Digital Due Process leading on e-mail privacy

Google is part of a group, Digital Due Process beginning a lobbying effort in the U.S. to modify the electronic privacy laws to require law enforcement to get search warrants before demanding access to e-mail. Other members of Digital Due process include the American Civil Liberties Union, Americans for Tax Reform (the anti-tax group led byGrover Norquist), the U.S. Chamber of Commerce, Facebook Inc. (FB), Amazon.com Inc. (AMZN), and Microsoft Corp. (MSFT).  What an interesting and disparate group!  The aim of Digital Due process is to secure the same rights in the online world as citizens take for granted in the paper and physical world.

The law in question, the Electronic Communications Privacy Act of 1986, was enacted before cloud computing, mobile devices and social networking.  Advocates for the change say that this has changed connectivity so radically that it is time to modify the statute. There are conflicting, unclear standards that are interpreted inconsistently by different courts. Some courts seem to be unclear about whether 4th Amendment protections against search and seizure apply for citizens in the online world.  Also, changes to government's surveillance powers require changes to secure some level of citizen privacy. According to a Bloomberg News report, Google has stated that more than 2/3 of the 8,438 law enforcement requests for user data they received in the last half of 2012 arrived without a search warrant.

Groups representing federal, state and local law enforcement oppose attempts to modify the act, saying it will make their jobs more difficult if they must get warrants.

You can read an in-depth description of the issues and history from a third group, the Center for Democracy and Technology.  You can also read a nice report on what is cloud computing and some of the issues at EPIC's notes from November, 2012.  Among the notes there, you will notice Google is mentioned 4 times in the news shorts at the beginning. If you read the first 3, you will see that Google's attempted changes to their privacy policy were roundly criticized and stopped because of danger to government information.  Their reports on government requests for user data are the "transparency reports" in the first note.  The report on the changes to Google's Terms of Service involved the recent consolidation of all the various Google-based services, as well as access to all the users' data and documents.   The storage of all the users' material on Google's cloud computing storage means that Google has access to all of this data.  The  EPIC report on cloud computing at the bottom of this web page is excellent and includes three examples of different sorts of providers and the problems associated and many links to other reports.

Destruction of Timbuktu Libraries a Cultural Disaster

I was saddened to read about the destruction of manuscript libraries in Timbuktu by fundamentalist Islamist members of Ansar Dine as they fled before the joint Malian army and French forces.   I had read about the occupation of Timbuktu last July, and how these fundamentalist Islamists were systematically destroying tombs of Sufi saints, mosques and statues, in the name of a puritanical version of their shared faith.

Some years ago, I had read a fascinating story about Timbuktu itself and how it had come to house a remarkable collection of what must be the oldest manuscripts in Africa.  Timbuktu was once a major crossroads, and a wealthy city.  Gold, ivory, slaves and salt all passed through its marketplaces. And scholars gathered in this wealthy place, founding the University of Sankoré in the early 16th century.  They studied and wrote texts covering science,  mathematics, history and poetry. Timbuktu's place as a center of scholarship and inquiry ended in 1581 when a Moroccan sultan invaded. His army killed the scholars who resisted, and carried off the rest to the sultan's court in Marrakesh, along with most of the library.  However, there were books left in the bazaars, copies of those in the library, which were a major part of the economy.

The descendants kept these often crumbling manuscripts secret.  Some were hidden in their homes and desert caves; some were buried in the sands to protect them.  European explorers certainly never mentioned the manuscript libraries among the wonders of Timbuktu.  Apparently most Malians did not know about the texts. But word slowly trickled out, and in the 1960's UNESCO declared Timbuktu a Cultural Heritage site, not least because of the manuscript collections.  The link above is to a wonderful article from 2006 in the Smithsonian Magazine, where the author reports:

The campaign to rescue Mali's manuscripts began in 1964, four years after Mali won its independence. That year, UNESCO representatives met in Timbuktu and resolved to create a handful of centers to collect and preserve the region's lost writings. It took another nine years before the government opened the Centre Ahmed Baba, named after a famed Islamic teacher who was carried to exile in Marrakesh in 1591. With funding from the United Nations and several Islamic countries, including Kuwait and Saudi Arabia, the center dispatched staff members into the countryside to forage for lost manuscripts. One collector was Mohammed Haidara, an Islamic scholar and manuscript maker from Bamba, a village midway between Timbuktu and the village of Gao. Haidara helped build a collection of 2,500 volumes. Soon after his death in 1981, the center's director turned to Haidara's son, Abdel Kader, then in his 20s, and asked him to take over his father's job.

Haidara spent 10 years traveling all around to gather manuscripts from wherever they may have been stored and preserved for centuries.  He had to convince people of his good intentions and had to drive careful and hard bargains.  He gathered thousands of manuscripts for the Ahmed Baba Institute of Higher Learning and Islamic Research for the Malian government.  At one point, however, Haidara split from the Institute and began to gather manuscripts for a separate library, La Bibliothèque Mamma Haidara.  As of the 2006 article, the Mamma Haidara had preserved 6,538 manuscripts and still had 19,000 to conserve.  The article also mentioned a Spanish-funded third collection, Bibliothèque Fondo Kati, which had nearly been destroyed by sudden flooding of the Niger River.  The staff worked very hard to protect the materials, which included an illuminated Koran created in Anadalusia in 1198.  It is not clear from the articles I have found which of the manuscript collections were destroyed.

Ironically, the Smithsonian article tells about Haidara teaching nearby villages of Tuareg to preserve their own manuscript collections. The Tuareg make up the Islamist fanatics who took over Timbuktu and have been destroying the manuscript collections in retaliation for being driven away from the city.  Some of the Tuareg manuscripts over the years have been lost when they have rebelled against the Malian authorities, and have been violently quelled.  Many of their manuscripts have been hidden in the desert for safe-keeping because of the risks of keeping them in the villages, according to the article.

The Ahmed Baba Institute, a South African - Malian joint project was one of the libraries burned, and the second was simply identified as an older building in this report, which is the only one I have found that specifies which manuscript collections were destroyed.  The Guardian published some photos from the Ahmed Baba Institute  showing some of the collections. It shows that some of the materials were being digitized.

The illustration at the beginning of this post is from the website of the Ahmed Baba Institute, and is labeled "Manuscripts stored for future archiving in New Jenne Library." http://www.tombouctoumanuscripts.org/projects/

JStor Expands Free Access to Scholarly Books and Articles

J. Mornini at the Intellogist blog tells us that JStor is releasing lots more scholarly books and articles into their free access Register and Read program.  This includes some materials of interest to legal researchers.  The blog directs the reader to a JStor press release: ...with Register & Read, people can visit JSTOR directly and read any of more than 4.5 million articles for free. They can put up to three articles on their bookshelf where they must be held for a minimum of two weeks, after which more free articles can be shelved. In addition, for 40% of these articles, people also have the option of downloading them to keep or read offline for a fee.

The Boston Globe had a wonderful little article in their Ideas section today, "How Digital Art Decays." Simon Waxman describes how a graduate student, Matthew Epler, at Interactive Telecommunications Program in New York stumbled on the archives full of digital art projects dating back to the 1970's. Digital art from that period would have been programmed on punch cards, using programs and operating systems that are no longer in use. Epler asked Rhizome, a New York organization dedicated to creation and preservation of art based in technology for help. Together, they created a crowd-source project to bring these archived art projects into the current digital technology, and preserve them. The project is called the Recode Project.

The Globe article goes on to explain examples of the problems faced by curators of digital art. Librarians are all familiar with the problems of software moving on, leaving materials "beached" in the older formats. But art conservators have multi-dimensional issues beyond simply getting the programs to run.

How would the program run without its original operating system, which couldn’t easily be emulated on modern hardware? Could the code be preserved while eliminating bugs that caused the original system to crash? How much original equipment needed to be used? The artists felt that the new exhibit ran too fast to accurately re-create the original experience, so it had to be slowed down. On the other hand, they were willing to replace the original touchscreen with an up-to-date equivalent. In short, the dilemmas involved in re-creating “The Erl King” forced conservators to decide what was art and what was expendable. [Ben] Fino-Radin [digital conservator at Rhizome] sums up the metaphysical predicament: “When you have a sculpture or painting, it’s very clear what the work actually is,” he says. But when you’re dealing with digital media, “separating what is the actual artwork from the technology that supports it can be a challenging thing.”

I was fascinated by the issues that the art conservators faced with this project. It was a fun read and very interesting. It makes the problems of dealing with out-moded CD-Roms and discs seem much simpler and more mundane.

The image decorating this post is Mandarin Ducks I, by Matsuko Sasaki, one of the many striking works that can be found at the Recode Project.

Zombie Titles - albatross mortgages around homeowners' necks

Reuters reports on a little-known feature of the mortgage crisis -- the zombie title. Michelle Conlin, writing from Columbus, Ohio, tells a hair-raising story about home-owners who receive notice from their banks that the bank is foreclosing on their home for a delinquent mortgage. The home-owner leaves the home, and believes that that is the end of the story for them and this house.

Apparently, a number of banks are not following through with selling these foreclosed properties. They either do not notify the home-owner, or the home-owner fails to receive the notice, for whatever reason. But the home-owner's name continues to be on the deed, on the tax records, on all the legal documents. So when the county sends a notice that the property is becoming derelict, the home-owner is liable. When the taxes are due and over-due, the home-owner is liable. And -- surprise! -- the mortgage payments are still due... and piling up with interest and penalties. All happening without the home-owner's realizing they are responsible for anything about the property.

The Reuters report includes some heart-rending examples of how people's lives are being devastated. This is not happening all the time, but often enough that some agency or lawyer should be looking at either a cause of action or some regulatory action. The report mentions that out of some 10 million mortgage foreclosures, 2 million have not come out for various reasons, including the banks simply dropping the mortgage action, as with these zombie titles. The report goes on the say that housing court judges are seeing thousands of these zombie title issues across the country, and that the number seems to be rising.


The home-owner who has the zombie title cannot qualify for disability, because the title to the phantom house appears to be a capital asset. Home-owners find

wages garnished, their credit destroyed and their tax refunds seized. They've opened their mail to find bills for back taxes, graffiti-scrubbing services, demolition crews, trash removal, gutter repair, exterior cleaning and lawn clipping. At their front doors they've encountered bailiffs brandishing summonses to appear in court.

In some cities, people with zombie titles can be sentenced to probation - with the threat of jail if they don't bring their houses into compliance.

Banks have realized that holding the asset or trying to sell the mortgaged house actually saddles them with a loss. Thus, they are often quietly stopping all action towards the sale of the property after beginning the foreclosure effort. Homeowners too often expect the banks to act as they used to, and assume the bank will put the house up for auction to satisfy the outstanding debt on the mortgage. But banks have realized that by walking away from the debt, they often gain more by filing for insurance on the debt, and avoid all the costs and responsibilities of owning the property. But if they do not properly notify the mortgagee, a zombie title results. Reuters says there is no regulation requiring banks to notify the home-owner, and so it often does not happen.

A number of cities have attempted to create registries of abandoned houses to try to force the mortgagors to take more responsibility for the properties they seize. Neighborhoods become blighted as the properties are gutted by vandals, and the banks or other mortgage servicers claim they have no responsibility to manage or maintain the properties. These organizations have opposed the registries proposals, according to the Reuters report.

Tip of the OOTJ hat to my terrific, peripatetic daughter for pointing me to this story.
The decoration for this post comes from a clever and entertaining blog, The Rules Lawyers, "Applying the Supreme Court's rules of statutory interpretation to resolve Warhammer 40K rules disputes" http://www.theruleslawyers.com/2012/10/6th-edition-rulings-plague-zombies-unit-size-limits/

Copyright Martyr: RIP Aaron Swartz

Aaron Swartz was somebody who helped code some important pieces of the modern Internet: RSS and Reddit, and, having cashed out at an early age, became an activist for making information public. He put a good deal of his own money into the development of RECAP, for instance. He also launched Demand Progress to help stop the SOPA and PIPA bills in Congress which were copyright protection/anti-piracy bills that would have crippled the Internet.

But when Mr. Swartz downloaded a huge number of JStor documents illegally from MIT's libraries onto a laptop hidden in a closet, the U.S. Justice Department decided to prosecute the copyright violation to the full extent of the law. While Swartz's lawyer attempted to negotiate a plea down to a misdemeanor, the prosecutors insisted on a felony charge with 35 years of prison time and a huge fine. The inflexible attitude of the prosecutors was notable and puzzling to those watching the matter unfold.

Friday, Aaron Swartz hanged himself at his Brooklyn apartment. Friends and family blame not only the prosecutors but also MIT and JStor, which did not push the prosecutors to back off. Many friends and admirers have posted comments and memories. Aaron Swartz was only 26.

Maybe it's time to discuss the attitude about copyright infringement.

More about e-books

All this chat about e-books is specially of interest because I have just been chatting with several publishers of e-books for legal casebooks, Foundation Press and CALI, here at the AALS conference in New Orleans. I also recently saw a demonstration about the H2O publisher for e-case books from the Berkman Center at Harvard. H2O and CALI's E-Langdell series are free to students, open source books that can be freely edited by adopting professors, which make them truly unusual and very interesting.

But I understand that at least the Foundation Press folks seem to be having an uphill battle with adoption. They charge for their books, though I am not sure if they charge the same rate for the e-case book as for a print book. By now I am a little unclear what model they are using, since I had a long conversation with two different people about their books. I think they may be leasing the books to students who then keep the book for a 6 month or year period. The book is thus less expensive and the lease period is like selling the book back to the bookstore (except that you "get the money back" up front by not paying as much in the first place.")

I understand one of the problems is getting professors to remember to specify to the bookstores that e-book version is an option when they send in their book orders to bookstores each semester. It would save students money to specify that Prof. Bruntwhistle is requiring Earwhig on Taxation of Bedsprings because the bookstore would stock a mix of the print and e-books and students could choose which to purchase.

But CALI does not seem to be having such a problem with adoption or at least with downloading of the free E-Langdell materials. At least at the CALI business meeting, John Mayer sounded very positive about the number that had been downloaded in 2012. I have no way to compare CALI's sales to Foundation Press's. H20 is so new, there is really no comparison. It's very interesting that they plan to cooperate with CALI to the extent that both groups will feature the other's e-books.

But the question still remains whether law students really will want to use e-casebooks. I carefully noted that these all included capabilities that had seemed important when I spoke some years ago with Lyonette Louis-Jacques, about what was missing from e-case books then:

Navigation
* ability to page backwards and forwards
* hyperlinks from a table of contents and/or index
* bookmarks
* ability to search text for notes or terms

Interactive and Personalization
* ability to make notes and highlight text
* ability to cut and paste from the text into Word or other outlining software
* ability to share notes

Security and Portability
* Can be read on multiple types of platforms, including mobile
* Can be saved in the cloud, not just on the reading device
* Is there DRM?

From the Professor's point of view:
* Can the book be edited, mashed up with others, changed, updated by ME?

From the Students' point of view:
* How much does it cost? (or is it FREE?!)

Code Nerds Chat about E-books on SlashDot

Here is a interesting post on Slashdot about "Death of Printed Books May Have Been Exaggerated." The post refers to Nicholas Carr's blog post "Will Gutenberg Laugh Last?" at his blog, Rough Type. I was interested in the Slashdot crews' comments about the post there, as much as the original report on Nicholas Carr's blog post. The SlashDotters' comments ranged from discussing their own preferences for print or digital (and they felt strongly both ways), to comments on how the e-books digital rights management (DRM)(like Amazon's Kindle and Apple) create a "closed ecosystem" and, some felt, manifest greed. A few others pointed out that authors do not necessarily ask for such DRM and can, in fact, opt out of it in some publishing schemes. Others pointed out a few projects on open source e-books. I particularly liked this succinct analysis of "dead tree" books:

They don't need batteries
You can buy them used without DRM
They smell interesting
Old books have their own story aside from what is printed in them
Each book feels different
Do not require infrastructure to maintain
I don't have to buy something to reads my book- I just buy the book, the "reader" is free.

Posted on New Year's Day, 2013, Carr refutes his earlier post reporting on a Pew Internet Study that e-book purchases had risen and assuming that print reading was declining. However, Carr found newer data that showed the opposite trend, and also read more deeply in the Pew study and thought it showed different outcomes:

the printed book remains, by far, the preferred format for American book readers. Fully 89 percent of them report that they read at least one printed book over the preceding 12 months. Only 30 percent say they read at least one e-book — a percentage that, perhaps tellingly, has increased by only a single point since last February, when the survey was last conducted. The study did find that the percentage of American adults who read e-books increased over the past year, while the percentage that read printed books fell, but the changes are modest. E-book readers rose from 16 percent to 23 percent, while printed book readers declined from 72 percent to 67 percent.

Carr also reports that various U.S. publishers were reporting drops in sales of e-books and rises in sales of print books, though apparently the reading devices are selling well. Carr speculates on possible reasons:

1) E-books may be more suited to some types of reading than others, and perhaps work best as a complement to print rather than an outright substitute; He also recognizes e-books are ideal for certain situations, like plane trips;

2) Early adopters have already made their move to e-books and the remaining population has no interest in moving to digital -- he quotes a report by the publisher Bowker in a publishing news article;

3) Advantages of print have been underrated, while the advantages of e-books have been overrated;

4) Early purchasers of e-readers quickly filled them with lots of e-books and are still working on the backlog;

5) The shift from e-readers to tablets is depressing sales of e-books because tablets can do so many other things;

6) E-book prices have not fallen as much as expected

(and Carr updated his post with a link to a Wall Street Journal article about print vs. digital books in which he asserts more boldly that print is here to stay.)

Same Sex Nuptials Start the New Year in Maryland

Marylanders rang in the New Year with same sex marriage becoming legal. Maryland is the first state south of the Mason Dixon line, and one of the first to pass gay marriage rights legislatively. Congratulations to all those who will enjoy equal rights in marriage (and divorce) in the coming years in Maryland!