In How Google Cashes In on the Space Right Under the Search Bar (NYT, Apr. 23, 2017), Daisuke Wakabayashi wrote, “[w]hen Google’s parent company, Alphabet, reports earnings this week, the internet giant’s big profits are expected to demonstrate yet again that the billboard space accompanying Google queries is the web’s most valuable real estate for advertisements,” adding

In the 17 years since Google introduced text-based advertising above search results, the company has allocated more space to ads and created new forms of them. The ad creep on Google has pushed “organic” (unpaid) search results farther down the screen, an effect even more pronounced on the smaller displays of smartphones.

The changes are profound for retailers and brands that rely on leads from Google searches to drive online sales. With limited space available near the top of search results, not advertising on search terms associated with your brand or displaying images of your products is tantamount to telling potential customers to spend their money elsewhere.

— Joe

According to the press release, some of the new features of the GPO’s new website, which is in beta at this time, include being mobile friendly, improved internal site search, improved user experience, easy access to GPO products and services, and easy access to GPO social media platforms. Once out of beta, this site will replace the GPO’s current website.

Give the new site a test drive at https://beta.gpo.gov/ . Visitors can submit general feedback to the GPO at https://www.surveymonkey.com/r/betagpodotgov

— Joe

To comply with the Presidential Records Act, the Trump administration has agreed to archive all of Trump’s tweets including the ones he deletes or corrects. No word on how precisely the White House will do that. See Stephen Braun’s National Archives to White House: Save all Trump tweets for more. Therein Braun also reports that apparently some senior administration staff are using their private RNC email accounts. — Joe

In Social Media and Fake News in the 2016 Election, Hunt Allcott (NYU) and Matthew Gentzkow (Stanford) conclude “our data suggest that social media were not the most important source of election news, and even the most widely circulated fake news stories were seen by only a small fraction of Americans. For fake news to have changed the outcome of the election, a single fake news story would need to have convinced about 0.7 percent of Clinton voters and non-voters who saw it to shift their votes to Trump, a persuasion rate equivalent to seeing 36 television campaign ads.”

Here’s the abstract to their NBER report:

We present new evidence on the role of false stories circulated on social media prior to the 2016 US presidential election. Drawing on audience data, archives of fact-checking websites, and results from a new online survey, we find: (i) social media was an important but not dominant source of news in the run-up to the election, with 14 percent of Americans calling social media their “most important” source of election news; (ii) of the known false news stories that appeared in the three months before the election, those favoring Trump were shared a total of 30 million times on Facebook, while those favoring Clinton were shared eight million times; (iii) the average American saw and remembered 0.92 pro-Trump fake news stories and 0.23 pro-Clinton fake news stories, with just over half of those who recalled seeing fake news stories believing them; (iv) for fake news to have changed the outcome of the election, a single fake article would need to have had the same persuasive effect as 36 television campaign ads.

— Joe

In The Price of Paid Prioritization: The International and Domestic Consequences of the Failure to Protect Net Neutrality in the United States, 16 Geo. J. Int’l Aff. 98 (2015), Arturo Carrillo and Dawn Nunziato examine international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the FCC’s 2015 Open Internet Order complies with those obligations. From the abstract:

The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the international trade and human rights treaties to which the United States is a party. … Even so, we conclude that gaps in the 2015 Rules mean that the United States may still be liable under international law for potential failures to ensure that net neutrality and nondiscrimination principles are adequately protected. In particular, the dual issues of zero-rating and interconnection remain as potential threats to strong net neutrality in this country. This is because, as a member of the World Trade Organization (WTO) and a party to the ICCPR, the United States is bound to respect principles of nondiscrimination and free expression when regulating essential communications media like the Internet. Any FCC rule that does not meaningfully protect net neutrality at all levels of interconnectivity would run afoul of these international obligations and expose the United States to legal action by other governments and individuals prejudiced by its actions.

Recommended. For a brief LLB backgrounder, see Net neutrality: If the Internet is not a utility, what is it? — Joe

“Republican senators moved Thursday to dismantle landmark internet privacy protections for consumers in the first decisive strike against telecommunications and technology regulations created during the Obama administration, and a harbinger of further deregulation”, wrote Cecilia Kang in her  NYT story, Congress Moves to Strike Internet Privacy Rules From Obama Era (March 23, 2017). “The measure passed in a 50-to-48 vote largely along party lines. The House is expected to mirror the Senate’s action next week.”

The measure is S.J.Res. 34. Created on March 25th, a We the People petition calls for reinstating the privacy of customers of broadband and other telecom services because S.J.Res. 34 is expected to pass in the House and be signed by President Trump. — Joe

Take Care, a blog monitoring Trump’s adherence to the law of the land under Article II of the Constitution, has been launched and is staffed by an impressive list of contributors that includes Larry Tribe, Erwin Chemerinsky and more than 20 former Supreme Court clerks and numerous former senior Executive Branch officials. Recommended. — Joe

In The Deep Web and the Darknet: A Look Inside the Internet’s Massive Black Box [SSRN], Dakota S. Rudesill (OSU Law), James Caverlee (Texas A&M) and Daniel Sui (OSU) write

The reality is that while the Surface Web manifests an often astonishing level of altruism for promoting the common good, and the Deep Web inevitably does to some (unknown) extent as well, the Deep Web and Darknet quite often reveal the darker, more antisocial side of human behavior. The markets for hacking programs, other cybercrime tools, and stolen data, in particular, have continued to grow with no signs of slowing down. There an urgent need for policymakers and the public to better understand the Deep Web and develop a more comprehensive law enforcement, regulatory, and national security response. This focus needs also to take into account the potential positive uses of the Deep Web.

The authors’ paper is a policy brief that “outlines what the Deep Web and Darknet are, how they are accessed, and why we should care about them. For policymakers, the continuing growth of the Deep Web in general and the accelerated expansion of the Darknet in particular pose new policy challenges.” It was published by the Woodrow Wilson Center’s Science and Technology Innovation Program.

From the Policy Implications section:

In particular, we would like to stress that policymakers should pay attention to the following:

  • Socio-cultural forces are involved in the “generation and sustainability” of criminal entities that use the Darknet. For example, some countries do not have functioning or sufficient markets in legal goods, a context in which the Darknet may actually facilitate increased social welfare and economic efficiency. States in such a situation may have little incentive to enforce cybercrime laws, while free-riding on the law enforcement, regulatory, and national security efforts against truly bad actors carried out by other states.
  • The Deep Web and the Darknet are attractive to many because of the prosecution, regulation, and national security surveillance efforts of states in the physical world and Surface Web. Illicit activity is being driven below the electronic thermocline of common search engines and usual investigative techniques, and states must be willing to dive beneath it to gather information and take action.
  • The transnationality of these networks frustrates eradication, regulatory, and prosecution efforts of any one state, creating cooperation, collective action, and law harmonization problems for state actors attempting to work together to counter illicit use of the Internet.
  • Rather than eradication, policymakers must focus systematically on bad actors and bad patterns, while striving to anticipate and favorably shape evolution of the Darknet. At times this effort might, like anti-terrorist efforts globally since 9/11, risk resembling “whack-a-mole” (the takedown of Silk Road represents one pelt). It will only succeed over time if a broader strategy including prevention, detection, and response is developed and followed with broad international participation and support.

— Joe

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Gizmodo reports that the Wayback Machine, the part of the Internet Archive that preserves web sites, is getting its own search engine.  That’s good news in that the only way one can use the archive now is by typing in a URL.  There are 439 Billion pages in the Archive.  The web from my perspective is still a chaotic place despite its sophistication.  Stuff comes and goes, and it’s not just Facebook posts.  This development should be a vast improvement for researchers.

Mark

At least in the Academic version.  I received an email yesterday promoting new features in Westlaw for the coming academic year.  One of them is:

Share Your Uploaded Documents

This exciting new feature will let you share user uploads with professors, students, study groups, research assistants, journals and law reviews, moot court and clinics.

  • Upload your own documents into your WestlawNext® folders.
  • Add citations, hyperlinks, and KeyCite flags to online documents.
  • Annotate (add highlights and notes) to your own content.

Previously one could only designate and share items that were flagged from Westlaw content.  It certainly is an interesting play to get students and faculty to spend more time on Westlaw.  More information is in an audio tutorial here.

Mark

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

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

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