Saturday, May 15, 2010

MIRLN --- 25 April – 15 May 2010 (v13.07)

(supplemented by related Tweets: #mirln)

·      TJX Adds Again to Its Breach Cost, But It Doesn’t Really Matter
·      Ohio Mulls Potential Twitter Tweets About Completed Executions
·      Harvard Law Review Smacks Around FTC Blogging Rules
·      Irish Court: IP Addresses Not Personal Data
·      Actually, the Army Kind of Likes Your Blog
·      Can Plastic Jungle Create A Market Around Gift Cards?
·      The Last Words on E-Discovery?
o   Federal Pilot Program Curbs E-Discovery Fights
·      Health Worker Is First HIPAA Privacy Violator to Get Jail Time
·      A Real Trend? More Companies Holding Virtual Annual Meetings
·      Response to Misdirected E-Mail Violated Spirit of Ethics Opinion, Judge Rules
·      More States Report Wiretap Activity
·      Shoppers Who Can’t Have Secrets
·      Who Owns All the Data in the Workplace?
·      No Longer Singing the Blues
·      Second Life Users File Class Action Lawsuit Over Virtual Land
·      Fear and Loathing in Online Advertising
·      Professors and Social Media
·      Six Things You Need to Know About Facebook Connections
o   The Evolution Of Privacy On Facebook
·      University to Provide Online Reputation Management to Graduates
·      “Link Rot” and Legal Resources on the Web: A 2010 Analysis by the Chesapeake Project
·      Social Networking: The Employment Law Revolution That Wasn’t
·      Unauthorized Access Doesn’t Apply to E-Mail, Judge Rules
·      UC Davis Scraps Gmail Pilot: Privacy Levels ‘Unacceptable’
·      Cablevision Won’t Cripple Its Network DVR
·      Lyrics Sites at Center of Fight Over Royalties
·      Law Firm Media Survey Reveals Pay, Policies
·      Lawyers’ Ethical Stumbles Increase Online
·      German Web Users Must Use Password to Secure WLAN
·      Risk Management and E-Discovery: Qualcomm Revisited


TJX Adds Again to Its Breach Cost, But It Doesn’t Really Matter (StorefrontBacktalk, 21 April 2010) - With TJX having suffered well more than $47 million in out-of-pocket expenses from its infamous data breach (announced in 2006 but beginning as early as 2003), the $20 billion retailer is preparing to write still more checks. It has now set aside another $23.5 million for additional anticipated breach costs, according to its most recent 10-K statement filed to the SEC. That money is slated to deal with the chain’s “current estimation of total potential cash liabilities from pending litigation, proceedings, investigations and other claims, as well as legal, ongoing monitoring and other costs and expenses, arising from the Computer Intrusion,” the federal filing said.

Ohio Mulls Potential Twitter Tweets About Completed Executions (ABA Journal, 23 April 2010) - The state of Ohio is considering using the social media site Twitter to provide almost instantaneous news of completed executions. However, a spokeswoman says there is some concern that sending tweets about an executed inmate’s time of death might be considered in poor taste, reports the Associated Press. When convicted murderer and rapist Darryl Durr was put to death at 10:36 a.m. Tuesday by lethal injection, the media received e-mails announcing his death a minute later. [Editor: Poor taste? Really? I despair for civilization.]

Harvard Law Review Smacks Around FTC Blogging Rules (Truth on the Market, 23 April 2010) - Recently, the Federal Trade Commission (FTC) revised their Endorsement and Testimonial Guides (Guides) to cover “consumer generated media” such as blogs and other internet media forms.1 In the interest of providing consumers with full disclosure, the Guides require bloggers to disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs.2 A “material connection” includes not only monetary compensation, but also any free good received by the blogger — even if that good was provided unsolicited, with no conditions attached, for the purpose of allowing the blogger to review the product.3 Yet a constitutional analysis of unpaid blogger endorsements shows that such endorsements are not commercial speech — which receives reduced constitutional protection — but rather noncommercial speech entitled to full First Amendment protection. Not only do the Guides burden bloggers’ protected speech, they also create an unfair double standard by exempting legacy media4 from the Guides’ disclosure requirements. Therefore, the Guides should be ruled unconstitutional as applied to bloggers. HLR article here:

Irish Court: IP Addresses Not Personal Data (Chronicle of Data Protection, 23 April 2010) - In an April 16, 2010 judgment, the High Court of Ireland decided that a settlement agreement entered into between Ireland’s largest ISP Eircom and EMI, Sony Music, Universal Music, and Warner Music did not violate Ireland’s data protection law. The settlement agreement was signed after the record labels sued Eircom in connection with Eircom’s failure to take action to discourage peer-to-peer copyright infringements on its network. In the settlement, Eircom agreed to implement a graduated response mechanism with its customers, pursuant to which Eircom would send warnings to customers who had been detected as participating in unauthorized file sharing. If the customers ignored Eircom’s warnings, Eircom would cut off the subscriber’s Internet access. This sanction would be applied on a purely contractual basis, based on the subscriber’s violation of Eircom’s terms of use. The subscribers’ identity would never be shared with the record companies or with the police. The detection of illegal file sharing would be conducted by a third party service provider, DetectNet, which would collect IP addresses and communicate them to Eircom. The Irish data protection authority believed that the settlement would violate Irish data protection laws. The court was asked to answer three questions: Whether the IP addresses collected by DetectNet are personal data before they are transferred to Eircom? Whether Eircom’s processing of personal data for implementation of the graduated response mechanism is legitimate? Whether the personal data processed by Eircom are “sensitive” because they relate to a criminal offense?

Actually, the Army Kind of Likes Your Blog (Danger Room, 28 April 2010) – You’d think all the criticism from left-wing websites like the Huffington Post, Daily Kos, and Salon would royally piss off the Army. But at least one Army report finds the sites’ posts to be consistently “balanced.” Every week, the defense contractor MPRI prepares for the brass a “Blogosphere and Social Media Report,” rounding up sites’ posts on military matters. It’s meant to be a single source for top officers to catch up on what’s being said online and in leading social media outlets. Items from about two dozen national security and political blogs are excerpted, and classified as “balanced,” “critical,” or “supportive.” The vast majority of the posts are considered “balanced” — even when they rip the Army a new one. A Huffington Post item headlined “U.S. Military Still Lying About Special Forces Night Raid In Afghanistan” - that’s “balanced.” Salon’s Glenn Greenwald pronouncement the “slaughter” of Iraqi civilians by U.S. troops is “not an aberration” is considered “balanced,” too. So is a post from the right-of-center This Ain’t Hell declaring, “Healthcare Bill Screws Veterans.” Only posts that directly blast a particular Army general — or the Army’s ability to perform in Afghanistan — seem to qualify as “critical.” Our pal Jason Sigger was dinged as critical twice during the week of April 3rd. In one post, he called Army Chief of Staff Gen. George Casey “something of an ignorant asshole.” Then, in a book review, he opined that “the US Army hasn’t effectively executed COIN [counterinsurgency] operations in Iraq and Afghanistan.” The reports also rank the top issues of the week in the national security blogopshere, and categorize blog posts into “strategic lines of effort.” (Most fall into “other.”) A few choice comments on blog posts are highlighted, as well.

Can Plastic Jungle Create A Market Around Gift Cards? (TechCrunch, 28 April 2010) - Plastic Jungle, a marketplace for gift cards, is hoping to shakeup the gift card market by allowing gift card owners to use certificates for a given store at another online retail establishment. Plastic Jungle lets you buy, sell and exchange gift cards online. Instead of receiving cash for your gift card, Plastic Jungle also lets you trade the value in for an Amazon gift card or give your money to charity. Users can receive cash for unwanted gift cards for up to 92% of the unused balance and buy gift cards at up to a 30% discount. Plastic Jungle, which just raised another $7.4 million in funding, will partner with online retailers to power a payment portal in the checkout process that will allow shoppers to use a credit from a different store to make an online payment. You enter the gift card like you would a credit card based on the unique serial number and pin code that every major gift card has. Similar to its exchange on the site, Plastic Jungle will offer you a 92% of the unused balance on the card. So if you want to use a $100 Gap gift card at, you’d receive $92 from Plastic Jungle to put towards your balance. Plastic Jungle will then transfer that $92 onto another card and re-sell the balance of the card on Plastic Jungle is working with both gift card processors and retailers in order to make the process be electronic and, therefore, instantaneous. And the startup will be implementing this check-out system with a major retailer that will go live with mid-summer (Plastic Jungle declined to name the retailer). And this will only be used and implemented in online transactions. It seems like a stretch to assume that retailers would be onboard with this. Gap or Target may enjoy when nobody uses the cards though because then they get to keep the cash without handing over any goods. Helping Plastic Jungle make a more liquid market out of gift cards might not be in their best interest. But Plastic Jungle CEO Garry Briggs maintains that with more than $30 billion wasted in unspent gift cards, the ability to transfer balances will jumpstart movement of these cards and inevitably result in more e-commerce transactions and more money for retailers. The startup also just launched a partnership with Facebook, to allows users to sell unused gift cards and receive Facebook Credits.

The Last Words on E-Discovery? (, 28 April 2010) - Two recent e-discovery decisions, the Jan. 15 decision by U.S. District Judge for the Southern District of New York Shira A. Scheindlin in Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities and the Feb. 19 decision by U.S. District Judge for the Southern District of Texas Lee H. Rosenthal Rimkus Consulting Group Inc. v. Cammarata, focused on the issue of how to gauge the relevance of e-discovery lost by the producing party at the prejudice of that loss to the requesting party when the e-discovery is, by definition, lost and so unknown. I reviewed the facts in both matters and Pension Committee’s approach of creating presumptions of relevance and prejudice when the data is lost due to the gross negligence or willfulness of the producing party. This article will analyze Rimkus’ approach, discuss the strengths and weaknesses of both, and place them in the context of unfolding e-discovery jurisprudence.

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Federal Pilot Program Curbs E-Discovery Fights (, 14 May 2010) - The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties. The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois. The first-phase of the 7th Circuit's pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process -- or, at least, didn't make it worse. "It was very encouraging," said Holderman. The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program's committee members, during electronic discovery. Those principles called for:
• parties to recognize that cooperation with opposing counsel does not compromise zealous advocacy;
• parties to resolve electronic discovery disputes early, without court intervention;
• parties to make electronic discovery demands proportionate to the particulars of the case;
• parties to meet before an initial status conference with the judge to discuss discovery;
• when a dispute arose, each party to select a liaison attorney to deal with discovery and to attend hearings;
• parties to refrain from making overly broad preservation requests;
• parties to take reasonable steps to preserve electronically stored information;
• judges and attorneys to know the civil procedure rules pertaining to electronically stored information.
The participating judges and attorneys were sent a survey asking them to evaluate the program. All of the 13 judges and 133 of the attorneys responded. About 90 percent of the judges thought that the principles increased or greatly increased the attorneys' familiarity with their clients' technology relating to electronic discovery. All the judges agreed or strongly agreed that the use of discovery liaisons increased the efficiency of the discovery process. About 43 percent of the attorneys said that the principles increased or greatly increased the fairness of the discovery process. About 55 percent said the principles had no effect on the fairness, and fewer than 3 percent said it made the process less fair. About 61 percent said that the principles had no effect on their ability to resolve discovery disputes without court involvement.

Health Worker Is First HIPAA Privacy Violator to Get Jail Time (SC Magazine, 28 April 2010) - A former UCLA Health System employee, apparently disgruntled over an impending firing, has been sentenced to four months in federal prison after pleading guilty in January to illegally snooping into patient records, mainly those belonging to celebrities. Huping Zhou, 47, of Los Angeles, who was sentenced Tuesday, now has the dubious distinction of being the first person to ever receive prison time for violating the privacy stipulations under Health Insurance Portability and Accountability Act (HIPAA), according to the U.S. Attorney’s Office for the Central District of California. Zhou, a licensed surgeon in China, was working as a researcher at the UCLA School of Medicine in 2003 when he began accessing medical records of his supervisor and co-workers after being notified that he soon would be fired for job performance issues, prosecutors said. Over the next three weeks, he extended his snooping to mostly celebrity records. In total, he accessed the patient records system 323 times.

A Real Trend? More Companies Holding Virtual Annual Meetings (, 29 April 2010) - Last year, as noted by Dominic Jones in his “IR Web Report,” there was a small spurt of companies holding annual meeting solely online, with Broadridge, Warner Music Group and Conexant Systems joining companies that have done it for a few years (e.g., Herman Miller, see this blog). Dominic notes that a number of new companies have announced plans to go “virtual-only” this proxy season, including Illumina, Artio Global Investors, Winland Electronics and PICO Holdings. Intel originally intended to join this group - but decided to stay with the hybrid “both physical and online” meeting structure it pioneered last year (see this first-hand report of last year’s meeting), with the help of Broadridge’s online voting platform. Dominic notes that several new companies will try this hybrid model this year - Best Buy, American Water Works and Charles Schwab - with Charles Schwab relying on its transfer agent Wells Fargo to provide the online voting platform rather than Broadridge.

Response to Misdirected E-Mail Violated Spirit of Ethics Opinion, Judge Rules (, 29 April 2010) - Lawyers who failed to immediately notify the court that they inadvertently received an e-mail from their opponents in a breach of contract case engaged in “unacceptable” and “egregious” conduct, a Manhattan judge has ruled. Acting Supreme Court Justice Bernard Fried said the conduct of the Kelley Drye & Warren lawyers who represent subsidiaries of Cox Enterprises Inc. in a contract dispute with Acme Television Holdings “certainly violates the spirit, if not the letter,” of the New York City Bar’s ethics committee’s opinion on handling accidentally received e-mails. “Clearly this e-mail should have been disregarded as requested, or at the very least plaintiffs’ counsel should have advised that it did not intend to do so,” Fried wrote in MMT Sales LLC v. Acme Television Holdings LLC, 602156-2009, filed earlier this month. Instead of immediately disclosing to the court that they had the e-mail, Fried said the lawyers waited until after the defendants moved for a protective order three months later. Eugene D’Ablemont of Kelley Drye, who received the e-mail, referred a call to William Heck, a partner at the firm who did not respond to a request for comment. D’Ablemont, 79, has been in the news as the subject of an age discrimination suit filed by the Equal Employment Opportunity Commission on his behalf against Kelley Drye. In July 2009, Lewis Paper of Dickstein Shapiro, representing Acme, accidentally sent D’Ablemont an e-mail that included correspondence between Acme and lawyers for Katz Communications. Within three days, Paper wrote to D’Ablemont saying he had “inadvertently and unintentionally included material that was obviously not intended to be sent to you” and that he would “appreciate it if you could discard that email” and substitute it with another. Paper told the court that D’Ablemont never responded to his July e-mail and refused his request only after Cox made a motion to use the e-mail in litigation.

More States Report Wiretap Activity (U.S. Courts, 30 April 2010) - A total of 2,376 federal and state applications for orders authorizing the interception of wire, oral or electronic communications, known as wiretaps, was reported in 2009. The number of applications for orders by federal authorities was 663; the number of applications reported by state prosecuting officials was 1,713. No applications were denied. The Omnibus Crime Control and Safe Streets Act of 1968 requires the Administrative Office of the U.S. Courts to report to Congress the number and nature of federal and state applications for wiretap orders. The 2009 Wiretap Report covers intercepts concluded between January 1, 2009 and December 31, 2009 and is available online at In the midst of that wiretapping bonanza, a more surprising figure is the number of cases in which law enforcement encountered encryption as a barrier: one.

Shoppers Who Can’t Have Secrets (NYT, 30 April 2010) - Cameras that can follow you from the minute you enter a store to the moment you hit the checkout counter, recording every T-shirt you touch, every mannequin you ogle, every time you blow your nose or stop to tie your shoelaces. Web coupons embedded with bar codes that can identify, and alert retailers to, the search terms you used to find them and, in some cases, even your Facebook information and your name. Mobile marketers that can find you near a store clothing rack, and send ads to your cellphone based on your past preferences and behavior. To be sure, such retail innovations help companies identify their most profitable client segments, better predict the deals shoppers will pursue, fine-tune customer service down to a person and foster brand loyalty. (My colleagues Stephanie Rosenbloom and Stephanie Clifford have written in detail about the tracking prowess of store cameras and Web coupons.) But these and other surveillance techniques are also reminders that advances in data collection are far outpacing personal data protection. Enter the post-privacy society, where we have lost track of how many entities are tracking us. Not to mention what they are doing with our personal information, how they are storing it, whom they might be selling our dossiers to and, yes, how much money they are making from them. On the way out, consumer advocates say, is that quaint old notion of informed consent, in which a company clearly notifies you of its policies and gives you the choice of whether to opt in (rather than having you opt out once you discover your behavior is being tracked).’t%20Have%20Secrets&st=cse

Who Owns All the Data in the Workplace? (, 30 April 2010) - Ten years ago employees wondered if their employers could look through their purses merely because they brought them to work. Today employees ask whether their employers own all electronic data created, viewed, or stored on their work computers and BlackBerrys. In New York, private sector employees may have a reasonable expectation of privacy in their work computers, cellular phones, and other electronic devices. In 2001 the 2nd U.S. Circuit Court of Appeals confirmed in Levanthal v. Knapek[FOOTNOTE 1] that an employee may have a reasonable expectation of privacy in the content of her work computer, especially where her employer maintains an unclear technology usage policy. Since Leventhal, employers in the 2nd Circuit have crafted broad and detailed technology policies aimed at draining reasonable expectations of privacy out of employees’ work-related technology. These policies aim to bind employees to notices stating, more or less, that (1) all electronic data created, stored, received, or sent from the employer’s electronic device or system (e.g., computer server or third-party wireless service provider), regardless of the purpose for which it is created, is the employer’s property; (2) the employee cannot expect such data to remain private; and (3) the employer may monitor and obtain such data at its discretion and without further notice to the employee. Although employers expect that these policies will permit unfettered access to employees’ personal electronic data, courts are increasingly scrutinizing their enforceability. In Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp, LLC,[FOOTNOTE 2] the court was incredulous of the employer’s reliance upon its policy to defend its accessing of an employee’s personal Hotmail e-mail account. The court explained, “[i]f [an employee] had left a key to his house on the front desk at [his workplace] one could not reasonably argue that he was giving consent to whoever found the key, to use it to enter his house and rummage through his belongings.”[FOOTNOTE 3] It now appears in the 2nd Circuit that employees do not check their privacy at the door to their workplace. [Editor: good summary piece.]

No Longer Singing the Blues (ABA Journal, 1 May 2010) - When filmmaker Nina Paley learned she would have to pay more than $200,0000 to license the music that her film Sita Sings the Blues was made around, she questioned how she could ever pay for the rights when that cost exceeded her entire budget. Paley soon found an ally in, an advocacy group that is part of the small but growing alternative-to-copyright movement. The group’s mission is to change public opinion about traditional copyright law by showing how the existing system harms artists and audiences, says Karl Fogel, who serves as the group’s president. Fogel thinks culture ought to be free for distribution, copying and derivative uses. This model would not only allow artists to make more money with their work but encourage more art as well. Copyright skepticism isn’t altogether new, says American University law professor Michael Carroll, but it’s growing as digital technologies empower more people to be more creative and communicative. “One source of recent copyright skepticism among digital enthusiasts is their feeling that large-copyright owners are using the law to maintain yesterday’s business model rather than working with their fans and customers to embrace the creative potential of new technologies,” he adds. Paley’s Sita was the perfect platform for Fogel to prove his point. After Paley was able to negotiate the music rights for her film to $50,000 per 5,000 units sold, she and Fogel devised a distribution plan for the movie that incurred few, if any, royalty fees for the music: The movie can be downloaded for free. In exchange, Paley asks fans for donations. So far, Paley has raked in some $30,000 from fans—almost all in $10 increments. She’s also making money—an estimated $25,000 to date—selling an artist’s edition DVD of the film and Sita T-shirts through’s website. [Editor: fund movie; HD version also available]

Second Life Users File Class Action Lawsuit Over Virtual Land (Mashable, 3 May 2010) - A group of Second Life users is suing Second Life’s creator over a virtual land dispute. They say their contractual property ownership rights have been changed and that this alteration of the terms of service constitutes fraud and violates California consumer protection laws. Before you scoff too much at this seemingly ludicrous lawsuit, remember that virtual worlds aren’t just “funny money” and avatars. They’re serious business, both for the owners and investors who profit from them and for the users who pump hundreds and even thousands of dollars each into creating characters and interacting online. Second Life’s parent company, Linden Labs, was recently valued at $383 million. The virtual world’s economy was at an all-time high when Q1 transactional data was reported last month. And although the economy is virtual, remember these transactions have a basis in very real funds. The lawsuit gives rise to the question: Who owns virtual goods, the creators of the goods or the people who have paid virtual currency for them? The users are claiming that Linden Labs and Founder Philip Rosedale persuaded them to invest money and pay a sort of “property tax” with the promise of actual ownership of virtual land. Now, the users say, the terms of service have been changed without their prior knowledge or consent. They say the new terms “state that these land and property owners did not own what they had created, bought and paid for, and that these consumers had no choice but to click on a new terms of service agreement or they could not have access to their property.” Moreover, the group alleges that Linden Labs froze user accounts and deleted or converted non-virtual currency and virtual property without giving any explanation or avenues for recourse.

Fear and Loathing in Online Advertising (Ponemon Institute, 3 May 2010) - Have you ever seen an interactive advertisement while browsing around on the Web and, even though it was from a brand that you recognized promoting a product, service or event that you found interesting, you simply refused to click on the image because of a nagging sense of trepidation? What really lies beyond that alluring digital veil? Is the offer worth the risk? What of my digital privacy might I be giving up by responding to that message? Me too… and according to our latest study, those fears are not lost on industry. We talked to senior marketing executives – decision makers and check signers – with 90 organizations from a broad spectrum of industries that are actively engaged in online marketing. In total these firms account for more than $3 billion in annual revenue, and they believe wholeheartedly in the efficacy of the medium. According to our research, 63 percent of those we surveyed said behavioral advertising generated their greatest return on investment. Yet 98 percent told us that, because of consumers’ privacy fears, their companies are curtailing investments in online behavioral targeting. These companies are willing to sacrifice the revenue they believe they can generate through an online campaign rather than risk the potential hit to brand reputation for being as aggressive as they would like to be. Overall that curtailment has kept more than $600 million out of the behavioral targeting industry. Looking beyond the financial impact, the results of this study strongly suggest that, contrary to what some might say, self-regulation works.

Professors and Social Media (InsideHigherEd, 4 May 2010) - Professors, particularly those in the senior ranks, might have a reputation for being leery of social media. But they are no Luddites when it comes to Web 2.0 tools such as Facebook and YouTube, according to a new survey scheduled to be released today. The data suggest that 80 percent of professors, with little variance by age, have at least one account with either Facebook, Twitter, YouTube, Skype, LinkedIn, MySpace, Flickr, Slideshare, or Google Wave. Nearly 60 percent kept accounts with more than one, and a quarter used at least four. A majority, 52 percent, said they used at least one of them as a teaching tool. Designed by the Babson Survey Research Group, with support from New Marketing Labs and the publishing giant Pearson, the survey netted responses from 939 professors from colleges in Pearson’s network of two- and four-year colleges. Most said they teach in undergraduate programs, and more than a third reported teaching online or blended courses. Demographically, the respondents did not skew strongly to a particular sex, discipline, professional rank, or age, says Jeff Seaman, co-director of the Babson group, a research organization that also does work with the Sloan Consortium. The negligible difference in social media use among professors of different ages came as a surprise, says Seaman. “It was universal across all classes of faculty members as far as how much they’re embracing this,” he says. “It was pretty much the same, no matter how we sliced it.” This finding mirrors a similar surprise from a huge online education survey the Babson group did with Sloan and the Association of Public and Land-Grant Universities last summer, which found that neither age nor tenure status had any bearing on whether a professor had developed or taught an online course. Faculty use of social media both in and out of the classroom has been the subject of some controversy. A professor at East Stroudsburg University was placed on administrative leave two months ago after some of her frustrated musings (“Does anyone know where to find a very discreet hitman? Yes, it’s been that kind of day”) were interpreted by some students as threats. Besides isolated cases of extreme indiscretion, there has long been debate over whether professors should accept “friend” requests: Some professors are glad to friend their students, while others prefer to maintain a professional distance. Professors have likewise been split over the use of certain social media as teaching tools. For example, some have called in-class Twitter forums gimmicky and distracting, while others evangelize it as a vehicle for unprecedented engagement with course content.

Six Things You Need to Know About Facebook Connections (EFF, 4 May 2010) - “Connections.” It’s an innocent-sounding word. But it’s at the heart of some of the worst of Facebook’s recent changes. Facebook first announced Connections a few weeks ago, and EFF quickly wrote at length about the problems they created. Basically, Facebook has transformed substantial personal information — including your hometown, education, work history, interests, and activities — into “Connections.” This allows far more people than ever before to see this information, regardless of whether you want them to. Since then, our email inbox has been flooded with confused questions and reports about these changes. We’ve learned lots more about everyone’s concerns and experiences. Drawing from this, here are six things you need to know about Connections:
1.     Facebook will not let you share any of this information without using Connections. You cannot opt-out of Connections. If you refuse to play ball, Facebook will remove all unlinked information from your profile.
2.     Facebook will not respect your old privacy settings in this transition. For example, if you had previously sought to share your Interests with “Only Friends,” Facebook will now ignore this and share your Connections with “Everyone.”
3.     Facebook has removed your ability to restrict its use of this information. The new privacy controls only affect your information’s “Visibility,” not whether it is “publicly available.” 
Explaining what “publicly available” means, Facebook writes: 

”Such information may, for example, be accessed by everyone on the Internet (including people not logged into Facebook), be indexed by third party search engines, and be imported, exported, distributed, and redistributed by us and others without privacy limitations.” 

4.     Facebook will continue to store and use your Connections even after you delete them. Just because you can’t see them doesn’t mean they’re not there. Even after you “delete” profile information, Facebook will remember it. We’ve also received reports that Facebook continues to use deleted profile information to help people find you through Facebook’s search engine.
5.     Facebook sometimes creates a Connection when you “Like” something. That “Like” button you see all over Facebook, and now all over the web? It too can sometimes add a Connection to your profile, without you even knowing it.
Your posts may show up on a Connection page even if you do not opt in to the Connection. If you use the name of a Connection in a post on your wall, it may show up on the Connection page, without you even knowing it. (For example, if you use the word “FBI” in a post).

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The Evolution Of Privacy On Facebook (Business Insider, 7 May 2010) - Facebook is a great service. I have a profile, and so does nearly everyone I know under the age of 60. However, Facebook hasn’t always managed its users’ data well. In the beginning, it restricted the visibility of a user’s personal information to just their friends and their “network” (college or school). Over the past couple of years, the default privacy settings for a Facebook user’s personal information have become more and more permissive. They’ve also changed how your personal information is classified several times, sometimes in a manner that has been confusing for their users. This has largely been part of Facebook’s effort to correlate, publish, and monetize their social graph: a massive database of entities and links that covers everything from where you live to the movies you like and the people you trust. This blog post by Kurt Opsahl at the EFF gives a brief timeline of Facebook’s Terms of Service changes through April of 2010. It’s a great overview, but I was a little disappointed it wasn’t an actual timeline: hence my initial inspiration for this infographic. see also:

University to Provide Online Reputation Management to Graduates (Mashable, 5 May 2010) - Syracuse University has purchased six-month subscriptions to’s online reputation management platform for all 4,100 of its graduating seniors. The platform will help students monitor and shape their online presence during the job search process. According to a recent study by Cross-Tab Marketing services, 75% of HR departments worldwide are required to screen job candidates online. Seventy percent of recruiters and HR professionals in the U.S. clam they have rejected potential hires based on information surfaced online, and nearly half say that a strong online reputation influences their hiring decisions to a “great extent.” A similar study conducted by CareerBuilder last year found that 45% of HR professionals screen job candidates on social media sites. Given these numbers, the partnership seems like a smart move for Syracuse University’s Career Services department. “Our students need a way to put their best foot forward when they’re being researched by potential employers on Google, Facebook, Twitter and LinkedIn,” the director of the department, Mike Cahill, explained. “Brand-Yourself helps prepare our students for success in today’s digital environment.”

“Link Rot” and Legal Resources on the Web: A 2010 Analysis by the Chesapeake Project (5 May 2010) - The Chesapeake Project Legal Information Archive has completed its third annual analysis of link rot among the original URLs for law- and policy-related materials published to the Web and archived though the Chesapeake Project. The Chesapeake Project was launched in 2007 by the Georgetown University Law Library and the State Law Libraries of Maryland and Virginia as a collaborative digital archive for the preservation of important Web-published legal materials, which often disappear as Web site content is rearranged or deleted over time. More about the Chesapeake Project. In the three years since the archive was launched, the Chesapeake Project law libraries have built a collection comprising more than 5,700 digital items and 2,300 titles, all of which were originally posted to the Web. For this study, the term “link rot” is used to describe a URL that no longer provides direct access to files matching the content originally harvested from the URL and currently preserved in the Chesapeake Project’s digital archive. In some instances, a 404 or “not found” message indicates link rot at a URL; in others, the URL may direct to a site hosted by the original publishing organization or entity, but the specific resource has been removed or relocated from the original or previous URL. All of the Web resources described in this report that have disappeared from their original locations on the Web remain accessible via permanent archive URLs here at, thanks to the Chesapeake Project’s efforts. he Chesapeake Project conducted its first link rot assessment at the project’s one-year mark in 2008 as part of its first-year evaluation. During the project’s first year, 1,266 born-digital online titles were harvested from the Web and preserved within the digital archive. A random sample of 579 titles was selected for the link rot study, ensuring results at a 95 percent confidence level and confidence interval of +/- 3. When this sample was first analyzed in March 2008, link rot was found to be present in 48 of 579 URLs. One year later, in 2009, the sample was analyzed a second time as part of the project’s second-year evaluation. The second analysis demonstrated that link rot was present in 83 out of the original sample of 579 URLs. Within 12 to 24 months of harvest, 14.3 percent of the archived titles had disappeared from their original URLs, compared to the March 2008 analysis, which had shown link rot among the sample URLs to be 8.3 percent. The present analysis of the sample showed that by March 2010, the prevalence of link rot had increased to 160 out of 579 URLs. Within two to three years of harvest, link rot among the sample URLs had increased to 27.9 percent, compared to 14.3 percent in 2009 and 8.3 percent in 2008. In other words, link rot increased from about one in every 12 archived titles in 2008, to one in every seven titles in 2009, and finally to about one in every 3.5 titles in 2010.

Social Networking: The Employment Law Revolution That Wasn’t (ReadWriteWeb, 6 May 2010) - There’s been a lot of anxiety provoked (and money made) predicting a “parade of terribles” in the workplace as a result of social networking sites and employee blogs. While there is no doubt that these sites provide additional opportunities for employees to be distracted from getting their work done, I contend that not all that much has changed. Employees that are wasting their time on social networking sites today were gossiping at the water cooler in yesteryear, and the solution is the same: thoughtful policy implementation and vigilant managerial oversight. While there are clearly some updates to how we manage the workplace, in context I don’t think it is as revolutionary as many doomsayers would have us believe. The implications of social networking fall into three categories: pre-employment, during employment, and post-employment. Below is what I see as the key considerations.

Unauthorized Access Doesn’t Apply to E-Mail, Judge Rules (, 6 May 2010) - A Manhattan plastic surgeon who allegedly installed keystroke-tracking software on an office computer and then accessed an employee’s personal e-mail cannot be charged with unauthorized use of a computer, a criminal court judge has ruled. Citing the lowered privacy expectations for e-mails, Judge Marc J. Whiten granted the defendant’s motion to dismiss the misdemeanor charge. “Whereas some may view e-mails as tantamount to a postal letter which is afforded some level of privacy, this court finds, in general, e-mails are more akin to a postcard, as they are less secure and can easily be viewed by a passerby,” Whiten wrote in People v. Klapper, 09NY032282. “Moreover, e-mails are easily intercepted, [which] diminishes an individual’s expectation of privacy in e-mail communications.” [Editor: sophomoric analysis?]

UC Davis Scraps Gmail Pilot: Privacy Levels ‘Unacceptable’ (ZDnet, 7 May 2010) - Google has been hit with a major blow in regards to privacy by a leading US university, which this week ended their pilot of the outsourced Google Apps email system. Peter Siegel, the University of California Davis chief information officer, sent a letter with support from senior staff to employees stating that the Gmail pilot to supply 30,000 students and staff would end before a full roll-out across its entire network, due to doubts in keeping the students’ email and content secure and private. According to InformationWeek which broke the story, some excerpts of this letter offer some revealing and interesting justifiable perspectives from the senior university figure: [Many faculties] “…expressed concerns that our campus’ commitment to protecting the privacy of their communications is not demonstrated by Google and that the appropriate safeguards are neither in place at this time nor planned for in the near future. [This move by the university] “…by and large, it’s not typical of what we’re seeing in the market. We’re seeing lots of schools move their students and faculty onto Gmail”. In regards to the concerns over passing on or examining the contents of emails without the students’ permission - which Gmail does to provide relevant advertisements: “Outsourcing e-mail may not be in compliance with the University of California Electronic Communications Policy. Though there are different interpretations of these sections, the mere emergence of significant disagreement on these points undermines confidence in whether adopting Google’s Gmail service would be consistent with the [aforementioned] policy”.

Cablevision Won’t Cripple Its Network DVR (ArsTechnica, 7 May 2010) - Cablevision had to fight all the way to the Supreme Court in order to make its remote storage DVR (RS-DVR) into a reality. Now that it has done so, the company shows little inclination to pacify rightsholders upset about the technology. The ability to fast-forward through commercials will remain a key piece of the service. RS-DVR technology moves the video recording technology from a box sitting beside your TV into the network. Cablevision runs major servers at its headends which stream their user interface down the cable line and onto people’s TV sets. Apart from some lag, the system works like a home DVR—but without the millions of individual boxes, the truck rolls for installation, the service calls when something goes wrong, and the like. For Cablevision, it saves money. One consequence of all the court battles concerning the RS-DVR is that Cablevision is required to create and then store an individual copy of every program recorded by every customer. In other words, the system cannot simply record one copy of The Simpsons and then string it out to everyone who requests it. This would amount to an authorized retransmission of TV content. Instead, Cablevision had to set up the system in such a way that it mirrors exactly the traditional DVR functionality; customers must individually choose what shows to record and the system must keep separate copies of those shows. On a conference call for investors yesterday, Cablevision executives admitted that this did raise costs slightly, but said it was still cheaper than rolling out boxes to every home. And if the company has to mimic traditional DVR technology to stay legal, it plans to maintain a key DVR advantage: the ability to fast-forward through commercials. When an analyst on the call asked whether Cablevision plans to disable this ability in order to placate the broadcasters, the response was unequivocal: “We do have that option, but we’re going to make it work as a consumer product like a physical DVR.” Still, the question reminds us of how much control we have surrendered over our devices. Services that move into the network, such as the RS-DVR, can have functionality altered at a moment’s notice. But running a home DVR doesn’t give much additional control, either; firmware updates for consumer electronics are now routine, and Sony has recently reminded us that advertised features may be removed at any time.

Lyrics Sites at Center of Fight Over Royalties (NYT, 9 May 2010) - What’s the line in that song? That’s what Milun Tesovic wanted to know back in 2000 as he searched online for the lyrics of his favorite tunes. But often, he got results that seemed dubious or could not find the song at all. So a year later, at age 16, he started his own site. That site,, crept up on search engine results, and before he knew it, he said, checks from advertisers were arriving in the mail and the site “started looking a lot more like a serious business.” Now 24, Mr. Tesovic helps oversee the site and its handful of employees from an office outside Vancouver. It drew about 13.5 million unique users in March and generated close to $10 million in revenue in 2009. He is not the only one walking that particular stairway to heaven. Dozens of sites with a range of quality and graphics now showcase song lyrics, raising the prominence of the words and sometimes providing significant revenue for the sites’ owners. For songwriters and their publishers, though, the ubiquity of lyrics on Web sites presents both opportunities and problems — especially when it comes to getting some of the sites to pay royalties for use of the lyrics. For decades, printed song lyrics lived in relative obscurity, relegated to album sleeves and sheet music. And until now, they provided no significant source of revenue. But the digital age has provided a chance to re-evaluate the value of the words, said David Israelite, the chief executive of the National Music Publishers’ Association, which represents more than 2,500 publishers. That value, he said, “hasn’t been exploited very well.” Collecting royalties for the lyrics has not been easy, though. The sheer number of publishers makes it cumbersome for each site to reach deals with each of them. Only in the last couple of years have companies, including Gracenote and LyricFind, gathered the licenses themselves, which they then sell to sites. The creation of those third-party aggregators is a crucial first step toward finding significant revenue from the sites, said Peter Brodsky, an executive vice president at Sony/ATV, a major publisher.

Law Firm Media Survey Reveals Pay, Policies (Robert Ambrogi, 10 May 2010) - A just-published compensation survey of law firm media professionals offers an inside look not only at what these professionals earn, but also at their firms’ use of social media. The survey was conducted by the organization Law Firm Media Professionals in conjunction with Hellerman Baretz Communications. In terms of social media usage, the survey showed:
6.     Forty-two percent said their firm has a blog.
7.     Sixteen percent have more than four blogs.
8.     Half said their firms have policies regarding social media but only a quarter conducted formal social-media training.
9.     Forty percent of firms budget for social media.
Asked to rank which social media sites they considered most important for law firms, they answered:
1.     LinkedIn, 61%.
2.     Martindale-Hubbell Connected, 53%.
3.     Facebook, 49%.
4.     Twitter, 47%.
5.     Legal OnRamp, 19%.
Asked why their firms use social media, 43 percent said the top reason was to raise the firm’s brand and visibility. Next, at 17 percent, was for attorney networking. Asked what keeps firms from using social media, 44 percent cited firm policy and risk management. Full study here:

Lawyers’ Ethical Stumbles Increase Online (, 11 May 2010) - Steven Belcher was defending a wrongful-death case in 2006 when he had a bad idea. Belcher, then a temporary attorney at Paule, Camazine & Blumenthal in St. Louis, e-mailed a photograph of the overweight deceased, lying naked on an emergency room table, to a friend, along with his own lewd and disparaging commentary. The firm, which monitored work e-mails, turned him in to the state disciplinary counsel, and he was slapped with a 60-day suspension, stayed pending probation. Belcher, who is still licensed to practice law but has joined the Army, admits he made a “stupid” mistake. “I had my head up my butt,” he said. Because he was licensed to practice in Illinois and Virginia as well as Missouri, more than one bar counsel heard about his case. And they wondered whether there was more here than one lawyer’s bad decision. “It got our eyebrows up,” said James Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission and a past president of the National Organization of Bar Counsel. “We thought, ‘Wow, are we going to see more of these?’ Well, I think it’s clear we are starting to see more.” Grogan, also chief counsel of the Illinois Attorney Registration and Disciplinary Commission, said the sense among his disciplinary brethren is that “more investigations are being generated for lawyers misusing electronic communications and the internet.” Numbers are hard to come by; no one agency tracks the number of lawyers facing discipline for online behavior. But social networking by attorneys and all its potential dangers is being closely monitored in nearly every corner of the legal profession. Disgruntled clients, lawyers outing other lawyers, and bar counsel themselves are sparking investigations. Law firms host seminars and webinars on it. And bar counsel and bar associations bring it up at nearly every meeting. The American Bar Association’s Commission on Ethics 20/20 has on its agenda, among other 21st century issues, whether existing ethics rules adequately address social media use by lawyers. It’s not as if lawyers never misbehaved before. But now they’re making the same old mistakes -- soliciting for sex, slamming judges, talking trash about clients -- online, leaving a digital trail for bar counsel to follow. Legal ethics expert Michael Downey said lawyers’ tendency to be risk-averse seems to fade away on the internet. “They’re disclosing confidences, talking about pending matters, they take potshots ... like everyone else,” said Downey, immediate past chairman of the American Bar Association’s Ethics and Technology Committee and a member of the ABA Center for Professional Responsibility. Downey routinely lectures to law firms and bar associations on the ethical concerns lawyers face in the worlds of Twitter, Facebook, and blogs. “Someone just suggested yesterday that I do a program on this.” The following stories may explain why.

German Web Users Must Use Password to Secure WLAN (AP, 12 May 2010) - Germany’s top criminal court says Internet users need to secure their private wireless connections by password to prevent unauthorized people from using their Web access to illegally download data. The court in Karlsruhe ruled Wednesday that Internet users can be fined up to euro100 ($126) if a third party takes advantage of their unprotected WLAN connection to illegally download music or other files. But the court stopped short of holding the users responsible for the illegal content the third party downloads themselves.

Risk Management and E-Discovery: Qualcomm Revisited (, 12 May 2010) - Almost three years ago, we wrote about the tension between a lawyer’s defense of his own professional conduct and his duties of loyalty and confidentiality to his client. The issue was presented in Qualcomm Inc. v. Broadcom Corp., a California patent infringement case involving cell phone technology. During trial, the court learned that Qualcomm and its counsel did not produce more than 200,000 pages of relevant electronic documents. As a result, Qualcomm was ordered to pay Broadcom’s hefty legal fees ($8.5 million), and the district court judge referred the matter to a magistrate for consideration of further sanctions. The magistrate found that Qualcomm intentionally withheld thousands of documents that had been requested during discovery and that certain of the withheld documents directly contradicted one of Qualcomm’s key arguments. In addition, the magistrate sanctioned Qualcomm’s attorneys based upon the premise that they failed to conduct a reasonable inquiry into the adequacy of Qualcomm’s document production. Those sanctions were vacated by the district court, and the matter was remanded to the magistrate to provide counsel the opportunity to defend themselves. On April 2, 2010, the magistrate ruled that the attorneys should not be sanctioned, as the record demonstrated that they took significant steps to comply with the original discovery obligations. While the attorneys were vindicated, the court’s decision provides important guidance on discovery practices, as well as how to maintain both objectivity and integrity in our relationships with clients.

Management on Social Media: Good Employee Communication Tool or Liability (ABA Journal Podcast, 30 April 2010) - Using social media is as easy as sending an e-mail and is quickly becoming the preferred way for many to communicate. But is it the right platform for managers looking for ways to keep their employees informed and engaged? Or are they risking too much by exposing themselves and their companies to unnecessary liabilities? Listen to ABA Journal Podcast moderator Stephanie Francis Ward as she guides experts through a discussion of what employment lawyers are telling clients about Web 2.0 and whether that advice is out of date. Business of Law reporter Rachel Zahorsky (@LawScribbler) tweeted their conversation live using the Twitter hashtag #ABAJchat.

**** RESOURCES ****
Site Provide Citizens with Single Destination To Explore All the Information from Data.Gov (BeSpacific) - “Our long-term vision for ThisWeKnow is to model the entire catalog and make it available to the public using Semantic Web standards as a large-scale online database. ThisWeKnow will provide citizens with a single destination where they can search and browse all the information the government collects. It will also provide other application developers with a powerful standards-based API for accessing the data. Loading governmental databases into a single, flexible data store breaks down silos of information and facilitates inferences across multiple data stores. For example, inferences can be made by combining census demographic data from the Agency of Commerce, factory information from the Environmental Protection Agency, information about employment from the Department of Labor, and so on. We can’t even begin to imagine the discoveries that will become possible after all these data are loaded into an integrated repository.”

Timely Training without Travelling on Tuesdays! (ABA’s LTRC, 28 April 2010) - How can I better use the technology that I already have? What can I do to learn more about technology in less time? Training Tuesdays was designed to answer these questions. As part of ABA TechEZ, the ABA Legal Technology Resource Center is working with vendors and leading legal technology experts to deliver simple, high quality, practical training to ABA members on Training Tuesdays. Training Tuesdays presents expert technology training in bite sized portions; none longer than fifteen minutes. In the training library, Ben Schorr, author of The Lawyer’s Guide to Microsoft Outlook 2007, presents “Power Tricks with E-mail: Doing More with What You Have.” This eight minute video demonstrates some helpful and practical tricks to immediately get your inbox under control. Microsoft Office recently underwent some major changes with the upgrade to the 2007 version. ”Office 2007: Increase Your Productivity with the Quick Access Toolbar“ is designed to get you up and running with the latest version Microsoft Office 2007. Take five minutes to see how the customized toolbar can help you boost efficiency and productivity. Every Tuesday at two o’clock (CT) there will be a live presentation, demonstrating how to get the most out of the applications commonly used by legal professionals. Just check the ABA TechEZ training calendar to see upcoming events and register online; access to Training Tuesdays is one of the many benefits of ABA membership. Miss a training event or looking for another topic? No problem. All training events are archived and available in our training library for later viewing. Subscribe to the ABA TechEZ Library RSS feed to stay up to date on new additions to the on-demand library (What is RSS? See FYI: RSS). Visit the ABA TechEZ home page to see if discounts are available on the featured products.

How to Cite a Podcast in Legal Documents Addressed in 19th Edition of Bluebook (SMLS, 13 May 2010) - How do you cite a Podcast in a legal document? First, I checked my PAPER copy of The Bluebook and “Podcast” was nowhere. I thought maybe an Internet citation, or some type of audio citation, would be a respectable work-around but that a Podcast should require some different citation rules. After asking several law students and lawyers, who also did not know, I emailed Mary Prince (formally Miles) who was the coordinating editor for the 18th edition of Bluebook. Today, Ms. Prince confirmed, after consulting with the current Bluebook editors, that the 19th edition of Bluebook would address citing Podcasts and that the 19th edition was due out in a week!

WolframAlpha demo clip -- Wolfram|Alpha’s long-term goal is to make all systematic knowledge immediately computable and accessible to everyone. We aim to collect and curate all objective data; implement every known model, method, and algorithm; and make it possible to compute whatever can be computed about anything. Our goal is to build on the achievements of science and other systematizations of knowledge to provide a single source that can be relied on by everyone for definitive answers to factual queries. [Editor: 13 minutes demo covers varied and interesting stuff: bonds/mortgage calculations; stock comparisons (e.g., MSFT and APPL); exercise, diet and nutrition; weather; website activity; crossword puzzling]

Knowledge Discovery Resources 2010 - An Internet MiniGuide Annotated Link Compilation (LLRX, 7 May 2010) - This compilation is dedicated to the latest and most competent resources for knowledge discovery available over the Internet. The key is to be able to find the important knowledge discovery resources and sites both in the visible and invisible World Wide Web. The following selected knowledge discovery resources and sites offer excellent knowledge and information discovery sources to help you accomplish your research goals.

"SEC clarifies liability rules over internet investors" (The Financial Times, "Market Watchdog", page 5 April 26, 2000) The US Securities and Exchange Commission yesterday approved a set of rule clarifications designed to govern the legal liabilities of companies that use the internet to communicate with investors. The guidelines, contained in a so-called "interpretive release" by the market watchdog, cover such issues as online private offerings and an issuer's responsibility for material misrepresentations or omissions made in content linked to a third-party web site. The guidelines
say internet links from "disclosure documents" are included - making the issuing company responsible for their content. But company web sites do not form part of these documents. The SEC also issued a reminder to web site operators that certain activities connected to online private offerings required such operators to register as broker-dealers under securities law. The rules are expected to take effect within a week. Existing SEC rules make telephone consent for customers to receive documents by e-mail permissible. They stress the existing SEC principle that investors should not be excluded from the marketplace because they do not own a computer. The SEC release solicits comment on a variety of issues relating to the increasing use of the internet as an investment tool for both customers and companies. [The interpretive release can be found at the following URL:]

**** NOTES ****
MIRLN (Misc. IT Related Legal News) is a free product for members of the American Bar Association’s Cyberspace Law Committee, et al., and is produced by KnowConnect PLLC. Members of the ABA Cyberspace Law Committee automatically receive MIRLN postings (about every third week); members can manage their subscriptions at (find the “Listserves” box; MIRLN comes through the CLCC-MEMS listserve). Others who wish to be added to the MIRLN distribution list should send email to Vince Polley ( with the word “MIRLN” in the subject line, and similarly will be removed from the distribution list after sending email to Vince with the words “MIRLN REMOVAL” in the subject line.

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SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School,
2. InsideHigherEd -
3. SANS Newsbites,
4. NewsScan and Innovation,
5. BNA’s Internet Law News,
7. McGuire Wood’s Technology & Business Articles of Note
8. Steptoe & Johnson’s E-Commerce Law Week
9. Eric Goldman’s Technology and Marketing Law Blog,
11. Readers’ submissions, and the editor’s discoveries.

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