The Times of London has published serialized extracts of Richard Susskind’s forthcoming book, The End of Lawyers? His thesis is that legal practice hasn’t changed as quickly as business, and he suggests that big law firms are where metropolitan newspapers were a generation ago.

I know quite a few  “recovering lawyers” or “lawyers in denial.” They have developed skills in business, or technology, and use their legal skills outside of law practice. They testify in Congress, run public agencies, advise businesses. They are legally savvy and creative, and have gone beyond their barrister skill sets.

Mike Skoler, the CEO of Sokolove Law, started his Business of Law blog with a post suggesting that the legal business model is broken.  In the US, law practices can only be owned by lawyers. Skoler says this regulation deprives these practices of access to investment and makes them financially vulnerable.

Indeed, Susskind argues, private “non-lawyer” ownership would drive the cultural changes and alignment with the broader economy necessary to make firms more viable operationally too.

The world of legal practice seems ripe for restructuring.  Isn’t it time for the big firms to shift towards fixed pricing and to expand their skill sets, just as my recovering-lawyer friends have found new ways to add value?

In a ruling that could cause shockwaves throughout the online legal community, a federal judge in Seattle has held that IP addresses are not personally identifiable information.

According to  U.S. District Court Judge Richard Jones: “In order for ‘personally identifiable information’ to be personally identifiable, it must identify a person. But an IP address identifies a computer.”

This ruling  goes to the very heart of many RIAA and MPAA court cases.

The ruling came in a class-action case against Microsoft in which the plaintiffs charged the software maker with a violation of its own user agreement because it collected IP addresses during software updates.

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Funny and Unusual Punishment

Before we had state identification, mug shots were used to establish identity. They still fill that role, but now they also punish, entertain, deter, and transfix a growing, voyeuristic audience in print and online. The Christian Science Monitor points out the popularity of a crop of sensationalist pulp magazines with names like Busted, Cellmates, and Slammer.

At a time when dozens of US newspapers are searching for buyers and for cash, The Slammer’s newsstand profit margin is four times that of most local dailies, and its circulation has grown to 29,000 – up nearly 50 percent from 20,000 just last year. At more than 500 convenience stores across North Carolina, it’s selling at a buck a pop.

Individual police departments (Peoria focuses on prostitutes), local news organizations (the Tampa Bay Times has an impressively detailed site), and ad-driven online collections (The Smoking Gun) have a lot to cover.

More than 14 million Americans are arrested each year. Some are famous, some are innocent, some are unfortunate, but all are fair game to be added to these online rogues’ galleries.

Is the Presumption of Innocence a Buzz Kill?
Much like the Cops TV show, each site notes that those depicted are “presumed innocent.” But if there’s a deterrent value in such collections, then inclusion surely constitutes a penalty without due process. After all, mug shots confer a strong suggestion of guilt, which helps define those pictured as a class of “others,” who have stupidly or cruelly brought this misfortune on themselves. 

The presumption of guilt excuses the bruises and injuries sustained during the arrest, as well as our own fascination. The presumption of innocence holds these people momentarily as our peers. Let’s face it, its easier to accept that they’re guilty as all get out, and get on to the fun.  And that’s the second problem. As Reason Magazine observes:

While we’re gawking at the haunted eyes of a Midwestern meth freak or the haunted hair of Nick Nolte, cops across America are using virtual rogues’ galleries to normalize the idea that the government has the right to punish you without bothering to convict you of a crime. — As law enforcement agencies expand their powers of surveillance, as they encourage us to think of punishment without due process as standard operating procedure, we not only tolerate it, we click and click and ask for more.

At the end of the day, shame is not exclusive to the accused.

There is a growing disconnect between the legal staff who write terms of use for websites, those who operate the site, and site visitors. I’ve come to believe that each level of disconnection introduces new sets of legal risks, which this story only start to illustrate.

Chris Soghoian observed in CNET that

Google’s terms of service, thick with legalese, state that:

“You may not use … Google’s products, software, services and web sites … and may not accept the Terms if … you are not of legal age to form a binding contract with Google.

Of course if you’re in the US that means that anyone under 18 is accessing Google’s computer system in violation of its terms of service. And this applies to all Google services, YouTube, Gmail, and Image Search.

Ignoring Legal Risks Leads to Selective Prosecution
Federal prosecutors recently used the Computer Fraud and Abuse Act to selectively prosecute Lori Drew as a hacker for violating MySpace’s terms of service. She lied about her identity, and harassed a troubled minor who was also using the system under a false identity. After the child committed suicide, a media and political frenzy resulted in federal prosecutors turning a breach of the site’s terms, which might not have even been civilly enforcable, in to a federal criminal case.

Ignoring the Disconnect Between Terms and Practice May Partly Void the Agreement
Obviously, online services retain the right to modify their own terms of use.  You may begin a user experience with a minimal grant of rights and a maximum of restrictions when reflexively accepting terms. However, when site staff clearly operate to the contrary to those terms, and in some instances assure users that terms in the TOS won’t be enforced, isn’t the contract being modified within the user experience?

Smoking Gun: Google for Kids
Google in fact provides safe-search resources just for kids. There’s no easily accessible link to terms of service, so arriving new users aren’t even exposed to them.

Question 1: By creating this site and its other practices, doesn’t Google by their own practice modify their terms?

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Funny, I thought the United Parcel Service delivered parcels.

1. Vague: Sounds like it was written by a marketing committee.
2. Self centered: No suggestion of a benefit to their clients.
3. Immodest: “we are the sun in the solar system of commerce”
4. Hard to read: Long words + moving vehicle = missed opportunity.

Al Ries said good branding requires two elements: a visual hammer and a verbal nail. The brain stores ideas as words, so brands need to be distilled to their essence, a verbal nail. I’d suggest the entire brand experience, not just the visual branding, should drive this message home.

We’ve seen governments monitor private citizens through video surveillance and increased access to electronic records. Here’s a proposal for citizens, and their media, to use some of these same tools to follow the work of their representatives in government.

Massachusetts’ Open Meeting Law and Public Record Law may be expanded by S1458 to provided better access for independent media (bloggers) to state buildings and records.

The bill proposes special standing to citizens and members of the press seeking to take video of proceedings. They would have preference in attending meetings and a prepared location whenever possible.

And finally, it puts the state in the role of taking and distributing its own video of proceedings.

The General Court shall ensure that video recording of each public hearing of committees and special commissions. Said recording shall be archived on the website of the General Court in a form easily accessible to the general public as soon as reasonably feasible after the recording is made, and shall remain available on the website for at least 24 months, after which it shall be preserved in the state library.

The state has lots of cameras fixed on citizens.  This bill would put some of those cameras in public meetings, so that citizens can track the work of their government.  In all, happy news for Independence Day.

Tip of the hat to Stephanie Davis and PatriotGamesMedia.

The year’s most patriotic weekend is upon us.  And if you’re like me the prospect of a long weekend is incredibly welcome. So, for your consideration, here’s a more personal post about an American symbol and what we might make of it.

This winter I bought a US Flag, and after many years in my residence, started flying it. Like a lot of people, I thought of this as an outwardly symbolic act. Liberal members of my family asked why I’d do this, and only half accepted that it was a way people express civic satisfaction. They asked how often I’d fly it, as if one might need a limit, and pointed out that Europeans wouldn’t use flags that way at all.

After 9-11, there was a feeling of increased unity both at my work, which was then in state government, and in my city, as people thought beyond individual interests. Having just finished a long partisan election, I perhaps hoped some little symbolism would help us close ranks. That might be why putting up a flag seemed right, back in December.

But as I started to fly the flag, I found I had a few things a bit wrong.
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