Yesterday the Washington Post-Volokh Conspirarcy joint venture was officially launched. Eugene Volokh explains this new chapter in his 12 year old blog:

We’re now trying what might be the most ambitious experiment yet: a joint venture with the Washington Post. The Post will host our blog, and pass along its content to Post readers (for instance, by occasionally linking to our stories from the online front page). We will continue to write the blog, and Volokh.com will still take you here.

We will also retain full editorial control over what we write. And this full editorial control will be made easy by the facts that we have (1) day jobs, (2) continued ownership of our trademark and the volokh.com domain, and (3) plenty of happy experience blogging on our own, should the need arise to return to that.

The main difference will be that the blog, like the other Washingtonpost.com material, will be placed behind the Post’s rather permeable paywall. We realize that this may cause some inconvenience for some existing readers — we are sorry about that, and we tried to negotiate around it, but that’s the Post’s current approach.

Joe

What are we talking about? The Blog Emperor is comparing the differential in the US News law school overall and academic reputation rankings. In this blog post, he listed 53 law schools that are over-performing and underperforming their overall rankings because, well, academic reputation is very, very important.

How about the US News judges-attorneys reputational rankings? No, that’s not important. Only peer assessment scores are. Considering the low sample sizes and, in some years, response rates for both US News reputational surveys, the annual reputational findings are absurd (unless one might be fishing to increase human and robot traffic because law prof blog traffic dips during Winter Break; see today’s earlier post about web communications traffic stats).

For reaction to the nonsense, see the comment trail for Staci Zaretsky’s ATL post. My favorite, so far, is

I’m sorry, but who gives a shit what law professors and law deans think of the school? IF they count as part of the legal community (which I don’t really think they do), it is a small, insular, largely irrelevant portion.

Tell me what real lawyers think about the schools.

Joe

According to Incapsula, bots went from 51% of web traffic in 2012 to 61% of web traffic this year for a 21% year-over-year increase. The cloud computing firm found that most of the increase in bot traffic was due to increased activity by “good bots” like search engines. Spam bots, comparatively, are on the decline. However, the fact remains that any self-congratulatory remarks about a blog reaching a visit and/or page view milestone or blog rankings based on those metrics are wild inflations of this form of “social media.” If the bot traffic trend continues at this pace, pretty soon one will have divide web traffic stats by four to come up with a reasonable estimate of human mouse clicks and eyeballs. — Joe

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It’s free and it will be streamed live today starting at 2:00 pm Eastern. Panel members include Gwen Evans, Executive Director of OhioLINK, Courtney Greene, Head, Discovery & Research Services, Indiana University and Edward Smith, Executive Director, Abilene Library Consortium. Pre-registration for this 60-minute discussion is not required. Details here. — Joe

I wrote a post earlier this week on LG’s data collection practices on its smart TVs.  LG televisions apparently have a feature for collecting and transmitting to LG channel view information as well as file names from a connected USB stick.  There is a setting that allows a user to turn off the feature though when selected the information was still collected and transmitted.  The rationale for this was to customize ads sent to the TV based on viewing habits even though there was (allegedly) no personally identifiable information collected.

LG figured out it had a publicity problem on its hand.  The company issued a statement saying it will fix the problem with a firmware update that will actually turn off the feature when a user turns it off.  The same update will stop the reading of file names from attached devices as well.  LG admitted that data was transmitted though never stored on its servers.  What?  Then what was the point of transmitting it in the first place?  I think there is more to this than the company wants to admit.  Perhaps the information was sent to a third party who supplies the customized ads.  Who knows.   I think LG needs to be a bit more forthcoming on just what is going on here.

Details are in a report on CNET.

Mark

You bet. They can advocate vigorously for the official recognition of federal web communication programs (and not just FDsys) as essential government services to avoid future suspensions the next time the federal government shuts down (and there will be a next time). It’s not just about the provision of digital information. Web-based citizen services are essential. Perhaps the fiasco of healthcare.gov will raise the public profile of this issue. — Joe

There seems to be a convergence of stories recently about privacy and tracking lately.  If privacy isn’t dead it certainly seems to be fighting a losing battle while on life support.  Where to start?  There is a report in CNET on Vint Cerf’s statement, “Privacy may be an anomaly.”  The reason for that is the level of detail people are sharing through social media.  Another Cerf quote:  “Technology has outraced our social intellect.”  I find that hard to argue with that concept.  There are multitudes of ways to track people and their habits down to fine details.

An older story in Ars Technica tells that Facebook is working on a way to collect mouse movements.  As the story points out, it’s not uncommon for web sites to track where someone clicks on a page.  That’s one way to determine an ad’s effectiveness.  What Facebook intends to do is watch the mouse.  How does someone move along the page?  Where does the mouse hover and for how long?  Mobile views obviously do not use mice, but tracking in this context extends to tracking when a newsfeed is visible.  My understanding is that the Facebook like button is its own tracking device between sites whether one has a Facebook account or not.

The next item concerns the humble toothbrush, though it is symbolic of the so-called “Internet of things.”  The concept is promoted as a social good in that all of the dumb devices we use will become smart at some point and our interactivity with them will come with new conveniences.  Consider this statement from Salesforce CEO Marc Benioff as reported by ZDNET:

“Everything is on the Net. And we will be connected in phenomenal new ways,” said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. “When I go into the dentist he won’t ask if I brushed. He will say what’s your login to your Philips account. There will be a whole new level of transparency with my dentist,” gushed Benioff.

Any marketer would gush over this level of personal detail.  It may benefit the doctor-patient relationship, but who else would have access to this information and how will it be used?  I’m not sure I would be comforted by doctor-patient confidentiality in these circumstances.  I’m sure it will all be in the terms and conditions for the device, or not, at least if the next story’s details are accurate.

A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG responded to this disclosure as reported in the story on Ars Technica:

“The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Or putting it another way, we don’t care if you’re put out by these practices.  Life’s good, as they say, depending on who has the power in these relationships.

When I think of Marc Benioff’s toothbrush scenario I can imagine smart devices coming with embedded chips that connect to the web automatically and upload information.  As of now the choice is ours as to whether to connect our devices to the web.  I have a DVD player that is web-enabled though I have not turned on that feature.  My TV set is huge, but also not connected to the web.  My choice, of course, and I may not be typical.  In fact, I’m sure I’m not.

I can predict that there will be a time when a web connection is going to be mandatory for some devices to even work out of the box.  It’s in every marketer’s interest if that came to be.  Or, if I wanted to be exotic, I can predict another pervasive wireless Internet that overlays the one we know and love.  It will just be for smart devices that will connect automatically for our “convenience.”  There may just be enough moneyed interests to make that happen.  Terms and conditions may or may not apply.

Mark

As (I hope) we all know by now, Congress.gov is moving into full production today and Thomas.gov’s tombstone is expected to read RIP, 1995-2013, soon. In case someone has not read Andrew Weber’s Sept. 23, 2013 In Custodia Legis post for guidance, see The Transition from THOMAS.gov to Congress.gov.

What may have been lost in this domain transition news is David Moore’s Oct. 29, 2013 announcement that OpenCongress.org has been acquired by the Sunlight Foundation from Participatory Politics Foundation. Details here. — Joe

Hat tip to Sally Peat’s BIALL Blog post for calling attention to Informed. Quoting from Informed’s hello world post:

Aim:

This blog has been set up with the aim of providing a neutral space for library and information professionals to share their thoughts about wider information issues.

Objectives:

To provide a neutral space for library and information professionals to publish blog posts on a range of wider information issues

To be outward-looking in our content

To create an audience within and outside of the profession

To provide a neutral space for library and information professionals to publish blog posts on a range of wider information issues

Neutrality is the main guiding principle of this project. It has been started by a small group of like-minded people, it is not affiliated to any groups. Our editorial process will involve volunteer editors reviewing posts prior to publication to ensure that posts are not libellous, slanderous or contain ad hominem attacks. People commenting on posts will also be required to adhere to these basic rules. Editors will not change the content of posts unless these rules are breached and will remain ideologically neutral.

To be outward-looking in our content

This blog will focus on wider information issues, highlighting the relevance to and impact of library and information professionals on society. There are lots of great blogs that are addressing key issues within the profession and our uniqueness will be this outward-looking focus.

To create an audience within and outside of the profession

Attracting an audience both within and outside of the profession is vital as this broad audience will enable us to demonstrate the relevance to and impact on society of library and information professionals.

This is probably the most succinct statement of purpose blog posts I’ve ever read. Based on the content of the posts already published, the Informed Team of bloggers is hitting their aim and objectives. Informed is highly recommended. — Joe

The Volokh Conspiracy played a large enough role to produce what most likely is the first ever published compilation of long-form essays about the influence a law prof blog’s collective postings by multiple legal scholars had on the debate over the merits of a piece of federal legislation which in the case of the Affordable Care Act reached SCOTUS for review. See A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, Nov. 12, 2013) [Amazon]. Granted the essays are written by VC bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, David Kopel and Illya Somin but this work is recommended for illustrating that law prof blogging can be viewed sometimes as “scholarship in action.”

Here’s the blurb:

The debate over the Affordable Care Act was one of the most important and public examinations of the Constitution in our history. At the forefront of that debate were the legal scholars blogging at the Volokh Conspiracy, who engaged in a spirited, erudite, and accessible discussion of the legal issues involved in the cases – beginning before the law was even passed. Several of the Volokh bloggers played key roles in developing the constitutional arguments against the ACA. Their blog posts and articles about the Act had a significant impact on both the public debate and the legal arguments in the case. It was perhaps the first time that a blog affected arguments submitted to the United States Supreme Court on a major issue. In the process, the bloggers helped legitimize a new type of legal discourse. This book compiles the discussion that unfolded at the Volokh Conspiracy blog into a readable narrative, enhanced with new context and analysis, as the contributors reflect on the Obamacare litigation with the advantage of hindsight. The different bloggers certainly did not always agree with each other, but the back-and-forth debates provide momentum as the reader follows the development of the arguments over time. A Conspiracy Against Obamacare exemplifies an important new form of legal discourse and public intellectualism.

Joe

And for how much?

“No other law blog has come close the impact SCOTUSBlog has had. It’s become the news source of record on the Supreme Court for lawyers, for the press, for the public, and even the justices and their clerks.” — Kevin O’Keefe, Real Lawyers Have Blogs

ABAJ’s Debra Cassens Weiss has confirmed that Tom Goldstein, founder of SCOTUSblog, plans to sell his blog next summer. She reports

Goldstein hopes that he can obtain press credentials to make SCOTUSblog more attractive to potential buyers, according to AP. His current expenses to run the blog, he says, are $500,000 a year.

This could get very interesting. Will BLaw, the current sponsor of SCOTUSblog, be bidding (or will BLaw convert USLW into a clone of SCOTUSblog)? WEXIS? Will the sale price mark the floor or ceiling of similar law-related blogs? — Joe

About Archive-It

Archive-It (www.archiveit.org) is a subscription based service launched in early 2006 at the Internet Archive. The service enables organizations to build, manage and preserve collections of web content. The service includes hosting of the data, access, and two copies stored in perpetuity. The service currently has almost 300 partner organizations in 46 U.S. states and 16 countries. These organizations have created over 2300 public collections which are browse-able and searchable at www.archiveit.org.

About Reed Technology

Reed Technology and Information Services Inc., part of the LexisNexis® family, serves its clients in the public and private sectors with the expertise required in the technology-focused fields of Web Archiving, IP services, and Life Sciences. Reed Tech Archives offers website and social media capture that can be easily archived and forensically preserved (www.reedarchives.com). These capabilities support capture of trademark infringement as well as compliance and e-discovery needs. Reed Tech Archives provides these services to law firms, corporate accounts, government and the financial industry.

Quoting from yesterday’s press release which announced that both parties have agreed “to jointly market and sell Archive-It, and continue to support the growing community of organizations currently using the service. The agreement combines the commercial archiving experience and resources of Reed Tech with the breadth and depth of the Internet Archive, the largest publicly available web archive in existence and the foremost provider of web archiving services for the cultural heritage marketplace.”

“Reed Tech is honored to be engaged in the alliance supporting and expanding the Archive-It mission to deliver world class digital collection and access services to a worldwide portfolio of clients,” said Dave Ballai, CIO/VP commercial solutions at Reed Tech. “The business combination expands the range of capabilities for further developing and delivering the Archive-It service to a steadily growing array of cultural heritage institutions.”

I’m not quite sure what to make of this deal. You? For more, see Gary Price’s LJ INFOdocket post. — Joe

Certainly there is a serious side to revenge porn but that’s not what this post is about. This post is a light-hearted riff on the notion of amending the Copyright Act to protect  amateur porn’s (aka “intimate media”) social value by “creat[ing] a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media”. Quoting Derek Bambauer’s INFO/LAW post, Copyright, Sexting, and Revenge Porn: What Law Should Do, about his forthcoming Minnesota Law Review article. Here’s the abstract for Bambauer’s Exposed [SSRN]:

The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.

This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.

Imagine the soul-searching deliberations leading up to bedroom conversations, see for example, I post amateur porn secretly on Salon. Imagine congressional deliberations. Imagine Fox News interviewing Scalia after SCOTUS opines on such an amendment. Heck, imagine Scalia’s law clerks researching revenge porn’s chilling effect on intimate media’s social value. Hell, imagine Jason Wilson’s annotations to the oral arguments before SCOTUS.

For the serious side of revenge porn, see Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to (ABAJ, Nov. 1, 2013). See also, Miami Law prof Mary Anne Franks’ blog, Moving Targets, and the work she is performing to draft model legislation to criminalize revenue porn.  — Joe

Things I’ve read lately on the Internet that have piqued my interest include an article on The Atlantic by Bruce Schneier called The Battle for Power on the Internet.  Scheier argues that institutional power wielded by government and corporations have caught up with hackers and formerly (relatively) powerless advocacy groups when it comes to use and control of the Internet.  It’s an interesting read in that he leans to institutional control as the likely winner in the long run.  Corporations and government work together in a public/private partnership to track Internet usage.  One uses the information for marketing and the other for surveillance.  This is, in contrast, to the early days of the network when anonymity ruled.

We’ve seen the Internet destroy re-fashion certain industries such as news delivery, music and media, and Schneier touches on these to the extent that industry and government work with each other to minimize piracy in intellectual property, enforce trade restrictions, and track activities.  That last one gets prominent attention, although Schneier doesn’t take a stand on whether this is good or bad.  One of his examples shows how the rebels in Syria use Facebook to organize resistance.  The Syrian government uses Facebook activity to identify individuals for arrest.  In the end, those with technical proficiency will be in the best position to endure changes.

It’s always been my opinion that the more convenience technology offers, the more we are likely we are to be tracked and monitored.  I’m not paranoid about this.  It’s almost impossible to use an electronic device or service without creating a transactional record.  I think we are well past the point of limited archives that evaporate after a short time.

My solution would be to have a clear understanding of what information is collected, for how long, how it’s used, and who has access to it.  I don’t mean to support vague and wordy privacy policies either.  There should be a clear law or policy that requires that this information be spelled out.  Schneier suggests that neither a police state nor an Internet utopia is likely.  As he puts it, “figuring out a stable middle ground is hard.”  He states these kinds of issues are primarily political questions and will be sorted out that way, no matter how technology develops.

Mark

As I have noted in other forums, one of the ways American law schools are reacting to smaller classes is to eventually reduce the size of the faculty.  There is another approach in academia generally and it’s documented in a short essay on Slate titled “I Quit Academia,” an Important, Growing Subgenre of American Essays.”  Even tenured folks can find the work unpalatable despite the money and alleged job security.

Also on Slate is an article reprinted from Inside Higher Ed called “Classroom Confidential: Should professors have any expectation of email privacy?”  A faculty member at the University of Wisconsin-LaCrosse responded to students who could not access the Census.gov during the shutdown that Republicans and Tea Partiers were responsible for the lack of access.  Like anything sent to a third party, it made it into the wild and caused quite a stir.  The lesson?  Don’t say anything in email that one would be embarrassed if public.  A good example is this story from Inside Higher Ed, “Iowa TA Accidentally Sent Class Nude Photos.”  Oopsie.

Getting back to law, Harvard Law School announced that the Harvard Law School Program on the Legal Profession has started a Law Research Centers Papers series within the Legal Scholarship Network (LSN).  Papers related to the program are here.  The HLSP web site is here with links to papers and other publications.

Mark

At least not until after they appear. Louis J. Sirico, Jr. apologies for a robo ad that appeared on Legal Skills Prof Blog, a member of Blog Emperor Caron’s ROBOnanza:

I am sorry that this blog was used for a cheap political stun.  I have deleted the ad.

For details about the robo ad by a political group that disparaged one of his colleagues who is seeking election as a trial judge, see Sirico’s post, Ads Appearing on This Blog. — Joe

Hat tip to Peter Martin for calling my attention to Citing Legally: Occasional observations about the citation of legal authorities by lawyers and judges. The blog is a byproduct of this year’s revision of Introduction to Basic Legal Citation (online edition hosted by LII) and the forthcoming revision of The Bluebook. Launched yesterday, Citing Legally’s first post is titled Statutes – Citation norms that reinforce copyright claims. Highly recommended. — Joe

Google and Facebook are getting to be more and more like each other when it comes to taking advantage of user information.  Google announced today that it will show a +1 and picture of the friend who gave the recommendation in ads and searches.  These are called “shared endorsements.”  Google does offer a mechanism to opt out.  There is a check box in Google Account settings that reads “Based upon my activity, Google may show my name and profile photo in shared endorsements that appear in ads.”  The box is checked by default.  Unchecking it prevents sharing.  Press reports on the new setting are in PC Magazine and ZDNet.  The new setting goes into effect on November 11.

Facebook is making a change to privacy settings on the social network as well.  It is removing the ability for an individual to hide their timeline from search by name.  Facebook had eliminated the setting a while back for those who had not selected it.  This action now removes the opt-out for the less than 1% of accounts that selected it, calling it “and old search setting.”  The site suggests using other privacy settings to limit information that can be seen by others.  I can image there are indignant individuals who use Facebook but resent the lack of control over privacy.  Then there are individuals who have genuine privacy concerns, such as hiding from stalkers or abusive ex-’s.   The report in Ars Technica has the details.

Mark