We Understand Your Concern

I subscribed, for years. to the LexisNexis advance sheet service, receiving daily summaries of and links to recent decisions on certain topics from courts I selected to follow.  It cost $198/year and delivered great value, keeping me up on legal developments relevant to all of my courses, Internet law in particular.  Early this summer LexisNexis notified me by email that its advance sheet service would cease on July 21.   The email also provided a link to facilitate renewing my subscription to the service LexisNexis was killing, the first hint to the Jekyll/Hyde character of LexisNexis customer service.  LexisNexis sent at least four subsequent emails with the same message:  We will not longer provide this subscription service after July 21!! Click here to renew!!  I thought of LexisNexis as a company that knew what it was doing, so one day I called customer service to ask, what’s the deal with the mixed message?  “You are terminating the service, you’ve not offered a substitute service, you owe me money for the service I paid for post-July 21, and you are inviting me to renew a non-existent subscription.  What’s up with that?”  I was not–and am not–angry, just mystified at and curious about the customer-relations cluelessness of this sophisticated information-services company.  The customer service rep, very friendly, confirmed LexisNexis had no other products similar to the cancelled service, that they owed me money, and that the renewal requests were generated automatically by computer.   But why is the computer programmed to generate renewal prompts in messages telling me the service will not longer exist?  Hmm.  Good question.

I thought and heard nothing more about this until a few days ago, when I received an email asking me to complete the LexisNexis Community Member Survey.  I had two thoughts:  1. LexisNexis owes me money!  2. Does LexisNexis, a company that licenses information databases, know its customer service database is engaged in stand-up comedy?  I had to call.  This morning I shared these thoughts with another customer service rep, whose voice was nowhere as appealing as the woman I spoke with in July.  Yes, there is a credit memo in my file, acknowledging that LexisNexis owes me money.  No, they haven’t actually refunded the money.  They only process these credit memos in April and October.  Oh, I’d like to receive the credit now?  No, they have no products to replace the terminated service.  Yes, they do appreciate me presenting my concerns to them.

OpenDNS

With Security at Risk, A Push to Patch the Web in today’s NY Times reminded me about OpenDNS, a free domain name system service.  The article, which deals with a serious security flaw discovered in the operation of the domain name system earlier this year by Dan Kaminsky, an Internet security expert, notes that individuals and small businesses can protect themselves from the flaw by using OpenDNS.   I configured my home network router for OpenDNS a few years ago and never thought about it again.  The router failed six months ago and, reading this article this morning, I realized I never changed the default server settings on the new router to use OpenDNS.  Making and implementing the changes took just a few minutes.  The OpenDNS site provides simple instructions for configuring popular routers and changing DNS settings in Macs, PCs, and other devices.  Take five minutes and do it.

Solitary: Followup

There’s an update to the story about the two Louisiana prisoners who’ve spent 36 years in solitary confinement. It comes via an NBC News press release:

NBC News has confirmed that after 36 years in solitary confinement, inmates Herman Wallace and Albert Woodfox have been moved out of solitary into a shared dormitory setting at Louisiana State Penitentiary at Angola with approx 17 other inmates. The rules and requirements of their new living situation are unclear but they are now allowed outside for a few hours a day in a group setting. Wallace and Woodfox are still appealing their original convictions and maintain their innocence but at least the issue of their “Cruel and Unusual punishment” in solitary confinement seems to be resolved for now. Wallace and Woodfox were moved into their new living quarters on Monday March 24, 2008. Their civil and criminal cases are still pending.

The press release came to me from my sister-in-law twice-removed (or whatever her kinship is) who produced the original story. Kudos to her for exposing this story to the light.

Another environmental concern

Over the past decade law enforcement has cracked down on the production of methamphetamine, shutting over 100,000 homemade meth labs. Many of these labs were located in private homes. During production methamphetamine residue lodges in carpets, upholstery, drapes and other surfaces. When these former meth labs are sold unwitting buyers are exposed to the residue and suffer respiratory problems, severe enough in some cases to require the residents to vacate the homes. As reported in The National Law Journal on March 17 some buyers have sued the sellers and brokers involved in the sale for their failure to disclose the property’s former use as a meth lab. The article cites two state trial court decisions–Taylor Bean & Whittaker Mortgage Corp. v Wagner in Ohio and Bloor v Fritz in Washington–involving such claims; the Washington case is on appeal following the trial’s award of $94,000 in damages from the seller and broker to purchasers who were forced to move because of methamphetamine contamination. Fourteen states have passed laws mandating that owners disclose their property’s use for production of methamphetamine, and 13 states require that sellers clean up such former labs before selling them.

Attractive nuisance

Black’s Law Dictionary (5th Edition–yes, it’s old) defines attractive nuisance as “an instrumentality, agency, or condition . . . which may reasonably be apprehended to be a source of danger to children . . .” The law requires a person who creates or maintains an attractive nuisance “to take such precautions as a reasonably prudent man [I said it was old] would take to prevent injury to children of tender years who he knows may be accustomed to resort there, or who may, be reason of something there which may be expected to attract them, come there to play.”

For instance–

Attractive nuisance 1

Attractive nuisance 2

Privacy and Security

A story in yesterday’s Wall Street Journal titled NSA’s Domestic Spying Grows as Agency Sweeps Up Data (subscription required) reports that–

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

The NSA’s enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world’s main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called “black programs” whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

An NSA spokeswoman stated that the Agency “strictly follows laws and regulations designed to preserve every American’s privacy rights under the Fourth Amendment to the U.S. Constitution.” If you find comfort in that statement, consider this description of how the Agency uses its expanded domestic surveillance authority to pursue leads:

If a person suspected of terrorist connections is believed to be in a U.S. city — for instance, Detroit, a community with a high concentration of Muslim Americans –the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city. The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information collected “doesn’t generally include the contents of conversations or emails.” Generally. That’s a word we lawyers use to say “most of the time we don’t, unless we do.” Even without such content the NSA can identify the parties to phone calls and emails, their locations, and their cell phone numbers. The telecoms enable the NSA’s efforts either by copying all data through their switches to share with the NSA, or by ceding control to the NSA over the switches. The White House is pushing a bill that would immunize the telecoms from liability for privacy claims arising from this data collection. The NSA domestic surveillance program includes elements of and technology from the Pentagon’s Total Information Awareness initiative that Congress defunded in 2003 following criticism of TIA’s potential for civil rights abuses. Before it was killed the Pentagon renamed TIA to Terrorist Information Awareness to make it seem less creepy. Now the NSA is implementing TIA through its “black budget,” beyond effective non-NSA scrutiny.

The Journal story reminded me of a recent Wired column by the always-prescient Bruce Schneier: What Our Top Spy Doesn’t Get: Security and Privacy Aren’t Opposites. Schneir’s column focuses on a proposal from National Intelligence Director Michael McConnell to monitor all–“that’s right, all–” Internet communications:

In order for cyberspace to be policed, internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.'”

This states it as baldly as one can. This administration’s top intelligence personnel consider every increase in security to require a corresponding decrease in privacy. As Scheier states “I’m sure they have that saying in their business. And it’s precisely why, when people in their business are in charge of government, it becomes a police state.” Scheier says privacy versus security is a false dichotomy, that the true dichotomy is between liberty and control–and that “liberty requires both security and privacy.”

Nice try, but . . .

British Farmer Robert Fidler wanted to build a castle. Not metaphorically, as in “a man’s home is . . .” but literally. Local laws forbade building in the zone where his castle was located but Fidler is not one to have his wishes turned aside by mere regulations. His solution was to erect a huge pile of hay bales, cover it with blue tarps, and secretly build the castle inside. He figured that as long as he kept its existence secret he would be protected by a law that protected a non-conforming structure if no objections was made to it within four years. Such it-almost-makes-sense-but-not-quite reasoning is common among those trying desperately to evade regulations–the regulation on which Fidler hung his hat is premised on the non-conforming building being visible and tolerated by those who might object to it. A secret building hidden inside an enormous blue mound doesn’t cut it. See the story and pictures, but don’t be surprised if you remain puzzled after doing so. This is an odd story.

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.

Course wiki projects

Wednesday night I had dinner at Stella in the South End with my former business partner. We dissolved our financial advisory business in 1999 when we both started teaching full-time, me at BU School of Management and David in a Boston public school. He and his family have been in New Delhi for eighteen months where his wife took an assignment for her company and David played golf and taught in an American school. He related how his 10th-grade English students engaged in “deep reading” of classic literature–that is, reading, thinking, and making marginal notes in the velo-bound public-domain works he assembled for them–and turned Agamemnon into a play about a high-stakes soccer match between bitter foes that they then performed for classes of 6th-graders. These experiences echoed the written case assignments and wiki content creation I’ve introduced into some of my courses. Make someone write about what they read, make them find creative ways to engage with the course material, and they will understand it more fully.

The wiki assignments are new to real estate law and Internet law this semester. I want another vehicle for student engagement that can tap into and capture how they learn and create a repository of resources for current and future classmates. This week I sketched out rough ideas for how students might use the wiki with no sense of how they would react to them, and asked for volunteers to create the first projects. It has only been a few days but so far I am pleased. Their initial ideas have outstripped my thinking about what they might do. It proves to me again that the best ideas come from students.

Don’t Go to Law School

I’ve posted before that prospective law students must honestly consider their prospects for success in law school because, unless they attend one of the very top-ranked schools, their job opportunities will be limited if they are not ranked at the top of their classes. The Wall Street Journal Law Blog recently interviewed “law school naysayer” Kirsten Wolf, a 32-year old BU law graduate. Wolf went to law school a few years out of college believing that she would obtain a marketable skill that would justify the cost of borrowing to pay tuition. In the fall of her second year, when she realized her B+ average was not good enough to land her a summer associate position with a large firm, she began to question her decision. Already $45,000 in debt she stayed, graduated in 2002, passed the Massachusetts bar, and found no law jobs waiting. She went back to the company she worked for before law school and then eventually moved to New York where she landed a job she enjoys, as an office manager for a literary agency. She is paying her $87,000 student loan debt over 30 years–which means she’ll still be paying for law school as she approaches her 60th birthday. In Wolf’s words:

I’m on a one-woman mission to talk people out of law school. Lots of people go to law school as a default. They don’t know what else to do, like I did. It seems like a good idea. People say a law degree will always be worth something even if you don’t practice. But they don’t consider what that debt is going to look like after law school. It affects my life in every way. And the jobs that you think are going to be there won’t necessarily be there at all. Most people I know that are practicing attorneys don’t make the kind of money they think lawyers make. They’re making $40,000 a year, not $160,000. Plus, you’re going to be struggling to do something you might not even enjoy. A few people have a calling to be a lawyer, but most don’t.

Legal Blog Watch Alert picked up Wolf’s story and also reported about a lawyer who auctioned his law school diploma on eBay. The post notes the lack of discussion on academic law blogs about whether to attend law school.

For years I have advised students that exceptional performance in law school is more important than where you go. Wolf’s story bears this out. She must have been a good student and gotten good LSAT scores–BU law would not have admitted her otherwise–but that doesn’t put you at the top of your class. Even at BU, which is always ranked as one of the top 25 or 30 law schools in the country, a B+, top-half of the class performance will not open the most lucrative doors. I’m seeing this again with a friend who is currently in her second year at BU. She is quite smart, works exceptionally hard, is one of the most personable and engaging people I know, and yet has been unable to crack into the Big Law summer associate track. And if you aren’t on that track after your second year of law school, your earnings horizon changes dramatically. Yet had Wolf gone to a lower-ranked school and finished at the top of her class–say in the top 10 or 15 places, or top 3.00%–odds are that she could have obtained a high-paying job. Finishing in the top 3% of one’s law school class does not happen without brains and lots of hard work. That’s why those at the top of their class will still merit a look from the most selective employers, because the employers know what it takes to get there.

I’ve always taken a laissez-faire approach with prospective law students. I’ll be honest about the risks and pitfalls of a legal career and then support the student’s decision to attend law school notwithstanding my warnings. I’m now rethinking my approach. Should I recommend a student who has not shown the academic ability to finish in the top five percent of his or her law school class?