As my facebook network mushroomed to over 300 friends I realized that the breadth of my facebook network was limiting its depth. There were things I would like to update my friends about, but did not feel like sharing with all of my fbf’s (facebook friends, not to be confused with bff’s). Thus began the unfriending experiment, or RIF (reduction in friends) [...]]]> Too many friends. This in not a problem that most of us would have considered before the phenomenon of social networking, but it is real enough that “unfriend” and the gerund form “unfriending” have not only made it into the New Oxford American Dictionary this year, “unfriend” was named the 2009 Word of the Year.

As my facebook network mushroomed to over 300 friends I realized that the breadth of my facebook network was limiting its depth. There were things I would like to update my friends about, but did not feel like sharing with all of my fbf’s (facebook friends, not to be confused with bff’s). Thus began the unfriending experiment, or RIF (reduction in friends) if you prefer.

My first approach was to unfriend everyone who I believed also had too many friends. Anyone with 800 fbf’s is simply not discerning enough for my liking, and I did not consider the fact that this lack of discernment may have been the only reason they were friends with me to be particularly redeeming. The first wave of unfriending was satisfying, but it left me wanting more (well less actually).

Next to go were professional acquaintances who did not seem to use facebook very much. Still too many friends, hard choices would need to be made. I unfriended several people that I genuinely like in the real world, but who use facebook in ways I don’t care for – the main one being to post links to their twitter feeds or blog posts.

By this stage I was down under 200 and I realized that if I nixed all of the spouses of friends I would be able to streamline even further. Old school acquaintances who I had never much cared for were the next victims of this online massacre. They probably should have been the first, but I was in a sentimental mood when I began. My unfriending mania reached its peak when I realized that I was in shooting distance of 100. Some arbitrary choices were made and all of a sudden I was down to a manageable 99 friends. Mission accomplished.

None of my unfriended friends have complained, I expect few have even noticed. I post more regularly to facebook now and read my remaining friend’s posts with more interest. In fact, I am so happy with my small circle of facebook friends that I am thinking of adding a few more.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor [...]]]> During the 2008 election, Democrats effectively used Web 2.0 platforms to garner interest in the campaign and win supporters.  President Obama has been widely hailed as the first “Tech President,” and he seems to have trounced the Facebook landscape.  To date, President Barack Obama has over 6.6 million Facebook friends, while Sarah Palin only has 848, 614 Facebook pals and Mitt Romney has 70, 130.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor now that they are in the minority.  AMERICAblogs’ John Aravosis worries that Democrats have ceded their online advantage.

No matter the current political victor in this social media landscape, Government 2.0 is here to stay.  It surely has great potential to shine light on government policymaking and to marshal public participation, especially from people who otherwise wouldn’t bother getting involved with government policymaking.  Adding the President as a friend on MySpace and joining live chats may seem to be a relatively costless endeavor as compared to writing letters or commenting on agency rulemakings.  But Government 2.0 also poses privacy risks: social media sites not only give government access to people’s policy insights but also access to all of individuals’ social media data, such as their videos, photos, walls musings, “Top 25 things you don’t know about me” lists, and the like.  Soon, I will be posting on SSRN a draft of my essay “The One-Way Mirror: Enhancing Participation and Securing Privacy for Government 2.0″ (forthcoming George Washington Law Review) and hope to get your feedback.

No idea? Here’s some help.

Answers follow the jump.

According to a new study, seven percent of U.S. workers are self-employed, and eleven percent of manufacturing workers are at small firms.   The [...]]]> Quick: what percent of the U.S. manufacturing workforce labors in workplaces of twenty employees or less. What percent of all workers are self-employed?

No idea? Here’s some help.

• 18 percent of the British manufacturing workforce labors in small firms, and 15 percent of all workers are self-employed.
• 13  percent of the German manufacturing workforce labors in small firms, and 12  percent of all workers are self-employed.
• 31 percent of the Italian manufacturing workforce labors in small firms, and 26 percent of all workers  are self-employed.
• 18  percent of the French manufacturing workforce labors in small firms, and 9  percent of all workers are self-employed.

Answers follow the jump.

According to a new study, seven percent of U.S. workers are self-employed, and eleven percent of manufacturing workers are at small firms.   The US, contrary to common belief, is not a nation of small businesses.  We’re basically last in small-business employment, research, and enterprise  among the sample of countries studied.

This finding leads me to question the common claim that the large-firm, Delaware-centric, focus of corporate law scholarship and teaching ignores the real world.  To the extent that most employees are found at larger firms, and (compared to other countries) our economy is not really founded on small firm development, the relative paucity of law about the governance of small firms makes some sense.

Now this isn’t to say that economic growth theory ought to focus on established, larger firms. This summer, I was at a conference in which I heard the claim that a very, very small number of new firms (less than 100) drive most of economic growth in the country.  Studies of entrepreneurship, if this theory holds, ought to focus on increasing the number of these small, high-growth firms by figuring out what makes them tick.   Doctrinal reforms (tort, tax, etc.) might be crucial.

That data supporting such a focus on exceptionally high-growth small  firms feels weak to me.  The best case I can see is anecdotal, and summed in this video about the explosive growth in  social media. And to think, social media is all about men checking out pictures of women. Warning: before starting the video, turn off your sound. It will be mildly less irritating.

(H/T: Growthology)

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook’s Beacon: News Feeds All Over Again?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

* Facebook — the New DoubleClick?

* Facebook Listens and Responds

* Facebook’s Beacon, Blockbuster, and the Video Privacy Protection Act

A class action suit was initiated against Facebook, and recently, a settlement agreement has been reached.  According to the WSJ:

Facebook Inc. said Friday it settled a class-action lawsuit related to its Beacon Web product, a controversial service that displayed actions that users took on other Web sites back on Facebook.

As part of the settlement, which is pending approval [...]]]> A while ago, I wrote a lot about Facebook’s Beacon on this blog:

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook’s Beacon: News Feeds All Over Again?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

* Facebook — the New DoubleClick?

* Facebook Listens and Responds

* Facebook’s Beacon, Blockbuster, and the Video Privacy Protection Act

A class action suit was initiated against Facebook, and recently, a settlement agreement has been reached.  According to the WSJ:

Facebook Inc. said Friday it settled a class-action lawsuit related to its Beacon Web product, a controversial service that displayed actions that users took on other Web sites back on Facebook.

As part of the settlement, which is pending approval in the U.S. District Court of the Northern District of California, the social-network concern will shut down the Beacon service, which it has been phasing out but which is still being used by a small number of Web sites, according to a Facebook spokesman.

The company will also pay $9.5 million to create a foundation to fund products that promote online privacy, safety and security, the spokesman said. The settlement was submitted to the court late Friday evening.

“This is the new JuicyCampus,” says a note at Campus Gossip, which boasts campus-specific message boards for hundreds of colleges and encourages anonymous and racy barbs such as “These Fellas got herpes,” with a list of names attached. Going even further than its predecessor, there’s also a photo section where students can post embarrassing pictures and videos of others.

The site is planning a back-to-school marketing push, including a happy hour near Arizona State University where a rap artist named Sabotage will perform a song about the pleasures of campus gossip.

Another site, CollegeACB (the letters stand for Anonymous Confession Board), [...]]]> A while ago, the notorious college gossip website, Juicy Campus, bit the dust.  But according to an article by Jeffrey Young in the Chronicle of Higher Education:

“This is the new JuicyCampus,” says a note at Campus Gossip, which boasts campus-specific message boards for hundreds of colleges and encourages anonymous and racy barbs such as “These Fellas got herpes,” with a list of names attached. Going even further than its predecessor, there’s also a photo section where students can post embarrassing pictures and videos of others.

The site is planning a back-to-school marketing push, including a happy hour near Arizona State University where a rap artist named Sabotage will perform a song about the pleasures of campus gossip.

Another site, CollegeACB (the letters stand for Anonymous Confession Board), paid the defunct JuicyCampus $10,000 to redirect visitors from its Web address to CollegeACB.

For those who want a first-hand look at these sites, the Campus Gossip site is here and the CollegeACB site is here.  I’m quoted in the article, as is co-blogger Danielle Citron:

Internet shaming creates an indelible blemish on a person’s identity,” wrote Daniel J. Solove, a professor of law at George Washington University, in his 2007 book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). “It’s similar to being forced to wear a digital scarlet letter or being branded or tattooed. People acquire permanent digital baggage. They are unable to escape their past, which is forever etched into Google’s memory.” . . . .

“I don’t see why it has to be that way,” the law professor told me in a recent interview. “Just like when you drive, it’s not a free-for-all,” he added, equating the current laws governing online forums to a road without traffic lights or stop signs. “It’s like if we looked at the roads and said, There’s just nothing to be done—let’s just abolish all rules of the road.” . . . .

Danielle Citron, a law professor at the University of Maryland at Baltimore, said she hoped that stamping out harassment on campus-gossip Web sites would be considered a matter of civil rights.

She makes the case in an article published in the Michigan Law Review this year called “Law’s Expressive Value in Combating Cyber Gender Harassment.” In it, she argues that law-enforcement officials fail to take seriously complaints about online anonymous comments, and that using “civil-rights remedies” may be the most effective way to pursue such acts.

“Women should not have to wait until cyberharassment fulminates into physical violence for law enforcement to address it,” she wrote. “A civil-rights agenda … would demonstrate that the Internet is not the lawless Wild West, just as court settlements and state legislation made clear that the home does not insulate abusing husbands from societal intervention.”

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google [...]]]> A model named Liskula Cohen was being attacked on a blog called Skanks in NYC.  The author of the Skanks blog was anonymous.  Kashmir Hill reports:

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.

Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.

CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:

CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.

The Skanks in NYC raises a lot of interesting issues.  I’ll tackle a few in this post.

1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity.  This behavior indicates she was using the lawsuit only to unmask the blogger.  I agree with CyberSLAPP that such a practice should be restricted.

2. Did the court properly reveal Port’s identity? I believe that the court used too low a standard in revealing the blogger’s identity.  The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.”  This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss.  While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers.  I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005) (I blogged about it here).

3. Does Port have a cause of action against Google? I don’t think she’s got much of a case.  Google was complying with a court order.  However, over at PogoWasRight, Dissent raises the interesting point that Google had a rather anemic defense of Port’s anonymity.  Could Google be liable for not doing enough to defend Port?  Maybe, as EFF attorney Matt Zimmerman notes in Dissent’s post, if Google didn’t notify the anonymous blogger and give her a chance to respond.  Beyond that, though, I’m not sure that there’s much of a case against Google, but there may be facts I’m not aware of that would change my opinion.

4. Does Port have a cause of action against Cohen for using the legal process to reveal her identity? A better defendant than Google might be Cohen.  Port may be able to sue Cohen, perhaps for abuse of the legal process, if Port can prove that Cohen initiated a frivolous action solely to unmask her.  The revealing of an anonymous blogger’s identity is a privacy invasion in my opinion, because it links speakers to things they said that they don’t want to be connected with their true identity.  The use of legal process and obtaining of a court order might provide shelter to Cohen unless Port could prove it was just a ruse to reveal her identity.

5. How should courts protect anonymous bloggers? In addition to using the summary judgment standard, courts should require a plaintiff who finds out the identity of an anonymous blogger to keep it confidential until it absolutely must be revealed to the public.  Courts should enforce this via a protective order. A lawsuit can proceed quite far before it is necessary to reveal a litigant’s name to the general public.

Moreover, plaintiffs should be prohibited (to the extent possible) from using unmasking the identity of an anonymous blogger as a bargaining chip in settlement negotiations.

However, in the end, if a blogger has anonymously invaded a person’s privacy or defamed that person, then the blogger should be held responsible.  I fully support a person’s ability to sue for privacy violations or defamation.  Anonymity shouldn’t be a shield for hurting other people and committing torts (or crimes).  The difficulty is in robustly protecting people’s First Amendment right to speak anonymously and preventing harm to people from invasions of privacy and defamation.

For more on the Skanks case, see this other post by Kashmir Hill discussing the rights of the Skanks blogger.

For more on the issue of blogging and anonymity, see also this story on CNN about the coming-out stories of anonymous bloggers.  I have a quote in it, and the reporter kindly linked to The Future of Reputation.

Over at the New York Times Bits Blog, Jenna Wortham writes:

According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.

The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)

According to [...]]]>

Over at the New York Times Bits Blog, Jenna Wortham writes:

According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.

The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)

According to the report, most employers did their research on applicants by using Facebook.  I wonder whether they respected the applicants’ privacy settings.  If the applicants limited the access of their profile to a select group of friends, and the employer accessed that profile, then the employer might find themselves at odds with the Computer Fraud and Abuse Act — with possible criminal penalties!

What leads to job rejections?  Photos!  Photos involving nudity, drink, and drugs are the most frequent job killers.

As I discuss in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, people must learn to be more careful about what they post about themselves and others or else they will face serious consequences and lost opportunities.

In an earlier post regarding college admissions officers researching applicants online, I argued that most lack guidelines for how they conduct such research and for how they use the information they find.  These questions also pertain to employers:

* Should such information be used? When?

* How heavily should it be relied upon?

* What kinds of things should negatively impact an applicant? Information about sex life? Drug use? Drinking? Bad behavior?

* What steps should be taken to make sure that the information was accurate?

* Should a distinction be made between information that people post about themselves and information that others have posted about them, perhaps invading their privacy without their consent?

* What steps should be taken to make sure that the information used in fact relates to the applicant and not to somebody else with the same name?

* Should people be notified that information online was used against them and be given an opportunity to be heard to explain it?

Worries about the “death of privacy” have been prevalent for some time. We increasingly lack control over [...]]]> As they follow the fascinating and heartening “Twitter Revolution” in Tehran, commentators worry that “the regime is prepared to detain dissidents — reportedly using Facebook and Twitter to locate them.” Yesterday also saw new reports of controversy over domestic surveillance by the US National Security Agency. Apparently the “agency routinely examined large volumes of Americans’ e-mail messages without court warrants.” Commentators like Glenn Greenwald and our own Dan Solove have done a great job explaining the legal details of NSA surveillance. I just want to comment on some of broader social trends that explain the upward ratchet of surveillance around the world.

Worries about the “death of privacy” have been prevalent for some time. We increasingly lack control over (or even awareness of) the digital profiles kept about us by businesses and governments. Another form of privacy—that at the core of the public-private divide—has also been in decline over the past couple decades. As the essays in Freeman and Minow’s book Government by Contract show, “privatization” is often less an arm’s length transaction between government and business than a veritable marriage of institutions. The recent explosion of public-private partnerships in the finance and auto industries further erodes the distinction between government and business. As William J. Novak’s essay in Government by Contract observes, much of what we think of as purely private markets are creatures of state action:

Robert Lee Hale contended that the sharp theoretical separation of public and private obscured the actual proactive role of public power in structuring the so-called private bargains that had such an immense effect on the distribution of wealth and power in American society. . . . [T]he private sphere is positively constructed by law and government and is consequently always suffused with (as opposed to immune from) sovereignty, force, violence, and coercion.

This is particularly true of communications technologies, which are often of great interest to government regulators. As Michael D. Birnhack and Niva Elkin-Koren explain in their brilliant article The Invisible Handshake, new and hidden exchanges of information for power are key to government-business relations:

Law enforcement agencies seek to enhance their monitoring capacity and online businesses seek to prevent fraud and combat piracy while strengthening their ties with authorities. . . . The invisible hand [of market-based communications] turned out to be very useful for the State, and it is now being replaced with a handshake, which, likewise, is invisible. . . . The use of private parties for executing government roles may create an unholy alliance between governments that wish to exercise their power and large online players that seek to maintain and strengthen their dominant role in the market.

Birnhack and Elkin-Koren were prophetic. The kind of government-business alliances they feared have become de rigeur in the national surveillance state. Both Chris Hoofnagle and Jon D. Michaels have described the development in some detail. Michaels’s story of FedEx is indicative of the larger trend:

[After FedEx's] CEO announced his company’s commitment to cooperating with the government “up to and including the line on which we would be doing a disservice to our shareholders” . . . FedEx has received a range of government perks. For instance, FedEx has been afforded special access to government security databases, presumably giving it a range of advantages over non-cooperating competitors. It has also been awarded a prized seat on the FBI’s regional terrorism task force (it is the only private company so represented) and thus has even more insider access to international security threats, again presumably well before its competitors receive such warnings. Moreover, FedEx has received an exceptional license from the State of Tennessee to develop an internal police force . . . .

Hoofnagle proposes that “the Privacy Act should apply to private sector companies that sell information to the government,” not just to the government itself. It seems to me that the first step to wisdom in this area is to realize that whatever we fear from direct government collection of data, we should fear from ostensibly “private” third parties that do the same. Otherwise, the ailing “public/private” divide could cause many more “deaths” of individual privacy.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the [...]]]> The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, Yahoo had not responded but the undesired advances from unknown men continued; Barnes again asked Yahoo by mail to remove the profiles. Nothing happened. The following month, Barnes sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return.

The court held, as expected, that Section 230 immunizes Yahoo from Barnes’s claim that it was negligent in removing the content.   This is in line with many courts that have interpreted the scope of Section 230 immunity.

The interesting part of the court’s holding involves Barnes’s promissory estoppel claim.  For non-lawyers, promissory estoppel is a doctrine that provides that when one makes a promise to another person, and that person relies on that promise, then the promise will be treated akin to a contract.  Ordinarily a contract requires bargaining and consideration, which are often lacking with mere promises.

Barnes contended that she relied on Yahoo’s promise to take down the tortious profiles and did not pursue other avenues of relief because of her belief that Yahoo would fulfill its promise.  The court held that Section 230 didn’t immunize Yahoo against the promissory estoppel claim as it had against Barnes’s tort claims:

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.

I agree with this conclusion.  Promissory estoppel and contract claims differ from tort claims such as negligence, defamation, or invasion of privacy.  Indeed, such claims are treated very differently under the First Amendment, with tort claims receiving full scrutiny and contract/promissory estoppel claims receiving virtually no scrutiny.  In a recent paper, Neil Richards and I discuss why First Amendment law takes such wildly divergent approaches: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).  We also argue that the line shouldn’t be drawn based on the formalist distinction between tort and contract, as this distinction readily breaks down.  For example, we conclude that the tort of breach of confidentiality should be treated akin to contract/promissory estoppel claims rather than tort claims such as defamation and public disclosure of private facts.

Back to the case.  One of the potential problems with the court’s holding is that it may deter ISPs and other sites from having an explicit policy for removing tortious material.  Yahoo could be penalized with potential liability and a loss of its immunity by having a removal policy.  An ISP or site that has no such removal policy and that would say “get lost” to people who request takedowns would not be subject to promissory estoppel liability.  Is it fair to penalize those who have such policies?

The court notes how its holding is limited:

[A] general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.

In other words, Yahoo is liable not because it had a general removal policy, but because it made specific promises to Barnes.

Eric Goldman argues that policies can readily be redrafted.  He notes that “websites can easily manage their potential exposure to this claim by picking their words carefully.”

I hope that the Ninth Circuit’s holding doesn’t result in various sites qualifying all their promises and weakening their policies in the hopes of avoiding liability.  One of the problems with situations faced by Barnes and others is that the websites and ISPs that have the offensive information posted about victims are often not in any customer relationship with the victims.   Barnes did not contact Yahoo for a regular customer complaint with its service — she was hurt by a Yahoo customer.  The removal policies at many sites and ISPs help people who are often non-customers.  There is no particularly strong incentive for such sites and ISPs to respond to such complaints as with customers who could threaten to leave.

The court’s holding, though correct, might encourage ISPs and sites to further attempt to hide under Section 230’s umbrella by weakening promises to take down harmful content.  And that’s a problem because the original goal of Section 230 was to encourage sites to monitor and take down offensive and hurtful content.  Now the law seems to be saying loudly: You have no responsibility to protect people from harmful content about them.  If you do nothing, then you’re not liable because of Section 230 immunity.  If you promise to protect people, then you might be liable.

This reminds me of Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995), where the court held that an ISP could be liable for content provided by another because it had a policy of monitoring content.  This was the very case that Congress wanted to overrule when it passed the CDA 230.

Ironically, the law of Section 230 immunity seems to have moved closer to Stratton Oakmont with the Ninth Circuit’s holding (of course, very significant differences still remain).  This isn’t the fault of the Ninth Circuit’s holding, which strikes me as quite valid.  Rather, it is due to the perverse implications of the overreaching interpretations of CDA immunity that most courts have now adopted, making such immunity near absolute for tort claims.

For further discussion of some of the other issues in the case, see Paul Levi’s post at Consumer Law & Protection Blog and Eric Goldman’s post at Technology & Marketing Law Blog.

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating [...]]]> From tomorrow through Thursday, Concurring Opinions will be hosting a number of scholars invited to discuss Danielle Citron’s work Cyber Civil Rights. Responding to controversies over online attacks, Citron argues the following:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations. . . .

Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond. General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

As I’ve noted before, I think this piece breaks new ground in applying venerable laws to the online environment. In this cyber-symposium, we propose to discuss the following issues:

What can the law do to respond to these threats?

How we deter harassment while promoting legitimate speech?

How do we balance the privacy rights of speakers and those they speak about in the new communicative landscape created by sites like AutoAdmit, Juicy Campus, Facebook, and anonymous message boards?

A list of scholars invited to discuss these issues appears below:

Ann Bartow

David Fagundes

Michael Froomkin

Nathaniel Gleicher

James Grimmelmann

Orin Kerr

Nancy Kim

Susan Kuo

Daithí Mac Síthigh

Helen Norton

David Post

David Robinson

As co-organizers of the online symposium, Danielle, David Hoffman, Deven Desai and I welcome these guests and look forward to participating in the discussion. We have decided to default to “no comments” for this cyber-symposium. It was a tough decision, but ultimately we tended to feel that, for this topic in particular, the costs of editing and/or responding to abusive or off-topic comments would likely be higher than the benefits of our usual default to openness.

As recent controversies have shown, it’s easy for online mobs to inflict real injuries on their victims–and women bear a disproportionate share of the abuse. Citron argues that “acting against these attacks . . . helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.” We look forward to an animated and insightful discussion on how to balance liberty, equality, and privacy online.

Thousands of indignant members either canceled their accounts or created online petitions. Among them were more than 64,000 who joined a group called “The People Against the new Terms of Service.”

On Monday, Facebook Chief Executive Mark Zuckerberg tried to quell the controversy by saying the company’s philosophy is that “people own their information and control who they share it with.”

But members were not appeased because the site did not fix its Terms of [...]]]> The other day, I blogged about Facebook’s change in its Terms of Service, indicating it would keep user data potentially forever. In response to a public backlash, Facebook is restoring its old Terms of Service and will work to revise its Terms of Service to better define user rights. From CNN:

Thousands of indignant members either canceled their accounts or created online petitions. Among them were more than 64,000 who joined a group called “The People Against the new Terms of Service.”

On Monday, Facebook Chief Executive Mark Zuckerberg tried to quell the controversy by saying the company’s philosophy is that “people own their information and control who they share it with.”

But members were not appeased because the site did not fix its Terms of Use. The company, in its post Wednesday, said it was returning to its previous Terms of Use because of the “feedback” it had received.

“As Mark expressed in his blog post on Monday, it was never our intention to confuse people or make them uneasy about sharing on Facebook,” company spokesman Barry Schnitt said in a blog post. “I also want to be very clear that Facebook does not, nor have we ever, claimed ownership over people’s content. Your content belongs to you.”

Schnitt said the company is in the process of rewording its Terms of Use in “simple language that defines Facebook’s rights much more specifically.”

Facebook continually sparks privacy dust ups, but to its credit, Facebook is quick to respond and reform its policy in response.

There is, however, another argument Zuckerberg raises in response to Facebook’s data retention policy. He writes:

When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message.

Zuckerberg is raising a rather thorny issue involving shared data. Although the “trust us” argument is rather specious, the shared data [...]]]> I blogged earlier about the recent privacy kerfuffle with Facebook’s potentially permanent control over user data. In that post, I critiqued the “trust us” response that Facebook and so many companies make when responding to issues involving the use of people’s data.

There is, however, another argument Zuckerberg raises in response to Facebook’s data retention policy. He writes:

When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message.

Zuckerberg is raising a rather thorny issue involving shared data. Although the “trust us” argument is rather specious, the shared data argument is much more difficult. One of the reasons why Facebook wants to maintain user data even after a user has left Facebook is that a lot of Facebook data is shared between friends. Facebook claims that it doesn’t want to allow users who leave Facebook to permanently delete their data from all parts of Facebook since their data appears on their friends’ Facebook pages. Zuckerberg also mentions the fact that email messages sent from one friend to another leave a copy in a friend’s inbox. One of the thorny issues with digital information is that it is shared.

What should Facebook do when a user wants to remove his or her data from all parts of Facebook, including their data on the pages of their friends? There are several ways of dealing with this:

(a) allow the user to remove it completely wherever it is;

(b) notify the people whose profiles contain the information and seek their consent before removing it; or

(c) not allow the user to remove it.

Facebook appears to have chosen (c). Before attacking or praising Facebook’s choice, consider the following questions:

1. Should you have the right to remove emails you sent from the recipients’ email inboxes or email accounts?

2. If you write a comment to a blog post of mine and then later want me to remove it, should I be compelled to do so? What if your comment is central to a particular discussion thread in the comments, so that removing it will make the discussion thread much harder to follow or understand?

3. If your information is automatically posted on a friend’s Facebook page, and then you leave Facebook, should you have the right to have the information that was put onto your friend’s Facebook page removed?

Regarding #1, I believe that people shouldn’t be able to automatically retract the emails they send to others, so that they disappear from the recipient’s inbox. Regarding #2, this is a thornier issue. I haven’t thought extensively about it, but my instinct would be to delete the comment at the commenter’s request. Regarding #3, which is one of the reasons why Facebook wants to maintain people’s data even after they quit Facebook, I don’t have an easy answer to this one.

What are your thoughts?

This month, when Facebook updated its terms, it deleted a provision that said users could remove their content at any time, at which time the license would expire. Further, it added new language that said Facebook would retain users’ content and licenses after an account was terminated. . . .

The changes in the terms of service had gone mostly unnoticed until Sunday, when the blog Consumerist cited them and interpreted them to mean that “anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later.”

Given the widespread popularity of Facebook — by some measurements the most popular social network [...]]]> Recently, Facebook changed its Terms of Service (TOS). According to the New York Times:

This month, when Facebook updated its terms, it deleted a provision that said users could remove their content at any time, at which time the license would expire. Further, it added new language that said Facebook would retain users’ content and licenses after an account was terminated. . . .

The changes in the terms of service had gone mostly unnoticed until Sunday, when the blog Consumerist cited them and interpreted them to mean that “anything you upload to Facebook can be used by Facebook in any way they deem fit, forever, no matter what you do later.”

Given the widespread popularity of Facebook — by some measurements the most popular social network with 175 million active users worldwide — that claim attracted attention immediately.

The blog post by Consumerist, part of the advocacy group Consumers Union, received more than 300,000 views. Users created Facebook groups to oppose the changes. To some of the thousands who commented online, the changes meant: “Facebook owns you.”

The new and old TOS both state:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

However, the new TOS does not contain the following language that the old TOS contains:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

The Consumerist blog broke the story, which is now being discussed extensively in the blogosphere and news.

Mark Zuckerberg of Facebook responded to these concerns in a blog post:

Our philosophy is that people own their information and control who they share it with. When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this license, we couldn’t help people share that information.

One of the questions about our new terms of use is whether Facebook can use this information forever. When a person shares something like a message with a friend, two copies of that information are created—one in the person’s sent messages box and the other in their friend’s inbox. Even if the person deactivates their account, their friend still has a copy of that message. We think this is the right way for Facebook to work, and it is consistent with how other services like email work. One of the reasons we updated our terms was to make this more clear.

In reality, we wouldn’t share your information in a way you wouldn’t want. The trust you place in us as a safe place to share information is the most important part of what makes Facebook work. Our goal is to build great products and to communicate clearly to help people share more information in this trusted environment.

In other words, Zuckerberg is saying: “We’re not evil. Just trust us!” But this has been the mantra of nearly all companies that handle personal information. What company would say: “Yes, we intend to use your data maliciously and in ways you’ll abhor”?

There are many problems with Facebook’s policy of “trust us”:

1. Facebook could go bankrupt, and creditors might find the data Facebook has stored up to be one of its most valuable assets. These creditors might want to use the data in new and different ways than Facebook has. No company likes to contemplate its demise, so of course, Facebook probably isn’t concerned about what happens in the event it dies — after all, it would be gone and wouldn’t have to deal with any public relations headache or other troubles created by angry consumers.

2. The government can obtain data maintained by third parties very easily — with just a subpoena in most cases. So despite Zuckerberg’s promise that “we wouldn’t share your information in a way you wouldn’t want,” Facebook would have no choice in many instances but to do so.

3. In the past, Facebook has shared people’s information in ways they didn’t want. The privacy dust ups created by News Feeds, Beacon, and Social Ads are some examples. In the future, there’s no guarantee that Facebook will never use data in ways people don’t want. Facebook is struggling to find a way to become profitable. According to CNN:

A big part of the challenge in assigning a valuation to Facebook is that its financial results don’t come anywhere near to matching its runaway success signing up members: The site pulled in estimated revenues of just $280 million last year, and sources close to the company say it didn’t break even.

If using data in a particular way can generate tremendous profit, Facebook will be faced with a dilemma: (a) use data in a way many users might not like and reap the benefits or (b) forgo the use as well as the benefits. If the use of the information is quite lucrative, Facebook might decide to try to weather whatever privacy dust up might ensure — especially if the company is struggling to find a way to be profitable. Moreover, the privacy of past users who are no longer using Facebook is obviously less of a priority to Facebook.

For more good coverage of the story, see Michael Zimmer’s post: “On Facebook, People Own and Control Their Information (Except When Facebook Does)”

[T]he internship-selling racket has slipped the surly bonds of philanthropy and entered the for-profit marketplace. An outfit called the University of Dreams guarantees placement or your money back. Summer-internship fees (the University of Dreams prefers to call it “tuition”) range from $5,499 to $9,499. For 3 percent extra, you can pay on an installment plan. The interns have been placed with firms like Hill and Knowlton and Smith Barney (did a rich, dumb intern start the credit crunch?)

“It’s a huge misconception to say this is a program for rich kids,” Eric Lochtefeld, CEO of University of Dreams, told the Journal. “The average student comes from the middle class, and their parents dig deep.” To [...]]]> Timothy Noah has described the growth industry in internship sales at Slate:

[T]he internship-selling racket has slipped the surly bonds of philanthropy and entered the for-profit marketplace. An outfit called the University of Dreams guarantees placement or your money back. Summer-internship fees (the University of Dreams prefers to call it “tuition”) range from $5,499 to $9,499. For 3 percent extra, you can pay on an installment plan. The interns have been placed with firms like Hill and Knowlton and Smith Barney (did a rich, dumb intern start the credit crunch?)

“It’s a huge misconception to say this is a program for rich kids,” Eric Lochtefeld, CEO of University of Dreams, told the Journal. “The average student comes from the middle class, and their parents dig deep.” To whatever extent that were true, inegalitarianism would shade into encyclopedia-salesman-style exploitation.

Cyberspace appears to be catching up to real space in stratification potential:

Affluence, the online social network for millionaires, a Facebook for elitists that launched late last year[, has] the aim of becoming “the exclusive organisation of the world’s wealthiest people.” . . . A whole segment of internet entrepreneurs are working hard at building exclusive communities like this, online worlds that strike a balance between openness to new members and a hostility to the great unwashed.

A prime example is the social network A Small World, known by those outside its gates as Snobster. The network (which received a large start-up investment from the film producer Harvey Weinstein) relies on cool rather than cash as the determining factor for membership, in an attempt to create that magical mix that keeps many a nightclub in business: brilliant and beautiful side by side with the rich and clueless.

Given the rise of economic policy designed to help the “rich and clueless,” we shouldn’t be surprised by a social network that does the same. From private college admissions counselors to internship sales to lucrative I-banking jobs to bailout-funded bonuses–life’s got a lot of crystal stairs for those at the top and their kids. Fortunately sites like Little Sis and Political Friendster keep some tabs on elite interconnections.

The video that sparked the investigation was captured in a Turin classroom. Four high school boys were recorded taunting a young man with Down syndrome, and hitting the 17-year-old with a tissue box. One of the boys uploaded the footage to Google Video’s Italian site on September 8, 2006.

According to Google, more than 200,000 videos are uploaded to Google Video each day. Under EU legislation incorporated into Italian law in 2003, Internet service providers are not responsible for [...]]]> In Italy, a rather disturbing prosecution is taking place. Google officials, including Chief Privacy Counsel Peter Fleischer, are being criminally prosecuted for a video somebody else uploaded to YouTube. According to an article by Tracey Bentley in the International Association of Privacy Professionals’ The Privacy Advisor:

The video that sparked the investigation was captured in a Turin classroom. Four high school boys were recorded taunting a young man with Down syndrome, and hitting the 17-year-old with a tissue box. One of the boys uploaded the footage to Google Video’s Italian site on September 8, 2006.

According to Google, more than 200,000 videos are uploaded to Google Video each day. Under EU legislation incorporated into Italian law in 2003, Internet service providers are not responsible for monitoring third-party content on their sites, but are required to remove content considered offensive if they receive a complaint about it. Between November 6 and 7, 2006, Google received two separate requests for the removal of the video–one from a user, and one from the Italian Interior Ministry, the authority responsible for investigating Internet-related crimes. Google removed the video on November 7, 2006, within 24 hours of receiving the requests.

Nonetheless, Milan public prosecutor Francesco Cajani decided that by allowing the 191-second clip onto its site, Google executives were in breach of Italian penal code. . . .

Cajani is prosecuting Google as an Internet content provider. Unlike Internet service providers, Italian penal code states that Internet content providers are responsible for the third-party content posted to their sites. This is essentially the same law regulating newspaper and television publishers.

I’ve been quite critical of very broad immunity for websites or ISPs that host defamatory or privacy invasive content of others. See Chapter 6 of The Future of Reputation. However, I find this Italian prosecution extremely troubling. And if I find it troubling, one can only imagine how apoplectic Professor Eric Goldman will be!

First, this is a criminal prosecution, and I’m generally very troubled for criminal prosecutions for defamation or privacy invasions. There might be some limited circumstances where criminal liability is warranted, though I believe that the problem is best deal with through civil liability, not criminal. While the prospect of civil liability can certainly chill speech, criminal law is an even more serious threat, and therefore, it shouldn’t be treated in the same way. Free speech protections should therefore be greater when criminal liability is involved.

Second, Google is not the content provider here. It shouldn’t be prosecuted as one. Apparently, from the reports (I haven’t seen the specific Italian law), Italy has a law that resembles Communications Decency Act (CDA), 47 U.S.C. § 230, which immunizes a website or ISP for the content posted by others. I agree with this general immunity. However, I believe that if a website or ISP is on notice that content is defamatory or invasive of privacy, then it must take down that material or lose its immunity from civil liability. Under the CDA, as interpreted by the courts, websites and ISPs are immune even after having knowledge that content posted on their sites is defamatory or invasive of privacy. I’ve argued that immunity under these circumstances is going too far. From what I’ve read, Italian law adopts the position I advocate.

But Google complied with the law and took down the videos after being notified. Thus, I don’t understand what Google did wrong. I don’t understand how it can be deemed the content provider. If Google officials can be criminally prosecuted any time a person uploads a defamatory or privacy invasive video to YouTube, it’s hard to see how they can possibly avoid running afoul of the law. YouTube and much of Web 2.0 would pose massive risks of criminal liability.

So as one who has strongly advocated for less immunity for defamatory and privacy invasive material online, even I find Italy’s prosecution of Fleischer and other Google executives to be quite outrageous and unjustified.

If anyone has a link to the Italian ISP immunity legislation in English, as well as more information about the specific criminal charges against Google, please let me know.

Lori Drew, the 49-year-old woman charged in the first federal cyberbullying case, was cleared of felony computer-hacking charges by a jury Wednesday morning, but convicted of three misdemeanors. The jury deadlocked on a remaining felony charge of conspiracy.

After just over a day of deliberation, the six-man, six-woman jury acquitted Drew of three felony charges of violating the federal Computer Fraud and Abuse Act, in an emotionally charged case that stemmed from a 2006 MySpace hoax targeting a 13-year-old girl, who later committed suicide.

Tina Meier, the mother of the girl, shook her head silently from the gallery as the verdict was read.

Prosecutors claimed Drew and others obtained unauthorized access to MySpace by creating [...]]]> A verdict has been reached in the Lori Drew case. Kim Zetter reports:

Lori Drew, the 49-year-old woman charged in the first federal cyberbullying case, was cleared of felony computer-hacking charges by a jury Wednesday morning, but convicted of three misdemeanors. The jury deadlocked on a remaining felony charge of conspiracy.

After just over a day of deliberation, the six-man, six-woman jury acquitted Drew of three felony charges of violating the federal Computer Fraud and Abuse Act, in an emotionally charged case that stemmed from a 2006 MySpace hoax targeting a 13-year-old girl, who later committed suicide.

Tina Meier, the mother of the girl, shook her head silently from the gallery as the verdict was read.

Prosecutors claimed Drew and others obtained unauthorized access to MySpace by creating a fake profile for a nonexistent 16-year-old boy named “Josh Evans.” The account was used to flirt with, and then reject, 13-year-old old Megan Meier. The case hinged on the government’s novel argument that violating MySpace’s terms of service for the purpose of harming another was the legal equivalent of computer hacking, and Drew faced a maximum sentence of five years in prison for each charge.

But on Wednesday, jurors found Drew guilty only of three counts of gaining unauthorized access to MySpace for the purpose of obtaining information on Megan Meier — misdemeanors that potentially carry up to a year in prison, but most likely will result in no time in custody. The jury unanimously rejected the three felony computer hacking charges that alleged the unauthorized access was part of a scheme to intentionally inflict emotional distress on Megan.

When the prosecution rested its case Friday at about 2:00 p.m., defense attorney H. Dean Steward moved for an immediate dismissal, based on testimony that proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.

U.S. District Judge George Wu asked both sides to file written briefs on the issue over the weekend, and allowed testimony to continue in the case.

Why not rule on it now? Judge Wu hasn’t ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not [...]]]> According to Kim Zetter’s account of the Lori Drew trial, Judge Wu has postponed ruling on any of the legal issues until after the jury’s verdict:

When the prosecution rested its case Friday at about 2:00 p.m., defense attorney H. Dean Steward moved for an immediate dismissal, based on testimony that proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.

U.S. District Judge George Wu asked both sides to file written briefs on the issue over the weekend, and allowed testimony to continue in the case.

Why not rule on it now? Judge Wu hasn’t ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not the prosecution, as a matter of law, has failed to prove the requisite mens rea. Why won’t he rule on any of these issues?

The only reason I can think of is that he’s waiting to see if the jury acquits Drew, which then moots the issues. This is the only scenario I can think of in which he won’t eventually have to rule on the motions.

Why not just issue a ruling one way or the other? That’s what I thought judges are supposed to do. Is there something I’m missing here about his judicial strategy?