SPAM NOTES:
a law blog covering electronic communications,
email, social networks, privacy, and more
Electronic Communications, Privacy, Data Protection, and More

Seattle Blawger Meetup

I really enjoyed last week's Seattle blawger meet up. It was great to see a bunch of Seattle law bloggers and twitterers. (In attendance: Colette, Mike Atkins, Bruce Johnson, Tonya Gisselberg, Heather Morado, Asher Bearman, Ziff, Brian Rowe, Joe Skocilich, the 'other Kevin' from LexBlog, Eric Goldman, William Carleton, Josh King, and Mark Britton.) 
I'm not sure what it is, but I've always enjoyed meeting law bloggers (and bloggers generally). Lawyer gatherings tend to be relatively mundane and mostly unenjoyable affairs, but law blogger gatherings are different. There's something about a law blogger's personality perhaps that makes finding common ground easier?  On thing is for sure, it's the most painless form of networking that exists (in the lawyering world). 
Here's @wac6's recap: "Last Night's Tweetup for Seattle Blawgers." (Thanks to Avvo for hosting.)  [Do we look like a bunch of gangsters, or what? Check out the picture below:]



On a related note, I also enjoyed meeting Eric Goldman in person last week. It's funny to meet someone in person that you've exchanged thousands of emails with. This isn't the first time I've experienced this but there's that feeling of wondering whether the person will match up in person to their 'online personality'. Sort of a professional version of meeting someone in an online dating context after you've corresponded with them a bunch (in this case, a ton). Eric is great. Very fun to hang out with. He treated me to dinner at a vegetarian restaurant and to gelato (and they say blogging isn't profitable!).

A Reading List for the Novice Social Networking Lawyer

The other day, a lawyer pinged me out of the blue and asked if I would be willing to chat about social networking and share some tips. This has only happened two or three times before, but this is still enough to concern me (you want to be known for your lawyering skills and not your social networking skills). Anyway, I did what I usually do, which is to drink the coffee and chat for 15 or 20 minutes. It was enjoyable. 

The person asked me if I had any interesting links or reading materials to pass on about social networking for lawyers. I didn't have any links off-hand, but I thought about it again over the next few days and came up with (sorry, 'curated') a few links. I don't think you have to read anything if you are thinking about dipping your foot in the social networking waters, and it may even be preferable to not go in with any preconceptions, but here are a few of the articles (among the many thousands) that I think are worth reading beforehand:

1. "Lawyers: You're Being Played by Twitter" (Keith Lee). This is an excellent post by Keith Lee that talks about 'gamification' and social networks. It's a simple enough concept but crazy when you think about it--the fact that the gaming instinct is what drives so much of behavior on social networks. You put something on Facebook and Twitter and the anticipation of seeing how people react to it is what makes you click over and over again. I can't say that reading this article affected my behavior much, but it provides some very helpful context. It's tough to deny that the process described here doesn't at least form a part of everyone's social networking drive. This is not something I would have realized naturally, even after having spent a significant amount of time on social networks.

2. "Why Digg's MrBabyMan is the King of All Social Media" (Farhad Manjoo).  This article profiles Andrew Sorcini, a Los Angeles area film-editor, who Manjoo describes as the "Michael Phelps of Digg." You may not have heard of Digg. That's not really important. (See below.) What I really liked about the story is that it gave a human face to someone that spends a lot of time on social networks, and describes his process for scouring the internet for interesting stories and posting these links to a social network.  I'm not sure what Mr. Sorcini is up to these days and whether he still posts in Digg, but that's neither here nor there. This is the profile of someone who is (or was) a "power social networker."

3. "The Great and Powerful Reddit" (Farhad Manjoo):  This is another Manjoo article that talks about Reddit. He describes Reddit as once having been a "second-tier aggregator" (it was formerly a Digg competitor) but is now a driving force in online discussions. Reddit has become a barometer for what news is important online (and thus to the world at large). It was very influential in the anti-SOPA/PIPA debates. The big takeaway for me on this one is that networks live and die. They constantly change. No network lasts forever. For that matter, nothing lasts forever, but this is stating the obvious.

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Two bonus reads.

First, I would read anything by Brian Tannebaum. Tannebaum is one of my favorite social networking lawyers (of those that I've come across). Why? He seems to share my almost irrational dislike for legal marketing. I just have an instinctive aversion for how it plays out, particularly online. (This probably says more about me than about legal marketing, but again, that's neither here nor there.) Tannebaum is a die-hard skeptic about marketing over the internet. That's not entirely true. He writes a blog and sends out a fair amount of tweets, but let's just say he calls a lot of BS on what's going on out there. When it comes to online marketing, this is an extremely healthy trait.

The final read isn't an article, it's a book. A book by a former Rolling Stone reporter turned pickup artist, called "the Game". I'm happy in a long-term relationship and don't have much practical use for a book about getting dates, but it is a compelling read. A good friend of mine who was a lawyer mentioned it to me about ten years ago and told me that a mutual friend of ours who was a geeky lawyer read this book and achieved some success with it. I dismissed the whole story as typical pub chatter, although I was sort of curious about it. A couple of years ago, another friend actually sent me a copy of the book. It appeared to me that he had downloaded the copy from a torrent site and for some reason one morning I was feeling paranoid (maybe somewhat guilty) and decided to buy the book on Amazon. I never thought about it or read the book until I was sitting on a long plane ride and ran out of books to read on the Kindle. I started in on The Game and ended up blazing through it over the course of the next four or five days. The Game ended up providing some good insight into a topic I have forever been curious about: self help subculture. The book was marginally interesting for its treatment of the tricks of the pickup artist but what was more intriguing about the book was how it delved into the self-help world. This is something that is prevalent in social networks. Whether you talk about the "gratitude economy" or the "like economy," a very very interesting social phenomenon you will inevitably come across online is people building little communities that they then impart knowledge to, often for a small fee. (I haven't read Seth Godin but I think this is what his "Tribes" concept is all about.) 

Anyway, here is my list of the key reads on social networking. Enjoy.

Randazza

I meant to post a congratulatory note to Marc Randazza about four or five (or six) months ago on the Righthaven smackdown but never did. This post from Scott Greenfield reminded me that I never got around to doing it.

For the few who may not be familiar with him, Randazza is an awesome kick ass lawyer and uber blogger. He was and is one of the provocative voices in the blawgosphere who to me exemplifies what law blogging (and blogging in general) is all about. At the Legal Satyricon, he and his band of Satyriconistas post on a wide range of topics from online liability and the First Amendment to politics and the ethics of eating meat (see "Ethics challenge - come up with a good reason for being a carnivore"). In an era where lawyers and others are increasingly concerned with "brand perception" and "personal branding," it's refreshing to say the least to see someone who is not weighed down by these things.  I haven't talked to him about it but I would guess that he scoffs at the idea of a personal branding consultant. I'm guessing he's not following Klout with keen interest either.

Anyway, Randazza (and others at the Randazza Legal Group) deserve serious kudos for taking down Righthaven, taking away their domain name, and their intellectual property. The domain name was bought at auction and now offers "hosting service with a spine." As Eric Goldman said, it's a pleasure to watch Randazza litigate. More important than his blogging exploits are his accomplishments as a lawyer. And Righthaven is just one of the many cases where he's achieved a big win. The Glenn Beck domain name smackdown is one that sticks out in my mind. (See "Glenn Beck's Attempt to Rape and Murder Free Speech in 2009 - Thwarted.") Here's a list of some of his successes, many of which vindicate First Amendment/free speech rights or involve pushing back aggressively against people who try to bully bloggers and others: "Marc Randazza: First Amendment Badass." 

I sometimes get mildly depressed when I think about the era of the "social media lawyer" and lawyers doling out advice in 140 characters. It can be dispiriting to say the least to see the direction social media has taken much of the legal profession. It's nice to see people like Randazza out there in these times. 

[That's not to say I don't disagree with some of the positions Randazza takes. I have some some core philosophical differences with the position he takes in this post, for example.] 

Walmart Viewers

This exchange between a defense lawyer and a security guard in a shoplifting trial struck me as funny.

The security guard says the accused is looking around furtively, like a shoplifter would. Defense counsel asks the security guard whether there may not be an alternate explanation for the defendant wanting to look around the aisles of a Walmart:
Q. [DEFENSE COUNSEL:] Okay. Now, Mr. Rowe, you were talking about she was leaving the isle [sic] and she appears to be looking around; is that correct?

A. [ROWE:] Yes, sir.

Q. That she's looking at other customers?

A. Yes, sir.

Q. Isn't there a phenomenon going on now concerning go [sic] to Walmart and watching the other customers, what do they call that? Have you heard about that?

A. I have not heard about this, sir.

Q. In fact, people are taking pictures of Walmart customers and putting them on my book [sic], my face [sic], or Facebook or You Tube or whatever, aren't they?

A. I--

Q. You don't know that?

A. No, I haven't heard about this.

Q. Okay. Called Walmart viewers or something like that, people checking out what other customers are doing. Checking out the different types of people that go into Walmart, have you not heard about this?

A. I have not heard about this.

Q. All right. Thank you. I have no further questions.
The jury convicted appellant of theft of property valued at $50 dollars or
more but less than $500.
Huff v. The State of Texas [link]; (People of Walmart).

Please be Honest and Tell me This Post Sucks

Scott Greenfield posted a couple of weeks ago about the delusion of finding a mentor online: "Twitter and the Mentor Delusion." Honest criticism ("telling you when you suck") is a key part of mentorship. I would say it's integral. I have learned the most from lawyers (and others) who tell me unabashedly that my work product left a lot to be desired. I recently sent a brief off to a lawyer who falls in this category. I had labored over it for hours. Hours and hours. I knew it wasn't perfect but I thought it was pretty good. His first words: "you're off to a good start here."

Honest criticism is tough to find on the social web, and this is why we should be skeptical of the whole idea of online mentorship, particularly on sites such as Twitter and Facebook. Far from telling you that you suck, people tell you that your stuff is great. This is a double whammy.

I recently came across a post from a totally different realm that captured this nicely: 
Positive reinforcement is your enemy. Your Facebook friends, your Twitter followers... hate you. Instead of taking ten seconds to say. "This doesn't work. You need to do better". They readily push that "like" button, because it's easy and they hope to get the same from you, but also because they're cowards.

They're afraid of the internet mob. Nobody wants to get on the wrong side of a mob, so it's easier to play nice. Go along to get along seems to be the secret to a happy online life.
("Chances Are, You Suck.")

For a second there I almost thought Scott Greenfield went off and started a photography blog and wrote those words.

I don't know that I necessarily subscribe 100% to why people are reluctant to be negative online (in the social context), but I think his point rings true. For whatever reason, people are free with their praise, and if you are looking to hone your craft, feedback from the social web isn't necessarily the best place to go.  In fact, it's probably the worst.

Added: Pew Internet released a survey (Feb. 9, 2012): "The tone of life on social networking sites:"
The overall social and emotional climate of social networking sites (SNS) is a very positive one where adult users get personal rewards and satisfactions at far higher levels than they encounter anti-social people or have ill consequences from their encounters.
I'm shocked!  (Two other parts of the survey were somewhat interesting, but the first finding was entirely predictable.)

(For what it's worth, I've met a lot of people online who I've learned a lot from so I don't recommend being closed off in this sense. Maybe not a lot. At least a few.) 
 

Twitter's Decision to Censor

Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)

As an initial note, Twitter's decision is entirely defensible and I thought Twitter (and its General Counsel Alexander Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there. What was striking about this story was how it played out in the media. In particular the muddled nature of the media narrative that followed this story.

What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):
Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.
Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:
Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.
There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):
some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."
(??) It's strange that the stories all described the key decision in question in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, depending on how Twitter's policy is implemented, there are ways around the blocking of content even in the local jurisdiction.)

Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):
Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.
From what I gather, Twitter's blocking policy will be implemented on a case by case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.

Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case by case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:
Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).
For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.

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Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep? Either way, I thought most of the stories were fundamentally lacking.

As for how the people on Twitter themselves reacted to the story, that's a depressing one. Take a cruise through the #twitterblackout hashtag and see for yourself.

[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."
]

Other posts worth checking out:

Happy National Compliment Day

This has been simmering around for like six months and I have to get it off my chest.

Is there a controller for National Days? Any sort of registry? Any process through which you have a National Day certified?  Is there any sort of regulation of "National Days"?  Should there be?

I ask because (probably owing to my time spent on Twitter) I've noticed that there's a "national day" for everything. I'm not taking about holidays, or days honoring a particular country's independence. I'm talking about things like National Donut Day, National Hugging Day, National Peanut Butter day, and National Day of Unplugging.

Do people just make up their own National Days and put up a website? Is it usually a commercial event?

I'm mildly curious.

BTW
: on a related note, Happy National Compliment Day (You. Are. So. Awesome!). This National Day is my personal favorite and yielded a new rallying cry.  YASAAAAAA! (h/t @LilyJang)

Why Lawyers Should Use Pinterest

I don't know whether lawyers "should" use Pinterest. I don't know whether lawyers should use Instagram. I don't know whether lawyers should use Google+. I don't know whether lawyers should use Foursquare.

Why are people asking these questions? Why are people answering these questions? There are lawyers out there who are doing good work. Being hungry. Being ethical, zealous, and responsive. Helping people. Advancing causes. Mentoring other lawyers. Doing interesting things with their lives outside of lawyering.

Do you really want to be one of those lawyers who spends their time worrying about whether "lawyers should use Pinterest?"

Podcast: Honk if You Love Free Speech

My first podcast, with Mike Reitz of the Supreme Court of Washington Blog (published by the Freedom Foundation): "Honk if you love free speech."

I've never done a podcast before, and Mike was a great host. We talked about State v. Immelt, a case where the Washington State Supreme Court struck down a Snohomish County noise ordinance which prohibits horn honking except when the honking is done for public safety or as part of a public event.

Check out the podcast here. Also, check out the excellent Supreme Court of Washington blog. It's a great resource for following the Washington State Supreme Court.

Of course, you can also follow Mike on Twitter.

Ceglia's New Lawyer Derides Facebook's iPad-Less Legal Team

I posted some time back about lawyers and iPads ("What is the 'iPad for Lawyers' Crowd Smoking?"). At Simple Justice I see that the debate continues, and Scott mentions some back and forth that took place on Twitter. ("The 7 "P's" and the iPad").  (See the kind of stuff you miss out on if you aren't on Twitter?)

I'm over this debate. If you are a lawyer or other professional and you're extolling the virtues of having an iPad I can chalk it up to you pushing your pet issue. Maybe you don't like carrying briefcases? Maybe you're one of those people who likes their toys. Who knows? If you are a consultant of some sort, this is more problematic, and borders on negligent.

Anyway, I noticed that someone else chimed in on the whole debate, and it happened to be Paul Ceglia's latest lawyer! Ceglia, who is suing Mark Zuckerberg and claiming a significant ownership interest in Facebook, has been through several lawyers. ("Facebook Claimant Paul Ceglia Gets New Lawyer.") Ceglia's latest lawyer has posted a bunch about the Facebook dispute, but here is one post of his that caught my attention: "Tech Behemoth Facebook's Un-Techy Legal Team."  
Another day another expedited discovery hearing in Ceglia v. Facebook. An amazing sight, which I am sure that Mr. Zuckerberg does not know. Let me paint the scene. I walked in to the courtroom and took my seat with Paul Argentieri, local counsel, and setup my iPad. No pen, no paper, just an iPad2 and some great apps like Goodreader and Evernote. In walks Facebook’s Dream Team. Three lawyers at the table and four other lawyers sitting on the bench behind the three. Seven lawyers and take a guess how many laptops? iPads? Think small. Think zero. An amazing irony today that between a huge law firm and a small town lawyer, the most tech savvy lawyer was NOT the one paid millions by one of the largest tech companies in the world.
I have no idea how Ceglia's lawsuit will turn out. Like most people, I'm skeptical. Also, you raise the skepticism meter as a litigant about a thousand notches when you go through a bunch of lawyers. I did think it was strange that his lawyer knocked Facebook's allegedly untechy legal team, and did so in a post that highlighted the virtues of the iPad! For what it's worth, I wasn't particularly sold on his post (really, he could find documents faster?), but as I said earlier I'm over the debate.

Media Mentions and Articles

Media Mentions:

The twisted world of online copyright
(Econsultancy; Nov. 11, 2010)

Rise and Fall of a Spam Crusader
(North Coast Journal; Sept. 30, 2010)

Appeals court absolves firm that exposed man's SSN
(The Register; June 4, 2010)

Spam--a Lot
(ABA Journal/Wendy Davis; March 1, 2010)

Texas county to name drunk drivers on Twitter
(SF Gate/IDG News; Dec. 24, 2009)

Starbucks sued after laptop data breach (NetworkWorld.com; Feb. 23, 2009)

Spam pins 'Strong Arm' Missed court date earns Frank Azar judge's reprimand
(Rocky Mountain News)

Microsoft Sues More Hotmail Spammers
(PC World)

Zango Sues Antispyware Vendor PC Tools (InfoWorld)

Software Notebook: Two major spam cases end up in Seattle
(Seattle PI)

Venkat on Copyright and More 1/2
(Rasmus Rasmussen Dot Com; May 22, 2009)

Court Limits Third-Party Text Message Ads
(Inside Counsel; September 1, 2009)

Articles:

CAN-SPAM Put to the Test (cNet; May 22, 2007)

Spyware Skirmishes: Spy Versus Antispy (cNet; June 5, 2007)

Recent Posts

  1. Seattle Blawger Meetup
    Sunday, April 15, 2012
  2. A Reading List for the Novice Social Networking Lawyer
    Thursday, April 05, 2012
  3. Randazza
    Saturday, March 24, 2012
  4. Walmart Viewers
    Friday, February 10, 2012
  5. Please be Honest and Tell me This Post Sucks
    Wednesday, February 08, 2012
  6. Twitter's Decision to Censor
    Saturday, January 28, 2012
  7. Happy National Compliment Day
    Tuesday, January 24, 2012
  8. Why Lawyers Should Use Pinterest
    Friday, January 20, 2012
  9. Podcast: Honk if You Love Free Speech
    Friday, November 25, 2011
  10. Ceglia's New Lawyer Derides Facebook's iPad-Less Legal Team
    Wednesday, November 16, 2011

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DISCLAIMER:

None of the information on this blog is legal advice, and you as the reader should not rely on it. The blog is intended to discuss legal issues and cases at a general level, without reference to your particular facts and circumstances. You should consult a qualified professional if you have questions about anything you read on the blog.