Category: Technology

Are Survivors’ Costs a Pro-Life Issue?

The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years. The data that inspired the study are startling:

While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions — the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) — led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins.

To make a long story short, the researcher found that found that “longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.”

Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits. For example, the CBO counts “increased costs to the Medicare program for extending the life of its beneficiaries” as “survivors’ costs.” Tim Westmoreland’s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this “euthanasia by budget:”

In describing why its model included costs but no savings from new access to pharmaceuticals, the Congressional Budget Office said, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.” In other words, it is still cheaper for Medicare beneficiaries to die.

One wonders if the same reasoning was behind a Texas law that permitted hospital authorities to cut off life support to a conscious woman.

I admit that Daniel Callahan has eloquently questioned the “research imperative,” and perhaps his reasoning could be extended to health care more generally. But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.

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“Keep the core neutral”

Internet founding parent David Clark was a guest in my cyberlaw class in the fall of 1997. We talked about Internet governance, although I don’t think anyone (including us) called it that yet. ICANN wasn’t a gleam in the U.S. Department of Commerce’s eye, but even then the amazing state of the domain name system — how it came into being, how it was managed — made for an extraodinary story.

Now lawyers and diplomats are all over the subject, and ICANN has ballooned into a multi-million dollar organization. I’ve argued elsewhere that arguments about ICANN and domain names don’t much matter except to those who want a piece of the financial pie, and I think predictions of domain names’ unimportance have largely proven true. Sure, IBM would not be happy if it lost ibm.com, but it’s at no risk of having that happen, and the fact is that most people find things by Googling them than by entering a domain name. So long as search engines can crawl to various destinations, a world in which we couldn’t use mnemonic domain names wouldn’t be much different than the one we have now.

With that background, I’ve been thinking about the global petition to “keep the core neutral” signed by fellow travelers like Wendy Seltzer, Larry Lessig, and David Post. Is it something worth signing?

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The End of Email

Like others, in the past week I’ve noticed a major uptick in the spam I receive on longstanding email addresses. It’s gotten to the point where I’ve configured Gmail to scoop up the mail from those boxes so it can do its own junk mail sorting, and then I POP the mail into my Eudora client from Gmail. It’s taken me from downloading email where more than 9 out of 10 are spam to fewer than 1 out of 10 as spam — with the spam sitting harmlessly on Gmail.

But this is a good time to point out something beyond the cat-and-mouse of spam-and-filter: email is dying.

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The Criminal Law (Like All Information) Wants To Be Free

In the last couple of days, the Pennsylvania House passed legislation making the state’s statutes freely available over the Web. Remarkably, Pennsylvania will be the last state to provide this free and easy access.

It’s hard to believe that only a few years ago, it was actually quite difficult to find state and federal statutes. Sure, they were available in selected public libraries, as well as all law libraries. But law libraries can be a bear to access: in some states, one would have to travel miles to find a law library. And many of these libraries limit public use in one way or another.

When we discuss punishment theory in criminal law, I like to noodle with students about whether, and how, prospective criminals come to learn the law. After all, most theories assume that a defendant has advance notice about what is expected of him and the consequences of lawbreaking. Deterrence theories – essentially, economic punishment models that suggest that higher sentences reduce crime by scaring off potential offenders – all assume that these miscreants can accurately predict their punishment. Putting aside the question of whether offenders act rationally – a serious question for individuals who are working under intense emotion, or the influence of drugs and alcohol – does anyone really know what a second degree burglary is “worth”? Surely there is information flow on the street, but it is far from the perfection assumed in economic modeling.

Obviously, making laws more obvious is much simpler than making potential sentences clear. But the fact that we’re only now completing the task of distributing the easily reproducible information – the statutes themselves – tells you just how much further we’d have to go to provide the information flow needed for criminal sanctions to be even halfway efficient as a deterrent. As Dave suggested a while back (echoing Stefananos Bibas), criminal information markets anyone?

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Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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Pearl of Great Price: Now You’re Cooking with IP!

PearlOyster.jpgIf you’re planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl’s Oyster Bar. She’s suing rival Ed’s Lobster Bar for copying

“each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

A packet of oyster crackers at a seafood restaurant? What a creative genius!

Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that “trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning”–i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.

It looks like White is a veteran of more than one restaurant rivalry:

I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary’s Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.

I suppose revenge is a dish best served cold.

The one claim that the NYT article mentions that I think may be a loser is White’s complaint that Ed’s copied her Caesar salad.

She and her lawyers claim [Ed’s] is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons. She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. . . . And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars. “When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted.

Seems to me like that Caesar salad would be pretty easy to reverse engineer–and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret–other folks may well have “extracted it” from the same source.

My hope in this area, as in so many others, is that we can learn from the French. By and large, they don’t use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, “the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators.” Magnifique!

Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?

UPDATE: Mike Madison strikes an appropriately jaded note.

Trumpeting the Telecosm

Many thinkers have touted the revolutionary potential of the “telecosm,” a world of infinite bandwidth capable of transmitting any message anywhere. But I’ve come across few passages as rhapsodic as this:

The network will supply room enough for every sight and sound, every thought and expression that any human mind will ever wish to communicate. It will make possible a wildness of spirit, where young minds can wander in adventurous, irresponsible, ungenteel ways. It will contain not innocence, but a sort of naïve gaiety, a buoyant, carefree feeling, filled with confidence in the future and an unquenchable sense of freedom and opportunity. It will be capitalist civilization at its best.

Can anyone guess where I found this gem of a prophecy (circa 1999)?

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Google Street View: All the World’s a Stage

Yesterday I joined the NPR “Talk of the Nation” program to discuss Google’s privacy policies. The callers were most fascinated by Google’s new “Street View” feature, which lets users “view street level shots of each block.” One said this was obviously not a privacy violation, since it only took photographs of things in public view. But others felt they should be able to go out in public and not worry about some random picture of them (say, leaving a chiropractor’s office) permanently in a Google database.

I had some sympathy for both sides, but ultimately more for the latter. I think it’s one thing when, say, a single photographer on Flickr takes a photograph of someone incidentally with no personally identifiable information. “Permissions culture” has gone to such extremes that it seems unfair to burden shutterbugs with obligations to get clearances from anyone they shoot–and even in this case, there are some limits internationally (“In Québec, a teenage girl successfully sued a photographer for $8,000 after he took her picture without her knowledge, even though she was sitting on the front steps of a public building.”).

But the case of a Google or Yahoo!, with immense, cross-checkable databases, is another matter altogether. We know that government has sought extensive access to these databases. Face recognition technology may reach a point where any image can be traced back to a name or number. I think it safe to assume that just about any surveillance technology applied by the private sector can eventually be coopted by the government if a security threat becomes pressing.

So should we cheer on claims like “intrusion upon seclusion” against Google Street View? I’m not willing to say that, because we have yet to see exactly how it’s being used. (Sadly, we may never get that information from Google, because the company may call it a trade secret.) But I do hope for two things:

1) A realization that technology like this is not simply a product of Google, but can be put to many ends by a security apparatus willing to force corporations to ignore existing privacy laws. We may well want to go in the direction of London’s CCTV, but we should have some architecture for regulating that transition. Someone has to be able to watch the watchers.

2) Some reflection on the types of public activity that are likely to decline when “all the world’s a stage.” Sure, we can catch people robbing banks more easily (or exiting strip clubs); but what happens to protest? Will people think twice about going to an anti-war demonstration if they know the whole thing will be captured, forever, by entities unaccountable to them? On a less political level, will everyday life become more and more a “new American performing reality?” Perhaps Goffman’s idea of the “stage” is about to be extended to every public street in America.

Black Boxes Bite Back

blackbox.jpgAs interest rates jump, piggybacking has become all the rage in “credit repair” circles. For a fee, groups like Instant Credit Builders will let you “borrow” (part of) another person’s credit score by becoming an “authorized borrower” on his cards. Here is ICB’s overheated defense of the practice:

ICB has developed a system to counter the harmful societal impacts of an emerging market called “subprime lending”. Mob-like blood suckers under the umbrella of legitimate lending institutions are targeting those who have poor credit scores but fall short of being beyond credit risk acceptance.

To explain why subprime lenders are in such an opportunistic industry, take this example: The commission payable to a financial adviser or mortgage broker from an actual prime lender on a $100,000 deal yields a broker about $250. Yet the same $100,000 deal using a subprime lender yields them $2,000 to $2,500. This niche market banking industry is getting paid well to enslave most minorities, low-income borrowers, even victims of identity theft with interest rates that can be up to 3.5% higher than average.

Needless to say, mortgage lenders are hoppin’ mad. The godfather of credit scores, FICO, has claimed that “piggy-backing will soon come to an end on its watch.” One irony here is that, as lenders crack down, “they may actually increase demand for some of the services that these Web sites offer.”

A lot of the commentary on these sites has been harsh, but let me offer something like an “unclean hands” defense. Credit scores have long come under attack for having a “a disparate impact on poor and minority populations.” Moreover, the scoring is opaque; scorers claim that transparency would undermine their “trade secrets.” So consumers are navigating a world where they can have only a vague idea of the rules. Lenders shouldn’t be surprised when entrepreneurs reverse-engineer the ratings system and the technology bites back.

Moreover, these rules themselves may be self-fulfilling prophecies: if you decree that one missed $10 payment for a family of 4 earning $30,000 per year lowers their credit score by 200 points, they probably are going to end up being more likely to default because they are going to be paying much more in interest for any financing they get. Again, because the scores are black boxes, we have no assurance that the companies that offer them try to eliminate such endogenicity or whether they actually try to profit from such self-fulfilling prophecies.

As long as credit ratings are so shrouded in secrecy, the lenders who rely on them should expect gaming of the system. Watch for a debate over “black hat” vs. “white hat” credit repair builders as controversial (and interminable) as that now occurring in the world of search engine optimization.

Expensive Tastes and Bitrates

PrincessPea.jpg“Expensive tastes” pose a problem for egalitarians. If we want to make everyone equally happy, we’ll have to devote far more resources to the “pea-phobic princesses” than to hardier folks inured to suffering. On the other hand, if someone isn’t responsible for their expensive tastes, how different are they from the “eggshell skull” plaintiff so protected by tort law?

Perhaps the key moral issue here is to avoid cultivating expensive tastes. That might lead us to applaud China’s new discouragement of luxury goods:

Xinhua, the government’s official mouthpiece, warned that big spenders risked becoming “intoxicated with comfort” and sinking “into depravity”. Last week the mayor of Beijing, Wang Qishan, went a stage further by calling for controls on outdoor advertisements that promote . . . “ultra-distinguished” products, on the grounds that they “encourage luxury and self-indulgence, which are not conducive to harmony.”

It’s “glorious to get rich,” but not to flaunt it. Just think of how many Americans thought of folksy Sam Walton as being “just like them.”

On the other hand, the expensive tastes of the overrefined can subsidize the rest of us. Though a declining model in the airline industry, it might reemerge in music. Consider this news on Apple’s new DRM-free files:

The Apple iTunes store, the largest seller of music downloads, began selling tracks from EMI Music yesterday without any restrictions on copying, for a slightly higher price than usual, $1.29 instead of 99 cents. To sweeten the deal, those tracks have better sound, with a bitrate of 256 kilobits per second (kbps), up from the standard 128 kbps. Apple has gone so far as to say that this results “in audio quality indistinguishable from the original recording.”

Hooray for the “golden ears,” whose supersensitivity to quality music may end up buoying an industry driven to distraction by declining sales.

But before we get too comfortable with that model, consider this cautionary tale quoted by James Boyle:

It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches ….What the company is trying to do i s to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich . . . . And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean to the second-class ones, become lavish in dealing with first-class passengers. Having refused the poor what is necessary, they give the rich what is superfluous.

Having just endured another terrible Amtrak travel experience, that seems as true today as it did in 1962.

Illustration credit: Edmund Dulac.