The danger of "apps"

A recent study of a sample of Android apps found that they were "calling home" (sending the phone's current location to a remote web site) on a periodic basis. It was clear that the apps were not telling the user they were doing this; what was not so clear was if the users were adequately notified of this behavior when the applications were installed.

On a related front, Facebook applications can access and store your data and the data of visiting friends. The site gives you some options to suggest which data you want to share and with whom; however, keep in mind that behind the scenes the software must try to interpret your preferences in a way that keeps both you and Facebook's advertisers happy. That's not a tension that is likely to resolve in your favor.

My suggestion would be to delete any applications you don't need from your phones and social networking sites. Eventually, if you really need a phone or device which runs "apps," I'd suggest an Android, because it can be legitimately upgraded (hacked?) to reveal (and perhaps control) such data leaks. And remember, even though your location, demographic, and friend information may seem like innocuous information to be sharing, keep in mind all your data are potentially public.

Fixing weak cellular coverage

Bloomberg reports that Sprint is giving away "femtocell towers" to a small number of customers who have weak reception in their homes. These towers act as local cellular stations inside your home; they transmit your calls over your internet connection back to Sprint. They therefore depend on your internet speed; if you have a slow or spotty connection, your calls will not sound very good.

If you can't get one for free, these towers seem to cost around $100 retail, with a $5 monthly charge. You can apparently set it up to route multiple numbers over your connection for an additional charge.

Remember: your data are all public

By now everyone's heard this from me multiple times: be careful what you send in email or post to the Internet, on your blogs, Facebook, Twitter, Buzz, etc. Everything you upload in any fashion can potentially be saved forever, and at some point, redistributed.

As this article about an untrustworthy insider at Google illustrates all too clearly, your data are only protected by the goodwill and diligence of the companies you are trusting. Some companies may not have any policies or procedures in place to try to restrict access to your accounts and posts; some may have these but may not aggressively enforce them; and as the Google case shows, even if you have policies and enforcement, it won't be perfect. For example, it's likely that Facebook employees can impersonate you; there are legitimate reasons why that capacity is built in, but remember it can also be abused. Trusted insiders at these companies will have access to large pools of your information, and inevitably some of them may not be worthy of that trust. So far the stakes have apparently not been high enough for affected users to contemplate any lawsuits for breaches, collectively or individually, even when they apparently happen in violation of the representations these web sites make to you in their Terms of Service and Privacy policies.

The bottom line should be: treat absolutely everything you type into a web site or publishing program (blogger, messaging program, texts on your phone!) as though your boss (or your grandmother?) were going to read it tomorrow - because there's always a chance they might.

Building a Muslim community center in NYC

The Park51 project, sometimes described as the "Ground Zero mosque", is a Muslim community center and prayer space located a few blocks away from the former site of the World Trade Center. The location is zoned to allow religious organizations to build there; as such, the Religious Land Use (and Institutionalized Persons) Act protects the group's right to build there. This is the same statute that protects the right of a Christian mega-church to expand, or a a small church to use a downtown space to hold services. This law was passed by Congress to protect the right to free exercise of religion, a right recognized by the First Amendment to the U.S. Constitution.

In an interview on National Public Radio (NPR) on September 11, New York's Mayor Bloomberg discussed the recent controversy around the Park51 project. I was impressed by his analysis of the issues:

NPR: There've been so many controversies leading up to today, between the proposed Islamic Center there in lower Manhattan, the threatened burning of Qurans in Florida. Have 9/11 commemorations become politicized?

Mayor BLOOMBERG: I think that a lot of it has become politicized. The whole issue of the Islamic center, which was proposed a while ago and nobody seemed to have any problems with it, all of a sudden in the middle of an election campaign became something that the candidates can't stop talking about. It's pretty hard to argue that they aren't trying to make something out of this for their own political gain. And that will go away after the November election.

The real issue here is history will look back and say, did we have the courage to stand up for the Constitution and keep us free going forward? The government shouldn't be involved in telling people who to pray to, where to pray, how to pray, who's going to fund their praying.

And I think that hopefully we'll be able to look back and say that, you know, a few people were a little bit of hotheads, a few people tried to take advantage of it, but in the end America understood that the Constitution has protected us for a long time and if we don't protect other people's rights, we're not going to have our rights.

NPR: Your support of the right of the Islamic center to open being noted, if the people who run the Islamic center on their own decided to move it, would you be relieved?

Mayor BLOOMBERG: The government should not be relieved or whatever - concerned, I guess, that they have a right to build a place of worship any place that's zoned for that kind of activity. This place is. And it's totally up to them. And if the government starts expressing a view of concern or relief, that's just the government trying to influence a decision which it should not.

Compare that expression to the pressure brought to bear by the Obama Administration (and others) on the church threatening to burn copies of the Quran - an attempt to affect a different right (free speech) under the First Amendment.

Burning the Quran

A congregation led by a Pastor Jones is planning to burn copies of the Quran on September 11, 2010 - the same day as the feast of Eid ul-Fitr, which marks the end of the Muslim holy month of Ramadan. I find it surprising that the plans of a 50-person congregation from somewhere in Florida are being reported around the world. Why would the actions of such a small group cause so much commotion?

1. This is not news.

   It should come as no surprise to anyone that there exists somewhere in the world a small group of people who are prejudiced against one or more other groups. If the media were to report on every such collection of people, they'd run out of room in every broadcast and in every newspaper. Had the news media not made a "story" out of these plans, no one would likely have even noticed it happened; as an event, it's especially uninteresting because there's no threat to anyone's safety or welfare. Sadly, by shining a spotlight on this insignificant group, and by making its leader famous enough to appear on television, the news, and in print, the media inspires them and others to even more outrageous acts in the future.
   

   This is a great example of where the phrase "nothing to see here, move along" is applicable.
   

2. They have the right to burn copies of the Quran.

   Speech of all sorts is protected in the United States under the First Amendment to the Constitution. There are some types of speech which can be controlled or punished, but for the most part, the tension between (1) protecting others and their reputations, and (2) encouraging discourse about the government, officials, and important issues generally ends up protecting most types of speech. In particular, as long as you're not causing a danger to anyone (arson) you're generally allowed to burn anything you want. That goes for flags, books, pop albums, etc.
   

3. Anyone who responds to this is responsible for their own actions.

   A number of U.S. officials have attempted to warn the group that their planned event will end up endangering the lives of U.S. citizens and troops around the world. I don't think this is a reasonable or relevant observation.
   

   To begin with, any response by a member of the Muslim faithful to the burning of a copy of the Quran is their own responsibility, not the fault of the members of this congregation. No one has the right to respond with violence to what amounts, at most, an insult. It's useful to keep this in perspective: the books this Florida church plans to destroy are mere copies of the text; burning these books will not make it impossible for others to continue to teach or worship as they did before. This is not an impediment to anyone else's free exercise of their religion. And no one's health or welfare will be directly harmed by the book burning.
   

   That said, people will respond in various fashions, and some will be incited to violence. Some of the violence may happen where U.S. troops are currently stationed. Frankly, the best way to prevent violence against the troops is to move them to somewhere safe, especially home. By referring to the potential danger to U.S. troops, General Petraeus and President Obama seem to be trying to use guilt to stop the book burning; the implicit suggestion is that any subsequent violence around the world will amount to "blood on [this congregation's] hands." These statements come across as nothing more than an indirect way to pressure this group to cancel their plans.
   

   Sadly, there are also likely to be responses from those who support the views of Pastor Jones and his church. If the event goes forward, it might instigate copy cat burnings in other communities, or may inspire other groups to grab media attention with even more outrageous activities. If the burning is called off, sympathizers may act out against those whom they believe worked to shut down the event. Again, anyone who responds violently on either side should be held responsible for their actions, in accord with the law.
   

4. What this group is doing is insensitive and an inappropriate response to 9/11.

   Of course, the purpose of the protection of speech in America is to encourage reasoned discussion and debate in our community. To that end, it's welcome to have public officials, ecumenical leaders, and generally everyone else point out that burning copies of the holy book of any group is simply a manifestation of hatred toward the members of that group. Such an event adds nothing to our understanding of the causes and/or effects of the events of 9/11; instead, it acts to rend the ties in their community (and in any others which respond).
   

   I understand and defend their right to express their ideas in this fashion, but I can't say I appreciate or support it. While the government and elected officials have no right to tell them not to go ahead with their plans, I wish they would choose on their own to cancel their event, and I really wish I'd never heard of them at all in the first place.
   

Zojirushi

The Zojirushi corporation manufactures all kinds of consumer goods, including coffee makers. When we were looking for a new coffee maker, we decided to get one of theirs online; the description fit all our requirements, and online we didn't see any major negative reviews. Ours is a drip-style machine; water from a tank in back is pumped through a heating element and dripped through a basket of coffee grounds into a carafe.

We were happy with the machine's performance for about 6 - 7 months, when the pump abruptly failed. We were pleased enough with the experience to go ahead and buy another one as a replacement. Unfortunately, the second one failed in about the same amount of time, in the same fashion.

A coffee maker is one of those things that's hard to justify repairing, especially long distance when shipping costs are factored in. The time you spend on the phone and packing it up are also part of the cost. However, we had two of the same machines fail in the same way, so we figured it was worth alerting the company to see what they could do.

They came through with flying colors. I'm pretty sure that whatever the warranty was on the machines, it had expired by this time. They promptly offered to pay for shipping both ways to pick up, repair, and return both machines. We shipped only the brewer bodies for each; they suggested we hold on to the carafes because they didn't need repair. When they returned to us, it appeared that one was reparable (and came back without the carafe), and one was not. They seem to have decided to send us a new one to replace the second machine.

We've not yet had enough time with the returned machines to see if this problem will happen again. If we have one fail again in the same way, we'll at least contact them to see if they want to repair it further. In that case, I wouldn't recommend you purchase one of their coffee machines. Overall, though, I'd have to say I'm very impressed with their prompt and friendly customer support. If you're thinking of buying a Zojirushi product, you should at least factor in their apparent willingness to stand behind their product and keep the customer satisfied.

Copyright, economics, and the moral high ground

My friend Herman sent out a link to a blog post by Jason Robert Brown, which documents Brown's discussion with a teenager named Eleanor about "trading" Brown's sheet music online. It occurred to me that although Brown was correct about the law and his rights, and although Eleanor's invocation of the "starving artist" argument was weak, overall she had the better of the argument.

First, the conclusion: Brown does have the legal and moral right to control copies of his work. Almost all countries observe the Berne Convention, which governs what works can be protected by their authors and when that protection becomes active. The Convention provides for a minimum duration for the protection; individual countries can allow longer protection periods if they choose. Legally, Brown is right, and can enforce his copy rights either by asking infringers to stop or by suing them in court.

Eleanor is a fan of Brown's music, and enjoys performing his songs as part of her burgeoning career in theater. She complains that she's unable to get access to Brown's sheet music because she doesn't have a credit card (and so can't purchase it online), so she has to resort to a "trading" web site, which is apparently like Napster for sheet music. Brown points out that each song is about $4, it can probably be found in a store somewhere, and maybe even at the library, so she really has options that conform to the law. Maybe Eleanor lives in New York, and that's easy for her; maybe she lives somewhere else, where sheet music is harder to find. In either case, those truly are her only legal options. One wonders, in passing, how the young Jason Robert Brown secured access to sheet music as he grew up, and what affect that had on his development and career. Maybe he had a budget big enough to afford copies of the all works he needed or wanted; maybe he stuck to works whose copyright had expired? Or maybe he just had a great local library.

Eleanor ultimately gets her fair use argument wrong but makes two convincing economic points, both of which influence the publishing behavior of successful authors like Cory Doctorow, Stanford Law Professor Larry Lessig, and economic writer Kevin Carson. The first is (very broadly) that you literally lose nothing by giving your work away to someone who would or could not have otherwise paid for it; there's no lost sale in that case. There's a bit of nuance to the concept, because different people might have bought it at different prices (marginal utility), but overall the idea of a phantom "lost sale" still holds. The second is that unless people know who you are, you'll be able to own and protect 100% of a relatively smaller number of sales of your work. By treating the works you give away for free as a marketing expense, you "grow the pie"; as Eleanor points out, you increase your reputation, and that can have "network effects" down the road. Each of these authors is making money even though they also give copies of their works away for free. Why? Because people appreciate their talent and ideas, and still love having actual books, and they pay to come hear these thinkers address an audience. Such authors don't end up charging 100% of the people who enjoy their works for each copy, but the compensation they get is certainly more than the whole "pie" of a lesser or unknown author or artist.

Brown tries to justify his moral position by giving a few examples, two of which are weak for different reasons. His first anecdote is about a friend borrowing a screwdriver and not giving it back, but that's comparing apples to oranges; in the screwdriver, he has a property right in a non-reproducible physical object, which is different from his copyright in a reproducible digital work. The second anecdote describes a "lost sale" that the Thornton Wilder estate misses out on because his friend wants Brown's copy of a Wilder book, and doesn't want to buy his own. Brown argues that Wilder's estate deserves to benefit from the sale of another copy; that's true to a point, but it exposes the whole issue of the debatable and ever-lengthening copyright periods in the United States. How long should an artist be able to prevent others from copying their works? What are the trade-offs, the parties affected, and their relative utilities? The Berne Convention says protection should last no less than 50 years, but signatory states can set longer periods; the US has extended that quite considerably (to "life of the artist plus 75 years") and may continue to do so. He then gives a third example which gives a good overview of the concept of "fair use", and then is apparently surprised that a good discussion of copyright issues is available from the University of Texas web site ("Texas! Of all places!"). I guess he doesn't think he has a lot of fans in Texas. I'm also guessing he probably doesn't run all his blog posts past his agent for feedback.

Jason Robert Brown doesn't feel like he needs to give anything away to become better known, and maybe the struggling/starving artist idea doesn't resonate with him. That's fine; that's his right. In the end, though, there will certainly be other musical geniuses who market themselves like Doctorow, Lessig, and Carson; and people like Eleanor are going to share, perform, and enjoy their music, perhaps to the exclusion of people like Brown. The ugly truth is that you can maximally benefit from the "it's all mine" approach, a strict insistence on charging for every copy of your work, only if you're selling necessities; Brown's just not in that business. His sales will go up or down based on his reputation more than from his aggressive copyright enforcement. Eleanor has no legal or moral right to steal or share his sheet music; Brown has no moral obligation to make it available to her or anyone else for free. But by trying to get every dollar he can from his work, he may be putting a limit on his relevance and appeal. It will be interesting to watch it all play out.

Clinic experiences for evening law students

At law school, the legal clinics offer an opportunity to students to work on real issues with real clients. The University of Houston Law Center has a number of well-regarded clinics which are available to full-time students, or students who can commit to spending hours during the day. Sadly, no such program is offered (yet?) to the evening students. My thanks to Luke Gilman for the reference to:

David F. Chavkin, Clinic Under the Stars: Giving Part-Time Students Their Due, 13 Clinical L. Rev. 713 (2007). Some notes:

• It's possible to have a clinic which includes part time students, even a clinic which involves litigation work. Such a clinic would be designed to give students who have full time jobs plenty of notice of court appearances so they can ask for time off work. It would have to be in a practice area in which appearances are not frequently reset.
• ABA Standard 301(b) requires, in part, that "A law school shall ensure that all students have reasonably comparable opportunities to take advantage of the schools' educational programs, co-curricular programs, and other educational benefits."
• ABA Standard 302(b)(1): "(b) A law school shall offer substantial opportunities for: (1) live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence; ..."
• Clinic Under the Stars, p. 738 fn 67: "Although we refer to students in the evening clinic as part-time students, a better term for them would be 'more than full-time students.' ..."
• Running a successful clinic for evening students requires a full time commitment from a full faculty member, and at times significant support services for the clinic students. Full time students can be expected to handle "less important" tasks such as running to the courthouse to file a petition or send certified mail; clinic faculty might take on a more active support role so the limited time that evening students can commit to a clinic is better spent.

I wonder: how many evening students at UHLC would participate in a clinic, given Professor Chavkin's estimate that it requires an evening and weekend commitment of on the order of 26 hours per week for seven credits? If it were available, would I dedicate a semester to such a class for the practical experience it offers to me, and the legal assistance it offers to the clients?

America's Prophets

I'm reading America's Prophets - How Judicial Activism Makes America Great by UH Law Center professor David Dow. In the book, Dow describes the function of the biblical prophets in ancient Israel as cultural course correctors; their role was to tell the public when their practices were contrary to higher law. The prophets were, in effect, the visionaries who had the courage to tell the majority "no" when necessary.

In contrast, the priests were the ones who maintained cultural continuity; it was their job to preside over and defend norms of long standing. It was their job to look to the past for guidance. This metaphor is from page 11:

... We can think of priests and prophets as judges taking a ride together on a train. The priests are seated facing the rear. They can see backward along the rails all the way back to the depot from which the train began its journey. They believe that their job is to be experts on all that has transpired between the origin of their culture and the location at which they reside at the moment. The prophets face sideways. Turning their heads one way, they see what the priests see. Turning their heads the opposite direction, they see forward. They cannot see to the end of the track, perhaps, bu they can see some distance into the future. Of course, to continue with this metaphor, there will be spots in the future that the prophetic judge, no matter how keen her vision cannot see. ... Nevertheless, the prophetic judge can see some distance into the future, and the prophetic judges believe that their job is to ascertain, based on the vector from which they have come, where they are going.

How is a US Supreme Court justice like a prophet in the Bible? In our political system, the Constitution provides the higher law, the foundational framework against which all legislation must be measured. Like the Jewish prophet who warns the people when they stray from their fundamental goals and principles, the activist judge is in the position of saying "no" to the Congress and the majority it represents, when the Congress (or a state) attempts to enact a law which runs counter to the Constitution. This is not a comfortable role for a judge to play; as any parent knows, saying "no" invites an emotional backlash. Without judges performing this role, however, we run the risk of subjecting less powerful groups to the tyranny of the majority, a concept first described by Alexis de Tocqueville, and later mentioned in the Federalist papers.

Are these "activist judges" imposing their personal morality, ethics, or interpretation of the Constitution on the rest of us? Or are their decisions based on a strict application of legal reasoning to the text and principles of the Constitution? Dow gives us the examples of Plessy v. Ferguson and Brown v. Board of Education as examples of "priestly" and "prophetic" approaches to racial equality, and promises to visit other similarly controversial examples of "activism" later in the book. He asserts that the prophetic course corrections are grounded in good law and reasoning; they would have to be, given the decisions and rationale are all public. However, I've not yet read his analysis of the various cases; those are later in the book.

On a related note, can "activist" judges on the US Supreme Court be identified by their ideology? Some interesting research from Dow and collaborators:

A study of the last ten years of the Rehnquist Court reveals that a justice's deference score* depends on something besides a judge's simple belief that the majority should be free to do as it sees fit. For example, the same justices who are most willing to tell the majority no when Congress intrudes on individual liberty (i.e., Justices Stevens and Souter in the aforementioned study) are least willing to tell the majority no when Congress intrudes on the states. Conversely, the justices most protective of the states, and therefore most willing to tell Congress no when it interferes with state power (i.e., Justices Scalia and Thomas), are least willing to tell Congress no when it interferes with individual rights. ...

I'm not even half way through the book, and I find it fascinating, hard to put down. The idea of the judiciary as a brake on the majority is a concept I've been trying to articulate and logically frame for myself for a while, and here's a book by an author who's thought it through and is a compelling writer. I'm hooked.

* A judge's deference score describes how often a judge defers to Congress and the majority it represents. A judge receives a positive score (+1) for each time he or she votes or holds that the law is consistent with the Constitution, and need not change. A judge receives a negative score (-1) for each time he or she decides a law is unconstitutional.

Like butter on bread

"I feel thin — sort of stretched, like butter scraped over too much bread."

Bilbo Baggins to the wizard Gandalf
The Fellowship of the Ring (the Lord of the Rings Trilogy)
Written by J.R.R. Tolkein