Articles

Jul 7, 2017 ∞

3rd Circuit in Philadelphia case: 1st Amendment protects recording police in public

Some notable passages from today’s 3rd Circuit opinion in Fields v. City of Philadelphia, holding that there is a First Amendment right to record police officers in public, written by Circuit Judge Thomas L. Ambro:

the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. [...] This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, see Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this protection to have meaning the Amendment must also protect the act of creating that material.

and

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

but

We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in public places these restrictions are restrained.

and

Having decided the existence of this First Amendment right, we now turn to whether the officers are entitled to qualified immunity. We conclude they are.

That last bit is primarily, though not solely, because the 3rd Circuit had not decided such a case as this yet when the incidents in question occurred. Now that the existence of the right to record police in public is “clearly established,” the next time a similar case shows up in court, qualified immunity may be off the table. Hopefully that potential liability will discourage Philadelphia officers from retaliating in the future.

On bookstores

I’m in a bookstore, Joseph Fox in Philadelphia, and there are people here in the cramped sometimes hallway-narrow store with me. Many of them. People I mean. Some smell like rain. That’s how close they are. It’s raining outside and they’re coming into the store and I can smell the rain on them.

You have to look behind you and on both sides before kneeling or unkneeling or turning one way or another. And me personally I get the sense literally everyone else in the store is there to find a specific book and they’re all searching the stacks carefully, assiduously even. And here I am awkward and targetless and perusing aimlessly the myriad paper- and hardbacks.

That sweaty I-don’t-belong-here feeling creeps in slowly at first and then a major decision crashes into my field of vision: get it the hell together and be hunted by these books with a little goddamn dignity or get out go home leave now. As many who experience similar moments can no doubt relate to, my outward demeanor doesn’t change while this storm is raging behind my eyes. The capital v Visible me is cool as a cucumber as they say. The capital i Invisible me processes this all in a few blinks and when I open my eyes again I’ve decided to stay.

These days books are most easily purchased online. However, visiting a bookstore is a special and enviable thing. When I step into a bookstore I am aware only that there is a book looking for me. I almost never have one in mind but am dogged from the moment I cross the threshold with a sense that there is one, somewhere in there, which has me in mind.

It wasn’t Rilke, it never has been. I have read him, and I love him, but none of his books have ever shopped for me in a bookstore. I have often thought it was David Foster Wallace, and once even gave up early and bought The Broom of the System, lying to myself that it was the book I had been in the store to purchase. But it wasn’t, I had just grown a bit impatient and lazy and bought it and left.

The covers are part of it, the titles more so, but the randomly turned-to page most of all. No other indicator is as accurate in determining which tome hunts me. If the writing doesn’t stick in your heart like a grappling hook breaching the top of a prison wall, the book isn’t looking for you.

Today it may be George Musser’s Spooky Action at a Distance, about nonlocality in quantum mechanics. The title, the cover, and every passage I randomly turned and read all suggested a strong attraction between book and reader. Like a word on the tip of the tongue I was almost certain. But no, it isn’t the one. I want to read it, sure, but it’s not the one hunting me today.

In fact, today nothing was looking for me at all and so I leave with nothing new. Don’t for a moment think I wasted my time though. It’s nothing to be upset about. This visit was eventful and quietly explosive. There are sections and authors and books I must absolutely return to, whether here, physically, or online, digitally. Today was like an expedition into an unexplored region: though I return with no artifacts or specimens I have mapped whole tracts unknown to me until today.

Electronic books are convenient as hell, but I’ve never ended an Amazon or iBooks shopping session feeling like I’ve had a capital E Experience. It’s more efficient, simpler, faster and less anxious to look for books on a computer. But it just isn’t much fun.

Jul 12, 2016 ∞

I fact-checked that old anti-Muslim mass email, and you'll totally believe what happened next

A beloved relative recently included me on an email forward that I simply could not ignore. I’m not the first person to write a rebuttal to this email. It has been making the rounds since at least 2009, as the screenshot below illustrates.

[caption id=“attachment_2525” align=“aligncenter” width=“700”]<img class=“size-large wp-image-2525” src=“https://joeross1.wordpress.com/wp-content/uploads/2023/02/27aed-scr.png?w=1024&h=768" alt=‘Earliest Google result for “An Eye Opener” email: archive.is/jO20n’ width=“700” height=“525”> Earliest Google result for “An Eye Opener” email: archive.is/jO20n[/caption]

My response took about an hour to research and draft but there is so much factual evidence available to refute the absurd claims made in the “An Eye Opener” email that you could do a thesis on it. In other words, the little bit of work I did here is just the tip of the iceberg.

Here’s the full text of the email, followed by my reply.

Jan 11, 2016 ∞

Ziggy Played Guitar

Look up here, I’m in heaven I’ve got scars that can’t be seen I’ve got drama, can’t be stolen Everybody knows me now

– David Bowie, Lazarus

David Bowie died surrounded by family at his New York home Sunday, January 10, 2016 eighteen months after being diagnosed with cancer. He released his final album, Blackstar, on Friday, January 8, 2016, his birthday. I’m listening to it as I write this article about how he inspired me.

Nov 24, 2015 ∞

Restraining orders in the age of drones

Today Joshua Goldman of CNET reports that the FAA recommends requiring drone pilots to register instead of registering every single drone:

On November 21, the FAA task force made its registration recommendations, and instead of keeping track of each and every drone out there, it suggested registering the names and street addresses of the pilots (mailing address, email address, phone number and serial number of the aircraft are optional). The registration requirement will apply to any UAS less than 55 pounds (25kg) and heavier than half a pound (250 grams) and owners must be at least 13 years old. A parent or guardian can register for anyone younger than 13 years old.

That makes perfect sense to me. I am concerned, however, about the implications for drone use when it comes to what are widely known as restraining orders, although in Pennsylvania they are called protection from abuse orders. The function of such orders is simple: make the defendant’s physical proximity to or remote contact via telephone or third parties with the plaintiff an indirect criminal contempt. This triggers the ability to sanction and if necessary imprison a violating defendant.

As you can imagine, these are especially useful in domestic violence situations, custody disputes and stalking circumstances. Pennsylvania orders can last up to three years based on the judge’s discretion, while New Jersey orders can theoretically last forever. Importantly, in both states a protection order prohibits the defendant from owning or receiving firearms. The goal is obvious: you don’t want a nutcase kept 100 yards from his ex-wife by a protective order to have a gun with three times that range with which to attack her.

This is where my concern about drones comes into play. I think FAA registration of drone pilots is a great idea. However, the surveillance and yes, even remote attack capabilities of drones require the prohibition of their use by defendants in protection order matters. The FAA maintains a public-facing database of registered aircraft pilots in three categories, Airline Transport Pilot, Commercial Pilot and Private Pilot. It could add a fourth category, Drone Pilot. Then it could add registration information to its Web Services, for which it provides an API with which developers can interface with the data and present it to end users.

This would allow authorities to cross-reference their own protection order registries, like Pennsylvania’s Protection From Abuse Database, with the FAA registration information and remove drones when the state police remove firearms from the defendant’s possession. Drones are an awesome technology but their value to filmmakers, scientists and geeks generally shouldn’t blind to the fact that they can be put to nefarious uses as well.

Nov 17, 2015 ∞

The how and why of sneaky ultrasonic ad tracking

Dan Goodin reports over at Ars Technica on the development of technology which can use inaudible frequencies to tie together multiple unconnected devices. He explains:

The ultrasonic pitches are embedded into TV commercials or are played when a user encounters an ad displayed in a computer browser. While the sound can't be heard by the human ear, nearby tablets and smartphones can detect it. When they do, browser cookies can now pair a single user to multiple devices and keep track of what TV commercials the person sees, how long the person watches the ads, and whether the person acts on the ads by doing a Web search or buying a product.

Goodin cites a letter from the Center for Democracy and Technology to the Federal Trade Commission [PDF] describing the technical aspects of the practice and the privacy implications. I won’t repeat what Goodin or CDT have already explained with clarity. Instead, I wanted to talk about the inability of users like us to opt out of cross-device tracking.

Why don’t the companies developing and using these tracking technologies just tell us what they’re doing and give us the option to opt out? Obviously, requiring us to opt in would be the most honorable and least user-hostile approach. But I’ll concede that as being firmly in the “never gonna happen” column.

I am open to the possibility that I set up a straw man in the next section of this article, so feel free to point it out to me if that’s what you think. Just be constructive.

Concerns about using a straw man aside, the only logic I can see undergirding the failure to offer an opt-out mechanism is a concern that a large number of users would in fact opt out. That would obviously reduce or, in a worst-case scenario for tracking companies, eliminate the population of tracked individuals.

The only problem with that is that it’s bullshit.

We opt in to terms of service and privacy policy all over the web every day without reading a word of them. Projects like ToS;DR and TOSback aim to make us better informed about what we’re agreeing to and how those agreements change over time. They are fascinating and important projects but primarily the domain of geeks like me (and, since you’re reading this, possibly you, as well).

The truth is the overwhelming majority of people click “Yes” or “Agree” or “Continue” or whatever other button or link gets them to the web content or software they want to use. Here’s a quote from an AdWeek article published in May 2015, citing a survey done by photography website ScoopShot:

More than 30 percent of the 1,270 survey respondents said they never read the ToS when signing up to a social network. 49.53 percent only read the ToS ‘sometimes,’ and only 17.56 percent of people ‘always’ read the ToS.

Yes, that’s only one study, and yes, it was conducted on SurveyMonkey, but it’s a decent sample size. And can you honestly tell me that you or anyone else you know read the terms and policies of the sites and software you use? Probably not.

Is there any other reason, then, that creepy advertising tracking technology doesn’t offer an opt-out, just like the ones we never actually make use of throughout the rest of the web? Yes, I think there is.

Most websites have terms of service and privacy policies, although they are usually relegated to miniscule links at the very bottom of the website’s footer section. The European Union requires cookie notifications. But when is the last time you decided not to use a website like Facebook or the BBC website because you read their policies and didn’t consent to them? I’ll answer for the overwhelming majority of us: never, ever.

It’s their ubiquity coupled with the dominant user response of wildly clicking “Yes” until you get what you came for that makes website policies such a compelling topic of discussion. The companies building the technology that uses inaudible sound to tell advertisers that your phone, computer, television and tablet all belong to the same person can minimize conversation about their products by refusing to present you with an opt-out mechanism.

It’s that desire to remain invisible and as uncontroversial as possible for as long as possible that motivates them to be so sneaky. One commenter on Goodin’s Ars article puts it very well:

that advertisers keep basing their technological "progress" off of malware research and techniques is very telling.

It sure is. The reality is that I am one of those weirdos who doesn’t care if I’m tracked, but I do care when I’m not asked to consent to it. I propose that some privacy-minded geeks more intelligent than I develop some sort of ultrasonic ad-cancelling noise generation software for us to use in our homes and offices to thwart secret ultrasonic cross-device ad tracking. You have to take that one and run with it, I’m just an ideas man.

Sep 22, 2015 ∞

Thoughts on ad blockers

Most of this article is an extensive discussion of my hunt for the best ad blocker on iOS. It isn’t exhaustive and, given the pace at which the App Store moves, probably won’t remain current for long. That’s why I want to open things with my own thoughts on ad blocking, because I don’t expect those to change any time soon.

Jun 27, 2015 ∞

Modern Law for the Week Ending June 26, 2015

This week I devote the entire newsletter to the Supreme Court decision declaring bans on same-sex marriage unconstitutional. I try to provide a variety of viewpoints despite the fact that I agree with the general assertion that the Constitution does not permit bans on the marriage of two consenting unrelated adults.

I also thought it prudent to include in this week’s introduction my own in-depth legal analysis of the ruling, which I have worked on for years in anticipation of today’s decision and present now in its voluminous and intellectually unassailable entirety:

Huzzah!

Now, on with the links.

Apr 30, 2015 ∞

Popcorn Time, Netflix, HBO and the future of digital media

This story about a U.K. court ordering Popcorn Time blocked has been knocking around in my brain for a couple of days now. When stuff knocks around in my head for days, chances are it will end up in written form, right here. So here we go.

Dec 31, 2014 ∞

Some policy thoughts on corporate "revenge hacking"

Michael Riley and Jordan Robertson, reporting a fascinating story at Bloomberg:

In the U.S., companies are prohibited by the 30-year-old Computer Fraud and Abuse Act from gaining unauthorized access to computers or overloading them with digital demands, even to stop an ongoing attack.
The act exempts intelligence and law-enforcement activities, allowing the government to respond more aggressively than private-sector firms. There’s little indication, though, that military and intelligence agencies have used their most powerful tools to shut down attacks on businesses, as the U.S. has attempted to address foreign-based hacking through diplomacy and the courts.

Diplomacy and the courts are clearly inadequate channels for preventing, halting or discouraging foreign-based hacking.

The question, then, is whether the U.S. government will use its broader “revenge” authority under the CFA to defend not only itself but private U.S. companies. This method would be problematic from a funding perspective, and may cause diplomatic friction.

Alternatively, the CFA could be amended to allow “proportional responses” by private U.S. companies to foreign-based hacking. This method would be problematic from oversight and transparency perspectives, subjecting revenge hacking to market dynamics and the “black box” in which companies conduct so much of their business (especially when they’re privately held).

Yes, companies often have to deal with reporting requirements in the aftermath of a major data breach, but they don’t have to disclose any countermeasures under any current state or federal notification regime I can find.

Perhaps the best solution would involve some hybrid of these. For example, a department of government investigators and hackers could be assigned in small groups to companies facing imminent or ongoing foreign-based hacking.

They could embed into the companies like journalists sometimes embed into military units, assisting the company in its response and pulling the trigger on revenge hacks, insulating the company from CFA immunity.

The hybrid method minimizes government expense, maximizes company involvement and allows for the use of transparency laws such as the Freedom of Information Act by journalists and policy analysts to peek inside the black box.

I’m obviously not going to come up with a perfect solution in a short blog post, but it’s worth thinking about.

Image by the author

Dec 16, 2014 ∞

A court of beginnings

Photo of Pike County Courthouse by the author

Several excellent writing professors have told me throughout my life that you start by starting. Introductions, caveats and excuses delay your goal and bore or confuse the reader. Don’t tell people what you’re going to do. Do it.

But they also advised me always to write with my audience in mind. This is a blog, and you’re still reading, which suggests you like to read blogs, or at least my blog. So I’m assuming you’re prepared for and maybe even expecting some opinions. Here they are, by way, as they say, of introduction.

I can be a cynical, pessimistic bastard.

I can’t help it, and I really don’t want to help it. The world is a nasty, ugly place where terrible things happen to innocent people all the time. I’m convinced, through arrogance or narcissism or rationalization, that my gloomy outlook keeps me well-prepared for those dismal days we all inevitably encounter, and insulates me from the worst disappointments. Optimism sounds in my ears like a synonym for naivety.

Told you: I’m a bastard. But today I’m going to break character for a few hundred words.

I don’t often write about my work. I never have. I think it’s a good rule to stay away from what you’re currently doing, especially in the world of the law, where much of it is privileged and confidential.

It’s unprofessional to complain about your job in any detail, and as a cynical, pessimistic bastard I find joyous reports about one’s work untrustworthy at best. I have stories from previous jobs that would make your eyeballs burst from your face. But even if I was unscrupulous about what I was willing to share, to the extent that I wrote here about everything, what stories would I have left to tell at parties?

So there it is. That’s the introduction my writing advisors always advised against. But I think I did okay. I needed all that to make it clear to you why the rest of this little essay is an exception for me.

I don’t have to violate any privilege or confidentiality to say a typical Common Pleas court sees a lot of depressing stuff: divorce, custody, drug addiction, acrimonious estate distributions, and worse. Yes, our judges also perform marriages, but those aren’t really cases, so the law clerks never have occasion to attend.

From where I am sitting, it is often a court of dismantling, of endings.

Today, though, I was present for the first time at an adoption proceeding. It was emotional for the family. And all of the Court’s personnel were doing something we rarely do during court proceedings: we were smiling.

While I think family is most clearly defined by something ineffable in our hearts, legal recognition gives that definition life in the outside world.

And that can be just as important, especially when it comes to the right to protect, provide benefits to or make healthcare decisions for your family when they are unable to do those things for themselves.

It’s hard to be a cynical, pessimistic bastard while you watch a group of children and adults get their first photograph taken as a legally recognized family. Today, even if only for thirty minutes, ours was a court not of dismantling, but a court of building, and beginnings.

What a beautiful thing.

Dec 11, 2014 ∞

Google recognizes non-binary, fluid nature of gender identity in new settings

This is another post that began as a mere link post and became, by the time I was done writing it, an article in its own right. When I’m doing more than brief commentary, an article of my own feels more appropriate. There’s more room for opinion in a full article, and I like few things more than expressing my opinions.

I was heartened to read that Google Plus will allow custom gender self-identification. Googler Rachael Bennett announced the new gender options, appropriately enough, on her Google Plus page, saying:

When “Custom” is selected, a freeform text field and a pronoun field will appear. You can still limit who can see your gender, just like you can now.

This may not seem important to cisgendered¹ readers, just as naming a state anti-discrimination law after Apple CEO Tim Cook may not seem like a big win for the LGBTQ community at large.

Google’s recent move, though, exceeds even Facebook’s more than 70 custom gender options. Many of us use our social networking profiles as an important or even primary way of presenting ourselves to the world. It’s therefore important that we can be as vague or as specific as we want to be on those social networks, so we maintain control over our own identities.

But people who are comfortable with their gender or sexual orientation “in real life” may, in the online world, suffer the reverse of being “outed.” Namely, that while they live “out” in real life, limited options for expressing their gender or sexual orientation might force them to misrepresent themselves online.

And people who aren’t yet “out” in real life may see a lack of options for accurate self-expression as yet another point of social pressure on them to delay coming out. The two problems, though opposites, are equally disturbing. Such circumstances can be degrading and depersonalizing, and Google’s change to gender options is a small but important step toward solving those and similar problems.

Sexual orientation and gender identity are too often viewed, especially by cis people, as binary, non-fluid characteristics. The truth, as I understand it², is that sexual orientation and gender identity are often composed of an interplay of continuums. More than that, for many people the two are not fixed points, but fluid and shifting throughout life, especially young life. That makes the proliferation of custom self-identification options on social networks a great thing.

The law, of course, has a very long way to go in this area, but that’s a matter for another article altogether.

"Cisgendered" describes a "gender identity where individuals’ experiences of their own gender match the sex they were assigned at birth," as opposed to transgendered. Source: Wikipedia (I know, I know, but this is a blog post, not a legal brief or a research paper, give me a break.) ↩
Again, I’m a cis male, straight, white and middle-class American. I’m not exactly brimming over with personal experiences indicative of the discrimination I’m talking about, and I think it’s important to point that out so you can read this in context. ↩

Oct 11, 2014 ∞

Update to iOS 8 even without enough free space

I’ve heard from many people who insist their iPhone or iPad “can’t handle” or “doesn’t fit” iOS 8. I read an article about a slow-down in updates to iOS 8. John Gruber of Daring Fireball first posited that some well-documented software bugs were making people reluctant to update.

But his follow-up post reminded me how many times I’ve been asked by “normals” how I managed to update my iPhone 5. Their phones, the common story goes, just don’t have enough free space available to perform the update.

I know this is frustrating, so I wanted to share some quick and easy advice on the topic. First, if your iOS device is low on space, it’s probably because of all those photos and videos you’re taking. Learn how to move that stuff to your computer so you can safely delete it from your device.

Second, if you have an iPhone 4 or 4s, think hard before updating to iOS 8. Some reports suggest you’ll have a much slower device after the update. There are some neat new features, but none of them are worth slowing your phone down.

Third, make sure your iPhone or iPad is fully charged before you try to update. While it will be plugged into the computer and therefore charging during the update, it’s best to be safe about these things. Make sure your battery icon is green before you start the update and you should be fine.

Update to iOS 8 with iTunes

If you want to install the iOS 8 update but your iPhone or iPad tells you it doesn’t have enough free space, make sure you have the latest version of iTunes.
Plug the charging cable into your computer’s USB port and then connect it to your iPhone or iPad.
If iTunes isn’t already opened, it will open. If it doesn’t open automatically you’ll just have to open it yourself (a first-world problem if ever I heard one).
Click on the iPhone button that appears in iTunes and, if iTunes isn’t already offering to update your phone, click Check for Update.
Wait. iTunes will download the five-gigabyte update to your computer and install it on your device.

p>Check out Apple’s support page for more information.

Sep 19, 2014 ∞

Check for lint before trying to replace your iPhone's charging port

My iPhone 5 recently stopped charging, unless I propped the phone upside down against an inclined surface like a lamp stand or a keyboard. I’m not in a position to buy one of those fancy new iPhones, so I shopped around in the internet’s DIY isle.

I found a well-reviewed set of iPhone surgery tools and even a well-reviewed replacement part on Amazon. Armed with those and an instructional YouTube video, I planned to replace the part myself.

Luckily, one of my many neuroses involves exhaustively reading through reviews before I buy anything from Amazon. It’s my favorite part of the site. I don’t even consider products with less than 25 or so reviews.

In a bricks-and-mortar store, you probably only have the staff to ask for advice, and they’re obviously biased. And if you’re anything like me, you probably know far more about the product than they do. Always take advantage of the availability of reviews on Amazon.

Anyway, with the necessary tools in my cart and the video queued up in the Watch Later section of my YouTube account, I headed over to read some reviews. That’s when I found this gem by Amazon user DullJack, who wrote:

First off, if you suspect your charging port is going bad, it probably isn’t. Grab a flashlight and a safety pin/needle, shine the light into the charging port and you will probably see a bunch of lint tightly jammed into the back of the port that is preventing the cable from fully inserting.

But I had looked in there and I didn’t see anything, DullJack. So what gives? He continues:

I looked into my old port before replacing it and it looked clear, but I didn’t shine a light into it.

Ah. I shined a light into it and alas, there it was. I turned my phone off (better safe than sorry when poking around inside your iPhone with anything sharp or metal) and gently used a paper clip to pull out more lint that I would have though could fit in there. Do this over a piece of white paper to get the full effect.

So. Much. Lint.

Then, I plugged it in with the reckless abandon I had used before the problems began. A small white Apple logo appeared in the middle of the screen. The phone booted up and the battery icon showed it was charging. I moved it around in all the common ways that had been causing it to stop charging.

Fixed!

I don’t use exclamation points very often on this site because that’s just not the tone I’m going for over here. But that one was obligatory. The sense of relief I felt upon learning I wouldn’t need to expose my iPhone’s innards to the harsh light of day is something only fellow geeks can understand.

Of course, exposing an iPhone’s innards to the harsh light of day is something only fellow geeks would even consider, too.

Let this be a lesson, well, several lessons, to you all:

Always, always read the reviews before you buy online,
Be absolutely certain the problem isn’t lint before replacing your iPhone’s charging port, and
Amazon user DullJack is a gentleman and scholar deserving of the gratitude and respect of fellow geeks everywhere.

Aug 20, 2014 ∞

How law firms can innovate by providing third-party services to other law firms

The Economist wrote in 2011 about the end of the legal industry’s lofty heights, saying of one large but ill-fated American firm:

Howrey’s boss, Robert Ruyak, blamed two new trends for his firm’s demise. Howrey had begun acceding to clients’ demands for flat, deferred or contingent fees, causing income to become clumpy and unpredictable. And the rise of specialised e-discovery vendors hollowed out another source of revenue.

Legal services continue to unbundle as traditionally firm-based work like document review is outsourced and electronic discovery becomes more complex. Chicago-based law firm Winston and Strawn is bucking both trends, performing e-discovery for not only itself but other firms and forgoing staffing agencies to directly hire and provide benefits to its document review attorneys.

The firm’s e-discovery division brings in little revenue compared to the firm’s other practice areas. But it has seen three years of growth amid increasing demand for a la carte e-discovery services from other law firms and non-clients. This is a classic example of a business disrupting itself before outsiders irreparably damage it. Ben Thompson wrote an exhaustive case study of Apple’s own self-disruption that perfectly illustrates the strategy.

Many firms are still trying to cope with the boom in third-party legal services providers and complaints about the cost of good legal representation. Formerly bullet-proof business models no longer guarantee the luxurious profits to which so many law firms were once accustomed. And law firm leadership, like publishing and music executives before them, must find innovative ways to provide new value to clients and industry peers.

That’s why law firms like Winston and Strawn are doing more ancillary legal work in-house. I wonder whether more firms will pitch those services to their competitors. It sounds counterintuitive to provide valuable services to competitors, but I think there’s a case to be made for it as a way to revitalize the legal industry.

Many law firms could use guidance on business process improvement, e-discovery, technology, management consulting and more. No one is more qualified to provide those service to law firms than other law firms. Two factors should minimize the fear of deliberate sabotage by a firm you have hired in a non-legal consulting role. The first is a reputational consideration and the second is an ethical one.

Law firms providing their own third-party services to clients and non-clients, including other law firms, have the opportunity every business has when it is among the first to market with an innovative high-value product or service. That opportunity is the chance to become the gold standard, to set the bar high and be the first name that comes up when someone seeks out that product or service. It makes good business sense to treat that first-mover reputational advantage as you would any valuable asset, with great care and cultivation.

p>Law firms, via the attorneys who helm and staff them, are subject to myriad ethical requirements. The same processes currently in place at most large law firms to manage conflicts of interest, particularly with regard to walling off potentially conflicted attorneys from a given client or matter, could be easily applied to the firms consulting clients. In fact, the team within a firm which provides third-party consulting services to other firms could be completely walled off from the firms legal work, insulating the consulting services from concerns about endangering relationships with and the interests of current, former and prospective clients.

Jul 2, 2014 ∞

Perverting the Metric: The Role of Metrics in Editorial Strategy

HuffPo and BuzzFeed co-founder Jonah Peretti recently said in a long and fascinating interview by Felix Salmon published at Matter:

I love metrics and I love thinking about optimization, but I think that the optimal state is being slightly suboptimal because as soon as you try to actually optimize, particularly for a single metric, you end up finding that the best way to optimize for that metric ends up perverting the metric and making the metric mean the opposite of what it used to mean.

This reminded me of an idea I’ve been kicking around for a while about how best to approach digital editorial strategy: it requires an ability to wield metrics, vision and instinct in just the right proportions.

It’s something I’ve been a part of for my own tiny blog here, an arts and culture website I co-founded, and even a business journal’s web presence. I’ve learned a few important things from my experience with editorial strategy, and while none of them are particularly surprising or mysterious, I think writing them out will be helpful to myself and perhaps to others.

Contribute to the conversation

Metrics are a great place to begin a conversation about editorial strategy but a terrible way to end it. I’ve seen metrics substituted for thinking critically about editorial direction all over the web, and what’s worse is I’ve been in the room when some of those poor decisions were made and I failed to object. It’s not a mistake I’m proud of, nor one I would make again.

But it’s easy to criticize after the fact. True leadership demands urgency. Whenever metrics are the deciding factor in an editorial decision, someone is making a mistake and it’s your responsibility to tell them.

Be respectful when their name is closer to the top of the org-chart than yours, but be direct and back up your assertions with evidence. Even if you’re outranked by everyone else in the room, at worst, you’ll be ignored, and at best you’ll show initiative and concern for the publication’s success.

I’m not saying there is no place for metrics in editorial strategy. They should absolutely be involved in the decision-making process, but they should never be the sole ingredient. In other words, these days metrics are usually necessary¹ but never sufficient to make an informed editorial judgement.

Reactive vs. critical thinking

Pure reactivity is the wrong way to use metrics, and looks something like this:

“Everyone clicks this type of story, so let’s do more of this type of story!"

Don’t use metrics to narrowly define editorial strategy. After all, an algorithm could do that with little or no human intervention (and, as I’ll discuss below, they often do). Popular topics don’t need much additional promotion. They surface organically and allow you to focus on promoting lesser-known work of equal quality. This is a powerful concept if you’re wiling to use it in your strategy sessions.

Use metrics as one factor in your strategy. After all, the numbers are way to read between your own lines and to learn what drives popular content beyond mere keywords. That looks something like this:

“Everyone clicks on this type of story. What about it, beyond the mere subject matter, makes it so appealing?"

One problem, many possible solutions

There are many reasons some content does more pageviews, higher time-on-page or lower bounce rates than other content. Here are some illustrations of the problem of a narrow band of popular topics getting the majority of attention, and some ways I have thought up and in some cases successfully implemented to solve the problem.

The “Top Post” Filter Bubble

Eli Pariser popularized the idea of the filter bubble, an explanation for how tailored web content reinforces viewpoints with which we already agree, and insulates us from alternative perspectives. Metrics are often used to do this on websites.

The most-read stories of the previous day might be featured prominently in the sidebar. This additional exposure gets them even more clicks, and even if the software causes articles older than one day to “age out” of the featured-posts box, it still severely limits the potential for featuring other articles.

This may be the problem at some sites: your digital publication doesn’t know how to surface its best content. Consider adding to popular posts some links to less popular but equally valuable content. This will combat the filter bubble and help expose readers to good stuff they may otherwise miss.

The Slideshow Site

Slideshows are a dangerous game. They are almost guaranteed to turn your steady daily traffic into a big spike. If even half your daily visitors go through even half a 20-slide show, you’re doing five times your usual traffic that day. If you’re not careful, you risk becoming known as the slideshow site, instead of the news site.

If you insist on building slideshows, use myriad internal links to point your slideshow viewers to your substantive content. Better yet, work with in-house or outside developers to automate internal links to archive pages. For example, if you run a site about New York, the first time the name “Michael Bloomberg” appears in an article, your content management system could auto-generate a link to a page listing all articles mentioning his name.

10 Things About Headlines You Have to Read to Believe

Sorry to mislead you, but I’m only to going to talk about one. Slideshows often have numbers in the headline by definition. That is one explanation for why they’re so popular. People like headlines with numbers, as a quick search for “numbers in headlines” will illustrate.

I don’t advocate making every article a list. In fact, that’s a terrible idea, at least for news sites. But it’s worth incorporating numbers into headlines where it doesn’t look forced. For example, instead of “CEOs cite multiple syngeries as key to upcoming merger,” try “3 reasons Hospital 1 and Hospital 2 are merging, straight from the CEOs.”

On-point but out of sight

Maybe topics clearly within your site’s wheelhouse don’t perform well, no matter how many headlines, reporters or A/B tested tweets you use to produce and market them. This may simply mean the audience for those topics is substantially smaller than your broader audience. Don’t wait for the audience to find you.

I had great success finding an audience for some very niche stories because I sought it out on Reddit, in web forums, in Google+ Communities, with Twitter hashtags and more. The idea is that there are groups of people who self-select for interest in topics otherwise lacking broad appeal. Those audiences are smaller, but they are also more engaged, so the time spent finding them is worth it.

These are just examples, and the problems differ from site to site. But I think they explain the value and the limits of metrics in evaluating and improving editorial strategy at digital publications.

If I say metrics are always necessary to make an informed editorial judgement, I omit the occasionally successful-despite-what-the-metrics-suggest, good-old-fashioned gut decision, and I’m not comfortable doing that. ↩

May 5, 2014 ∞

Moves, contradicting previous statement, may share user data with Facebook under new privacy policy

When Facebook acquired fitness tracking app Moves, the two said user data would not be commingled. But Moves’ new privacy policy reverses course.

First, when fitness tracking app Moves was acquired by Facebook in April, it said:

For those of you that use the Moves app – the Moves experience will continue to operate as a standalone app, and there are no plans to change that or commingle data with Facebook.

CNET reported almost identical language from Facebook:

A spokesperson for Facebook confirmed the plans to keep the Moves app standalone and not commingle its data

Today, in an updated privacy policy, Moves said:

We may share information, including personally identifying information, with our Affiliates (companies that are part of our corporate groups of companies, including but not limited to Facebook) to help provide, understand, and improve our Services.

I suppose the updated policy doesn’t technically contradict the statements by Moves and Facebook because it’s feasible there were no plans at that time to commingle data with Facebook. But my initial reaction was incredulity.

After all, the Wall Street Journal reported Moves had been downloaded 4 million times. Surely Mark Zuckerberg acquired Moves primarily for its ever-growing trove of user activity data. Why else?

But none of the coverage questioned the initial statements, and I figured the companies wouldn’t say it so plainly if it wasn’t true. So I decided to wait and see.

Well, I’ve waited and seen. The lesson here is that it is wiser to pay attention only to what a company does, not what it says. If it looks like a data grab and smells like a data grab, it’s probably a data grab. Even if, especially if, someone tells you it isn’t a data grab.

Facebook deals in data, whether its hundreds of millions of users know it or care about it or not. And Moves would be stupid not to take the money and, more importantly, the resources Facebook can bring to bear on improving the app. So a data grab isn’t a surprise. Perhaps the “no commingling” language was an elegant public relations play meant to minimize privacy concerns in the press. That would seem to have worked: as of this article’s publication I couldn’t find a single story on the change.

Zuckerberg’s recently stated intent to grow via the acquisition and development of discreet apps and services raises another interesting issue. To quit Facebook, it may not be enough anymore to, well, quit Facebook. If I closed my Facebook account today, the company could still gather data about me for as long as I use Moves. Facebook has a growing list of acquisitions under its belt, so that concern is likely to increase with time.

This example of corporate self-contradiction is a good reminder: Always assume your data is a valuable and transferable commodity in the eyes and on the servers of the apps and services you use. Some people are deterred by that fact, while others are not. There is no right or wrong answer, just a continuum of personal comfort and preference.

While I wish the companies had been more forthright from the beginning, I won’t stop using Moves. I have personally always been relatively open in sharing data in exchange for convenience and utility. But that doesn’t mean I’m not alarmed by the increasing difficulty of using the internet and related apps and services for those who disagree with my position on openness.

p>Share your perspective via email at joe@joeross.me, on Twitter or in the comments.

Apr 10, 2014 ∞

Down the aggregation rabbit hole

This began as a link post pointing to Joel Achenbach’s Washington Post blog entry Journalism is aggregation. But, like more and more link posts lately, it got away from me and merged into its own article.

Achenbach decides journalism is aggregation, and that’s okay. Or maybe he decides it’s not really aggregation, or that it’s at an acceptable point along the continuum between valueless aggregation and value-adding aggregation. I’m not actually sure he settled on a conclusion, and that’s okay, too.

Achenbach had reminded me of my recent post on the topic, which prompted the author of the post I was commenting about to leave me a nice comment of his own. (So meta!)

And then I found this post by Joshua Benton at the Nieman Journalism Lab expressing some disappointment with Achenbach’s aforementioned lack of a conclusion, or more precisely paints his conclusion as a bit of backtracking. I’m not sure I agree with Benton’s take, but both men raise interesting points.

Some journalism is aggregation, but most good and all great journalism is more than mere aggregation. It’s a synthesis of the anecdotes, data, facts and perspectives of as many reliable sources as you can fit into your word limit. Right? That’s an accurate description of much of the best journalism I’ve read in the past year or two.

To me, pure aggregation on the web involves sharing a link and perhaps pairing it with an inflammatory or vapid comment. Sometimes, that’s actually fine with me. Twitter is a good example of that. But no one would call it journalism, even when journalists do it. That’s important to keep in mind, I think: not everything a journalist does online or off is, or is intended as, journalism.

Achenbach wrote about the interview process, which most journalists use to offer different perspectives on a piece of news from experts of different disciplines or schools of thought. Interviews, collecting the commentary of multiple sources, are an aggregation of those opinions. But that’s just one activity in the composite of activities which together compose an act of “journalism.” The result is an article in which, as Achenbach also says near the end of his post, the reporter has drawn on personal knowledge, research and experience beyond the interviews and facts aggregated.

Aggregation, then, is the collection and presentation of opinions or facts, adding little or no context. Journalism, I think, is an equation like this:

Journalism = aggregation + context

I want to know what you would add to, or remove from, that equation. I realize that aggregation on the web generally, and as an issue in digital journalism and publishing specifically, predates my humble blog posts on the topic, but I want to explore it with other interested folks.

Apr 6, 2014 ∞

NPEs planning patent litigation may be safer as private companies

Note: I’m not your lawyer, you’re not my client, and nothing in this article is, or should be construed as, legal advice.

Companies that don’t sell anything and exist only to enforce patent rights, sometimes purchased from the original patent holder solely for the value of enforcement, are known as non-practicing entities (NPEs) or, pejoratively by defendant companies and their attorneys, “patent trolls.”¹

The NPE will sue claiming infringement of one or more patents, and may not actually have any intent to litigate. Many companies and inventors of all sizes regard NPEs scornfully, but are often forced to play ball because settlement is almost always cheaper than litigation. For smaller startups, the cost of litigation may even pose an existential threat.

Allow me to play devil’s advocate for a bit. I consider most NPEs parasites, siphoning money out of the market in return for nothing at all. But here are some thoughts on what some of them may be doing wrong from their own perspective. After all, what good is an attorney who can’t think like his enemy?

Let me explain some basic corporate law, as much for my recollection as for your edification. A corporation is subject to the law of the state in which it incorporates, and corporate law differs from state to state. The cases I cite below only illustrate the foundational principles of corporate statutory and common law.

A company’s board directors and officers owe several fiduciary duties to shareholders and the company itself. One of those is the duty of care, which says that responsibility for “the financial interests of others imposes on a director an affirmative duty to protect those interests.”²

However, courts realize businesspersons are in a better position than judges and attorneys to make sound decisions for their companies. For that reason, courts often defer to the judgment of a company’s leadership absent some gross negligence.³

The business judgment rule, as it is called, is at its core :

a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.⁴

Thus, the fiduciary duty of care owed to shareholders by directors and officers requires them to make a “good faith effort to be informed and exercise judgment.”⁵

So, now back to the NPEs. When a company faces suit by an NPE, its leaders are obligated to compare the costs of litigation and settlement and choose the path most protective of the company’s and shareholders’ interests, which is usually the less costly path. And that, of course, is almost always settlement.

Joe Mullin, writing for Ars Technica, explains the financial position of an NPE recently vanquished by web-based tech retailer Newegg:

MacroSolve had about $800,000 on hand and looked to be burning through about $50,000 a month, not including payments to its lawyers.

That $50,000 happens to match the low-end of the amount MacroSolve demanded of companies against which it brought patent infringement lawsuits. In other words, it matched its settlement demands to its burn rate.⁶

It was actually surviving only, or primarily, by threatening to go to trial on patent claims of dubious validity. MacroSolve is a public company, so much of their financial and operational information is openly available. Newegg realized after reviewing that information that MacroSolve’s burn rate matched the settlement demands, and built a strategy around it: call the MacroSolve bluff, revealed by their public financials, by refusing to settle, causing their burn rate to deplete cash-on-hand and substantially reduce or totally eliminate the company’s ability to press on with any outstanding litigation.

NPEs registered as private companies and considering the MacroSolve strategy may be safer staying private. Public companies may want to consider taking the company private before using litigation or threat of litigation, on the assumption that some percentage of defendants will settle, to fund the company’s survival.

In conclusion, patent litigation by non-practicing entities is even more a game of poker than most litigation, to the extent the defendant isn’t really infringing or the patent’s validity is assailable, and public companies show too much of their hand too much of the time to play safely under most corporate law regimes.⁷

Read the canonical story of the birth of the phrase “patent troll,” in spring of 1999, here. ↩
Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985) (Opinion) ↩
Aronson v. Lewis, Del.Supr., 473 A.2d 805, 812-13 (1984) (Opinion) ↩
Id. at 812 (Opinion) ↩
In re Caremark Int’l Inc. Derivative Litigation, 698 A.2d 959, 968 (Del. Ch. 1996) ↩
Successful venture capitalist Fred Wilson defines burn rate as “the speed at which your cash balance is going down.” Read his article on the topic here. ↩
Of course, putting the devil’s advocate thing aside for a moment, which I do in a footnote in keeping with the spirit of the article, it’s probably best to innovate in some meaningful way and get a new or improved product to market instead of looking for the most defensible way to monetize patents which may not be valid and probably aren’t being infringed anyway. ↩

Mar 22, 2014 ∞

Reading List: Law reviews, loans, novels and Crimea

Here’s what I’ve been reading lately. The Crimea story is easily the most important one in terms of knowing some stuff about what’s going on in the world, but it’s all worth a look.

The fellow who put together that Crimea reading list (at the bottom of the list below) is Om Malik, founder of GigaOm and a great writer in his own right.