No explanation

Steve Kazmierczak, the Northern Illinois University graduate student who opened fire in a lecture hall this week, killing five students and wounding many more before killing himself, was not the archetypal brooding loner. Reportedly he “was revered by the faculty and staff and students alike,” “nice,” “engaging,” “motivated” and “responsible.” He purchased and registered the murder weapons, a 12-gauge shotgun and 9-millimeter pistol, legally from a gun dealer. He had recently stopped taking medication for an as-yet unreported condition and had shown some erratic behavior, but nothing that raised alarms. He left no note and there is no reported connection between Kazmierczak and the students he killed. We like to think that there is always something that could have been done, but that’s not so here. On the continuum of senseless killings, these murders are at the extreme.

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.

The Sun Always Shines II . . .

. . . except when it doesn’t. A friend sent me an article from Bloomberg titled Credit Market Collapse Claims Victims as Lawyers Exit, reporting on dismissals from law firms that service structured finance, private equity, and mergers and acquisition transactions. So far the numbers of dismissals is small but expected to increase. The article quotes a source from Citi Private Bank’s law firm group: “You’ll see firms use this slowdown as an opportunity to raise the performance bar and clean out the bottom 5 percent of their performers.” It is indeed a schizophrenic time for BigLaw associates. One day starting salaries increase to $160,000, the next senior associates are axed because the work isn’t there. And associates aren’t the only ones feeling the pain: “Chicago-based Mayer Brown fired or demoted 45 partners in March that the firm said were underperforming.” No, it isn’t all camel rides.

Follow up 11/28:  Law.com reports  that, barring a quick turnaround in the credit markets, Thacher Profitt and Wood will lay off 24 non first-year associates in January. The 350-lawyer firm also offered 29 first-years “the option of taking four months severance and leaving the firm.”  The article did not report what option faces those first-years who decline the severance.    53 lawyers = 15% of firm professionals.

Not Covered By LSAT Prep

My stack of to-be-written law school recommendations makes this Wall Street Journal headline especially timely: Hard Case: Job Market Wanes for U.S. Lawyers (Amir Efrati, The Wall Street Journal, 24-Sep-07 Page A1 Subscription Required). The story in a nutshell:

[T]he majority of law-school graduates are suffering from a supply-and-demand imbalance that’s suppressing pay and job growth. The result: Graduates who don’t score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits.

The article cites an increase in the number of lawyers–43,833 J.D.s granted during the 2005-2006 academic year, compared to 37,909 granted 2001-2002–, slack demand, and decline in practice areas such as personal injury and medical malpractice. According to the IRS “the inflation-adjusted average income of sole practitioners has been flat since the mid-1980s.” The result is a huge gap between those law school graduates who snag Big Law jobs paying upwards of $160,000 year and everyone else. Graduates are squeezed to pay back law-school tuition loans; according to the ABA “[g]raduates in 2006 of public and private law schools had borrowed an average of $54,509 and $83,181, up 17% and 18.6%, respectively, from the amount borrowed by 2002 graduates.”

I can empathize with the disappointment these folks face but a law degree has never been a guaranteed ticket to fortune. The article notes that many of these folks “are blaming their law schools for failing to warn them about the dark side of the job market.” Please. A law school isn’t your mommy or daddy. 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.

If any of the prospective law students waiting on my recommendations are reconsidering their career choices, my door is always open. And for those of you taking the LSAT this Saturday–sorry for the timing. It’s not too late to decide to spend 9/29 at the beach.

 

End-of-Semester Hijinks

Explanations of why I love teaching can be abstract, sprinkled with words like “energy” and “engagement” and “chemistry” without conveying the edgy give-and-take that makes a great class like a high-wire act. With most students I have a relationship that combines respect and playful banter. It’s not the only style, it may not be the best style, but it works for me. It suits my personality and emulates the professors I most enjoyed in law school (with Dan Givelber at the top of the list). Which is why I love this story, because the professor it features must be very special to inspire and tolerate such a prank.

Nate, my youngest, is a college junior (not at BU) taking Macro Economics this semester. If a student’s cell phone rings during his Macro class the professor will answer the phone and engage the caller in conversation. Inspired by his professor’s ready classroom humor Nate devised a plan. Explaining the reason for his inquiry he located her husband’s email address from another professor and wrote to him. After explaining how he obtained the husband’s email address through a friend Nate made his pitch:

It being the last week of classes, I was hoping to play a friendly joke back on her. Specifically, I thought it might be hilarious if I could have YOU call my cell phone tomorrow afternoon during class, some time between 3:10 pm and, say, 3:45 pm. In theory, Professor Holmes would hear my phone ring and pick up it up – expecting the caller to be my mother, friend, roommate, etc. She would quickly find out, however, that the person was, in fact, her husband.

Professor Holmes’s husband was game. He called Nate’s phone at the proper time. Hearing its ring the professor picked it up, said “Nate Randall’s phone,” and waited for the caller’s expected confusion. Instead she heard a familiar voice in an entirely-dislocated context. Nate doesn’t know what her husband said, but it cracked her professorial demeanor. She said “Steve?” and her face turned purple as everyone laughed. She terminated the call with “you little shit!” to her husband and returned Nate’s phone with a laughing promise: “This isn’t the end of this!” Nate will be looking over his shoulder until he graduates.

Hats off to you, Professor Holmes.

Supreme Court Tosses Punitive Damage Award

The U.S. Supreme Court today rejected (see NY Times article) a $79.5 million punitive damage award against Philip Morris in a lawsuit brought by the widow of long-time smoker Jesse Williams. The 5-4 decision found there to be a taking of property without due process when punitive damages are calculated by determining the measure of harm to a single plaintiff and then multiplying that amount by the number of third parties similarly harmed. The Court declined the opportunity, sought by Philip Morris and other industry groups, to establish a cap to punitive damages. Justice Breyer wrote the opinion for the Court, joined by Chief Justice Roberts and Justices Alito, Kennedy, and Souter. Justices Stevens and Thomas filed solo dissenting opinions and Justice Ginsburg filed a dissent that was joined by Justices Scalia and Thomas. The case is Philip Morris USA v Williams.

What’s the Wikipedia Entry for “Quality?”

Yesterday Law.com (subscription required) had an article titled The Patent Office: Getting Wiki With It about the Patent & Trademark Office’s decision last August to remove Wikipedia as an acceptable research source for prior art searches. The article notes that “the surprise was not that the Web site had been banished, but that examiners had been using it at all.” Since banishing Wikipedia the PTO has been criticized for leaving on its list of acceptable research sources other websites that also can be easily modified. What could the PTO have been thinking when it allowed examiners to use Wikipedia in the first place? I refrain from taking constant whacks at Wikipedia’s flaws because it’s too easy. One can’t rely on it for anything remotely important. It is probably quite good for researching Dungeons and Dragons, but even there I wouldn’t cite it as my only source. Apparently not everyone has gotten the message.

For instance, last week I searched for articles on “Internet Crime.” Google returned Wikipedia on the first page of search results. I looked at the Wikipedia entry, wondering if it pointed in directions I had not considered. It certainly did. I learned:

Internet crime is crime committed on the Internet, using the Internet and by means of the Internet.

Hey man did you know that you smell . “Knock knock” whos there? “Me” me who? “Meow”.. Computer crime is a general term that embraces such crimes as phishing, credit card frauds, bank robbery, illegal downloading, Industrial espionage, child porn, kidnapping children via chat rooms, scams, cyberterrorism, creation and/or distribution of viruses, spam and so on. All such crimes are computer related and facilitated crimes.

Why keep reading after this gibberish? For the same reason our eyes are drawn to accidents on the highway. The entry continued:

With the evolution of the Internet, along came another revolution of crime where the perpetrators commit acts of crime and wrongdoing on the World Wide Web. Internet crime takes many faces and is committed in diverse fashions. The number of users and their diversity in their makeup has exposed the Internet to everyone. Some criminals in the Internet have grown up understanding this superhighway of information, unlike the older generation of users. This is why Internet crime has now become a growing problem in the United States. Some crimes committed on the Internet have been exposed to the world and some remain a mystery up until they are perpetrated against someone or some company.

After listing new Internet crimes such as phishing and “virus immistion” the entry’s language soared briefly to biblical heights and returned to the prosaic:

Then the light rained down on the innocent and the sinners were smeared across this paghe of hell alsothe expansion of already existing crimes on the Internet starts with credit card fraud. The crimes go on from there to cyber terrorism, illegal pornography, and copyright infringements. All of these crimes have mostly been in the spotlight because of the socially repulsive crimes committed by child molesters and the events of companies like Napster which were involved in copyright infringement law suits a couple of years ago.

One hopes that even a dull middle-school student would immediately see this to be illiterate slap-dash crap.

A die-hard Wikipedian would say “instead of taking cheap shots, why don’t you put your money where your mouth is and rewrite the article to your standards?” I’d take the time to put this article out of its misery, far from innocent web browsers (particularly among the “older generation of users”) if were confident it wouldn’t come back to life. I’m not, so I won’t. Thanks, but I’ll take my research with a super-sized order of actual substantive knowledge.

Wikipedia gets a free pass from too many people who should know better.

That Holiday Spirit

The City of New London, Connecticut took the homes of Susette Kelo and her neighbors by eminent domain for a private waterfront development to spur economic growth. Kelo and the other homeowners challenged the taking, arguing that it was not for a public purpose. In 2005 in Kelo v. New London the U.S. Supreme Court ruled 5-4 in favor of the city. The city paid Kelo $440,000 for her home, $300,000 more than its appraised value.

The Wall Street Journal’s Law Blog (subscription required) reports that Kelo recently sent a “holiday greeting card” to current and former New London city officials. The card featured a picture of Kelo’s house and these words:

Here is my house that you did take
From me to you, this spell I make
Your houses, your homes
Your family, your friends
May they live in misery
That never ends
I curse you all
May you rot in hell
To each of you
I send this spell
For the rest of your lives
I wish you ill
I send this now
By the power of will

I curse you all . . . may you rot in hell seems, oh, disproportionate to the offense. How can Kelo top that opening sentiment in next year’s holiday greeting card? May rabid jackals rend the flesh from your decaying bones? Did this message get the bad juices out of Kelo’s system or merely prime the pump for an annual geyser of invective?

This post’s comments quickly devolve into typical Internet incivility. They do not manifest “Godwin’s Law,” which states “as [an online] discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one,” but amid amusing references to operatic curses and jabs at Kelo’s “shifting rhyming scheme” they display the ready reliance on personal attack that characterizes so much Internet discourse. Commenter seven lazily dismisses Kelo (“i am sure her trailer is irreplaceable. Get over it. A house is fungible . . . buy a shiney (sic) new trailer to live in”), and provokes a body-part insult, albeit politely couched, from commenter eight: “your problems are so deep seated that instead of your needing a psychiatrist’s help, I might suggest a proctologist instead. He’d have your whole body to work on.” Argument by faceless ad hominem attack is as old as Usenet and as new as the 2006 elections, an outgrowth of Internet culture the ubiquity of which does not diminish its ugliness.

iTunes: Up or Down

I posted last week (iTunes iNtrouble?) about a report by Forrester Research that, according to The Register, Bloomberg, and others, disclosed a collapse in iTunes’ sales in 2006. The claims of trouble at iTunes “threw the cat among the pigeons,” as a boss used to say. Apple shares dropped almost 3% after Orlowski’s story, others claimed iTunes 2006 sales are “surging,” and the report’s author criticized the media for taking one sentence of the report out of context. Which figures are correct? It is hard to say since Apple does not report iTunes sales separately. Analysts look at other official Apple figures or figures from other sources to deduce iTunes sales trends and, not surprisingly, different sources yield different conclusions. For instance, the Forrester Research report is based on 2,700 debit and credit card transactions. Carl Bialik, The Wall Street Journal’s “Numbers Guy,” examined the different methods here. (Subscription required)

Commentary branched off from there. Andrew Orlowski’s December 12 article in The Register pointed to digital rights management as a cause of Apple’s declining sales, a theme reiterated by others: ” . . . the metrics are beginning to support the notion that DRM, at least in part, is actually driving people away from Apple’s music store.” (Joe Lewis, Webpronews.com) Orlowski spun another strand, predicting the advent of blanket licenses in which users subscribe to online sites for a small fee and obtain “the right to exchange music freely” and licensors (artists and labels) divvy up the pie in some equitable fashion.

Others attacked Orlowski’s article. In the “‘Collapsing iTunes Store’ Myth” RoughlyDrafted.com characterized Orlowski’s blanket-license model as a “socialist fantasy” mandating a “Soviet style choice:”

The point was not just to create a sensationalist article, but to use it as proof for later articles that followed a preset agenda: iTunes can’t succeed, because Orlowski has other ideas in mind about how to distribute the world’s music.

RoughlyDrafted.com links to a chart and analysis from Blackfriars Marketing of Apple sales supporting the Apple press-release claim that iTunes’ sales are, um, just peachy. Absent actual Apple iTunes sales figures this dispute is mostly noise, revealing more about the use of the Internet to flog a topic into tiny pieces than about iTunes’ sales or the future of digital music. Google, for example, produced over 10,000 hits for “apple ‘itunes sales’ ‘forrester research report.'” I don’t have a dog in this hunt. I’m neither confident of iTunes’ imminent downslide nor optimistic about its continued dominance over the music download market, merely curious about how the future unfolds and how we perceive it.
It reveals something else, too: the passionate, minute interest in the present and future of digital entertainment. It’s hard to imagine a report of, say, declining sales of Sony HDTVs provoking the same type of commentary.