It’s All About Class


Willa Paskin’s Slate review of Mike Judge’s Silicon Valley quotes a line from the show’s opening:

Rarely has a show had to do so little to find so much to mock. The series opens with a group of nerdy techies attending the massive soiree of a newly minted multimillionaire. Kid Rock performs as no one listens, and then the host climbs onstage and shrieks, “We’re making the world a better place … through constructing elegant hierarchies for maximum code reuse and ostensibility.

That doesn’t ring true. “Ostensibility” is not a programming term. “Extensibility” is, and goes hand-in-glove with “code reuse.” Sure enough, that’s exactly how the line actually read on the series. And sure enough, that’s exactly what they say about Scala:

Object-Oriented Meets Functional:

Have the best of both worlds. Construct elegant class hierarchies for maximum code reuse and extensibility, implement their behavior using higher-order functions. Or anything in-between.

I suppose plagiarism is one way to get the jargon right.

A DVR in the Cloud Is Still a DVR, and Still Legal


Today, David Post and I filed an amicus brief for ourselves and thirty-four other law professors, arguing that Aereo should win its Supreme Court case. Its service, which lets users record live TV and stream the recordings back to themselves, is functionally identical to a VCR, and it has been settled law for three decades that consumers have a fair use right to use VCRs.

The broadcasters suing Aereo have tried to portray it as being more like a cable network; they argue that it is in the business of retransmitting live TV. But if Aereo retransmits anything, then so do you every time you hit play on your Streambox or your uploaded Dropbox videos. Streambox and Dropbox aren’t cable networks, and neither is Aereo. The broadcasters’ entire theory—that Aereo directly infringes the public performance right—is a gerrymander, an attempt to hide the ball and obscure the fact that it helps consumers record live TV for their own personal consumption.

My long-time readers may remember that I’m not personally a fan of Aereo. But when the Supreme Court took the case, I stepped forward to write an amicus because the issues are much larger than any one company. Others have emphasized the danger the broadcasters’ theory poses to consumer products and cloud computing. Our brief notes the danger the case poses to the integrity and coherence of copyright law itself: the broadcasters’ theory mixes up direct and secondary infringement, confuses the reproduction and public performance rights, and disregards consumers’ fair use rights. It is a “dangerous shortcut” through copyright law.

I am particularly grateful to my co-author, David Post, for his immense effort in pulling the brief together. (Of the two of us, only he is admitted to the Supreme Court bar, so it bears his name as counsel of record.) I am at once proud of and humbled by the many distinguished copyright experts who signed on. And I hope the brief does some good in helping the Supreme Court shape healthy copyright law for our digital future.

This City Has a Food Inequality Crisis. The Reason Why Will Shock You.


I have a parable up on the Washington Post’s WonkBlog, “This restaurant fable explains everything wrong with San Francisco right now. It’s the story of the city of Junipero, which has a severe problem of food inequality. The wealthy, who work in the city’s booming birdcage industry, are eating like gluttonous emperors, but their fellow citizens are on the brink of starvation. It isn’t pretty:

Junipero’s cultural politics have gotten ugly. Angry protesters are smashing restaurant windows, hurling garbage at anyone who eats in public, and picketing the private food trucks that provide box lunches for birdcage foundries. One prominent birdcage CEO turned the anger back, saying in a TV interview that making birdcages is hard work and requires a full stomach, and people who don’t deserve or appreciate good food should stop complaining about those who will put it to better use. A graffiti mural downtown has become a symbol of the city’s tensions: it depicts a tide of bone-thin children, pressed up against the bars of a locked and gilded birdcage, staring forlornly at platters of grilled-cheese sandwiches stacked within.

But things are not as they first seem in Junipero, and maybe this isn’t just a story of rich versus poor … read the whole thing to find out why.

Speech Engines Goes Gold


Speech Engines, my article on Google, search bias, and the First Amendment, has just been published in the Minnesota Law Review. As you may recall from last year, my argument is that we should think about search engines not so much as conduits for others’ speech or editorial speakers in their own right but more as advisors for users. This unabashedly listener-centric view of the speech in search inverts many of the usual arguments about Google, and it gives what I think is a genuinely satisfying theory of search bias. I claim that disagreement over the right search results is not a proper basis for search regulation, but that regulation to prevent dishonesty is permissible. The key is whether the search engine is deliberately underplaying its hand and returning results that it itself thinks are less relevant to users than others it knows of.

Even if you’ve read a previous draft, I hope you’ll look at this version. It takes a village to write a law review article, and I had excellent neighbors. My editors were perceptive and thoughtful, and a number of colleagues were characteristically generous with their suggestions. I substantially reworked key parts of the article during the editing process, including a much more precise discussion of falsity and the First Amendment. The article is 85 pages now, but trust me, it feels shorter.

A Conspiracy of Paper


The Volokh Conspiracy is a group blog of more-or-less libertarian law professors. It is a senior statesman of the legal academic blogging world: brothers Eugene and Sasha Volokh started blogging together in 2002. As with any group blog, the topics can be eclectic. So while predictable themes like federalism, economic liberty, and gun rights dominate, there are also Eugene Volokh’s love of puzzles and Orin Kerr’s love of jazz.

And now all of it—the federalism and the jazz—live at the Washington Post. The Volokh Conspiracy’s bloggers retain sole editorial control, but the blog will live behind the Post’s “rather permeable” paywall after a six-month transition period and the bloggers will share in the advertising revenue.

The move strikes me as regrettable for all concerned. Blogging and journalism are different enterprises with different goals and different values. They can be married, but this particular combination is less love match than joint venture; the Volokh Conspiracy, content otherwise unchanged, now appears on the Post’s website, with a Post URL and with the Post’s branding. I fear that rather than sporting the best features of blogging and journalism, the combination will sacrifice both.

For the Post, the move blurs an important line about journalistic accountability. The Volokh Conspiracy bloggers join the Post as Wonkblog editor Ezra Klein is leaving for a mysterious new venture. But there is a crucial difference: the Wonkbloggers are Washington Post employees; they are responsible for maintaining the Post’s standards. The Volokh Conspiracy bloggers are independent contractors and have complete control over their blog’s contents.

To be clear, I am glad that the Volokh Conspiracy’s authors will continue to decide what to write; their distinctive voices make the blog what it is. But I do not see this going well for the Post. In trademark law terms, the Post is engaged in naked licensing: putting its brand on a product over which it exercises no quality control.

Take accuracy. The Post is a newspaper and proud of it; it has a detailed corrections policy that includes sections on blogs and social media. But the Volokh Conspiracy’s editorial independence means that the Post’s writ does not run to the /news/volokh-conspiracy/ directory on washingtonpost.com. (Note: it’s in the “news” directory, not the “blogs” directory.) This is a blog with twenty-three authors, some of whom court controversy. If one of them gets a story wrong, the Post’s reputational custodians could rightly ask who gave the car keys to the new kid.

Then there is the matter of journalistic neutrality. When Timothy Lee joined the Post, he sold his Bitcoins “to comply with WaPo’s strict conflict of interest policies.” (Those policies are available here.) It seems unlikely, however, that Todd Zywicki will give up his consulting work (already a matter of public controversy). Nor does it seem likely that Randy Barnett will give up the tireless public advocacy that nearly brought down Obamacare. Indeed, the Volokh Conspiracy’s “we’re joining the Post” post emphasizes that the bloggers will keep their day jobs.

The Post will “pass along” Volokh Conspiracy posts to its readers. Those readers are entitled to know whether a given item on the website is subject to its editorial and conflict-of-interest policies or not. I am reminded, and not in a good way, of AOL’s similarly arms-length relationship with Matt Drudge. Editorially, the Volokh Conspiracy bloggers are in every way outsiders to the Post, but it also seeks the cachet and page views of being associated with them. The issue is not unique to the Volokh Conspiracy, or to the Post. Such questions also arise in relation to Post’s The Monkey Cage, as they arise in relation to outside contributors to blogs at other publications.

Again, my point is not that there is something wrong with using the Volokh Conspiracy as a soapbox for personal and professional views. Soapboxing makes for memorable blogging. My point is that the Post’s norms as a newspaper are much stricter about when and how writers can use its pages as a soapbox, and that this tension has not been squarely addressed. Unless I am mistaken, David Bernstein doesn’t call Human Rights Watch for a comment every time he criticizes it; as a polemical blogger, he is not expected to. But journalists do call for comment, and the Post has done little to explain when, how, and why its usual rules are suspended here.

The move to the Post is also, I think, bad for the Volokh Conspiracy. It has an integrity of its own, one that comes from authenticity and clarity of vision. Its authors have been generous in their engagement with the blogosphere. Even at their rantiest (which by Internet standards is usually quite civil), they are generally quite good at linking to and responding seriously to opposing points of view. They have shared, freely and openly, enormous amounts of insight with the world over the years.

Moving the blog behind a paywall is antithetical to these values. There will still be ways for dedicated readers to get past the paywall: it’s free to those with .edu and .gov addresses, and the blog’s RSS feed will still be full-text. But the message is clear: the front door is being closed, even if the back door will remain unlocked for now to those who know the secret knock. I know as a blogger that linking to articles behind paywalls frustrates my readers. Sometimes I have to, but it always feels like putting weight on a twisted ankle.

The goal is a “broader reach for our ideas” but I suspect the result will be just the opposite. Volokh Conspiracy posts will be less often linked, less often debated, less often significant. Fewer people will ponder Orin Kerr’s thoughtful breakdowns of Fourth Amendment developments; fewer people will read Dale Carpenter’s play-by-play coverage of same-sex-marriage cases; fewer people will watch Will Baude make federal courts actually seem interesting. The platform that helped Randy Barnett lead the charge against Obamacare may fade away. I may not agree with all or even much of what is said there, but I for one would regret the loss.

In Memoriam Gary Host


At dinner last month, the topic turned to heroes, who were ours, and whether our age is still possible of producing them. The friend who put the question had worshipped Mickey Mantle. That did not end well.

I couldn’t come up with anyone on the spot, but at home, I realized that I did known someone with great and abundant talents, who used them in the service of his fellow man, and who accomplished superhuman feats. Aaron Swartz was a hero for me, and for many others. This too did not end well.

Aaron killed himself a year ago today, and I still mourn him bitterly.

Don’t Try This At School


A high-school teacher in New York set two of her students on fire on Thursday. One of them is in critical condition after “a snakelike flame tore through the air … searing and melting the skin on his face and body.”

It was an experiment gone, horribly, tragically wrong, and this particular experiment—a methanol flame test—goes horribly, tragically wrong with unsettling regularity. A New York Times story on Thursday’s accident includes a paragraph that starts with the never reassuring phrase “Other cases when the demonstration caused an explosion and fire …” Three weeks ago, a government safety panel, the Chemical Safety Board, released a video and warning message about the same experiment. The CSB’s video features yet another student who was severely burned when a methanol flame test set her on fire.

A school official in New York said of Thursday’s accident, “We’re determined to get to the bottom of this so that it never happens again.” But the mechanism of injury in all of these cases is not hard to understand. A flame test analyzes an unknown substance by determining what color flame it produces when it burns. Flame tests make for vivid demonstrations because of the different colors different substances produce, and because of the human (and adolescent) fascination with fire. There are many kinds of flame tests; a common demonstration setup—and the one that exploded on Thursday—uses methanol as an accelerant. Methanol is highly flammable, making for bigger flames; it also burns invisibly, allowing the different colors emitted by the minerals being burnt to stand out.

Unsurprisingly, the properties that make methanol attractive for flame tests also make it dangerous. Large and invisible flames are not to be trifled with. Methanol also has other propensities that make it especially hazardous in a classroom setting. Although it is a liquid at room temperature, it has a high enough vapor pressure that it spreads easily into the air—and a low enough flash point that it ignites easily once it is there.

The dangers of methanol flame tests are well-enough understood that there are extensive safety instructions for anyone trying to carry one out. Flinn Scientific’s demonstration videos on YouTube are hair-raising, and so is the page-long “Safety Precautions” section of its instructions for the flame test. And yet, the injuries keep on happening: an investigator with the CSB said, “What we need to look at is why is this accident keeps happening across the country. … I can’t imagine a teacher would do this demonstration if they knew the potential risk they were putting students in.”

One reason may be that methanol flame test—sometimes called the “rainbow”—has a long history in classroom demonstrations. It seems to be part of the folklore of high school chemistry teachers. Even one of the Flinn Scientific videos leads off with a wistful note about the demonstration’s historical significance—a little like the Onion’s Fun Toy Banned Because Of Three Stupid Dead Kids. That history, and with it the assumption that something so familiar could not also be so perilous, may be one reason the CSB’s message is not getting through.

Consider what the CSB is up against. High school chemistry teachers don’t just wake up one day and say, “Hey! Why don’t I spritz some methanol on burning metallic salts to demonstrate emission spectra?” They get the idea—and and the laboratory procedures—from somewhere. And not all of these sources are careful about the safety side. Here are a few of the horrifying things I found on the Internet yesterday:

  • YouTube videos of flame tests brazenly violating multiple basic safety precautions. (The dishes aren’t well separated, there are no lids by the dishes, and the teacher is wearing neither gloves nor an apron.)
  • A lab report template for students to carry out methanol flame tests, and lab reports from students who had done so. Again, the directions violate crucial safety directives. (The first instruction in Flinn’s guide says not to use watch glasses, as “the methyl alcohol can easily spill out and spread the fire.”)
  • Demonstration instructions that omit almost all of the safety precautions.

These are not random blog posts by home chemists (although there are plenty of those, too). These are science educators reporting on their own unsafe practices, and encouraging others to do as they do. These are professional chemists. They know what methanol is and does: that’s why they’re using it. But none of them seem to have any sense of how easily methanol flame tests can go wrong, or how badly someone could be hurt.

Where might this cavalier classroom culture come from? Here are two of several alarming articles from the Journal of Chemical Education I also found yesterday. Both were published as “Tested Demonstrations” in “the world’s premier chemical education journal,” the flagship journal of the education section of the country’s professional society for chemists.

Maynard, J.H., J. Chem. Educ., 2008, 85 (4), p 519 (“Using Hydrogen Balloons To Display Metal Ion Spectra”)

Abstract: We have optimized a procedure for igniting hydrogen-filled balloons containing metal salts to obtain the brightest possible flash while minimizing the quantity of airborne combustion products. …

Johnson, K.A.; Schreiner, R., J. Chem. Educ., 2001, 78 (5), p 640 (“A Dramatic Flame Test Demonstration”)

Abstract: A dramatic ball of colored fire appears when a salt/methanol mixture is sprayed into the flame of a Meker burner. The colored fireball is highly visible, even in large lecture halls. Although the fireball has a short duration, it can easily be recreated by repeated spraying of the salt/methanol mixture into the burner. The equipment for these striking flame tests is easy to prepare and store.

There is more in this vein, much more. I would like to think that these articles are reaching an audience capable of recognizing the remarkable danger of such demonstrations, and taking appropriate precautions. The frequency with which students and teachers are burnt in methanol flame tests suggests otherwise.

When I started researching the methanol flame test, I expected to find a story of changing safety standards, or of an influential but outdated book still in the teachers’ section of school libraries, or of a few teachers deliberately cultivating a devil-may-care attitude. I found none of these things. Instead, a few hours after asking, “Why would a teacher give such a dangerous demonstration?” I had an answer that left me even more worried than before. No one told her not to.

I will give the last word to lab safety consultant David J. Leggett, as quoted by the New York Times:

I would frankly question the use of methanol in an experiment that is simply going to say look kids, look at the colors.

MOOC Op-Ed in the Baltimore Sun


I have an op-ed in the Baltimore Sun on MOOCs. I’m bullish on opening up education to everyone, but bearish on the MOOC business model. The basic argument should be familiar from The Merchants of MOOCs but I have refined into pithy op-ed format. Here’s an excerpt:

The gold rush surrounding MOOCs has a dark side. Opening up courses so that money and geography are no obstacle to learning is the kind of outreach that universities should be excited about. But the venture capitalists who have flocked to MOOC companies have been more concerned with “disrupting” American higher education, drawing students away from non-profit, public-serving universities to for-profit MOOCs. Disruption for disruption’s sake is hardly a good thing. The Syrian civil war is disruptive, too.

The Stanford AI course showed how much hunger there is around the world for knowledge and how easy it can be to satisfy that hunger when we step back from tuition and business models and use the Internet to share knowledge freely. If they can focus more on students and less on getting rich quick, MOOCs still have a lot to offer. The goal of knowledge for all is well worth pursuing.

BREAKING: N.S.A. Had Direct Access to Elf on the Shelf Surveillance


WASHINGTON — Internal documents from the National Security Agency show that its intelligence-gathering reached far deeper into Santa Claus’s annual toy-distribution operations than acknowledged. Sources close to the agency had previously confirmed that it has been provided with the contents of Mr. Claus’s database of naughty and nice children under a confidential data-sharing arrangement. But according to the documents, which were among those leaked by Edward Snowden, the N.S.A. also has direct access to one of the North Pole’s most closely guarded sources for that database, the daily field reports filed by Elf on the Shelf agents.

Since 2005, Mr. Claus has outsourced much of his behavioral analytics research to the Elves on the Shelves. Employing sophisticated surveillance technology, the Elves inform Santa about children’s toy-worthy activities — or, in some cases, recommend the delivery of coal, instead. Parents are encouraged to provide the Elves with access to strategic vantage points from which they can observe a wide range of daily household activities. Playtime, naptime, mealtime: nothing escapes the Elves’ watchful gaze.

Or the N.S.A.’s, it appears. Under a program codenamed NSANTA, the agency has surreptitiously installed wiretapping devices inside the North Pole data center through which all communications to and from the rest of the world pass. The devices are custom-designed to identify and copy all incoming reports from an Elf, no matter where its Shelf happens to be located. Those reports include detailed information on the whereabouts and conduct of millions of American children, most of whom are not believed to have engaged in terrorist activities, except perhaps against their younger siblings.

According to the slides, which the N.S.A. has not acknowledged as authentic, no special legal authority is required for the interceptions. The North Pole, being outside the United States, is not subject to many of the restrictions that apply on American soil. (His freedom from regulation has long been a complaint of Mr. Claus’s competitors in the toy industry, and was partly responsible for the War on Christmas of 2003 to 2006.) And because Elf reports are filed from countries around the world, the N.S.A. can maintain that it is not “knowingly” collecting information on the hair-pulling, cat-chasing, or cookie-stealing of American children.

It is unclear whether the the interceptions are taking place with the knowledge or consent of North Pole authorities. Mr. Claus has long had a tense relationship with the United States government. Some have speculated that NORAD was able to extract extensive concessions in 2010, when the most recent treaty allowing him access to United States airspace was negotiated. Vixen and Comet have alleged that they were placed on the no-fly list in 2006 after delivering presents to Middle Eastern countries, and the Transportation Security Administration has confiscated millions of plastic toy guns from Mr. Claus’s sleigh.

In a written statement, a North Pole spokes-elf said, “Santa takes the privacy of all children seriously. He will be looking into these allegations with a wink of his eye and a twist of his head. Parents everywhere can be assured that Santa uses industry-standard security measures.” When asked to respond to claims by leading security researchers that children’s letters to Mr. Claus are vulnerable to “grinch in the middle” attacks, the elf referred reporters to her previous statement.

For one long-time N.S.A critic, the latest revelation is a vindication. In a 2011 blog post, privacy researcher Christopher Soghoian suggested that some members of the Elf on the Shelf program might be undercover government agents looking to circumvent Fourth Amendment protections against searches of the home. But the scale of the NSANTA program surprised even Mr. Soghoian. “Watching children around the clock is a job that their own parents have decided is not worth doing,” he said. “The people who know best have concluded that this data has no intelligence value. So why is the N.S.A. so interested in it?”

But for defenders of the embattled agency, the Elf on the Shelf news was no news. According to the chairman of the House Intelligence Committee, Representative Mike Rogers, “You know children. They’re always up to something. All of them.” Mr. Rogers, Republican of Michigan, added that his family has an Elf on the Shelf. “And this Christmas, we’re putting him on our mantel, and our refrigerator, and yes, even on our shelf. We’re doing it with pride, knowing that it helps keep our children safe.”

The N.S.A. declined to comment for this story.