Connected in the Jury Box

There appears to be a growing problem with the interface between technology and the jury box.  In Maryland alone, we have two high profile situations that illustrate the problem.  The Daily Record has reported both of these incidents.  Both the Baltimore Sun and the ABA Journal have picked up the story.

The Court of Appeals recently threw out a first-degree felony murder conviction because a juror conducted an independent search on the internet for information to answer questions that the juror had about the case.  It was the second time this year that that Court of Appeals has ruled that outside research tainted a jury decision.

In Baltimore, we have just witnessed a media frenzy over the corruption trial of Mayor Shelia Dixon.  Jurors in the case were given the usual instruction not to discuss the case outside of the jury room.  This include a specific warning about using social media like Twitter.  After the verdict, reports circulated that jurors had been communicating with one another through Facebook outside of the courthouse.


The legal principles here are time honored.  What is new is that the rise of technology and Internet search make it so easy to communicate and access information outside (or even inside) the courtroom.  Internet search is one of the most powerful developments to come out of the Internet Age, making enormous amounts of information available and manageable with a few keystrokes and clicks of a computer.  Social media like Twitter and Facebook make communication easier and a part of our lives.  Both of these developments are becoming a fundamental part of modern life.  Technology has now made them ubiquitous by putting these tools in our hands in the form of  texting, smartphones, devices like the iPod Touch, and netbooks.  We no longer need to get to a computer at home or at work to search the web or communicate with others.

Is Phil Agre Out There?

Andy Carvin, a technology blogger now working for National Public Radio reports in All Tech Considered on The Mysterious Disappearance of Phil Agre.  Agre was an information studies professor at U.C.L.A. that Carvin describes as a "well-known Internet researcher and online publishing pioneer with fans all over the world."   Despite this notoriety, Agre was reclusive and seems to have disappeared or "gone off the grid" over a year ago without folks noticing at first and only now reaching the point of beginning a concerted  search for him.


This is an intriguing mystery, but it also poignantly shows how we perceive that we are connected and brought closer together by the Internet and social media, but people can slip away without our ever knowing. If Phil Agre is out there, help find him.  Share Carvin's story.  Join his fan page on Facebook or the Google group created by his friends who are trying to find him.

Quick Byte: Online Wills

Professor Gerry Beyer reports today in his Wills, Trusts & Estates Prof Blog on a Wall Street Journal article by Jane Hodges about online wills,  Before It's Too Late: A Test of Online Wills, WSJ, Nov. 12, 2009.  The Journal article reviews various online will preparation software, using a hypothetical married couple to test the products.  Beyer notes that the article has already been roundly criticized, particularly in a blog post by David A. Shulman, a South Florida estate planning attorney, entitled The Wall Street Journal Totally Blows it on Online Wills.  Beyer concludes by saying, "Maybe the real test will come when the hypothetical couple hypothetically passes away."

Dying in the Digital Age

I may not be the first to call your attention to this, but I have written before about the issues associated with our cyberspace identities when we die.  Increasingly, we have multifaceted virtual identities through our computers and the Internet.  We have passwords for accessing everything from bank accounts, to email accounts, to Facebook pages, to Twitter, and everything in between and beyond.  Some of these facets of our virtual selves may be more meaningful than others.  Social networking pages on sites like Facebook or My Space may carry with them many memories and emotional ties.  Other accounts on the Internet may contain important financial information.

So, you may be interested in a number of new articles that I came across today through Prof. Gerry Beyer's Wills, Trusts & Estates Prof Blog in a post entitled "Accessing Email & Social Networking Accounts After A Loved-One's Death".  Beyer begins by asking the question: "What happens to an email or social networking account when the account owner dies?"  He follows that by discussing another article by Andrew Ramadge in news.com.au entitled "What Happens to Your Email When You Die?"  For good measure, Beyer links to his own earlier post on "What to Do When a Facebook Friend Passes Away."  These are both worth reading.

Also of interest may be Jon Gordon's piece on Future Tense entitled "The Death Switch," which discusses an online service, Deathswitch, which provides a way for your family and others to access critical information  after death.  Deathswitch operates by setting up certain protocols and checks to determine if you are likely   
"you've gone toes up" (Gordon's phrase).

Can the Internet Help Solve a Baseball Mystery?: October and Rare Film of Babe Ruth

October 11, 2009.  On this Sunday afternoon, the Boston Red Sox lost to the Los Angeles Angels, and were swept out of the American League Divisional series in three games.  In 1928, the World Series was already over, the New York Yankees having swept the St. Louis Cardinals in four games, clinching the series on October 9 with a 7-3 win in St. Louis.  Babe Ruth hit three home runs for the Yankees in the finale at Sportman's Park.  Now, a New Hampshire man going through his grandfather's home movie collection may have discovered footage of one of the two 1928 Series games in New York.

On Thursday, the New York Times ran a story about a newly found 90 second film of the Babe shot from the first base stands in the old Yankee Stadium.  Before a packed stadium, Ruth is seen playing left field, striking out and arguing with the umpire (with Lou Gehrig looking on).  Beyond that, much of the rest of the rough footage is a mystery.

Although Ruth hit .625 in the 1928 World Series as a whole, he had only six extra base hits, three of which were the home runs in Game 4 in St. Louis, and only four runs batted in, so he apparently was less than dominating in the earlier games of the Series. (By contrast, Gehrig batted .545, but had four home runs (only one of which was in the final game in St. Louis) and nine runs batted in. 

Because of various elements in the footage, such as signage in Yankee Stadium, uniforms without numbers and the Ruth-Gehrig pairing/order in the lineup, baseball archivists for Major League Baseball think the film may date from 1928.  The large crowd and the long shadows on the field suggest that the game may have occurred late in the season, possibly one of the two World Series Games played in Yankee Stadium in 1928, but  archivists cannot identify the opposing team and the Yankees had a tight pennant race at the end of the 1928 season, winning the American League pennant by only 2 1/2 games over the Athletics.

The archivists need help in filling the details.  The New York Times has the video on its sight.  In the age of the Internet, the hope seems to be that video can be seen by millions and someone may see the footage of the Babe who knows more about when it was made and the game from which it was taken.  So, Yankees fan or not, you can help solve a mystery.  If you, or someone you know, may have attended a Yankees game that season or is a devoted baseball fan, go to the New York Times article, have a look at the video and see if you can add some additional facts about this 90 seconds of celluloid of baseball history eighty years ago.  And, if you have some old baseball home movies, see if you have any footage of Babe Ruth pitching for the Boston Red Sox.  The archivists at Major League Baseball are still looking for that rarity.

Postscript:  On Sunday evening the New York Yankees completed their three game sweep of the Minnesota Twins to advance to the American League Championship against the Los Angeles Angels.

Mini-Byte: Reputation and the Internet

October 9, 2009.
This morning's email brought advance notice of an article that will appear in the upcoming issue of Warren, Gorham & Lamont's Estate Planning Journal, entitled "Protecting a Family's Good Name in the Internet Age", by Patricia M. Soldano and Michelle Jordan.  I recommend reading the article in full. Here is the opening summary:

Today, bad publicity on the Internet can quickly inflict long-term damage to a family's hard-earned reputation. This article explains how a family can manage and enhance its online good name and the legacy for which the family wishes to be recognized.

The article discusses a number of issues concerning managing and protecting the reputation of high-net worth families in the public domain of the Internet.  Examples such as Internet search (Google, Yahoo, Bing) and social networking media (Facebook, MySpace, LinkedIn, Shuttefly, etc.) are cited as sources for information about families and their financial and personal situations.  There is a cautionary discussion of how damaging information gets out on the Internet, including how clients and their families may unintentionally or unwittingly post information that they will later regret having made public. Tellingly, the article cautions:

. . . it is well to remember that what goes up [on the Internet] stays up and is accessible to anyone who cares to find it for little cost, or for free.

 The article contains numerous insights, including a discussion of how to manage information on the Internet and how to react and  minimize the impact of damaging or unflattering information that becomes available online.  There is discussion of recent situations, including the example of swimmer Michael Phelps' recent difficulties with his image.

Sorry, no hyperlink to the article here.  If you are a subscriber to RIA's Checkpoint service with access to the WGL Journals, look for the article online under the preview of the upcoming issue of the Estate Planning Journal.  Others can look for the article in print when the new issue comes out.

Mini-Byte: Is Your Cellphone Company "Green"?

On October 5, The New York Times Blog Green, Inc. ran a report entitled "How Green Is Your Mobile Phone Company?".  Citing a study by ABI Research, Green, Inc. reported that AT&T Wireless was the best, with Nextel not far behind, and Verizon trailing in third.  Computer and telecommunication businesses are only reported to be responsible for 2% to 3% of greenhouse gases, with mobile phone networks only producing .2% of that estimate.  Still, author Jim Witkin notes that the industry makes considerable annual expenditures on energy to power networks. AT&T's annual report notes a reduction in CO2 emissions by 207,549 metric tons in 2008, the equivalent of taking 40,000 cars off the road.

Cellphone Users Unite!

While some of us wait for the day when we can get on iPhone on our network of choice, others are taking the cellphone providers to task for their monopolistic practices designed to suck money out the pockets of users. A leading crusader in the regard is David Pogue, whose Pogue's Posts appear in The New York Times. Pogue was recently interviewed on American Public Media's Future Tense, where he and host Jon Gordon discussed Pogue's list of complaints about the way cellphone networks bill for services.

Pogue campaigned to get users on Verizon, Sprint, T-Mobile, and AT&T to rise up and object to the 15 second instructions that greet users when they try to retrieve voice mail. As Gordon summarized, Pogue contends that such messages "amount to theft of customers money and time." In the interview, Gordon probes Pogue on his other concerns about cellphone billing practices.

Gordon did a series of programs in August on cellphone issues. Several of these reports deal with Gordon's quest to buy a new cellphone that was just right for him. Another report highlighted that Americans pay more for their cellphones and service than most of the rest of the world. High cellphone costs in the U.S. are attributable to our ubiquitous use of cellphones, the billing practices with which Pogue has taken issue, and lack of real competition in the cellular service industry. Finally, as we might have guessed, Gordon highlighted a study by the Pew Internet and American Life Project that found that Americans ages 12 to 17 are adopting and using cellphones at a rate comparable to adults.

Microsoft: Looking Backward?

Jon Gordon ran an interview on the July 14, 2009 edition of American Public Media's Future Tense entitled "A conversation with Microsoft chief strategist Craig Mundie". Mundie is the Chief Researcher and Strategist at Microsoft. He was commenting on the Microsoft's upcoming Office 2010 and Google's Chrome OS.

In listening to the interview, however, I was amazed that, if you translated out the corporate business speak, Mundie's began by stating that what Microsoft sees happening is a "convergence"of traditional applications for the personal computer with the communications capability of the mobile telephone. Mundie thinks the future will bring a "merging" of "popular communications paradigms" and the "idea that people want to work together." He concludes:

“So the idea that we can support a remote collaboration as something that that supports both the work part and the communications part in a multi-party environment – that’s one of the major focuses in the next generation of Office."
If he had forecast these things in two or three years ago, when most of these developments started to occur, and Microsoft had acted then, Microsoft would be in much better position today."

Mundie sounds like he is just beginning to get the implications of iPods and iPhones. social networking on the web, laptops and netbooks. Google started offering web-based versions of traditional computer based applications like word processing and spreadsheets several years ago.

Gordon then asked Mundie to comment on Google's announcement of a new operating system, Chrome OS, and what Microsoft was planning for its operating system after Windows 7. Here is Mundie's reply:

"The computer itself is going to change in quite substantive ways in the next three to five years. And with that will come a new level of capability to make it easier for people to interact with computer, to put computing in, you know, more places in peoples lives and to make in a more natural experience for how they interact with it.. In my mind, the evolution of our operating system will naturally track forward with these improved capabilities in the underlying hardware and the devices that people will use to access computing. And that will give us many new capabilities in the future, including a natural user interface, where you can speak to the computer and it can speak back, where it has machine vision though cameras, and, so, there will be many, many more components of human-like interaction in our vision of the future.”

This answer really does not say much more than we are going to make a better operating system to do the things people want to do. There is not much vision here about the what people want beyond a "more natural experience" and "more components of human-like interaction." Perhaps, when he said this, Mundie was having a flashback of HAL in 2001: A Space Odyssey.

Gordon presses for details, specifically, whether Microsoft embraces the approach that Google seems to be taking -- an operating system that runs one or two applications, such as a browser, with the rest of the applications being run on web-based platforms through the browser -- in the cloud of the Internet. Mundie thinks that people want something more powerful on their own computer, that Gordon's formulation will be found to be "too restrictive." He cites the evolution of Google's Android operating system for mobile phones and says that it has come to look more like Microsoft's phone based operating systems.

It is hard to have much confidence in this view of the future. Microsoft is clearly looking over its shoulder at the competition from Apple and Google and trying to replicate things they have already done. At this point, it is a safe bet that people want computing to be easier and more natural and they want it to be more mobile, for personal and business purposes. With its massive Windows OS, Microsoft has a vested interest in a future that is still based on complicated multi-tasking on individual computers. (I believe that Future Tense ran another report, however, in which there was speculation that Microsoft would abandon Windows all together after Windows 2010, because it has become too complicated.)

This brings us back to another observation that has already been made: Micosoft is still a software company. Outside of the X-Box, it has not produced a successful hardware product. Its development of the Zune illustrates that even when they can figure out what the market wants, Microsoft is slow to get it right. (In truth, Apple figured out what the market wanted, and Microsoft has been playing catch-up.)

Mundie's vision of the future is to ill-defined to provide much direction. Is Microsoft counting on people wanting more robust netbooks or Internet based "cloud" applications, or both? (As I write this, HP has just begun selling a new, more powerful netbook, the HP Mini 5101. It will be interesting to see how these improved netbooks sell.)

With the growth of activity on social networking sites on the web, it seems reasonable to believe that people (of all ages, judging from recent trend in Facebook demographics) are ready to do more with Internet based applications. Netbooks have been unspectacular so far, but have the potential --as a smaller, portable platform -- to reach such web-based functions. Mundie seems to identify this trend early in the interview when he talks about the "merging" of "video telephony, audio telephony, instant messaging ("ah, you know, the popular communications paradigms") and the "idea that people want to work together." He also cites the interest in being "green" and traveling less.

It is clear that the iPod and iPhone and social networking on the Internet have drive a large number of users into a different kind of computing, one based increasingly on mobile devices. It is also no secret that the history of computing points toward smaller devices with more power. What Mundie cannot quite figure out is where business users are going.

Because Microsoft software has become so ubiquitous in the business environment, one of Microsoft's big challenges is figuring out where business users want to go. It may be logical to conclude that iPhones and other more robust devices may not be able to satisfy the all the needs of business users, but that does lead to the conclusion that such users want or need their laptop or netbook to be as powerful as a traditional desktop. I think business too wants smaller, more agile devices and computing that, as Mundie said, reduces travel.

I have used a old Toshiba laptop on the road for work for several years now and my practice is to put as little on the laptop as possible, both in programs and stored files. I want it to work as access to the Internet when that is available and to let me work on some things when I cannot access the Internet. I started writing these comments at home on a Sunday, not on my desktop, but on the Internet using Google's blogspot. I am finishing them the same way from New Mexico. I do not have to worry about saving them on my hard-drive or a flash drive or e-mailing them to myself. I just have to get to Google online. Why is this not the next paradigm?

What Microsoft may want to do is take a look at its array of software and make it more efficient and more integrated, not big, bulkier, but lighter and better able to handle the basic functions that all users want. Word and Excel may be everywhere, but Microsoft seems to make them maddeningly difficult to use. For example, Microsoft seems intent on forcing everyone to upgrade to the latest version of Word or Excel, because the files produced by Word 2007 or Excel 2007 cannot be opened by older versions of those programs. I have clients who send me new Word 2007 or Excel 2007 files and I need a patch that converts them before I can view them. Walter Mossberg reports at All Things Digital on the difficulties all of us XP users are going to have upgrading to Windows 7.

Fully functional software would serve Microsoft far better in the long run and cleaner, leaner versions will open up new markets. I hope that is what all of Mundie's gibberish means Microsoft is going to do. Mr. Mundie should remember Satchel Paige's famous remark: "Don't look back. Something could be gaining on you."

Google Books III - Too BIG?

On July 24, 2009, The Wall Street Journal's Law Blog reported on judicial review of the proposed copyright settlement between Google and book publishers. As previously reported here, Google embarked on a massive project to digitize every book ever written and was sued by publishers for copyright infringement. The two sides reached a proposed settlement agreement last year. Having sent Bernard Madoff away for 150 years, New York federal judge Denny Chin is now trying to complete review of this complex copyright settlement.

Law Blog reports:

Judge Chin is slated to make a final determination on the proposed settlement, which allows Google ultimately to allow access to preview of books that are still under copyright but are out of print, and to sell access to them, later this year. Click here for a Washington Post article from last fall on the settlement.

But regardless of what Judge Chin decides, Google is pushing ahead with the broader project. And according to a Boston Globe article out Friday, Google has already scanned some 10 million books, of which 1.5 million are now available online for free. A growing concern, according to the Globe, deals not with not copyright but antitrust: that Google will end up with monopolistic control of access to millions of scanned digital books.
“Google is creating a mega bookstore the likes of which we have never seen,’’ said Maura Marx, executive director of Open Knowledge Commons, a Boston nonprofit organization. “People are very uncomfortable with the idea that one corporation has so much power over such a large collection of knowledge.’’

These are some of the concerns raised in my post earlier this year. The WSJ Law Blog reports that Google is moving "full steam ahead" with the book project. Stay tuned for further developments.

Bada Bing, Bada Boom

There is a lot of hype out right now about Bing, Microsoft's new search (or if you prefer, decision) engine. I have tested Bing a couple of times, and it is not bad. It is different in some ways from Google, but I am still unconvinced that it is "better" than Google. One of the claims that Microsoft is making in its expensive advertising campaign to promote Bing is that it actually produces the result that you are looking for better than the competition. The competition is, of course, Google,and let's not forget Yahoo.

I decide to give these three search engines a test on a topical search. I wanted to look for a copy of Michael Jackson's Will, which I know is out there online, because I have seen it through a link in a Twitter message. So, I typed "michael jackson's will" in to Bing, Google and Yahoo. This is a some what tricky search because of the combination of "michael jackson" and "will". It can turn up all kind of results because "will" is more prevalent as a verb and also appears in at least one prominent Michael Jackson song title. So I intentionally added the possessive to help the search along.

Google turned up a good link to the Will as its third result. Yahoo showed a different, but good link to the Will as its sixth result. Google and Yahoo also had numerous results linking to news coverage of the Will. Bing, however, failed to show a good result for the Will itself, instead producing a large array of other Michael Jackson results, and had no results of news coverage on the Will.

Sorry, Bing, you lose in this test.

Update July 14, 2009:

All Things Digital Columnist Peter Kafka put out Microsoft's Bing Problem: Google Is Just Fine this morning that pretty much covers the real challenge for Bing. Microsoft is spending big money on getting people to try Bing, and some people are being moved to do so, but the challenge is getting people to switch to Bing. I have tried Bing, and it works well, but I am a regular Google user and I am not sure that I see enough difference in what Bing is doing to cause me to stop using Google and switch to Bing. Kafka's article cites a JP Morgan survey that indicates only 4 in 10 users turned to Bing more than 5 times in June. It also indicates that Microsoft's percentage gain in search share is probably coming at the expense of other marginal players in the search game, such as Ask and AOL, not from Google's followers.

Another problem for Microsoft also may be that Google and Yahoo have established popular portals to the internet around their search engines by allowing users to customize their search website screens. Google has attracted a huge number of programmers who have developed "gadgets" to function on its portal. I use a customized Google homepage, with gadgets linking me to media publications, websites, gmail, Twitter, financial information, sports scores and weather, as well as additional tabs marked "Literary,""Leisure" and "Business" for other gadgets. Google also provides templates to customize the appearance of your pages, with themes and other extras. I have been using for some time an artist theme based on Dale Chihuly's blown glass sculpture.

Yahoo does the same thing, and I have a customized Yahoo page as well. I sometimes prefer this Yahoo page, mainly because it provides a gadget for market financial information through Yahoo Finance, which is far superior to any of the market data gadgets that I can find for Google.

Microsoft has MSN as a portal. MSN, however, has struggled to attract users much the same way as Microsoft's search services have. Users, like me, who are happy with Google or Yahoo customized portals, or with other popular sites like YouTube or a customized Facebook page, are not likely to want to switch over to MSN just to get Bing as a search engine.

It seems that technology has fully entered an age in which allowing users to show their individuality is very important. Younger users now expect to have their own home pages, to customize their browsers, to post their lives online through Facebook or Twitter. The numbers show that older generations are catching up too. The Facebook demographics are graying as more and more parents and grandparents join their children and grandchildren online.

Users of all ages now "layer" their Internet experience, picking and customizing a web browser, then picking and customizing a homepage that launches with the browser, and then perhaps having numerous other customized sites out like Facebook or Twitter. Somewhere in this mix is a default search engine, and my guess is that people are sticking with Google or Yahoo because they have already spent considerable time customizing their home page and the search engine that they have and that, as Kafka says, "is already working just fine".

In short, Microsoft is not offering enough distinction in Bing or MSN to drive users there.

Update November 30, 2009:  Perez Hilton???

And the winner is ...... Perez Hilton?!?!?!?  The category is most searched celebrity on Bing during 2009.  Too wild to be true, or a bug in your Bing?  See Kara Swisher's post today on All Things Digital,"A Bing Bug? If Not, How Did This Dude Beat Out Megan Fox and the Even Prettier Robert Pattinson for Most-Searched Celeb?"

MSBA on Twitter

As reported in the June 2009 MSBA Bar Brief, the Maryland State Bar Association is now communicating through Twitter:

TECH TIP OF THE MONTH

FOLLOW MSBA ON TWITTER

Two departments at MSBA now have Twitter accounts - Janet Eveleth) Director of Communications and Pat Yevics, Director of Law Office Management Start following Janet and Communications on http://twitter.com/MarylandBar at and Pat and LOMA at http://twitter.com/MSBALOMA Rules for using Social Media in the Law Firm can be found at the LOMA Article website or in the March issue of the Bar Bulletin

Where We Begin

This blog is an extension of a column that I write semi-annually in a legal newsletter, so let's begin with the most recent example of the column, which has not been published yet and which explains some of the limitations of that forum:

Meet the New Boss, Same as the Old Boss?

March 31, 2009

One of the problems that I have in writing about technology in a semi-annual print publication is that by the time you read this, almost everything you are reading is old news. Technology itself, particularly the internet, unceasingly has reshaped the exchange of ideas in our world. In my last column, I wrote a bit about the difficulties of the newspaper business. By the time that column reached you, the crisis in newspaper publishing had reached such institutions as The New York Times. Major daily newspapers have folded. The Baltimore Examiner ceased publishing in February. The Tribune Company, which owns The Baltimore Sun, has filed for bankruptcy. The Rocky Mountain Times went out of business. As I finish this column, the parent company of The Chicago Sun-Times has filed for bankruptcy. There is trouble in other print media too. Forbes Media has cut pay and Condé Nast has cut jobs.

Newspapers are in trouble. Some might say that the internet has made newspapers obsolete or that newspapers have failed to adapt and provide websites with content sufficient to attract a new audience that wants its news more quickly and directly online. Of course, some newspapers did not or do not “get” the internet. There are others that have clearly established prominent websites that are providing substantial and desirable information online, such as The New York Times or The Wall Street Journal, but which still have financial woes.

A closer look at the newspaper crisis reveals why even print publications with a prominent web presence are still suffering. At the heart of the problem is not a failure to provide competitive content on online, but a failure to make enough money doing so.

Be it print, or broadcast or internet, most mass media make their money by selling advertising. Traditionally, print advertising costs more, as it has to support the large enterprise that is a major newspaper (writers, photographers, editors, management, buildings, communications, printing, distribution networks and all of the related support). By contrast, internet advertising is cheaper. The internet has leveled the playing field, such that much smaller enterprises can compete with powerful icons like The New York Times or The Washington Post or The Wall Street Journal. Staffing and physical facilities are smaller or non-existent. With a computer and access to the internet, anyone can start a blog or a website and aspire to be the next Matt Drudge. Although The New York Times has cachet because of its creative and editorial talent, it has costs way beyond that nucleus of talent if it wants to put a newspaper on doorsteps each day.

The consumers deserting the daily newspaper may be shifting to online versions of those publications, but the newspapers are not making enough money online to offset their decline in advertising revenue on the print side. Newspapers have survived and adapted to challenges from radio and television, and they yet may do the same in the face of the internet. (Radio and television are also facing similar challenges from the internet.) In order to survive, however, newspapers will be different in the future. The large, labor intense organization model is already disappearing. Foreign bureaus are closing. Staffs are shrinking. Paper size is shrinking.

A brave new world lies ahead. The fundamental question is whether all this change will be for the better. News organizations like The New York Times or The Wall Street Journal provide something vitally needed: in-depth analysis. Their investment in journalists and in the investigative, long-view approach is under assault for business reasons, but our public discourse will be diminished by the loss of such voices. This kind of analysis and function may fall to a non-profit or philanthropic business model in the future, or we may have analysis controlled by the likes of Rupert Murdoch. Let us hope that we can find a way to save these vital elements in the world to come.

Technology’s transmutation of the information age will continue, but there are vital issues that must be monitored. There are questions about who will control our ideas, identities, and personal information in the technological age. Let’s take a look at some examples.

Google Books II

Growing up, our family drove Chevrolets, built in America by Americans, and bought by Americans. My first car was a Chevrolet. It was an iconic time in America. By the time I got out of college, my car was a Toyota. I have not owned a car from an American carmaker since. As I make final changes in this column, General Motors is on the brink of bankruptcy, a dinosaur reaching extinction, or at least gone as an icon of American industry. We are not going to bring back the past.

With corporate giants like General Motors fading, their place is being taken by the new corporate giants of technology. Giants like Google. Because Google does not sit still and is ever looking to expand, it is a common target. What you are about to read is not highly original analysis, but a synthesis of things others have reported. There are issues deeply imbedded in Google’s view of the future and here is where we need the analysis of many minds to look at that view.

Previously, I wrote about Google’s attempt to make every book ever written available on the internet. At first this seemed to be a fantastic dream, an impossibly wonderful idea. It crystallizes an image of Google that is romantic and attractive, while at the same time having a much darker side.

Google is still a place that thinks big and pushes the envelope. In seeking to connect all of the written knowledge of the world under the big tent of the internet, available to all, in a kind of internet Library of Alexandria, Google would seem to be fulfilling one of the grandest promises available in the age of technology. From all I have read, this is Google’s intent. So what is wrong here?

First of all, Google ran into a few problems with copyrighted works. People who hold the legal rights to the ideas contained in all those books were not too pleased with the prospect of those ideas being appropriated and distributed by Google (at least without compensation). In an earlier Technology Bytes, I discussed the underlying clash between copyright and fair use and the free exchange of information for intellectual purposes (rather than profit).

Now Google has settled that litigation. That settlement, however, brings forward a more troubling potential outcome. Because Google is a corporate Goliath in this fight, its settlement will set the bar for any competition. In effect, the settlement may lock out everyone else from digitizing the world’s books, because lesser enterprises lack Google’s money and resources to accomplish the task and they lack the economic leverage to compete with the kind of deal that Google struck with publishers, or to fashion their own deals. Thus, Google may accomplish its goal (or a substantial part of it), and, in doing so, it may end up controlling a vast storehouse of knowledge.

Let us remember that Google is not a non-profit library or foundation, but a for-profit corporation. It is not a far stretch to think that in some less benevolent corporate time to come, when Sergey Brin and Larry Page are gone, the masters of Google may want to make more money off of their control of all this knowledge. There has been much commentary on Google’s settlement of this litigation, but I would recommend an article in The New York Review of Books by Robert Darnton, the Carl H. Pforzheimer University Professor at Harvard, entitled Google and The Future of Books, in which he discusses in greater detail the promises and pitfalls that Google’s success may bring to the exchange of knowledge and ideas. (To find this article, Google: “Robert Darnton” Google Settlement.)

Essentially, Darnton asks whether we should entrust such a storehouse of knowledge to a for-profit enterprise without some guarantees that such trust will not be misused.

Who are You?

Facebook recently set off a major protest by seeking to keep participants’ posted information after participants close their Facebook account.

Whether or not you realize it, social networking has become an established part of our world. For those who are unfamiliar with social networking, probably the best known examples are Facebook or MySpace. These are websites that allow people to create their own pages, including photographs and other personal information. Users then are encouraged to link or connect their webpage with that of their friends and relatives. When these sites gain a sizeable user base, the result is a social network, groupings of people connected on the internet and using the site as a way to keep their circle of connections posted on the important things going on in their lives. These sites usually are free, with the provider making money through advertising posted on the site and viewed by users.

If you have a teenager or a college student in your family, it is very likely that they have a Facebook or MySpace page. Interestingly, however, the fastest growing demographic in this area is now older individuals. Our children are finding that a province of the internet that they formally dominated is being populated in increasing numbers by their parents and grandparents. This concept has also moved into other areas, such as business networking through sites like LinkedIn. Many affinity groups have established their own social networks. For example, The Johns Hopkins University has is its own network, linking its alumni and alumnae, called InCircle. Robert Frank recently reported in his The Wealth Report blog in The Wall Street Journal that the rich now have their own social-networking sites, like Diamond Lounge or A Small World, but such sites are having a problem keeping the mere bourgeois or worse from showing up in their online networks.

These networking sites usually operate on an invitational basis. You can establish an account and post your information and you can invite others to link to your site. Other users can invite you to link to their sites. So, a high school student will set up a site and post pictures and information and commentary on Facebook and he or she will invite their friends to link to their site and vice versa. Business associates do the same with a site like LinkedIn. To one degree or another, all of these sites encourage participants to interact and post information, and most importantly, extend the network further, to grow their circle (and, in turn, grow the user base of the website).

On each of these sites, some or a substantial amount of personal information is placed on the user’s page. Care should be exercised in regard to what information is posted on these sites, because such information is readily accessible to anyone who has access to the site, and access may be available to anyone. Because prospective colleges or employers may search the web for information on a prospective applicant, this advice is usually directed at younger users, who often post text and pictures with respect to conduct or opinions that later may prove embarrassing. It is solid advice to all users of these sites, however. If you embark on establishing a profile on one of these sites, be sure you consider carefully your reasons for doing so and the possible consequences of the information that you post.

Now back to Facebook. When you use these social networking sites, you are subject to the terms of service issued by the site. These terms of service cover a number of areas, including the rights of the provider to regulate unacceptable conduct on the site and who has legal rights to the information that has been posted on the site. Most people do not study these terms of service in detail and they assume that the personal information that they post belongs to them. That may not be the case.

Facebook had terms of service that stated that when a user decided to leave the site and terminate his or her page, any information posted on the page would be destroyed. Recently, Facebook unveiled new terms of service that changed this provision to state that any information contained on Facebook when the user terminated would remain the property of Facebook. This change was noted by an online watchdog site, which lead to a vigorous protest against the change. This protest resulted in a cryptic withdrawal [“for now”] of the new terms of service from Facebook founder, Mark Zuckerberg. Zuckerberg’s statement left the implication that Facebook would come back with a revised, re-thought version of the new terms of service, which, once again, would stake out rights to personal information posted by users.

The immediate issue here is fairly clear. For many users, these sites have become an important part of their identity and their social connection. They invest considerable time in maintaining their site and fill it with information about themselves, often intensely personal information. They view their sites as an extension of themselves. To think that all that information will be kept by Facebook or another provider seems improper, as if the provider is stealing the user’s identity.

From the provider’s point of view, however, the information posted by users can be a valuable source of revenue. This has nothing to do with identity theft and is not unique to Facebook. Whether it is Facebook or Amazon or Google, what you do or post on the internet, coupled with your demographic profile, represents valuable information for marketing and future business development. If you have ever purchased a book on Amazon and established a customer identity, you probably receive email advertising from Amazon. When you go to Amazon to shop, Amazon provides you with recommendations of other books or products that you might be interested in buying. What Amazon is doing is using your purchasing history to predict what it might sell you in the future. If you use Amazon with some regularity and review their recommendations, you may note that Amazon does a fairly good job at targeting this research to your tastes. Personally, I measure Amazon’s effectiveness both by the number of times that it has identified items I might be interested in buying and items that I already have (purchased somewhere else).

Internet users have a justifiable concern that their personal information is protected and is not being used for purposes that are questionable at best, or worse. For Facebook to try to modify its terms of service to give it rights to users’ personal information without highlighting this change, justifiably gives rise to suspicion over what Facebook will be doing with that information.

Unfortunately, we all may want to ask such questions about many other internet businesses and services to whom we routinely give personal information of some kind; perhaps, significant amounts of personal information, and whose terms of service we may never have really reviewed. Future Tense recently reported on the privacy disasters that seem to plague many internet enterprises, including Facebook. Yahoo ended up in multi-million dollar litigation and much public censure for turning over user information to Chinese government authorities. (You can find other examples of technology businesses mishandling of personal information in the report profiled by Future Tense, Privacy and Free Speech: It’s Good for Business, from the ACLU of North California at

http://aclunc.org/docs/technology/privacy_and_free_speech_it%27s_good_for_business.pdf .)

The problem is not that these internet enterprises are intentionally using personal information for improper purposes. The problem is more benign and, at the same time, more dangerous. As Future Tense noted in its report, these internet enterprises often are not thinking about the privacy issues involved with the personal information that they collect. They collect more information than they need, they keep it longer than they should, and they do not carefully consider the consequences of using such information in some future business application. Thus, almost unwittingly, such businesses like Facebook stumble into awkward situations in which they are putting the information that they have collected at risk.

The message here is be careful how much information you put out there on the internet about yourself, and think more about what may happen to that information and how the provider protects that information from disclosure. Your identity may not be entirely your own anymore.

ESI

Let’s talk about ESI. No, ESI is not a typo of CSI, but ESI may be as intriguing a subject as a television crime show. ESI is “electronically stored information”. As I recently learned at an ACTEC seminar, ESI is the term used in the Federal Rules of Civil Procedure, so I will use it here. Although not a defined term in those Federal Rules, it is a term that includes any type of information that can be stored electronically, is intended to cover all current computer-based information, and descriptive enough to cover future changes in information storage technology. Metadata is a subset of ESI. It encompasses data in an application, like the word count in a Word document or a formula in a spreadsheet. It also includes system data, like your history records of websites you browse on the internet.

Why should lawyers be concerned about ESI? There are two significant reasons: confidentiality and discovery.

Law firms collect lots of information on their clients, from social security numbers and birth dates to financial information and tax returns. As lawyers, we have an obligation to keep confidential information that we obtain from clients. We often incorporate this information directly into documents that we prepare (e.g., a special provision in a will) or indirectly (e.g., comments embedded in a draft document). More likely than not these days, we store such information on our computers. When we convert this information from some physical form to an electronic form, it becomes ESI.

Here is a simple example of what can go wrong. If we re-use one client’s work to create a document for another client, ESI from the original client may remain in the new client’s document, e.g. – a new will or a financial spreadsheet, even if it is not visible when the document is printed or viewed. If sent in electronic form to the new client or someone other than the first client, ESI may be “opened up”, revealing the original client’s data or hidden comments.

With technology today, more and more documents and other information on computer files are being sent back and forth electronically. This poses many questions, even if you are sending this only to a client. Potentially, others have access to what you are sending, not just the client.

When you send e-mail, it does not go magically from your computer to the recipient’s computer. It goes from your computer to your server to the server of your internet service provider and on through a similar chain on the recipient’s side. All along this chain, your communication is exposed and can be intercepted and, if unprotected, opened up and information revealed.

Assuming that what you are sending should be kept confidential, how have you protected your communication? With respect to the legal community, this is an extension of the problems just discussed about the privacy of personal information on the internet. ESI is a consideration that is too often ignored.

Because we communicate more and more through computers, when something goes wrong and litigation ensues, what is on our computers and in our ESI may be important. Many of us have no idea what ESI we have and what that means someday if a subpoena arrives requesting that we produce it. The time to discover what that means is probably not after the process server leaves.

There are systems and procedures out there to help keep ESI confidential and to help us understand what we should be doing with it, how we should store it, how to recover it when you think it is gone (intentionally or unintentionally), and how we should deal with getting rid of it when we do not need to keep it anymore and we want to make sure that it is gone. Try these sites for more information:

www.thesedonaconference.org

www.discoveryresources.org

www.krollontrack.com

www.craigball.com

Also note that the ABA is holding its 3^rd Annual National Institute on E-Discovery on May 22, 2090 in Chicago, Practical Solutions for Dealing With Electronically Stored Information (ESI).

Quick Bytes

Foxmarks

If you use multiple computers and want to unify your internet favorites and bookmarks across all these computers, you should give some consideration to Foxmarks. I have a desktop office computer, a home desktop computer and a laptop that I use on the road. Until February of this year, I had an extensive set of the Firefox bookmarks on my office computer, many of them law-related. When I was at home or on the road, in order to use these saved internet links, I had to make a remote connection to my office computer or take the time to find the internet site on the computer I was using.

Earlier this year, I read a column about Foxmarks by Walt Mossberg on All Things Digital (and published in The Wall Street Journal). Foxmarks is an add-on utility originally developed for Mozzilla’s Firefox browser, but now functional with Internet Explorer and Safari. Foxmarks creates a directory of your internet favorites or bookmarks on its server on the internet and then allows you to synchronize as many computers as you like, so that all those computers have your most current favorites or bookmarks.

I have now synchronized all of my computers and it makes remembering where to find things on the internet much easier. For more information, see Foxmark’s website at www.foxmarks.com and Walt Mossberg’s article at http://ptech.allthingsd.com/20090204/synchronizing-your-bookmarks-on-all-your-pcs/?mod=ATD_search .

Where’s the Tech?

If you have gotten this far, dear reader, you may again be asking the question, where is the technological information that I can really use in my daily life, whether at work or at home? As I stated in one of my first columns, and I echoed above, a print column that is published twice a year is a poor forum for keeping people posted on the newest technological developments. I again recommend a couple of excellent sources on which you can find cutting edge discussion of new developments and practical applications of technology.

One is All Things Digital found at http://allthingsd.com/. ATD is an online collection of commentators on technology today, including Walt Mossberg from The Wall Street Journal and Kara Swisher of BoomTown. It is one of the most interesting sites because it looks at everything from new products and services to fundamental issues of the technology industry, and the life and death struggles among technology companies.

The other source is TechnoLawyer, found at www.technolawyer.com.

The Music Corner

(The Music Corner part of this column will appear in another blog,
Too Late to Stop Now . . .)