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.

Related Links

• The U.S. District Court for the Eastern District of Pennsylvania's 2016 opinion (overturned by this one)
• ACLU page
• Cato Institute page
• Electronic Frontier Foundation page
• DOJ brief in support of plaintiffs (PDF)

I’ve included a link to the PDF, and embedded the opinion, below.

https://assets.documentcloud.org/documents/3890443/Document.pdf

[scribd id=353175253 key=key-wgEldZXf3JOlCRTha0pe mode=scroll]

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.

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&amp;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.

Introduction

This is the exact text of an email I received recently from a very intelligent relative:

AN EYE-OPENER

Charity Hospital run by the Sisters of Charity in New Orleans, along with the Upjohn company developed the plasma system in the1930’s that saved so many lives in WWII, Korea, Vietnam and in the Middle East now.

During the Civil War most of the nurses were nuns.

Even if you are not Catholic, this is eye opening:

When the Catholic Church was founded in the United States, there were no hospitals.

Today, one out of five persons in this country receive their medical care at a Catholic hospital.

When the Catholic Church was founded, there were no schools. Today, the Catholic Church teaches 3 million students a day, in its more than 250 Catholic Colleges and Universities, in its more than 1200 Catholic High Schools and its more than 5000 Catholic grade schools.

Every day, the Catholic Church feeds, clothes, shelter and educates more people than any other organization in the world.

The new Obama Health Mandate could end all this and the tax payers would have to make up the loss.

Also, all Catholic adoption services will come to an end… a human disaster.

There are more than 77 million Catholics in this country. It takes an estimated 50 million Catholic votes to elect a president.

I am asking all of you to go to the polls in 2016 and be united in replacing all Senators, Congress and the president with someone who will respect the Catholic Church, all Christians Churches of every denomination, the Jewish Synagogues and all other Religions and Temples with perhaps the exception of Islam.

Mr. President, you said in a speech, “The USA is not a Christian Nation”. You are wrong - we are a Christian Nation founded on Judeo-Christian values allowing all religions in America to worship and practice freely… something that Islam will never do.

Oh, by the way Mr. President, on your MUSLIM HERITAGE in America ….

Have you ever been to a Muslim hospital, heard a Muslim orchestra, seen a Muslim band march in a parade, know of a Muslim charity, ever seen Muslims shaking hands with a Muslim Girl Scout, or ever seen a Muslim Candy Striper volunteering in a hospital?

Have you ever seen a Muslim do much of anything that contributes positively to the American way of life?

One more note….. in every church or synagogue, I have ever been in, in the United States, I have always seen an American flag. No mosques in the United States carriers or flies an American flag.

Let’s circulate this to as many as possible.

Remember the elections are coming up in November 2016!

Response

Now, we will simply examine the facts:

There are no Muslim hospitals in the U.S. that I know of. However, any successful businessperson can appreciate the difficulty of running an operation which, in today’s political climate, may only have about 1% of the U.S. population as potential customers.

The American Blues has roots in Muslim music, probably because about 30% of American Slaves were Muslim. That is, until they were brutally enslaved and often forcibly converted to Christianity by Christian slaveholders.

Islamic influences on Medieval Europe are also well-documented, including with regard to music (there’s even a 13th century miniature depicting a Muslim and a Christian jamming on their lutes together).

It appears Muslims influenced a great many other areas of European history, which of course trickled down to U.S. history. Even Saint Thomas Aquinas “made a study of the Islamic writers and admitted his indebtedness to them."

New York Public Radio affiliate WQXR has a great story on historically significant orchestral tours, including the following section:

A product of Israeli conductor Daniel Barenboim and the late Palestine activist Edward Said, the West-Eastern Divan Orchestra was founded in 1999 to bridge the Israeli-Palestinian conflict and bring young musicians of Jewish and Arab descent together to make music. The orchestra is based in Seville, Spain, a city chosen for having both Jewish and Muslim legacies. And its performances are better received outside the musicians' homelands. However, the group traveled to Ramallah in 2005 for a concert. The visit is considered one of the first non-militaristic encounters between Israelis and residents of the Occupied Territories.

See also: National Arab Orhestra and New York Arabic Orchestra

Muslims ‘Give Most To Charity’, Ahead Of Christians, Jews And Atheists, Poll Finds: I admit, this article is three years old and relates only to British citizens, but it is data nonetheless.

Directory of 1,271 Islamic charities: Yes, there are 4 times as many Jewish charities and 84 times as many Christian charities, but the data suggest that if we don’t know of any Muslim charities it isn’t because they don’t exist.

As for marching bands in parades, I could find none in the U.S. but I did notice that marching bands are most likely an import from Ottoman military history, as seen here.

Muslims do have parades, but a quick Google search and some careful reading will show many of the marchers are more focused on the geopolitical turmoil in their home countries rather than their religion, and many U.S. commentators, pro- as well as anti-Islam, are ignorant of that fact.

As for Girl Scouts, where do we begin? Here are few links:

• To Muslim girls in U.S., Girl Scouts offer a chance to fit in
• Islamic Committee on Girl Scouting: The Religious Recognition Awards offered by the ICGS is approved by both the G.S.U.S.A. and by W.A.G.G.S. (World Association of Girl Guides and Scouts).
• Muslim Scouts pursue an American tradition --- in an America wary of Muslims
• If you don't believe country, honor and Allah can co-exist, meet these Muslim Boy Scouts
• Muslim, Christian Scouts come together to foster friendship, understanding

As for volunteering:

• California Muslims with Muslim Spiritual Care Services volunteer in hospitals and provide services and training in chaplaincy to Muslims and non-Muslims alike.
• Muslim Volunteers For New York does similar work.
• Muslim volunteers hand out 700 'Mercy Bags' to seniors, homeless
• In good faith: American Muslim RNs reflect on challenges: This article suggests it's hard enough being a paid Muslim nurse in the U.S., let alone a volunteer

Muslims have done much of anything that contributes positively to the American way of life. Like football, and basketball, and boxing, and many other things. While the roughly 5,900 Muslim-American military members of the U.S. Armed Forces make up only a bit more than a quarter of one percent of the Armed Forces, their contribution to the American way of life surely cannot be denied.

Some Mosques do actually have American flags, like this one, and this one, and this one, and this one, and even ones who receive bomb threats.

Conclusion

If there is any doubt left as to the absurdity and ignorance of the claims made about Islam in the email this post destroys I will address them with a future article on the well-documented history of Christian bloodlust throughout the centuries. #justsayin

---

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.

Many have expressed their sorrow at our loss of Mr. Bowie on social media and it is hard to find a news story or obituary about him that is not composed at least partially of Twitter embeds. I’m writing this because while I never met the man, his music and personality played a major role in why I started playing music and how I approach songwriting, and just plain writing, to this day. In other words, I’m making this tragedy about me.

Then again, so are most other folks, I’m just admitting it at the outset.

I was in high school. I had only first picked up a guitar in the last year or so and quickly befriended a couple of other guitar-toting music nerds (Hey Jonny, hey Chris). We were already big fans of the Beatles and the more recent Brit-rock band Oasis. And we delved into Pink Floyd and David Bowie together, finding something like our own voice in that decidedly British amalgam of rock and roll.

But it was Bowie who, more than all of the other musicians who inspired me in the early days of my musical development, illustrated how far the synthesis of personality and art can be taken. There’s no need for me to explain his chameleonic permutations, they’re as iconic as his music.

Throughout high school and through college – even to this day – I remained a pedestrian-looking musician, just another white guy whose long hair got shorter and dyed-black as he entered his twenties and thought he, and he alone, was the saddest, most tortured soul at the party.

Womp womp.

Put simply, “chameleonic” is just not a word anyone would use for my appearance. But Bowie’s music was as dynamic as his makeup tray and he seemed to foresee rather than follow fashion and sonic trends. That’s the part of him that stuck with me, consciously, as in I’m not just writing about it today because he has died, but as in I think about it, about him, a lot.

I don’t talk about writing songs very often because it’s become sort of like a diary, a journal. Like most of what I write, songwriting for me is a would-be novelist’s first notebook of character sketches, equal parts selfish unflattering funhouse-mirror style portrayals of myself and people I know and cringe-inducing artistic growing pains.

But I’ve been writing songs since the seventh or eighth grade. They stopped sucking sometime at the beginning of college and I owe a lot of that to David Bowie. When I wrote a particularly shitty song in one style, I’d just switch to another style. Acoustic dream-pop, rollicking early rock, simple quiet ballads, weird jazzy oddities.

This sort of stylistic rotation prevented me from concluding that I absolutely should never, ever write another song in a given style. And as a result, I eventually became pretty good at writing songs in two or three of those styles.¹ I also developed my own original voice, both in music and in writing, by emulating the greats and selectively shedding bits and pieces of their approach in favor of my own.

So now that I’ve made it about myself, let’s bring it back to what’s important: there will never be another David Bowie and his loss is a cultural tragedy of a global scale, but he made one hell of a dent.² Nothing, not even death, can silence a force like David Bowie. So go listen and smile.

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.

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.

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.

My Opinion on Ad Blocking

Large publishers don’t have much to worry about with regard to ad blocking because they have the resources to play cat-and-mouse with developers. But smaller publishers and even independent publishers of a significant size, traffic-wise, are right to keep an eye on ad blocking. I don’t think John Gruber has much to worry about either, but he also doesn’t have time to spend staying one step ahead of blockers who blacklist his primary advertising network, The Deck.

I use blockers on desktop browsers and, now, on iOS for all the reasons so many people have already cited: ads often ruin the reading experience, trackers build creepy profiles on what we like and follow us around the web showing it to us, and sometimes the stuff a publisher publishes is worth our eyeballs, so why should we be counted among their visitors and help boost their ad rates?

But… But… But… BUT…

Can you sense that I’m about to state a caveat to my support of the development and use of blockers? If not, you need more coffee, or to visit a doctor, or just give up reading for, like, ever.

Seriously though here’s the caveat: Blockers should absolutely always and without fail include a whitelisting feature, and it is my personal opinion that to use blockers without actively using the whitelisting feature is entitled, unethical and hypocritical.

It’s entitled because it assumes you deserve everything published on the web for free, just because, like, you’re you. That’s not true.

It’s unethical because there are absolutely jobs to which blocking poses an existential threat, and jobs are people, and people have families, and feelings, and futures.

It’s hypocritical because, at least in my mind, the primary purpose of using blocking tools is to say to publishers and their ad partners, unequivocally, you’re doing it wrong. But to say that sincerely you have to have in mind that there is a way of doing it right. And, of course, there is: unobtrusive, minimally tracking advertisements carefully monitored and held to a far higher standard than that to which most are held these days.

It sends no signal to simply block everything indiscriminately, which is what you’re doing if you don’t use a whitelist. I want publishers who display ads respectful of their readers to continue to be able to sell that inventory. I want to see a virtuous cycle: I want them to be able to charge more for that space because they’re on whitelists their less respectful competitors aren’t on.

So I use ad blockers on desktop and mobile, and also spend a lot of time on building whitelists full of sites whose ads I don’t mind and whose business model I want to help preserve for at least as long as it takes for them to find and transition to whatever model comes next.

An Ad Blocking Case Study: Peace by Marco Arment

Apple released iOS 9 earlier this month and Safari, the built-in browser, gained the ability in 64-bit devices to load what Apple calls (a bit disingenuously…) “content blockers”. These are apps you install and enable in Settings > Safari > Content Blockers. This new class of apps is almost exclusively used for blocking display advertisements and tracking scripts that follow you around the web building an anonymized-but-still-targeted-at-your-face profile about you.

I’m writing this to express my opinion, because that’s what the internet is for. I’ll explain my reasons and then recommend steps you should or shouldn’t take based on how much you agree with me.

[caption id=“attachment_1388” align=“aligncenter” width=“576”] Settings screen from Peace, an iOS ad blocker by Marco Arment[/caption]

Let’s use a case study to illustrate the acceleration of the debate about ad blockers on iOS and desktop web browsers. Marco Arment, an early tumblr employee, the creator of Instapaper (which he later sold) and, more recently, of the Overcast podcast service for iOS, released his own ad blocker, called Peace, on September 16, 2015, announcing it in a blog post. He explained in that article:

And we shouldn’t feel guilty about this. The “implied contract” theory that we’ve agreed to view ads in exchange for free content is void because we can’t review the terms first — as soon as we follow a link, our browsers load, execute, transfer, and track everything embedded by the publisher. Our data, battery life, time, and privacy are taken by a blank check with no recourse. It’s like ordering from a restaurant menu with no prices, then being forced to pay whatever the restaurant demands at the end of the meal.

I was one of many purchasers who paid $2.99 to try out Peace on my iPhone, helping to send it flying to the top of the paid app charts almost immediately. It’s well-designed and includes the ability to do one-time exceptions or permanently whitelist specific sites (more on that later). Arment had to explain in a post the day after Peace launched why Peace blocks the classy ad network The Deck. This explanation was important because Arment displays advertisements on his own site using The Deck. It was a clear example of the cognitive dissonance the ad blocking issue causes.

The Top App Disappears From the App Store

The day after that, though, Arment did something surprising: he pulled Peace from the App Store and explained how everyone could get a refund. That’s tens of thousands of dollars to which he said “Nevermind” because he developed a crisis of conscience. He said:

Peace required that all ads be treated the same — all-or-nothing enforcement for decisions that aren’t black and white. This approach is too blunt, and Ghostery and I have both decided that it doesn’t serve our goals or beliefs well enough. If we’re going to effect positive change overall, a more nuanced, complex approach is required than what I can bring in a simple iOS app.

Arment can afford to take the hit, financially, but what’s more surprising about this move is that he is a world-class iOS developer, constantly improving and maintaining a popular podcast app, who spent a lot of time and effort and stress building an app that, only days after it launched, he decided to kill. And Apple took notice: the company notified him on September 21 it would be “proactively refunding” every purchase of his ad blocker.

I didn’t expect that because Apple included in iOS 9 its very own News app, which doesn’t allow content blocking and thus is now the only bullet-proof way for publishers to ensure their advertisements come along for the ride when someone reads their stuff. I wonder if it was more a kind gesture to Arment, whose great apps bring a lot of attention and a nontrivial amount of money to Apple (who gets 30 percent off the top for every purchase of every paid app) and iOS.

The First Crop of iOS Ad Blockers

I tried five different ad blockers¹, listed below:

• Peace, $2.99, since removed and refunded
• AdMop, free
• Crystal, $.99
• Purify, $3.99
• Blockr, $.99

I quickly realized my dealbreaker feature while evaluating those apps: whitelisting. That immediately eliminated AdMop and Crystal.² The next one I eliminated was Blockr which, while it does offer a whitelist, is a little too complex for my tastes, requiring you to choose from several different elements to whitelist on each site. I prefer simplicity just from an aesthetic perspective, but more importantly “normals” – non-geeks – are less likely to use a feature that looks complex and bloated, not because they “don’t get it” but because they’re not obsessed with spending hours tweaking the settings on their gadgets.

Peace is my favorite because not only does it offer a whitelist, but the action extension you use to whitelist a site includes all of Peace’s other settings, including a global disable button. Even more interesting is the separate action extension Arment included to “Open in Peace,” meaning you can disable the app globally and selectively load overburdened pages in Peace on demand. While I’ll focus on building a whitelist, the inclusion of a selective-enable option demonstrates the amount of thought Arment put into this issue. This wasn’t just a money grab, it was an experiment. That’s what the Scott Meyer, CEO of Ghostery, the company whose blocking database Arment licensed, called it, The Peace App Experiment. His thoughts echoed Arment’s:

Specifically, the black and white, all on/all off approach to content blocking in Peace ran counter to our core belief that these aren't black and white decisions. With the currently limited flexibility of the user experience, we both felt it best not to continue to sell or support the app. Ghostery is based on giving the consumer the choice as to what they block and when. Ghostery doesn’t block ads or any other content by default. That’s too subjective a call. If there are objective measures for what types of tracking should be blocked, then that’s an option we’ll pursue. Right now, however, we didn’t feel that we had the mix right in Peace. Marco agreed.

I suspect based on that language and Arment’s own post about withdrawing the app that future improvement by Apple to its blocking framework may enable the nuance to which Peace aspired. For now though, the app isn’t available anymore and, while if you already have it installed and don’t delete it, you can keep using it, there’s no guarantee of any support or updates. I plan to hang onto it and will probably stick with it until Purify somehow differentiates itself.

[caption id=“attachment_1387” align=“aligncenter” width=“576”] Whitelisting screen from Purify, an iOS ad blocker by Chris Aljoudi[/caption]

But for those of you who haven’t yet tried one out, or are still on the fence about which one to use, and haven’t yet purchased and installed Peace, or have deleted it since it was pulled from the App Store, I have to recommend Purify. Yes, it’s $3.99, no, that shouldn’t stop you from getting it. It has a dead-simple and fast whitelisting option and lets you decide to block images, scripts and fonts as well, although only ads and trackers are blocked by default.

[caption id=“attachment_1390” align=“alignright” width=“264”]ublock, an ad blocker for desktop browsers, by Chris Aljoudi[/caption]

Purify also has the benefit of being developed by Chris Aljoudi, maker of the uBlock extension for desktop browsers. uBlock also has a dead-simple whitelisting option. Aljoudi developed uBlock out in the open and it’s free, so you can get a good sense of the quality of his work before buying Purify, if my recommendation isn’t enough.

iOS 9 marks the first time Apple has included content blocking in the mobile operating system, and it almost certainly is part of a larger strategy to squeeze other large companies reliant on advertising models for revenue. But its bound to put pressure on small and medium publishers to clean up their advertising standards or consider alternatives like membership programs or tip jars, used by Brett Terpstra, The Loop, Katie Floyd and many others, with varying degrees of success.

For now, I’ll keep on blocking the crap and whitelisting the good guys. How about you?

Feature image by NEXO Design under CC-BY-SA; screenshots by me

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.

---

Supreme Court Gay Marriage Ruling: The Highlights

Here are highlights from Friday's 5-4 Supreme Court decision legalizing same-sex marriage across the country.

This is for the folks who don’t relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Religious Groups Vow to Fight Gay Marriage Despite Supreme Court

Religious and conservative leaders opposed to same-sex marriage say their fight over the issue won't end with Friday's Supreme Court ruling that effectively legalized the practice nationwide.

My grandmother taught me that when I don’t have anything nice to say, I shouldn’t say anything at all.

So [ THIS SPACE INTENTIONALLY LEFT BLANK ].

Transcript: Obama's remarks on Supreme Court ruling on same-sex marriage

This decision will end the patchwork system we currently have. It will end the uncertainty hundreds of thousands of same-sex couples face from not knowing whether they're marriage, legitimate in the eyes of one state, will remain if they decide to move or even visit another.

I always thought that very uncertainty was far worse than moral opposition to same-sex marriage. Moral opposition can be understood in terms of how someone was raised, how passively or actively they embrace confirmation bias or (more common than the other two among politicians, I suspect) the need to appeal to a particular constituency.

But the uncertainty of interstate differences in marriage law has a profound practical (and detrimental) effect on myriad decisions same-sex couples have to make all the time about issues like travel, employment and estate planning.

John Roberts's full-throated gay marriage dissent: Constitution 'had nothing to do with it'

"If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Chief Justice Roberts' dissent suggests that he may have considered things differently if he were in a legislator’s shoes but thinks it inappropriate for the Court to decide the issue. That’s a distinction worth thinking about, too. It is possible to morally support a right to same-sex marriage but also take the position that the Supreme Court is not the appropriate venue for governmental affirmation of that right.

PDF: OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.

Here’s the entire opinion in PDF form, for the folks who do relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Image via Human Rights Campaign

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.

It is not an absurd ruling, although I certainly take issue with the claim that, as the MPAA alleged, Popcorn Time “has no legitimate purpose and it only serves to infringe copyright.” There are plenty of places to find legal torrents. I know most people are using Popcorn Time for piracy though, because they ask me if it is illegal, since it “seems a lot like Netflix.”

It is definitely illegal to use Popcorn Time or any other software to download, disseminate, view or otherwise consume any movie, song or other media for which you would otherwise have to pay money.

This is the insightful bit of the article, though:

For media companies, stamping out Popcorn Time has been a virtually impossible task. The free, open-source apps, originally created by an anonymous group of developers in Argentina, are now hosted on multiple sites and allegedly have several hundred volunteer programmers working on various iterations, including mobile versions of the apps.

Here is an interactive version of the graph displayed above, showing worldwide search volume from the preceding twelve months:

//www.google.com/trends/embed.js?hl=en-US&q=netflix,+HBO,+Popcorn+Time&date=today+12-m&cmpt=q&tz&tz&content=1&cid=TIMESERIES_GRAPH_0&export=5&w=700&h=400

Netflix is doing just fine, for now. But HBO, excepting a bump in mid-April coinciding with the increased promotion of their new HBO Now service, is losing ground to Popcorn Time in worldwide search.

Here is the same type of search volume comparison, but this time zoomed in to the preceding 90 days and including only HBO and Popcorn Time:

//www.google.com/trends/embed.js?hl=en-US&q=HBO,+Popcorn+Time&date=today+3-m&cmpt=q&tz&tz&content=1&cid=TIMESERIES_GRAPH_0&export=5&w=700&h=400

HBO does not have as wide a lead as Netflix, but the time to react to stiff competition is not after that compeitition has matched or overtaken you. For Netflix and HBO, that time is right now. Netflix has massive infrastructure and an increasingly impressive library of original productions. And HBO has NBO Now, uh, now, which unbundles the premium channel from cable subscriptions. These are both good reactions to the rise of competitors, legitimate and otherwise. But those strategies are not enough.

The takeaway? Popcorn Time has become similar to Anonymous or, albeit a more controversial comparison, Al Qaeda. That is, it is not a single organization answering to a traditional leadership hierarchy. It is a splintered collection of rogue outfits, some more law-respecting than others, none “in charge.” It may represent the next step in business strategy companies like Netflix and HBO will need to take to continue their success.

The person or company that comes up with a way to legally and technically monetize torrent consumption of popular media at scale will be the next Mark Zuckerberg or Google.¹

Now, if you will excuse me I am going to go think about how to legally and technically monetize torrent consumption of popular media at scale.

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

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.

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.

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

1. 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.
2. Plug the charging cable into your computer’s USB port and then connect it to your iPhone or iPad.
3. 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).
4. Click on the iPhone button that appears in iTunes and, if iTunes isn’t already offering to update your phone, click Check for Update.
5. 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.

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:

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

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.

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.

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.

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

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.

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

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.

• Abolish the Law Reviews!
• Never been a better time for law school grads to get a job
• Confidentiality Agreements: Some Unintended Consequences
• Co-founder liable for sending company’s social media followers to new competing company’s Facebook page
• How Student Loan Deferments Affect Your Credit
• Time Enough for Love
• Community design
• Clampersand
• Opening Lines of Notable Novels — Print — Tools and Toys
• Essential Crimea Reader: 7 Must Read Stories

I want to tell you about one great podcast every week. This shouldn’t be a problem for at least a and a half or so because I am currently subscribed to about 80 podcasts. The first Podcast of the Week is CMD + Space.

An interview show by Myke Hurley, CMD + Space typically features a wide-ranging conversation between he and a guest from the Apple world. App makers, pundits and others talk about how they approach app development on Mac and iOS.

Find out more about the show at its homepage on the 5by5 podcast network. If you need a podcast player, I highly recommend the one made by the guest on this week’s episode, Russell Ivanovic. His app Pocket Casts is available on Android and iOS and can sync subscriptions and played position across multiple devices.

The image above is the first screen you see when you open Popcorn Time. The app, available on Mac, Windows and Linux, streams movies from the peer-to-peer file sharing protocol BitTorrent. The technology is similar to what old school music swapping service Napster used from about 1999 to 2001, before being shut down.¹

It’s getting a lot of attention this week, much of which focuses on its copyright infringement implications. And for good reason, because according to the FAQ, while you’re watching a movie, the app is using your computer and internet connection to seed the same movie to other viewers. That means you’re sharing what you’re watching, and if what you’re watching is copyrighted or otherwise protected by your country’s intellectual property laws, you may be committing a civil violation or a crime.

Yeah, it’s like that.

I messaged the Buenos Aires-based developers of Popcorn Time on Facebook asking whether they would consider adding a Creative Commons / Public Domain channel to the app. It couldn’t hurt to include some non-infringing content, and it may be a cool new way for indie filmmakers to distribute their work.

But while copyright infringement is the easy story (and the one I would usually focus on here), there’s a more interesting angle to Popcorn Time.

It has the potential to introduce “normals” to the concept of peer-to-peer file sharing. This is similar to what BitCoin has done to the idea of digital currency. While it is the first cryptocurrency, using cryptography to secure transactions, it was not the first digital currency. Several video games allow players to trade items for virtual money and have done so for a long time.

But BitCoin brought the concept to the forefront of an international conversation. I’m not sure Popcorn Time is going to be that big or game-changing (it’s still in beta; only the third movie I tried to play, American Hustle, actually began to play. I turned it off right away, because it’s good policy for would-be attorneys not to, you know, break laws).

I do think there is real value to a proof of concept when it gets a technology usually limited to geeks into the hands of a larger audience.

And the infringement potential doesn’t have to be a deal-breaker. A quick Google search for legitimate uses of BitTorrent turns up about 146,000 results.

Some totally legal uses of BitTorrent include game updates and downloads, distributing your own music, and (take note, Popcorn Time developers) public domain movie trading.

So the question is whether the extra attention Popcorn Time is getting can be turned toward the lawful uses of peer-to-peer protocols. If so, it could be the boost the system needs to become a permanent fixture in the national conversation. In other words, the interest in Popcorn Time could be peer-to-peer’s BitCoin moment.

A daily post of links I read that day feels too spammy now that I’ve done it a few times. I’ll make it a weekly thing where I highlight the best of what I read that week.

My favorites among today’s reads are the Hari Kondabolu piece, which is actually a video of few minutes of his hilarious standup, and the Tim Cook article, which I posted about earlier.

• Going Paperless: Automating Repetitive Stuff about Meetings
• Hari Kondabolu Explains How Weezer Broke His Heart
• Jimi Hendrix: Purple Haze Behind the Scenes
• Facebook friend of the court: The complicated relationship between social media and the courts
• Help! I Cracked My iPhone (Or Another Smartphone)
• SLyme Disease
• From bestseller to bust: is this the end of an author’s life?
• The Job After Steve Jobs: Tim Cook and Apple
• What Is Russia Today?
• Spying by N.S.A. Ally Entangled U.S. Law Firm
• George Lois on the evolution of the modern magazine cover.
• Industrial design rights in the European Union

I’m a huge fan of apps and services like Instapaper and Pocket, which allow you to save web pages, articles and even videos for later. Whether I’m in line at a coffee shop or sitting in a waiting room, I often turn to tools like Twitter and Feedly to see what’s worth reading on any given day. The combination of all of those apps leaves me with far more content than I can read in a day, but I’m going to start sharing what I get to in a daily post over here.

This will serve two purposes. First, it will give you a sense of what I look at every day. Second, it will give me a convenient way to look for patterns in what I’m actually choosing to read versus the much larger bucket of things I’m saving. In other words, some of the stuff I save I will never, ever read. And maybe I’m repetitive or restricting myself to an echo-chamber of similar perspectives. This exercise will help me look for those things and then change them.

Most will be far shorter than this one, but in the spirit of getting off to a good start, here’s a list from the last couple of days:

• Going Paperless: Automating the Creation of Meeting Minutes Using IFTTT and Evernote
• President Obama’s remarks on the situation in Ukraine
• 200 Days of Writing Infographic
• I’m Jamie Todd Rubin, and This Is How I Work
• Identifying the Clandestine Videos of Supreme Court Oral Arguments Posted Online
• Scientology’s Vanished Queen
• Leah Remini Shares The Truth About The Hardest Year Of Her Life
• Beyond tweeting: Demystifying the social media editor
• If a Time Traveller Saw a Smartphone
• An Oral History of Ghostbusters
• Statement on the Apprehension of Joaquin “Chapo” Guzman Loera
• Internet Legal Research on a Budget
• 25 Things All Young Lawyers Should Know In Order To Not Screw Up Their Legal Careers
• Clarence Thomas’s Disgraceful Silence
• Attorney General Signs New Rules to Limit Access to Journalists’ Records
• The Semicolon Is the Perfect Punctuation for the Digital Age
• Comcast and Us
• How to Increase Your Social Media Following by Over 700%