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.

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?"