Wednesday, June 27, 2007


On Friday I attended a privacy conference at Boalt. The purpose was to get people on the ground into the same room as people in the ivory tower. However, as one attorney commented privately, "It's everyone telling other people what work to do." I did see that: researchers saying, "We need articles on this," and practitioners saying, "We need studies on that," and still others interjecting, "There's already a study on this, and there's already a paper on that." But if nothing else, it accomplished one thing: everyone was exposed to what everyone else was doing.

Most of the attendees knew 2/3rds of the people there from countless other workshops and were consequently jaded to the whole experience. But I, being young and uninitiated, found it all pretty interesting. Plus there were some names there, people whose law reviews I've cited to or whose names I knew. Eg, I got to meet Dan Solove (yes, I will toss out the short form!).

Some random highlights:
Everyone seemed in agreement over making it a Federal crime to use a social security number as an authenticator. Companies should be able to use it as an identifier (this name matches this information), but they shouldn't be able to use it as proof of authenticity (Eg, prove you are who you say by providing your SSN.) Suggestions: use a combination of personal data to verify one's identity, such as date of birth, mother's maiden name, and previous address.

In a discussion of click-wrap agreements (you download a program and accept all the terms of the contract by clicking "I agree"), I saw that the common terminology "notice and consent" was replaced by "notice and choice." The implication being that the default should be choosing, not agreeing to the terms.

Some lessons from the environmental movement could perhaps be imported into the privacy realm. Eg, privacy impact statements, public shaming of companies, regulation in the form of covenants. But the environmental movement has Al Gore. Privacy needs a celebrity!

Sunday, June 17, 2007

DIY Sources

The other day I was working on my draft of an amicus brief. I had to begin by explaining some fundamentals of the internet, such as describing the difference between a static and dynamic IP address (I've changed the facts to protect the innocent). I've read cases where the judge footnoted to a Wikipedia article, so I checked out the Wiki definition of the terms I wanted to use. As it happened, the definitions didn't adequately cover the issue.

What did I do? Naturally, I signed into my Wiki account and edited the entry. Only then did the absurdity of citing to a 'customizable source' hit home.

Needless to say, I didn't use Wikipedia as a source for the brief.

Sunday, June 10, 2007


One of the attorneys where I work asked me the other day if I had taken any classes that dealt with ECPA ("Electronic Communications Privacy Act"). ECPA (usually spoken as "eck-puh") was enacted to extend privacy protections to electronic communication on computers, like the Wiretap Act protects phone calls. The Act is notoriously opaque, so it's difficult to get an intern up to speed on it quickly. I winced when he asked.

"To be honest," I said, "I know enough about it to know that I don't know anything about it."
He visibly brightened and exclaimed: "You do know ECPA!"

Daniel Solove (internet privacy guru who blogs on Concurring Opinions) on ECPA: 72 Geo. Wash L. Rev 1264, 1292-93.
"If one is not willing to study ECPA like a biblical scholar studies the Bible, there is little hope of figuring out ECPA."

And an amusing jab at Orin Kerr (who blogs on The Volokh Conspiracy):
"Kerr, who can probably recite the ECPA by memory, and perhaps even in verse, admits that it its surprisingly difficult to understand."

Thursday, June 07, 2007


All my grades are finally in. I'm pleased; I couldn't be happier. Ok, that's a lie: I would've liked to CALI something. (CALI awards are given to the student with the highest grade in a class.)

A short-statured friend of mine (who, BTW, CALI'd Forensic Evidence), received an A in another class as well. When he told me this, I asked if it was a solid A. He replied, "Yeah, I don't do minuses. Horizontal stripes make me look even shorter."

UPDATE: I CALI'd my Intellectual Property Seminar course.

Happy Birthday Betamax

As a friend of mine informed me, today is the birthday of the Sony Betamax (born 1975), the subject of the infamous landmark case for fair use, Sony v. Universal. I shared this with the IP attorneys here at work via email; one responded:

"Alas, poor Betamax, I knew him, Horatio: a fellow of infinite jest,
of most excellent fancy: he hath borne me on his back a thousand

Monday, June 04, 2007

Age and Experience

Week two...

I'm enjoying my local underdog status. The other interns are from all over the country, but they uniformly hail from top-tier schools. As in Harvard, Boalt, U Michigan, etc. I do have a significant advantage, which is that I'm going to be a 3L and most of them are 2Ls. I've taken a ridiculous amount of relevant courses. I know what everyone is talking about when they drop DMCA code sections.

I confess some apprehension, however. Maybe I'm supposed to be doing something else, something more 3L-ish? To my readers expressing envy for my cozy work environment, I should add: it's unpaid!

Saturday, June 02, 2007

Trademark Parlance

I asked a friend of mine what he was doing tonight. He said he was hanging out with some "non law school friends." (Ouch!)

I don't think of most of my friends as legal or civilian anymore (including the law school friend above, [wink]). But maybe that's because I moved out here knowing no one. I didn't have a preexisting group of people to classify schoolmates against.

But I definitely have friends who evolved beyond the law school arena. I would say they acquired secondary meaning.

On an Unrelated Note...

I learned two tricks in the past two days on my computer, both embarrassingly foundational.

1. In Word: You can move text from one document to another by drag-and-dropping into the minimized window on the task bar. (Instead of cut-and-paste.)

2. In Windows: You can find a program quickly in "All Programs" by typing the name of the program. (Why aren't they alphabetized? Or is that another setting I haven't found?)

Friday, June 01, 2007

Week in Review

I started my internship this week at an organization committed to rights in the online world. A few details:

- In the bathroom, there's a familiar sticker on the toilet, clearly pulled off a laptop: "Designed for Windows XP." (Another one on the bathroom mirror: "You Are Under Surveillance!").

- During meetings, everyone brings their computer (we all work in the office from our personal laptops). People freely work, email, and IM during these conferences. In fact, my work email points to my personal email account, and people send email to the staff email list all day. Nevertheless, it's very hard to suppress the urge to minimize my Gmail window when someone walks by.

- We interns were advised that we can sit in on any meeting going on because they are "open source," although with a "CC license," someone quipped. (Creative Commons).

- Discussions of ordinary life quickly evolve into pertinent legal discussions. For example: There's a soda machine in the office. One of the interns suggested that it would be cheaper to have a fridge that we bought soda to put into it. One of the attorneys suggested money could then be placed into a fund and distributed to the soda companies according to the frequency with which their soda was purchased. (Referencing, of course, the subscription-based online music proposal.)

- Everyone wears jeans and sneakers. A row of bikes hang from a rack inside the building, next to the pool table. A giant dog is leashed outside our legal director's office. And I mean GIANT, as in the size and shape of a medium-sized bear.

- It may be stating the obvious, but everyone uses a Mac. And staff transportation (in addition to the bikes) includes six Priuses.