Sunday, November 29, 2015

NSA stops collection of phone metadata; how much difference does this make?; more on the NSL and non-disclosure requirement

The NSA stops collection of phone metadata as of 11:59 PM Nov. 28, but will switch over to much more targeted surveillance, according to many news stories, such as this story by Mark Wilson, here.

 This is all the result of the “USA Freedom Act”  (wiki ).

The Patriot Act had expired June 1, story.

Did phone metadata help ferret out terrorism? The general consensus online is no, not much.    But the inability to break encryption stored wholly within devices seems to have been very relevant to the recent attacks in France.   And right now European surveillance seems much more vigorous than ours.

Update: Dec. 1

Note this story by David Kravets of Ars Technica on a federal judge's ordering the disclosure of a little of a National Security Letter served on an ISP (link). The NSL is odious in that the recipient is not allowed to disclose any of it (like on social media) even though it may be harmful to the party. 

Saturday, November 28, 2015

Yelp! able to prevail in a challenge to the integrity of its reviews in a shareholder suit

The New York Times is reporting that a U. S. District Court Judge in San Francisco has dismissed a lawsuit against Yelp! brought by shareholders, who claimed that the site had been manipulating reviews in favor of “paying” advertisers, who might have felt extorted to buy ad space.  The link is here. The judge felt that shareholders should understand that any strategy to screen user-generated content is not foolproof.  I chuckle a bit at this in conjunction with another potential issue down the road, Section 230.
I pay a small membership to another site, Angie’s List, and get email prompts for reviews.  But I’ve used very few household services in recent months and most of the time they are with contractors I know.  (There was a dispute with one after the derecho in 2012, but I simply don’t think it’s prudent to carry these out in social media – for reasons well documented in this blog.   I’m not into destroying reputations, and I’ll come back to that soon.)  Angie always says, “You can’t pay for a review on Angie’s List” and I tend to believe her.  Yet I see schemes occasionally for sefl-published authors to pay for book reviews and promotions.

Thursday, November 26, 2015

Trump's recklessless and insensitivity on his soap box reminds me of some incidents in my own life that I now regret

Donald Trump has behaved in a manner as tasteless as I had in an incident in my own ninth grade (1958), as detailed in the first chapter of my first “Do Ask Do Tell” group, where I made fun of a student who had experienced epilepsy in an algebra class.  I heard about that from the school nurse.  Of course I regret it, and I could say I’m left with wondering about the 14-year-old brain.  It could have resulted in my spending a year in alternative education and changed the course of my life.
But Trump apparently appeared to mock a disability of reporter Serge Kovaleski, as related by Jose A. DelReal in the Washington Post Thanksgiving morning, story here. The reporter had been on Trump’s case back in the 1990s, but then written a story shortly after 9/11 about FBI and law enforcement probes of possible terror cells in northern New Jersey.  The Post offers the 2001 story by Kovaleski and Frederick Kunkle here.

The New York Times, on Nov. 24, in a piece by Jim Dwyer, had debunked Trump’s claims about visible celebrations across the river in New Jersey after 9/11, in a piece here.

The Post also notes, in DelReal’s story, that its syndicated columnist Charles Krauthammer, who consistently writes about terror threats (and did so particularly after 9/11, addressing issues like nuclear threats), and seems very concerned about social and personal resilience as a moral value, is himself disabled.

For all his talk about making America great again, Trump seems to take what he has for granted. “I’m rich. Really rich.”  He even wrote a book, “How to Get Rich”.  His recent behavior seems shocking, when one considers how on “The Apprentice”, he seemed to have a very good handle on the importance of customer service in how he ran all the contests, and how he consistently found great “kids” to be contestants (even Omarosa and, of course, Troy McClain).

Wednesday, November 25, 2015

Citizen journalist Nydia Tisdale indicted for "resisting arrest" (so to speak) when being removed from filming a GOP rally on private property

Citizen journalist Nydia Tisdale has been indicted for one felony charges (obstruction of an office) and two misdemeanor charges in Georgia when she resisted a sheriff deputy’s removal of her from a GOP political rally where she was trying to film.  Patch has the story  (by Crystal Dixon) here.  A CBS station has an earlier story here.

It’s interesting and ironic to see the “right wing”, with its emphasis on free speech, objecting to being recorded in a manner that reminds one of left-wing campus speech codes or even the idea of media-free “safe zones” for demonstrations (which has come up in connection with Black Lives Matter).

She had been trying to record Nathan Deal and David Perdue at a GOP rally.  She maintains that she has the right to record and report what was going on, but the rally was on private property. OK, more extreme elements of society will say they have a right to plan in secret on private property.  I remember spying on a meeting like this back in 1972 (left-wing).  They spoke to their own choir, and would have resented outsiders.

Nydia tweeted this "Community News" story

Tuesday, November 24, 2015

EU's "data protection regulations" would expand on "the right to be forgotten"

Jeremy Malcolm and Aylin Akturk have a discussion on Electronic Frontier Foundation of The European Union’s proposed “data protection regulations” where privacy of personal data is seen as a separate fundamental right.  One problem is that the concept is getting merged with the “right to be forgotten” and can result in takedowns by service providers, without even a notification of the content author, when compared to the DMCA.  The story (“Unintended Consequences”) link on EFF is here.

The writers point out that hosting providers (rather than just forum moderators) could take comments when challenged by individuals asserting this supposed privacy right.  The same might apply to blog postings, or to entire articles on hosted sites.

It would seem to complicate things further that the site might originate in the USA.  It’s true that some services (Blogger) set up separate country domains for their services to allow country-specific enforcement of special case legal orders.  For example, this practice is already in place for informing EU visitors about cookies on ads in US-authored blogs, here.

The European Union is likely to have a very see-sawed debate on privacy (and even freedom of expression) on the Internet given recent events in France.

Sunday, November 22, 2015

Generation Y supports suppressing speech critical of some minorities; the culture of "begging" online

The Pew Research Center is reporting that Millennials, or Generation Y (essentially, born 1980-2000) tend to support (at least at a 40% rate) the idea of government-regulated ”safe zones” for minorities protecting them from offensive or critical speech. Jacob Poushter reports on the group’s site reports here.   Valerie Richardson reported the story in the Washington Times on Friday here.

A related idea is campus speech codes, and even “no media” zones for protests.  Although campuses are generally private property, I rather feel that journalists should be able to report what happens in outdoors areas normally visible to many people.

Part of the issue is the idea of limiting or coloring speech to meet the needs of a particular group.  Although I understand the point of “black lives matter”, focus on one group can be overshadowed by genuine greater threats to everyone (terrorism), so I find it difficult to be dedicated to one group’s narrow issues, even if the groups’ members have been treated with grave injustice (consider how this used to be with gay rights).

The Your Money column of the New York Times by Ron Lieber has two articles today that caught my eye. One piece concerns the “Go Fund Me” site, “Going online to plead for help” in print, or “In defense of the personal crowdfunding campaign” here.  I generally don’t respond to individual appeals online (by any media) unless I already have some connection to the party.  I keep some giving at “arms length”.   In many particular cases, people did not prepare very well with insurance, so the system did not work for them (or maybe it would have failed them anyway.)  Keeping charity less personal was the culture I grew up with, and as I’ve noted in some columns here (especially around February 2012) the attitude toward the personal aspect of giving is changing, partly as a paradoxical result of online culture.  I’m also rather put off by the idea of trying to making something honorable out of victimhood (much less martyrdom). My own perspective is colored by my own history with the Vietnam era draft. Males could be required to serve by conscription (but deferred if privileged enough); if they were badly maimed in combat they were called casualties, rather than victims, but neither term is of much help to their families (most of all intimate partners).  Of course, it can happen to me (from nature, or hostility), and there is more to go into than I have time for today.

Lieber has an earlier column somewhat related, “teach children to give by telling them how much your family has been given” here.

Update: Nov. 25. 2015

Kathleen Parker has an op-ed "Well, don't blame the students" on p A15 of the Washington Post Thursday, here. The online title is more explicit, "For thin-skinned students, we have nobody to blame but ourselves".  The article expresses disapproval of rewarding prizes or accolades to less competitive students merely for "trying".

But David Boren writes on p. 37 of the Nov. 30 issue of Time Magazine, "Zero tolerance is the only way to stop racism".

Update: Dec. 1, 2015

Note Oklahoma Wesleyan University President's Everett Piper's statement, "This is not daycare", link. 

Saturday, November 21, 2015

Mike Huckabee sued for unathorized use of "Survivor" song in rally opposing gay marriage and supporting Kim Davis

Frankie Sullivan, who wrote the hit “Survivor” song “Eye of the Tiger” has sued GOP presidential candidate Mike Huckabee (and/or his presidential campaign) for using the song (apparently words and music) in a rally supporting Kim Davis, the Kentucky clerk who would not allow same-sex marriage licenses to be signed with her name.  The music had been used (and authorized) in the film “Rocky III”.  This incident comports with recent concerns by EFF of both SLAPP suits and particularly using the DMCA takedown against political or social adversaries, disrupting their speech,  for using material in a way that will probably be shown to be fair use later.

ABC News has a story where Huckabee says the suit is vindictive, and politically motivated since Huckabee’s views, as expressed in the rally, disagree with those of the writer.

Rolling Stone has an account of the suit here.

But there was an earlier story discounting rumors of the suit at "That's fake" here.  Some media accounts before had also claimed Kim Davis would be a defendant

Friday, November 20, 2015

CNN reporter suspended for a "partisan" tweet, reminding speakers of the loose definition of journalistic objectivity

A CNN reporter has been suspended for two weeks after a “politically correct” tweet that CNN says does not conform to standards of journalistic objectivity.  The tweet referred to a House bill affecting the ability of Syrian refugees to come to the United States, link here.

The journalist was Elise Labott, and was sent under the handle “@EliseAbbottCNN” which, admittedly, identifies CNN in the account name.  The tweet text read “House passes bill that could limit Syrian refugees. Statue of Liberty bows head in anguish.” Her account link is here.  This morning she has another post apologizing for “editorializing”.

Hada Gold has a story on Politico here.

ThinkProgress has a story (on Facebook) in which Jedd Legum compares Labott’s speech to that of Don Lemon, who about a year ago did a video op-ed in which he urged young black men to “pull up your pants” and simply behave with less hostility when in public.  The TP story has an interesting image of the CNN sign near Columbus Circle in Manhattan in winter.

In the Washington Post, Erik Wimple expressed the idea that the CNN suspension occurred because Labott’s tweet was viewed as partisan (in the sense of established political parties, not in the generalize sense that I often apply to the word elsewhere), whereas Lemon’s were not viewed that way (and from the fact that Lemon is African-American himself, advising others on how to compete and perform in our society).

Journalistic objectivity seems to be a pliable concept.  In the mid 1990s, a Tacoma  WA newspaper transferred an open lesbian to copy-editing saying her public activism (over gay rights) had compromised her journalistic objectivity, and the Washington State supreme court backed the paper.

I’ve covered journalistic “conflict of interest” in my own situation before.  One issue is that in my posts, I interject a lot of personal flavor and experience.  If I were writing under contract for someone else, I do realize I could not do that.  Right now, as an independent, I think I add something, but circumstances could change.

Thursday, November 19, 2015

"Rightsizing": yes, that word has been applied to me

One cloudy afternoon in late October, I found a tabby cat had come into my garage.  She followed me outside to the driveway, and became very vocal, in a way normally expected with an owner.  She even had a collar.  She might have been in estrus, but I think this was something deeper.  She was pregnant, and wanted to find a home or garage to have and nurse her babies.  Somehow she knew this would not be welcome back home. She seemed to be “trusting” me.

I understand she may have finally had the litter in a neighbor’s yard.  But I thought this encapsulated another idea:  I didn’t have my own children, but I can be “conscripted” to take care of OPC, other people’s children, or the elderly, or disadvantaged, whether human or not.  Yes, that has moral implications.

I’ve had a few other encounters with “wild” animals.  One time a female cardinal got trapped in the garage.  I let her out.  Since then, she sometimes watches from the porch when I go out.  On the day of Hurricane Sandy in 2012, a crow chased me indoors twice when I tried to go out just before the storm came.  The storm was not nearly as severe at my location as had been expected.  But animals seem to notice dangers like this and the people in their domains exposed to them.   Once in Shenandoah, I encountered a mother black bear and her cub.  Nothing happened, as I stayed back and let them stay together.

Yesterday, some PBS stations broadcast the final episode of David Eagleman’s “The Brain”, where the host explored the possibility of moving human consciousness to non-biological platforms, to achieve immortality.  Nevertheless, if you visit the Monroe Institute, south of Charlottesville VA, you encounter a whole thought system that claims to provide evidence of the soul’s survival as part of a “family” after passing, to prepare for another incarnation (which might be on a different planet).  Rosicrucian thinking seems similar, and may allow for soul identities to become distributed or combined (as in some of H. Spencer Lewis's writings).  If you look at the whole of contemporary modern physics (cosmology, and quantum mechanics), it seems as though consciousness is a component of the universe (or multi-verse) that cannot be destroyed any more than energy (equals matter) can.  Indeed, having been a live and possessing free will, it’s hard to conceive of not existing, and I believe I will “know” when I’m gone.  (How this observation affects animals, from carnivores up, especially cetaceans, is a good question; my feline solicitor certainly could “think” and communicate.) The tendency for the universe is to reproduce consciousness, leading up to free will, where it can, to oppose entropy.  A biological platform is the only one we know to do this.  If may well be that only one in a million stars can provide a planet that can support life like ours, a low yield.  But if consciousness reproduces, the time span of the universe could be infinite, and we could be early arrivals (13 billion years is not a lot when compared to trillions in the future).  But Eagleman’s show suggests there could be other, even “simpler” models for reproducing consciousness in the universe.

All of this, of course, brings up religion and faith.  In particular, I don’t relate very well to the profuse emotion often seen with much religious practice, especially Pentecostal Christianity.  I can’t “turn myself all over to the Lord” or believe something in scripture just because someone in authority tells me to, or even expect a God to intervene in my life in such a personal way.  Science may well support the idea of intelligent design, but it also informs us that nature is normally impersonal, even a but random, in how it works.  Luck matters.  Because conscious beings have unequal circumstance and genetic endowment, moral tension arises.  There is natural and unavoidable tension between freedom and individuality (and innovation that benefits others), and equality and stability.  Because no one person can be morally perfect (as perfection itself requires a contradiction, or violation of quantum physics), everyone “sins” so the need for purposeful intervention may rarely happen.  So, yes, the miraculous narratives of Abraham, Moses, Jesus Christ, Muhammad, and even Joseph Smith, can make sense even in physics, but they are infrequent. So events that make faith personal, however rare, may happen, and when they do, they add irony to a life’s narrative.

I write this post to cover the idea of external pressure, perhaps symbolized by the feline quest the other day, or perhaps by my long period of eldercare from 2003-2010, which is not something I had the right to choose or “unchoose”.  Those of us who are “different” and who sometimes fantasize seeing ourselves as “special” often face a lot of pressure from others to go along with the “common good” of the group, even to the point of giving up part or all of our personal objectives, which sometimes are seen as so much fantasy.  Sometimes the pressure comes from local and personal bullying or ridicule or ostracism. Or it may come from government (hence the increasing appeal of libertarianism until 9/11).  It may come from nature, in terms of sustainability concerns (like climate change).  Or, as we have seen in the past week especially, from determined enemies who will declare war against us.

Generally, the external pressure comes from the idea that someone “like me” is beholden to others and dependent on others, and therefore owes it back to do what others say. "Karma" seems like an applicable term, or call it "character assessment".  In the earliest part of my life, a lot of this had to do with fidelity to gender roles – an inherited or conscripted obligation as a young male to be prepared (and suitably fungible) to protect women and children for the good of family and community. It could become a moral matter because, as we saw with the military draft and deferment system, if I “got out of it”, someone else would be more exposed to the sacrifice.  But if it is a moral matter it is a very different matter than “personal responsibility” going along with adult choices.  But that obligation morphed into the idea that having children and family was a moral responsibility to one’s parents (I was an only child), which made homosexuality a proxy for many other “moral” issues in my coming of age.

Indeed, had I “spent more” on practical skills, at the sacrifice to my own gifts (music, bookishness), I probably would have felt differently about women and been more interested in having children, or accepting the idea that I should function as a parent to them (like the cat’s).

Later in life, as “gay rights” became more credible, I found a shift in emphasis.  Now people were concerned that I “cherry picked” whom I wanted to associate with (don’t we all?) and didn’t focus on the needier members of the group, or identify with the real needs of the group.  Again, practical skills mattered, but they could be more “feminine” in nature.

Then, once I moved into self-publishing, the concerns morphed again.  People would complain that they can’t make money if I can give away material for free and don’t try harder to “sell” according to conventional business models.  People make attempts to “recruit” me to join them to sell their causes (as if I shouldn't be above a narrow focus on immediate need, which can be overshadowed by attention to external issues). I can be presented as the bourgeois parasite who doesn’t face the same problems now as others and can remain insular.  There is a certain danger of being in this position, which has the potential in a particular case to turn ugly.  It takes only one psychopath.  If you didn't "earn" what you have and it is taken away from you by force, you may not get it back, even if the force was wrongful.  (Well, Scarlett O'Hara got it back.)

Libertarianism casts morality in terms of accepting the responsibility for one’s choices, and even recognizes the importance of practical skills for the workplace as good for socialization in general.  (We could get into a separate discussion of wage inequality and stagnation.) Libertarianism tends to disregard common requirements imposed on everyone.  Nevertheless, ideas like interdependence (largely familial and local), patriotism (broadly defined), mediating inequality, attaining resilience, supporting sustainability, and supporting reverence for life (which can change with culture and might even include some animals now) are all part of one’s moral compass, as it would be constructed by almost any reasonable religious creed.  In recent years, resilience and preparedness has gotten attention that I had not paid much attention to since my days of dealing with the military draft.

For someone in my situation, people of faith sometimes have a convenient word, “rightsizing”.  It’s a bit off-putting.  The idea appeals particularly to people in intentional communities.  The word will probably appear in an indie movie title someday.  The concept also appeals (unfortunately) to some authoritarian politicians, who can "sell" the idea that discipline at a personal level is critical to a whole "tribe's" survival.  But the possibility or likelihood of abuse doesn't make the idea itself wrong.
One of the most serious "existential" threats to me would involve becoming someone else's bargaining chip or pawn, and being forced to abandon personally chosen goals (of an "unbalanced personality" in the Rosenfels polarity theory) to those arrange by others.  Of course I can fail in normal terms of life performance and behavior, but this idea that I could indirectly compromise others has become more serious since 9/11.  It would seem that at some point, personally chosen goals still need to serve real needs and reinforce personal value of others.

Libertarian values emphasize personal productivity and like to see it recognized.  Yet at some level it logically matters if the "content producer" really cares about "customers" -- the people who will use his or her ideas.  It's always one's right in a specific circumstance to refuse an interaction with an unwelcome person.  But when this becomes a pattern and is seen as OK, it helps set the state for the eventual growth of totalitarian extremism -- whether fascist, communist, or theocratic -- and expropriation in a formerly free society.  When virtue becomes its own end, it shields people from having to care when it really makes them uncomfortable to do so.

Wednesday, November 18, 2015

Plaintiffs still use DMCA takedown as a "SLAPP-like" tool; Even "private videos" subject to copyright inspection, at least on Facebook

Electronic Frontier Foundation has a story Wednesday morning about what sounds like “SLAPP-like” use of the DMCA Takedown, filing frivolous and legally marginal notices for YouTube takedowns based on included music snippets.  The case at hand involved opposition to a San Francisco ordinance that could hurt Airbnb, and included a tiny extract of the “Hotel San Francisco” lyric.  The story by Elliot Harmon is here. It turns out that SF voters turned down the ordinance, story by April Siese here.   And I see that people are being nudged toward participating in the sharing economy, wise or not, like in this story about how to use Airbnb behind your landlord’s bacj here.   Washington DC has somewhat cracked down on the issue, by the way, because of loud parties and abusive renters. 

There is also controversy this morning over Facebook’s using a Copyright bot to inspect “private” videos, a concept akin to YouTube’s Content-ID, story here. EFF has a detailed explanation, again from Elliot Harmon, here. It seems you can’t share “infringing” videos even with a limited list of friends.  
The Facebook private video inspection brings up another question to my mind:  is it possible to develop technology to scan private cloud backups for infringement in totally private material?  After all, we know from the lawsuits of a few years ago, it is still illegal to download (as from P2P) a song illegally even to keep it for private use only.  The same logic would apply to photos and videos, maybe. 

I rarely record at discos because I know that copyright enforcement (even for hip-hop) can be so strict, even if the business motivation for enforcement seems silly and even self-defeating.  Fair use should be considered in takedown situations more than it is;  in many cases, small clips would simply give original artists free advertising.  I’ve considered it OK to tape QA’s at film festivals (though not the films themselves, where there is no fair use allowance at all) and music events, although in only one case I was asked to stop.  
In the meantime, consider digital citizenship.  You can (and should) support young artists and filmmakers by purchasing their content in small volumes legally, through Amazon or other sites, when possible.  
Wikipedia attribution link for Transamerica Building photo by Daniel Schwen, under Creative Commons Share Alike 2.5 license. 

Tuesday, November 17, 2015

Debate of encrypted message apps and social media abuse increases following attacks in France

First, let’s start today’s discussion by noting a relatively “minor” story about an “exception” to the DMCA for archives if games when the game itself is stored on the player’s machine, by Kendra Albert, Nov. 13, here at Electronic Frontier Foundation here.

That takes me to a tangential consideration, that games seem to provide one way of “encrypting” and disguising messages, even beyond steganography.

I’ve been a member of Electronic Frontier Foundation since the late 1990s, when EFF helped me a sub-litigant against COPA (the Child Online Protection Act), finally overturned after cyclical litigation in 2007. In 2005, I mentioned both DADT and the COPA battle in a party line meeting Gregory Smith and Chris Pratt from “Everwood” at a gathering at King of Prussia, PA, and Gregory (“Rookie Blue”) wrote an autograph to me addressing me as “EFF”.

In recent years EFF has been relentless in protection of consumer privacy and shielding from surveillance.  It has sometimes advocated people learn to use TOR and similar products.  It has supported the very charismatic Edward Snowden, Glenn Greenwald and Laura Poitras, at least spiritually. Sometimes this gets to look like villainizing the NSA, with its sprawling campus a little closer to Baltimore than Washington, a bit east of I-95, and plans for a super data center in Utah. (I was there once, or at Fort Meade, while in the Army in 1969, for an Armed Forces Chess Championship.)  It has promoted universal adoption of “https” for all websites, even amateur ones.  One major force behind this advocacy is protection of users in non-democratic countries, Islamist or not.  About 20% of my own traffic is from outside the US, and half of that comes from authoritarian countries where often it is banned (not very effectively, it seems), including especially China and many Islamic countries, as well as much of Africa.  Some of my Twitter and Facebook followers come from those parts of the world (including some journalists).

Given the obvious recent inability to European and sometimes US intelligence to intercept the encrypted chatter of terrorists, especially associated with ISIS but probably older forms of Al Qaeda and other groups as well, it’s obvious that there will be controversy over encryption. As of now, it appears that criminal or enemy elements have been able to use “off the shelf” commercial encryption packages from many companies, some in Silicon Valley.  US law enforcement argues it needs a “back door” to look at encryption, but there is debate as to whether this is technically possible. NBC News has one of the most detailed stories right now, by Keith Wagstaff, concerning encrypted messaging apps, here.  Senator Rand Paul’s solution had been “get a warrant” but that apparently doesn’t work.  GOP candidates particularly are torn between protecting privacy and people’s lives at the same time.  A government “back door” might endanger legitimate users from criminal mischief.

The encrypted message issue is somewhat distinct from the broader social media issue, were certain platforms, especially Twitter, have been widely abused to recruit “impressionable” young men from disadvantaged backgrounds in Europe and sometimes the US.  Twitter may be under the most pressure because its financial performance recently has not been good.  What follows initial recruiting involves an area far removed from familiar social media platforms and blogs, into the deep web, and especially the use of quickly disappearing messages – the antithesis of self-publishing as I use it.  One particular product seems to be “Telegram”

Of particular note is the idea of "war".  Late Monday night, a CNN commentator said that ISIS had "declared war" on everyone in the world who did not believe in their religious ideology, and the commentator said that we have to balance "Staying Alive" and personal liberty.  (Hint: in 1983, the "life" meant that John Travolta waxed his entire body, and some people noticed.)  There are legal questions concerning Article 5 of NATO if France declares war (or whether you can declare war on an unrecognized state).  But in general, war brings social resiliency into the moral debate over individual rights.
There will be people who say we should shut down all “getekeeperless” user generated content, a proposal which I hope is infeasible because of the economic investment Wall Street has in social media, if for no other reason.  (They can add national security to arguments about cyberbullying.)  Before the mid 1990s, you didn’t have a voice unless you could make yourself “popular” doing something else and could “sell”.   Somehow, we managed, didn’t we.  I get flak myself about the fact that my own speech doesn’t make other people money, and they have families to support when I don’t (or I may be coasting on the politically incorrect “inherited” or “unearned” wealth).  This has a potential to become a dangerous issue in my own life, but that I’ll leave for another time.

Update: November 18, 2015

NBC Nightly News, in a report by Pete Williams, says that the newest "self-lock" switch put into smart phones also prevents police in the US from examining them even with court permission if left behind by criminals.  The cell phones found in France this week apparently weren't locked.  But one reason for the locking is also to make the phones less attractive to thieves who rob consumers on the streets, or so I thought.

CNBC has a story on Silicon Valley's take with a story by Harriet Taylor, with an interview with Darren Hayes, who says that the problem is partly that companies (especially Apple) have put the encryption key right on the device. 

Sunday, November 15, 2015

YouTube takedowns can continue because of "contractual obligations" as well as usual DMCA Safe Harbor rules

YouTube publishers will need to be aware of a rather arcane legal aspect of the Terms of Service issues.  YouTube can take down allegedly infringing videos for copyright under DMCA Safe Harbor, of course, but it can refuse to restore a video where a normally legitimate counterclaim (including Fair Use) is made, if YouTube has a “contractual obligation” to the original content owner.

The relevant case is Lenz v. Universal, which Amul Kalia explains here on Electronic Frontier Foundation, here. Note that the video in question can still be viewed on “Liberal Viewer” here.

This problem has not been reported much outside of EFF, but Michigan Standard has a story on it here.

Again, so far, embedded infringing videos don’t seem to cause much of a problem in practice.  I don’t embed videos that I believe are likely to be infringing (and sometimes you can tell – whole movies free from obscure accounts, with recent posting and relatively few visits), but I have no way of knowing prospectively that a video can’t be taken down.  Occasionally I get a “video does not exist” or video that has gone private.

Friday, November 13, 2015

FCC will not require "do not track" from "edge providers"

The Federal Communications Commission has announced that it will not seek regulations imposing mandatory “do not track” on what it calls “edge providers”, which are your big social media companies enabling user-generated content, and might include major companies offering shared web hosting to ordinary people and small businesses at low cost.  The FCC link is here. Mandatory "do not track" could undermine the business models that under-gird user-generated content (although not as much as gutting Section 230 could).
Electronic Frontier Foundation supports this restrained approach, in an article by Jeremy Gillula, link here. That’s because these providers face competition and don’t control “all” of your traffic the way your telecommunications provider (like Comcast or Verizon) does.  There is a difference between providing a service platform, and providing the actual Internet connection itself.

Thursday, November 12, 2015

Campuses weigh free speech against "hate" and plain insularity; protesters want "media-free safe spaces"; Spike Lee on social media and violence

Nick Anderson and Susan Svrluga have an important story Wednesday, Veterans Day, on campus “speech codes” in the Washington Post, front page, titled “On campus: an intense debate on free speech; colleges try to balance protecting ideas and fighting bigotry” Online the title is more explicit, “Can colleges protect free speech while also curbing voices of hate?”, link here.  Other speech interests in our culture.  Social media and even book self-publishing services have terms of services classes banning “hate speech”.

But there is a problem in what is “hate speech”.  Sometimes indifference to what others perceive as victimization gets construed as “hate speech”.  Think about how the debate over the textual meaning of the phrase “black lives matter” plays out.  The recent shakeup at the University of Missouri (noted ironically for its journalism school) seems to be one more about inaction and insularity of officials than about their speech.  The Missouri case is illustrates another problem: activists wanted a "media-free safe-space" to protest; they don't like reporters or "voyeurs" with no personal stake in their experience (a concept clearly written in a line in the latest "Spectre" movie), New York Times story by Richard Perez-Pena and Christine Hauser, Nov. 11, here.

Is, for example, positing a moral debate on “behavior” viewed as hateful if the debate would hold people born with different neurological attributes still held absolutely to some standard of behavior for a supposed “common good”?

It’s interesting that movie film producer Spike Lee (“Chi-Raq”, to appear in December) says that social media has perpetrated a culture of hate and of taking matters into one’s own hand – at least in comments on CNN last night.  Pretty disturbing stuff.

Wikipedia attribution link for picture of Journalism school im Columbia, MO (passed through once around 1967), public domain, author Mojourcomm,

Update: later today

There is a disturbing story out of Howard University related to Missouri, in the Daily Beast, here. And now there's this at the University of Missouri, story here.  The news keeps raining down.

Wednesday, November 11, 2015

New York State attacks fantasy football, despite the skill required in assessing "players" (similar to a general manager's skill)

There’s been a ruckus in the news about fantasy sports, specifically, fantasy football.

CNN Money has an article that makes the case for the legality of Internet fantasy sports, on the theory that skill is involved in assessing players to be selected onto “teams”.  I think you could make a comparison to chess.  In fact, chess would be a good skill for any field or general manager of any sports team to have.  The Washington Nationals know I have often said this.

So now the New York State attorney general tries to shut down two fantasy football sites (Draftkings and FanDuel) for NYState customers, story. At least they were told not to accept bets.

As a boy, I (and friends) invented all kinds of “fantasy leagues” in the real world, especially baseball.  We made cardboard stadiums and implemented boardgames on them to result in real games with reasonable baseball scores.  We invented outdoor games to be played in backyards with limited numbers of players (which got replaced by whiffleball)  But we actually played the games and kept statistics on paper in our leagues.  In fantasy leagues, the idea seems to be to award points to teams based on how the drafted players actually did.

It isn’t hard to imagine inventing a computer game that takes fantasy players (as drafted) and then constructs the plays of an actual new simulated game with random number generators.  In baseball, you could add physics (the trajectory of a batter fly ball) and the dimensions of the home team outfields.  You could assign probabilities for fielding errors.  But this would involve skill and would be legal if done, I would think.  Has anyone tried this? It would sound as if it could make money (and it’s really a kids’ “cardboard stadium” idea – we used to make them every summer in Ohio back in the 1950s).

Actually, Baseball reference assigns “Pythagorean calculations” of expected records of teams based on runs scored and runs allowed.

Tuesday, November 10, 2015

Even bigger libel suit levied against Rolling Stone in UVa fraternity case

A third, and now the largest by far in claim amount, defamation or libel lawsuit has been filed against Rolling Stone, this time by the fraternity Phi Kappa Psi, for $25 million, as related in the Washington Post Tuesday morning by Larry O’Dell in an Associated Press story, here.  Other suits had been filed by recent UVa graduates along with three former fraternity members, and by a dean at UVa. Sabrina Rubin Erdely is also named as a defendant in the new suit.  The earlier litigation had been covered here July 19, 2015.

Eugene Volokh  (Ukraine-born UCLA law professor, a fact that must be interesting to him now given Vladimir Putin’s behavior))  discusses the case in the video above. The cases are not as easy for the plaintiffs as they might appear.  The University of Virginia, as an adjunct to the state government, could not sue at all, because governments can’t sue individuals for defamation according to the First Amendment.  He also is prospectively skeptical of a big suit by the plaintiff, but it has just happened.
Is this case an example for ordinary bloggers?  It might be so if a libelous blog post or YouTube video (more likely) or even other social media post went viral.  But a plaintiff will usually have to show some level of malice or reckless disregard for the truth, to follow Volokh’s comments.  Amateurs might be less capable of rigorous fact checking but probably, in most cases, not have much reason for malice.  The notion of “gratuitous speech” might prove troubling, it seems to me.  I do wonder how Volokh’s comments would play out in the world of lawsuits against consumers posting negative reviews on Yelp! and other sites, or on the use of “non-disparagement” clauses (Nov. 4).
Picture: downtown Charlottesville, VA, Sept. 2015 (mine).  I notice here even in my own blog post title the word "levied" is a bit excessive.  Maybe I should have said "filed".

Friday, November 06, 2015

Major "right of publicity" case and "transformation" presented to Supreme Court; Facebook's "real names policy" still under criticism despite some changes

Daniel Nazer of Electronic Frontier Foundation has an important story about the right of publicity, in a case EA v. Davis (or Electronic Arts v. Michael Davis et al), about the incorporation of the identities of some NFL players in a computer game (Madden NFL).  There is another case where a comic book publisher was bankrupted for a minor character with a nickname of an NHL player.   The Ninth Circuit tried to use the “transformation” concept in a right to publicity case, which Electronic Frontier Foundation argues as senseless.  The case is before the Supreme Court, which has been urged to take the case (docket )  Joining EFF in briefs is The Organization for Transformative Works , and the Comic Book Legal Defense Fund.

EFF says, imagine if any celebrity could ban any other party (especially an amateur) from referencing or depicting him or her.  I don’t think I’ve quite encountered this in my own practice.

In a tangentially related issue, EFF, in an article by Nadia Kayyali, argues that Facebook will ultimately need to abolish its “real names” policy, especially in other, less democratic, parts of the world, here.    The article presents embed of letters from the Nameless Coalition (Verge story ) and from Facebook.  It does seem true that in more modern countries, most attacks of stalking are committed by those not using their own names.

Wednesday, November 04, 2015

Congress considers outlawing consumer "non-disparagement clauses", as lesser-known tool against even "truthful" negative reviews

NBC Nightly News covered the problem of “non-disparagement clauses” in retail contracts today.

The basic problem seems to be that consumers get sued or “fined” for breach of contract in making critical remarks online, even if the remarks are true.  So this is not really about libel (where truth is a defense) or defamation.

These contract provisions, often buried in fine print, are legal in every state except California (which also has strong anti-SLAPP laws).  However they would only apply if a consumer really made a purchase and signed a “contract” (which possibly could be digital or electronic).

A Ms. Palmer testified before Congress recently.  Her husband had ordered a product from KlearGear, which she says never arrived.  She wrote a criticism on the Ripoff Report (see posting Nov. 1 about a somewhat similar case).  The company tried to “fine” her for $3500 and sent a collection agency after her.  The couple counter-sued in Utah, as shown in this filing. Ars Technica has a story about the judgment against the company here.  Due to a technicality, the non-disparagement clause really wasn’t valid after all.

Senators John Thune (R-DA), Brian Shatz (D-HI) and Jerry Moran (R-KS) have introduced a bill S. 2044, “The Consumer Review Freedom Act” to make these clauses illegal (technically, they wouldn’t violate the First Amendment if enacted by private parties rather than government).  Their press release is here. The GovTrack reference is here.  Many smaller businesses say that the online world of user-generated criticism makes it impossible to continue, because they are so affected by one negative comment.  And some companies with good reputations actually can "advertise" (so to speak) with some review companies.

Tuesday, November 03, 2015

Today's elections go back to paper instead of voting machines; more on social media downstream responsibility

Today, I voted in a local Arlington VA election, and noticed that the county has gone back to paper ballots (machine-scanned), and away from Windows-based voting machines.

I had covered the controversy over voting machines on an election day posting here in November 2008. I had worked as an election judge three times (from 2005 to 2007) and taken the tech training on supporting the machines.  But in case one of them crashed, all you did was restart it (with a power button) and it usually worked. At the time, the operating system had been Windows XP.

The election judge process today was better in that there was electronic verification of your voting (rather than a manual checkoff on paper).

Working as an election judge offers low-pay and a 17 hour day where you have to be there by 5 AM.
On another matter, Micah Lakin Avni has an important op-ed in the New York Times, “The Facebook Intifada”, link here, where the columnist argues that social media companies should be required to make more responsibility for removing hateful or inciting content.  His characterization of the new kind of terrorism (with another supporting sublink) is chilling, “ordinary young men and women inspired by hateful and bloody messages they see online to take matters and blades into their own hands.”  I could relate it to the indignation that comes with inequality (and accompanying insularity), which I have personally witnessed earlier in my own life.

Sunday, November 01, 2015

FTC pursues weight loss products company that had tried to enforce "gag orders" on consumers

In September 2015, the Federal Trade Commission took legal action against a related group of manufacturers of weight-loss products, apparently based in Florida, known as Roca Labs, for litigating or threatening to sue consumers who wrote negatively online about the products or particularly who complained to Better Business Bureaus, as detailed in this press release. The company had claimed that some consumers had violated “anti-disparagement” provisions in “contracts” when they bought the products.  The FTC claims the company has an “adversarial relationship with the truth”.  The FTC complaint is here.

The product was supposed to appeal to patients who might otherwise face gastric bypass surgery.

NBC Washington aired the story Sunday morning.  One consumer claims a process server was at her home, waiting or trolling outside, at 7 AM when she left for work, an aggressive or boorish treatment of customers that sounds shocking (NBC News story by Herb Weisbaum ).

Media have reported that more businesses are trying to impose “gag orders” on consumers.  These may include medical providers.  (They may particularly target consumers viewed as vulnerable or socially less appealing.)  I haven’t encountered this myself.  But I would wonder if gag orders are enforceable.  Truth in an absolute defense to libel in the US (not always overseas).  There could be issues with “conflict of interest” in some employment circumstances, as I’ve gone into before.
 Thursday, on a day trip, I merged onto the Maryland Beltway right behind a business truck for the Hadeed Carpet Cleaning company, a litigant discussed here Jan. 9, 2014, with regard to the issue of identifying anonymous reviewers.  Techdirt has a log on the case here.