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Google recently announced its new privacy policy, asserting its
benefits but also making clear its implications. To summarize,
beginning March 1 Google will be taking information from almost all of
our Google services – Gmail, Picasa, YouTube and search – and
integrating the data so that they can learn more about us. Under the
new comprehensive privacy policy for these services, Google says it
can “combine the information from other Google services or third
parties in order to provide you with a better experience and to
improve the quality of [their] services.” Google purports that this
will allow them to do a lot more “cool things” when it combines
information across products to benefit its users.

In response to this announcement, opponents have challenged the new
policy as both invading the privacy of users and shutting out
competitors. Members of Congress question whether Google is
sacrificing its users to boost its online advertising business as it
pushes into new areas such as social networking and mobile devices.
Others simply call the new practice frightening.

The only way to turn off the data-sharing feature is to quit using
Google, as there is no choice to opt-out of the new policy. To combat
a potential mass exodus, Google has launched an ad campaign
specifically addressing its new policy and encouraging Google users to
learn more about how the policy is protecting them. The Good to Know
campaign has been launched in two-dozen U.S. newspapers and magazines
and in public places such as the NYC subways to encourage people to
protect themselves and their information on the Web. Google further
asserts that the new policy benefits users by helping them find the
information they are looking for more quickly.

But regardless of Google’s intentions behind the new policy, what is
clear is that Google is following us.

For additional information please see:
http://www.washingtonpost.com/business/economy/google-moves-to-integrate-user-data-across-services/2012/01/24/gIQAmv8GOQ_gallery.html#photo=1
http://latimesblogs.latimes.com/technology/2012/01/google-defends-new-privacy-policy-to-congress.html

- Samantha C.

On January 20 the U.S. Department of Health and Human Services (DHHS)
promulgated new regulations requiring contraceptive services to be
covered by the insurance policies that will be supported under the
Affordable Care Act. However, it is not surprising that the Obama
administration’s final decision that Catholic Universities, hospitals,
and charities will be compelled to provide for health insurance
covering sterilization, contraceptives, and abortifacients has not
been warmly welcomed by all factions.

As a general matter, covering contraceptives is logical. Proponents
contend this measure furthers women’s rights, and will likely reduce
the number of abortions. Further, DHHS asserts this decision was based
on an Institute of Medicine study, which concluded that birth control
is medically necessary to “ensure women’s health and well being.”

But critics nationwide are calling this move radical and malicious;
asserting that Obama’s decision uses the power of the state to impose
liberal values on institutions it regards as “backward.” Strong
opposition comes from Catholic Church leaders across the country,
openly denouncing this decision based upon the Catholic teaching that
it is morally wrong to prevent contraception by any artificial means.
Although today many devout Catholics use contraception, despite the
Church’s teachings, these members of the Church are opposed to this
decision due to its symbolic significance – creating a space within
civil society for the oppression of religious conscience.

The strong opposition to this decision exemplifies current political
and religious tensions within the U.S. and even among the branches of
the U.S. government. For example, this decision is at odds with the
recent Hosanna-Tabor ruling, where a unanimous Supreme Court
reaffirmed a broad religious autonomy right rooted in the
Constitution. Therefore perhaps it would have made sense for the Obama
administration to choose a less aggressive path, better balancing the
competing liberty interests at stake here, especially on the eve of an
election.

For additional information please see:

http://www.washingtonpost.com/opinions/obamas-radical-power-grab-on-health-care/2012/01/30/gIQANB7XdQ_story.html

http://www.nytimes.com/2012/01/30/health/policy/law-fuels-contraception-controversy-on-catholic-campuses.html?_r=2&ref=health

- Samantha C.

The college admissions process is stressful enough without enduring
the horror of receiving a mistaken acceptance letter. Last week,
thanks to a “computing error,” 76 early decision applicants to Vassar
College had that misfortune.
(http://www.nytimes.com/2012/01/31/nyregion/after-mistake-a-mea-culpa-from-vassar.html?src=me&ref=nyregion).
Even though the school quickly realized its mistake and promptly sent
out a notice along with the correct letters, the damage was already
done, as evidenced by student posts on an online forum
(http://talk.collegeconfidential.com/vassar-college/1254851-official-vassar-early-decision-ii-thread-7.html).

Once the confusion settled, reactions to the error varied from
disappointment to anger. The suggestions as to how to deal with the
situation also varied: some suggested a lawsuit as the early decision
college admissions process is binding, while others felt that the 76
should not be re-accepted as they should only be admitted based on the
strength of their application.
(http://thechoice.blogs.nytimes.com/2012/01/30/accepted-for-about-three-hours/?ref=nyregion).
Unfortunately this is not the first time a college has mistakenly sent
acceptance letters to prospective students (it likely won’t be the
last), and in the past institutions have chosen to respond
differently—some admitting the students, others rejecting them, all of
them apologizing.

In the end, Vassar has decided to address the situation by refunding
the $65 application fees of those 76 students (a gesture it admits is
likely to be of little consolation), and by personally apologizing to
each of those students. The school’s position is that, given the
limited number of students the school can accommodate in each class,
to admit those students would be unfair to all the applicants
expecting a fair assessment during regular decision.

As a Vassar alum my initial reaction was a mix of outrage and
embarrassment. After thinking about it more, I am ultimately persuaded
by the unfortunate reality that re-accepting a student effectively
denies a place in the class to an applicant that has not yet been
given fair consideration. Any solution will inevitably leave some
dissatisfied. And while I personally feel that re-admitting those
students would undermine the integrity of the admissions process (a
process whose fairness all applicants rely on), I think there is a
good argument to be made to the contrary. Either way, the best that
can be said is that Vassar’s mistake will have at least one positive
outcome: all schools will now be even more careful in sending out
their admissions letters.

A key difficulty here is balancing the claims of injured individuals
with the legitimate needs of collectives and institutions. Given the
fact that the social, as opposed to legal issue involved here, is so
context dependent (dependent on the size of the error relative to the
size of the entering class), it is an issue that seems to me better
suited for resolution outside the courts.

- Nick Buell

Google Books began in 2002 when Google founder Larry Page began an
experiment whose goal was to scan every book in the world.
(http://books.google.com/intl/en/googlebooks/history.html) Naturally,
an endeavor that large and with such wide ranging implications, would
provoke an intense debate, and, in 2005, the Author’s Guild of America
filed a class action lawsuit against Google alleging “massive
copyright infringement” in connection with Google Books, seeking
damages, injunctive, and declaratory relief with respect to Google’s
alleged copyright infringement.

After prolonged settlement talks (and one settlement agreement
rejected by the court), the parties submitted an opt-out class action
settlement for court approval. Once again, the court rejected the
settlement as unfair, inadequate, and unreasonable, relying primarily
on the inadequacy of class representation and the fact that the
agreement exceeded the scope of relief available under the Federal
Rules of Civil Procedure. But Judge Chin did not reject the agreement
without offering advice for further negotiations, urging the parties
to consider revising the agreement from an “opt-out” to an “opt-in”
settlement.

Google Books, if fully realized, would have many benefits. It has the
potential to breathe new life into many unnoticed and out-of-print
books. (http://www.nytimes.com/2009/01/05/technology/05iht-05google.19082002.html?pagewanted=all).
It also has the potential to achieve an even larger benefit: the
creation of a comprehensive digital literary archive. The value of a
universal digital library is significant and has been discussed for
decades, and yet Congress has done little, if anything, to make the
prospect a reality. (For a good discussion of this see Hannibal
Travis, Building Universal Digital Libraries: An Agenda For Copyright
Reform, 33. Pepp. L. Rev. 761 (2006)).

Despite the potential benefits of Google Books, however, Judge Chin
was quite right in rejecting the proposed settlement. For starters,
the settlement, structured as an opt-out settlement, would have bound
all copyright holders who did not take the affirmative step to opt-out
of the settlement, thereby granting Google the right to digitize and
profit from their work, and “effectively grant[ing] Google a monopoly
over digital books.” (Author’s Guild v. Google, Inc., 770 F. Supp. 2d
666 (S.D.N.Y. 2011)).

The settlement would have essentially rewarded Google for
intentionally breaking the law. And while an argument can be made that
perhaps Google’s industrious efforts should not be punished, the task
of evolving copyright law in response to new technologies is charged
to Congress, and has been for a reason. Congress, not a
profit-motivated corporation, is in the best position to institute
such sweeping change.

- Nick Buell

By Mary Kate Brennan
The grounding of the M/V Costa Concordia off the Tuscan coast, nearIsola del Giglio, resulted in a deadly disaster with global implications. Beyond the scope of general maritimelaw, the cruise ship catastrophe presents further legal questions, specificallyabout the role of social media as evidence in litigation.
For years, traditional media outlets have struggled to keep up with a societywhere people are more dependent on their laptops and iPhones than newspapers andtelevision for news. We recentlylearned about the revolutionary power of the Internet through the Arab Spring.By posting videos of the tumult in Tahrir Square on Youtube and Facebook, thecountry mobilized change across Egypt. More importantly, with the immediate ability to transmit information,the rest of the world learned about the protests on the streets and becameinvolved. Examples across theMiddle East highlight the incredible importance of instantaneous andcontinuous news reporting.
News reporting is not the only function of social media, for example, somepeople use Facebook and Twitter to report on their daily comings andgoings. In the case of the CostaConcordia’s captain, Francesco Schettino, incriminating comments on Facebook may play acrucial role in the case against him. Allegations have been made that the reason the cruise ship hit the LeScole reefs was because the captain was intentionally navigating close to shoreas some sort of stunt. Reportsassert that Schettino invited the ship’s head waiter to the bridge so that hecould waive to his family. Specifically, a Sydney Morning Herald article published on January 17thstated that on the day of the grounding, the head waiter sister’s Facebookstatus read, “In a short period of time theConcordia ship will pass very close. A big greeting to my brother who finallygets to have a holiday on landing in Savona.” http://www.smh.com.au/travel/travel-incidents/preplanned-cruise-stunt-flagged-on-facebook-20120117-1q3n7.html
If thenews reports on the Facebook status are true, they may establish that the close approach to shore by the ship was apre-mediated maneuver. The Facebook posting, in conjunction withother evidence that the stunt was announced to selected members of the crew,their friends, and family ashore in Giglio prior to the casualty, supports thesuggestion that the ship’s close pass was deliberate, which may be a criticalfactor in the case. If credible this would be proof ofpremeditation and refute Schettino’s version that he struck an uncharted rock. It could be sufficient to show seriousnavigational error – gross negligence or willful misconduct, at least on thepart of the master and some of the crew.
As exemplified in the case of Costa Concordia, passing comments postedon Facebook or other social media websites, even by third-parties, mayimplicate major players in high-stakes litigation. Online postsmay lead to admissible evidence that radically impacts decisions.

            On Sunday, a record audience will watch the 46th Super
Bowl between the Giants and Patriots. One of the highlights of the
event is not the game itself, but the commercials that air. Super Bowl
Sunday is one of the only days that fans will focus on the commercials
breaks instead of flipping the channel. Because of the record
audience, advertisers pull out their best work. According to USA
Today, the average ad cost of a 30-second advertising spot in this
year’s Super Bowl broadcast is $3.5 million. The Super Bowl, and thus
the commercials shown during that time are seen by an average of 111
million viewers. About 162.9 million viewers watched “some part” of
last year’s Super Bowl, breaking the previous year’s record by some
4.5 million.

            Typically the commercials are funny spots from beer and
car companies. However there will also be a more serious tone for at
least one commercial. As the New York Times first reported, “[f]or the
first time, the N.F.L., currently the target of more than a dozen
lawsuits accusing it of deliberately concealing information about the
effects on players of repeated hits to the head, will use one minute
of its own commercial time during its signature event to address
player safety, its most critical and sobering problem.”
http://www.nytimes.com/2012/01/31/sports/football/nfl-to-address-head-injuries-in-commercial.html?pagewanted=all.

            Michael Hausfeld, a Washington-based lawyer who is
representing some former players involved in concussion-related
lawsuits against the N.F.L., said he had not seen the commercial, but
said, “[t]hey shouldn’t be focused on placing ads. They should be
focused on talking to those players who have suffered the concussions
and the consequences. And saying, ‘What is it we can do?’”

            Player safety has become a bigger topic as the popularity
of the NFL has exploded. Football’s main appeal is the drama of the
collisions in the game, but those collisions also have major
consequences – especially as the players have gotten bigger, faster
and stronger. The N.F.L. is choosing to advertise player safety
instead of promoting other aspects of the game. The N.F.L. spent
several million dollars on the commercial and the creation of an
accompanying Web site —nfl.com/evolution — that will go online Sunday
and give detailed information about the history of the game and
various rules changes. “It is your biggest stage, you’ve got a massive
audience, a massive casual audience, and this topic is probably one of
most important topics for casual fans, particularly mothers,” Mark
Waller, the N.F.L.’s chief marketing officer, said about the decision
to inject a serious subject into the league’s over-the-top party

            The commercial will be shown during the final commercial
break of the third quarter. The closing message is delivered by
Baltimore Ravens linebacker Ray Lewis: “Here’s to making the next
century safer and more exciting. Forever forward. Forever football.”

            It will be interesting to see if the commercial adds to
the debate about the safety and violence of football or if it is just
overlooked by spectators as a “non-entertaining ad.”

Spencer C.

            Although drone warfare has been a key feature of the Obama
administration’s pursuit of al-Qaeda in Afghanistan and Pakistan, it
has rarely been discussed openly. Rights group Amnesty International
has questioned the legality of drone strikes. A recent Amnesty
International statement demanded “a detailed explanation of how these
strikes are lawful and what is being done to monitor civilian
casualties and ensure proper accountability.”
(http://www.bbc.co.uk/news/world-us-canada-16804247).

            On Monday, January 30th, the New York Times published a
front-page article detailing how the State Department is using unarmed
aerial drones in Iraq.
(http://www.nytimes.com/2012/01/30/world/middleeast/iraq-is-angered-by-us-drones-patrolling-its-skies.html?hp=&pagewanted=all).
The goal of these drones is to help protect the United States Embassy,
consulates and personnel.  Senior Iraqi officials say that the program
is offensive to their sovereignty.

            On the same day that the article about drones in Iraq ran,
President Obama confirmed that the United States has engaged in drone
strikes in Pakistan.
(http://www.politico.com/politico44/2012/01/obama-acknowledges-drone-strikes-in-pakistan-112880.html).
 In a Google Plus video chat, the President said the U.S. is “going
after Al Qaeda suspects who are up in very tough terrain along the
border between Afghanistan and Pakistan.” Obama was careful to qualify
the strikes by stating that, “[w]e have to be judicious in how we use
drones. For the most part, they’ve been very precise precision strikes
against Al-Qaeda and their affiliates, and we’re very careful in terms
of how it’s been applied.” President Obama said drones had “not caused
a huge number of civilian casualties.” He concluded his remarks on the
subject by noting that these strikes are focused on people who “harm
Americans, hit American facilities, American bases . . . [and] for us
to be able to get them in another way would involve probably a lot
more intrusive military action than the ones we’re already engaging
in.”

            The Pakistani officials have similar opinions to the Iraqi
officials. Pakistan’s foreign ministry spokesman Abdul Basit responded
to President Obama’s remarks by saying: “Our position on drone strikes
is clear and based on principles. Drone attacks are unlawful,
counterproductive and hence unacceptable. We cannot condone violation
of our sovereignty.”
(http://www.bbc.co.uk/news/world-us-canada-16804247).

            The timing of drones in the news is ironic to fans of the
new Showtime show, Homeland, whose season finale ran in mid-December.
One of the central storylines in Homeland was the Vice President as an
antagonist. In the case of Homeland the vice president wasn’t plotting
to overthrow the American government, he was covering up evidence of a
drone attack he had ordered that killed scores of children, including
the son of the fictional Qaeda leader, Abu Nazir.

            As fans of Homeland have seen, sometimes these strikes can
do more harm than good. With the foreign policy of the United States
changing with the end of the Iraq War it will be interesting to see
the role that drone strikes continue to play.

Spencer C.