, those giving services to people with HIV or other medical issues) must keep client information private.  For example, volunteers for groups like Food and Friends might deliver meals;  they would have to keep the PII of such clients private.
 
Another issue that has occurred with volunteering is a more subjective one:  degree of engagement. With some organizations or causes, piecemeal efforts are not as effective without a minimum degree of engagement.  This was a problem on at least two occasions in the 1990s, where people in the groups involved said I wasn’t keeping up with “what was going on.”

Friday, March 11, 2016

Gawker case also shows the risks of "digital records" of conversations in a media workplace


New York Magazine has another perspective on the Bollea v. Gawker case (besides the “public figure” and “privacy” implications discussed here Monday), by Max Read. This story deals with the danger of digital workplace conversations, which could be stored, searched and subpoenaed. 

Although this didn’t happen to Read (who used to work at Gawker), it can lead to employees being named in litigation, whether its intellectual property (libel, invasion of privacy, and the like) or a discrimination case.  That’s why lawyers like to talk in person (sometimes not over the phone).
   
I was involved as a witness in a discrimination case in the mid 1990s.  I was surprised at the detail of questions asked during a deposition, which included my own political views (libertarian, not necessarily sympathetic to overdoing “suspect class” or “affirmative action” thinking),  The testimony was printed and given to me with every word’s occurrence indexed in the back.


The article doesn’t mention Snapchat, but one can understand the appeal.  But even Snapchat can be breached if someone is determined enough.
  
On the Snapchat issue, I want to reiterate, I have little need for people to know casually “what I am doing” or “how I am”, or to “get to know me”, without some more specific context.  Lately the tone of some social media posts has been more assertive, trying to seek replies to questions of no real substance.  

Update: March 18

A jury awarded Hulk $115 million, which could put Gawker out of business, Ars Technica story

Wednesday, March 09, 2016

California would ban all default "un-escrowed" encryption of new phones; so might NY; Congress introduces bill to support Apple; more on legal arguments



Andrew Crocker of Electronic Frontier Foundation has an article about a California bill, A. B. 1681, that would prohibit default encryption of all cell phones sold in the state.  This would make the current controversy between Apple the FBI moot in the state.  A similar bill has been proposed in New York State.

As a counter, Representative Ted Lieu (D-CA) has introduced a bill, H..R, 4528, the ENCRYPT ACT of 2016  to pre-empt any such state laws (which are likely to be unconstitutional anyway).

The article explains FDE, or full disk encryption, and the concept of “key escrow”, which the FBI wants now, which Apple maintains would lead to profound vulnerabilities over time.



Ted Olson, Apple’s attorney, has indicated that the FBI-Apple “escrow” decryption case could be headed for the Supreme Court, Time Warner news.

NPR has an article about a 1985 robbery case, where the government tried to order surgery to get evidence, about whether any asset can ever be “warrantless”.
Update: March 22

FBI may be able to decrypt the phone without Apple's help;  see Internet Safety blog today..  More coverage will appear here soon. 

Monday, March 07, 2016

Public figures have have a higher bar of proof when they sue for defamation or for invasion of privacy; the bizarre Hulk Hogan v Gawker case, "on point"


It’s a good idea to remember that two kinds of torts are likely from making statements about other people online: defamation or libel, and invasion of privacy.

In practice, they may seem to be interrelated.

The Digital Media Law guide explains that US law places more burdens on plaintiffs than most other western countries.  Plaintiffs must prove actual negligence.  That standard should seem to help more with SLAPP suits than it has. And if the plaintiff is a public figure, the plaintiff needs to show actual malice or reckless disregard of the truth.

The following link explains the invasion of privacy tort pretty well for most states.  Generally, plaing someone in a “false light” can have similar consequences as actual defamation.



In both torts, with public figures it seems relevant was to whether the speaker was communicating information likely to be of public interest. Again that would seem to matter in SLAPP suits.

Generally it hasn’t mattered much whether the speaker was part of the media establishment or was an “amateur”, but it’s possible to imagine cases against amateurs who didn’t “mind their own business”, but reporting information or public interest (including re-reporting it) would probably trump in most cases.

In most SLAPP cases, though, the strategy is to silence through intimidation, assuming the speaker doesn’t have deep pockets, rather than on legal merits, which are often very weak.

Younger, moderately accomplished and known public figures could present interesting legal questions.  The Internet is making some people well-known in certain circles but not as well-known as major political or entertainment personalities.  Can a classical composer, popular in her own area, or self-published novelist, with a distinct but still limited following, be a public figure?  That doesn’t seem so clear.  Certainly, the privacy and personal space of everyone needs a certain degree of respect at all times.
 
Writers overseas need additional caution.  Kitty Kelly once explained, when talking about the Royals, that in Britain, truth is not an absolute defense to libel.


Updates: March 9, 2016

Some of the recent review site suits are about breach of contract, and another distinct concept is "unjust enrichment", which seems to have been the charge in the suit by Kim Karsashian and Kayne West against Chad Hurley, settled, details here.
 
A big current case (in which public figure status matters) is Hulk Hogan v. Gawker (or Bollea v; Gawker), a "privacy" case in Florida.  Fortune gives a good overview in a piece by Jeff John Roberts on March 9, 2016. The New York Times has an account by Nick Madigan. Gawker is live-updating the trial at its own site here.

See also the story about Donald Trump's wanting to lower the bar for public figures to sue, Feb. 27, On Tuesday, March 8, Paul Hanri reported in the Washington Post (Style) that in 2006 Donald Trump had sued Timothy O'Brien over statements about his net worth in book "TrumpNation: The Art of Being Donald", a suit dismissed in 2009 because there was no actual malice (a finding upheld on appeal).

Sunday, March 06, 2016

A very silly campus speech code controversy in Maine, and then Cruz wins the GOP primary, promising "freedom"


Impeachment from a college student council in a private college may not be a big thing. But here’s another case of speech codes taken to absurd extremes.  Maybe the narrative at the college in Brunswick  Maine helps explain why Ted Criuz won the primaries Saturday.

The impeachment proceedings are posted online here.  Catherine Rampell explains the incident on p A17 of the Washington Post, “Political correctness devours yet another college, fighting over sombreros.”

The impeached students attended a campus party where some attendees wore party sombreros.
So they are accused of participating in “ethnic stereotyping.”  What about whole restaurant chains, well established trademarks, then, like Chili’s or Chevy’s.  What about Hooters?  Does it degrade women?

True, there is a time when lines are crossed.  I think the Washington Redskins would be better off if they changed their name on their own – although this past season they did much better.  (We could get into whether football is threatened by the concussion problem, but that’s another two-sided discussion.)  I could wonder about other pro teams, like the Cleveland Indians or Atlanta Braves (“America’s Team”).


It doesn’t seem that these colleges are very interested in their students being able to function in a real world, which is increasingly likely to need talent overseas.

Saturday, March 05, 2016

Negative review problem hits the software business -- Bleeping Computer sued by Enigma Software -- and the devil is in the details


The negative review problem has now hit the software industry.  A site called Bleeping Computer is being sued by Enigma Software for a review, actually embedding a users’ forum with one or more specific putatively  objectionable posts.  Bleeping publishes the complaint as a PDF, in New York State.  Much of the complaint seems to deal with an anti-malware product called SpyHunter.  Part of the complaint seems to be that somehow the forum posts are driving traffic away from Enigma.

The fact pattern is very complicated, and is described by several news accounts.  Tim Cushing has a good account on Techdirt with the links above.  Steve Ragan goes into some of the legal arguments on CSO online here. Mark Wilson leads off a story on Beta News with “Don’t Shoot the Messenger”.

One question might be, what constitutes “defamation” as compared to some form of “unfair competition” (or “tortious interference”, a phrase made infamous in the 1999 film “The Insider”).  Bleeping Compute would seem to have Section 230 protection, not mentioned anyway. Some commentators are calling this a SLAPP suit, and noting that New York’s anti-SLPAA law is weak (oddly giving more protection to amateur bloggers than established companies, according to some accounts).

Bleeping Computer is seeking members of the public to help with the defense.  A pop-up occurred on its own site when I went to an unrelated story from a search engine.



The basic link for donation us here.

My own practice is, as with charities  (and “gofundme”), to give through organizations (like EFF) that help provide legal defense, than to become involved with specific people or companies, unless I actually already know the specific parties because of my past activities.

Friday, March 04, 2016

Donald Trump panders to old-fashioned ideas of male "worthiness"; but do we really want to let go of them when they make for such such good psychological defenses?


Donald Trump went into the Phantom Zone last night in the debates, as he hit the other candidates hard on an existential matter – their manhood – with the same tone that was so problematic for me early in my own “coming of age”.

From the taunt of “Little Marco Rubio”, Trump moved to “small hands” (and talked about how far his hands could drive a golf ball, but not hit a home run over Yankee Stadium’s “Death Valley”), and then migrated downstairs, metaphorically, to speculations about the size of a primary sexual characteristic.

So Trump goes back to the subject matter of that 50s book “Facts About Life and Love for Teenagers” by Evylyn Duvall (discussion).  Remember, the pitch of the voice and heaviness of the beard, and especially in some Caucasian men, other body hair, is a “secondary sexual characteristic”, prime fodder for sexual essentialism (for men).  On that same page, I also discussed Peter Wyden’s 1968 gem “Growing Up Straight” where he even panders to stereotypes about hairless chests. All of this inspired a 1999 Weekly Standard article by David Skinner, “Notes on the Hairless Man” , which I devoured at Dulles Airport waiting for a flight back home to Jesse Ventura’s Minnesota.

Back in 2004, in an early episode of NBC’s “The Apprentice”, where the topic was “negotiation”, team member Troy McClain, then in his mid twenties, subjected himself to having his legs waxed on camera, as he “took one for his team”.  Trump mentions that little ritual in his book “How to Get Rich”.  (Steve Carell would join up as “The 40 Year Old Virgin” in 2006, being sufficiently emasculated to be credible in "The Big Short" about the 2008 financial collapse.) I mentioned all this on social media (with plenty of Twitter Trump hashtags) about a day before last night’s debate, and it seemed to get around quickly.  Maybe I fueled this exchange last night.  Yes, maybe Trump could play that episode in his campaign. By the way, Troy McClain would appear on radio ads working for Trump in Atlantic City – so I heard them in my car in a visit to the Garden State in the mid 2000s.
 
All of this had come up in my own life before.  During that lost semester in 1961 at William and Mary (where I was expelled right after Thanksgiving for admitting “latent homosexuality” under pressure), the freshman were supposed to go to “Tribunals” in the basement of one of the other dorms the last Friday night of September, where the boys would have their legs shaved.  Tradition had it that for at least one victim, it would never grow back, and he would be cast into shameful exile forever.  So I skipped out on that hazing ceremony.


In the fall of 1962, when I was a patient at NIH, this whole subject matter simmered under the surface with the therapists as they tried to get me to vomit it up.  There was another patient, considered “queer” by everyone else (more “obvious” than me) who looked soft and effeminate, and whom I found I “hated” as much as everyone else.  How did I process the social disapproval of my own lack of male competitiveness?  With upward affiliation, and then a tendency to judge others whom I saw as even “weaker” even more harshly.  I was the only patient who regularly left the unit in the afternoons to go to college at George Washington University.  So in October 1962 I heard Kennedy’s entire Cuban Missile Crisis speech while having supper in the GW student union, with the black-and-white TV on; when I went back to the ward at NIH that evening, I was the only patient who knew and understood how close we were to nuclear war.  So I taunted a couple of the others (who were much less intact) about who deserved to “survive” such “The War Game”.  (There was a funky incident involving some dental work, was put under, felt violated and became an "iv critic".)

Then consider the Vietnam era drat (which Trump escaped). Until 1969 we had a student deferment system which considered the less academically gifted as more fungible for service doing night patrols in the paddies in Vietnam.  I leveraged it, all right.  I remember the same thinking playing out while I was in Special Training at Fort Jackson, on March 31, 1968, when LBJ announced he would not run again.

We had fought World War II against an ideology that considered some people as disposable and expendable, whether as whole races or religions, or as targeted individuals.  But in my own thinking, despite the bullying and teasing aimed at me, I had adopted the same mindset.

Now, the GOP has to deal with the same style of thinking in its own ranks.



Wednesday, March 02, 2016

Yes, I "eschew" group identification, and make no apologies


Columnist David Brooks is once again advising us on “how to be good” in a New York Times column today, March 2, 2016, on p. A27, “The Movement Mentality”.
 
His last paragraph sums it up, referring to “steps that are less in fashion today: committing to a collective, accepting a label, keeping faith, surrendering self to a tradition that stretches beyond you in time.”

Whoa, that’s group think, demanding preferences for your own cohort, ranging from “Black Live Matter” to the Tea Party.

To some extent, it means giving up time and listening to others when they approach you and barge in to your life, even answering calls or door knocks (the latter, maybe with some personal security risk) asking for donations for causes or even political contributions.

That is to say, “I” am not better than the problems others have, not above carrying a sign in a demonstration or shouting.  Or I shouldn’t be.

The Left tends to demand participation of someone like me in “group activities”, and it matter which group. That doesn’t suit an Aspie-personality that doesn’t handle social competition well.  It’s better to create and project my own world, something that (with web access) makes social competition irrelevant – even given the mechanics of modern social media.  A lot of people will resent this, see it as a threat.

The Right wants me to identify with something more specific, like a religiously influenced donation to help a poor child in Africa, hopefully to “save” the person.  So that’s a cause greater than self, saving other people’s souls?  Sounds presumptious, pushy, unwelcome.  Look at what Mormon missionaries are expected to do, knock and proselytize their faith.

This does sound like the old dichotomy about winning arguments as against winning converts. A good example might be expecting an absolutely commitment against government surveillance and decryption (as in the Apple-FBI case) and accept the “faith” of a libertarian cohort group.  But the actual issue is more than that.  It can take on an existential character.

Another good example could be the mode of participation in the debate on issues ranging from paid family leave to marriage equality.  My concern is not just that members of one “group” have a legitimate ‘need”; providing it can require expropriation and demand sacrifices of others; things have to be “paid for”.  (So much for Bernie Sanders and the “gimme’s”).

Lately, I’ve been approached more often than I used to be, to go do certain social functions, even half-join certain groups.  A couple times in the past, my relation with a group would break down because I haven’t tried hard enough to be really part of the group and read between the lines of what was going on.

I am not cool about being introduced to people my own age just for match making or social-only purposes.  But online, I will suggest people who are working on something in common to hook up.  You have to be careful and respectful doing this.  But sometimes it works.  It’s maybe the beginnings of becoming an “agent”.

I’ve had people friend me on Facebook and then post a religious message on my timeline, or an appeal for aa donation with good intentions, or even tag me to imply I am personally involved in their causes.  It asks for a commitment that is far from intellectually or journalistically “objective”, that makes group preferences.

I did explain, on the International Issues blog Feb. 27, how I do look with some prejudice at the idea of “sponsoring” people or children overseas without a very specific commitment.  How about that at home?

I have to say, for me, Michael Burry is a bit of a “hero” to me (the doctor turned investment-shorter played by Christian Bale in “The Big Short”). He seemed to eschew too much personal contact with people, but he set out to prove himself right and teach everybody a lesson. And he was “right”.

Tuesday, March 01, 2016

Pet-sitting company in Texas sues consumer after cease-and-desist regarding a "non-disparagement" clause


Here’s another case of a non-disparagement clause being enforced, this time by a pet-sitting company (“Prestigious Pets”) in Texas, which apparently does not prevent such clauses.  (Texas is an easy state in which to litigate about a lot of things, especially patents.)  The story on Consumerist is here.  Apparently the company started with a cease-and-desist demanding that the consumer take down the review.  When the review stayed, the company sued for $6700 for violating a “non-disparagement injunction.”  Some of the language in the contract clause had been adapted from Kleargear.  The consumer had complained about billing practices as well as the actual service.
  
The incident was mentioned on Meredith Vieira today.  There was a view expressed that most people who bother to write reviews at all do it to sound off, so many or most reviews are negative.  (Angie's seems to ask for reviews by email, in an attempt to get satisfied consumers to participate and restore some balance.)  Co-host Lance Bass says he won’t write any bad reviews in 2016.  But he has a beef against the customer service of most airlines – but who doesn’t? Reviews of contractors and retailers are a lot more likely to be negative than consumer reviews of films and media items on Amazon or Netflix (and "the opinion rule" is a lot more likely to override everything when reviewing media anyway.) 

In some states (probably Texas) the breach of contract is what matters;  the "truth" of the consumer's statements is not a defense because the tort is not really "libel".  I wonder what Kitty Kelly would think. 
    
CBS DFW reports the story here. Fox News also has a story

Yelp! says it is removing reviews anyway that generate unusual media coverage  even though under Section 230 it doesn’t have to.  So now Yelp’s own statement can attract controversy.

Do non-disparagement clauses apply to public social media posts (Facebook especially) as well as "review sites"?  Would they apply to personal blogs?  It would sound like it.  

The Senate has passed a law prohibiting non-disparagement clauses, and sent it to the House. Philosophically, many conservatives in Congress are likely to oppose it in the name of protecting small businesses from “attention seekers”.  
  
I do not write reviews of specific service providers on review sites myself.  This doesn’t have the same value to me as blogging about issues.  But I don't recall being shown a non-disparagement contract before, although it could have been in fine print somewhere.