The Faculty Lounge

Technology in the Courts

    Much of my scholarship addresses cyberlaw. In order to keep up in this field, I have to follow the developments in two fields: law (obviously) and computer science. For this second area, it helps that I am trained in computer science and spent several decades programming for a variety of businesses. As part of the process of keeping up with computer technology, I maintain my membership with the Association for Computing Machinery, the primary academic society for computer science.

    In this month’s Communications of the ACM, there was an interesting commentary entitled, “Technology Confounds the Courts.” It was written by Keith Kirkpatrick, apparently a non-lawyer. Comm. of the ACM, May, 2014, at 27. In the article, Mr. Kirkpatrick attempts to identify the reasons why our courts often do a poor job of understanding the computer technology that is involved in many modern cases. I found this commentary interesting as it examined a commonly identified problem within cyberlaw from the perspective of a technologist. Two of his points — the age of judges and the narrowness of decision-making — miss the mark. His underlying point — that judges need to understand technology — is sound although achieving the goal may be more difficult than he realizes.

The Misses

    Several times the author raises the average age of judges as a cause of their technological ignorance. See id. at 27 & 28. He also raises a somewhat related issue: the fact that our federal judges are appointed for life. See id. at 29. On these issues being a significant source of technological ignorance in the judiciary, I assert that Mr. Kirkpatrick is just plain wrong. A lot of us grey hairs have comprehensive knowledge of the current technology and how it is used. I could choose many examples, but I will highlight one of the professors I have always held in high regard, Frederick Brooks of the UNC Computer Science Department. According to his biography, Dr. Brooks is 83 years old. He has been a very important leader in the computer science field since the 1950s when helped develop the most famous line of mainframe computers ever, the IBM 360 series. He founded the computer science department at UNC where he is actively involved in researching virtual reality, hardly a backwater area of computer science. Similarly, most judges of my experience are not monk-like. They read the paper (probably online) and even Reddit. They serf the Web. Their exposure to technology is similar to others with busy lives. Mr. Kirkpatrick: age is irrelevant.

    The author also complains about the narrowness of many technological-related decisions. See id. at 28–29. Here, he needs to better understand our legal system. Because we live in a common law country, a fundamental aspect of the system is that the courts render as narrow of a decision as the facts allow. Rather than being a fault, seeking the narrowest grounds for decision has kept the common law functioning for centuries.

The Hit (Well, Mostly)

    Judicial ignorance of technology may not be complete, but its existence is impossible to deny. See, e.g., St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999). The harder question is deciding how this can be changed. Mr. Kirkpatrick advocates for a more specialized court using both the EU’s Court of Justice and the Japanese Intellectual Property High Court as examples. Kirkpatrick, Technology Confounds at 29. For the EU court, “the more complex selection and appointment process involving a disparate group of EU members ... are more likely [to result in judges who are] current on a greater variety of technologies.” Id. For the Japanese court, he suggests that its use of full-time technical advisors will result in more competence. See id. Of course, he did not need to go overseas for examples as the U.S. Federal Circuit with its patent expertise would also seem to qualify (although far from all of the judges appointed to the Circuit have technological backgrounds).

    Personally, I’m not sure how well a specialized, technology court would work. In the U.S., at least, we would still run into the “one supreme Court” language in Article III of the Constitution. Even if a technology court decided a case, it would be subject to an appeal the Supreme Court; indeed, this is the pattern with the Federal Circuit and the Supreme Court. In my area of cyberlaw, for example, the Federal Circuit often has a better understanding of the technology even though the Circuit might forget the broader purposes of the patent act. Ultimately, though, it is the Supreme Court’s often mistaken understanding of the technology that rules the day.

    More importantly, it is not clear that a technology court is practical. To start with, which technology? As Mr. Kirkpatrick’s article correctly points out, our court system has done a horrible job articulating a functional system of laws for computer software. Part of the reason for this is that even our more techno-centric court lacks any members with the relevant computer science training. The Federal Circuit has numerous judges trained in chemistry and other traditional scientific areas — as well as some trained in history and other liberal arts — but it does not have computer scientists. This is problematic as it has become impractical to be the technological Jack-of-all-trades that it was possible to be through the late 1800s or early 1900s.

    What that leaves is a suggestion in the article that our judges no longer pretend that they can understand all forms of technology without assistance. So, if a court recognizes that it needs help, where does it turn? One source that Mr. Kirkpatrick does not discuss is the lawyers who are representing the parties. There are numerous examples of case where the parties prepared a joint technology statement to help the court understand the issues. Of course, this only works where the parties agree about the technology — something that is less true in intellectual property litigation where defining the technology “your way” is often equivalent to winning. Further, it assumes that the legal team is sophisticated enough about the technology to be able to competently articulate it.

    The other possibility, of course, as Mr. Kirkpatrick suggests, is to encourage the judges to recognize their technological shortcomings and to appoint masters under Rule 53 to help the court determine the technologically based facts. Unfortunately, the limited nature of the rule and the requirements of the Constitution may interfere. Rule 53 only allows masters if both parties consent, Fed. R. Civ. P. 53(a)(1)(A), or if the case is a non-jury case and is “exceptional,” id. 53(a)(1)(B). The Constitution imposes two limitations on the use of masters: each parties right to have the case ultimately decided by a Judge appointed under Article III and to demand a jury trial in many cases.

    Even with the constitutional limitations, however, it would seem to be time to revisit the use of masters in technology cases within the federal system. For non-jury cases, the rule could be easily amended to make it clear that complicated technology underlying a case is an “exceptional condition” that the rule requires. Id. Obviously, the rule has to recognize the jury trial right provided by the Seventh Amendment. It would seem that a master’s report on the technology could be submitted to the jury to assist it in its decision-making in the same way that the report would be submitted to the judge in a non-jury matter. In both cases, the Article III or Amendment Seven decision-maker would be preserved while providing them with technological expertise from a neutral source.

Not so Fast

    The pressure seems to be on to convert our system of higher education into an online form, whether it be by moving standard classes online, “flipping” them, or converting them into MOOCs. The various praises for teaching courses this way seem to promise educational Nirvana for those who are brave enough join the online revolution and suggesting that those not in support have missed the boat. See, e.g., MoocGuide.

    Those eager to replace the standard education model might want to examine an article by Ferris Jabr in the November issue of Scientific American, Why the Brain Prefers Paper. This article summarizes the scientific literature on the differences in brain functioning between reading material on paper and reading it from a screen (of any kind). Of most relevance to the effectiveness of moocs and online education was the distinction described between “remembering” and “knowing” something. While remembering includes the datum itself as well as the context in which it was learned, knowing includes placing that datum into the context of a field of knowledge. It seems obvious that we seek to provide our students with knowledge of the law, not just a memorized set of data points. Consequently, we should seek out techniques that result in our students knowing what we have taught.

    What does this have to do with moocs? The article describes the results of studies that establish that

[s]tudents who had read study material on a screen relied much more on remembering than on knowing, whereas students who read on paper depended equally on the two forms of memory. [S]tudents who read on paper learned the study material more thoroughly more quickly; they did not have to spend a lot of time searching their mind for information from the text — they often just knew the answer.

Sci. Amer. at 53.

    As many of you know, my background before law school was in computer science. I do, indeed, have a propeller on my cap (and silicon in my blood). Nevertheless, I intend to maintain my current approach — have my students read materials in a book first and then help them contextualize it into the field of knowledge that is the law.

Social Media and the Law School Constituents

Upon accepting the appointment as Dean, I immediately ceased posting to my personal Facebook account and opened a new account using my decanal title. I did the same thing with my Twitter account, which I had really only started as a vehicle for keeping up with my teenage children. I kept the Linkedin account as it was since these connections and the use of the platform is more business focused. I'm learning Instagram, Pinterest and Google + now. Why? Because my students and alumni use these tools more often than email as a form of modern communication. We can debate the value of face-to-face communication and traditional memos and letters, but the bottom line is that if we want to capture attention and convey information, then understanding how each of these tools can be most effectively used is an important part of the job. I believe this wholeheartedly and prioritized resources to hire a
social media staff member who works with both our IT and Communications departments, as well as with individual faculty.

On the positive side of social media, I have used Twitter to find students in the building needed for a meeting or event. Funny, it has sometimes been easier to get a response from a tweet than from an email. At times, especially during Superstorm Sandy when our region was in chaos, Facebook proved to be the best method to communicate with masses of students. Alumni tend to read announcements of events on their Facebook news feed more often than opening up email blasts from the Law School that may be perceived to be "junk mail." In fact, the positive feedback about "the Facebook Dean" has been great. Countless alumni and current students stop me regularly to comment that appreciate
knowing what is going on at the Law Center "real time." I also use Facebook as a forum to share an interesting article about trends in legal education.  This sometimes generates discussion through comments – engaging students, alumni and faculty in on on-line conversation.  Using Linkedin has
enabled alumni to connect for referrals and to discuss upcoming networking opportunities, and it can be fertile ground for students to identify potential mentors.  In addition to my use of these tools (and on these I do all of my own posting), the Law Center and many departments/offices maintain their own Facebook pages as a means of communicating with students and alumni (e.g., Career Services, Student
Services, Alumni Affairs and the Library). The Alumni Office also set up a group on Linkedin where announcements can be posted and information can be shared with those in the alumni community who choose to join.

There are some drawbacks however. For example, this week at our adjunct faculty meeting, one faculty member commented on how she observed a student tweeting in class. She was tech savvy enough to "call him out" using his own game by sending him a tweet letting him know she was on to him and could read what he was doing. It stopped.  There have been times students have been “called out” by classmates because of comments made about peers and faculty on Facebook…sometimes while they were in class.  At first year orientation we include a session on social media ethics and professionalism.  It is possible that on law school sponsored social media sites, a participant may feel compelled to make a negative comment about the institution.  For private schools, they may have a choice of whether to allow the comment to be posted and/or whether to delete.  For public schools, however, it is possible that the sites could be considered a public forum, thereby implicating First Amendment issues.  Further, public schools may have to develop and administer record retention policies for postings on these sites to ensure compliance with state access to records laws.  It is a good idea to develop a social media policy.

In my opinion, the benefits outweigh the cautionary tales, and I urge my colleagues who are not engaged in this form of communication to experiment with one or more of the tools discussed.  I also invite you to send a friend request to me at Dean Patricia Salkin, to follow me on Twitter @DeanSalkin, or invite me
(Patricia Salkin) to connect on Linkedin.  

An Open Letter From a Genomic Altruist to a Genomic Extrovert

This post is part of Bill of Health's symposium on the Law, Ethics, and Science of Re-Identification Demonstrations. You can call up all of the symposium contributions here. We’ll continue to post contributions throughout the week. 

Dear Misha:

In your open letter to me, you write:

No one is asking you to be silent, blasé or happy about being cloned (your clone, however, tells me she is “totally psyched”).

First things first: I have an ever-growing list of things I wish I had done differently in life, so let me know when my clone has learned how to read, and I’ll send it on over; perhaps her path in life will be sufficiently similar to mine that she’ll benefit from at least a few items on the list.

Moving on to substance, here's the thing: some people did say that PGP participants have no right to complain about being re-identified (and, by logical extension, about any of the other risks we assumed, including the risk of being cloned). It was my intention, in that post, to articulate and respond to three arguments that I’ve encountered, each of which suggests that re-identification demonstrations raise few or no ethical issues, at least in certain cases. To review, those arguments are:

1. Participants who are warned by data holders of the risk of re-identification thereby consent to be re-identified by third parties.
2. Participants who agree to provide data in an open access format for anyone to do with it whatever they like thereby gave blanket consent that necessarily included consent to using their data (combined with other data) to re-identify them.
3. Re-identification is benign in the hands of scholars, as opposed to commercial or criminal actors.

I feel confident in rejecting the first and third arguments. (As you’ll see from the comments I left on your post, however, I struggled, and continue to struggle, with how to respond to the second argument; Madeleine also has some great thoughts.) Note, however, two things. First, none of my responses to these arguments was meant to suggest that I or anyone else had been “sold a bill of goods” by the PGP. I’m sorry that I must have written my post in such a way that it leant itself to that interpretation. All I intended to say was that, in acknowledging the PGP’s warning that re-identification by third parties is possible, participants did not give third parties permission to re-identify them. I was addressing the relationship between re-identification researchers and data providers more than that between data providers and data holders.

Second, even as to re-identification researchers, it doesn’t follow from my rejection of these three arguments that re-identification demonstrations are necessarily unethical, even when conducted without participant consent. Exploring that question is the aim, in part, of my next post. What I tried to do in the first post was clear some brush and push back against the idea that under the PGP model — a model that I think we both would like to see expand — participants have given permission to be re-identified, “end of [ethical] story.”

Reflections of a Re-Identification Target, Part I: Some Information Doesn’t Want To Be Free

[This post is part of the online symposium I've organized over at Bill of Health on the Law, Ethics, and Science of Re-Identification Demonstrations. Background on the symposium is here, and you can call up all of the symposium contributions here. We'll have more contributions into next week.]

I wear several hats for purposes of this symposium, in addition to organizer. First, I’m trained as a lawyer and an ethicist, and one of my areas of scholarly focus is research regulation and ethics, so I see re-identification demonstrations through that lens. Second, as a member of the advisory board of the Social Science Genetics Association Consortium (SSGAC), I advise data holders about ethical and regulatory aspects of their research, including issues of re-identification. I may have occasion to reflect on this role later in the symposium. For now, however, I want to put on my third hat: that of data provider to (a.k.a. research participant in) the Personal Genome Project (PGP), the most recent target of a pair of re-identification “attacks,” as even re-identification researchers themselves seem to call them.

In this first post, I’ll briefly discuss my experience as a target of a re-identification attack. In my discussions elsewhere about the PGP demonstrations, some have suggested that re-identification requires little or no ethical justification where (1) participants have been warned about the risk of re-identification; (2) participants have given blanket consent to all research uses of the data they make publicly available; and/or (3) the re-identification researchers are scholars rather than commercial or criminal actors.

In explaining below why I think each of these arguments is mistaken, I focus on the PGP re-identification demonstrations. I choose the PGP demonstrations not to single them out, but rather for several other reasons. First, the PGP attacks are the case studies with which, for obvious reasons, I’m most familiar, and I’m fortunate to have convinced so many other stakeholders involved in those demonstrations to participate in the symposium and help me fill out the picture with their perspectives. I also focus on the PGP because some view it as an “easy” case for re-identification work, given the features I just described. Therefore, if nonconsensual re-identification attacks on PGP participants are ethically problematic, then much other nonconsensual re-identification work is likely to be as well. Finally, although today the PGP may be somewhat unusual in being so frank with participants about the risk of re-identification and in engaging in such open access data sharing, both of these features, and especially the first, shouldn’t be unusual in research. To the extent that we move towards greater frankness about re-identification risk and broader data sharing, trying to achieve clarity about what these features of a research project do — and do not — mean for the appropriateness of re-identification demonstrations will be important.

Having argued here about how not to think about the ethics of re-identification studies, in a later post, I plan to provide some affirmative thoughts about an ethical framework for how we should think about this work.

Online Symposium on the Law, Ethics & Science of Re-identification Demonstrations

Over the course of the last fifteen or so years, the belief that “de-identification” of personally identifiable information preserves the anonymity of those individuals has been repeatedly called up short by scholars and journalists. It would be difficult to overstate the importance, for privacy law and policy, of the early work of “re-identification scholars,” as I’ll call them. In the mid-1990s, the Massachusetts Group Insurance Commission (GIC) released data on individual hospital visits by state employees in order to aid important research. As Massachusetts Governor Bill Weld assured employees, their data had been “anonymized,” with all obvious identifiers, such as name, address, and Social Security number, removed. But Latanya Sweeney, then an MIT graduate student, wasn’t buying it. When, in 1996, Weld collapsed at a local event and was admitted to the hospital, she set out to show that she could re-identify his GIC entry. For twenty dollars, she purchased the full roll of Cambridge voter-registration records, and by linking the two data sets, which individually were innocuous enough, she was able to re-identify his GIC entry. As privacy law scholar Paul Ohm put it, “In a theatrical flourish, Dr. Sweeney sent the Governor’s health records (which included diagnoses and prescriptions) to his office.”

Sweeney's demonstration led to important changes in privacy law, especially under HIPAA. But that demonstration was just the beginning. In 2006, the New York Times was able to re-identify one individual (and only one individual)  in a publicly available research dataset of the three-month AOL search history of over 600,000 users. The Times demonstration led to a class-action lawsuit (which settled out of court), an FTC complaint, and soul-searching in Congress. That same year, Netflix began a three-year contest, offering a $1 million prize to whomever could most improve the algorithm by which the company predicts how much a particular user will enjoy a particular movie. To enable the contest, Netflix made publicly available a dataset of the movie ratings of 500,000 of its customers, whose names it replaced with numerical identifiers. In a 2008 paper, Arvind Narayanan, then a graduate student at UT-Austin, along with his advisor, showed that by linking the “anonymized” Netflix prize dataset to the Internet Movie Database (IMDb), in which viewers review movies, often under their own names, many Netflix users could be re-identified, revealing information that was suggestive of their political preferences and other potentially sensitive information. (Remarkably, notwithstanding the re-identification demonstration, after awarding the prize in 2009 to a team from AT&T, in 2010, Netflix announced plans for a second contest, which it cancelled only after tussling with a class-action lawsuit (again, settled out of court) and the FTC.) Earlier this year, Yaniv Erlich and colleagues, using a novel technique involving surnames and the Y chromosome, re-identified five men who had participated in the 1000 Genomes Project — an international consortium to place, in an open online database, the sequenced genomes of (as it turns out, 2500) “unidentified” people — who had also participated in a study of Mormon families in Utah.

Most recently, Sweeney and colleagues re-identified participants in Harvard’s Personal Genome Project (PGP), who are warned of this risk, using the same technique she used to re-identify Weld in 1997. As a scholar of research ethics and regulation — and also a PGP participant — this latest demonstration piqued my interest. Although much has been said about the appropriate legal and policy responses to these demonstrations (my own thoughts are here), there has been very little discussion about the legal and ethical aspects of the demonstrations themselves. As a modest step in filling that gap, I’m pleased to announce an online symposium, to take place the week of May 20^th, that will address both the scientific and policy value of these demonstrations and the legal and ethical issues they raise. I’ll cross-post my own contribution here, but the full symposium will be hosted over at Bill of Health. Participants fill diverse stakeholder roles (data holder, data provider — i.e., research participant, re-identification researcher, privacy scholar, research ethicist) and will, I expect, have a range of perspectives on these questions:

Misha Angrist

Madeleine Ball

Daniel Barth-Jones

Yaniv Erlich

Beau Gunderson

Stephen Wilson

Michelle Meyer

Arvind Narayanan

Paul Ohm

Latanya Sweeney

Jennifer Wagner

I hope readers will join us on May 20.

Trolls

Nice little bit from artist Vi Hart over at Brain Pickings. Taming the Trolls.  A little uncomfortable psychoanalysis in the piece if negative comments get you down (which they do me from time to time). Brain Pickings is a great site and offers lots of wonderful tidbits of interest to academics and non-academics alike -- most of which have nothing to do with trolls and such.

Blackboard versus TWEN

This year I have switched from Blackboard to TWEN as a tool to augment my classroom teaching.  I mainly use these services to post PowerPoint slides, announcements, links to relevant materials and resource materials.  In other words, I use them as a resource rather than relying on them as a teaching tool.  I know some schools have contracts with one or the other service, and some offer professors and students the option of using either.  So I'm trying TWEN this semester.  Lots of people have said to me that they prefer TWEN to Blackboard, but I can't immediately see why.  It is very easy to use, but the newer versions of Blackboard are pretty easy to use too for the purposes of posting information, announcements, resources.  Are there other functionalities that are handled better in one or the other platform?  What are your experiences?

What's the Business Model for MOOC's?

A recent article in the Chronicle of Higher Education discussed the questions surrounding how major universities hope to profit from participating in Massive Open Online Courses, or MOOC's, run by for-profit ventures like Coursera.   The article describes a contract between Coursera and the University of Michigan that lists several methods for turning the MOOC's into money.  The following passage expresses some skepticism:

When I showed the Coursera contract to Trace A. Urdan, an analyst at Wells Fargo Securities who focuses on education-related companies, he found it "ironic" that major universities are embracing online education when they have been dismissive of earlier efforts by for-profit companies like the University of Phoenix.

"These are two of the most arrogant types of institutions—Silicon Valley companies intersecting with these elite academic programs," he says. "Neither of them considers that anyone else has come to this place before they've arrived. They say, We're here now, so now it's sort of legitimate and for real."

And he argues that the plan relies heavily on all of the money colleges are already spending on professors and facilities. "It's a way to carve out some extra money on the top of the existing program, but it's not an alternative system that is going to solve the cost crisis of higher education," he says. "It's being subsidized by incredibly high-priced education."

Ms. Koller insists that the courses the company is offering differ fundamentally from those at the University of Phoenix. "Their online effort is really traditional teaching mediated by the computer as opposed to using the tech in a fundamental way," she argues. "There's no economies of scale there. What we're doing is one instructor, 50,000 students. This is the way to bend the cost curves."

The comment on economies of scale caught my eye.  On the face of it, that seems plausible -- a MOOC appears to up the productivity ante substantially, moving to astronomical student-faculty ratios.  But what is actually produced in the process?  In other words, what value do the 50,000 students get out of the experience, and how much will they be willing to pay for it?   The article mentions two possibilities:

Coursera's leaders say they are actively pursuing only two of the moneymaking ideas on the list: charging students who pass the courses a small fee for a certificate, and serving as a matchmaker between students looking for jobs and companies seeking qualified employees.

Both of these possibilities, however, threaten to increase the costs of the venture and erode the economies of scale.  For the certificate, Coursera must determine how it will show that someone "passed" a course.  This will require identity verification as well as a credible form of assessment.  For the job matching, Coursera must offer some service on top of a job clearinghouse if it is to add value beyond existing job matching sites.  That is, they presumably want to claim that the MOOC's help identify better potential employees, which adds value to the matching.  But that brings us back to the need for credible assessment.

[As an aside, the above reminds me of the Epic 2020 video, which while compelling in its presentation, never spoke to the question of credible assessment.]

All of this makes me wonder where we are heading, and whether the enthusiasm for MOOC's will ultimately wane.  A Wall Street Journal article from Friday intersected with this thought -- here's the quote that made me think:

"Investors who were excited about social networking have learned just how immature these companies' business models are," said Michael Shinnick, who manages $2.5 billion for Wasatch Advisors of Salt Lake City, Utah, and doesn't own Facebook shares.

Are we back to the jump first, monetize later philosophy, based on a misapplication of network effects, that characterized the tech last bubble?  Or are MOOC's onto something more substantial?

 

 

A Twitter PSA

Twitter is intuitive in most ways, and many of its social norms are not all that different from other forms of social media (for example, don’t be this guy). But there’s one Twitter rule that is not remotely intuitive, yet goes to the heart of the purpose of Twitter and is seemingly unknown to many people who tweet, even those who tweet a lot. Since so many law profs tweet, herewith this brief PSA. I'll return to substantive blogging in short order.

Many, many tweets begin with the @ sign, e.g.:

@SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! [Yay!/Boo!] #ACA

This tweet will show up in the timelines (or Twitter “feeds”) of only those people who follow both you and @SCOTUSblog. That’s presumably not the result you want in this case, since anyone following @SCOTUSblog already knows that they’re reporting the outcome of the ACA case.

If you want your tweet to appear in the timelines of everyone who follows you, all you have to do is begin your tweet with any character other than the @ sign. This is why you’ll see so many tweets beginning with periods that look like typos, e.g.:

. @SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! #ACA #RobertsIsA[Hero/Traitor]

Of course, this works, too:

Big #ACA news: @SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! #TheWorldIs[Redeemed/Over]

Once you know about it, this is actually a feature rather than a bug of Twitter. Twitter offers three levels of publicity/privacy, each appropriate to different tweets:

1. Private DMs (direct messages): These are exactly like Facebook’s message feature, i.e., they’re private messages between you and the recipient (and the FDA, if you're an FDA whistleblower or someone who communicates with them, apparently with the approval of FDA counsel).
2. Less public tweets that begin with the @ sign (sometimes called @replies): These will only appear in the timelines of those who follow both the sender and the recipient, so often relatively few people will see them. However, anyone with an internet connection can look at your Twitter profile page, e.g., https://twitter.com/SCOTUSblog, which shows every tweet you’ve sent, whether it begins with the @ sign or not.
3. Fully public tweets that don’t begin with the @ sign (tweets, proper): These appear in the timelines of everyone who follows you. In addition, as above, anyone with an internet connection (whether they have a Twitter account or not) can navigate to your profile page and see all of your tweets.

As an aside, when we’re through with the NFIB postmortem and return to discussing the actual law that that case upheld, can we please go back to calling it PPACA, rather than the ACA? Puh-PACK-uh is so much more fun to say.

Faculty Hiring, and the Facebook Question

You are on your law school's faculty appointments committee.  You and your committee colleagues pull several FAR Forms that merit consideration and discussion, perhaps leading to an invitation to interview with your team at the AALS Faculty Recruitment Conference (memo to self:  block out October 11-13, 2012).

At some point during the recruiting process, your team is likely to request a current c.v., teaching evaluations, a law school transcript, a research agenda, a list of references, copies of scholarship, etc.

Will your team ask for a candidate's Facebook password?

If you are the candidate, how will you respond to such a request?

Some thoughts here.

Democracy Without a First Amendment

One topic I've been asked about a lot lately is how Australian democracy runs smoothly without any clear express constitutional right to free speech.  There is a relatively restricted minor implied right to free speech in the constitution but nothing in writing and nothing like the rights that exist in countries with express rights (including the U.S., Canada, New Zealand, the U.K. etc).  With thanks to Eric Robinson for bringing this to my attention, Australia is now considering a new government funded regulatory body to oversee the media.  Story here. 

Australia has also been able to regulate things like violent video games and violent or sexually explicit movies much more effectively than countries with stronger constitutional speech protections.  So the question is whether in the age of globalized, converging media and entertainment outlets, how will domestic governments deal with the increased internationalization of information more generally, particularly when domestic governments have such different stances, and powers and reflect different cultural values about the media.

Distance Education: Losing the Thread

I blogged a while back about an online course I have been taking which is purely via distance education (ie no residence requirements, weekends, seminars etc).  There is also no webcasting or videoconferencing so it relies completely on electronic discussion boards, online assessments and .pdf teaching materials.  I mentioned previously that one of the advantages of the course is its anonymity.  As it is not a professional training course, anonymity actually seems to be a good thing and people are not abusing the privilege of working with pseudonyms by writing inflammatory or inappropriate items.  However, one serious downside of this method of teaching (particularly with no instantaneous form of communication with classmates) is that we are completely reliant on discussion threads to communicate with each other.  As such, sometimes one can lose the thread (literally) of an interesting discussion.  It is very hard to keep track of all the discussions threads one may have contributed to, and sometimes a promising conversation gets lost in the shuffle.  I wondered if anyone has experienced better ways of teaching/learning online than use of discussion threads?  Or better ways of organizing discussion threads than merely query by query?  Because the course is international, the discussion thread modality deals really well with the time differences between classmates, but doesn't deal well with organizing discussions.

Malware as Social Network

Several times in recent months I have received emails (often relegated to my spam folders) that appear to be from people I actually know, but which, on further examination, are spam sent from malware on a friend's computer that sends junk emails to everyone in that person's email contact list.  I'm sure many of us have experienced this.  But recently one of the spam emails I received was from a close family friend that I had lost contact with many years ago.  In all due diligence, I emailed him to let him know that he might want to check his computer for malware and, in so doing, I also realized I should send him the news from our family and ask about his.  He apologized for the spam, said he'd check out his computer and continued the personal correspondence.

So now I'm wondering if these malware/spam programs can be considered a new form of "social networking" in the sense that they bring people in touch who would not otherwise have been in touch with each other.  Is malware the new Facebook?

Submission Guide for Online Law Review Supplements

John Marshall law prof Colin Miller (a friend of the blog and an Oscar trivia master) has updated and posted his Submission Guide for Online Law Review Supplements on SSRN.  Here is the link.

Facebook and Ex Parte Communications

Might a witness's post on a judge's Facebook page, wishing the judge a happy birthday, constitute an ex parte communication?  The South Dakota Supreme Court addressed that issue in an opinion handed down this week.  You'll find the opinion here.

(Hat tip:  South Dakota law prof Roger Baron.)

Listservs and New Law Profs

It's that time of year when new law profs are making book selections, pondering recitation and attendance policies, looking forward (with a range of emotions) to the first day of class in August, etc.  We posted some friendly advice for new colleagues last summer.  Here's the link.  And we've touted a primer on law school teaching, which might be quite useful to recent hires.

One of my new entry-level Campbell colleagues asks this question (I'm paraphrasing):  what lawprof listservs are available for the subjects that I'll be teaching?

If you've got suggestions, please drop them in the comments!  Thanks!

Pre-Loaded Audio and Video Players

OK - so I realize I absolutely must spend less time on Amazon and less time trying to find more time to read more books.  But I did find something new on Amazon earlier today and did a little digging.  Apparently, there's a new way of enjoying books and movies via "pre-loaded" digital book and video players.  In other words, you don't buy content and download it to an MP3 device, but rather you buy hardware (a player) pre-loaded with the content you want.  There's a company that sells a whole catalog of audio and video products this way.  But I don't understand the marketing/pricing.  A popular novel costs around $50 to $60 in this format and it's not clear to me whether the device can ever be re-used to play other content or whether you have to buy a new hard copy device for each book (or movie).  If so, this is a pretty expensive pricing model.  Even a hardcover new release book only costs $20 to $30.  So I'm not 100% sure who the market is for these products and whether the manufacturers are pricing themselves out of the market anyway.  With so many models available for listening to and viewing content relatively cheaply and flexibly, it's hard to understand where this one will fit in.

Browsing, Not Buying

Several friends have remarked to me lately about how sad it is to see so many bricks and mortar bookstores going out of business.  It appears that one obvious reason behind this has been the exponential growth of e-publishing businesses.  E-books can be significantly cheaper (although not always) than paper copies, delivery is instant anywhere anytime, books can be read anywhere anytime without having to lug them around in a backpack.  So much for the reading side of the equation.  But what about CHOOSING books to read?  Are e-devices better than physical bookstores for browsing?  I to tend to gravitate towards completely different books depending on whether I'm browsing online or in a bookstore.  I'm often attracted to items in a store that may never show up on a 'recommendations' list on, say, Amazon.  However, like many of us I suspect, if I find something I like in the store I'm probably tempted to just download it to my Kindle rather than purchasing a hard copy.  So is there any economical model under which we could maintain the advantages of bricks and mortar book browsing while retaining the benefits of e-books?  Does it have to be either/or?  Will libraries overtake bookstores as places to browse shelves for new inspiration on what to buy? 

Law Review Articles on Amazon

One of my colleagues recently noticed that a number of law review articles are available for sale (or rather digital download) at amazon.com  An example is here.  She asked me if there were any legal problems with this and I replied that I didn't think so because presumably law reviews will not license the articles to amazon unless they have authority to do so under their publication agreements with the individual authors.  We continued going back and forth on the issue because my colleague was uneasy that someone might be making money commercially from her work in a manner she had not contemplated.  The pricepoint for these downloads from amazon is around $10 per article (or really $9.95 because that sounds so much cheaper).  My assumption was that if individual law review articles are priced that way, it's probably due to the request of the publisher and amazon is probably getting a relatively small cut.  In other words if this is like other electronic downloads that amazon does, amazon can release kindle books much more cheaply when the paper version publisher does not set a particularly high price (or when there is no paper version publisher and the author is engaging in e-publishing direct through amazon).

So, aside from the fact that very few people are probably buying articles from amazon that they could access from other sources more cheaply (or free), if less conveniently, I would assume that it wouldn't be amazon making huge profits from this.  Are the law reviews actually making any money out of it then?  And, if so, how does the pricing of an individual article compare to the pricing of an entire volume of the relevant law review?  And how are journals deciding whether to release material on amazon and, when they do, are they releasing all of their published articles or just select articles that the editors think may appeal to a more general audience?