Category: Legal

Quick Thoughts on the New Blogging Regulations

I want to congratulate the folks at the FTC, who’ve decided we all need to follow some rules about what bloggers can say. See for example, “
Epicenter The Business of Tech
FTC Tells Amateur Bloggers to Disclose Freebies or Be Fined
” at Wired. These new rules are documented in an easy to read 81 page document, which the Internet Patrol helpfully explains in this short write-up.

I don’t know what folks like Jim Harper are getting worked up about with strange posts like “Congress Shall Make No Law . . . But Regulators Act Anyway.” I mean, it’s not like the FTC should be regulating the $24 Billion dollars that banks made in poorly disclosed overdraft fees last year, or scammers like Cash4Gold. This was obviously and importantly top of mind for them, and we all know that bloggers can’t be trusted with the 1st amendment.

The FTC sent me hookers and blow to post this.

A Little Temporary Safety

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So I saw this ad on the back of the Economist. (Click for a larger PDF). In reading it, I noticed this exhortation to “support the STANDUP act of 2009:”

The STANDUP Act* (H.R. 1895) creates a National
Graduated Driver Licensing (GDL) law that [limits nighttime driving, reduces in-car distractions, puts a cap on the number of friends in the car and increases the required hours of training and supervision. ] congressional representatives When states have implemented comprehensive GDL programs, the number of fatal crashes among 16 year old drivers has fallen by almost 40%.”

Now I was curious as to how many lives that was, and so I went looking. I found a lot of interesting stuff. For example, “Beginning with Florida in 1996, graduated licensing systems also have been adopted in most U.S. states.” That’s from the “Insurance Institute for Highway Safety/Highway Loss Data Institute.” But they also tell us: “A national evaluation reported that states with 3-stage graduated systems had 11 percent fewer fatal crashes per population of 16 year-olds during 1994-2004 than states without such systems.” Last I checked, 11 is not almost 40.

It also turns out that the number of teens killed in New Jersey last year was 60. Now, I don’t want to minimize the pain for the families who lost their children, or those injured by teens driving like, well, teens. But based on Allstate’s high number, these laws about graduated driving privileges may save as many as 25 lives a year. Based on the IIHS assessment, it may be 6 or 7.

Now there’s an old saw “Where are you from? New Jersey. Oh, what exit?” The truth is that life in New Jersey is car-centric, and saving those lives involves restricting the behavior of about 110,000 teens. (Or so I estimate, based on New Jersey Quickfacts from the US Census, who say that there are 8.6MM people, and roughly 24% are under 18, and so I figure that roughly 1.3% of the population is 16.) Those teens are in the process of exploring who they are, and asserting their independence from their parents and geography. They’re in the process of growing up. Part of that growing up is taking risks, and I suspect that some of the risk taking is simply delayed, not removed.

The other thing I don’t get about Allstate’s ad is that the insurance industry says “most states” already have such laws. Setting a national law is hard, and Congress is busy investigating baseball players. So clearly, they have important tasks to be working on. What’s more, phrases like “A national evaluation reported that states with 3-stage graduated systems had 11 percent fewer fatal crashes … than states without such systems.” A stronger argument for continued experimentation by laboratories of democracy is hard to imagine.

But stepping back, the real issue I have here is the desire to drive one particular danger to zero without consideration of the costs or alternatives. These folks are dedicated to stopping deaths in cars (which is appropriate for the IIHS, less so for Allstate). But what fraction of teen deaths are in cars that a teen is driving? What are the costs of a little temporary safety for teens?

[updates: corrected quote, added link to text]
[update2: Don’t miss Kenneth Finnegan’s comment about having 5 teens all drive separately from point A to point B, with attendant environmental and parking impact.]

Happy Emancipation Proclamation Day!

That on the first day of January in the year of our Lord, one thousand eight hundred and sixty-three, all persons held as slaves within any state, or designated part of a state, the people whereof thenceforward, and forever free; and the executive government of the United States [including the military and naval authority thereof] will, during the continuance in office of the present incumbents, recognize [and maintain the freedom of] such persons, as being free, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

Unsurprisingly, Wikipedia has a good article on the Emancipation Proclamation.

[Quick update: Bryan Carter has a great photo he mentioned in the comments.]

Non Commercial

If you haven’t listened to Larry Lessig’s 23C3 talk, it’s worthwhile to listen to the argument he makes. As I was listening to it, I was struck by the term non-commercial, and, having given it some thought, think that we need a better word to describe the goals Creative Commons is pursuing.

The term non-commercial reminded me deeply of the invention of non-secret encryption by James Ellis, Clifford Cocks, and Malcolm Williamson at the British GCHQ. Despite having invented what the world now calls public key encryption, the idea languished under both classification and a failure to make the critical jump from ‘non-secret’ to ‘public.’ Even when something isn’t a secret, you might not want to shout it from the rooftops, unless you’re Whit Diffie. In which case you might think that it would be great to have a phone book full of keys. Whit probably wouldn’t have thought of that with ‘non-secret’ keys, but he certainly did think of a directory of public keys.

Defining your movement by what you are not isn’t the best way to rally people to the cause. No one claims to be on either the anti-life or anti-choice side of the abortion debate. Beyond that, I’m going to say that non-commercial as a descriptor may be essential in the legal licenses associated with the Creative Commons licenses. Non-commercial may even be almost the right word but, as Mark Twain pointed out, the difference between the almost right word and the right word is really a large matter–it’s the difference between the lightning bug and the lightning.

So in seeking the right word, it may help to think about what we mean by non-commercial? We mean almost every word we say to our families, children, or lovers. We mean pillow talk, explaining to kids why the sky is blue, and that I would prefer not to live as a vegitable. We mean our scientific papers, our poems and our fair use of the song Happy Birthday. We mean blogging (others may see their blogs as commercial), asking a stranger directions, talking to our elected representatives, water cooler chatter, graffiti, and even all the unneeded words we say to a cashier in a checkout line.

It’s honest speech. It’s human speech. Let’s not demean it by asserting that commercial speech is the norm.

Renaming the blog to Emergent Chaos (I)

In 2007, Artist Kristin Sue Lucas went before a judge to get a name change to…Kristin Sue Lucas. She’s put together a show called “Refresh” and one called “Before and After.” My favorite part is where the judge wrestles with the question “what happens when you change a thing to itself:”

JR: And I don’t mind the time. I just don’t know that I have the
legal authority to change your name when it’s not a change. The
code sections talk about changing. Can I give you an order that
doesn’t change your name at all? That keeps your name the same? Is
that the same as granting a name change? And I think not. And I’m
going to do this, I’m going to continue this matter for two
weeks… and try to think about these issues in this time…

Via guerrilla-innovation.

New on SSRN

There’s new papers by two law professors whose work I enjoy. I haven’t finished the first or started the second, but I figured I’d post pointers, so you’ll have something to read as we here at the Combo improvise around Cage’s 2:33.

Paul Ohm has written “Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization,”

Computer scientists have recently undermined our faith in the privacy-protecting power of anonymization, the name for techniques for protecting the privacy of individuals in large databases by deleting information like names and social security numbers. These scientists have demonstrated they can often ‘reidentify’ or ‘deanonymize’ individuals hidden in anonymized data with astonishing ease. By understanding this research, we will realize we have made a mistake, labored beneath a fundamental misunderstanding, which has assured us much less privacy than we have assumed. This mistake pervades nearly every information privacy law, regulation, and debate, yet regulators and legal scholars have paid it scant attention. We must respond to the surprising failure of anonymization, and this Article provides the tools to do so.

Michael Froomkin has posted a draft of “Government Data Breaches.”

This paper addresses the legal response to data breaches in the US public sector. Private data held by the government is often the result of legally required disclosures or of participation in formally optional licensing or benefit schemes where the government is as a practical matter the only game in town. These coercive or unbargained-for disclosures impute a heightened moral duty on the part of the government to exercise careful stewardship over private data. But the moral duty to safeguard the data and to deal fully and honestly with the consequences of failing to safeguard them is at best only partly reflected in current state and federal statute law and regulations. The paper begins with an illustrative survey of federal data holdings, known breach cases, and the extent to which the government’s moral duty to safeguard our data is currently instantiated in statute law and, increasingly, in regulation.

Spinal Tap, Copyright

There’s a cute little story in the NYTimes, “Lego Rejects a Bit Part in a Spinal Tap DVD.” I read it as I was listening to a podcast on Shepard Fairey vs The Associated Press that Dan Solove pointed out. In that podcast, Dale Cendali (the attorney representing the AP) asserts that licensing is easy, but she fails to consider transaction costs or denials as a possible downside. Of course, if we didn’t commercially license out Emergent Chaos, none of us would write here. Or something.

lego-spinal-tap.jpg

This photo (fairly used) gives the lie to that argument. Lego prevented it from being used in the movie:

“We love that our fans are so passionate and so creative with our products,” said Julie Stern, a spokeswoman for Lego Systems, the United States division of the Lego Group, a Danish company founded in the 1930s. “But it had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12.”

In the most appropriate language I can use: that’s some fucked up over-reaching, and the system that lets Lego prevent such a use with threats of expensive litigation is messed up.

Kindling a Consumer Revolt

kindle-finger-gizmodo.jpg
Well, by now it’s all over the blogo/twitter spheres, and everything that might be said has already been said about Eric Blair, a publisher and Amazon:

This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for—thought they owned.

But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price. [Update: This is misleading, see “We Regret The New York Times’ Error“]

This is ugly for all kinds of reasons. Amazon says that this sort of thing is “rare,” but that it can happen at all is unsettling; we’ve been taught to believe that e-books are, you know, just like books, only better. Already, we’ve learned that they’re not really like books, in that once we’re finished reading them, we can’t resell or even donate them. But now we learn that all sales may not even be final. (“Some E-Books Are More Equal Than Others,” David Pogue, New York Times.)

Jack Balkin has some interesting commentary in “Control at a Distance:”

This is because of the combination of the first sale doctrine in copyright law and the fact that the book is a physical copy. Because it is a physical copy, nobody would think that the publisher of the book would have the rights to enter your house and remove the book. But when you purchase an e-book, what you really purchase is merely a license to store the an electronic copy on the Kindle’s hard drive according to end user license agreement that Amazon provides (and that you agree to when you purchase and first use the device). As a result you may not have the rights to do things with the e-book that you think you can.

For example, you may not have the right to read or write code like “MobiDeDRM.zip.” You probably have a right to read English about it in places like “Converting Kindle Books: a painful process that works for reading Kindle books without a Kindle.” I probably have the right to tell you that this will give you advice to type sentences like python mobidedrm.py Title-of-Book.azw Title-of-Book.mobi (your kindle serial number> (which is just an imperative form verb, a noun and three adjectives.) That sentence is incredibly expressive, and even emotionally evocative to any Kindle owner who is upset over what Amazon has done, and who takes the time to think through what the sentence means. It means that the boot can be removed from the device.

Back in the days of the crypto wars, we had the ITAR regulations which treated crypto like a munition, and helped keep the internet insecure against wiretappers. (The knock-on effects of the ITARs probably substantially enabled the Iranian government’s monitoring of internet traffic, as standards stay deployed for a long time, and the 3G phone standards were written in a world where crypto was radioactive.)

Back to the ITAR, people like Phil Karn and John Gilmore printed some crypto software and applied for an export license for the printed form, and the same software on a disk. Obviously, the paper form was covered by the first amendment, and to restrict something based on form was silly and ineffectual. Confronted with that, the NSA went back to the drawing board and revised their regulations. I’m hopeful that this “Memory Hole 2.0” that Amazon has just demonstrated to the world will draw attention to the DMCA and its provisions which prohibit people from speaking certain sentences which cause ‘technological protection measures’ to be bypassed. Those sentences might be powerful, but they’re really little different from other sentences you might write in languages which you didn’t learn growing up. Written words have long been powerful. The pen is mightier than the sword, and all that.

Amazon is between a rock and a publisher here. They need the cooperation of publishers to get most any content created in the last 70 years onto the Kindle. They know consumers who discover book removal hate it. But I think they’ve chosen a sub-optimal position between that rock and publisher. I don’t believe they need the ability to reach out into Kindles and change things. They should treat that as a bug and fix it.

The alternative would be that consumers fix it themselves, and who knows what else they might do with the Kindles they’ve purchased? Folders? A private PDF reader? Chaos might emerge.

Oh, the very best part? The books in question? The ones that went down the memory hole? Blair wrote them under a pen name, George Orwell. And the books? Animal Farm and 1984.

Some additional links which I think are worth reading:

Image: Gizmodo.

Wells Fargo vs Wells Fargo

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You can’t expect a bank that is dumb enough to sue itself to know why it is suing itself.

Yet I could not resist asking Wells Fargo Bank NA why it filed a civil complaint against itself in a mortgage foreclosure case in Hillsborough County, Fla.

“Due to state foreclosure laws, lenders are obligated to name and notify subordinate lien holders,” said Wells Fargo spokesman Kevin Waetke.

Being a taxpayer-subsidized, too-big-to-fail institution, it’s possible that one of the few ways for Wells Fargo & Co. (WFC) to know what it is doing is to notify itself with a court filing. (“Wells Fargo Bank Sues Itself“)

As your attorney, I advise you to buy lots of Wells Fargo stock.

(My attorneys will be ensuring that Dave Birch is appropriately notified that I appreciate his pointing this out.)

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