Misc: November 2008 Archives

 

November 30, 2008

Groklaw has an interesting article on the implications of the guilty verdict in the Drew case. (see also the amicus brief submitted by EFF et al.) The basic point here is that the legal theory under which Drew was prosecuted was that she had violated the Computer Fraud and Abuse Act by accessing MySpace's site in violation of their terms of service. As the amici observe, terms of service are often extremely vague (YouTube's Community Guidelines prohibit "bad stuff"), users generally don't read, and that sites probably ofte expect you to violate them (did you know that Google's TOS prohibit use if "you are not of legal age to form a binding contract with Google"?). They conclude that it's a really bad idea to give them the force of criminal law—should it really be possible to put 17 year olds who use Google in jail?

All this is of course true, but it seems like a pretty strong argument against terms of service in general. If they're ridiculously vague and nobody reads them anyway, then how does it make sense for them to be treated as some kind of enforceable contract? OK, so you can't do time, but check out this clause from Facebook's TOS:

You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site (including through the Share Service), your use of the Service or the Site, your conduct in connection with the Service or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights of any third party.

As I read this, if I as a Facebook user do something that causes Facebook some liability—even if I'm otherwise complying with the TOS—I've just agreed to indemnify them from any loss. That seems like a pretty substantial obligation to take on; I wonder if the average user has thought about it.

 

November 29, 2008

This NYT article on preemptive demolition by property owners is extremely odd. The basic story is the (totally unsurprising) fact that property owners in NYC who expect their property to be declared historic landmarks (and therefore changes will be highly restricted) are preemptively demolishing historic features in order to avoid the designation. What's striking about this article and it's <predecessor, is the essentially complete absence of the property owners. The only players who get coverage are the Landmarks Commission and the preservationists who claim that the Commission is dragging its heels.

But once the building's distinctive features had been erased, the battle was lost. The commission went ahead with its hearing, but ultimately decided not to designate the structure because it had been irreparably changed. Today a 16-story luxury condominium designed by Robert A. M. Stern is rising on the site: the Related Companies is asking from $765,000 for a studio to $7 million or more for a five-bedroom unit in the building.

The strategy has become wearyingly familiar to preservationists. A property owner -- in this case Sylgar Properties, which was under contract to sell the site to Related -- is notified by the landmarks commission that its building or the neighborhood is being considered for landmark status. The owner then rushes to obtain a demolition or stripping permit from the city's Department of Buildings so that notable qualities can be removed, rendering the structure unworthy of protection.

"In the middle of the night I'm out there at 2 in the morning, and they're taking the cornices off," said Gale Brewer, a city councilwoman who represents that part of the Upper West Side. "We're calling the Buildings Department, we're calling Landmarks. You get so beaten down by all of this. The developers know they can get away with that."

I'm sure that preservationists do find this to be a wearingly familiar strategy, but it's not exactly unexpected: put yourself in the position of the property owner. At the moment, you have control of a building and can mostly do what you want with it (subject of course to the existing zoning regulations), and suddenly you hear that you're going to be subject to a whole bunch of new, annoying restrictions, which you can evade by doing some minor surgery on your building (if you own a lot of property, you might find this to be a wearyingly familiar story). What would you do? In general, my sympathies here are mostly with the property owners, but that's mostly because the preservationists don't seem to have any sense that they're using the power of the state to inflict costs on others. That said, I'm not exactly a fan of having hog slaughtering operations or meth labs set up next door to my house, so it's not like I don't have any sympathy for zoning. I'd just like to see a more balanced presentation.

 

November 7, 2008

I was down at UCSD teaching a guest lecture on communications security and on my way back from lunch we saw this uh, preacher:

I knew Jesus didn't like unbelievers, but it's news to me about mouthy women and the world is pretty much full of clueless fools.