The FTC yesterday issued its proposed rule on email that contains "sexually oriented material."  The complexity of the scheme is mind-boggling, and I'm not sure how an emailer would know that his/her/its message is subject to the rule.

Stay with me here.  As USA TODAY reports,

Unsolicited pornography will have to bear a label reading "SEXUALLY-EXPLICIT-CONTENT:" in the subject line and the messages themselves will not be allowed to contain graphic material, the FTC said.

Sexually oriented material is defined by the CAN SPAM Act to be "any material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18, United States Code), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters." 

The Title 18 definition includes "simulation" of various acts.  In a footnote, the FTC says that "[a]lthough the definition of "sexually oriented material" refers to "sexually explicit conduct," the Commission proposes substituting the word "content" for the word "conduct" in the Proposed Mark because the substance of an e-mail message is more accurately defined by use of the word "content."

(a) IN GENERAL.—The Commission may issue regulations to implement the provisions of this Act . . .

(b) LIMITATION.—Subsection (a) may not be construed to authorize the Commission to establish a requirement pursuant to section 5(a) to include any specific words, characters, marks, or labels in a commercial electronic mail message, or to include the identification required by section 5(a)(5)(A) in any particular part of such a mail message (such as the subject line or body).

So that portion of the industry can't effectively be filtered out, even though it is probably much easier for a sender to know when it's sending an unsolicited commercial email than it is to know that it's sending "sexually oriented material."  Not that any labeling requirement makes legal sense, of course.

The USA TODAY story ends with a startlingly candid discussion with an FTC spokesperson:

Hile said the agency is especially interested to hear whether the measure will encounter any technical hurdles. Free-speech arguments will carry less weight as the agency has been directed by Congress to develop the labels, he said.

"We don't have a whole lot of discretion in this," Hile said. "I guess we can't prevent commenters from saying, 'What a stupid idea,' or 'It violates the Constitution' or whatever, but we can't do anything with that."

Or whatever.

At John Palfrey's suggestion, I've started using the h2o rotisserie system for my cyberlaw class. Tonight the first posts are available for the class to read -- not the public, so I can't link to what the class has said. I also spent much of the day interviewing students for a fellowship program.  Here's my report.

It seems clear to me that large lecture classes are very good for conveying generalized information and preparing for the bar.  They're good for talking about legal reasoning.  They're good for letting you sense the mood of the room about a particular topic.  But they're not good for individual participation, really, because they're so inefficient.  Everyone has to listen to one-at-a-time comments (or the lecturer).  You can't take in more.  Your inner dialogue is always running -- "boy, that's a weird thing to say," or "huh, interesting," or "what's next, let's move on" -- but if you actually started to murmur all this you'd destroy the class.  Terribly inefficient in terms of communications.  Very few channels of real conversations.

Threads of posts may have some benefits along these lines.  You can mutter (constructively, within rules of posting etiquette) and add to what's going on.  You can have several simultaneous conversations about the subject.  You can hear an individual more clearly, without always being focused on whoever is at the front of the room.  But there are also downsides -- if you relied on posted threads for a law school class, it would be a hit-or-miss form of learning.  It's hard to get a sense of the room.  

In the interview sessions today, I was reminded yet again of how much you learn about someone and how much you can (perhaps) teach them when you talk to them one-on-one.  The sense of the room in this setting is the magical third entity created in a conversation between two people -- the shared channel, which can feel almost tangible.  But it doesn't scale -- it takes a lot to have faculty members sit and talk to a single student.  It doesn't happen frequently.

So perhaps a good new model course would be a combination of lecture, thread, and tutorial.  Or maybe just thread and tutorial.  Skip the lecture.  You could meet with the class as a whole a few times during the semester, providing themes and suggested readings; prompt active threaded/rated discussions; and meet personally twice with each student for an hour or so.  It's work for the teacher, but it's more of a 21st century kind of learning (combined with ancient tutorial methods).  Post modern law school life.   

I've been a slacker as a blogger.  But I'm back!  I've decided what the beginning of a cyberlaw course is:  some technology, not enough for some and too much for others.  I've asked the class to discuss whether lawyers should have to learn about technology.  Maybe some of them will comment on this blog.

My new absorption is to learn about VoIP.  I don't understand how a router can tell whether a particular communication is a "telephone call" or an email.  As far as I know, the public internet wasn't designed to make sure that there aren't transmission delays.  But humans get very antsy when there's any delay in sound on a phone call.

So VoIP packets have to get priority, somehow.  How does this work?  Does IPv6 provide more information fields so that a router can give priority to a packet that's addressed in a particular way?  Is this why the FCC is looking for comments on IPv6?  Be patient with me, I'm learning.

The FBI wants VoIP to be classified as a telecommunications service, so that the FCC can regulate to ensure back doors to these communications (CALEA-like).  But I bet there are many ways to set up VoIP calls, some more elaborate than others, and it does seem that the FCC is not interested in having some elaborate CALEA mandate for every single one of these services.

And how would CALEA work for all IP calls?  How could you ensure that the back door was always there, without mandating that special routers and special addresses were always used by your citizens?  Wouldn't that amount to creating a new internet?

Yours in VoIP, Susan

David Pogue's story in Thursday's Circuits about the Apple GarageBand software got my attention.  Mr. Pogue is a musician, a pianist with a lot of history in musical theater, and his article is a hymn to the possibilities of GarageBand:

For $100. . ., Apple will sell you a four-octave, touch-sensitive MIDI keyboard that produces no sound of its own. But when plugged into GarageBand, its plastic keys trigger (from the Mac's speakers) the sound of a $50,000 Yamaha grand piano, an orchestra full of strings, the brassy sting of rock-hall trumpets, or any of 185 other sampled instrument sound variations.

At this point, GarageBand is a 64-track digital tape recorder. The program can even count you in with clicks - the software equivalent of, "And-a one! And-a two! And-a three! And-a four!" - and provide a metronome as you play.

I can hear his excitement.  This is neat!  This makes it possible for everyone to be a composer/arranger/producer!  Boy, this is going to be fun.  And, in fact, he goes on with an enthusiastic "this is neat" set of paragraphs:

In the "American Idol" era, it's clear that commercial talent, if not great musical talent, is always out there, untapped and undiscovered. How can a gifted singer or talented play-by-ear instrumentalist reach what could be a grateful audience? Not by mailing out demo tapes recorded with the church accompanist, that's for sure.

It won't be long before the GarageBand creations of no-name singers and players start popping up on Web sites - indeed, it won't be long before Web sites start popping up just to accommodate them - bypassing the talent scouts and gatekeepers of the American recording industry. GarageBand and the Internet give tomorrow's stars their own democratic recording and distribution channels.

...[W]hen you consider both the fledgling state of the 1.0 version of this program and the immense musical and commercial forces it could one day unleash, you might conclude that there is, after all, an i-name that might have suited this remarkable software: iPotential.

Mr. Pogue is excited, and he is convinced that this software is going to change the musical world.  It's got a low pricepoint, it's usable by regular people, and it's flexible (though too focused on pop sounds -- Mr. Pogue wishes for a solo violin once in a while).  I'm with him.  I get excited about this stuff too, and I truly believe (I believe!) making these tools available removes the mystery and perceived expense of making your own music.  I can imagine zillions of arrangements and magical new tunes being released into the unsuspecting cybersphere, to be listened to and shared by everyone.  Go, Apple!

So tools are emerging that let us manipulate all kinds of content.  We can carry video around with us, make it ourselves, share it.  We can do almost anything with music.  We can take pictures, morph pictures, phone pictures; watch television on our phones, watch ourselves on our phones, download scenes of other people talking on their phones, walk down the street talking on the phone and sending pictures.  Complete flexibility.

But there were two (maybe three) stories in today's paper that make this flexibility seem like jangling, meaningless chatter.  One was about Wal-Mart locking in employees over night:

For more than 15 years, Wal-Mart Stores Inc., the world's largest retailer, has locked in overnight employees at some of its Wal-Mart and Sam's Club stores. It is a policy that many employees say has created disconcerting situations, such as when a worker in Indiana suffered a heart attack, when hurricanes hit in Florida and when workers' wives have gone into labor.

The other was about a woman who has stayed on the outskirts of the job market for thirty years, working hard but never being promoted, always falling into problems that are caused by her other problems.  She loses her teeth because she's poor, and because she has no teeth she doesn't advance.  She moves from place to place to find work, and because of these moves her disabled daughter can't make any progress.  She just can't seem to get a break.  When social workers get together to try to figure out how to help her take care of her daughter, the one thing they don't consider is calling her employer to ask that she be put on a regular shift:

She asked a supervisor and got brushed off, but nobody else -- not the school principal, not the doctor, not the myriad agencies she contacted -- nobody in the profession of helping thought to pick up the phone and appeal to the factory manager or the foreman or anybody else in authority at her workplace.

Indeed, this solemn regard for the employer as untouchable and beyond the realm of persuasion unless in violation of the law permeates the culture of American antipoverty efforts, with only a few exceptions. . . . Wages and hours are set by the marketplace, and you cannot expect magnanimity from the marketplace. It is the final arbiter from which there is no appeal.

Putting these two strands together makes you ask what new tools could emerge online that would actually affect the lives of people in Vermont or Maine that can't make enough money to move through life comfortably.  They're isolated -- they're in places without real jobs -- but they have phone lines.  They don't care too much about morphing video or scoring a demo tape (maybe they do).  They need actual jobs.  What does this cyberlife do for them?

Finally, the third story, in Adam Liptak's review today of three books about the AOL/Time Warner merger.  His characterization of Kara Swisher captures the jangling sound I'm hearing this morning:

Her book sometimes reads like comments from the dais [at an internet business conference]. ''I am still a believer,'' she writes. ''In the wake of the crash, true faith in the eventual dominance of the Internet is not an easy thing to admit to. In fact, largely because of this one disastrous deal, saying you believe in the Internet as a revolutionary medium is a bit like admitting to a capital crime.''

. . . [T]he title ["There Must be a Pony In Here Somewhere"] captures something of Swisher's own attitude. She remains, she says over and over, thoroughly optimistic about the transformative power of the Internet.

New machines for aiding classroom teaching.  First -- for or against wireless? I'm for, with some groundrules.  Is there a switch you can pull on a classroom wall when you don't want wireless?  If there isn't, we should invent one.

Second -- how about a randomizer for calling on people?  That the professor could use to take notes about what happened?

Third -- how about a randomizer that the class could use for calling on other people in the class?

Fourth -- how about a group visualization tool that would show how a randomly generated group dealt with an issue? so the classroom could be in constant town meeting mode? yes, you could vote on how entertaining the professor was.

Just some thoughts.  Tomorrow:  ICANN's stld RFP.

There's a certain amount of kerfuddle/foofarah going on about Adobe's decision (in consultation with the Treasury) not to permit copying of currency. Is this agreement a good, working example of the accountable net (good private sector action not to "connect" with something that probably is illegal) or is it privatized government by parties who want continued government contract work and will easily knuckle under?

We could see this action as similar to Yahoo!'s not allowing people to sell lock-picks through Yahoo! stores. Lock-picks could be used for perfectly legal and even artistic purposes but the risk that they'll be used for illegal house-breaking purposes is great.

But, then again, I see the Yahoo! action as more a part of the accountable internet than the Adobe action.  Yahoo! really does connect to or facilitate the stores it hosts.  By contrast, Adobe has no real relationship to linking or filtering -- it's more like copiers intentionally not being good enough to make convincing copies of money.

So, on reflection, I see the Adobe action as kowtowing. Not being accountable, just being limiting.  A picture of a dollar is just bits, and there have been artists who have legitimately thought of and produced copies of currency as art.   Adobe's step is much more like a broadcast flag sort of attempt -- make it illegal to copy particular bits without authorization.

The problem is that the unintended consequences of Adobe's action may be great -- this may be the trimtab for copyright interests.  After all it's the PASSING of a bill to pay for something (or making available to huge numbers of people of a copyrighted work) that is illegal. The mere copying shouldn't be

I've been working on my cyberlaw syllabus over the last week, adding in all the things I want to read with my students.  (There will be a huge supplement to the casebook.)  Here's the challenge with which I need help:  cyberlaw is usually taught as a mish-mosh of modules -- a drop of privacy, a smattering of trademark, a heh-heh at the Barlow manifesto, a moment of copyright (and, in my case, a big dollop of the broadcast flag/analog hole debate), and some bemusement at internet governance.

But maybe the real subject is not the application of terrestrial law to the internet.  Maybe that's not even interesting.  Maybe we need to study what's emerging online and how or whether it consists of sets of rules that individuals and ISPs and corporations and governments are following.  But how do I reveal that?  How do we find it in a law school classroom?  What's on the exam (a frequent question I get)? 

Send me samples of what a real cyberlaw course should cover.  Maybe I should drop all this cybersquatting stuff and the old funny historical cases (and even the new funny cases), much as I enjoy them.  Maybe we should spend the whole term on ICANN and the broadcast flag and the CDT v. Pappert case. 

Let me know.  This is an authentic plea for commentary.

There's a great fight going on right now in Philadelphia. If you haven't seen the briefs in CDT v. Pappert, go take a look.

The case is about a Pennsylvania statute that mandates that Pennsylvania ISPs remove access to sites that the AG believes contain child pornography.  Now, child pornography is abhorrent and any ISP will cooperate in taking down such sites that it is hosting. But the problem is that in complying with the statute with respect to sites the ISPs don't themselves host, ISPs are (rationally) using either IP blocking ("null routing") or "domain poisoning" techniques, both of which (particularly the IP number blocking) result in rendering inaccessible millions of perfectly legal sites.

From CDT's/ACLU's opening brief: 

The research reveals that of the almost 30 million web sites analyzed, over 90% share an IP address with at least one other web site, over 75% share with fifty other web sites, and almost 50% share with over five hundred other web sites. . . .

The importance of this case cannot be overstated. [T]his case raises grave First Amendment implications for the viability of the Internet as a “vast democratic for[um],” where anyone can be a publisher and vast libraries of information are available at the touch of a button. . . In this case, the Attorney General in one state directed ISP blocking orders at just a few hundred illegal web sites – and as a result more than a thousand times more legal sites were blocked. Statistically, for each illegal web site targeted, more than one thousand lawful sites were blocked. If this law were duplicated in fifty states and vigorously enforced by even a few state officials, the Internet – a precious resource that has become a vital medium for exercising First Amendment rights – would be severely compromised. The Pennsylvania Statute sets a dangerous precedent, and it is critical to the future of the Internet that it be struck down.

One of my favorite moments in the pleadings comes from this portion of the AG's brief:

A URL is neither a person, nor a real forum, nor a limited commodity. It is a little string of letters and numbers that acts as a superficial label. URLs are infinite in quantity. Even complete retirement of one will not diminish speech. Speech can always find another URL, and probably pretty close to the out-of-commission string. The new URL will be in the same cyber-space, accessible in the same physical places, as the retired URL. It can relate to the same IP address, which is the true computer address. Disablement of an ISP’s customers’ access to a particular URL for even an indefinite time does not implicate First Amendment rights

To which CDT replied:

[T]the Attorney General suggests that the state can disable URLs perpetually because they are not speech, and because they are limitless and fungible. But as Plaintiffs explained in their opening brief, under current case law URLs, standing alone, may in fact be protected speech. . . .;

And they are certainly not fungible. Users of the Internet often access web sites by "bookmarking" their URLs or remembering them. The fact that Amazon.com could provide access to its site through the substitute address "www.creamcheese.com" would hardly make the blockage of "www.amazon.com" de minimis for either the site owner or users. URLs often constitute valuable intellectual property that parties fight hard over in  rademark litigation. Nor are URLs unlimited. While as a theoretical matter it may seem that way, as a practical matter useful URLs are scarce. Indeed, the lack of useful URLs has directly led to pressure over the past few years to add a new "top level domain" (TLD) such as ".biz" to supplement ".com" and ".net."

In any event, Plaintiffs’ claim under Near and Vance does not turn on whether URLs are speech, are fungible, or are in short supply. Under those cases, the state simply cannot prevent speech from ever occurring at a particular location on the Internet because at one time it displayed illegal materials. . . . Furthermore, the Attorney General does not even address the fact that some Informal Notices have explicitly directed that access to an IP address be disabled. IP addresses are valuable and are currently in short supply (especially in certain parts of the world).

These overblocked sites are places. Their addresses may look like strings of meaningless text to the AG. But they are places nonetheless, and a prior restraint with respect to their visibility would be wrong. The law just hasn't caught up with the realities of online life. Yes, child porn is wrong, and that's what makes this a tough case to make a lot of noise about. But the soccer sites and community areas wrongly blocked by ISPs struggling to comply with this negotiated law (take a look at the history of the law's creation) deserve to be seen -- and we don't want more laws like this popping up in the US.

It's a fascinating and (on the CDT side) well-briefed case.  Wish I could be there.

For the last twenty years, people have assumed that "physical and social disorder in a neighborhood lead to increased crime."  This is the "broken windows" theory.

It turns out not to be true.  Improving order by fixing windows may or may not reduce crime.

But a professor of human behavior and development at the Harvard School of Public Health named Dr. Felton Earls has figured out that what he calls "collective efficacy" will have an effect.  The Times ran a story about him and his empirical work debunking the "broken windows" theory yesterday:

"If you got a crew to clean up the mess," Dr. Earls said, "it would last for two weeks and go back to where it was. The point of intervention is not to clean up the neighborhood, but to work on its collective efficacy.  If you organized a community meeting in a local church or school, it's a chance for people to meet and solve problems."

"If one of the ideas that comes out of the meeting is for them to clean up the graffiti in the neighborhood, the benefit will be much longer lasting, and will probably impact the development of the kids in that area.  But it would be based on this community action -- not on a work crew coming in from the outside."

Dr. Earls is also expecting to show that where you grow up is very important to your development -- he thinks that genetics plays a minor role at best.  As far as policy goes:

Dr. Earls said that rather than focusing on arresting squeegee men and graffiti scrawlers, local governments should support the development of cooperative efforts in low-income neighborhoods by encouraging neighbors to meet and work togehter.

The link to the accountable net is clear:  what we need are tools that help peers (both individuals and ISPs) work together cooperatively to combat the emergence of security/spam/identity bad neighborhoods on their networks.  Unilateral or top-down decisions to "clean up" neighborhoods may not have long-term effects.

Note Earthlink's snide response to AOL's announcement that it's including spyware tools in its next release to consumers:

Jerry Grasso, a spokesman for Earthlink, a competitor to AOL, said the company welcomed the initiative. "We applaud any Internet service provider that's trying to help their customers better protect their Internet experience," he said. "We, of course, did it last quarter."

heheh.

The New York Times ran an op-ed the other day by Brian Greene, author of The Elegant Universe.

Today's scientists seeking to combine quantum mechanics with Einstein's theory of gravity (the general theory of relativity) are convinced that we are on the verge of another major upheaval, one that will pinpoint the more elemental concepts from which time and space emerge. Many believe this will involve a radically new formulation of natural law in which scientists will be compelled to trade the space-time matrix within which they have worked for centuries for a more basic "realm" that is itself devoid of time and space.

This is such a perplexing idea that grasping it poses a substantial challenge, even for leading researchers. Broadly speaking, scientists envision that there will be no mention of time and space in the basic equations of the sought-for framework. And yet — just as clear, liquid water emerges from particular combinations of an enormous number of H20 molecules — time and space as we know them would emerge from particular combinations of some more basic, though still unidentified, entities. Time and space themselves, though, would be rendered secondary, derivative features, that emerge only in suitable conditions (in the aftermath of the Big Bang, for example). As outrageous as it sounds, to many researchers, including me, such a departure of time and space from the ultimate laws of the universe seems inevitable.

I really liked The Elegant Universe -- and particularly its focus on string theory.  Time is relative; there's a difference between intuitive time that we rely on to measure our days, and physicist time, which accepts that time depends on where you're standing.  And maybe strings are the most elemental particles around.

But, wherever we're standing, we're probably reading end-of-the-year lists. 

"Only connect," says E.M. Forster. But what if there are too many connections to comprehend? Sync tells us that everything connects to everything else, and that there is sync in chaos as well as in tides. It's a tremendously exciting book, and reading it late at night gives you the heady sense that you're just about to understand the universe completely.

But the New York Times reminds us that people collect mountains of paper (and can sometimes be buried by these mountains) in part because they believe they see connections that are crucial:

Pathological hoarding can affect people of all ages, and it seems to be related to obsessive-compulsive disorder, added Dr. Frost, who has researched the problem for a decade and recently received a grant to develop a model treatment to be tested on about 40 subjects at the Institute of Living in Hartford and at Boston University.

There are three facets to the problem, he said: enormous emotional difficulty throwing things away; compulsive acquisition — sometimes by buying things, but often by picking them up for free — and a high level of disorganization and clutter.

Many of the people afflicted seem to be unusually intelligent, he said. "They see more connections between things, which leads them to value those things much more than the rest of us do. "

But today I'm going to assert that seeing connections is worth the risk, and leads to more than messy living rooms. I was fascinated by Sync's account of Brian Josephson's absorption with parapsychology.  (Josephson won a Nobel Prize in 1973 for his work on superconductivity, but hasn't been doing mainstream physics for the last 30 years.)

It has always seemed to me (I'm going out on a limb here) that the brain can communicate, can joggle other brains, without speech or gesture, and that scientists just haven't figured out why. We have a long way to go in understanding what our brains can do; we may just be stewards of memes and coordination networks that are far beyond our little comprehension.  Maybe by continuing to see connections, and by believing that there's a heartbeat to the universe, we are coming very slightly closer to understanding our own capacities.

On the other hand, it may be that I just haven't been getting enough sleep, and Josephson is a nutty Nobel who has strayed.  Let's check back in 20 years and see.