Web Sites and the ADA

As reported by Law.com last week Target Corp. settled a federal class action lawsuit brought by The National Federation of the Blind, who claimed that Target’s website was inaccessible to the blind in violation of the Americans with Disabilities Act.  At issues was Target’s failure to code its website to enable use of keyboards and software that convert websites into speech or Braille.  Target agreed to pay $6 million in damages and recode the site to accomodate those with vision disabilities.  Target was prompted to settle in part by the trial judge’s ruling that the ADA applies to a business’s website, agreeing with the plaintiffs that there is a nexus between physical Target stores and its online presence.  The article reports that other companies such as Amazon.com and RadioShack have agreed to improve their web sites to enable use by visually impaired customers.  (Source:  Evan Hill “Settlement Over Target’s Web Site Marks a Win for ADA Plaintiffs,” The Recorder, 28-Aug-08.)

Real Player Warning

Stopbadware.org–organized Harvard Law School’s Berkman Center and the Oxford Internet Institute of Oxford University–warns about the privacy failings Real Player 10.5 and Real Player 11.0. The former does not alert the user that its message center feature will display pop-up ads if the program is not registered, while the latter secretly installs the Rhapsody Player Engine and leaves it in place if the user uninstalls Real Player 11.0. For years I’ve avoided Real Player products as much as possible because, in my experience, they are intrusive and persistent. I gave the company another shot by using Rhapsody for a while but it was a constant headache. I had to uninstall it a few times and in each case it was like cleaning up after a terrible roommate who leaves dirty plates in the living room, smelly socks on the kitchen table, and wet towels on the bathroom floor. I canceled the account after a few rounds of this. Brian Krebs reports the story and proposes some alternatives to Real Player.

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.””

Universal Digital Library

The mission of the Universal Digital Library: Million Book Collection, hosted by Carnegie Mellon University is to

create a Universal Library which will foster creativity and free access to all human knowledge. As a first step in realizing this mission, it is proposed to create the Universal Library with a free-to-read, searchable collection of one million books, available to everyone over the Internet. Within 10 years, it is our expectation that the collection will grow to 10 Million books. The resultwill be a unique resource accessible to anyone in the world 24×7, without regard to nationality or socioeconomic background.

One of the goals of the Universal Library is to provide supportfor full text indexing and searching based on OCR (optical character recognition) technologies where available. The availability of online search allows users to locate relevant information quickly and reliably thus enhancing student’s success in their research endeavors. This 24×7 resource would also provide an excellent test bed for language processing research in areas such as machine translation, summarization, intelligent indexing, and information retrieval.

It is our expectation that the Universal Library will be mirrored at several locations worldwide so as to protect the integrity and availability of the data. Several models for sustainability are being explored. Usability studies would also be conducted to ensure that the materials are easy to locate, navigate, and use. Appropriate metadata for navigation and management would also be created.

Bookmark the UDL’s home page and search form and use the site often. It deserves support.

Janus-Faced

Just the headline of Adam Cohen’s op-ed piece in today’s New York Times–Larry Craig’s Great Adventure: Suddenly, He’s a Civil Libertarian–put me in mind of an old joke: “A liberal is a conservative who has been arrested.” Indeed Cohen offers up this punch line as he calls Craig to task for his belated embrace of civil rights after a senate career in which he supported judicial nominees eager to dial them back. What Cohen doesn’t mention is the other part of the joke: “And a conservative is a liberal who has been mugged.”

Mission Not Accomplished

The text of the National Intelligence Estimate on terrorism answers the question posed yesterday: what has five+ years of the “war on terror,” hundreds of thousands of lives, and hundreds of billions of dollars accomplished? Constraint. The Estimate (only the Key Judgments portion of which has been declassified) “assess[es] that greatly increased worldwide counterterrorism efforts over the past five years have constrained the ability of al-Qa’ida to attack the US Homeland again and have led terrorist groups to perceive the Homeland as a harder target to strike than on 9/11.” (emphasis supplied) Courtesy of the New Oxford Thesaurus of English, to constrain means to restrict, limit, curb, check, restrain, confine, impede, hamstring, frustrate, stifle . . . That’s it. Such feeble results should compel reassessment of our strategy and adaptation to the apparent constraints on our greater success. Instead, this is what we get: “White House officials said [the threat assessment] bolstered the Bush administration’s argument that Iraq was the “central front” in the war on terror, because that was where Qaeda operatives were directly attacking American forces.” White House officials did not address the next logical question: Since they did not have a viable Iraqi presence before 9/11, why are Qaeda operatives in Iraq? To paraphrase George Mallory’s explanation for why climbed Everest, “because we’re there.” We plowed the furrows, planted the seeds, and provided the environment for al-Qa’ida in Iraq to thrive and become an ongoing threat to U.S. security. The threat assessment “assess[es] that al-Qa’ida will probably seek to leverage the contacts and capabilities of al-Qa’ida in Iraq (AQI), its most visible and capable affiliate and the only one known to have expressed a desire to attack the Homeland. In addition, we assess that its association with AQI helps al-Qa’ida to energize the broader Sunni extremist community, raise resources, and to recruit and indoctrinate operatives, including for Homeland attacks.”

Let’s sum it up:

  • Pros
    • al-Qa’ida operations constrained
  • Cons
    • al-Qa’ida organization rejuvenated and thriving in Pakistan
    • al-Qa’ida in Iraq created, and its abilities strengthened through years of fighting U.S. forces
    • Lebanese Hizballah may be more likely to attack U.S. if it threatens Hizballah or Iran

Cause for Hopelessness

I noticed the headline, Poor Kids Living in a War Zone, and clicked on the link. I thought it might be about the Taliban’s terror killings in Afghanistan. I was wrong. Bob Herbert’s column in yesterday’s New York Times discussed the 34 children killed in Chicago’s black and Latino neighborhoods since last September, 34 murders that occurred far below national media radar. The story of Seung-Hoi Cho’s murder of 32 people at Virgina Tech saturated the news; a Google search for <“Virgina Tech” shooting> just produced over 1.7 million hits. Until Bob Herbert’s column the story of these murdered Chicago school children had escaped my notice. Why? These murders occurred over ten months, not a few hours, but that alone does not explain our “passivity and a lack of public outrage” over the Chicago deaths. As Herbert says “most people know (and take for granted) that boys and girls growing up in America’s inner cities often have to deal with conditions that can fairly be compared to combat.” It’s disturbing that this statistic reinforces my own sense of hopelessness at changing the outcome. Herbert cites the litany of causes: too many handguns, sub-standard education, lack of positive after-school activities, lack of summer job programs, and abdication of parental–and particularly paternal–responsibility. I would put more emphasis on parental responsibility, yet while providing a tidy answer one cannot put sole blame on parents and community leaders. How do you learn social norms of responsibility in a vacuum? Irresponsibility breeds irresponsibility. I’m surprised that Herbert fails to cite the lack of economic opportunities. Creating jobs is related to improving the quality of education, but there is certainly a direct relationship between the two.

Do As I Say, Not As I Do

A person’s sexual proclivities are a private matter and rarely relevant to his or her professional abilities–unless that person pushes his values on others and doesn’t practice what he preaches. That’s the position of Republican Louisiana Senator David Vitter, just the latest “clean-as-a-whistle champion of family values” to get caught with his hand in the . . . (let me rephrase that) . . . to have his phone number found in the D.C. Madame’s little black book. Vitter, who who “opposes radically redefining marriage, the most important social institution in human history,” acknowledged his call-girl relations as a “very serious sin in [his] past.” This is bad news for Rudy Giuliani–another born-again moral hypocrite–because Vitter was liaison to the south.

Next stop, pastoral counseling and rehab* for sex addiction? That’s what the playbook calls for.

*Three seconds after I typed this word iTunes cranked out Amy Winehouse’s Rehab. Spooky.

And Wayne Newton as Secretary of State

Hillary Clinton’s campaign has attempted to whip up enthusiasm for its campaign-song contest, in which you–yes, you!–could select the lucky song. Her website announced the winner with a brief, mildly amusing video inspired by the last episode of The Sopranos (which I liked, by the way) and bearing a Sopranos in-joke: Vince Curatola, who played Johnny Sack, gets up from a diner stool and gives Hillary and Bill a funny look on his way to the bathroom. There is an amusing and telling scene in which Bill whines “no onion rings?” when confronted with Hillary’s order of carrot sticks. Is Hillary running as Sensible Mommy, the one who hands out boxes of raisins on Halloween? The video cuts to black and a link to the contest winner: You and I by Celine Dion.

Celine Dion? Bad choice, musically and symbolically. Not to get all chauvinistic, but the campaign knows that Celine is Canadian, right? Her soul–if we can use that word in discussing Celine Dion–is Las Vegas, a slice of American cheese topped with Miracle Whip, but her birth certificate says Charlemagne, Quebec, Canada. Couldn’t Hillary find a tune by an American pop songstress? Ugly Americanism aside, Celine Dion’s music is insipid and You and I is a yawner of yearning and treacly aspirational lyrics and generic rock.

Enjoy the carrot sticks.  (Any happier now, young Shakespeare?)

Two Schools of Thought

I wrote briefly recently about the Second Amendment, a post that prompted a spirited and articulate discussion. An article in yesterday’s New York Times provides fodder to continue that discussion. Written by Adam Liptak and titled A Liberal Case for Gun Rights Sways Judiciary, the article discusses what for liberals amounts to embracing the dark side–the individual rights view of the Second Amendment. There are two approaches to reading the Second Amendment, which reads “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The collectivist view, long embraced by liberal legal scholars, holds that the Second Amendment protects the right of states to maintain militias. The individual rights view championed by the National Rifle Association and other pro-gun (or anti-government) groups holds that the Second Amendment protects the right of individuals to own guns. What is new is that some influential liberal legal scholars–the Times article mentions Larry Tribe, Akhil Reed Amar, and Sanford Levinson–have embraced the individual rights view. In Levinson’s words “[t]he standard liberal position is that the Second Amendment is basically just read out of the Constitution.” Paraphrasing Levinson the article states “If only as a matter of consistency . . . liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment.” Law professor Carl Bogus criticizes this liberal apostasy as intellectually dishonest: “[c]ontrarian positions get play . . . Liberal professors supporting gun control draw yawns.”

I have no position on Second Amendment scholarship to throw into the ring. My interest is moved largely by the uncertainty in the law. My blog post and the discussion following generated a number of questions about why, at this point in our history, Second Amendment jurisprudence is so muddled. The lack of a clarifying Supreme Court ruling as to whether the collectivist or individual rights position embraces the controlling view is noteworthy. The Times article notes that the “Court has not decided a Second Amendment case since 1939,” a “somewhat cryptic” ruling cited since 1939 by both collectivists and individual-right-ists to support their interpretation. It is a curious state of affairs. The Second Amendment is the black sheep of the Bill of Rights, the provision over which liberals and conservatives execute a do-si-do and change their partners.

The case that brought this doctrinal switcheroo to the fore is Parker v District of Columbia, a March 9, 2007 decision of the the United States Court of Appeals for the District of Columbia Circuit (478 F.3d 380) striking down a District law that banned residents from keeping handguns in their homes as a violation of the Second Amendment:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

478 F.3d 380, 395. The court’s opinion cites Tribe’s and Levinson’s respective work in support of its ruling. If the Supreme Court hears Parker v District of Columbia the muddle may disappear.