LibertyVoice

Jeff Flake (AZ-6, Republican) has introduced a resolution to call for an investigation about the relationship between earmarks and campaign funding. Having just finished Kaiser’s amazing book, So Damn Much Money, I am confirmed in a suspicion I had before the election: that Flake/McCain were right to be so exercised about earmarks, and Obama/Dems were wrong.

The point is not the total amount of earmarks. Indeed, for a liberal like me, I’m keen to see the government spend money (wisely, at least). The point instead is the corruption that the earmarking system engenders. The history of earmarks is the history of a business model, with lobbyists at the core, a Congress dependent upon campaign funding at the edge, and a world of staffers, bureaucrats and former Members keen not to upset their future employers (the lobbyists).

But of course, one simple solution to this “problem” with earmarks would be to remove the corrupting connection — to campaign finance. And the simplest way to do that would be to follow Teddy Roosevelt’s other fantastic idea from 100 years ago — Citizen Funded Elections.

Thus, yet another reason to join the strike — don’t give money to politicians who don’t irrevocably commit to citizen funded elections.

Over at the Consumer Law & Policy Blog, Paul Alan Levy of Public Citizen has an excellent post on the recent settlement of Jones Day‘s trademark lawsuit against real estate news site BlockShopper.com.  In the lawsuit, Jones Day alleged that BlockShopper infringed and/or diluted its trademark by using the name "Jones Day" to identify two of its associates who purchased homes in Chicago and by using anchor text in hyperlinks from each associate’s name back to their lawyer bios on Jones Day’s own website (here, here).  According to Jones Day, this created a likelihood of consumer confusion about whether it was the sponsor of or affiliated with the BlockShopper web site.  (For details on the case and links to the underlying court documents, see our database entry, Jones Day v. BlockShopper LLC.)

I’ve said it before and I’ll say it again — this is a terrible argument. As one blogger puts it, BlockShopper did "nothing more than follow standard Web linking procedure that practically every website on earth follows," and no reasonable consumer with any experience with the Internet could possibly be confused by this practice. I am not alone in this view.  In an early post, Levy characterized the lawsuit as a "new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like,’ " and no shortage of lawyers and academics agreed in this assessment (e.g., Goldman and Randazza).  Of course, Judge Darrah of the federal district court in Illinois didn’t see it this way, and his refusal to dismiss the case on BlockShopper’s motion to dismiss set the stage for the settlement.

As Levy and a host of others (here, here, here) report, BlockShopper felt economically compelled to settle the case regardless of the merits:

Although Blockshopper had originally vowed to fight on to the
end of the case to prove its point, one can certainly appreciate its
need to make a business decision and surrender its claim to an award of
attorney fees against Jones Day for the abusive litigation.  In the
end, the warning delivered by Judge Darrah to Blockshopper at the
outset of the case—Jones Day is just too big a law firm that you cannot
afford to fight in litigation—became a self-fulfilling prophecy
because, as Blockshopper began to contemplate the outcome of a summary
judgment motion, it knew that it would have to get a ruling on that
motion from a judge who seemed to be intent on forcing a settlement. 
It would be interesting to learn whether Judge Darrah is gratified by
that fact. (Levy) 

So what did Jones Day get out of the settlement?  Not much actually.  BlockShopper agreed not to use "embedded links" back to the law firm’s website.  Thus, as Wendy Davis explains in her insightful Slate article: "instead of posting ‘Tiedt is an associate,’ the site will write ‘Tiedt (http://www.jonesday.com/jtiedt/) is an associate.’" Essentially, Jones Day weathered a PR nightmare just to force BlockShopper to use a clunky, aesthetically displeasing linking style — woo hoo. Nothing in the agreement stops BlockShopper from reporting on the home purchases of firm lawyers:

Although its apparent objective was to make it more difficult for
Blockshopper to refer effectively to Jones Day associates in connection
with its reporting of the real estate purchases – reportedly, the real
concern was over its associates’ privacy –  Blockshopper remains able
to carry such reports and, indeed, it seems likely that Blockshopper
will exercise that right more diligently by reporting on Jones Day
personnel whenever it can. (Levy)

On the other hand, Levy points out that, in some ways, Jones Day "achieved a great deal."  It sent a message to other websites that "it is not a firm to be trifled with, and that, when Jones Day ‘asks’ you to do something, you had better do it or you are going to have to spend hundreds of thousands of dollars to defend yourselves."  Beyond Jones Day itself, it is important to remember that the settlement has no formal precedential value whatsoever — no future plaintiff can invoke this case in a lawsuit against another website for using embedded links.  But, the settlement does establish a type of informal precedent that could have significant negative consequences for web discourse.  As Wendy Davis writes:

Consider what it would mean for Web publishers if lots of other
companies decided to demand a say over how other sites linked to them.
Jones Day wants URLs used as anchor text, but it’s not hard to imagine
that another company would want something else—a name or a description,
for instance. Web sites could then be forced to use different linking
protocols for every company they write about. Not only would they lose
control over stylistic decisions, but accommodating a variety of
individual requests could prove clunky and labor intensive, which also
means expensive. (Davis)

Levy, for one, is not taking this sitting down.  His post ends with a call to Internet users to fight back against Jones Day "by repeatedly deep-linking from its name, and to its web site, in precisely the ways to which it objects."  I hope that Paul is right that, faced with provocation on a massive scale, Jones Day would have to accept the ultimate weakness of its trademark claim and stop its bullying.  But, Judge Darrah’s ruling upholding Jones Day’s complaint on BlockShopper’s motion to dismiss worries me.  Is it an aberration or just a possible take on poorly developed law?  Like Robert Ambrogi, who queries whether the law is as clear as Levy would like it to be, I fear that trademark law itself may be lagging behind the pervasive technological and cultural practice of the day.  That said, one of the beauties of a common law legal system is that it can adapt.

In 1985, I got my very first home computer: a Commodore Amiga 1000. At the time, it was awesome: great graphics, great sound, “real” multitasking, and so forth. Never mind that you spent half your life shuffling floppy disks around. Never mind that I kept my head full of Epson escape codes to use with my word processing program to get what I wanted out of my printer. No, no, the Amiga was wonderful stuff.

Let’s look at the Amiga’s generation. Starting with the IBM PC in 1981, the PC industry was in the midst of the transition from 8-bit micros (Commodore 64, Apple 2, Atari 800, BBC Micro, TI 99/4a, etc.) to 16/32-bit micros (IBM PC, Apple Macintosh, Commodore Amiga, Atari ST, Acorn Archimedes, etc.). These new machines each ran completely unrelated operating systems, and there was no consensus as which would be the ultimate winner. In 1985, nobody would have declared the PC’s victory to have been inevitable. Regardless, we all know how it worked out: Apple developed a small but steady market share, PCs took over the world (sans IBM), and the other computers faded away. Why?

The standard argument is “network effects.” PCs (and to a lesser extent Macs) developed sufficient followings to make them attractive platforms for developers, which in turn made them attractive to new users, which created market share, which created resources for future hardware developments, and on it went. The Amiga, on the other hand, became popular only in specific market niches, such as video processing and editing. Another benefit on the PC side was that Microsoft enabled clone shops, from Compaq to Dell and onward, to battle each other with low prices on commodity hardware. Despite the superior usability of a Mac or the superior graphics and sound of an Amiga, the PC came away the winner.

What about cellular smartphones then? I’ve got an iPhone. I have friends with Windows Mobile, Android, and Blackberry devices. When the Palm Pre comes out, it should gain significant market share as well. I’m sure there are people out there who love their Symbian or OpenMoko phones. The level of competition, today, in the smartphone world bears more than a passing resemblance to the competition in the mid-80′s PC market. So who’s going to win?

If you believe that the PCs early lead and widespread adoption by business was essential to its rise, then you could expect the Blackberry to win out. If you believe that the software/hardware coming from separate vendors was essential, then you’d favor Windows Mobile or Android. If you’re looking for network effects, look no farther than the iPhone. If you’re looking for the latest, coolest thing, then the Palm Pre sure does look attractive.

I’ll argue that this time will be different, and it’s the cloud that’s going to win. Right now, what matters to me, with my iPhone, is that I can get my email anywhere, I can make phone calls, and I can do basic web surfing. I occasionally use the GPS maps, or even watch a show purchased from the iTunes Store, but if you took those away, it wouldn’t change my life much. I’ve got pages of obscure apps, but none of them really lock me into the platform. (Example: Shazam is remarkably good at recognizing songs that it hears, but the client side of it is a very simple app that they could trivially port to any other smartphone.) On the flip side, I’m an avid consumer of Google’s resources (Gmail, Reader, Calendar, etc.). I would never buy a phone that I couldn’t connect to Google. Others will insist on being able to connect to their Exchange Server.

At the end of the day, the question isn’t whether a given smartphone interoperates with your friend’s phones, but whether it interoperates with your cloud services. You don’t need an Android to get a good mobile experience with Google, and you don’t need a Windows Mobile phone to get a good mobile experience with Exchange. Leaving one smartphone and adopting another one is, if anything, easier than transitioning with a traditional not-smartphone, since you don’t have to monkey as much with moving your address book around. As such, I think it’s reasonable to predict, in ten years, that we’ll still have at least one smartphone vendor per major cellular carrier, and perhaps more.

If we have further consolidation in the carrier market, that would put pressure on the smartphone vendors to cut costs, which could well lead to consolidation of the smartphone vendors. We could certainly also imagine carriers pushing on the smartphone vendors to include or omit particular features. We see plenty of that already. (Example: can you tether your laptop to a Palm Pre via Bluetooth? The answer seems to be a moving target.) Historically, the U.S. carriers are somewhat infamous for going out of their way to restrict what phones can do. Now, that seems to be mostly fixed, and for that, at least, we can thank Apple.

Let a thousand smartphones bloom? I sure hope so.

In her comment on my previous post, Gaia Bernstein asks an important question:The question is should the autonomy of scholars be constrained and their efforts be directed to areas of law where their insights would be most effective?Actually, I agree wi…

Via Viente Taiwan, L.P. v. United Parcel Service, Inc., 2009 WL 398729 (E.D. Tex. February 17, 2009)
A federal court in Texas held the clickwrap agreement between United Parcel Service and one of its customers was binding. After plaintiff Via Viente sued UPS in Texas, UPS moved to transfer venue to the Northern District of Georgia, [...]

With my posts, I am going to do a different blend of the concepts autonomy, law, technology and explore the reasons why legal scholars use their autonomy to focus on issues surrounding new technologies. By “issues surrounding new technologies” I do…

Our next blogger, Lyria Bennett Moses, hails from the University of New South Wales.An earlier paper by Lyria discussed how the law deals with ‘recurring dilemmas’ when confronted with new technologies as well as the ways that technology change differs…

We tend to think that a technology which failed to diffuse must have been a bad idea. But, there are technologies, which undergo long social adoption processes and eventually achieve mainstream adoption. These long social adoption processes, if at all …

Had a great time as a guest in Episode 82 of On Digital Media last night with John Federico, Steve Hatch, Chia-Lin Simmons and Ken Gellman.
We talked in depth about the recent Facebook terms of service bruhaha and the announcement of the Kindle2.
Please listen below (or click through if you’re seeing this in [...]

President Obama has indicated that health information technology (HIT) is an important component of his administration’s health care goals. Politicians on both sides of the aisle have lauded the potential for HIT to reduce costs and improve care. In this post, I’ll give some basics about what HIT is, what work is underway, and how the government can get more security experts involved.

We can coarsely break HIT into three technical areas. The first area is the transition from paper to electronic records, which involves surprisingly many subtle technical issues like interoperability. Second, development of health information networks will allow sharing of patient data between medical facilities and with other appropriate parties. Third, as a recent National Research Council report discusses, digital records can enable research in new areas, such as cognitive support for physicians.

HIT was not created on the 2008 campaign trail. The Department of Veterans Affairs (VA) has done work in this area for decades, including its widely praised VistA system, which provides electronic patient records and more. Notably, VistA source code and documentation can be freely downloaded. Many other large medical centers also already use electronic patient records.

In 2004, then-President Bush pushed for deployment of a Nationwide Health Information Network (NHIN) and universal adoption of electronic patient records by 2014. The NHIN is essentially a nationwide network for sharing relevant patient data (e.g., if you arrive at an emergency room in Oregon, the doctor can obtain needed records from your regular doctor in Kansas). The Department of Health and Human Services (HHS) funded four consortia to develop smaller, localized networks, partially as a learning exercise to prepare for the NHIN. HHS has held a number of forums where members of these consortia, the government, and the public can meet and discuss timely issues.

The agendas for these forums show some positive signs. Sessions cover a number of tricky issues. For example, participants in one session considered the risk that searches for a patient’s records in the NHIN could yield records for patients with similar attributes, posing privacy concerns. Provided that meaningful conversations occurred, HHS appears to be making a concerted effort to ensure that issues are identified and discussed before settling on solutions.

Unfortunately, the academic information security community seems divorced from these discussions. Whether before or after various proposed systems are widely deployed, members of the community are eventually likely to analyze them. This analysis would be preferable earlier. In spite of the positive signs mentioned, past experience shows that even skilled developers can produce insecure systems. Any major flaws uncovered may be embarrassing, but weaknesses found now would be cheaper and easier to fix than ones found in 2014.

A great way to draw constructive scrutiny is to ensure transparency in federally funded HIT work. Limited project details are often available online, but both high- and low-level details can be hard to find. Presumably, members of the NHIN consortia (for example) developed detailed internal documents containing use cases, perceived risks/threats, specifications, and architectural illustrations.

To the extent legally feasible, the government should make documents like these available online. Access to them would make the projects easier to analyze, particularly for those of us less familiar with HIT. In addition, a typical vendor response to reported vulnerabilities is that the attack scenario is unrealistic (this is a standard response of e-voting vendors). Researchers can use these documents to ensure that they consider only realistic attacks.

The federal agenda for HIT is ambitious and will likely prove challenging and expensive. To avoid massive, costly mistakes, the government should seek to get as many eyes as possible on the work that it funds.