FTC Regulations On Blogging Clarified

On December 1, 2009, Fair Trade Commission regulations concerning product endorsements in blogs took effect. A clarification of those regulations was issued in June 2010 by the FTC.

The regulations most notably say:

"I’ve read that bloggers who don’t comply with the Guides can be fined $11,000? Is that true?

No. The press reports that said that were wrong. There is no fine for not complying with an FTC guide."

I find that statement itself to be a bit deceptive, because there is certainly some penalty for someone for engaging in deceptive advertising, failure to comply with the guideline when it applies put someone at great risk of being deemed to have engaged in deceptive advertising, and it is not at all obvious when you are considered to be the "advertiser" who can be fined for engaging in deceptive advertising, and when you are not.

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Goldman's Regulating Reputational Information

Internet law blogger extraordinaire Eric Goldman's book chapter on regulating reputational information is now available at SSRN. Per the abstract:

This essay considers the role of reputational information in our marketplace. It explains how well-functioning marketplaces depend on the vibrant flow of accurate reputational information, and how misdirected regulation of reputational information could harm marketplace mechanisms. It then explores some challenges created by the existing regulation of reputational information and identifies some regulatory options for the future.

I particularly like his operational definition of "reputational information," as:

[I]nformation about an actor’s past performance that helps
predict the actor’s future ability to perform or to satisfy the
decision-maker’s preferences.

and his notion of “reputation systems” that aggregate and disseminate reputational information to consumers of that information, as a discrete concept.

He notes that immunity from liability and the reputation of reputation systems themselves may be more effective than government regulation of reputational information, but identifies emerging concerns such as "ex ante consumer gag orders" in contracts with vendors and service providers, which may deserve scrutiny under void as against public policy doctrines or may require statutory regulation.

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Bing As Malware

Bing is Microsoft's search engine answer to Google. Like all things Microsoft touches these days, it is inferior in quality. It just isn't a good search engine. Its results are less often what you want and are hard to use.

In addition to being an inferior search engine to Google, Bing is aggressive to an almost malware degree. When you start up a new system and use Internet Explorer, the Bing software is very insistant on taking a prominent place in your system until you root it out and remove it, even if you have no interest is using it. It shows up on your screen when you don't ask it to, it installs itself, it makes itself hard to ignore when it appears on the screen. When I bought my wife a new computer recently, one of my first acts was to devote the roughly 45 minutes that was required to remove Bing from her system.

I have yet to meet a satisfied Bing customer.

Apparently, Bing also systematically uses information gathered from users who make Google searches while it is installed, effectively acting as spyware, to reverse engineer Google's search engine tricks.

While I have no problem, in general, with reverse engineering other people's technology that doesn't have formal legal intellectual property protection, and there are far more harmful ends to which information gathered with spyware can be put, I still am not happy about any software that secretly enlists millions of users into a program of mass information sharing for undisclosed reasons. I don't think that Google has any legitimate legal grievance against Microsoft for this conduct, but I also don't think that it is appropriate for Microsoft as a legitimate software company to be inserting software so close to malware and spyware into people's computers while passing off what they are doing as offering the same kind of far less intrusive service as Google and Yahoo.

Indeed, perhaps the most appropriate response would be for major Internet Security firms like Norton, AVG and McAfee to decide to classify it as a security threat and automatically prompt users to remove it from their systems with a description of Bing's defects similar to that made available to explain the threat caused by other security threats it flags from tracking cookies ot phishing websites to trojans. These companies aren't required to determine that software is illegal. They are simply in the business of identifying stuff on your computer or the Internet that you don't want. Malware status is a matter of opinion, so long as the basis of that classification is disclosed, and these companies would be well within their rights to classify Bing as malware based on what it does.

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Bullying and Cyber Bullying

A few notable facts about bullying and cyber bullying:

1. "[A]s few as 10 percent of bullying victims are cyber-bullied. Meanwhile, a study of fifth, eighth and 11th graders in Colorado that same year found that they were more likely to be bullied verbally or physically than online." About a quarter of all kids are bullied in the old fashioned meatspace way.

2. Most bullies learn to be bullies from experience as victims themselves: "72 percent of children who were physically abused by their parents became a bully, a victim of a bully or both." Most bullies are both victims and perpetrators, as are many victims of bullying, although generally not both in the same relationship.

3. "[N]early 50 percent of American workers have experienced or witnessed bullying in the workplace, . . . 80 percent of workplace bullying is legal - and and 72 percent of bullies outrank their targets."

4. Bullying may trigger suicide, but generally this happens in cases where the victims were already at grave risk for suicide from other factors.

5. Active efforts to control bullying can significantly reduce it, but probably not eliminate it.

Has Feminism Narrowed Our Understanding Of Bullying?

The article cited doesn't discuss it, but one way to conceptualize both domestic violence and child abuse is as a cycle of bullying behavior that encompasses all of the domains of work, home and school.

Japanese culture is quite sensitive to the existence of bullying as a problem at both work and in school, and sometimes spanning over into the home. Whether that is because it is more common there, or because it is conceptualized that way is hard to tell.

American cultural responses to bullying type behavior through sexual harassment and domestic violence lenses, a gender specific way of thinking that may go all the way back intellectually to 19th century culture of honor concepts, while effective in the domains targeted, may be preventing Americans from seeing the issue in a holistic way, or from a mental health as well as a criminal justice and private litigation perspective.

Bullying Compared To Gang Violence

Another, overlapping but not identical area, where there is a large overlap between the class of likely perpetrators and the class of likely victims is gang violence, which is probably the most variable component of the violent crime rate in the United States, rising and falling much more than other kinds of violent crime (e.g. impulsive assaults by people with drinking problems or domestic violence).

The insularity of gang violence is one of the reasons it is not addressed more assertively by the criminal justice system. Sorting out honor among thieves isn't easy for law enforcement to do.

A very large share of all murders and firearm assaults, and even even larger share of all murders and firearm assaults during periods when murder rates are high (particularly the subset of unsolved murders) appear to involve violence related to gang membership perpetrated with other gangs or member's of one's own gang as targets (and other victims being mere bystanders caught in the crossfire). The motives for gang violence include vigilante justice, establishment of territory, opportunistic raiding for loot, suppressing criminal justice system involvement, and reputation building to prevent further challenges to gang authority.

Much of this violence can be conceptualized as social, rather than psychological in origin, like the violent acts carried out by soldiers in furtherance of a sovereign's direction, although it is also true that a disproportionate share of gang violence appears to be carried out by the minority subset of gang members with mental health factors, some hereditary, that particularly predispose them to it.

Indeed, one can see gang violence as an apolitical version of terrorism. Terrorism is socially organized and motivated violence committed by non-governmental groups with political ends. Gang violence is committed by semi-sovereign non-governmental groups that don't aspire to genuine sovereignty seeing the legitimate government as too daunting to overcome outside their narrow space of organized criminal activities carried out for profit and personal safety.

Conceiving of gang violence as a fundamentally social activity provides insight into what will and will not work in the criminal justice system to reduce violent crime associated with gang violence. On one hand, a "sociopath" (i.e. someone who engages in anti-social behavior because it is acceptable or even required within the norms of his social context) may be redeemable in a way that a "psychopath" (i.e. something who is congenitally without a conscience psychologically), may not be. Governor Ritter's pardon of Reverend Kelly in December was an example of that kind of redemption being accomplished in real life. On the other hand, incarceration that is draconian relative to personal culpability (e.g. in the case of felony murder sentences) may work because they disrupt the social entities (gangs) that drive members to act in sociopathic ways.

If one is looking at social context, rather than individual culpability, as being the key to suppressing gangs, the natural next step is to consider non-traditional sentencing options and penal management methods that can disrupt gangs and put convicted gang members into a new social context with mainstream norms, without expensive overkill use of incarceration. The dynamics involved (and their intractability) are explored, for example, in "The Good Girl's Guide To Getting Kidnapped" (2010) by Yxta Maya Murray (who is also a law professor), in which a young woman with deep ties of Los Angeles gang life struggles between success in that context and success in the contexts of the middle class establishment. It is a young adult book that pulls no punches and is assiduously committed to showing rather than telling, and leaving morals open ended rather than resolving the issues.

Addressing the motivations of gang violence in sentencing in a way conscious of its social context, through the criminal justice system, which usually defines crime in the context of isolated individuals without much thought to context, may also be the key to really making progress in addressing racism in the criminal justice system, as a large share of all disproportionate involvement of racial minorities in the criminal justice system in related to gang affiliated crime. Indeed, given the ubiquity of gang related crime in high poverty minority communities, one of the big crimological and sociological question may be not "why do high poverty minority communities have so much criminal gang activity?," but "why do high poverty Anglo communities seem to lack significant criminal gang activity?" Criminal gangs, of couse, used to be common in immigrant communities in the United States, particularly those involving Catholic immigrants in the 19th century, but that American mafia is almost gone now and while there are exceptions, this does seem to be the case.

READ MORE - Bullying and Cyber Bullying

Annual Reports In A New Year

Yes, the New Year really began on Saturday, and I've already made one post this year already, but this is the first business day of the New Year. It is time for annual reports.

Looking backwards, it means that I have a tax return to prepare, which, as someone who is self-employed, is non-trivial. Also, while I have no one to whom I must report my financial results other than my dear wife, that is ample reason to prepare a full set of financial statements at the same time. And, it is also the time of year, since I have all the other paperwork in hand, when I review my spending for the past year and prepare a budget for the coming one. This year, as a sole practioner, that budget will again include both a personal budget as always, and a business plan.

It is also time to look backwards and forwards with this blog in mind. It is a notable little spot not too far out on the "long tail" of the blogosphere. As the sidebar shows, I made about 750 posts in 2010, about two posts per day, or three per business day, depending on how you measure it. I post less on weekends and holidays, but don't stop entirely. This is fairly typical apart from the burst of posts in my first year. The total number of posts through the end of 2010 was 5085. In 2010, per sitemeter, this site had 74,825 visits (an average of 205 per day) that produced 108,484 page views. This is about on part with a B list law professor's or academic blog.

Google loves this site, putting it on the first page of search results for a bizzare mismash of search queries and driving a large share of its traffic. Some of the most searched posts include one on the fraud in the Rich Dad, Poor Dad books, a post entitled How Safe Are Motorcycles (accident rates for motorcycles have risen since I wrote that post despite a general trend towards improved traffic safety), a post on Racism In Mississippi, posts on the Shane Company bankruptcy (which it recently emerged from) and the Lehman Brothers bankruptcy, a post on a ballot issue in 2010 to require bail bonds in more circumstances, a post on "Republican criminals," a post on Creationist Kent Hovind's tax fraud conviction, a post on Gnostic Christian religious history, a post arguing against urban planning, a post on Louisiana's unfortunate odds in its war with the sea, a post on a replacement for the A-10 close air support aircraft and a post on the accuracy of artillery. This drives a global audience.

Technorati rates this blog as 7104th of all blogs with an "authority" rating of 437 which is based largely on citations from other blogs.

Largely as a result of my posts on military affairs, this post is cited on both right wing and left wing political blogs more evenly than most. I get referrals from both Daily Kos and the Free Republic. One post was licensed to the British War College for use in their curriculum. This blog won a Best of Westword award in 2007.

The site has ten Blogger followers, is part of the LeftyBlogs feed, and is also syndicated commercially (in an arrangement that is currently economically marginal). I have been told in meatspace that a number of my relatives are regular readers. I also have readers in the state capitol and in the Denver media commmunity. And, of course, there are about half a dozen people who regularly leave comments and about as many more who frequently e-mail me or communicate with Facebook with me regarding posts, or regularly link to my posts in their own blogs.

This blog is weak on copyediting, is skimpy on graphics, is devoid of videolinks and audiolinks which I personally rather dislike in other people's blogs, and is eclectic. I tend to write in paragraphs, rather than pithy pot shots (although sometimes those posts are too tempting to resist). I write on Colorado Politics, national politics, economics, legal issues, science, technology, military affairs, comics, pre-history, linguistics, daily life, parenting, and a variety of other subjects. As I've noted earlier, the main reason I blog is to prevent my basement from filling up with hard to access bankers boxes full of little scraps of paper with ideas written on them and newspaper clippings. I've had great success on this front, largely reducing my little scribblings to a few bound idea journals a year.

I have warded off one cease and desist letter alleging a trademark violation, and have so far escaped the Righthaven/Denver Post/Associated Press anti-blog lawsuit campaign (of which Know Your Courts is the most recent casaulty, and Colorado Pols was another recent target), probably due to some combination of being judicious in my quotations of Denver Post news stories, the fair use character of how I use that material, and the fact that as a lawyer, I can defend myself in court competently and cheaply if I must (although it is comforting to know after reviewing my insurance policies that my insurance company has a duty to defend me in blogging related lawsuits as well). Still, as a past member of the Society of Professional Journalists myself, I could, like Colorado Pols, live without the Denver Post and go directly to the sources and not given them credit for posts suggested by their stories, or link driven traffic, if I needed to do so or wanted to do so.

I've also so far avoided defamation claims despite the fact that I make a point of identifying people who have done disreputatable things by name compared to many other commentators, something that I attribute mostly to the fact that I disclose my sources and write pretty much exclusively about public figures and matters of public concern, which is insulation from liability under the New York Times reckless disregard standard. I've certainly made inadvertant mistakes in posts, of course, and I am generally happy to have those corrected in comments or even with updates in a post or follow up post if the issues are brough to my attention and I agree that I made a mistake.

I am ever vigilant against comment spam and spend perhaps an hour or two every week or two trying to pare it back. There is certainly some of it on this blog, and I don't police old posts as vigilantly as I do new ones. But, as of the end of the year, I was comment spam free going back at least six months, so the noise to signal ratio in the comments hasn't been too bad. There is no commercial advertising on this blog itself, although I could easily arrange to have it, and aside from the free blogger system that I use, I receive very little swag (although I am open to offers) and so far have not received any cash compensation for blog posts since I discontinued my contract with Colorado Confidential (now called the Colorado Independent), although I hope that syndication may change that equation.

Generally, when I have potential conflicts of interest with clients related to posts (or have a client with a direct interest in a matter that I might post about) I don't post at all. Those conflicts and direct interests vary from time to time.

I get a quite slow, but steady stream of potential clients from this blog, a good share of whom I must turn away because I am not licensed to practice law in their jurisdiction or because their cases are not economical for me to bring at my hourly rate or on a contingent basis (which I often don't have the deep pockets to make possible even when cases do have merit and potentially large payouts), despite the fact that the cases brought to my attention often do have merit. I get far more cases from my Facebook page and Linked In than I do from this blog. I often end up referring those cases generated by this blog that are uneconomical to litigate with a lawyer to an approriate governmental regulator and in rare cases to a non-profit or other attorney who can economically handle such cases.

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Denver Post Copyright Enforcement Still Sucks

Jason Salzman explains the state of the ongoing effort of the Denver Post and other newspapers to use the legal system to protect copyrights in freely available content, republished in part under fair use standards in many cases, with the help of draconian copyright law penalties. Its dubious litigation strategies are managed by Righthaven, the Las Vegas based law firm coordinating the effort, which is to a great extent a war on blogs.

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