Nod Once for Yes

The Supreme Court Bobblehead collection doubled this week when Justices Souter, Kennedy, and Scalia moved north after a long, pleasant stay in rural Maryland.  The new arrivals join Justices Rehnquist, Stevens, and O’Connor in my office.  Also joining is a mystery Bobblehead rumored to be on the short list to replace Justice Stevens–a selection that would quiet critics of the Court’s lack of species diversity.

Dystopian Applenet

I’ve never warmed up to Jonathan Zittrain’s use of the term “generativity” but understanding its meaning is critical to understanding why the Internet grew as it did over the past twenty years. The Internet’s open protocols and platform enabled creation of what now must be hundreds of thousands of applications that expanded the Internet’s utility.  The NYTimes article titled “Apple Places New Limits on App Developers” made me think of Zittrain’s The Future of the Interent–And How to Stop It.  If Apple had invented the Internet it would have a dazzling look and feel and a fraction of our Internet’s utility.  It would be tethered to Apple’s control mania.  I don’t question Apple’s right to impose limits on developers of iPhone and iPad apps.  I’m just reiterating Zittrain’s point about the benefits of open, freely-adaptable, not-centrally-controlled technology.

First Amendment Question

This was posted as a wiki project, but is more appropriate as a blog post. The poster linked to an article titled Dad of a fallen marine perseveres against protests at military funerals and asked these questions:

  • I am just wondering what people think about this.
  • Secondly, did the protesters have a right to protest at the funeral?

I’ll go first.  I think the protesters’ message and choice of forum are despicable.  I believe they are engaged in protected speech and have the right to protest at the funeral.  I would have to read the opinion to know why the court ordered the plaintiff to pay the defendants’ legal fees.

Kids Today

In my early years of teaching Internet law I thought the course would be relevant for a decade or so.  No longer.  These days I tell my students that someday all law will be Internet law as our lives become more entangled with network and digital technology.  The wave is still building.  The effects of network technology (admittedly a vague term, it’s a stew in which I throw telecommunications, digital content, mobile computing, the Internet, and whatever else is on hand) on my current and future students fascinates me (see, for instance, My Office Minutes are From 2 to 2:05, Redefining Sexting, Massachusetts on Verge of Anti-Bullying Law).  I want to understand the effects because I need to know how to reach these students, because it’s relevant to Internet law, and because it’s inherently interesting.

Teaching About Web Includes Troublesome Parts from yesterday’s NYTimes captured my attention.  The story centers on classes developed by Common Sense Media to teach younger students “to consider their online behavior before they get into trouble”:  “identity (how do you present yourself online?); privacy (the world can see everything you write); ownership (plagiarism, reproducing creative work); credibility (legitimate sources of information); and community (interacting with others).”  This fact in particular stood out from the article’s references to cyber bullying, the blurred line between virtual and real life, and the Internet’s amplifying effect on “typical adolescent behavior.”

The average young person spends seven and a half hours a day with a computer, television or smart phone, according to a January study from the Kaiser Family Foundation. Considering that the time is mostly outside of school, the results suggest that almost every extracurricular hour is devoted to online life (emphasis added).

The referenced study is Generation M2: Media in the Lives of 8- to 18-Year-Olds.  Based on a survey of over 2,000 3rd to 12th-grade students conducted between October 2008 and May 2009 the 85-page document reports that:

  • “The increase in media use is driven in large part by ready access to mobile devices like cell phones and iPods. Over the past five years, there has been a huge increase in ownership among 8- to 18-year-olds: from 39% to 66% for cell phones, and from 18% to 76% for iPods and other MP3 players. During this period, cell phones and iPods have become true multi-media devices: in fact, young people now spend more time listening to music, playing games, and watching TV on their cell phones (a total of :49 daily) than they spend talking on them (:33).”
  • “Top online activities include social networking (:22 a day), playing games (:17), and visiting video sites such as YouTube (:15). Three-quarters (74%) of all 7th-12th graders say they have a profile on a social networking site.”
  • 7th-12th graders report spending an average of 1:35 a day sending or receiving texts. (Time spent texting is not counted as media use in this study.)”

I look forward to dealing with these strange new creatures.

If a Sapling is Cut Down as Soon as it’s Planted . . .

One form of Chinese censorship is to block searches for “sensitive info” such as Tiananmen and Falun Gong. If a web post is made in a forest and no one can find it, does it convey information? Another is to scour domestic websites for sensitive info such as Tiananmen, Falung Gong, –and Google, and instruct webmasters to delete it.  Around the time that Google stopped censoring Chinese search results and began referring Chinese searches to its Hong Kong servers

[]he Chinese State Council Information Office . . . ordered all news sites to “carefully manage the information in exchanges, comments and other interactive sessions” and “clean up text, images and sound and videos which support Google, dedicate flowers to Google, ask Google to stay, cheer for Google and others that have a different tune from government policy.”

The Line of the Week

Today’s guest speaker in Introduction to Law posed a hypothetical to explore bias.  He asked students to imagine walking down the street at 2 am and seeing two groups walking in the other direction.  One is composed of young men of color dressed in stereotypical urban garb of baggie pants and hoodies.  The other is composed of young white men dressed in tuxedos.  The question was, which group do you choose to meet?  A few students responded as expected. Then one student said–dryly, with just enough sarcasm to convey his true meaning–that he would walk towards the group in tuxedos because “very few times in history have rich white men hurt anyone.”  Raucous laughter ended further exploration of that particular hypothetical.

Touché.

Tufts, Ushahidi, and the Haitian Earthquake

Today’s Globe has an interesting, detailed article about the creation of the crisis-response map immediately after the earthquake in Haiti by Tufts University graduate student Patrick Meier.  The map employed Ushahidi, a platform developed in Kenya and discussed in this post, and hundreds of volunteers to translate SMS messages from earthquake survivors, geo-code the nature and location of the help requested, and post the information to be used by rescue and relief personnel.  It’s an inspiring story.

Redefining Sexting

A NYTimes article published a few days after the Third Circuit Court of Appeals decision in Miller v. Mitchell (f/k/a Miller v. Skumanick) re-evaluates applying sex offender laws to teenagers who send nude pictures of themselves or others via cell phone, or sexting.  The Third Circuit upheld the trial court’s order barring a state prosecutor from charging three teenage girls with pandering child pornography.  Two of the girls, 13 years old at the time, were photographed from the waist up wearing bras, the third was photographed wrapped in a towel with her breasts exposed.  The photos came to the attention of school official and the prosecutor as they were being passed around by local students.  Prosecutor Skumanick deemed the photos sexually “provocative” and threatened the girls with felony charges unless they submitted to his self-designed “re-education” program.  (Was this Republican official aware of how closely his tactics mirrored those of the Mao’s Red Brigade during China’s Cultural Revolution?  Doubtful.)  The girls’ parents sued to enjoin Skumanick’s crusade and the court ordered him to stand down, ruling that the girls and their parents were likely to succeed on their First and Fourteenth Amendment claims.  The state appealed, and while the appeal was pending prosecutor Miller replaced Skumanick in office.   Skumanick chose not to prosecute the boys trading the photographs because, as the state’s lawyer reportedly said in court, “high school boys did as high school boys will do.”

Teenagers have been doing dumb things, experimenting with sex, and combining the two forever.  Now they can do all of the above online, in digital format.  This week we discussed whether that qualitatively changes the legal implications.  Student responses are mixed, but there’s broad agreement that typical sexting cases do not warrant child pornography charges.  The Times story mentions an 18 year old boy on the sexual offenders’ registry in his state for sending a cell phone picture of his genitals to “a 14 year-old female friend who had requested it.”  Bad judgment for sure;  did it warrant the punishment?  States are starting to decriminalize or redefine sexting to lessen the punishment.  “Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.”  An attorney quoted in the article said “[w]hile sexting is bad judgment, it’s simply not what the Supreme Court had in mind when it crafted the child pornography law. It just doesn’t make sense that in a lot of the sexting situations, the pornographer and the victim are one and the same person.”  Criminal prosecution should be the last resort in most of these cases.