Online Consumer Privacy - "Do Not Follow"

Bloomberg News, Eric Engleman and Adam Satariano reported on a hearing in the Senate Commerce subcommittee on mobile privacy on May 19, 2011.

Apple, Google and Facebook and the makers of applications for these these companies’ platforms faced scrutiny at the hearing over how they collect, use, store and share information on users’ wireless devices, from smartphones to any sort of PDA.

Google’s director for public policy, Alan Davidson stated that Google seeks consent from users of its Android software for collection of information and location data. “Google is also very careful about how we use and store the data that is generated by these services.” Location information sent to Google servers when users opt in with Android is stripped of personal identifying tags, for instance, so it cannot be tied or traced to an individual user, and then stored in an aggregated form. And Google provides parental controls to protect children, and requires developers of apps to rate them according to appropriate age level.

One of Apple’s vice-presidents, Catherine Novelli, testified that Apple does not knowingly collect any data about users below the age of 13. Like Google, all location information gathered from iPhones and iPad tablet computers are stripped of individual identifying data, and not traceable to an owner. They use the aggregated information to improve the functionality of devices. “Apple does not track users’ location, has never done so and has no plans to do so,” said Novelli. (I also understand that some manufacturers use the internal GPS and an accelerometer in the devices to find out if the malfunction for which you bring the machine in for repair was caused by it being dropped or hurled. The GPS and accelerometer function together to locate the device in space, determine its speed, and whether it stopped very suddenly. There is also a device that measures humidity levels, so if you drop a phone or PDA into water, or even a steam room, it may void the warranty.)

Bret Taylor, Facebook's chief technology officer said that Facebook has "robust privacy protections ... if people lose trust in a service like Facebook, they will stop using it." (This seems pretty ironic in light of the continuing battle between Facebook trying to "monetize" their site and the outrage of their users whenever Facebook creates a new set of "opt-ins" that streams all the user data out to third party vendors! See this C-Net Op-ed). When asked about Facebook protections for children, Taylor said that nobody under 13 is allowed to create a Facebook account, and that they remove such accounts when they are alerted to them.

In December, the Federal Trade Commission issued a proposed regulation, commonly referred to as “Do Not Follow,” patterned after the popular “Do Not Call” regulation they issued some years ago for telemarketers. The comment period recently closed, and I have heard from a spokesperson for the agency at the GigaNet conference in early May that they received about 200 comments from consumers on the proposal, which was a surprising number. Here is an announcement with links to a report they issued on the matter, including links to make comments and view comments (note that the comment period is now closed). You can track it on their website with the handy "quick finder" from the FTC homepage by following "Privacy and Data Security," to "Behavioral Advertising."

This was a hot topic at the GigaNet conference. There were commentators who felt that the FTC proposal, which relies on the website owners to self-enforce, (because consumers cannot tell if they are being followed) was just too lax. But there was also a commentator, who represented a number of different large web corporations, who warned that if the companies could no longer “monetize” their websites, that many services that are now free, might become billable. Interestingly, there was also a moderator from the European Union, which was mentioned as a place of intense regulation, who spoke up and said that, although the regulations there did allow all consumers to opt out of being followed, that in practice only about 10% of consumers actually did. I was later told as well, that the regulation and laws in the EU were passed long enough ago that technology has bypassed them and there are now many “work-arounds” that web companies exploit.

Law Firms and the "Two Tier System" for Associates

The Boston Globe today ran a story originally from the New York Times about law firms setting up a "two tier" system for their associates rather than "off-shoring" jobs. The idea is that they offer one set of associates the traditional partnership track. These associates are housed at the offices in the big cities and do the large number of billable hours, and may do more complex work. There is a second set of associates now, though, with varying names. They may be called "career associates" or "permanent associates," and their offices may be in alternate cities or towns with lower cost of living. They are never going to be partners in the firm, and are not expected to work the high number of hours. They may also be doing more mundane work. The upside is that they have more time for family, or outside interests. They typically earn $50 - $65,000 in a year. There is a note of warning sounded in the article about the problems these "permanent associates" have paying off their law school loans on these salaries. And the article talks about the care the firm they feature, Orrick,Herrington and Suttcliff, is putting into managing perception: "There are no second-class citizens at Orrick."

I took a quick look around the Internet and found lots more articles in legal publications about the phenomenon. For instance, from 2009, the ABA Journal has one upbeat management-oriented article about this trend, "Are you Offering the Golden Egg or Golden Handcuffs? Alternatives to Partnership." But, by the fall of 2010, the ABA reported on a study, "Have Law Firm Structural Changes Created a Pink Ghetto?" Obviously, the flexible time of the permanent associate track may be more attractive to young women of child-bearing age. The study looks at the paucity of women in partnership ranks in multi-tier firms compared to single tier firms.

And the July, 2010 issue of The Recorder has an article that looks frankly at the costs and benefits of the structure. The author notes that while the firm pays the alternate track lawyers about half of what it pays the partnership track associates, it typically bills clients for their services at a discount only 25 - 30% less. So, the firm makes a nice profit by using the two tier system. But, the system may not be quite as profitable if looked at in the whole picture, according to this author's analysis. Apparently, the firm often must fix mistakes or re-do some of the non-partner lawyers' work in order to bring it up to the firm standard. While some of the lawyers hired for this tier are certainly the quality that would be hired for the partner tier, others may not be. And the non-partner associates are working in a separate office, in a distant city, making communication more complicated and difficult. These are some of the same problems that plague out-sourcing and off-shoring work. But the article ends with a positive note about careful implementation of the system.

For the Civil War Buffs Out There

American Libraries offers a fascinating article on one possible cause of the Civil War--overdue library books! Seriously, the article by Rob Lopresti, based on a longer treatment of the same subject that was published by Lopresti and August A. Imholtz in the March 2011 issue of Library and Information History, highlights the "odd scandal" that involved the "New York Times, a library with no catalog, and ... the Dred Scott decision." The Times accused seceding members of Congress of stealing books worth thousands of dollars from the House of Representatives Library with the goal of starting a library in the Confederacy. Subsequent investigation revealed shockingly poor mismanagement of the House Library (there was no catalog; in fact, there were no records of any kind) and lack of adherence to journalistic standards which led the Times reporter to rely on "exaggerated rumors passed on by loose-lipped clerks." You'll have to read the article yourself to figure out the connection to Dred Scott!

A New Twist on the Academic Law Review

The academic law review is like the weather--everyone complains about it, but no one knows how to fix it. The iconoclasts over at The Green Bag have an idea, which is discussed in an enlightening article in today's Inside Higher Ed. The Green Bag, founded in 1997, seeks "to make short, topical legal writing both cool and tenure-able." Moreover, it "has spawned progeny serious (collections of 'in chamber' opinions by Supreme Court justices), lighthearted (bobblehead dolls and trading cards ... ), and controversial (its own law school rankings)." Its latest initiative is The Journal of Law, which is actually not one new journal, but three, all very different in tone and substance. The first journal is The Congressional Record, FantasyLaw Edition, student edited and meant to be a diversion. It lets readers create a team from members of Congress and then follow their activities, legislative and otherwise. The second journal is Law & Commentary which takes a new approach to peer review. It publishes articles that are unlikely to get placed in a high-profile journal but are worthy of such a placement; the journal also solicits commentary on the article from well-known senior scholars which it also publishes. To quote Professor Ross E. Davies of George Mason Law School, a founder of The Green Bag and editor of The Journal of Law:

There are two interrelated concerns motivating this version of peer review. First, there is the difficulty junior scholars – and also senior scholars working in areas outside their established specialties – sometimes have placing first-class articles in appropriate journals and generally drawing attention to their best work. Second, there is the difficulty consumers of legal scholarship can have identifying which articles – out of the many thousands published every year in the many hundreds of law reviews – most merit their attention. Articles placed in a few leading law journals (the flagship law reviews at prominent law schools and premier faculty-edited journals) will enjoy wide notice. But there are not many slots in those journals, and few of those few go to the work of relatively junior or unknown scholars.

The third journal is also an interesting twist on the typical subjects of academic legal scholarship. Pub. L. Misc. will present documents that are not produced by the courts but that do have implications for policy. According to the introduction, Pub. L. Misc. will publish selected "significant constitutional documents generated by the Article I and II branches of our government," both federal and state.

Print editions of the three journals will be sent to selected institutions (those that subscribe to The Green Bag?) as a gift, but will also be available online. It will be interesting to follow the progress of these three new journals and see if they find a niche.

Marquette Law Librarians Featured

In the summer 2011 issue of Marquette Lawyer, there is an informative two-page article about legal-research instruction at Marquette University Law School. Like most law schools, Marquette has a mandatory first-year research course, but it also has a required advanced course in legal research, "one of the few requiring that second course." The focus at Marquette is on training students to be good legal researchers, but also on teaching students "to become discriminating and careful users of the results they get." Because of the amount of information that is freely available, the latter focus is especially important. According to library director and Professor Patricia Cervenka, "[m]ore emphasis is being placed on critical thinking about what legal research finds ... You need to know how to blend sources, how to weigh different sources, and especially what sources to regard as reliable and authoritative."

I appreciated hearing about some of the techniques the Marquette librarians use in their legal-research instruction, such as "hands-on activities," "a fact scenario in each of the seven weeks of the one-credit upper-level course," and problems drawn from real life. The librarians also require students to use both print and online resources, and some students report that they find the print is sometimes easier to use than the online equivalent, an observation I often hear from my Advanced Legal Research students.

Ethical quandary for archives

The Boston Globe has been covering a crisis at the Boston College archives. They had collected a series of interviews from IRA members, assuring them of complete anonymity. And now the Northern Ireland Police Services have appealed to federal prosecutors to subpoena parts of the archive collected under that agreement. I presume that this crisis has been triggered by the visit of Queen Elizabeth II to Ireland. Nevertheless, the archivists are facing a difficult decision. In order to keep faith with the people who trusted the journalist who collected the information in the archive, they may have to destroy the archive.

Congratulations to the University of Michigan Law Librarians

It is always gratifying to see the librarians highlighted in a law school alumni publication. Over the weekend, I read a laudatory article in the Spring 2011 Law Quadrangle: Notes from Michigan Law. The article, entitled "Whither the Law Librarian," will not be news to any law librarian. It portrays four dual-degree librarians who work at the University of Michigan Law Library as "helping to advance digital research rather than hinder it." The librarians interviewed point out that being a librarian has always been about managing information--finding it and using it--and for this reason, format is simply not that important. The article concludes with the often-repeated statement that "technology has flooded researchers with so much information that, now more than ever, they need a guide to help them navigate the chaos." This is probably true, but I wonder if students today actually believe it.

The piece includes a nice one-page spread featuring Jerry Dupont, a 1967 alumnus of Michigan Law, and the Haiti Legal Patrimony Project, which was undertaken by LLMC in the wake of last year's devastation. Haiti's libraries were not spared, and the country risked the loss of its legal heritage. The Law Quadrangle describes Dupont's efforts to collect over 700 books and documents in "a huge bibliographic project." Items were identified and located in libraries around the world, and are now being scanned to create "a massive digital record ... that combines the strengths of the various collections" from which it came. Margaret Leary, Director of the Michigan Law Library, which provided about ten per cent of the materials being digitized, has the last word about the Haiti Project: "This project is an excellent example of the way collection development policies result in the whole being much greater than any one library."

A New Source of Support for Libraries

At some universities, academics and sports are worlds apart. According to an article in The Chronicle of Higher Education, a new initiative at Duke University will bring those worlds closer together. Duke recently announced that

Starting this fall, a dollar from every ticket purchased at home games for baseball and for men's and women's basketball, soccer, and lacrosse games will go into a fund for the library system. Football tickets will become part of the venture in the fall of 2012.

(Athletic officials declined to give an estimate of how much money this venture could raise, saying only that the amount would be "significant.")

This is a great idea, as long as the University doesn't reduce the library system's budget because of this influx of new revenue. The Chronicle article points out other "partnerships between sports and library system," of which I was unaware. Examples include support of the Penn State library system by Joe Paterno, head coach of the Nittany Lions; renovation of Ohio State main library building, paid for by Ohio State athletics; and the ongoing support of the library system by the Notre Dame football team (donation whenever the team plays in a bowl game).

Bad Lexis

Lately, I have talked with a number of students who are planning to set up solo law practices after they graduate and pass the bar exam--not surprising given the job market for new lawyers. Most of them plan on doing something else part time to pay the bills while trying to establish their practices, and they have very little money to devote to start-up costs. One big fear revolves around the loss of "free" access to Lexis and Westlaw once they graduate. New graduates know they have gotten dependent on these databases, and they wonder how they will cope without them. I have suggested a number of free, reliable websites for primary sources, and the Pace Law Library has a good online research guide that gathers together free and low-cost sources. I have recommended that graduates start with the free sources, and then go to Lexis when they need fee-based content such as Shepard's or Matthew Bender publications. Lexis had a good, pay-as-you-go option that allowed researchers to access only the materials they needed using a credit card. That option has been ended, according to an announcement Lexis posted recently. Lexis's reason for cutting off this option doesn't make a lot of sense to me: "This decision is part of our effort to create and support products that better meet those needs identified through collaboration with our customers ..." So exactly how does cutting off access by credit card affect that effort? The only thing that Lexis is trying to support is its own bottom line. Credit card access to pieces of the Lexis database meant that some users cancelled their subscriptions because it was more cost effective to do so. Lexis's decision really hurts the solo practitioner and the small law firm at a time of deep economic distress. Shame on you, Lexis!

Goddess-hood, Interviews and Caucuses

So, my life is getting extremely weird these days.

I sent my sister, who is a recently retired DA in Texas, starting up a new defense practice, a list of free research sources (including some print in libraries nearby). She evidently shared this on a listserve for other new defense lawyers. Now, my sister says that I am referred to as a goddess by her colleagues.

That’s actually a pretty sad statement, in my opinion. If goddess-hood is going that cheaply, we librarians should all be getting our lightning bolts ready.

Most recently, I have been interviewed by Josh Hadro, of Library Journal, about how a bunch of us are trying to form a caucus around the issue of consumer advocacy within AALL. See the interview at LJ Q&A. I am not even the lead caucus-former, here, but I was the person who answered the e-mail. Some of Josh’s questions:

What prompted you to push for the formation of the Library Consumer Advocacy Caucus?

Can you give a few specific examples of unfair or anti-competitive practices?

How have the voluntary guidelines failed since official FTC oversight lapsed in 2000? Is the LCAC looking to restore that FTC oversight?

How do you think research and law libraries overcome the position they're in with regard to the community they serve—i.e., the fact that they're obligated to acquire materials their researchers need, an arrangement publishers seem to be keenly aware of?

Visit the LJ site to see the full interview and my answers.