“The Rise and Fall of Aereo”

Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks. 

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.


If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

“On this site in 1989, nothing happened”

China, the colossus that’s on the verge of becoming the most powerful country the world has ever known, the industrial powerhouse star-struck useful idiots like Tom Friedman say we must emulate, is terrified of a few digits:

Each year, the Communist Party’s censors go to remarkable lengths to prevent Chinese citizens from accessing, or spreading, their memories of what happened on June 4, 1989, when an unknown number of people were killed during a military crackdown on pro-democracy protests in the centre of Beijing. Since Sunday night, even simple numbers like 6 (the month of June), 4 (the date) and 89 have been banned search terms on Chinese social-networking sites.

And so all day today users in China got bizarre replies from their search engines. “According to the relevant laws and policies, the results of your search ‘89’ cannot be displayed,” was the head-shaker I just read on my own screen. Typing “Tiananmen Square” – in English or Chinese – gets the same answer on the popular Sina Weibo site, which boasts over 300 million users. Pity the poor tourist just trying to find the plaza in the middle of the Chinese capital.

Such farces would only multiply throughout Monday’s anniversary. As the day went on, even the stock market news – as well as the online memorial for the Chinese student who was murdered in Montreal – were caught in the censors’ ever-widening nets.

Eventually even “jintian” – the Chinese word for “today” – was a banned search term on such social networking sites, as the powers and weaknesses of those who rule China were simultaneously displayed.


The censors subsequently decided that even some non-words pose a threat, disabling a function on Sina Weibo that allowed users to post a tiny drawing (or “emoticon”) of a candle. Activist Hu Jia was arrested in 2004 after telling reporters he planned to go to Tiananmen Square and light a candle on the 15th anniversary of the crackdown. As of Sunday night, even lighting a virtual candle was impossible.

Facebook and divorce

According to a British legal website, Facebook is cited in one-third of divorce filings:

Facebook is becoming a  major factor in marriage breakdowns and is increasingly being used as a source of evidence in divorce cases, according to lawyers.

The social networking site was cited as a reason for a third of divorces last year in which unreasonable behaviour was a factor, according to law firm Divorce-Online.

The firm said it had seen a 50 per cent jump in the number of behaviour-based divorce petitions that contained the word ‘Facebook’ in the past two years.


The most common reasons for Facebook causing problems in relationships were a spouse finding flirty messages, photos of their partner at a party they did not know about or with someone they should not have been with.

I prefer to think people are filing for divorce because their spouse won’t stop sending them requests to play “Hidden Chronicles.”

The crazy case of Crystal Cox

Forbes on a disgusting case of internet extortion:

Crystal Cox, a Montana woman who calls herself an “investigative journalist” was slapped with a $2.5-million judgment last year for defaming an investment firm and one of its lead partners. Cox had taken control of the Google footprint of Obsidian Finance and its principal Kevin Padrick by writing hundreds of posts about them on dozens of websites she owned, inter-linking them in ways that made them rise up in Google search results; it ruined Obsidian’s business due to prospective clients being put off by the firm’s seemingly terrible online reputation. After Obsidian sued Cox, she contacted them offering her “reputation services;” for $2,500 a month, she could “fix” the firm’s reputation and help promote its business. (In some circles, we call that  ”extortion.”)

Nonetheless, when the outrageously high judgment came down, some bloggers rushed to Cox’s defense, in great part because the judge declared Cox not to be a member of the media in a poorly-written opinion that some interpreted to mean that bloggers generally couldn’t claim legal protections for members of the press. So First Amendment-loving lawyers, including Eugene Volokh of the Volokh Conspiracy and Matthew Zimmerman at the Electronic Frontier Foundation, offered Cox their services in appealing the case and attempting to get a new trial. (They were denied this week, with the judge clarifying that bloggers can be journalists, but that Cox is a serial harasser, not a journalist.) Another lawyer, Marc Randazza had also spoken with Cox about her case; after deciding not to work with him, Cox sent him an email letting him know that she “needed to make money” and was willing to offer him her reputation management services. In fact, she had already bought his domain name — marcrandazza.com. …


She bought the domain name for Marc’s wife, Jennifer Randazza (and has already started dominating her first page of Google results with her hyperbolic posts). When Randazza still wouldn’t buy her services, Cox moved on to a younger member of the family:

“When this didn’t get the desired response, Cox turned to a place where even the lowest of the low would not stoop — she focused her stalkerish attention on my three-year-old daughter and registered NataliaRandazza.com.” [emphasis added]

Via Ken at Popehat, who has been all over this story.  Randazza’s blog is here.

Is there really a bullying epidemic?

Reason‘s Nick Gillespie, writing in The Wall Street Journal, is skeptical:

But is America really in the midst of a “bullying crisis,” as so many now claim? I don’t see it. I also suspect that our fears about the ubiquity of bullying are just the latest in a long line of well-intentioned yet hyperbolic alarms about how awful it is to be a kid today.

I have no interest in defending the bullies who dominate sandboxes, extort lunch money and use Twitter to taunt their classmates. But there is no growing crisis. Childhood and adolescence in America have never been less brutal. Even as the country’s overprotective parents whip themselves up into a moral panic about kid-on-kid cruelty, the numbers don’t point to any explosion of abuse. As for the rising wave of laws and regulations designed to combat meanness among students, they are likely to lump together minor slights with major offenses. The antibullying movement is already conflating serious cases of gay-bashing and vicious harassment with things like…a kid named Cheese having a tough time in grade school.

How did we get here? We live in an age of helicopter parents so pushy and overbearing that Colorado Springs banned its annual Easter-egg hunt on account of adults jumping the starter’s gun and scooping up treat-filled plastic eggs on behalf of their winsome kids. The Department of Education in New York City—once known as the town too tough for Al Capone—is seeking to ban such words as “dinosaurs,” “Halloween” and “dancing” from citywide tests on the grounds that they could “evoke unpleasant emotions in the students,” it was reported this week. (Leave aside for the moment that perhaps the whole point of tests is to “evoke unpleasant emotions.”)


But is bullying—which the stopbullying.gov website of the Department of Health and Human Services defines as “teasing,” “name-calling,” “taunting,” “leaving someone out on purpose,” “telling other children not to be friends with someone,” “spreading rumors about someone,” “hitting/kicking/pinching,” “spitting” and “making mean or rude hand gestures”—really a growing problem in America?

Despite the rare and tragic cases that rightly command our attention and outrage, the data show that things are, in fact, getting better for kids. When it comes to school violence, the numbers are particularly encouraging. According to the National Center for Education Statistics, between 1995 and 2009, the percentage of students who reported “being afraid of attack or harm at school” declined to 4% from 12%. Over the same period, the victimization rate per 1,000 students declined fivefold.

When it comes to bullying numbers, long-term trends are less clear. The makers of “Bully” say that “over 13 million American kids will be bullied this year,” and estimates of the percentage of students who are bullied in a given year range from 20% to 70%. NCES changed the way it tabulated bullying incidents in 2005 and cautions against using earlier data. Its biennial reports find that 28% of students ages 12-18 reported being bullied in 2005; that percentage rose to 32% in 2007, before dropping back to 28% in 2009 (the most recent year for which data are available). Such numbers strongly suggest that there is no epidemic afoot (though one wonders if the new anti-bullying laws and media campaigns might lead to more reports going forward).

After my horrible experiences in high school, I should be right on board with the anti-bullying movement, but I find something deeply off-putting about it.  Maybe it’s the sight of so many of the people who made my junior-high life a living hell preaching about it on Facebook.

Or, it could be the fact that legislators across North America are further trying to limit our personal freedoms.  For the children, you know:

In their never-ending quest to make Connecticut a less annoying place, state legislators — apparently having solved unemployment, crime and school funding — have trained their sights on annoying speech.

bill introduced March 22 by the Senate Judiciary Committee — which is up for a hearing in that committee Thursday — would create the new misdemeanor criminal offense of “Electronic Harassment.” (Note to Dave Barry: “Electronic Harassment” would be an exceptional name for a band.)

A person would be guilty of the crime of “Electronic Harassment” under the following conditions: (1) Transmitting information over any electronic medium (anything from radio to the Web to texting), (2) that is based on a person’s “actual or perceived traits or characteristics,” (3) that causes a person “substantial embarrassment or humiliation within an academic or professional community,” and (4) is done with an intent to “annoy” or “alarm” the person.

Read that carefully, and think about how much First Amendment real estate it covers.

For example … how about this Al Franken column, [actually a Joe Conason column, about Franken’s controversial election to the Senate – DJP] “Rush Limbaugh is still a big fat idiot.” Transmitted electronically? Check. Based on traits or characteristics? Argue amongst yourselves whether they are “actual” or “perceived.” Causing substantial humiliation? If it is possible for Rush Limbaugh to feel humiliation, definitely. Done with an intent to annoy? Oh, at the very least.

Stay clear of Connecticut, Senator Franken — or bring your checkbook, since SB 456 carries up to a $2,000 fine, with the possibility of a year in jail.

For being annoying.

Via the great Ken at Popehat, whose posts about “cyberbullying” legislation are not to be missed.

Skype access ordered

This is the first time I’ve heard about a judge specifically ordering this, but I doubt it will be the last:

A New York judge has ordered that a Long Island mother make her two children available to talk to their father via Skype, an online video conferencing service, as a condition of her move to Florida.

This is the first time such a condition has been made on a case in New York, the New York Law Journalreports. But last year, the New York Times reported that a number of states have begun allowing for “virtual visitation,” giving judges the option to keep non-custodial parents in contact with their children via e-mail, instant messaging and Web cams.

In the New York case, Suffolk County Supreme Court Justice Jerry Garguilo, in Baker v. Baker, ordered that the mother, at her own expense, “will see to it, prior to re-location, that the Respondent, as well as the children, are provided the appropriate internet access via a Skype device which allows a real time broadcast of communications between the Respondent and his children.”

Via Russell Alexander.  A serious question: now that webcam access is available to anyone with a decent internet connection, might this tip the scales toward allowing parents to relocate with children?

What’s going on with the internet today?

Many prominent websites, most notably Wikipedia, are going dark today to protest two ham-handed anti-piracy bills making their way through the United States Congress:

What exactly is blacked out?
The English-language version of Wikipedia is offline and has been replaced with a message related to the anti-piracy legislation going through Congress, SOPA, in the United States. Other language editions of Wikipedia will be unaffected.

Additionally, popular community website Reddit has also gone offline, as well as Boing-Boing and several smaller websites.

WordPress is suggesting users black out their own websites, but is not forcing any blackouts.

Whoa, SOPA? What the heck is that?
SOPA, which stands for the Stop Online Piracy Act, is a piece of legislation in the U.S. House of Representatives. The act is designed to target copyright infringers online through a series of harsh penalties.

In the U.S. Senate, a separate companion bill is called the Protect Intellectual Property Act or PIPA.


…Why do the SOPA opponents say it would turn the Internet into a police state?
Several of the provisions in SOPA force American Internet service providers or ISPs hosting websites to remove a site from the Internet if there’s a claim it’s infringing against copyright, even if it has not been fully proved in court. The argument is that this would make it easy for someone to make false or weak claims to take a website offline while the case makes its way through the courts.

Additionally, it would force ISPs to block non-U.S. websites accused of having infringing material, meaning sites from other countries might not be available in the United States. Opponents say this might destabilize the Internet and allow loopholes for hackers to exploit.

Which sites that I use would this affect?
Most obviously, Wikipedia. There are millions of users who constantly update the site, and sometimes things are posted that might have questionable copyright provenance. If Wikipedia were shut down or blocked every time it was challenged over copyright, the site would likely cease to function.

YouTube would be another site that would be harshly affected by the measures. Since millions of people upload videos to YouTube, sometimes copyrighted material slips through. Currently, this is dealt with by individual videos being taken down after a complaint. Google has stated YouTube probably wouldn’t exist if a SOPA-like law had been in effect in 2004 when the site launched.

Some interpretations of the bill say that sites that even link to other sites accused of infringing might be at risk.

Basically, any site that has a large user-generated component is worried about SOPA.This is the document Wikipedia references when explaining why they are against the bill.

Google has posted an online petition against SOPA and PIPA, which I encourage everyone to sign.  More from the Cato Institute and The Globe and Mail.

Your Facebook photos may be held against you

Courts are still grappling with admitting social media postings into evidence, but there are several reported cases where litigants’ Facebook pictures were deemed admissible:

The first decision rendered in Canada on this subject came from the Superior Court of Justice of Ontario, which had to rule on the admissibility as evidence of photographs published on Facebook.4 The Plaintiff had instituted an action relating to bodily injuries suffered in an automobile accident and alleged that the consequences of her accident were loss of enjoyment of life, a reduction in her activities and that her social life had suffered greatly in view of her pain. Although the Plaintiff’s Facebook profile had not been discussed during the examination for discovery, the defence lawyer had accessed photographs published on the Facebook site of a cousin of the Plaintiff. The photographs showed a person having a lot of fun and who did not appear to be suffering or to be limited in her activities, thus contradicting her claims.

The judge admitted the photographs from the Facebook profile of the third party into evidence. Without the admissibility as evidence of these photographs found on the Facebook site, there would not have been any evidence contradicting the allegations and testimony of the Plaintiff concerning her loss of enjoyment of life. Thus, the impact of the admissibility of the Facebook items was important.

Another key decision was also rendered by the Superior Court of Justice of Ontario in 2007 in the case ofMurphy v. Perger5. This judgment was the first to rule on the admissibility as evidence of photographs found in the private section of a Facebook user’ profile. In this case, the Plaintiff was claiming damages for bodily injuries suffered in an automobile accident, in particular for the suffering and loss of enjoyment of life. In support of her claim, the Plaintiff had filed travel and sports activity photographs taken before the accident in the Court’s file. However, before the trial, the Defendant learned that the Plaintiff had published photographs on her private Facebook profile, which was limited to 366 “friends.”

The Court was of the opinion that the admission of the Plaintiff’s Facebook profile as evidence was possible and that it was not a fishing expedition. Since the photographs were already accessible to 366 persons, the judge was also of the opinion that there was no infringement of the right to privacy and that the Plaintiff could not have significant expectations concerning the protection of her private life.

The admissibility of photographs published on Facebook as evidence has also had rather harmful consequences on the credibility of plaintiffs in other cases.

For example, a Plaintiff6 claimed damages for bodily injuries suffered from two car accidents and claimed that he no longer had a social life. However, during cross-examination, the Defendant’s lawyer asked him about pages from his public Facebook profile, which the lawyer had printed. The Court was of the opinion that the Facebook evidence contradicted the Plaintiff’s claims since they revealed that the Plaintiff had a very active social life, that he attended parties and organized them, went to chalets on weekends, drank alcohol and smoked marijuana and seemed to have a number of good friends with whom he communicated and socialized on a regular basis. Following the cross-examination, the Plaintiff even closed his Facebook profile so that there would be no more incriminating items that could be used as evidence.

I may start advising my clients to stay off Facebook altogether until their cases have been dealt with.