Wednesday, November 6, 2013

Thoughts on insurance, websites, and constitutional rights (that have nothing to do with Obamacare)

Insurance jingles are terribly catchy. The other day, I was trying to explain the concept of a slogan to my nine-year-old, and the first three examples that came to mind were from insurance commercials. All together, now: “Like a good neighbor, State Farm is there,” “Nationwide is on your side,” and “We are Farmers. Bum ba dum, bum bum bum bum.”

She sang that darn Farmers riff all day long.

Needless to say, the insurance companies have our attention, and that is by design.  With the world changing as rapidly as it is, there is a whole new spectrum of assets in need of protection—SpaceShipOne, Troy Polamalu’s locks, blogs—and a whole new spectrum of risky, audacious behaviors being incentivized as a result—space tourism, tackling by hair, journalism.

Last week, the University of North Carolina School of Journalism and Mass Communication announced that it purchased multimedia liability insurance for all of its students.  This million-dollar policy protects against claims of libel, copyright infringement, and invasion of privacy filed against student work.

“It used to be that occasionally students would be published, but students are blogging, tweeting and everybody is a publisher,” Media Law professor Cathy Packer told The Daily Tarheel.

In journalism and communication schools all over the country, assignments that once were for professors’ eyes only are now published on class websites.  Some programs mandate an online digital portfolio as part of the capstone project or graduation requirements; most employers expect to be able to link to sample work.

“Every student who wants to work in media should put together an online portfolio,” writes Dan Reimold of Saint Joseph’s University.  Which means that every student who learns-by-doing finds herself at risk.

Last July in Durham, North Carolina, just down the road from UNC, attorney John D. Haywood filed a lawsuit against two students at St. Michael’s College in Vermont for a profile that appeared on their class website at the beginning of the year.  Haywood, one of thirteen candidates who ran against Barack Obama in the 2012 New Hampshire Democratic primary, claimed the profile was damaging and “without a doubt” cost him votes.  According to the Student Press Law Center, the case was dismissed in January 2013 under Vermont’s anti-SLAPP statute, which attempts to control the chilling effect of Strategic Lawsuits Against Public Participation. 

This type of statue protects journalists in twenty-seven states.  There is no federal anti-SLAPP law.  Insurance protects against court costs for libel and invasion of privacy suits in jurisdictions where legislature or judicial precedence do not.  “It’s becoming more important for everyone who practices journalism to be familiar with the laws,” David Ardia of UNC’s Center for Media Law and Policy told The Daily Tarheel.

Learning the core laws, ethics, and standards of the profession, writes the Knight Foundation’s Eric Newton in Searchlights and Sunglasses, “is even more important now because new technology allows everyone to act as a journalist.” For those who create digital media at home (or at school) without the protections of a parent company, homeowner’s or renter’s insurance, or a personal-injury or umbrella policy, may cover content-based lawsuits, safeguarding uncompensated journalists in somewhat the same manner as UNC’s new insurance policy protects student reporters.

The pilot program at UNC will be one to watch, and hopefully faculty there will use this investment as an opportunity to educate not only journalism students but also other community members about changing laws and potential pitfalls in the tech-based reporting landscape.  Craig Newman, who chairs of the National Board of Advisors of the Cronkite School of Journalism & Mass Communication at Arizona State University, has called for  this type of legal instruction in both journalism and law schools.  In an opinion piece for the Columbia Journalism Review, Newman wrote, “It is imperative that schools provide this help if the media are to remain independent watchdogs, keeping government honest and the public informed.”

There is no moral hazard here, although there is risky, audacious behavior. UNC is creating incentives for students not only to learn about journalism but also to commit acts of journalism. By insuring students, UNC helps ensure that they will have freedom—freedom, as Newton puts it, to “practice innovative real-world digital newsgathering” and “report stories that help right wrongs.”

Not to sound like a commercial, but it's good to know these student journalists are in... good hands. Bum ba dum, bum bum bum bum.

Wednesday, May 9, 2012

Occam’s razor cuts deep in North Carolina: Persuasion and Amendment One

Contrary to popular belief, lawyers don’t always get out of jury duty. Last fall, after spending three days on a criminal trial, I finally figured out why the Assistant District Attorney didn’t even consider excusing me. His closing argument included a legal theory that he wanted the jury to apply to our case. This theory allowed us to make assumptions based on circumstantial evidence rather than requiring the usual proof beyond a reasonable doubt. Having me (and another attorney) on the panel ensured that there were at least two people among those deliberating who accepted – and would apply – the idea as needed.

Even so, as I sat in the jury room, I had a hard time grappling with the fact that someone’s fate depended on a shortcut.

Life doesn't take place in a jury room. Having weathered the campaigns for and against Amendment One, North Carolinians need no reminding that most of life’s deliberations do not take place behind closed doors – nor amid people with a range of backgrounds and worldviews, with cell phones and social media turned off, until we reach unanimity.

As busy citizens, we don’t have time for that. Nor does it sound like a very pleasant way to make tough decisions. (If it did, we would line up for jury duty rather than being summoned.) And so we struggle alone with unfamiliar and complex ideas.  We absorb information on the fly. We look for shortcuts.

When arguments challenge our beliefs, we find it easier to ignore, eliminate, or subconsciously devalue the opposition. We seek comfort in those who share our existing attitudes. (By the way, it took Leon Festinger two decades to develop Cognitive Dissonance Theory, a complex psychological premise that I just attempted to simplify into two dozen words.)

In the debate about the constitutional amendment on Tuesday’s ballot, we were aided in this process by campaign slogans and games of semantics. On the one side, "Holy Matrimony" and On the other, "Amendment One Harms Children" and These make for better bumper stickers, yard signs, t-shirts and URLs than “I support/oppose marriage between one man and one woman being the only valid and recognized domestic legal union in this State.”

But campaigns – political, ideological and otherwise – don’t deal in complexity. People who design them understand that every word they say / publish / post must pass through myriad filters of personal experience. Therefore, the fewer words the better. Instead of giving audiences all the information (even though that is what we claim to want), campaigns establish associations in the audience’s minds that are short-cut dependent, e.g., "Marriage is under attack" or "Domestic violence protections will disappear." Then as they develop, they build on that association, inviting the audience to participate – in material or virtual ways – by tying identity to outcome.

The goal of a campaign is to make us feel as if we are no longer struggling alone.

And we, as audience members with sensitive psyches averse to conflict, join willingly, closing ourselves off to the other side. In the end, we persuade ourselves as much as we are persuaded.

This process also transforms the world into us vs. them. Those on our side, or those attempting to defeat us. FOR the Marriage Amendment, or AGAINST Amendment One. Victorious, or devastated.

And that’s a problem, because as one Queens colleague tells first-year students in her Modern Citizenship class, “We do not live in an either-or world. We live in an and-also world.” No matter what the Republican and Democratic National Committees would have us believe, there are more than two sides to every debate.

But we have to look for the third, fourth, fifth point of view. It isn’t handed to us, and it’s never simple.

Reporter and media critic Brooke Gladstone recommends that audiences look beyond just conservative and liberal when identifying predisposition or prejudice. She writes this of what she calls status quo bias: “Human beings tend to oppose change unless the benefits are guaranteed to be huge – and the risks miniscule.”

The campaign that led to the passing of Amendment One on May 8 demonstrated how difficult it is to guarantee the unknown. The appeal of an unfamiliar and complex future pales in comparison to that of the effortless sound bite. We aren’t programmed to accept anything more without a struggle.

In communication – as in the courtroom – the side with the simplest story always has the advantage.

And now, North Carolinians must grapple with the fact that 222,000 families' fates are dependent on this legal shortcut.  As interconnected citizens, we can no longer afford to avoid the time and effort required for jury-like deliberations  amid people with a range of backgrounds and world views, with cell phones and social media turned off, until we reach a place of compromise, overcoming differences, recognizing both the risks and the benefits of change.

Tuesday, January 24, 2012

The Scoop on SOPA*

This piece was also published as Reflections on the SOPA Opera by Queens University of Charlotte (1/30/12).

Wikipedia was dark.  Google redacted its iconic homepage doodle.  And I was watching for rain.  Well, I was listening to “Watching for Rain,” my friend Anne Trenning’s 2009 album.  It seemed the proper background music as I pondered Anne's latest Facebook status on Wednesday, January 18, 2012:

‎"Illegally downloading music is no different than going to Starbucks and buying a coffee, and then stealing a CD when you leave."

Anne was making a point about intellectual property rights.  As a composer and pianist, she wants to receive some type of payment whenever people download, buy, sell, or otherwise enjoy her work.

Other parties much larger and wealthier than Anne, such as the Recording Industry Association of America (RIAA) and the Motion Pictures Association of America (MPAA) want the same thing.  Within the United States, these artists and producers have the Digital Millennium Copyright Act to protect their interests.  But they are concerned about rogue international websites, virtual pirates outside the reach of U.S. copyright law whose actions “are harmful to consumers and threaten American jobs.”

So these parties asked Congress for help.  And by asked, I mean gave money to those in a position to legislate for their cause, such as House Judiciary Committee Chair Lamar Smith (R-TX), who received more campaign contributions from television/movies/music industries over the last two years than any other interest group.

Help came in the form of H.R. 3261, otherwise known as the Stop Online Piracy Act, or SOPA.  Originally introduced on October 26, 2011, by Representative Smith and twelve co-sponsors, SOPA went through a hearing and a “mark-up period” late last year.  It’s partner legislation in the Senate, the Protect Intellectual Property Act (S. 968 or PIPA – pronounced like Kate Middleton’s paparazzily challenged sister), was scheduled for a vote on January 24.

SOPA is now best known as the bill that sparked a World Wide Wail.  On that Wednesday, Wikipedia shuttered their English language site – a move that the Wall Street Journal reported could block 10 million viewers. Google, BoingBoing, Reddit, Mozilla, Wordpress, and Twitpic also participated in the digital protest, which brings me back to my friend’s Facebook status.

SOPA’s creators say they designed the act to stop illegal activity – the shoplifting of CDs in Anne’s analogy.  The protestors, on the other hand, argue that the bill goes too far.  It allows music labels to demand that Starbucks barricade the door, suppliers cease deliveries (no more Cranberry Bliss® bars!), and others remove the coffee shop from the white pages, the Yellow Pages, Yelp, Foursquare, and Google maps.  All of this without proof of any actual thievery.

Unlike PIPA, which focuses on advertisers and financial conduits like PayPal that support rogue sites, SOPA goes after Internet service providers.  ISPs that receive a court order must take action to prevent access to a targeted site within five days. The goal is to make the infringer vanish altogether.  However, tech companies argue, this can only occur at great cost to established companies and perhaps prohibitive cost to smaller ones.

Aside from cost, the main questions that anti-SOPA protestors want pro-SOPA lawmakers to address are those of collateral damage:  law-abiding websites, privacy, security, and free expression may all be at risk with this Act.

Under SOPA, ISPs may cut off websites believed to violate copyright without a court order – online blacklisting.  SOPA could also demand Internet service providers block specific URLs suspected of piracy, which experts say requires them “to intercept and analyze customers' Web traffic.”  And, since SOPA targets any Website that offers goods or services to users within the U.S., there is a good chance that it will sweep up expression beyond just “incidental speech” (which, as MPAA’s attorney, the venerated Floyd Abrams, points out, is OK to block).  For example, a whistleblower site that posts internal corporate documents could easily land on the blacklist.  Chilling.

Anne was in the minority among my Facebook friends on Wednesday.  Far more posted a link to Google’s anti-SOPA petition. But this debate is more than just musicians vs. techies.  It isn’t Los Angeles vs. Silicon Valley or even lobbyists vs. the 99%.  After all computer/Internet companies rank fifth among interest groups that donate to Lamar Smith.

The SOPA protests are instead highlight the difference between those holding onto the past vs. those embracing the present, if I may be so abstract.  The MPAA is reacting in the same way they did in 1982 when threatened by “a thing called the video cassette recorder and its necessary companion called the blank tape.”  When lawmakers make the mistake of trying to protect a minority that uses outdated distribution models – particularly one that is desperate to protect itself – at the expense of a more technologically progressive and democratically motivated community – and the Internet is a community – the result is 4.5 million signatures on Google’s petition and 300,000 citizens emailing or calling their representatives in one day.

The protest worked.  On Friday, January 20, 2012, Representative Smith tabled the bill with this statement:

“I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy. It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.”

The protestors won... for that week anyway.

And now the wired, world-is-flat, click-here community must prove it has an attention span that lasts beyond the present moment and into tomorrow.  If citizens value the open Web, as well as privacy, security, and freedom of expression, and if they determine that Congress is threatening those values, then the community must continue to care, and take action, even now that Wikipedia is live once again.

It’s something to think about every time you walk through the door of a Starbucks.

*with apologies to the Society of Publishers in Asia, who made page 1 of the Google search before 1/18/12

Saturday, September 10, 2011

The Waiting Room – Reflections on 9/11/01

We lived in Montclair, NJ, and commuted into the city.  I was a second-year law student at Columbia; Nick was a second-year associate at Lehman Brothers.  We had been in the suburbs for nine months and were starting to feel the toll of the commuting life – or rather, the investment banker’s commuting life.  Nick was often just a pair of warm feet that slipped under the covers after 1:00 a.m. and slipped out again before 6:00 a.m.  But we were sure we could find a way to add a baby to the mix.

We wanted children, and the timing seemed right.  After all, I had more flexibility as a student than I would any other time in the foreseeable future.  But like so many couples, the wanting and planning (and trying) wasn’t enough to create a new life. 

With endometriosis and a blocked fallopian tube on my part, and low motility on his, we revolved through doctors’ offices for assessments and even outpatient surgery.  The next step, said my reproductive endocrinologist (RE for those who play the fertility game), was intrauterine insemination (IUI).  If that didn’t work, we would try in vitro fertilization (IVF).  To ease the unease, and to drown out the acronyms, I did what I did best.  I buried myself in work.  Nick didn’t have the luxury of choosing; work buried him every day. 

We were speeding forward, impatient to accomplish our plans, wrapped up in our two-person world.  And then, the world changed.

One September morning, Nick left on the early train to Hoboken, where he would transfer to the ferry, cross the Hudson River, and walk a few blocks to 3 World Financial Center.  I drove our Volvo in the opposite direction, crossed the George Washington Bridge, parked in Morningside Heights, and then hopped a subway down to Columbus Circle.  I strolled one block down West 59th Street to the RE’s office, a quarter hour early for my 9:00 a.m. appointment, feeling hopeful after my HCG trigger shot the day before.

Right about 8:46 a.m., I looked up at the cloudless blue sky, felt the sun and a balmy fall breeze, and thought to myself, “This is a perfect day.”

At Dr. Keltz’s office, I signed in, took a seat in the waiting room, and opened my property law textbook.  It took a few moments for me to notice the receptionist, nurses, and a few other patients gathered around the radio on the front desk.  It wasn’t until I heard the words “plane,” “explosion,” and “World Trade Center” that I began to pay attention.  Moments later, there were audible gasps when reports came in of a second plane hitting the South Tower.  The waiting room fell silent, as we suddenly realized this was no fluke, no accident, nothing like we’d ever experienced before.

For the next 30 minutes, we heard both rumors and reports, and listened to newscasters try to sort out what was fact and what wasn’t.  The Pentagon crash was juxtaposed with a reported crash into the Supreme Court.  We didn’t know that both weren’t true.  The South Tower collapsed at 9:59 a.m.  News of Flight 93 followed.

Dr. Keltz appeared in the lobby wearing a shoulder bag and an anxious expression.  He stuttered an apology, explaining that the hospitals had summoned all doctors in New York – no matter their specialty – for emergency triage and he was leaving for St. Luke’s-Roosevelt at once.  I still shudder at the thought of all those medical professionals gathered in the ERs on high alert, waiting for the thousands of victims who never came.

I slowly looked around at the other patients, who, like me, weren’t quite sure what to do next.  We who were striving for fertility planned our months, weeks, and days around the probability of life.  We were paralyzed by the certainty of death.  My gaze shifted to the bulletin boards, filled to overflowing with birth announcements, baby pictures, family portraits, and holiday cards.  There were a disproportional number of twins and triplets in the photographs.  For months I had thought about nothing else but adding a picture to that collage.  At 10:28 a.m., the North Tower fell. 

The impulse to call Nick finally cut through my mind’s disbelieving fog.  I’m not sure why it took an hour for me to pull out my cell phone.  Was it an indicator of the times (cell phones were still expensive and only used when absolutely necessary), or did it take the collapse of the North Tower (joined by pedestrian bridge to 3 World Financial) to connect these surreal events to my own reality?  By the time I opened my phone, there was no hope of service.  The loss of communication towers at the World Trade Center, paired with the overload of calls across the five boroughs, meant there was no getting through to anyone else on the island of Manhattan, nor to the message ensconced in my voicemail

I stared at the little envelope on the screen.  Someone had called during the course of the morning.  I always kept my phone on vibrate for fear of it ringing during a law school lecture, and I had missed the call.  Now, sealed inside that envelope, was an irretrievable... reassurance?  Or goodbye?  I rubbed my thumb along the number keys like a rosary and prayed over that message icon.

When a couple is battling infertility, the RE’s office becomes the closest thing to an emergency meeting point. If Nick were coming for me, I told myself, he would come for me there.  I had to remain where I was.  The clock kept ticking.  The radio kept broadcasting.  I ran out of prayers and began reciting hymns instead.  Other patients gathered themselves and left.

Three hours after the first plane hit the North Tower, Nick opened the waiting room door.  He had walked five miles from the lower tip of Manhattan, through the dust and chaos.  I didn’t give him a chance to take one more step.  I was out of my seat and sobbing in his arms before he could cross the threshold. 

It feels profane to acknowledge that moment shortly after noon on September 11, 2001 – the doorknob turning, the door opening, the instant of recognition, the wave of gratefulness that washed away my grief in its infancy – as perhaps the greatest in my life.  Especially knowing how many people hoped, prayed, begged, wished for the same.  Those who stood vigil on the streets holding signs with photographs and names.  Those for whom life itself became a waiting room.  My story is nothing compared to theirs.  My loved one was never missing, never lost, never buried.  My wait for him could be counted in seconds (roughly 10,800).  Our reunion took place in this life rather than the next.  We began to tiptoe forward again.

We hosted a friend from lower Manhattan whose apartment was uninhabitable.  When the President encouraged all patriots to go shopping, we drove to the Woodbury Commons outlets and then chastised ourselves over the triteness of it all.  Lehman Brothers moved to the midtown Sheraton, and Nick went back to work in the hotel basement.  I went back to class but canceled a job interview in Seattle.  I took Amtrak to DC to lay eyes on a friend.  We attended memorial services for friends who died in the North Tower. 

I took a home pregnancy test.  It was positive.

We returned to the waiting room together at the beginning of October 2001.  I looked at the bulletin boards and wondered which of those families was still whole and which had been ripped apart.  The nurse called us back and, after a blood test, Dr. Keltz confirmed what we already knew.  Our world had changed.  It wasn’t just about the two of us anymore.