The Right Result

As punishment for its bounty system in which defensive players received cash awards for injuring opposing players the NFL has suspended New Orleans Saints coach Sean Payton for the 2012 season without pay and indefinitely suspended the Saints former defensive coordinator Gregg Williams. I agree with this punishment, although I think Williams–who was closest to the program and admitted that he knew at the time the bounty payments were wrong–should be barred from the NFL for life.

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‘Aints No More

We love underdogs, and N.E. Patriots fans love just about any team that beats the Colts, so the Saints Super Bowl victory is sweet.  After many years of boring blowouts most recent Super Bowls have been just fun to watch.  The Colts looked unstoppable early but three plays and a spirited final defensive stand sent Payton Manning home ringless.

  • The Saints onside kick to start the second half was one of the gutsiest Super Bowl coaching calls ever.  If the Saints don’t recover the ball they give Manning a short field and are down by 11 points.  The kick and Saints’ recovery stunned the Colts–I think Jim Caldwell’s nostrils even flared for a nanosecond.  That play knocked Indy back on its heels.
  • Lance Moore’s airborne, parallel-to-the-ground all-in-one-motion catch, twist to break the end-zone plane, contact with the field, and firm two-handed motionless display of the ball to the referee–who blew the call when a Colts player knocked the ball from Moore’s grip with his knee–was a wondrous display of athleticism, presence of mind, and flawless execution, topped off by the end-zone camera capturing every nuance to prove, irrefutably, that Moore scored the two-point conversion.  The replay showed Moore showing the ball to the ref like it was the prize catch in a bass-fishing derby.
  • Tracy Porter sat on the route, perfectly jumped Manning’s pass to Reggie Wayne to intercept the ball, let his blockers clear the path, then blazed to the end zone for the touchdown the killed Indianapolis.

Great game, great result, and a great reason for a week-long pre-Mardi Gras party.

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Networking for $

A few days after Mark Zuckerberg apologized for how Facebook handled the rollout of its Beacon and Social Ads programs–“We’ve made a lot of mistakes building this feature, but we’ve made even more with how we’ve handled them. We simply did a bad job with this release, and I apologize for it” (Wall Street Journal)–Facebook ads are in the news again. Using a service called Weblo Facebook members are placing ads on their own profile pages, their value determined “based on variables like how many friends they have in their social networks, and, thus, how many people will likely see ads on their pages.” Facebook’s terms of use prohibit such ads because, according to its chief privacy officer, “Facebook does not want people’s profile pages to become cluttered.” That’s disingenuous. My modest Facebook profile page, which features little personal information, no news feed, one photo, and few message, contains nine separate content panes. One would barely notice if it contained an ad or two.

This isn’t about clutter and page design. As the Beacon and Social Ad programs demonstrate, Facebook wants to convert the wealth of users’ personal information into ad revenue for its own coffers. This is the conflict inherent in social networking sites: the site owner provides the platform, the users provide all of the content, so who has the right to the economic benefit in the aggregate content? There would be no content without the users, but the total value of the individual browsing histories and purchasing choices of 1,000,000 users is far less valuable than the aggregate of that information. Only Facebook is in the position to obtain the maximum value from that aggregated information. Facebook could share revenue with those users who choose to share their information and reduce the incentive for individual ads. It should start by being honest about the issue these ads raise.

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Priming the Pump

In the blur of class preparation, reading papers, meetings with students, social engagements, workouts, and late-night Patriots games my desktop has become jammed with articles and ideas. Since I can’t go back in time I’ll clear the slate with these brief posts and try to get back in posting rhythm.

First, Facebook Founder Finds He Wants Some Privacy reports on Mark Zuckerberg’s attempts to force 02138 magazine (for those who do not “go to school in Cambridge,” 02138 is the Harvard zip code) to remove some “unflattering documents” from its website. A freelance reporter obtained the documents from the federal district court in Boston, where they were filed in connection with a lawsuit against Zuckerberg by the founders of ConnectU who claim that Zuckerberg stole their idea for a campus-based networking site after they engaged Zuckerberg for programming help. The documents include “include Mr. Zuckerberg’s handwritten application for admission to Harvard and an excerpt from an online journal he kept as a student that contains biting comments about himself and others.” The court rejected Zuckerberg’s motion to remove the documents without explaining his ruling.

Steven Kirsch–inventor, a serial entrepreneur, and philanthropist–has come up with a new way to stop junk email. Spam’s End? Maybe, if Time Allows discusses his scheme and his personal challenge in seeing it to fruition. Kirsch has Waldenstrom’s macroglobulinemia, a form of blood that is “considered incurable, although it can be managed beyond the five- to seven-year longevity that new patients are usually told to expect.” His spam-blocking technique relies on “the recognition that the ratio of spam to legitimate e-mail is individually unique. It is also a singular identifier that a spammer cannot manipulate easily. By assessing the combined reputations of the recipients of any individual message, the Abaca system determines the “spaminess” of a particular message.” Kirsch is approach his illness like an engineer, treating it as a problem requiring a solution.

Adult website Perfect 10–described by a defendant in a lawsuit as “a serial filer of nuisance copyright claims”–has come up short in one of its suits. This week the U.S. Supreme Court refused to hear its appeal from the 9th Circuit’s decision in Perfect 10 v CCBill LLC. In one of those coincidences that makes teaching–especially teaching Internet law–so much fun, the Court denied Perfect 10’s appeal on Monday of a week in which we are reading and discussing Perfect 10’s copyright lawsuits against Google and CCBill. To be fair, the 9th Circuit did remand the case against Google for further consideration of some of Perfect 10’s claims.

Last for this desk-clearing exercise, there have been numerous articles written about the suicide of 13 year-old Megan Meier. The story in a nutshell:

Meier met a 16-year-old named “Josh Evans” on MySpace. Her mother reluctantly gave permission to add Josh as a friend and visit with him online. They became close, but he suddenly turned on her, calling her names, saying she was “a bad person and everybody hates you.” Others joined the harassment, and the barrage culminated in Meier’s Oct. 16, 2006, suicide, just short of her 14th birthday.

Weeks later, Meier’s parents learned the boy didn’t exist—he’d been fabricated by a neighbor, Lori Drew, the mother of one of Meier’s former friends. The girls had had a falling-out, police say, and Drew wanted to know what Meier was saying about her daughter.

Drew managed to stay under the radar for a while but eventually she was outed–a Google search for “Lori Drew” yields about 59,000 hits and a search for <“Lori Drew” helicopter parent> yields almost 370 hits including Judith Warner’s piece in the NY Times: Helicopter Parenting Turns Deadly. Outrage and venom notwithstanding, the local prosecutor announced this week that he will not charge Drew in Megan Meier’s death because her conduct did not violate any criminal statutes. reviewed laws related to stalking, harassment and child endangerment before making his announcement. “[Prosecutor Jack] Banas said harassment and stalking laws both require proof that communication was made to frighten, disturb or harass someone. In this case, he said, the fictitious MySpace profile was created not to bully Megan, but to find out what she was saying about the neighborhood mother’s then-13-year-old daughter, a former friend. There are a few statements at the end that are a heated argument,” he said. “That’s why you have a hard time making a harassment case.””

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Rumplestilts-berg

Maybe Mark Zuckerberg’s youth–he’s 23–explains Facebook’s ham-fisted schemes to weave its users’ personal information into skeins of gold. I don’t believe his purposes are nefarious. As Facebook Beacon and Facebook Social Ads show, he does have a knack for letting dollar signs get ahead of his judgment. He is developing a skill for reversing field when what looked like a great idea around the boardroom table runs into the buzzsaw of user opinion.

First a recap. A few weeks ago Facebook announced Facebook Beacon, “a new way to socially distribute information on Facebook.”

The websites participating in Beacon can determine the most relevant and appropriate set of actions from their sites that users can distribute on Facebook. These actions can include posting an item for sale, completing a purchase, scoring a high score in an online game or viewing of video. When users who are logged into Facebook visit a participating site, they receive a prompt asking whether to they want to share those activities with their friends on Facebook. If they do, those friends can now view those actions through News Feed or Mini-Feed stories.

In other words, if a Facebook user lists items for sale on eBay or buys a movie ticket on Fandango, a pop-up asks whether the user wants to share this news–and on Facebook this is considered news–with their Facebook friends. The breathtaking narcissism of such newsy updates aside, Facebook Beacon takes a giant step towards a future when we will all be defined by the commercial value of our online data trail. Facebook stated “[i]n keeping with Facebook’s philosophy of user control, Facebook Beacon provides advanced privacy controls so Facebook users can decide whether to distribute specific actions from participating sites with their friends.” However, those “advanced privacy controls” are less assuring than promised. Yesterday a student and I read through Facebook’s user agreement and privacy policies to see whether one could elect not to participate in Facebook Beacon, other than by not using Facebook. Users can elect not to distribute to friends news of specific transactions, but to date there is no one-stop mechanism to opt-out entirely.

Facebook Social Ads are another part of the story. They “leverage the power of Facebook News Feed by serving relevant stories about friends engaging with your business.” Here’s how Facebook pitches them to businesses:

Reach the right people.

Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business.

The concept is brilliant–every Facebook user can, through association with purchases, downloads, ratings, and other digital flotsam, become his or her own brand. Facebook “friends” (which should always be in quotes in this context) could follow my data trail and decide “my father is sort of like Professor Randall, so maybe he’d like a pound of Malabar Gold Espresso, No Country for Old Men (the book, not the movie–he’s old school, remember), and Lindsay Mac’s Small Revolution for his birthday.” Or, back in the real world, cool hunters will track young fashionistas to decrease the lag between cutting edge and The Gap. Clickstream data, just laying around waiting to be turned into skeins of gold.

Brilliant. Except for the backlash.

Facebook: What Would Google Do?: There is something astoundingly tone deaf about how Facebook has handled its recent advertising initiatives. Mr. Zuckerberg is right: there are lots of people who would find it cool to tell the world what movies they just rented and even what color socks they just bought. But they’ve got to know that others would find this intrusive. And they couldn’t have picked a worse way to implement the Beacon system first: automatically telling your friends everything you did on participating sites unless you found and pushed a button to cancel the disclosure. (This timeline shows how hard it was at first to figure out what was going on.)

Are Facebook’s Social Ads Illegal?: There is at least one problem with this idea: It may be illegal under a 100-year-old New York privacy law. The statute says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. Moreover, such a use is also a criminal misdemeanor.

MoveOn Launches Privacy Campaign Against Facebook Social Ads: Calling Facebook’s new Social Ads strategy an invasion of privacy, MoveOn.org is asking Facebook members to sign a petition against the social network’s new ad plan.

Facebook’s “Fan-sumers:” Do Social Ads Violate Users’ Privacy?: [Law professor and privacy expert Daniel Solove] noted on his blog, “Facebook . . . assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it. Facebook doesn’t understand that privacy amounts to much more than keeping secrets — it involves controlling accessibility to personal data.”

Zuckerberg isn’t stupid, just surrounded by true believers who can’t view Facebook from outside the bubble. After ten thousand slaps upside the head Facebook has made Social Ads opt-in rather than opt-out. Under Pressure, Facebook Modifies Social Ads Program: “As of late Thursday, Facebook users must now proactively consent to alert friends whenever they take various actions, such as renting a DVD or purchasing a pair of sneakers . . . Now, as part of the changes enacted on Nov. 29, consumers who make such purchases will receive notices that Facebook intends to inform others about their actions—but only if they approve by clicking an “OK” button.” Problem handled, until the next wrong-footed product roll-out.

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Legal Careers

A comment on my post Not Covered by LSAT Prep takes exception–quite respectful exception–to my statement that “If you can’t assess and accept the risks of spending three years and $150,000 to earn a law degree there is a simple and cheap two-word solution: Don’t Go.”  The poster writes “such a statement may be easier to make in retrospect than prospectively. According to your bio, you graduated in 1981.”  His point is that in the century since I graduated from law school the cost of legal education has risen faster than wages and inflation, and it is much more difficult to pay back student loans on a law graduate’s average salary now than it was then.

I’m sure that’s true.  I see that reality in the pressures facing my oldest son, who is a 3L, and in students I’ve mentored over the years.  A friend who graduated law school six years ago owed more in student loans for college and law school than the outstanding balance of my home mortgage.  She is one of the fortunates who landed a BigLaw job at what was then the highest starting salary in Boston because she is smart, talented, incredibly hard-working, and proved herself  while working as a law student.

The increasingly-skewed relationship between the cost and economic benefit of law school education only reinforces my point about doing due diligence.  My mantra for the dozens of prospective law students I mentor each year is get life experience, investigate whether law is a good choice for you, and consider the enormous commitment of time and financial, psychological, and emotional resources law school requires.  The profession is filled with unhappy lawyers.  They can be unhappy because they don’t make enough money, or their practices are stultifying, or they are worn down from years of arguing, or they don’t like their clients, or they think they would be happier raising goats in Maine.  The legal profession suffers disproportionately from alcohol abuse.  Why would any sensible person enter this profession without assessing honestly how well it fits them?

And why would any sensible person enter law school without assessing honestly their chances of success?  The Wall Street Journal article that prompted my prior post discusses the tiered nature of the legal profession.  There are the few who finish at the top of their classes and garner BigLaw offers, but they are the exception.  The income gap between the high and and low-paying poles is enormous.  If financial necessity dictates that you start at $160,000/year when you graduate and your historic academic performance suggests that you won’t be among that top ten percent (or fewer) of the Type A personalities who will dominate your class, you need to ask “what am I doing?”  You need to revisit your expectations.   Note that I’m not saying don’t go–that admonition applies to those who don’t do the due diligence and make the risk/reward calculation.  But don’t count on a payoff and define success on terms that are likely to be unattainable.

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