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Testing Transition to LiquidWeb

Anon, We Have to Have a Citation, 1 J. Not. 1 (2017).
Michael Froomkin

Michael Froomkin

This post is unique to the transitioned site.  It is not on the old Dreamhost platform.  If you are seeing this post, you either have pointed your browser to the staging area or the DNS cutover has been successful.  My plan for testing is to have the DNS cutover on this section first, then on the other zetas.  In that process I have to test:

  1. that legacy mail forwarding still works.
  2. that changes to mail forwarding work
  3. that I can access the new version on https as well a http
  4. that I can get into the dashboard
  5. that sftp access works
  6. that ssh access works

Perhaps I will note the results here, or in a subsequent post, or — better yet — as a way to test the comments pages.

UPDATE: regenerating post to see if that fixes comment problem.

Cite as: Michael Froomkin, Testing Transition to LiquidWeb, JOTWELL (August 5, 2017) (reviewing Anon, We Have to Have a Citation, 1 J. Not. 1 (2017)), https://zetasec2.jotwell.com/testing-transition-liquidweb/.

Plus Ça Change

A. Tester, Use of Foreign Characters in Blog Post Titles, #EA000 J Irreproducable Results 3549 (2016).
Michael Froomkin

Michael Froomkin

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

Cite as: Michael Froomkin, Plus Ça Change, JOTWELL (May 30, 2017) (reviewing A. Tester, Use of Foreign Characters in Blog Post Titles, #EA000 J Irreproducable Results 3549 (2016)), https://zetasec2.jotwell.com/plus-ca-change/.

Being Interconnected

Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015).

For a number of years, Drucilla Cornell has been studying and reflecting upon ubuntu,1 an African term expressing the idea that humans come into being through interconnectedness and that therefore they have a being, understanding, and set of obligations that emerge in their interconnections. The 2015 article authored by Cornell and South African scholar Karin van Marle summarises ubuntu, compares it with classical Western individualist notions of the self, and considers what it has to offer to Western feminism. The article not only serves as an introduction to a significant African concept, but also challenges Western legal feminism to reflect on its foundational concepts. Although this particular article is relatively short, it is very rich in detail and offers a number of intriguing directions for further reflection and action. In this brief review, I will summarise some key features of ubuntu as presented by Cornell and van Marle, and offer a few comments about its broader significance. My intention is to inspire readers to go to the original article: the ideas are new to me and my rendition of them is short and lacking in depth.

By contrast to Western philosophy, the idea of ubuntu does not permit questions such as “who am I?,” “what do I know?,” and “what ought I to do?” to be addressed separately in the abstract. We are not abstract beings, but become beings in a time and a place, and are always already surrounded by others. Who we are, what we know, and our ethical obligations are connected. As Cornell and van Marle explain,

Ubuntu is a philosophy on how human beings are intertwined in a world of ethical relations from the moment they are born. Fundamentally, this inscription is part of our finitude. We are born into a language, a kinship group, a tribe, a nation, and a family. We come into a world obligated to others, and those others are obligated to us. We are mutually obligated to support each other on our respective paths to becoming unique and singular persons.

(P. 2.)

As Cornell and van Marle further explain, ubuntu bypasses key Western distinctions between ethics, epistemology, and ontology. Ethical imperatives are embedded in our fundamental connectedness and in the dignity necessarily accorded to all people as a result of the “social bond.” (P. 3.) The emergence of the human in an intermingled, obligated life means that it is impossible to distinguish, as Western philosophers do, the question of being from that of knowing, and that of right action: “Ubuntu in this sense encapsulates how we know the world as well as how we are in it through the moral obligations as human beings who must live together.” (Id.)

  1. For instance, Drucilla Cornell, uBuntu, Pluralism and the Responsibility of Legal Academics to the New South Africa, 20 Law & Critique 43, 47 (2009). []
Cite as: Not Real, Being Interconnected, JOTWELL (February 18, 2017) (reviewing Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015)), https://zetasec2.jotwell.com/being-interconnected/.

Table Test

Michael Froomkin

Michael Froomkin

These Australian developments, which Professor Fortney describes in the first two sections of Promoting Public Protection, provided the backdrop for her own empirical study that is described in detail in her longer article and that is summarized in her Promoting Public Protection article. Professor Fortney’s study explored the issue of why there had been such a dramatic reduction in client complaints among the Australian ILP firms that had used the self-assessment process. As Promoting Public Protection reports, Professor Fortney found that almost three quarters of the firms that conducted the self-assessment revised their law firm policies as a result of going through the self-assessment process. Her study also found that close to half of the respondents had adopted new systems, policies, and procedures as a result of the self-assessment procedure. She concluded that

“Quite simply, these findings point to the positive impact that the self-assessment process has in encouraging firms to examine and improve the firms’ management systems, training, and ethical infrastructure. Interestingly, with respect to most steps taken by the firms, there was no significant difference related to firm size and steps taken.”

Professor Fortney’s article included the table that is reproduced below that shows the impact of the self-assessment process:

Table 1

Steps Taken by Firms in Connection with the First Completion of the Self‐Assessment Process

Reviewed firm policies/procedures relating to the delivery of legal services84%
Revised firm systems, policies, or procedures71%
Adopted new systems, policies, or procedures47%
Strengthened firm management42%
Devoted more attention to ethics initiatives29%
Implemented more training for firm personnel27%
Sought guidance from the Legal Services Commissioner/another person/organization13%
Hired consultant to assist in developing policies and procedures06%

Testing the PDF Plugin ? and /

Michael Froomkin

Michael Froomkin

Apologies for bothering you again, but I think I’ve run into a small bug.

I am finding that some blog posts do not get pdfs generated for them.

Examples of the problem are:

http://conlaw.jotwell.com/why-exactly-are-jackson-pollocks-paintings-shielded-b$

Delinking Sex/Gender from Parenting

Patent Crisis?/Judicial Solution?

Structure and/or Culture

Sex/Power/Law

In each case, no pdf file was created, and going in and modifying the text (e.g. by adding a space at the end of the article), doesn’t cause a pdf to appear when I click on the pdf link. I suspect it is the / and or ? characters in the titles that are causing the issue since that is what these posts seem to have in common.

One work-around might be for me to use extended HTML codes in the title (assuming the plugin takes things like ? and / in titles), but that will cause some strain on other ways in which I use the titles — e.g. the “cite as” block at the end. This is not insurmountable as I can replace those by hand, but it would be nice to avoid if I could, so I thought I should ask if there’s an easy fix.

Other than this, it’s working great, and so I thank you again for creating and maintaining it.

The Robots Are Coming

A. Michael Froomkin & Zak Colangelo, Self-Defense Against Robots, We Robot 2014 Conference Draft (2014).
Michael Froomkin

Michael Froomkin

Deployment of robots in the air, the home, the office, and the street inevitably means their interactions with both property and living things will become more common and more complex. This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy.

In the real world where Asimov’s Laws of Robotics1 do not exist, robots can pose—or can appear to pose—a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.

The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases—drone overflights, autonomous cars—national, state, and even local regulation may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots—perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.

Part II discusses common-law self-help doctrine, which states that conduct, otherwise tortious, is privileged where it cures, prevents, or mitigates a more serious tort that is, or reasonably seems to be, about to occur. In the protection-of-person context, the issue is simple because we value life more than property. One may destroy even expensive property in the reasonable belief that the destruction is necessary to save one’s own life or that of another. The same general rule applies to non-life-threatening personal injury, subject to a reasonableness test as to the relative damages. On the other hand, one may not destroy expensive property to protect inexpensive property. The test is one of cost-benefit: the chattel that poses the threat may be harmed only if the cost of that harm is less than the cost of the harm that will otherwise be done by the chattel.

Privacy intrusions complicate the calculus. Intrusion upon seclusion is a recognized, if somewhat exotic, tort, but its rarity in the courts means that the scope of permissible self-help against privacy-invading chattels—like the camera planted by the landlord in the tenant’s bedroom—is poorly charted legal territory. In principle, a tort is a tort, so some self-help should be justified.

  1. Isaac Asimov introduced the three laws (“1. A robot may not injure a human being or, through inaction, allow a human being to come to harm. 2. A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law. 3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.”) in Runaround, a short story originally published in the March 1942 issue of Astounding Science Fiction and subsequently included in ISAAC ASIMOV, I ROBOT (1950). []
Cite as: Michael Froomkin, The Robots Are Coming, JOTWELL (April 17, 2014) (reviewing A. Michael Froomkin & Zak Colangelo, Self-Defense Against Robots, We Robot 2014 Conference Draft (2014)), https://zetasec2.jotwell.com/the-robots-are-coming/.

WordPress 3.9 and Theme 1.15 Updates

A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014).
Michael Froomkin

Michael Froomkin

Personal privacy in developed countries is disappearing faster than the polar ice caps. The rapid growth in the number and breadth of databases, the continuing drop in the costs of information processing, the spread of cheap sensors and of self-identification practices, all have combined to make this the era of Big Data. Much like global warming, drift-net data collection and collation creates widespread harms substantially caused by actions not visible to most of those affected. Both the private sector and the government find value in collecting vast amounts of information about everyone: firms collect personal data for marketing and revenue maximization; governments collect personal data for everything from efficiency to security. Practically nothing and nowhere is exempt: Data are collected in the home, from cell phones, online, and in public spaces. Market failures, information asymmetries – including, we have recently learned, a stunning lack of government transparency about domestic surveillance – and collective action problems characterize many aspects of the current privacy crisis, much as they did the environmental problem in the 1960s.1

Modeling mass surveillance disclosure regulations on an updated form of environmental impact statement will help protect everyone’s privacy. Mandating disclosure and impact analysis by those proposing to watch us in and through public spaces will enable an informed conversation about privacy in public. Additionally, the need to build in consideration of the consequences of surveillance into project planning, as well as the danger of bad publicity arising from excessive surveillance proposals, will act as a counterweight to the adoption of mass data collection projects, just as it did in the environmental context. In the long run, well-crafted disclosure and analysis rules could pave the way for more systematic protection for privacy – as it did in the environmental context. Effective US substantive regulation will require the regulator to know a great deal about who and what is being recorded and about the costs and benefits of personal information acquisition and uses. At present we know relatively little about how to measure these; the privacy equivalent of the environmental impact statement will not only provide case studies, but occasions to grow expertise.

Environmental impact statements may be out of fashion today, but they played an important role in educating the public, policy-makers, and also builders about environmental risks and costs, especially in the early days of environmental regulation. In the US, these are still the early days of privacy regulation. We can apply what we have learned from more than thirty years of environmental disclosures to craft a better regime for disclosure, and thus analysis and debate, of the rapidly increasing number of public and private projects that involve mass surveillance.

Part I of this article gives examples of mass surveillance activities drawn from both the private and public sectors. It argues that mass surveillance is already very great, is growing, and that it is difficult to monitor and poorly understood. This Part also discusses how the deployment of privacy-destroying technology can be seen as a form of market failure. Part I then provides the context for the argument that follows. It briefly surveys the limited and inadequate doctrinal legal tools available to respond to the deployment of mass surveillance technologies and notes the existence of a wide gap when it comes to surveillance in or through public spaces. Then it provides a very quick summary of the Privacy Impact Notice (PINs) proposal, noting that the aim of this article is to make the case in principle for the utility and validity of Privacy Impact Notices without tying the argument to any particular level of coverage.

Part II first explains how, with the National Environmental Policy Act of 1969 (NEPA), environmental law responded to a similar set of market failure problems relating to physical harms to the environment. It outlines the main features of the Environmental Impact Statement (EIS) requirement for environmentally sensitive projects and then argues that we can learn from NEPA’s successes and defects in order to craft a Privacy Impact Notice (PIN) requirement triggered by plans to engage in mass surveillance. It contrasts the PIN proposal to the existing, much more limited, federal privacy analysis requirement, known as Privacy Impact Assessments. Part II also provides an initial sketch of what a PIN proposal would cover, in particular which sorts of activities would have presumptive safe harbors and which would likely be subject to the most thorough analysis and disclosure requirements. The final section of Part II examines whether the PINs proposal would have applications to surveillance and data-collection in online public spaces such as Facebook, Twitter, and other virtual spaces. It also considers what the PINs proposal would have to offer towards addressing the now-notorious problem of the NSA’s drift-net surveillance of telephone conversations, emails, and web-based communications.

  1. This is a test footonote. []
Cite as: Michael Froomkin, WordPress 3.9 and Theme 1.15 Updates, JOTWELL (April 16, 2014) (reviewing A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014)), https://zetasec2.jotwell.com/worpress-3-9-and-theme-1-15-updates/.