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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.

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.

For every problem technology solves, it creates another. Smartphones have made it possible to settle bar bets instantly, but in so doing, they have made it possible to lose bar bets instantly. From a certain point of view, this too is a job for smartphones.

Barbiturate’s design is simple. Type in a subject (e.g., “Pulp Fiction”) and a predicate (e.g. “won an Academy Award for Best Picture”), and Barbiturate finds the closest Wikipedia page matching the subject, then edits that page to add the predicate. (Version 1.0 will just insert it as the first sentence of the page; future versions may do some natural language processing to find smoother ways to insert the desired “fact.”) The edit will be reverted almost immediately by Wikipedia’s antibodies, but almost is good enough for Barbiturate, which will already have loaded the edited page in a browser window. Show that window to your friend and collect on your bet.

Some naysayers will say that Barbiturate is a tool for vandalism. But I say to them that apps don’t vandalize Wikipedia, people vandalize Wikipedia. Barbiturate is a tool for lightweight editing: adding facts quickly to Wikipedia pages without any unnecessary overhead. It so happens that some people will use Barbituate to add false facts, but so? Other people use Firefox to vandalize Wikipedia. But does Wikipedia ban Firefox users? Of course not.

Just to be clear. I have not created an app to win bets by vandalizing Wikipedia, and you should not, either.

And today, the Speed Scholarship Week train rolls to a stop. For dessert, I offer you a pair of posts on two topics that are near and dear to my heart: class-action settlements and Google Books.

Here at the Laboratorium, I have a post on a pending settlement in a privacy class action that uses the same dangerous jujitsu that the Google Books settlement did. Get everyone together in one class, and then use a settlement to force them to bless a program the defendant has yet to launch. This time, instead of a bookstore, its a consumer database, and instead of escaping copyright law, it escapes from the Fair Credit Reporting Act.

And meanwhile, at Publishers Weekly, I have a post on the Google Books fair use ruling. I survey the winners (Google competitors, researchers, readers, the disabled) and the losers (the Authors Guild) and reflect on how we got to this point. The world has changed remarkably since 2005, when the lawsuit was filed, and it has changed remarkably since 2008, when the settlement was announced.

Thanks for joining me this week. I’ve had fun, and hope you did too.

Last year, in Future Conduct and the Limits of Class-Action Settlements, I expressed grave concern about settlements like the one in the Google Books case, which tried to leverage a lawsuit about searching books into a settlement about selling them. A pending privacy case. Berry v. LexisNexis Risk & Information Analytics Group, provides another good illustration of the problem.

LexisNexis, through a subsidiary, sells a report called Accurint to help debt collectors, private investigators, and others “Detect fraud. Verify identities. Conduct investigations.” A group of attorneys brought a class action, alleging that Accurint contains the kind of personal information that can trigger the Fair Credit Reporting Act, but doesn’t comply with the FCRA’s other requirements. They claimed that LexisNexis doesn’t give consumers access to their files, doesn’t let consumers fix mistakes, and doesn’t require Accurint customers to comply with the FCRA.

Under the proposed settlement, LexisNexis would split Accurint’s service for debt collectors in two. One new service, “Collections Decisioning,” would fully comply with the FRCA; the other, “Contact and Locate,” would not. Consumers will have the right to see their Contact and Locate files once a year and to leave 100-word comments, protections well short of the FCRA’s. LexisNexis’s theory is that if Contact and Locate contains only personal information that “bears a reasonable relationship to the location of a debtor or to the location of assets securing the debt for purpose of repossession” and if customers are warned not to use the reports when granting credit, the service will fall outside the FCRA’s ambit.

There are reasons to like this new program. For consumers, it’s a substantial improvement over LexisNexis’s current you get nothing! stance toward consumer rights. Half a loaf is better than none. But to use a class-action settlement to get there is troubling. The settlement doesn’t just redesign Accurint to keep it clear of the FCRA; it also rewrites the FCRA to keep it clear of Accurint. Class members “agree that from the Effective Date until the Sunset Date that Post Settlement Products shall not be ‘consumer reports’ within the meaning of the FCRA.”

This is a future-conduct release: it forgives LexisNexis for torts as yet uncommitted. It does not settle presently existing claims the class members have against LexisNexis based on Accurint. It does not settle any claims class members will have in the future based on Accurint. Instead, it allows LexisNexis to create a new service that is different from Accurint and exempts that new service from the FCRA.

LexisNexis argues that it is “entitled to the releases” in the settlement because it “should be permitted to sell Accurint® products to its customers … without fear of harassing, repeated litigation concerning its purported obligations under an inapplicable statute.” But if LexisNexis truly believes that Contact and Locate will not be covered by the FCRA, let it launch the service and defend itself in court if necessary. The rest of us have to conform our conduct to the law, as best we are able; we bear the risk that our understanding of our obligations is mistaken. Why should LexisNexis deserve anything more? Indeed, LexisNexis stands in a worse position than the rest of us: it is able to offer this settlement only because it has been sued for violating the FCRA. If breaking the law once is my ticket to a deal that lets me break the law in novel ways in the future, sign me up.

Of course, LexisNexis and the plaintiffs’ attorneys argue that the Contact and Locate deal is simply a permissible settlement of a genuine lawsuit. But this is where the differences between Accurint and Contact and Locate become significant. It is far from clear that a lawsuit about Accurint’s compliance with the FCRA could resolve the legality of Contact and Locate.

Contact and Locate doesn’t exist. No one knows what information LexisNexis thinks has a “reasonable relationship” to debt collection. No one has seen how LexisNexis will provide access to consumer files. No one knows what Contact and Locate users will actually do with the reports they request. Maybe Contact and Locate will fall outside the FCRA, and maybe it won’t. And if it doesn’t, it is inappropriate for a court to give LexisNexis prospective immunity for systematically violating the FCRA.

In an ordinary consumer lawsuit, prospective immunity would be a matter of individual consent. Parties can craft their own settlements, just as they can craft their own contracts. Here, however, the settlement’s releases will be imposed on class members through an exercise of the court’s judgment power. Consent gives contracts their legal and moral authority, but the “consent” here is purely a fiction. Rule 23 allows classes to litigate common “claims, issues, and defenses,” and to settle those “claims, issues, or defenses.” It does not confer a general power on class attorneys to bind class members to executory contracts.

To be sure, there is no shortage of cases holding that a consent decree in a class action can go beyond the relief available at trial. But that is because an individual defendant can agree to whatever onerous terms it is willing to live with. These cases simply do not speak to the scope of the releases given by the class.

As LexisNexis itself admits, “The Settlement will establish the rights and obligations between LexisNexis and class members on a going forward basis — in the absence of existing law.” (31). We have a word for that: it’s called “legislation.” LexisNexis will have obtained the equivalent of a private bill, setting up a new FCRA-lite regulatory regime just for it. But this regulation was drafted by the party it will govern, and it is being presented for approval to the branch of government worst positioned to evaluate it. Courts considering complex prospective settlements act without any of Congress’s safeguards: political accountability, legislative fact-finding, dedicated professional staff, the power to set its own agenda, the power to amend, the power to repeal.

Courts simply do not have this sort of authority. The settlement releases class members future FCRA claims based on LexisNexis’s future conduct in launching Contact and Locate. But a federal court lacks Article III jurisdiction over hypothetical claims concerning a hypothetical future service. If I tried to bring a class action against LexisNexis today, contending that Contact and Locate will violate the FCRA, my complaint would be dismissed as unripe. It wouldn’t become ripe simply because I changed the cover sheet to say “Proposed Settlement” rather than “Complaint.”

The only way to demonstrate that the court has authority to approve the LexisNexis settlement is to show that litigating the class’s Accurint claims could plausibly determine the legality of Contact and Locate. The parties have done nothing to show that it could, and some objectors have given reasons to show that it could not. The court will hold a fairness hearing on Tuesday the 10th. I hope it will probe the scope of the releases in the settlement. If it concludes that Contact and Locate’s compliance with the FCRA is not really at stake in the underlying lawsuit, it should reject this attempt to hijack its Rule 23 authority.

(There are many other provisions in the proposed settlement, and objectors have raised quite sharp concerns about many of them. I have chosen to focus on the future-conduct-release issue because it is the one on which I have something distinctive to say.)

It’s day four of Speed Scholarship Week, and the bus is still safely above 50. Today, I give you Anarchy, Status Updates, and Utopia, an essay about Bitcoin, /r/politics, Vi Hart’s YouTube channel, and other experiments in online governance. I argue that technical power—a platform operator’s ability to force changes on users—is far more deeply embedded in social software than we think, precisely because it is social. To use software together, we have to agree on what software to use, and that social process of agreement necessarily gives someone technical power. A commitment to fair treatment and democratic values, where it exists at all, comes from a community of users, not from the software they use.

The paper is my response to a strain of what I think of as technological libertarianism: the belief that freedom online can be fully protected if only we get the software right. I’m sympathetic to the goal, but the means don’t work. Software doesn’t exist in a vacuum; it serves human goals and is controlled by humans. Bitcoin’s protocols won’t protect you if enough other users agree to switch to a different blockchain. To talk about whether a design protects users from each other, we need to talk about the users, and not just the design.

I’ve been working on this paper, on and off, for six years. I’ve presented earlier versions at conferences, but never quite felt that I had it right. Now I do—or at least I’m close enough to share a draft and seek your comments. Here’s an excerpt:

But focusing on technical power raises its own question: why didn’t Marc Bragg and Mailpile head for the exit when things got bad, the way Vi Hart did? Yes, Second Life and PayPal changed the way their systems worked. But so what? Database entries only matter if they control your access to something that matters in the real world. Technical power only has bit to the extent you use a software system; walk away from the keyboard and the software can’t follow.

To understand where this argument goes wrong, consider what it suggests for our disappointed victims of technical power. Marc Bragg didn’t need Second Life: he could have drawn a picture of Taessot on a napkin and continued to enjoy his imaginary property. And Mailpile didn’t need PayPal; it could have drawn pictures of Benjamin Franklin on napkins and used those. You don’t need Facebook; just take a Sharpie to your living-room wall. You don’t need YouTube for cute cat videos; just film your own damn cat.

These suggestions are so unsatisfying because they miss the inherently social nature of social software. The fun, and the value, of these systems comes from sharing them with others. YouTube’s other users provide me with better cat videos than I could film for myself; Facebook tells me what my friends are actually up to, not just what I imagine they’re up to. Countless online journalists use social platforms to publish their work. Virtual property in Second Life, like a domain name or like a LinkedIn account, is valuable in only because it’s networked. To withdraw from the network in which the property is embedded is to give up something of real value, however virtual the property itself may be. (Mailpile’s frozen funds on PayPal are no more real, and no less, than any other form of money.)

This, then, is a point about social power: the authority enjoyed over any community by the person or entity who controls the terms on which the community comes together. The threat to boot you from YouTube if you don’t accept Google+ comments isn’t just about cat videos: it’s also about the people who make and watch those cat videos. The threat to boot you off of a mailing list isn’t just about the emails; it’s about your access to the other people on the mailing list. The threat to boot you from eBay isn’t just about the stars next to your name; it’s about the community of people who know what those stars mean, who give those stars their meaning.

I will be presenting Anarchy, Status Updates, and Utopia at the “Social Justice and Social Media” symposium at Pace Law School in March, and the essay will appear in a symposium issue of the Pace Law Review.

It’s day three of Speed Scholarship Week. Today’s installment is my take on Massive Open Online Courses, or MOOCs. Over the course of 2012, I went from being a great enthusiast of the idea to frustrated and disappointed with them. The paper—The Merchants of MOOCs—is my attempt to understand why.

In a nutshell, today’s MOOCs do not actually solve the problems they claim to solve, because very little about them is new. If the MOOC mass-media model worked at scale, the Sunrise Semester or the correspondence course or Fathom.com or their other antecedents would already have disrupted higher education in the way MOOCs allegedly will. At the same time, though, the “open” that makes MOCs into MOOCs is tremendously exciting, because it can make education far more accessible and far more participatory. What has gone wrong is that MOOCs have been hijacked by the entrepreneurs and investors who see them in the financial terms of Silicon Valley startup culture. The question is not how MOOCs can make money, but rather how to sustain open education, regardless of whether it makes money.

Here is an excerpt from early in the paper:

The first claim about MOOCs is that they will allow all students to study with the very best professors. Thousands of Joe Coursepacks teach introductory calculus every year. Some of them are good; some are terrible. Replace them with a single MOOC, and it can be assigned to the clearest and most engaging lecturer. As David Brooks put it, “a few star professors can lecture to millions.”

There’s just one problem. We already have lectures from elite professors for the masses, on calculus and on many other subjects. They’re called “The Great Courses” and they come in an affordable package of 24 videos for a special limited-time price of $59.95.16 The “massive” in “MOOC” is the same as the “mass” in “mass media”: peo- ple have been using broadcast technologies to deliver education for decades. From 1957 to 1982, CBS aired Sunrise Semester, a half-hour program in the early morning featuring NYU professors delivering college-level lectures. NBC’s answer was Continental Classroom, which ran from 1958 to 1963. Nicaragua used radio for distance education in mathematics starting in 1974; dozens of countries followed its lead. The MOOC format adds little to the tools already at hand.

If anything, the MOOCs of today fall rather short of their predecessors. A recent article in The New Yorker offers a revealing look inside the making of one of Harvard’s MOOCs, “The Ancient Greek Hero.” The day before the course went live, the videos for the first lecture weren’t finished. The main video editor was a classics PhD, but don’t worry, she was trained in “digital storytelling” by Harvard’s “MOOC video guru.” And the professor, Gregory Nagy, was planning to bring a cameraman on his spring break trip to Greece to film the mists at Delphi. Why, we might ask, is the Francis Jones Professor of Classical Greek Literature scrambling to get second-rate B-roll footage? And do we really think that the resulting videos will be the pinnacle of pedagogical achievement in teaching ancient Greek literature?

And here is an excerpt from later on:

One advantage MOOCs have over these various resources is structure: the “C” stands for “course,” as in “prescribed course of study.” When you listen to Mike Duncan’s podcasts, you’re on your own: no one will notice or care if you give up after a week. But a MOOC has a meaningful sequence of checkpoints and deliverables to help students tie themselves to the mast. These is something to this point, but the contrast between MOOCs and open educational resources should not be overstated. On the one hand, MOOCs’ commitment mechanisms also often fall short. Nearly six out of seven of the students who started the Stanford AI course failed to finish, and when A.J. Jacobs signed up for eleven MOOCs for a New York Times experiment, he completed the “two courses with lighter workloads and less jargon.” On the other hand, nothing prevents layering the checkpoints and other work of a “course” on top of open resources. Many teachers who integrate the Khan Academy into their class- rooms customize how they draw on it for each student. MOOCs bundle student supervision with course content, but in an unbundled world, even that union can be questioned.

The “openness” of these other creators and communities is of an entirely different order than the openness of MOOCs. It is the freedom to take content and build on it, remixing it into other educational resources. It is the freedom to dive in and out of topics, pulling them together in ways that don’t follow the fixed rhythms of a college course. And, most of all, it is the freedom to join in, not just as a student but as a teacher, moving back and forth between learning and sharing what you have learned as you collaborate with others from around the world on their own diverse educational journeys. MOOCs are charismatic megafauna, but open education is an entire ecosystem.

The Merchants of MOOCs was written for a symposium on Legal Education Looking Forward at Seton Hall, and it is forthcoming in the Seton Hall Law Review.

The second course in Speed Scholarship Week is a polemic on the theme of Big Data. Unlike the many fine existing rants about the privacy of the flies caught in Big Data’s webs, my rant is about the fate of the spiders. To an extent not fully appreciated, Big Data applications enable (and sometimes depend on) comprehensive surveillance of their users. Every question you ask of a Big Database reveals something about yourself, and don’t think that someone isn’t writing those questions down. Indeed, they may be logging your access precisely to keep you from violating the privacy of the people the data concerns. Big Data’s two privacy problems are twins, and rivals.

Big Data’s Other Privacy Problem is forthcoming in an edited collection of essays based on a Georgetown Law symposium on Big Data and and Big Challenges for Law and Legal Information, to be published by West Academic. I use the Bloomberg Terminal scandal as an example of how Big Data surveils its users, then step back and reflect on the relationship between this privacy problem and the more familiar one of protecting data subjects. Here’s an excerpt:

Thus, since Big Data cannot be entirely defanged and its users cannot be entirely trusted, it becomes necessary to watch them at work. It seems like a natural enough response to the problem of the Panopticon. Subject privacy is at risk because Big Data users can hide in the shadows as they train their telescopes not on the stars but on their neighbors. And so we might say, turn the floodlights around: ensure that there are no dark corners from which to spy. We would demand audit trails—permanent, tamper-proof records of every query and computation.

But if we are serious about user privacy as well as about subject privacy, transparency is deeply problematic. The audit trails that are supposed to protect Big Data subjects from abuse are themselves a perfect vector for abusing Big Data users. Indeed, they are doubly sensitive, because they are likely to contain sensitive information about both subjects and users. The one-way vision metaphor of the Panopticon, then, is double-edged. Think about glasses. A common intuition is that mirrorshades are creepy, because the wearer can see what he chooses without revealing where his interest lies. Everyone is up in arms about the Google Glass-holes who wear them into restrooms. But the all-seeing Eye is a window to the soul. The Segway for your face is also a camera pointed directly at your brain that syncs all its data to the cloud. The assumption Glass users are making, presumably, is that no one else will have access to their data, and so no one else will be pondering what they’re pondering. But that’s what Bloomberg Terminal users thought, too.

This draft marks another experiment. It’s formatted to a 5.5" × 8.5" page, so if you want to save paper, you can print it two-up. If you prefer your papers with plenty of whitespace, it should still look fine printed at 100% on 8.5" × 11" paper. Let me know whether you find this style convenient or confusing or both.

Welcome to Speed Scholarship Week. The first course is a palate cleanser: a paper that makes its points in a lighthearted way. I was invited to comment on a prize-winning student Note by Kyle Dolinsky of Washington and Lee, on the subject of copyright and 3D printers. The relationship between objects and the computer files that represent them is tricky on its own, but the copyright doctrines dealing with 3D objects and with computer software are notorious for their intricacy. I wondered whether there might be a way to cut through the complexity and get at the real issues involved. And then it struck me—that 3D printers are so miraculous a technology they might as well be magic. What if they were?

Indistinguishable from Magic: A Wizard’s Guide to Copyright and 3D Printing takes Clarke’s Third Law—“Any sufficiently advanced technology is indistinguishable from magic.”— as its inspiration. It imagines a world in which wizards use magic scrolls and wands to make 3D objects, and then gives a playful but rigorous discussion of how copyright law would apply. Here’s an excerpt from early on:

Ulrich has a Replicio wand. When he waves it with the right flick of his wrist, it makes a perfect duplicate of the object he waves it at.

The copyright treatment of the Replicio wand is simple. When Ulrich uses it to duplicate an object, he has created a “copy.” His only good argument that his copy is noninfringing will be that the object is not subject to copyright in the first place. The strength of this argument depends on what the object is. A first-century bust of Homer is in the public domain; duplicating it with my wand violates no one’s rights. A twenty-first-century bust of Homer Simpson is copyrighted; duplicating it with the wand makes me an infringer.

There is nothing special about three-dimensional objects in this respect. If Ulrich waves the wand at Rembrandt’s two-dimensional public-domain painting Aristotle Contemplating a Bust of Homer, his duplicate will not infringe. To be sure, some three-dimensional objects are uncopyrightable for a distinctive reason: because they are “useful articles” whose practical aspects are inseparable from their aesthetic features, such as bicycle racks and casino uniforms. But to understand the Replicio wand, we need to know only whether a three-dimensional object is copyrighted; nothing turns on why.

Indistinguishable from Magic will appear in the spring in the Washington and Lee Law Review. Download it while it’s hot!