Mini-Byte: The Social Science Research Network

For those interested in finding academic papers on estate planning topics (or a wide variety of other topics), a fine resource is the Social Science Research Network ("SSRN").

Here is a year-end post that I received from Gregg Gordon, the President of SSRN, which gives you some background:

SSRN's 16th year was "sweet". The eLibrary (http://ssrn.com/search) has delivered over 41.3 million downloads to date and grown to over 314,000 documents from 149,000 authors. Our CiteReader technology, developed with ITX Corp, has captured 6.4 million references and 6.5 million footnotes. The technology has been expanded to extract references from within footnotes and those references will be displayed on the abstract pages in early 2011. Scholars are finding the links in the References and Citations tabs, on the abstract page, excellent ways to access both the past and future literature in a discipline.

In the near future, we will release Search Within functionality that finds specific information in an existing search result or taxonomy classification. We will also release simplified access to all of the SSRN Rankings of papers, authors and organizations. Over the next few months, we will create subject area networks in Innovation, Religious Studies, and Music and Composition; continuing our interdisciplinary growth in the social sciences and humanities.

Our year-end distribution break is scheduled for Monday, 20 December 2010 through Sunday, 2 January 2011. During the break, SSRN's abstracting eJournals will not be distributed so that we can improve the performance of our servers. We will continue to provide support for downloads, submissions, and subscriptions. For any requests during the break, please contact customer support at UserSupport@SSRN.com or call toll free 877-SSRNHelp (877-777-6435). Outside of the United States, call +1 585 442 8170. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

I am always interested in your feedback about SSRN and our team loves to hear stories about how SSRN has impacted your life. Please contact me at Gregg_Gordon@SSRN.com or use our "Feedback to SSRN" link on most SSRN web pages.

Thank you for your continued support and Happy Holidays to you and your family!

Gregg Gordon
President
Social Science Research Network

Sixth Circuit on Warrantless Searches of Email

The federal Sixth Circuit Court of Appeals has held that emails are protected under the Fourth Amendment to the Constitution from warrantless searches.  The case is U.S. v. Steven Warshak.  Here is a report from The Wall Street Journal.

Mini-Byte: Another Pogue Crusade?

As recently reported here , New York Times Technology writer David Pogue was part of a successul crusade against Verizon for predatory billing practices.  Verizon was billing customers for accidental connections that did not involve any air time.  That campaign ultimately resulted in Verizon paying $92 million in refunds.

A reader has given Pogue a suggestion for another campaign:  roll-over megabytes. AT&T has roll-over minutes, which allow a customer to carry forward minutes that the customer paid for, but did not use.  Pogue and his reader are suggesting the same concept for megabytes of data that go unused.  Read Pogue's comments here and join the crusade.

Mini-Byte: Favorite Tech Reports

I have mentioned in other columns additional, probably better sources for information about technology.  I thought that I would you a short list of these sources, as there has been at least one change of name recently,  The many of the names below are hyperlinks in the online version of this column, so you can click on them and go to the websites:

Marketplace Tech Report -  This is a five minute podcast each day on technology issues.  It was formerly called Future Tense and hosted by Jon Gordon.  It has changed its name to become part of American Public Media's series of financial and business reports.  It is now hosted by John Moe and provides excellent coverage of a wide range of technology topics.  (American Public Media also distributes Garrison Keillor's A Prairie Home Companion and The Writer's Almanac.

John Dvorak's Second Opinion - Distributed by The Wall Street Journal's Digital Network, this column features sharp criticism and iconoclastic views of John Dvorak, who is tech journalism's equivalent of Andy Rooney.  For another side of Mr. Dvorak, see his blog, aptly named Dvorak Uncensored.


All Things Digital - Also distributed by The Wall Street Journal's Digital Network, this website includes a wide variety of contributors, including the Journal's excellent Personal Technology columnist, Walt Mossberg and Boom Town's Kara Swisher.

TWIT - TWIT (This Week in Tech) is a website for commentary on technology assembled by Leo Laporte.  One of its primary features is a weekly podcast of roughly an hour in length, TWIT (podcast).

Pogue's Posts - a central site for accessing the columns of David Pogue, technology columnist of The New York Times.

TechnoLawyer Blog -  A site for those who want technology commentary specifically for the legal profession. Sign up for the e-newsletters.

Building Better Passwords

One of the weakest links in computer security may be the passwords that we use.  We all struggle with how to keep track of the various passwords and PINs that we need to navigate in the computer age.  I am as guilty as many, many others.  So, let's all take a moment and try to learn something from Mozilla, the non-profit that make the FireFox browser, which has page entitled "Choosing More Secure Passwords."

Where Are We Going? (Part I): The PC is Dead! (Or Is It?)

All Things Digital ("ATD") is a rather good website for commentary on technology and the business of technology.  It features two Wall Street Journal standouts, Walt Mossberg, who authors the WSJ Personal Technology column/blog, and Kara Swisher, who does the same for BoomTown. A few years back, ATD decided to host a conference about, well ... all things digital.  In early June, this year's conference, D8 rolled around and the opening night featured an expansive Mossberg/Swisher interview of a modern day Lazarus of sorts, Steve Jobs.

In case you have been out of touch, Steve Jobs is legend.  Having co-founded Apple somewhere around the dawn of the personal computer age, Jobs helped steer the company to be one of the only true alternatives to the hegemony of Bill Gates' Microsoft. He left Apple for a while, and then returned when Apple seemed to be foundering.  During this return engagement, Jobs has reshaped Apple and the world of computing yet again, revitalizing Apple's core line of computers, both desktops and laptops, and revolutionizing a somewhat definition-less space loosely called personal computing devices.  A few years back, personal computing devices amounted to not much more than a few smart-phones that were struggling to become smarter and more integrated through wireless connection to the Internet.

Jobs did a flanking maneuver with a personal music player called the iPod.  He built an online store called iTunes and started selling music to fill iPods.  The industry took this as a noble little gesture befitting of Apple's technology wizardry:  a sleek little device to entertain us, but hardly a big threat.  Still, people seemed to like this idea and started buying iPods, filling them with their own music and downloading songs from iTunes.  Soon other things came along, like a new thing called a "podcast" and videos.  Othe companies brought out generic MP3 players.  Microsoft thought that it could compete in this market and launched a player of its own, Zune.

The first iPods were relatively primitive.  (I know, because I still have a second generation Mini, which but for the lack of any battery life, still works.)  By the time that Zune arrived, however, Apple had newer versions of the iPod that were better and fancier and started to do more things, like play video that could be downloaded from iTunes.  The first generation Zune never had a chance. Nowadays, I am told that there is an outstanding new generation Zune that outperforms the iPod in a number of areas.  Unfortunately, not many people care.  Apple's iPod dominates.

This pattern bears watching, because Apple repeats it.  Jobs admits that Apple needed to make much more strategic choices.  Apple is a hardware company that does particularly innovative things with the software it develops for that hardware.  Its computers remain a much smaller part to the market compared to the legion of computers that run Microsoft's Windows operating system.  What Apple does is look for openings in the market where it can excel and innovate.  It has succeeded and, in doing so, has moved the market toward Apple.

Apple brought out the iPhone to take on other smart-phones that were having trouble figuring out how to integrate their functionally with the Internet.  Several generations of iPhones down the line, Apple dominates the creative side of this space, with the rest of the industry still trying to keep up.  It has made this market interesting enough to draw Google into the operating system competition.  Microsoft recently released a new version of its mobile phone operating system, again trying to catch up in this competition.

Apple also brought out an iPod called the "Touch" or "iTouch" that connected to the Internet via WiFi.  Built with many features in common with the iPhone, the iTouch started to capture the attention of younger users who wanted mobile access to the Internet for emailing and social networking, but did not necessarily want to get an iPhone (just yet).

Finally, Jobs unveiled the iPad this year.  The iPad is a tablet computer that appears to be redefining the non-desktop computer sector.  Of course, we still have laptop computers, which thanks to Apple's leadership again, are getting small and lighter, but are capable of providing full-function computing on a par with a desktop computer.  We also have "netbooks", devices that are smaller than a laptop, which connect to the Internet and provide some computing capability, but lack the memory and other features of laptops.  Finally, we have e-readers for electronic books, such as Kindle, Nook, etc.

Building off the iPod, the iPad is a uniquely different computing device.  Through it, Apple definitely has designs on furthering its emergence as a media company.   Apple is making a play for the market held by e-readers like the Kindle.  The iPad also is designed to build on the iTouch and provide more utility as an access point to the web.  The competition has followed Apple's lead by announcing its own tablet computers.

Through all this, Microsoft largely has been missing in action.  It failed to mount any meaningful competition to the iPod.  It has meandered around in the cell-phone operating systems wars without much distinction.  Google's Droid operating system is a more formidable challenge to the iPhone.

Apple recently surpassed Microsoft in market capitalization.  And, Jobs dodged the grim reaper in his bout with liver disease.  So, getting him to sit down and talk on opening night of D8 was huge.

There are significant problems in the forgoing success story, some of which are attributable to Jobs' insistence on doing things the "right" way (his way?).  First, the iPhone has only been available on the ATT network, which, for all its technical synergy with the iPhone, is universally viewed as a lousy network.  Apple will now be selling a lot more iPhones, as the rumors that the iPhone will be available on Verizon next year appear to be confirmed.

Second, and more problematic, Jobs could not get satisfaction out of Adobe over weaknesses in its Flash Player, so neither the iTouch, iPhone or the iPad run Flash Player.  As Flash Player is integral to the operation of many website audio/visual clips, particularly on Google's YouTube, Apple has wonderful devices to reach the Internet, but spotty content once you get there.  No word at this writing on how this standoff will end, but Jobs is asked about it in the interview.

Finally, the newest iPhone model, iPhone4 received bruising criticism for reception problems related to the device itself (not ATT's network).  The New York Times reported that Consumer Reports would not recommending the iPhone4 because of a flaw with its antenna.  The furor dragged down Apple's stock price for a while, but seem to have blown over.

With apologies for the long lead above if you already knew all this stuff, what I want to discuss are comments by Jobs at D8 on the future of the computer and a response from Microsoft CEO Steve Ballmer on the last morning of D8.  Let's clarify terminology first.  The term "PC"seems to be a bit of a sore spot between Jobs and Ballmer.  My take on these interviews is that Jobs uses the term to refer to full size desktop computers generally and to some extent fully functional laptops (with hard drive memory and CD/DVD capabilities).  At one point he says as much to Walt Mossberg, describing himself and Walt "as people from the PC world" and saying that "PCs have taken people like us a long way".  Ballmer seems to respond as if he interpreted the remarks to apply strictly "PCs", i.e. -- computers running Microsoft Windows (or the next OS from Microsoft, which may not be called Windows anything).

Remember that Apple is a hardware manufacturer.  Microsoft is a software company.  Except for the Xbox game system, Microsoft has not really succeeded in developing any significant hardware business; it makes its money on operating systems that are installed in the vast majority of full scale desktop and laptop computers.  So, Ballmer may simply be defensive about Microsoft losing market share, but he comes off sounding like the PC half of those famous Apple Mac-PC ads.  (Ballmer is certainly defensive about a lot of things these days;  listen to his comments about Google and Android and Chrome.  Here is a mash-up putting the Jobs and Ballmer comments side by side in a point-counter point debate.)

Jobs essentially made an analogy that the full scale desktop computer is like a truck:  it has great utility and will continue to have great utility to accomplish the jobs for which we need a full scale computer.  (And, like trucks, there will be some people "driving" a full scale computer when they do not really need one.)  Jobs thinks, however, that we have already entered an era where typical computing needs can be handled by small devices, that there is a paradigm shift under way.

Ballmer made some jokes about "Mac trucks" and offered some backward-looking platitudes about Windows PCs being "mass popularizers", but ultimately conceded that there will be smaller devices that serve different functions.  Jobs, of course, does not say that the iPad is going make the PC obsolete (at least not any time soon), but that new order is coming.

Microsoft is really besieged on several sides by the forces of change.  Google (which Ballmer called a "behemoth", as if Microsoft is somehow the new David to Google's Goliath) is focused on more and more functionally occurring online, with the need for resident operating systems and programs in our personal computers becoming less important.

My take on this is that Ballmer's smugness hides an unease about Microsoft's ability to adapt.  With the desktop computers beginning to wane and Microsoft missing in action on most other fronts, Microsoft faces the prospect of watching is its operating system business for PCs slowly (or rapidly) disappear.

One can only hope the Ballmer and others at Microsoft can read their own corporate history and understand its implication for the future.  After all, what Jobs said embodies and extends the vision that Bill Gates had many years ago when he foresaw the personal computer becoming a part of every day life, empowering people and moving us out of the era of mainframe computer.


Ballmer seems to lack a vision of the future.  His comments are reminiscent of a backward looking discussion last year by Mircosoft's chief strategist, Craig Mundie.  Jobs is not clairvoyant.  He is just a keen observer of what has happened with computer technology and where the future lies.  Historically, as Gates foresaw, computers and computing devices have gotten smaller, more affordable, and have empowered more and more people and have rapidly broken down definitional lines in the process.  The Internet has driven this process even faster by allowing people to do many things online that they used to need a desktop (or mainframe computer) to do.

Interestingly, in September, IBM CEO Sam Palmisano declared the PC business dead in an interview with The Wall Street Journal's Viewpoints.  Remember that IBM invented the PC.  IBM sold its PC business several years ago for a reasonable price. Palmisano went so far as to say that he "could not give [the PC business] away today."

I think that there is little doubt that we will see a growing use of smaller computing "devices", more use of the Internet in place of the desktop and more freedom and power to use this technology in the hands of more and more people.  The desktop will still be around.  Netbooks may or may not survive the advances represented by the iPad.  Our cellphones will get smarter.  We yet may see widespread availability of connectivity through WiFi.  (Google is certainly pushing in this direction.  The major wireless carriers better take notice because their monopolistic pricing structure will be vulnerable to competition for access that is more fairly and properly priced.)  Microsoft's challenge seems to be finding its place in this future.  Jobs is at the crest of the next hill telling us what he sees beyond. Ballmer is still huffing and puffing his way up to get a peak.

Look at the people around you, at work, at home, at leisure.  Increasingly, people are doing many things without a desktop computer (PC or Mac).  Laptops have become more common place, even within offices.  Whether they are using a netbook, a iPhone, a Droid phone, an iPad, an iPod Touch, other similar devices, people are connecting  and computing through the Internet from home or office or places in between.  The Wall Street Journal ran a story recently on the surging sales of portable communication devices, including the iPad, at big box retailer Best Buys.  The article also noted that the iPad was drawing customers away from laptops.
Whether at work, on vacation or at the gym, people are reading email, listening to music, going to websites, linking to their workplace network, making dinner reservations, checking out local movie listings.  I typed part of this column on a laptop at an ACTEC meeting in Pennsylvania.  It is fairly clear that a new paradigm has emerged.  The next part of this series of columns will discuss some of the reasons why the desktop computer and even the traditional laptop computer, while still important, are increasingly secondary in the modern world.


(Disclosure:  The author holds stock in Microsoft, Apple and Google.)

David Beats A Goliath

New York Times Technology writer David Pogue has written for some time about the abuses of  the giant telecommunications companies.  I have mentioned this in a prior Reality Byte's post.  Now comes  "Verizon Comes Clean", in which David reports on Verizon's admission that it has been collecting millions of dollars from $1.99 charges it assessed on users who inadvertently connected to the Internet on their flip phones. Verizon will be paying out a $90 million refund. Read David's full report by clicking on the link above.

Xmarks Shuts Down

A quick post to let you know that Xmarks, a popular browser bookmark synchronization application that I have recommend here in the past, is going dark.  Full details on how a successful program is going out of existence can be found at Xmarks online blog.  The official announcement and alternatives can be found online at as well.

Stay Out of the Cookie Jar

The Wall Street Journal has an interactive report on line about tracking cookies.  Visits to the 50 top websites will result in an average of 64 trackers being installed on your computer.  These trackers, commonly called "cookies", are little spies that send personal information about your computer activity back to the websites that embedded them in your computer.  This personal information is then used by the owners of the website for a number of things.  It can be used for things that you might like, such as providing you with more useful or related information associated with your visit to the website.

Spinning that "good" example at bit, such personal information can also be used to target advertising based on your interests.  For example, when you buy things on Amazon.com, Amazon obviously has a sales record of those purchases and uses it to provide recommendations to users with accounts at Amazon.com.  What if you do not establish an account with Amazon?  Well, Amazon still has a sales record of what is purchased with a particular credit card or delivered to a specific address, but that is not helpful in selling you something on when you are browsing around its website.  In the Wall Street Journal's report, Amazon is listed as possibly embedding up to 38 cookies on your computer when you visit.  One thing that Amazon can do through these cookies is identify the computer that you are using and associate that with your prior purchase and viewing records.  When that computer logs into Amazon.com again, Amazon can target items to recommend or advertise, based on past activity.

So "cookies" have a commercial purpose.  That can be good or bad, depending on your perspective.  More disturbing is the possible "misuse" of this information.  When we browse on the web, we may go to many different sites and look at a wide range of information.  By receiving back information on where we go and what we view, that information can be processed and patterns revealed.  Gradually, over time, this can evolve into a "profile" of the user of the computer.

In some ways, this may be anonymous, if the cookies are only reporting the activity on a particular computer, without a way to tie that information to a particular person.  Many of us use the same computer (or computers)  repeatedly and perhaps exclusively, and a little bit of personal information provided along the way may establish a personal identity to the data being mined.

Think about your computer usage, particularly the way that it reveals your interests, thoughts and possible personal, social and political views.  It may be one thing to share all of this on a social network, like Facebook, where the overt purpose is to enable such sharing.  (Then again, there has a been a firestorm of criticism and warning over what Facebook does with the information you post, so you may want to think twice about what you are doing on Facebook.)  When your personal likes and interests are being mined by a large number of websites, however, you have to be concerned about the ultimate use of such information.

It would be wise to read the WSJ report and take steps to curtail such mining of personal information.

One thing that you can do is make changes in your Internet settings for your browser and have it refuse cookies.  This may cause some difficulties with accessing many websites or features of those websites.  Cookies are often used to identify a repeat users of, and preferences for, a website, so that certain features launch automatically rather than making the user open them each time they visit.  Blocking cookies could frustrate such features.

Another or additional way to deal with this problem is to install one or more programs that search your computer and identify tracking cookies and other spyware and malware and remove them.  One such program is Lavasoft's free program Ad-Aware.  I use three computers now (one at home, one at work and a laptop) and all of them run Ad-Adware.  (Lavasoft has an upgraded version Ad-Aware pro for $30.  Be careful that you get a product from Lavasoft, which may be downloaded from a third-party site, because there are similarly named products out there by other companies.)  There are other programs, such as Spybot.  It is often recommended that you use at least two different spyware programs for more complete coverage.

Post-Mortem Internet Privacy

Gerry Beyer reports today in his Wills, Trusts & Estates Prof Blog blog:

Internet Privacy: Something Else to Worry About Post-Mortem

Christos Catsouras was not allowed to see his 18-year-old daughter’s body after she swerved his Porsche to her death on Halloween 2006. Three weeks later, pictures that the California Highway Patrol took at the accident site were posted on hundreds of websites.

When confronted, CHP officials said there was nothing that they could do. Catsouras sued CHP, and California’s 4th District Court established that surviving family members have standing to sue for invasion of privacy in cases such as this one.

Go to http://lawprofessors.typepad.com/trusts_estates_prof/2010/05/internet-privacy-something-else-to-worry-about-postmortem.html to read the rest of Gerry's post and a link to Christopher Goffard original article in the Los Angeles Times, Gruesome Death Photos are at the Forefront of an Internet Privacy Battle.

Downloading a $18,000 VerizonWireless Bill

The Wall Street Journal's Law Blog reported today on the shock bestowed on Bob St. Germain, who recently discovered that renewing his wireless phone service contract with Verizon set him up for a $18,000 bill.

Unbeknownst to St. Germain, the two-year promotional period allowing free downloads had expired, and Verizon was now charging for downloaded kilobytes.
But St. Germain’s son, Bryan, a student at Framingham State College, didn’t realize this, and started downloading a lot of stuff to his phone. The August 2006 bill was for $12,233. When St. Germain called to complain, Verizon told him that since that last bill, he’d run up an additional $5,000 in downloading fees.

St. Germain complained to Verizon, which eventually offered to cut the bill in half, but St. Germain turned them down and Verizon sent the matter to a collection agency.

The WSJ Law Blog poses an interesting and unanswered question:

 It also seems fair to wonder how much it cost Verizon to provide the 816,000 kilobytes of stuff to Bryan Germain’s phone, though telecom companies often argue that demand on their networks, and the costs to expand networks to allow for it, can add up.

So the next time you re-up your service contract to get that "free" or subsidized low price new cellphone, think about Mr. Germain, how kind and friendly the folks at your telecom company really are, and read the fine print and ask how much everything will cost after you agree.  At a minimum, it seems that there should be some kind of requirement to give consumers a plainly worded summary of what their service plan will cost, with real examples, i.e. --- how much would it cost to upload ten photographs from your cellphone or download a five page document or how much it costs when your friends send you text messages or photographs that are not covered in your service plan.

 

Where Do You Practice Law?

Stuart Levine reports in his Maryland Business Law Developments blog on a noteworthy new decision by the U.S. District Court for Maryland Court  In the Matter of the Application of Cedar P. Carlton for Renewal of Membership in the Bar that involves telecommuting in the practice of law.  The case involved the application of Local Rule 701.1(a):

in order for an attorney to be qualified for admission to the bar of this district, the attorney must be, and continuously remain, a member in good standing of the highest court of any state (or the District of Columbia) in which the attorney maintains his or her principal law office, or the Court of Appeals of Maryland.

Carlton lived in Cambridge, Massachusetts, but was employed by a firm in the District of Columbia.  Carlton's practice was conducted exclusively by remote connection to the firm's computer system in the District of Columbia.  She did not engage in the practice of law in Massachusetts and met with clients exclusively in her firm's office in DC.  Similarly, telephone communication with Carlton was handled through the DC office.

In reaching its decision, the Court analyzed six (6) non-exclusive factors and held that Carlton satisfied the requirements of Local Rule 701.1(a).  Here is an excerpt from the opinion that appears in Stuart's blog:

In recent years, the concept of a “principal law office” has evolved somewhat as a result of significant advances in technology which provide an attorney with the flexibility to carry out a variety of activities at different locations and under varying circumstances. The term does not necessarily mean continuous physical presence but, at a minimum, it requires some physical presence sufficient to assure accountability of the attorney to clients and the court. Under the circumstances described by Ms. Carlton, there can be no question that for purposes of malpractice insurance coverage, tax obligations and client security trust fund obligations, her office is the office of her employer. In addition, the address utilized in pleadings, correspondence with clients, letterhead and other matters is also the address of her employer, which maintains a substantial physical presence in Washington, D.C. When meetings with clients are required, Ms. Carlton does meet with them in Washington, D.C. Her client files, accounting records and other business records, library and communication facilities such as telephone and fax service are all located in Washington, D.C. although, by virtue of advances in technology, she is able to access them remotely from Cambridge, Massachusetts.

For further discussion of the case, see Stuart's blog.

Supreme Court to Hear Constitutional Arguments Over Violent Video Game Law

As reported in the Wall Street Journal's Law Blog and elsewhere, the U.S. Supreme Court announced on April 26, 2010 that it will review the constitutional free speech challenge to a California law that blocks the sale of violent video games to minors.

The WSJ Law Blog reported:

California’s law, originally slated to go into effect in 2006, would have prohibited the sale or rental of violent games — those that include “killing, maiming, dismembering or sexually assaulting an image of a human being” — to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act could have been fined up to $1,000 for each violation.

Makers of video games, including Electronic Arts Inc.,Microsoft Corp., Sony Corp. and Take-Two Interactive Software Inc., the maker of “Grand Theft Auto” games, challenged the law as an infringement of free-speech rights under the First Amendment of the U.S. Constitution.  The U.S. Ninth Circuit Court of Appeals ruled earlier that the state had not produced sufficient evidence to establish the harm caused to minors.  In appealing this ruling, California Governor Arnold Schwarzenegger and Attorney General Jerry Brown argue that violent video games are like sexually explicit material, which the state may prohibit.  Governor Schwarzenegger issued a statement saying, in part:

“We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies”

Governor Schwarzenegger is well known for his acting career in films like "Conan the Barbarian" and the "Terminator" series, so one would think that he knows something about violent videos.  It will be interesting to see what questions the Supreme Court Justices ask during oral argument.

Supremely Clueless?

April 20, 2010
The Wall Street Journal's Law Blog ran a story yesterday on the seemingly clueless questions asked by some of our Supreme Court Justices during the oral arguments in City of Ontario v. Quon.  Broadly stated, in Quon the Court is being asked to determine whether there is a constitutional right of privacy that protects text communications when the text messaging is done on devices and service plans provided by an employer.

Quon is Sgt. Jeff Quon of the Ontario County, California Police Department.  Quon "exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer" using department devices.  The police department authorities issued somewhat conflicting pronouncements and procedures on the personal use of department devices.  For more on the case, see Nina Totenberg's "Should Personal Texts From Work Devices Be Private" on the NPR website.

During oral argument, the WSJ Law Blog states:

According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.

Further along, Justice Scalia's questioning is reported as follows:

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.
“You mean (the text) doesn’t go right to me?” he asked.
Then he asked whether they can be printed out in hard copy.
“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Given the current and future importance of electronic business and personal communication, we should all hope that the Court decides the legal issues correctly.  Regrettably, the Justices may need a crash course in understanding the technology first.  Perhaps their law clerks will be able to help.

I've Just Seen a Face(book)

Facebook is one of the biggest social media phenomena of the early 21st century.  Launched out of a dorm room at Harvard on February 4, 2004 by founder Mark Zuckerberg and some classmates, it started out as an Internet directory for college kids and has mushroomed into a destination where seemingly everyone wants (or feels they have) to be.  Zuckerberg's original idea was to replicate on the Internet the photographic student directories published by many colleges and private schools.  It has become perhaps the premier success story of social networking on the Internet.

If you have a computer and an Internet connection, you can have a presence on Facebook, creating your own profile and connecting with friends, joining fan clubs, becoming part of groups.  You can be serious or silly or anything in between (within limits).  Grandparents and parents have joined Facebook, following their children and grandchildren, who originally popularized the site as college and high school students.  Politicians and pundits and musicians are there too, connecting with their followers and fans.  From humble beginnings, Facebook is now a worldwide phenomenon.  On December 1, 2009, Facebook founder Zuckerberg wrote in an open letter to Facebook users:

It has been a great year for making the world more open and connected. Thanks to your help, more than 350 million people around the world are using Facebook to share their lives online.

You can read more about the history of Facebook on Wikipedia.
 
For the young people who originally popularized Facebook, it remains primarily a social hub, a way for friends to stay in touch by posting status reports about their lives.  Twitter may be grabbing some market share in this department, but Facebook is a premier site for this interaction.  It offers the ability not only to post text (in longer doses than Twitter's 140 character limit), but also pictures and links and applications that friends can play together.  In a student newspaper from my daughter's school, an article about social media largely focuses on Facebook, MySpace and Twitter.  A senior at a neighboring school cites Facebook as his favorite site and is quoted as saying:

Humans are social by nature and whatever means we create to communicate with each other, we're going to use it excessively.

Another senior says:

When I go on Facebook, it's a "destresser," and I'm able to get my mind off of school and just talk to my friends.

(Sorry, no link for this, as the student newspaper is not online.)

Facebook is "free." None of those 350 million users are paying any money to Facebook.  This is not uncommon on the Internet.  Google is free.  YouTube (now owned by Google) is free.  Wikipedia is free.  But then, Wikipedia is run by a non-profit foundation.  Facebook and Google are very much for-profit businesses.  So, is Facebook really "free"?

Facebook and Google make money from advertising.  Many businesses pay to have ads and links placed on "your" Facebook page (or your Google search result page).  The Wall Street Journal recently reported that Facebook is going to integrate PayPal, so that it can attract more international advertising in countries where credit cards are not widely used.  The article notes that currently 70% of Facebook's users (now 400 million strong in February of 2010) live outside the U.S. PayPal, a subsidiary of eBay, covers 24 currencies in 190 markets.  See Facebook's announcement on PayPal.

The popularity of these sites certainly makes them attractive for advertising.  There is something even more attractive to advertisers in social media sites:  your personal information.

I have been using Facebook for about six months now.  Following a notable high school reunion last summer, I found that it was a way to keep in touch with friends that I had not seen in years.  Next, I started connecting with college classmates and friends.  This is really what attracts many to Facebook:  the ability to stay in touch with friends and family.  (It is embedded in the architecture of Facebook itself, which labels individuals with whom you chose to associate on Facebook as your "Friends".)  I have seen criticism that Facebook is really becoming just one giant reunion site, with people of all ages joining to keep in touch.  I suppose that is at least partly true, but I am not convinced that it is completely accurate or necessarily a bad thing if it were true.  There is nothing wrong with people keeping in touch through this or any other site on the Internet.  Human communication, even the frivolous kind, is part of the fabric of social interaction.

Nobler aspirations for Facebook should not be discouraged either.  I am not sure that Facebook or Twitter or any other Internet site is going to overturn a brutally repressive government (e.g. Iran) any time soon, but Facebook certainly is capable of meaningful dialog on social and political issues.  With the reservations noted later in this article, however, you should understand that Facebook is a user controlled media.  It is what its users make it.  Critics who scoff and shun Facebook because they are looking for more relevant dialog on social and political issues are missing the point.  They should get on Facebook and start their own discussions and groups.  There is plenty of diversity of opinion on Facebook about issues more pressing to our times than reunions, boy/girl friends, etc.  Here are a some examples:  political satirist Barry Crimmins (who happens to be a high school friend), British folk singer and political activist Billy Bragg (recently campaigning at Speaker's Corner in Hyde Park and on Facebook against bonuses for the bankers at the Royal Bank of Scotland), tax lawyer and blogger Kelly Erb (who uses the name "TaxGirl"), Facebook pages for Maryland organizations like The Walters Art Museum, The Creative Alliance, The Mount Vernon Cultural District, new services like The Wall Street Journal, NPR, PBS, a daily blessing from my wife's cousin's husband and a weather forecast, Foot's Forecast, from a local high school teacher and students (which has pretty much been spot-on in predicting our Snomaggedon winter in the Mid-Atlantic).  So, Facebook can be what you make it and each user adds something else to the mix.  It may have aspects of an evil empire behind the curtain, but the critics should stop complaining about the problems and start becoming part of the solutions.

Facebook is also a  tabula rasa where users can create a body of portrait of themselves and can find similar collections of information about their friends.  Facebook encourages and facilitates this exchange of personal ideas, thoughts and information by providing ways to post and share pictures, notes, links to the Web, books that you have read, etc.  Every user has his or her own "Wall" on which their status updates, shared links or other postings can be found and on which friends can (and are encouraged by Facebook) to write.

These posts go out to friends and others and are displayed on each user's News page. There are also third party applications that provide games or other interactive ways for self-expression yourself through Facebook.  I use Facebook, in part, as an online archive of interests and thoughts.  Many other users do the same, in their own personal and distinctive way.  Facebook is a wonderful tool for self-expression.  I really mean that in a very positive sense.

There is a commercial side, however, to all this self-expression.  Remember that Facebook is not a non-profit.  Underneath the social veneer, Facebook is trying to make money.  The Los Angeles Times recently reported on one of Facebook's more popular applications, Farmville.  Farmville is played by 31 million people a day.  According theTimes, it cost around $300,000 to make and brings in around $113 million a year!

Although Facebook is built on the premise that you choose those with whom you wish to associate and share information, Facebook also subtly (or perhaps not so subtly) pushes users to share more information with more people.  It begins with what happens on the right hand side of your Facebook page.  There you find various things, like requests from others to connect as a friend, suggestions from Facebook of people that you might want to "friend" (now officially a verb, along with "unfriend"), and reminders about the birthdays of your friends.  There are also advertisements, suggestions of birthday gifts for friends, and other suggested ways for you to connect or find new "friends", like a Facebook solicitation that asks you to invite friends who are not on Facebook to become users.  There is a Friend Finder search.  On your Profile page, you are encouraged to put information about yourself, your family, your likes and interests.

Sharing is a very important part of Facebook (and the Internet in general) these days.  As a Facebook user, you can join "Groups" or become a "Fan".  Groups can be established on Facebook as a way for people with a common interest to share and discuss that interest, whether serious or frivolous.  Organizations and artist or authors or bloggers or others can set up a public page on Facebook that requires you to associate yourself by being a becoming a "Fan".  Once part of a Group or a Fan of an organization, etc., you will begin receiving postings for these sites.  They will appear on your (recently redesignated "Top News" and "Most Recent" pages.

Facebook has been reconfiguring its pages recently.   Although you have settings to control these features and the content that you see, Facebook exercises some manipulation behind the curtain, particularly in the "Top News" feature.  The "Top News" is now managed by some programming function of Facebook that selects postings to be displayed based in some way on your designated preferences and usage patterns.  There is some user control over this, but in my experience it has limited effect in overriding Facebook's own program.  I am not sure why Facebook thinks that this kind of selectivity (censorship?) is a good thing for us or if it has fully explained its operative characteristics, but it makes me feel manipulated.  The "Most Recent", on the other hand, is supposed to be everything from everyone in your social circle.  (Given the manipulation going on with the "Top News", however, I am not sure that I trust that the "Most Recent" feed is complete.)

When one of your friends or groups or fan sites posts a message or shares a link with you, your are encouraged to respond by either making a "Comment" or click to register that you "Like" the post.  (Many Facebook users (in the millions) are campaigning for Facebook to add a "Dislike" response.  (I became a fan or joined three of these campaigns as I wrote this column.)  You also may have the option to "Share" a post with your friends.  For example, the day I wrote a part of this post, I received a post from NPR, which updated an earlier story about the disappearance of Internet pioneer Philip Agre.  This update indicated that the UCLA police had located Agre.  I wrote an update as part of this blog, but I also shared this post with my friends on Facebook, as I had done with the original NPR report on his disappearance.

Many Internet sites also now encourage you to share reports or other information on their websites with your friends on social media sites like Facebook.  So, if I am reading an interesting piece on the Internet site at NPR or The New York Times or The Wall Street Journal, there may be a button on that site that allows me to share a link to the article and a brief introduction with my friends on Facebook or other social media sites.  Even if the website does not have a function to do that, I have an application on my browser that will automatically set up a Facebook link to the page that I am viewing and share it on Facebook.

Facebook shares with your friends information on whom you have recently "friended."  It also tells your friends sites on Facebook that you recently have joined or of which you have become a fan.  This, of course, encourages your friends to follow your lead and make new friends or join new groups or become fans of other sites.  In effect, much of what you do on Facebook is being used by Facebook to influence your friends to expand their usage of Facebook.

All this connection with others and interchange and sharing of information is wonderful.  It is what makes the Internet such a powerful piece of technology today.  For Facebook, it also is a goldmine.  Whether you share your information with the whole world or not, you are sharing it with Facebook.  Facebook uses what you post and what you do to target its approach to you as a user.  List your favorite music or bands, and you will start to see ads posted on your page for related products or programs.  I listed Little Feat as a favorite band.  I now get ads for t-shirts of the late Feat guitarist Lowell George.  I listed Los Lobos, and got promotional ads from PBS for a recent performance of Los Lobos at The White House.  Facebooks cross-references your Friends list with the Friends lists of each of your friends and suggests new friends.  In the part of your page that Facebook reserves to suggest Friends, you will get a message:

John Smith
5 mutual friends

If you want to use one of those third-party applications that abound on Facebook, you will notice that the application asks for access to your personal profile information before you can use the application.  This is partly because the application may need certain information about you to operate effectively, but it also means that your personal information may be used other ways, to target advertising through the application, to solicit your friends to use the application, etc.  I have a friend whose husband signed her up for an application called Mafia Wars.  I started getting all kinds of postings from Mafia Wars asking that I "help" my friend achieve some level of accomplishment within Mafia Wars.  In order to do so, however, I had to give Mafia Wars access to my information.  It was an offer I chose to refuse.

Facebook is not unique in using your information and usage patterns to target its advertising and business development.  Google does the same thing when you use it to search or as a home page.  Google is trying to encourage social networking through its homepage and its social networking site Google Buzz, but Facebook is far ahead in this area.

Facebook is also an entirely different environment from Google.  Search on Google can be informative, but it is also episodic and limited.  Social networking on Facebook is a more pervasive and personal.  Because of its ability to draw you into interaction with others, social networking sites, by design, seek to become a integral part of  your life.  In the process, such sites expect us to share more and more information with one another.  What it means, however, is that you should be careful what you do and share on these sites.

Mark Zuckerberg's open letter mentioned above seems to focus on issues of privacy on Facebook.  It largely addresses changes that Facebook made at the end of last year in its privacy settings.  Zuckerberg talks about this as "empowerment" of Facebook users, giving them more control over who sees what information about the user.  These new settings do give the user a wider range of options for sharing the various types of information posted to Facebook.  The new settings also are more complicated, requiring the user to go through several menus and select what level of privacy they want for status information, shared links, photographs, etc.  This can be daunting at times.  Now, when you post on Facebook, you are often give a menu for that posting which allows you to expanded or limit who sees what you share.

The problem here may be remembering to do this each time you post.  I often forget,  because my primary intent is to get my thought or link out.  Thus, your defaults settings become all important.  Zuckerberg's letter also makes clear that the good folks at Facebook have given your privacy considerable thought and "concluded" certain changes were in your best interests.  Zuckerberg and Facebook clearly think they have figured out what you need and want.  That kind of approach troubles me, containing a touch of "Big Brother".  Zuckerberg pulls back from the edge toward the end of the letter:

We'll suggest settings for you based on your current level of privacy, but the best way for you to find the right settings is to read through all your options and customize them for yourself. I encourage you to do this and consider who you're sharing with online.

This is probably a fitting conclusion for a user driven site like Facebook.  You, the user, need to protect your privacy, not simply assume that Facebook is going to do it for you.  Future Tense recently reported that social media like Twitter and Facebook have become popular with Internet criminals who are running scams to get a hold of your identity and financial information. The New York Times recently ran a report on three essential steps to protect your privacy on Facebook.  These are checking the settings on (1) who is allowed to see your posted status updates, photographs, videos, etc., (2) who is allowed to see your profile information and (3) whether your information is available to public search engines like Google or Bing or Yahoo.  Similarly, the ABA Journal recently ran an article, "Saving Face" by Dennis Kennedy, which discussed ways to protect your privacy and identity on Facebook.

If you use Facebook, be sure you check all of your privacy settings under the various submenus of the "Settings" menu, not just the "Privacy Settings" submenu.  Consider carefully what information you post on Facebook and just you want to see that information.  Consider also what sharing your information with "Everyone" really means -- basically that anyone, anywhere may be able to access what you are posting and harvest information from it.  Having friends is a great thing, but be careful to check out people seeking to become your friend before you open up your information to them.  Also, beware of communication that looks like it comes from a friend, but may contain links to that lead you to sites where you may be tricked into giving out your personal and financial information.

UPDATE: Philip Agre Found

A while back I passed along a report by Andy Craven on National Public Radio on the disappearance of Internet pioneer Philip Agre.  Now NPR reports that the police have located Agre:

The UCLA police department has updated their missing person bulletin for Agre with the following news: "Philip Agre was located by LA County Sheriff's Department on January 16, 2010 and is in good health and is self sufficient.

That is all the updated police bulletin says, so the mystery of why Agre was out of touch with family and friends remains.