The Internet turned 25 years old today.  At least that is what several articles in the press are reporting.  That anniversary is somewhat in dispute, but hey, crowdsourcing is never wrong, right?  The news report on the local CBS radio outlet pointed out that anyone under 25 would not know a time without the Internet.  Well, duh.  Perspectives change.  I never knew a time without television, radio, telephones, cars, or any of the other technological advances that allow individuals to roam and communicate freely.  It’s evolution.  Anyone remember the telegraph?  Think of Morse code as packets sent over a wire to a receiving station, though a bit more manual than what we are used to today.  Evolution.

The Internet itself has evolved.  I don’t need to go into things like Gopher sites (remember them?).  I remember complaints in the early days when advertisers and merchandisers established web sites to sell us stuff.  Some believed this was the wrong direction for a medium with such a strong educational potential.  The Internet is now an enthusiastic marketing paradise for consumers and companies alike.  Education is in fact one of the products.

I want to harken back to a few events at the dawn of the Internet age that come to mind when these anniversaries pop up.  I don’t know if anyone remembers Usenet.  It was (and is still is) a global discussion board for all kinds of topics.  Law academics and technologists would use it to share ideas about the distribution of legal materials.  The discussions were substantive and interesting.  A message appeared in 5,000 newsgroups one day in April, 1994 from the law practice of Cantor and Siegel.  It offered firm services in regard to a green card lottery.  The discussion groups exploded in outrage.  My point about this is outrage or not, spam should join the terms death and taxes as certainties.  Wikipedia has more information about this.

The second event happened a little bit earlier.  Anyone remember Lotus 1-2-3?  It was the spreadsheet software of choice before Microsoft Excel hit the market.  Lotus announced in 1990 that it intended to sell CDs with contact and other demographic information for 120 million U.S. consumers.  It would include purchasing habits in the information set.  The collective outrage forced Lotus to cancel the project approximately one year later before any CDs were released.  Today the discussion focuses around how much of our information corporate collates.

I think we have more or less accepted the concept that we are tracked.  How secure that information is kept and who has access to it seems to dominate the conversation these days.  There are those, of course, who believe we shouldn’t be tracked at all.  I acknowledge their fight.  I think the best we can get is control over how our information is used in some form.  I’m not averse to being surprised in this policy fight, however.

My point for those 25 year olds who never knew a life without the Internet is simple.  You also may not have known an Internet without spam, without tracking, without government interference, without being characterized or classified.  Consider the cultural norms that have evolved with the Internet and decide if you’re happy with the trade-offs you accept for convenience.  The Internet wasn’t always the way it is now.  Some of those old norms still have value.  — Mark

 

The big news today is the announcement that Comcast is acquiring Time-Warner Cable (TWC) for $45 billion.  Internet activists are aghast at the idea as it has the potential to reduce competition between Internet service providers in markets served by both companies.  A petition is already posted on the White House web site urging the rejection of the merger.  Comcast has stated that it believes the merger will likely be approved, albeit with conditions.  It’s already stated that it would shed some 3,000,000 customers for the combined company to stay under or maintain a 30% market share.

I have a funny feeling that the merger will be approved as well due to the politics surrounding it.  I believe activists are right in that competition will suffer.  How many cable and Internet services exist in any given area?  Usually it’s one or two and in some major metropolitan areas it can be three or four.  The FCC wants to foster competition in cable and Internet services and approving the merger would seem to go against that policy.

About three weeks or so ago, the FCC lost a major case where its net neutrality rules were struck down.  The Court said that the FCC didn’t have the power under its rules to regulate information service providers.  The Court said that the FCC has the power to reclassify Internet providers as telecommunications carriers if it wanted to.  These can be regulated.  FCC chairman has made statements that he will take the Court up on its suggestion.  The problem, of course, is that the reclassification is a time consuming process subject to political pressure.

Regulation would prevent an Internet Service Provider from slowing down or blocking traffic from Internet companies.  A deliberately slow connection for Netflix or Amazon media streams isn’t good for that either company.  Payments from either would solve that problem without regulation.  It’s that kind of business model which is at stake.  Congress is not of one mind when it comes to allowing the FCC to regulate in this area or not.  Lobbyists, start your cash machines.

Let’s harken back several years when Comcast merged with NBC.  The FCC lost a similar case when it tried to prevent Comcast from slowing bit torrent traffic on its network.  The FCC’s leverage at that point was to impose net neutrality-like conditions on Comcast in approving the merger.  I suspect that there will be a similar result in this case.  The FCC, in this scenario, will get Comcast to abide by net neutrality principles in exchange for its takeover of TMC.  It’s a politically expedient outcome that will give the Commission more time to work on its net neutrality strategies.

One can only hope that Google starts building out last-mile fiber connections in more places than Kansas City and Austin to expand competition between carriers.  It takes a huge financial investment to wire up a city and Google is one of the few companies with both the money or interest in taking on the challenge.  – Mark

There is an interesting case out of Missouri where a federal judge has issued a preliminary injunction forbidding the town of Ellisville from prosecuting individuals for flashing their lights to warn of speed traps.  The town has an ordinance which restricts flashing lights.  The judge, however, said that individuals flashing their lights as a warning was expressive conduct and likely protected by the First Amendment.  The ABA Journal has more information on the case with a link to the opinion.  I’ve made lengthy road trips in the past with a CB radio in the car.  Among the usual trucker chatter were warnings of where “bears” were operating including mile marker details.  That isn’t much different from this case in my opinion, other than how the warning was given.

Justice Scalia was out and about earlier in the week.  He spoke at the University of Hawaii law school and suggested that while the Korematsu case upholding the internment of Japanese citizens was wrong, he wouldn’t be surprised in the Court issued a similar ruling in the future.  Quote the Justice:

“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.”

I understand that Guantanamo Bay has a warm climate at the very least.  CBS News has a report on the visit.  He also commented that the Court will have the last word on the NSA data collection.  As he said in his own charming way:

“The executive knows very well what’s going on and what the threats are. Congress can have hearings for accessing threats and find out what’s going on,” Scalia said. “We can’t have hearings. We sit back and let them bring stuff to us.”

This reminds me of the old saying that if one wants to know the truth about a disputed issue at trial, just ask twelve people who weren’t involved.

In a little bit of law school news there is a report that the Charleston Law School is up for sale.  The prospective buyer is for-profit InfiLaw.  Some legislators in South Carolina want to bring the law school to the College of Charleston or the University of South Carolina as a public institution.  How this transaction goes down will depend on local politics.  The State has the full report illustrated by a nice picture of the law library.

The New York Law Journal reports on the downsizing of the Albany Law School in New York.  Layoffs and buyouts are on the table.  There was apparently a discussion between the administration and the faculty on how to reduce costs and increase revenues.  One idea floated by the faculty was to admit lesser qualified students to increase enrollment and revenues.  From the article:

One Albany Law professor said a “small but vocal minority” of faculty want the school to lower its standards to boost its tuition revenues and lessen the chances of layoffs.  “It is a very selfish, selfish endeavor,” the professor said. “They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”

Faculty members are self-serving?  That never would have crossed my mind after some 36 years in legal education.  No.  Never.

And while we are on the subject of declining enrollments, let’s take a look at the latest statistics from the LSAC:

As of 1/24/14, there are 187,726 fall 2014 applications submitted by 26,379 applicants. Applicants are down 12.6% and applications are down 13.7% from 2013.  Last year at this time, we had 51% of the preliminary final applicant count.  Last year at this time, we had 57% of the preliminary final application count.

As George Takei might say, “Oh my.”  — Mark

 

 

 

 

 

 

 

Readers may remember the case where the U.K. government requested tapes contained in the Boston College archives consisting of interviews with I.R.A. members.  The nominal rationale for the request was to aid in solving a murder of an alleged British informant in 1972.  Britain asked the Justice Department for the tapes under a treaty that called for mutual assistance in criminal investigations.  The College resisted turning over the tapes and the matter went to litigation in federal court.  The District Court judge in Boston ordered the College to release 85 tapes from the interviews.  The Court of Appeals later modified that order for the release of 11 tapes.

The Chronicle of Higher Education has a lengthy article on how the Belfast Project was conceived and carried out.  It’s a story of secrecy and misunderstandings.  The secrecy came from the sensitivity of the subject matter.  Former I.R.A. members would not speak freely if they weren’t assured that their comments were held in confidence while they were alive.  The misunderstandings related to the secrecy.  The College was agreeable to the project.  There are conflicts, however, in the understanding of what legal protections the College could offer to interviewees.  The contracts offered to participants were not vetted in advance and did not contain key language defining the legal extent of confidentiality.

Two of the principles in the project are Anthony McIntyre and Ed Moloney.  McIntyre, a former member of the I.R.A. who spent a number of years in prison for his actions, conducted the interviews.  Moloney was the project director.  He wrote a book in 2008 called Voices From the Grave: Two Men’s War in Ireland which used quotes from two participants who had previously died.  The book essentially revealed the Project and drew attention from law enforcement officials in Britain and Ireland.  This showed more misunderstandings in that McIntyre and Moloney had no idea the mutual assistance treaty existed as they carried out the interviews.  The lack of communication and legal oversight put the parties at odds in defending against release.  The College appears to be blindsided in some respects as were McIntyre and Moloney.

The article is useful in that it is a cautionary tale on how not to organize and manage an archival project on a sensitive subject.  There are quotes from outside archivists and others on the need to put a legal team together in advance of collecting interviews.  The Belfast Project is essentially dead at this point.  Interviewees are requesting the return of their tapes.  The University has said that it will honor those requests to the extent that it can, whatever that means.  The litigation is over though the fallout from the Project continues.  –Mark

Here’s a bit of political contradiction.  A recent article in the Washington Post contained the comments of James L. Capra on Washington and Colorado’s initiatives to decriminalize marijuana for recreational use.  Capra is the Chief of Operations for the Drug Enforcement Agency and he’s not particularly happy about the legalization movement:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”

Contrast that to this report in CNN on recent comments made by President Obama:

Speaking to New Yorker editor David Remnick, Obama said he still viewed pot smoking negatively – but that on the whole, the drug wasn’t the social ill that it’s been viewed as in the past.

“As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol,” Obama told the weekly magazine.

The president said pot was actually less dangerous than alcohol “in terms of its impact on the individual consumer.”

“It’s not something I encourage, and I’ve told my daughters I think it’s a bad idea, a waste of time, not very healthy,” he said.

I have to believe that Capra might be a bit discouraged by the President’s comments.  Twenty years ago President Clinton had to make the absurd “I didn’t inhale” statement.  How far we’ve come.

For those who may be interested, the CRS has several reports on issues relating to the marijuana legalization movement:

State Marijuana Legalization Initiatives:  Implications for Federal Law Enforcement (Order Code R43164, September 9, 2013)

State Legalization of Recreational Marijuana:  Selected Legal Issues (Order Code R43034, April 5, 2013)

Medical Marijuana:  The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (Order Code R42398, November 9, 2012)

Medical Marijuana:  Review and Analysis of Federal and State Policies (Order Code RL33211, April 2, 2010)

I can understand the desire to legalize and tax.  Some states might be able to partially dig themselves out of their pension problems if they tax legal product.  – Mark

That is the question Gary Lawson (Boston Univ. School of Law) attempts to offer an answer in One(?) Nation Over-Extended [SSRN]. Here’s the abstract:

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased returns from control over a large territory can swamp the transaction costs of building a winning coalition. The obvious solutions are a decrease in the size of the national government, an increase in the costs of constructing winning factional coalitions, or a breakup of the United States into smaller, more manageable units. The first and second options are unfeasible, and the third (secession) is unconstitutional even if feasible.

Interesting. — Joe

Another frigid day with spotty train service means another day browsing the legal news and commentary.  There are several stories worth reading.  The first is the National Law Journal’s report about the AALS panel discussion on the ABA’s proposed standards.  Naturally, the standard eliminating tenure as a requirement for accreditation got significant discussion.  Faculty members on the panel as well as those in the audience were overwhelmingly against the proposal.  Their argument was that removing tenure would weaken academic freedom, among other negative outcomes.  This position is reflected in the published comments (scroll down to Terms and Conditions of Employment) to the draft of Standard 405 at the ABA web site.

The proposal was explained by Saint Louis University Professor Jeffry Lewis and ABA committee chair revising the accreditation standards.  He noted the text contains several options for job security and protection of academic freedom that can replace tenure.  The proposed ABA standards would require schools to have job restrictions in place that would attract competent faculty by having effective rules that provide provide job security and protect academic freedom.  The draft options and interpretations of the proposed standards are here

I wonder just how far schools will go in defining the faculty relationship if this is approved.  It will be pretty interesting to see what the employment contract’s terms sans tenure will be for new professors.  Will they be largely standardized or will they be negotiated individually?  How will publication reflect advancement?  Really, it could be the world turned upside down if this is approved.      

Publishers Weekly has a review of the top 10 library stories of 2013.  The items include the decision in the Google book scanning case, somewhat more liberal terms for libraries to lend e-books, and the emergence of the Digital Public Library of America.  The story nicely sums up the legal and technological issues affecting libraries in the last year.

Wandering over to the New Yorker finds two stories of interest.  One details the dismemberment of antiquarian books to sell parts to collectors through various exchanges, including eBay.  Everything is for sale these days.  Historical objects are obviously no exception.  The other story concerns the fight Apple is having with the court appointed compliance monitor over his rate (Apple is footing the bill, and it is large) and the level of access to executives and board members.  Apple filed objections in Court over the issues.  The story details the background to this particular aspect of the case.

Getting back to the tenure issue for a moment, I was reminded of the Pretenders’ song Brass In Pocket.  Or should the musical moment be Back On The Chain Gang?

Mark

It’s cold in the Midwest.  The temperature is -15 outside as I write this.  I’m at home, comfortably indoors, as my institution had the good sense to close today.  I’m grateful as all commuter train service between Indiana and Chicago was cancelled making it impossible to get to the office in any event.  I spent the weekend shoveling excessive amounts of snow several times and can use the day off.  I’m being trailed by a calico kitten I rescued from my back yard on Christmas Eve.  If that’s the worst I have to deal with today I’ll take it.

The unexpected break gave me a chance to catch up on the news out there.  I’d like to recommend a couple of pieces.  One is from Brian Leiter in the Huffington Post.  He argues against mandatory experiential learning as it is being considered by the American Bar Association.  Personally, I’m a big fan of modifying the law school curriculum to include more practice oriented classes.  I can agree with Professor Leiter that the rules should allow schools to offer such classes and see where the market takes them.  Some people who want to be scholars would likely have no need for such learning.  Others, however, would benefit from changes in the curriculum.

The second article I would recommend is the commentary provided by Andrew Cohen in The Atlantic concerning the New Year’s Eve decision by a federal judge that struck down a drug test requirement before getting welfare benefits.  The state argued its “legitimate” concerns in preventing tax dollars used by recipients to buy drugs.  The Court, for the second time in this litigation struck down the requirement because the evidence didn’t support the state’s concern.  The Fourth Amendment factored in the decision as well on suspicionless drug testing.  Cohen quotes parts of the opinion and links to the full text.

I’m personally happy to see this result.  I can think of a parade of horribles in terms of policy decisions that could flow if the decision were otherwise.  I’ll give you one example.  It’s known that people drink and drive.  Or they use other stimulants that might impair them behind the wheel.  Would anyone care to take an alcohol and/or drug test to get or renew a driver’s license?  The state does expend considerable amounts of tax money to provide the licensing scheme as well as manpower and facilities for public safety.  It’s not that much of a leap to go from drug testing welfare recipients to drug testing license applicants.  There’s an actual track record based on DUI arrests and accidents.  I’ll be waiting for that kind of measure to be introduced in a state one of these days.    

Mark