This Week in Law 281 (Transcript)

Denise Howell: Next up on This Week in Law, we're going to look at terrifying tech in honor of Halloween. Halley Suitt Tucker and Franklin Graves are joining me. We're going to talk about voracious social media and television executives; hammer-wielding Uber drivers; Google Street cleavage; a very different kind of egging; America's most feared crime; and much more.

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Denise: This is TWIL, This Week in Law with Denise Howell, episode 281, recorded October 31, 2014

The Haunted Hello Kitty Room

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Hi, folks. I'm Denise Howell, and happy Howell-owween! Oh, my goodness! Ha ha ha ha!

Halley Suitt Tucker: (Laughs)

Denise: We have so much to bring you today. We are doing a terrifying tech edition of This Week in Law, things that are so dang scary, there ought to be a law. And I think in some instances we will be staking these in fashion that Buffy would be proud of and trying to quell your fears; in others, we will just be fostering FUD all over the place. Fear, uncertainty, and doubt will prevail because I don't think we have any good answers to some of the things we're going to cover today. But I promise you that they're all terrifying in their own way. To have this wonderful episode and scare you to the core, we have a wonderful panel joining us today. Channeling Milla Jovovich a bit is Halley Suitt. Hello, Halley!

Halley: (Laughs) Hey! How are you doing?

Denise: If Milla wore blue instead of orange.

Halley: Do you have any candy for me?

Denise: No candy for you.

Halley: No fun!

Denise: You're going to have to wait until trick-or-treating tonight. Come on by after dark, and we will load you on up. But it's always sweet to have you on the show, Halley.

Halley: Glad to be here.

Denise: Great to see you. Also joining us just out of a phone booth near you is Franklin Graaaaaaaaves! (Laughs)

Halley: (Laughs)

Denise: Hello, Franklin!

Franklin Graves: Hey, Denise. Hey, Halley. Nice to see you guys. I'm happy to be here today.

Denise: Great to see you, too. Wonderful to see you. I love your costume.

Halley: That's right. Where'd you get that tie?

Franklin: It's actually just a tie I had from high school that I put a coat hanger through.

Halley: Ah, it's awesome.

Franklin: I went cheap this year.

Denise: Brilliant.

Franklin: I went for the cheap, so ... (Laughs)

Halley: (Laughs)

Denise: It's wonderful, though. I mean, it's cheap and great. I know I did the same thing. I went shopping in my closet for a costume, and I am —

Halley: Yeah.

Denise: I was telling my husband today, "I'm an Indiana Jones type person." And he said, "You mean Lara Croft?" And I went, "Well, okay, yeah."

Halley: Oh, yeah.

Denise: Not that I could be, but ... (Laughs) I guess that would be the female equivalent.

Halley: No, you could be, but you'd have to have another outfit on, okay? So ... (Laughs)

Franklin: (Laughs)

Denise: Yeah, exactly. (Laughs) Less outfit, maybe.

Halley: Well, just very sticky. Black, rubber, very sticky. (Laughs) That's —

Denise: (Laughs) Black, rubber, and sticky. I do have very tall boots on that you can't see right now.

Halley: Oooooooh.

Denise: You'll have to take my word for it, they are very tall boots.

Halley: (Laughs)

Denise: (Laughs) So anyway, let's get into our terrifying tech edition of This Week in Law with something that truly is scary. I don't know about you, but if my Uber driver came at me with a hammer and started pummeling me, I'd be beyond scared. I mean, this is something right out of a horror movie; but that actually happened to a man named Roberto Chicas, who unfortunately had a very bad run-in with an Uber driver and a hammer last month. And so the topic that I wanted to tee up for you guys is the relative terror of taking Uber and Lyft and other services and the fact that there have been some very high-profile assaults by drivers; and just wanted to take your temperature on what you make of that. I mean, Halley, do you feel — first of all, give me your take on Uber and Lyft and other such services. Do you use them, and are you ever scared doing so?

Halley: Okay. So I just used it this week because little do you know, perhaps, I don't own a car. I don't like cars; I'm, like, a real green person. And with Boston's T and bus system, I don't need a car; so I've been doing this kind of no-car experiment. But I had to go into Cambridge really fast from where I live about half an hour away and get — attend a conference with a guy who was an early investor, I found out later, in Uber. (Laughs) And I happened, because the bus was running late, to call Uber; and I had a great ride, and it was really fast. But what I found really mysterious was, the price was way lower. I had gotten used to Uber early on being really expensive, so they must be having some hellish — somebody's hammering them also on price as well as, perhaps, what else they're using hammers for.

Denise: (Laughs)

Halley: So my experience was excellent. The irony of me rushing into town — and the guy saved the day and got me there on time to listen to one of his investors was pretty funny; and I haven't ever, ever used Lyft, and I don't particularly like their creepy, like, pink mustache logo, frankly. But I think they're having war in every town they're in between Lyft and Uber and whatever's the usual cab people in town. So things are pretty wild out there.

Denise: How about Sidecar? Do you ever see or use that service?

Halley: I haven't, but I don't know if it's in Boston or not because I'm so often not needing — just now and then I need a cab, so ...

Denise: Yeah. And from the legal standpoint, Franklin, the terrifying thing about these services — and it seems like at least Uber and Lyft have similar kinds of terms of service that you agree to — is the fact that you are not just sort of jumping into one of these cars and driving off. You are agreeing to various of course completely unread and deep dark and mysterious terms of service when you use these services. And Uber, in the particular case of the driver with the hammer, is hiding behind those terms of service, which say that the passengers accept that kind of risk by using the service, that bad things can happen such as assault by your driver; and that means that we have no responsibility, say the likes of Uber and Lyft. What do you think about the enforceability of that kind of provision when we're talking about physical assault and other bad kinds of torts, Franklin?

Franklin: I kind of — I mean, I don't really use Uber regularly. The only time I've ever used it was in Boston. (Laughs)

Denise: (Laughs)

Franklin: So I had a great experience as well. And I actually tried to use the competitor, Lyft, from the airport; but I tried to get one, and the person called me and said, "Where are you?" And then they said I was too far away. So I don't really understand that. So I didn't use Lyft, but I used Uber instead. And when I signed up for the account, I mean, I'm just like every other person that uses it; I've just clicked through and didn't even read it.

Denise: Yeah.

Franklin: So I have no idea that it was in all caps, etc. It was all outlined there about the safety. But the particular article that we're referencing was very interesting to hear from the attorneys about it, to kind of see the arguments going back and forth as to how much control Uber actually places over the drivers, whether it's how much the fare costs, and — I mean, as Halley said, the prices significantly decrease; or maybe just the market has made it so that there's more competition. But I think that it's kind of crazy that Uber can just be completely let go of this. But at the same time, I see how Uber does, they say, perform background checks. I don't know how thorough those are, but they're at least trying in that aspect. And this person that did the hammer incident did not have any criminal background. (Laughs) But one thing of interest was the one dollar safety fee surcharge that the individual received on their bill.

Halley: (Laughs)

Franklin: So I think that would definitely not be enough to cover the amount of damage that this person faced from a hammer.

Denise: Right. And of course, they've gone back and forth about what sort of insurance requirements are required. In California, we have a legislation that was just signed last month that's going to set new insurance standards for companies like Uber and Lyft; but that was a compromise bill with the companies. This is basically just addressing the amount of coverage that the drivers have to individually carry —

Halley: Right. Yeah.

Denise: — and seems really more geared toward the auto-accident scenario and really doesn't address the —

Halley: Hammering? (Laughs)

Denise: — "I am a psychopathic, hammer-wielding, groping, sexually-assaulting driver" kind of problem. In that kind of situation, I'm sure no auto insurance policy would agree that they were on the hook. (Laughs) But the overarching company, the company benefitting from everyone taking these rides, could be under the kinds of arguments that are being made now in the hammer case, anyway. So —

Halley: Can I ask you about —

Denise: Yeah.

Halley: — you guys, you lawyers, about Airbnb or someplace — I mean, the idea that you're in somebody's cab is of concern. When someone else is in your house, maybe this hammer guy's looking for a nice Airbnb visit. Have they created some good language around this or figured out how to be whatever — be careful what liability they have, that this could —

Denise: So let me see if I understand your law school exam hypothetical here, Halley. (Laughs)

Franklin and Halley: (Laugh)

Denise: So you're the owner of a house or some sort of accommodation that you've put up on Airbnb or another such site.

Halley: Right.

Denise: And you have —

Halley: I mean, the correct analogy is that the person providing the service injures the person paying for the service. I'm saying, is anything that Airbnb has done in this area going to be helpful to or similar to what the cab companies might do? Are they all moving along in terms of liability issues? Because this whole sharing economy is beginning to get me a little nervous. (Laughs)

Denise: (Laughs)

Halley: I don't know how much I want to share anything with anybody; and what are the dangers?

Denise: You're more scared than shared, apparently.

Halley: It could be scary. (Laughs)

Denise: Yeah. Well, so in the one scenario where the owner's there — you're renting out a room in your house or part of your house —

Halley: Right.

Denise: — and you're the owner of the property, and you hurt your tenant —

Halley: Right.

Denise: — you're going to have personal liability for that under any circumstances.

Halley: Okay.

Denise: You're not at all shielded simply because the person has rented part of your premises from you; so you're personally on the hook. And an Uber driver would be personally on the hook for any sort of damage that they did to a passenger.

Halley: Okay.

Denise: But the question that comes up over and over again with the house-sharing scenario is, what sort of insurance do you have on your house? Is your home-owner's insurance going to automatically cover accidents that occur when you have guests in your house that you're renting to? Is it going to automatically cover any damage that they do? And I think the insurance companies are grappling with that. They want you to have renter's insurance when you have tenants.

Halley: Right.

Denise: And renter's insurance is more expensive than your ordinary home-owner's insurance.

Halley: Yeah, I know.

Denise: So I think that is all in the process of playing itself out claim by claim; and I'm sure that the claims officers are well aware of the fact that this is something that people do with their homes now. Franklin, anything to add to that?

Franklin: I mean, I just passed that Tennessee Bar, so this is giving me nightmarish flashbacks, too. (Laughs)

Denise and Halley: (Laugh)

Franklin: I mean, what type of classification an invitee or guest is that you have on your property law. (Laughs)

Denise and Halley: Right.

Franklin: So it's — I don't know. Yeah. I think the biggest thing it comes down to is the state law claims that this would come about on. Because I know, with Uber and Lyft, for instance, here in Nashville — which is obviously in Tennessee — I know Tennessee law basically classifies those as driver's for hire and not necessarily taxis. So under that classification, they have to have a permit and be working for a licensed company.

Halley: Oh.

Franklin: So in that case, I don't know if that would fall back to Lyft or Uber to become licensed within each state or jurisdiction they're operating or they have people operating for them. But I think one of the other things you have to consider — in addition to what you mentioned, Denise, the policy that you have on your home or renting out your apartment to somebody — is, you have to think about the state law wherever you're located or wherever you're operating your vehicle because that will definitely determine what type of classification you would fall under and what licenses or cab tokens you would have to have in that sense.

Halley: And what if the house were haunted?

Franklin: (Laughs)

Denise: (Evil laugh)

Halley: Exactly.

Denise: I'm sure that — yes.

Halley: Who you gonna call? (Laughs)

Denise: This is This Week in Law and not This Week in Insurance, but —

Halley: (Laughs) Okay. Sorry.

Denise: But I — you get into the fine print of your insurance policy, and I don't know if spectors are necessarily included.

Halley: Ah.

Denise: We had another terms of service story we could talk about before we move on to other things. This is one that is perpetually terrifying to me as a grandfathered-in unlimited data user on AT&T for both my phone and my iPad.

Halley: Ooooh.

Denise: And I've got to say, I don't know if it is just the update to the latest version of iOS or if I'm affirmatively getting throttled, but my iPad is useless these days. I mean, just — it's so laggy and draggy, and it certainly feels like I'm being throttled, or it feels like the operating system is just limping along because I have an iPad 2 and it can't handle the — it does not have the horsepower necessary to drive the new OS. (Laughs) But something is happening there. And the FTC is investigating AT&T. The FTC wants it to provide the unlimited data that it has promised to customers. It says, "The issue here is simple: unlimited means unlimited." This is from FTC chairwoman Edith Ramirez; and it does — I mean, we're not really addressing the speed issue. AT&T comes in and says, We're giving you unlimited data; it's just going to be so slow that you really can't reasonably use your device. The severe — let's see. We have the carrier — that's AT&T — throttling customers back beginning in 2011, in some cases after they used as little as 2 gigs of data in a billing period; and then the severe throttling program reduced data speeds down to 80 or 90 percent. FTC is now claiming that AT&T has throttled at least 3.5 million unique customers, a total of more than 25 million times. So kudos, FTC, you're among the good witches this Halloween. And I can say that it's not, so far, helping me with my iPad; but you keep going. It's a good thing that you're out there. Franklin, what are your thoughts on providing unlimited data pursuant to AT&T's terms?

Franklin: I guess if I put my corporate hat on from AT&T's perspective, it'd be interesting to see what they, in the original agreements, classified as unlimited data. Was that unlimited data at a particular speed or unlimited data where they could define it as certain levels of speed like they're doing here in this instance where, once you've used 2 gigs, you get lowered down to 3G speeds or something even worse than that? And so I definitely don't agree with the policy that AT&T has. If you have unlimited data that you're paying for each month, any data that you're using — I remember, I think it was two episodes ago, you talked about data. And so I'm trying to keep in mind that, when you refer to data, you use "are" instead of "is." (Laughs)

Halley: That's right. It's plural.

Denise: (Laughs) That's right.

Franklin: So I learned something a few episodes ago. But anyway. So the data that people are using is —

Denise: (Laughs)

Franklin: Or — no. ... are ... (Laughs) ... are — I think it just —

Denise: Yeah, just —

Franklin: — I think it should be treated equally.

Denise: I gave up, Franklin. It's too hard to remember. (Laughs)

Franklin: I know. It's too hard to try to figure that out. But anyway —

Halley: Hey, guys, it's Latin.

Franklin: Whatever data is going through the system, I think, should be used and treated equally. And I don't think that, just because you're using up more data than the person next to you, if you're on the unlimited plan, you should get the same speed throughout your entire service. You're paying the same amount.

Halley: [Unintelligible] (Laughs)

Denise: Well, I don't know if this has anything to do with the fact that AT&T is headquartered in Dallas; but the FTC sounds like the new sheriff in town on Twitter. They tweeted, "Lesson to mobile companies from FTC's first data throttling case: If you promise unlimited data, you are on the hook to deliver." So they do not intend to let this slide. I'm sorry, Halley, what were you going to say?

Halley: I just think, in terms of branding and how we all trust and feel great about AT&T, it's another low point for them. And between how people feel about dismantling cable and TV and telephone, it's like a pretty wild jungle out there right now. So I am concerned — actually, how did anybody find out? It would be the kind of thing — like you just said, you think, Oh, I've got this darn iPad; it's not so fast. I mean, who really — was someone really measuring? How was it revealed?

Denise: Yeah, people do measure, and that's the ticket. I mean, they're seeing exactly what sort of bandwidth they're getting, and I don't —

Halley: And it wasn't some —

Denise: It's not a secret.

Halley: Yeah.

Denise: AT&T is not making a secret of this policy.

Halley: Yeah.

Franklin: And what I think is really more confusing in this instance is, the report says that some customers were using less than 2 gigs. I know I've heard, like, in the past, it's kind of like, people just know if you — that 2 gigabyte threshold is kind of — once you go over that in your unlimited data plan, you get throttled. And so what's interesting here in this case — I think why, maybe, the FTC wanted to really get involved — is because there were instances where customers were using less than the 2 gigabytes of data, and they were still getting throttled.

Halley: Yeah.

Franklin: Which doesn't really make sense.

Halley: Right.

Franklin: At what point, at what threshold, is AT&T defining here? And I think somebody in the chatroom, IRC, pointed out that AT&T could easily be changing the agreement, the terms and conditions of the agreement without us even knowing, so ...

Denise: Yeah. Absolutely. And I'm going to try and investigate a little further as to what's going on with my iPad. My phone doesn't seem to be throttled, but I probably use a different amount of data there than I do on the iPad. because that's more of a media device for me. But good to see the FTC getting involved and sticking up for consumers here, so, like I said, among the good witches this Halloween.

What shall we move to next? We, of course, have a lot of privacy-oriented stories to get to; but before we do that — we were talking about people coming at you with hammers and various other kinds of crimes — Franklin, I think you pointed out to me what crime Americans are afraid of more than any other. So why don't you tell us what that is?

Franklin: Yeah. So hat-tip over to The Verge for their pretty interesting — it caught my attention — their story about how Americans are more afraid of being hacked than all other crimes including murder.

Halley: (Laughs) Oh, God.

Franklin: So interesting. (Laughs)

Denise: Right, and yeah, The Verge story on this is really good. It's following up on a Gallup poll; and their take is that Americans are afraid of this, and they should be. It's a problem. (Laughs) And they're more likely to be hacked than murdered, so it's good that there's a healthy fear of it. I don't — do you feel like being terrified of hacking does any good, Franklin? (Laughs)

Franklin: Well, I think maybe there's more money to be made in hacking than murder, so maybe that has something to do with it. (Laughs)

Denise: (Laughs)

Franklin: If you kill somebody, you get a one-time fee for killing them; but I guess if you hack them, you can get their information and extort them for however long you want to or just — I mean, I guess most hacking, like we saw with the whole celebrity photo leaks, is more just people trying to release photographs.

Halley: Right.

Franklin: I mean, there are some instances — and the photo celeb hacking is — there were instances where they were holding them for ransoms before they released the photos; so I guess there is money involved in that. And so — I mean, I think it's ridiculous. But yeah, it's definitely something that is going up in the media popularity front in terms of bringing it to the forefront of people's attention and making us more aware of — I mean, I just recently added two-step authentication on my Google account.

Halley: Yeah.

Franklin: Embarrassingly enough, I didn't have it for the longest time. But I added it, and so hopefully that will be an extra layer of protection with this. Scary.

Denise: (Laughs)

Halley: I have a quick question.

Denise: Yes?

Halley: I want now — I'd like to see the Pew Trust research on what people in America who are afraid of hacking — think what hacking means to those people. I think people have a lot of peculiar ideas that really run the range from maybe identity theft to — I don't know what. Snowden? I don't think — what do people mean when they say? hacking"? I'm not convinced they all mean the same thing.

Denise: Well, and it's evolved. I mean, we have other privacy-related stories to discuss today; but whenever you're talking about hacking, it's a privacy-related story today because — I mean, you guys immediately went to celebrity nude photos and financial information; and so it's not just the act of breaking in. It used to — I sort of think about the early days of computers and the Internet and how hacking then used to be — you would go in and mess about with people's stuff. (Laughs)

Halley: Right. Right.

Denise: And not necessarily make off with it or use it, sell it, etc. I guess, as Franklin was saying, things have — it's become a much more capitalistic-based pursuit. It's monetizing that data that is in people's computers and of course — again, this was going early on, too, is the turning someone's computer into a slave for your own nefarious and illegal purposes.

Halley: Right. What do you think — what movies and what media are people seeing that they're thinking about this, or is it actual — it's the news?

Denise: That's a good question. I think it's news.

Halley: Yeah.

Denise: I think — we had some news just this week that we could talk about, since we're talking about hacking and how terrifying it is for people and how that's justified. Oh, here, we have to introduce this with ...

(A scary intro plays.)

Halley: (Screams)

Denise: This is quite scary because the hacking is actually going on.

Halley: (Laughs)

Denise: The one place that you want to be secure from hackers the most, probably — aside from your own computers — is perhaps the government computers involved in national security, etc. But we had hackers this week who are thought to have been working for the Russian government that reached unclassified White House computer networks in recent weeks; so there's an ongoing investigation of this, but we do have confirmation of a breach of these White House computers. What else? There — let's see. We've got this Apple Pay competitor that was hacked, something called — let me pull it up — MCX. Hang on ... get past our little Forbes splash page. 

Franklin: I think [unintelligible] is the —

Denise: Yes, merchant customer exchange. Partnership between retailers, including Rite Aid, Sears, and WalMart that's building an Apple Pay competitor. And — let's see. They're beta testing their main product Current C, an app that will allow users to pay at physical retail stores with their phones. Unauthorized third parties have obtained the email addresses of some of the Current C pilot programs participants and individuals, individuals who had expressed an interest in the app. So again, they're going after the data that are in there; right Franklin?

Halley: (Laughs) Exactly.

Franklin: (Laughs) Exactly.

Denise: Yes.

Halley: It's Latin, you guys; it's just Latin. It won't hurt you. It doesn't bite. (Laughs) It's not scary.

Franklin and Denise: (Laugh)

Halley: It's — data is — the "a" is the plural ending; datum, "um," is the singular, one thing. It's easy.

Denise: That's right. And every time you use —

Halley: It's curricula, curriculum; right?

Denise: (Laughs) "Funiculi, funicula." Yes, absolutely.

Halley: Just think "curriculum" and curricula," and you've got it.

Denise: Got it. It's hard because we talk about data so much; and if we're going to call it Latin, then every time — the rule on TWIL is — our official drinking game: every time a Latin term is used on the show is cause to drink, especially on Halloween, so ... (Laughs) Get a start early on your evening. And then there was the Cheryl Atkinson event this week that the Washington Post calls — this wasn't this week; this has come out in her book Stonewalled: My Fight for Truth Against the Forces of Obstruction, Intimidation, and Harassment. And Cheryl Atkinson is a former CBS news correspondent, and she claims the government was getting into computers and argues that it's worse than anything Nixon ever did.

Halley: (Laughs)

Denise: So she's written this book that has the details. The book is now out; and so we're now learning just how bad it was, according to Ms. Atkinson. So definitely the hacking is happening; so I think this is one where we just have to spread fear, uncertainty, and doubt and endorse the fact that people are, rightly so, concerned about this issue. What do you think that means from a law and policy standpoint, Franklin? Do you think that the legislators in Washington and the various states are paying attention how terrified people are about this?

Halley: (Laughs)

Franklin: (Laughs) Yes, I definitely think — I didn't really read into this. This was brand new to me. Embarrassingly enough, I don't know how big a story this was; but I had not been aware of this. But I definitely think it's — as we were talking about — as it becomes more and more in the media and the press, it's going to bring about a call to action from legislators, so hopefully there will be some actions taken.

Halley: What you really don't want to do is get into a cab, get hammered in the head, murdered, and hacked.

Denise: That's right. They're just going to —

Halley: (Laughs) In fact, just getting hit in the head with a hammer's okay; but the hacking — uh-uh. No. No.

Denise: Absolutely. Well, now that Apple is locking down your phone by default, your hammer-wielding driver probably won't be able to find out too much, depending on what phone you are using.

All right. Let's — since we're already talking about privacy and the data that are in jeopardy ... (Laughs) ... when your devices are hacked, let's look at some other privacy stories.

(The intro plays.)

Denise: All right. Well, Facebook — not really known for its great privacy reputation. My sort of anecdotal feel about Facebook is that people — nobody looks at it as someone who is a real safeguard of their privacy. Instead, it's sort of a necessary evil, way to interact, market, communicate; but I think people either tacitly or explicitly know that their privacy is somewhat at counterodds with Facebook's goals. Franklin, tell us about its new  rooms app.

Franklin: I tried to use it, but I absolutely hated it for various reasons, one of which is, when you create an account, you have to join Rooms; and the rooms are basically like chat rooms, like the old — or like IRC, like old AOL Instant Messenger, which I grew up with — where you would join chat rooms that were based on topics of interest. And so Facebook developed kind of to bring about that old — they call it the old Internet nostalgia feel of chat rooms; but what's odd about Rooms is that when you create an account, you can't just go and find chat rooms, or the rooms — I call them chat rooms; I guess Facebook prefer they be called "rooms". So the rooms that you have to find you have to find a QR code; and then, when you find the QR code, you have to save it to your camera roll; and then, when you open up the app again, you can click on the plus sign and add your room. And you have to go to your camera roll and find that particular QR code that you downloaded and saved, and then you can get into the room. To me, it just seems overly complex and complicated using the QR code system; but I guess that's not the main point. That's just a brief overview of how to use the app. (Laughs)

Denise and Halley: (Laugh)

Franklin: But my issue with the app came with news organizations that I always follow — I noticed they were using the term "anonymous" and "anonymity" in associating yourself with this app because they tried to make it sound like, yes, it's a Facebook app, but it's outside of the Facebook network. Or I guess you have the core Facebook social platform, and this falls outside of that. But yeah, you can sign up with any email address you want; but there's so many other identifying aspects to your device that you're using, your location, all the above — more complex than I really have knowledge of. But I do know, after watching a recent documentary on Netflix, that all of this information can be combined and compiled and correlated and kind of build up an identifier of who you are; and it can be used across multiple platforms that you're using, and then you become this identified person based on your browsing history or, in this case, the rooms that you join. And Facebook says that — I guess the anonymous feature comes out of it in that you can change your name depending on whichever room you're in. So that's a brief overview of it. And I wrote a blog post where I looked in detail at the privacy conditions that you agree to when you create an account; and basically, it allows Rooms itself — the app, which is a — Facebook Creative Labs is who — is what it came out of. But they basically have the ability to share any information that they collect within this Rooms app. They can share it back to the main Facebook platform and then third parties from there.

Halley: Huh.

Denise: So on the one hand, their promising you anonymity; and on the other hand, they're saying, We're sharing back to our — even though this feels separate from Facebook, it is still part of our data set and we have the — we are reserving to ourselves the right to share that with third parties as well?

Franklin: I guess Facebook would prefer — or they market it as pseudonymity. I can't really say that word that well. (Laughs)

Halley: (Laughs)

Franklin: So basically, it's not anonymity. There are other news media outlets that are calling it anonymity, and you can go anonymous. And it's not really that; it's basically just changing your name, your pseudonym. And so in that sense, I agree that's what Facebook is doing here; but I don't think that it should be marketed or called by other news organizations as truly anonymous in that sense.

Denise: All right. Yeah, no; I don't think so, either. Do you think — now, Facebook frequently gets targeted by people who feel that they've been, as with the AT&T story we were talking about earlier, promised one thing and delivered something entirely different. Do you think that they're doing something here, Franklin, that could put them in those crosshairs again?

Franklin: Once again, I think it goes back to the fact that Facebook themselves are not necessarily calling this anonymous; they're more just saying, You can be — like, it's separate from Facebook, the main social platform that most people use. It's separate from that in that, unless you choose to post about it on your main Facebook profile page, then your Facebook friends won't know that you go to the Hello Kitty Room app and talk about your secret love of Hello Kitty there.

Denise: (Laughs)

Franklin: So unless you choose to share that publicly, it will only be shared within the — I guess the private Facebook network themselves for their informational use, for targeted advertising, etc. That's what the terms basically allow for. It won't be shared publicly, but it will be shared and still documented within this profile that Facebook is building of you within the company itself.

Denise: I recommended on the show — I think it was last week, maybe the week before — a book that I was then in the process of reading, have finished it now. It's called The Circle, really incredible book; and I'm still trying to decide how I feel about it overall. Once again, it is a great book to bring up on our terrifying tech show because it is meant to be a terrifying, cautionary tale.

Halley: It's really scary.

Denise: Yeah. Did you read it, Halley?

Halley: No, no; it sounds scary, and I can't wait to read it. And I have a spooky Facebook tale for you, too, today, if you're ready.

Denise: Okay. Let me get to that.

Halley: But tell me the author, and tell me about that book. It sounds awesome.

Denise: I will. Just one second; his name is escaping me, but I'm sure someone in chat is either going to shout it at me, or I'm going to look it up here real quick, assuming I'm not getting throttled.

Halley: Okay. (Laughs)

Denise: One second ...

Halley: My noisy clock is ringing.

Denise: Dave Eggers. Dave Eggers is the author.

Halley: Oh, okay.

Denise: Interesting fellow in his — interest body of work that he has. And the book The Circle is really playing right into what we're talking about here: the profile that is created about you and the — it's really — I mean, I think at bottom — I don't mean to turn this into Book Club here, but ... (Laughs)

Halley: (Laughs)

Denise: At bottom, the story is really an indictment, I think, of allowing the capitalist systems to run wild, allowing everything to become monetizable.

Halley: Yes.

Denise: And allowing companies just to run wild with that.

Halley: Yeah.

Denise: And so every little detail in the book builds this chilling story of how every aspect of your life — at first, it seems like a good idea, like tracking children to make sure that they don't get lost and are safe, and how there's sort of [unintelligible] creep in all of these endeavors.

Halley: Yeah.

Denise: And how something that sounds great at first blush winds up being really, really scary out it plays out over time. And I think it's a great book to read and great topics to think about; I don't think the situation is necessarily as dire as this dystopian world that is created in the book, that we're necessarily staring down the barrel of that gun. But it sure would be great to have lawmakers be aware of the possibilities that are raised in the book. I wouldn't want them — I'd hate to have somebody read this book or take on this dystopian view of the future and decide, okay. We have to stop this now; we have to nip it in the bud, and so we're putting a stop to everything innovative and helpful and — of course, I don't think there's any chance that our capitalist society is going anywhere soon. (Laughs)

Halley: That's for sure.

Denise: Yeah. So I think it's great that people are thinking about these issues that sort of — it's like a 1984 kind of story for modern day to make people sit and give some consideration to things that might happen; but I don't necessarily think that the fear spread in this book is what we all have to look forward to. It is funny to read about the people in the book who have decided to go totally transparent with their lives, where there are no secrets in their lives, and the fact that you can look around you, perhaps, and know some people like that and think about the choices they're making and what it might mean down the road. So what is your terrifying Facebook story, Halley?

Halley: Not totally terrifying, but a little scary. And when you say there are people who are totally transparent, I'll let you know my husband is a person who's quite the opposite, does not like social media, does not use Facebook and had worked — he's a programmer. He's an iOS and Android programmer, worked in security for many years at RSA, if you've heard of them.

Denise: Mm-hmm.

Halley: And so he knows from why he's very careful with this stuff, so he's never on. And I recently posted a picture which I hadn't posted at all you years. It was our anniversary, a picture with him and me and other family members in the family in this photograph. And of course, really quickly, Facebook gave every tag to everyone, right? And he's never online, so they gave a tag to him, and they're like, Is this so-and-so? (Laughs) And it's not him; it's somebody else's husband who looks rather like my husband.

Denise: (Laughs)

Halley: And I'm like, Whoa! This is interesting. So now I'm married to him? Like, thanks, Facebook. When was that event? I missed that wedding. And so it was just creepy. It's like, Okay. You looked at that and figured, this is this guy. It just totally freaked me out, together with a barrage lately of every time I shop — I know it's supposed to work this way — and by the way, that picture? I only — I did not share public. I shared it only with friends and family. So it seemed to me that it had some level of privacy. But you know what? I think privacy and Facebook — and they say don't worry; it's safe. It's like saying, "Don't worry; you're only a little bit pregnant." You know, I think it's — if you think they're going to let you be private and things are private on Facebook, you're truly naive. And that's why my husband's not on it, anyway, or that other husband. But —

Denise: Well, then —

Halley: Go ahead. What?

Denise: So that was my question. How did he get tagged if he's not on it?

Halley: He got tagged with another guy's name that looks like him.

Denise: Ooooooh. I see.

Halley: And they're, like, sort of offering this to me, like, This is your husband here, right?

Denise: Ahh.

Halley: I'm like, Uh, no, that happens to be somebody else's husband.

Denise: Right.

Halley: And it's weird. It was just weird. It's like, eek! But what I was going to say, too, about the recent shopping thing — there's so many ads with all the things that I'm looking at on other sites, and they're right there; and I'm like, half the time, if I looked at it and didn't buy it, guess what? I don't want to look at it again. But beyond that, it's like — it really does feel like, who's watching? And everybody's watching. And it's so easy now for them to watch — they've got to put everything else I did that day up in front of me on Facebook? It's creepy. I really find it creepy.

Denise: Yeah. It's probably even more creepy if they don't put it in front of you, just log it and sell it. (Laughs)

Halley: Exactly.

Denise: Which is something that television executives have been coming under fire and lawsuit for. Franklin, the — Video Privacy Act? I'm not getting that right; it has a different acronym.

Franklin: The VPPA, yeah.

Denise: The VPPA. Video Privacy Protection Act.

Franklin: There you go.

Denise: Has been at the core of some lawsuits lately and is at the fore right now and written up by a friend of the show, Eriq Gardner over at the Hollywood Reporter, Esquire, as HBO, CBS, and ESPN are launching their online subscription services. So talk to us about — we're talking about how you can be tracked on social media. People specifically are protected under this 1988 law from having personally identifiable information about their video viewing habits sold to third parties. Where do things stand with that right now?

Franklin: (Laughs) I hate to say this, but this law came out in 1988, and that was the year that I was born. (Laughs)

Halley: (Laughs)

Denise: Just rub it in, Franklin. That's good, that's good.

Franklin: I debated whether or not I was going to say that, but I decided to go ahead and just put it out there.

Denise: Yeah, that's good.

Halley: Hey, you're in good company. You're with Taylor Swift's new album, 1989, when she was born. So it's all good.

Franklin: Which I purchased as well, so there we go. (Laughs) So yeah.

Denise: (Laughs) Just don't —

Franklin: So anyway, the — go ahead.

Denise: Just don't tick her off, or she'll write a song about you on her next one. Go for it.

Halley: Exactly. (Laughs)

Denise: Yes.

Franklin: For sure. (Laughs) But okay. So the VPPA did come around in 1988; and so that's kind of where this whole Internet aspect plays into it. And I actually learned about it in law school through entertainment law class; but the law that — the whole reason it was even brought about was that Supreme Court Justice nominee Robert Borg, his rental history — I think it was at Blockbuster if I'm not mistaken, or maybe a local video store.

Halley: Must be.

Franklin: But somewhere — was leaked to a newspaper; and so from that is where we got kind of the lawmakers — as we were talking about before, with privacy and hacking is, lawmakers kind of react to what becomes big in the news. And so this was a really big issue in the news, and so the result of that is the Video Protection Privacy — Video Privacy Protection Act of 1988. And it's kind of interesting how that plays out with the Internet these days, who Hulu and Netflix, who allow you to sign in via your Facebook app, or they connect the Facebook app. And so from that, you can opt in — at this point, the law stands today — whereas you can choose to share your video viewing history through social platforms. So that is kind of a little workaround that was developed for this 1988 law and today's society, an age of watching everything online and wanting to share it. But I guess the biggest issue was, back when — I don't remember what it was called, but Facebook had this new thing where they were trying to basically gather as much information from you as possible from other platforms. And there are lawsuits that came about from that; and so currently, you can choose to share it via social networks and you're fine; and companies like Netflix and Hulu won't get in trouble as long as you opt in to sharing that information. But one of the points this article touches on is, okay. You can share your information, your viewing history, through social networks, but what about a company such as Hulu? What if they want to share your viewing history with the big data companies that we — companies like Hulu or Facebook might connect to or credit card companies might connect to in order to gather more information? And I hate to take away the thunder, but I know this is one of the resources of the week. (Laughs)

Denise: That's okay.

Franklin: But I was trying to — I had mentioned it earlier — the Terms and Conditions May Apply movie, that's kind of where I'm basing my information off of. This image you see on the screen here shows a huge — this is from 2012, so I'm not sure how much up-to-date it is; but it's from a Forbes article; and it shows these companies that specialize in the trafficking of our personal data.

Halley: Right.

Franklin: And the Terms and Conditions May Apply movie — really, it's a documentary — it really opened my eyes to — yeah, I think I'm just sharing this with Hulu, but who is Hulu or Netflix or Facebook sharing this information with?

Halley: Right.

Franklin: And it's very interesting in that sense.

Denise: So where do things stand right now as far as — let's talk about the subscription services. There seems to be a difference between whether you're simply visiting the website or whether you're actually a subscriber to one of these online shows. Do you have any more privacy in either circumstance?

Franklin: Well, I know that one of the — Judge Beeler dismissed one of the VPPA claims against Hulu for sharing metrics with — I think the company — let me look here. Comscore was the name of the company. They shared a watch page URL web address that contained a video name and a Hulu user's unique 7-digit ID. So outside of whether or not you're a registered user, I'm not sure what would happen because, I guess, just by clicking "Play," you're agreeing to whatever conditions are on that website, theoretically. There's an argument there otherwise, but ... so that kind of jumps forward to District Judge Thomas Thrasher who — this is what the article in the Hollywood Reporter, Eriq Gardner's talking about — where there are all these news apps coming out from HBO and other networks where they're launching their own services away from your cable provider and away from the Hulu and Netflix, where they are collecting your information of what you're watching within that app. And one of those little user IDs that's brought up is the Android ID; and that is actually shared or sold — I'm not really sure which one — but it's probably sold from Time Warner. They're actually transmitting it to the company called Bango, and it's all randomized, generated number based on your Android ID. But one of the reasons why this is on my mind lately is, going back to that documentary, what happens when your profile is being built on all these different platforms, and then these companies start to talk together.

Halley: Right. Merge.

Franklin: That's where it becomes an issue in my mind, is they can build this profile of you based on these different websites or services that you're using to get a better picture of you as a whole. And then that could, theoretically, tie you to the identity of a specific person.

Denise: Right. And the irony of all this is that early last year, Congress amended the Video Privacy Protection Act to permit those kinds of disclosures, only with the consumer's informed consent. So, in theory, everyone since January 2013 who has subscribed to one of these services and bought into having their information shared did so under this new informed consent law. And I'm guessing that if you stopped anyone on the street and said, Hey, are you a subscriber to Hulu or whatever? Let's talk about the informed consent that you gave when you signed up in May of last year, they would just look at you as though you were from the planet that Halley's blue hair comes from.

Halley: (Laughs) Yeah.

Franklin: (Laughs) And since it's Halloween, we can get even scarier.

Denise: Yeah.

Franklin: The fact that children — this is not just HBO apps or ESPN apps, but it's also — Cartoon Network and Disney have their own apps.

Halley: Ooooh.

Franklin: And so from a level of children's entertainment, the target ages on those are eight years old or anywhere around there.

Halley: Right.

Franklin: And so from that young age, these companies are able to start building these profiles on children, and that will be with them — who knows how long.

Denise: All right. Well, I think, since we're looking at — I'm sorry. Before I go ahead and do this, I'm going to take a break and thank our sponsor, Halley, but it sounded like you had something to add?

Halley: Yeah. Franklin — he should move his screen down a little bit. We can see his Superman logo better then. (Laughs)

Denise: (Laughs)

Halley: That's key.

Denise: We don't want —

Halley: That sounds like an awesome —

Denise: I don't think there's any danger that we'll lose sight of how super Franklin is, but I do appreciate that Halley's giving you some good advice there, Franklin.

Halley and Franklin: (Laugh)

Denise: You know what I have sitting in bowls downstairs to accommodate the people who are stopping by our house tonight in the throngs, throes, of trick-or-treaters?

Halley: (laughs)

Denise: Of course we have bowls and bowls of candy, but we also have bowls of NatureBox snacks.

Halley: Yay!

Denise: Because — yay! I don't know what you guys get, but I get a little sick after about my fourth Reese's.

Franklin: (Laughs)

Denise: So we need something else on hand to eat. For this episode, our terrifying tech Halloween episode of This Week in Law, is brought to you by NatureBox. Right now, NatureBox is giving you a chance to get a complimentary trial box of their most popular snacks and pay just $2 for shipping. There's nothing at all scary about that.

Halley: (Laughs)

Denise: So drop the candy bar; drop the potato chips. They're not good for you, especially tonight. I mean, my God, you're going to be inundated; so it's a good thing to make sure that you have healthy snacks on hand. I have these delicious wholesome snacks from NatureBox that we can grab for as opposed to going into the candy bucket. And I have to be careful to do that, too, because we get a lot of trick-or-treaters, and I've run out before; so I need to make sure I'm eating the healthy stuff and not the terrible stuff. (Laughs)

Halley: (Laughs)

Denise: Let's just give the terrible stuff to the kids. You know, if you were really, really a conscientious trick-or-treat host, you might give out bags of NatureBox snacks yourself. They have hundreds of delicious snacks, and kids actually love them. You don't feel guilty about eating them because they're better for you. They've got zero artificial flavors, colors, or sweeteners; zero grams of trans fats; and no high fructose corn syrup. That's a great thing to keep in mind when you're talking about kids. And they also have snacks with no added sugar and without gluten. Tons and tons of kids I know are on gluten-free diets these days, so another thing to bear in mind for your family. And they've got so many flavors that you're going to find something that even the most discriminating trick-or-treater would not kick to the curb.

Halley: (Laughs)

Denise: They've got apple cinnamon crave; Sriracha roasted cashews; cranberry macaroon granola; and tons and tons more. You have to go to the website. If you're watching the video, you're seeing how many examples of stuff they have. They're so, so good, and they're so much better for you than other snack options out there. So why not just start your trial today? You're going to get a complimentary sampler box when you go to Stay full, stay strong, start snacking smarter. Go to Thank you so much, NatureBox, for your support of This Week in Law and a healthy Halloween in general.

All right. So now that we've gotten our snacking out of the way, we haven't talked about cleavage yet on the show, Halley; I think we're definitely due.

Halley: Cleavage?

Denise: Especially when we can have a tech, law, and privacy tie-in to a cleavage-related story. Google, when it has to pay $2,250, that's not a big verdict; but this kind of thing could be a real issue for Google if you multiply this out in big numbers. This was a lawsuit in Canada where Google was sued by a woman who was sitting outside her house — it looks like she's looking at her phone and kind of leaning over. She's sitting on her front step, and you're seeing some cleavage there. They're saying it's "part of her breast." Of course, I would — of course, cleavage is, I suppose, part of a breast. She apparently, according to a court, suffered — because this showed up on Streetview — suffered shock and embarrassment. She looked up her house — and this was back in 2009 — and she saw herself leaning forward, looks like, looking at something in her hand. And there she is. Now, this seems to me — I don't know if Canadian privacy laws are different from U.S. laws, but this seems to me like kind of an outrageous thing to have happen. She did demand $45,000 and wound up getting $2,250; so it's not a huge verdict, but she tried to raise — or I'm sorry. Google tried to raise the defense that she was out in a public place, and therefore anybody could have taken this picture of her. It would not have — just happened to be Google; and there's no reason to put Google on the hook simply because they're out there taking pictures as well. The judge didn't go for that and said that people don't forfeit their privacy in Canada, apparently, simply by being in a location where others can see them. So she got a verdict here.  How do you feel about this, Franklin?  Do you feel like this is an anomaly and there aren’t going to be a flood of these kinds of cases against Google?  My feeling is that here in the U.S. she would not have fared so well.

Franklin:  I definitely agree. I think that this is more of an anomaly.  It’s not going to be repeated.  Like you said, if this had been on a U.S. street and filed in a U.S. court, it definitely would not have ended the same way.  I think that’s kind of what the article gets out at the very last paragraph.  I couldn’t read the actual, the judge’s opinion, because it was in French (laughing) but there is an English version.  The article mentions, the judge chose to stick with Canadian and Quebec law and adopt what they call the European approach to deciding this case, and so I think it definitely would have been a completely different outcome in the US based on our privacy laws.  It’s very well-known that a public place, if you are out on your front porch, on your lawn, you’re visible to the public.  It’s just as simple as that. 

Halley:  So wait.  They have French law in Quebec, we do have French law in one place in this country.  You know where that is, right?

Denise:  No.

Franklin:  No.

Halley:  No?  It’s New Orleans. 

Franklin:  (laughs).

Halley:  It’s true! 

Denise:  Well, I wouldn’t have guessed that but no, they really, tell us what you mean.  I mean, it’s obviously a US city.

Halley:  I thought New Orleans has the Napoleonic code at the base of their law.  Isn’t there, maybe I’m wrong, but I thought that that was….

Denise:  Maybe the chat room will iron this out.  We often have Jonathan Bailey on our show on or around Halloween because he does a huge haunted house at his, I don’t know if it’s at his home or elsewhere, so he has been a frequent Halloween guest before.  He lives in New Orleans and I’m sure he could tell us, but he’s not with us today, Halley, so I’m just not sure. 

Halley:  Okay, we’ll have to ask them to come up with something.

Denise:  Code Napoleonic. 

Halley:  I think it is.  And what I found so interesting about what you just said, is you think French law, they would be a lot more la de da about a woman’s breast hanging out, but apparently not.  (laughing).  Apparently not.  It seemed kind of, whatever.  I think there could be a lot of women sitting on their porches.  This could have an upside, having their breasts hang out, waiting for the Google truck to go by.  This could be a whole new business.  This could….whatever.

Franklin:  It might be the Kate Middleton story.  Do you remember, I think it was two years ago, maybe, the Kate Middleton story where her, it’s not Middleton anymore.  I apologize to any British viewers.  When they were out, her and Prince Harry or William.  Anyway, I’m embarrassing myself of my knowledge of the British culture.

Halley:  Your lack of knowledge.

Franklin:  Anyway, they were out on the boat and she was topless, and there was a newspaper paparazzi photograph released from that.  That kind of reminded me of that situation, and I think because of the subject of this photograph, was kind of gated more power to not release those photographs any more, and to have damages.  This is definitely a little bit different than that.

Denise:  A little.

Franklin:  But along the same lines.   (laughs)

Denise:  Right, and we’ve got at least two, three actually, professional opportunities arising out of this decision, I think.  Number one, as Halley says, you could sit on your porch and try and cash in from Google by being scantily clad in public.  Number two, you could be a law student who decided you were going to bring class actions against Google for the images that it captures of scantily clad people.  Finally, you’ve got to imagine at least in part if Google has to blur out images of parts of women’s breasts or other private parts of people’s anatomy, that there would be a whole new side boob division at Google. 

Halley:  (laughs)  Side boob.

Denies:  Dedicated to finding these photos in street view and blurring them out, which is what they had to do with this woman’s in Canada. Everything is an opportunity.

Halley:  I added a link to the IRC that’s an article from Slate that talks about Napoleonic law, the legal system in Louisiana, “unlike any other state”, and derives from the civil code established from the French Emperor in 1804.  You knew what the dresses they wore looked like, right?  That was like the all pure waist thing.  It’s talking about attorneys having to deal with Louisiana law in terms of Hurricane Katrina, so it’s in the IRC.

Denise:  Interesting.

Halley:  It’s an interesting link.

Denise:  Yeah.  Alright, so yeah, I’m going to have to ask my New  Orleans lawyers friends how they have to deal with Napoleonic law in their jurisdiction.  We’ve got one more privacy story before we move on to some other things.  Actually, did I decide this was a privacy story?  It’s not really a privacy story.  It just has to do with, we’ve been talking about veracious social media and veracious television executives.  It sort of fit with that because Twitter has decided that Twitpic pictures are going to stick around, so if you were terrified that everything you had put on Twitpic was going to go bye bye because Twitter was going to shut down the site, that’s not happening.  Franklin, can you fill in the details for us? 

Franklin:  Yeah, this is definitely really, really scary because you have a company exercising their intellectual property rights and trademark to basically force Twitpic to shut down.  I think the jist of the story is Twitter told Twitpic that they were violating their trademark rights to, I don’t know if it was the logo or the same, but anyways, it was some type of trademark claim they had against Twitpic, and they were threatening, Twitter was threatening to take away the API access to Twitter from Twitpic unless they changed their name or did something else with their service. Twitpic fought it, or tried to fight it, and it got a little bit of publicity.  I thought it was interesting that here’s Twitter with a company that had been around since the beginning.  I had used Twitpic back in the day as well.  They were kind of playing bully in that Twitter was saying, look you have to have our API access to be able to survive so we are going to hold that over your head unless you change your name or stop using or trademark so something similar to it.  It was interesting to me that that kind of is the approach that Twitter took in this case, and it’s not really a case I guess.  It was interesting to me that Twitpic had to get to the point where they were going to close down rather than change their name because they didn’t want to change their name, and they wanted to still have some sort of association with the Twitter service.  Here in the last, as it says the 11th hour reprieve, is that Twitter snatches up Twitpic.  They reached a deal where Twitter is going to basically by Twitpic and keep the photos alive.  I thought it was very interesting how it all played out and how Twitter used trademark law to essentially shut down a service that was going against their own new service.  I know they recently added the ability to add multiple photographs to a single tweet, and also tag other Twitter users in that photograph, or the multiple photographs that you upload.  It was kind of interesting and very scary what Twitter was able to do to another company that kind of survived off of having an association or access to their client and the API.

Denise:  Right.  Twitter doesn’t need to wear a sword with its Halloween costume.  It’s got a trademark.  It can brandish.

Halley:  I have a question.  Do you think that was their strategy?   Maybe that was their business strategy from the beginning. 

Denise:  You mean Twitpics business strategy?

Halley:  It seems like it’s bullying.  Either side; was one holding out for the other to buy them?  What’s going on there?  It’s kind of strange. 

Franklin:  I do agree that it is very strange.  I think it’s also, obviously I don’t know any of the insider details to how or why everything went down, but from the outside looking in it just appear Twitter, what started as just the 120 characters.  You would put a link to Twitpic where you could upload your image.  You would just include a link in your tweet and that would get your picture associated with your tweet.  Years later, here we have Twitter actually building in the ability to add pictures to your tweet and associate those with the actual tweet itself and you don’t have to leave the platform.

Denise: Which probably doesn’t seem like a very new development to you on Twitter, Franklin, but to me it feels like they just added that.  Halley and I remember using Text America, right Halley?

Halley:  Don’t even go there.

Denise: This was probably before you were born, Franklin.  (laughs)

Franklin:  Before Prodigy? (laughs)

Denise:  There was Prodigy and then there was Text America. 

Halley: Yeah, I remember at a conference, someone getting up and saying, believe it or not, this was like in the 90’s, within maybe 10 to 20 years they will actually be having more data pass along the telephone lines than voice, and everybody went “Aaaahhhh”.  And it happened way faster than that guy had predicted, believe me.  And nobody even knew what that meant.  They were like, how could you do that on your phone?

Denise:  Alright.  So we’ve had our first official death for the show.  Our IP Twitpic but at least the photos are living on.  Let’s move on.  This was pretty scary, Halley, this was something that you linked to, that t’s up some other discussion we can have to close out the show.  This was some sexy swag that was given out.  Reporters get stuff from tech companies, lots of people do, to just bring attention to them and get their name out there.  This one was written up at SFGate by Kristen Brown who received from a company, now we have to be sure we know who foisted this on her.  Halley, do you remember?  I’m pulling up the article.  It was a basket of some rather suggestive items.

Halley:  Right, and that’s a vibrator and some other sexual items.  But, in fact, that wasn’t the product of the company.  This was supposedly, this is a network where you can share fun experiences, is that right?  Essentially, and these were supposed to be sort of clues to think of the fun experiences she could share with a vibrator and these other sexual devices they sent her.  This was their, now don’t you want to write about us?  I don’t think that was her reaction.

Denise:  No, no.  I’m still looking in the article for the name of the company.  She might of intentionally left it out so as not to give them what they wanted, which was publicity for sharing vibrators with her.  We’ll go ahead and leave them out with that theory in mind, even if she does mention who they were.  Her point was just that we talk about it on the show from time to time, the sort of skewed attitudes of gender and lack of diversity in the technology industry in general.  And the various barriers that people face and the things that people come up against, and getting a basket full of KY Jelly and a vibrator is, as she puts it in a heading in her article, “an unusual choice.”  And one that you might think you’re in 2014 might not happen, but it did.  Halley, do you remember if, I know she pushed back on the people who gave her this swag basket, and said, is this because I’m a woman?  What was the response?  Do you remember?

Halley:  I remember the response being kind of surprising which was, oh, it’s not about that.  We would send that to anybody.  It was very naïve and it seemed like, really?  Even if you did send it to anybody, if you send it to a woman reporter, you don’t think she would have an issue with it?  I don’t if their back peddling was legit or whatever, but it was kind of odd.

Denise:  Yeah. Now we’ve covered some terrifying treats, although I’m sure there are people that would classify these as treats, but bad context.  Franklin, any thoughts?

Franklin:  I think it’s like what you said.  It’s the way that society is very biased and uneven in that aspect.  I actually just posted on the rundown a link to a Buzz Feed article my wife showed me recently for Halloween.  Basically, they had men try on ladies Halloween costumes.  I recently was Halloween very well, and it’s just very eye opening to see the difference in what is marketed towards women as to what is considered acceptable for a Halloween outfit, as opposed to as a male.  I have on underneath here I have the muscles for Superman, so it’s kind of like I’m supposed to be extremely muscular and a woman is supposed to be very short skirt, scantily clad.  It’s very interesting; I love the contrast this Buzz Feed article and this video they have on You Tube is men trying on these scantily clad Halloween outfits that are made for women, and it is just absolutely hysterical.  I definitely recommend taking a look at that.  It is kind of a good starting point to the discussion and kind of getting people to be more aware of the discrepancies in society. 

Denise: Alright, so moving from that to something that is the flip side, perhaps, or maybe it’s not.  Let’s see if we can figure out how we feel about it.  Halley, you also raised the news that has come out just this week I think that both Apple and Facebook are going to be offering as an employee benefit and to tee this up, I’ll mention that I watched @midnight I love Chris Hardwick’s @midnight show.  Although I can’t stay up every night to watch it, I do DVR it and watch it when I can.  They are doing Halloween episodes this week as well.  In response to come up with a bad Halloween prank, one of the guest comedians said egging with Jennifer Anisten’s frozen eggs.

Halley:  Oh, my God!  Jesus!

Denise:  We’re about to talk about a different kind of egging on Halloween and that is because Apple and Facebook have both announced that they are going to offer as an employee benefit the option for women who are interested as part of their health care plan, and again this sounds like it could be a page right out of the Circle, which has amazing healthcare that sort of velvet handcuffs its employees.  They are going to offer the ability for female employees to freeze their eggs.  This has garnered a lot of attention and criticism and thought.  I’ll preface this by saying that the medical society, community, only classified the process of freezing eggs for possible later fertilization and use as non-experimental in 2012.  So it’s only two years out of being declared; previously it was a completely experimental kind of technology.  It was developed primarily for people who were undergoing cancer treatment, breast cancer treatment and it was going to destroy their later fertility down the road.  Young women who wanted to preserve both their lives and their ability to have children later.  They developed, okay so we can try freezing your eggs.  But what people might not know, and I haven’t seen in a lot of coverage about this, is that the chances of actually having a successful pregnancy from a frozen egg, even if you take them from a very young and healthy person, there is still only about 12 percent from what I have read.  Twelve percent is better than zero percent.

Halley:  Right.

Denise:  I think what people are deciding in looking at this offer by these tech companies is, okay, so you are convincing women that they should just work right through their child bearing years and then worry about kids later.  You are making it easy for them to do that.  Halley, what’s your take?

Halley:  Yeah, it kind of freaked me out.  I’m a mom; I’m a lucky mom who got pregnant easily when I wanted to get pregnant.  I waited a while to have a baby, just my decision.  So, the questions I sent you; I’m going to quickly read some from the email I sent you before this show.  I said, okay, so with egg freezing, what happens if in certain weird, scary, unforeseen circumstances like say that company, Facebook or whomever, offers this benefit and then they also decide to offer to help tell you when it would be convenient for them, the company, for you to have a baby and take maternity leave.  Are they going to schedule everybody?  It’s creepy to me.  And then how about, say the company that keeps these eggs goes bankrupt or another company merges and sells your eggs to someone.  What then?  I know some of these may be very unlikely.  So you get ran over by a bus; does your family have a fight with your widow?  Now the husband you left behind’s family about who gets the eggs?  Whose eggs are these?  Say you file for divorce from someone who really he wanted to have kids but you didn’t.  Are they going to fight?  Does that guy want your eggs?  Who owns them?  Is he going to use them with a surrogate?  The medical facility is in some hurricane path and your eggs are ruined and are you going to sue?  What happens?  It started to get me completely, aaahhhh.  Very crazy!  So….

Franklin:  (laughs)

Denise:  Right.  And just a clarification, someone in IRC is saying it’s probably unfair to call it completely experimental prior to 2012.  Absolutely.  Just one of the pieces that I was reading said that the medical community classified it as an experimental procedure instead of a mainstream procedure before then.  Certainly people were doing it before then.  I think the point was when they did make the switch to tell people that this is still something that should be done with a lot of education and is not a routine kind of procedure that doctors recommend.  Maybe that is shifting.  Maybe that is become more routine.  Certainly if it becomes part of a healthcare plan, that’s a big step towards routinizing it because it’s very, very expensive to go through this kind of process on your own.  You’re going to think hard about doing it if you’re not insured for it.  So to get into some of your questions, Halley, of course the reproductive, ethical and legal community has been graffeling with similar kinds of issues about fertilized embryos for a long time.  I think that the issues are similar, but lesser when you are talking about an egg.  Cases about frozen eggs, I’m not a specialist in this area.  I don’t know, I’d be stunned if there was a whole lot of law that deals with this yet, so  I think a lot of your questions are open issues.  Let’s go to the husband one.  I think that one could be pretty easily dispatched, but maybe not.  You get into a court room and start making arguments based on these kinds of difficult issues that you might see something go the other way.  Since none of the husband’s DNA is actually involved and there is no actual fertilized embryo, I think you’re in a different boat.  If you do have a property interest in your eggs, it would probably pass the same way that anything else that you owned would in the event of your death.  I don’t think that there would be custody battles that you sometimes see with fertilized embryos.  Also, the facility maintaining the eggs; at least they would not be facing a potential wrongful death suit if they had some sort of negligent maintenance issue, and the eggs were lost.  I think it’s not life, it’s just a potential life, and in that situation it’s easier to make those kinds of distinctions than if you are dealing with the fertilized embryo issue.  I do think it’s really fascinating to think about whether this is a good response to the gender issues in the tech realm, since we were talking about that a moment ago, and tech reporters getting inappropriate baskets, that kind of thing.  Do you feel like having this option is respectful and welcome, Halley?  You said you think it’s creepy.

Halley:  The thing is, I spoke to a lot of other women that are in that kind of 20 to 30 years old range, and they are really very happy to hear this is going to be an option.  That’s good, but (laughs) I still feel like it’s another level of privacy.  Is there nothing more private than when you decide to have children, and if you decide to have children and all that?  It feels very, I understand Facebook and the companies that were saying they are going to cover it, that was from their point of view of giving very full coverage.  It was nothing but altruistic I assume, but I feel like….

Denise:  Another of your questions had to do with are they going to be able to dictate then, this would be a good time.  We know you banked some eggs; go use them.  I think that any company who tried to do that would find themselves in a world of legal hurt, don’t you Franklin?  Did we lose Franklin when we started talking about eggs?  (laughing)

Franklin:  I have some air conditioning that is making some noise, so sorry about that.  I’m sorry, I really didn’t hear your question.

Denise:  Getting back to Halley’s question on whether having offered this benefit there would be some sort of later quid pro quo when a company could come in and then try to dictate terms of when you could attempt to conceive and take maternity leave and all that stuff.  I think any company who tried to do that would find themselves immediately on the wrong end of all kinds of legal action, don’t you?

Franklin:  Absolutely.  One of my questions though is whether or not; yes this is a benefit that is being offered and covered by the company under the policy, but my question would be whether or not the company is actually informed of individual policy members or holders that opt in to actually taking advantage of that.  Obviously, they might see it when they pay their portion of however that works, I honestly don’t know.  So there could be some potential point in which the company could have access to that information, but I would hope that it is set up as it’s automatically on every plan and included in what’s already being paid for rather than having a meeting where if you work in a company you have meetings with HR where they bring in the company reps that explain benefits and talk to you about adding on certain things.  I hope that it wouldn’t be in that sort of scenario but rather the personal, private set up that has been discussed.  But I would also like to add that this is probably joked with a lot about how much people don’t read policies or terms and conditions.  This would be probably one of the most important times in your life to read what you’re actually signing here because some of those questions are likely to be answered in the actual agreement itself.  So if the storage facility for the eggs is actually blown away by a hurricane, that would probably be covered under a force majeure clause or whatever, where acts of God or nature won’t actually, they can’t be held liable for that.  As long as they take necessary precautions, I would imagine there would be some language to that effect in the agreement itself.  I think this is definitely one of those times where whoever is paying for these policies and actually going through with the freezing process, it’s so vital to read who actually owns the egg, those property is that once it’s been removed and once it’s in storage.  I would imagine that it’s not the property of the company that’s storing it or has removed it.  That kind of situation.  I would hope that’s not the case, but you’ve got to read the policy and that should hopefully answer the majority of these spooky, scary questions surrounding this. 

Halley:  Yep.

Denise:  The other thing I haven’t seen answered in the articles I’ve read on this is whether it’s a benefit that would also apply to employee’s spouses coverage on company plan.

Halley:  Right, that’s a big deal.

Denise:  Yeah.  Or really any family member covered on the family plan.  That is a big question and it’s a huge expense as we were discussing, to go through this process.  I could certainly see a company saying, no this is just a benefit available to employees, but I actually don’t know the answer to that question.  Something to look up after the show. 

Halley:  And you know you did use Latin and you know you did say quid pro quo.

Denise:  Mmmm, hmmm.

Halley:  I just wanted to mention.

Denise:  Yes, I did, I did indeed.

Halley:  Latin, more Latin.

Denise:  Here’s another funny hypothetical from IRC.  Company pays for eggs freezing, and this kind of fertility story happens all the time.  People go through all the fertility, spend tons of money on fertility oriented treatments and then get pregnant on their own.  The question is, do you have to refund the money?  That’s tongue in cheek question I’m sure because that’s not how health insurance works.  Once you’ve had a procedure, even if it would up you didn’t need it, you don’t have to pay them back.

Halley:  Actually, I think you hit the most important thing for me as my experience in the work place is signaling the fact that you are going to go and have a child is often for a lot of women the end of their career at a company.  It’s still a big issue, because there is a sense of oh, she’s not going to be available.  She’ll quit after she has the baby.  So much crap comes along with letting people know that you may do that.

Denise:  Right, and this particular move, a lot of people are indicting these companies saying, so you just didn’t assume you’re employees they are so gang busters to get ahead and stay on the job, and you’re giving them that ability.  But, as you point out, Halley, if you’re really going to be a hard driver in any industry and you’re a woman, you don’t want to signal that you’re interested in having children at any time.

Halley:  Right, right, right. 

Denise:  The privacy issues around this are interesting.  I, again, not a health insurance lawyer, don’t know all the ins and outs of how company plans work by any means.  My anecdotal feeling/this is how I think it works is that companies don’t get data on their employee’s specific uses of their health plans.

Halley:  Yeah, we’ve talked about privacy today and health care and privacy.  It’s the biggest issue ever, and after how I feel about not trusting anyone, certainly at Facebook or most social media for privacy, I don’t think that I’m particularly big on trusting anybody in health care with my personal.  That’s probably the most personal stuff and private stuff that you would ever share with people.

Denise:  Halley, what do you think about the whole notion of okay, we understand that it’s a problem that people work their way through their 20’s and 30’s and then have trouble getting pregnant.  So this is a solution to that.  We’re going to help you if you decide to do that.  Do you think that it’s skirts the issue that we don’t need to necessarily remake the biology, we need to remake the work place and the culture?

Halley:  I think I’d vote on that last one, but as if that were easy.  I don’t think it’s easy.  Until I was very much an independent, very feminist sales person, marketing person.  I did a lot of work early in my career in software sales.  I was very typically a company man you could say.  I put off having a baby wondering, I didn’t know that I even wanted one and I loved my working life with no kid.  And then I  had a child and my attitude towards everything changed totally.  I think you can’t know what you’re going to think.  Or how you’re going to feel.

Denise:  Yeah, no I went through a very similar thing.  I didn’t have our son until was 38, and we were on the verge of having to jump through a lot of fertility hurdles to make that happen.  Like you, Halley, I kind of lucked out early on in that process, but we did think about having a second child by which point I was in my 40’s.  if I had frozen my eggs, that might have been an option.  Short of doing that, it was not.  In discovering the answer to that question and hanging out in some fertility clinics to get that answer, I met some of the staff that works there.  This was well into when it was still classified as experimental.  All the staffers had frozen their eggs.  They were all in their 20’s.  Oh yeah, we just freeze our eggs.  We all do it.  So, it’s been around at least in that community for some time.  Of course when you hear that and you’re trying to get pregnant,  it’s just like, oh great.  Good for you. (laughs)

Halley:  Glad I found out now.  (laughs)

Denise:  Exactly.  Franklin, anything you want to add to this? I actually have a follow up question if there is nothing you want to add to this?

Franklin:  No, we could go down more rabid holes.

Denise:  Yeah, of course.  We’ve been through so many in this episode.  There was a great, I recommended last week when we had Lindsey Rogers Cook on her great little newsletter with data points.  One of the things she sent out during the last week was a chart from India Real Time that relates to what we are talking about here with changing work place culture so that maybe people just have their kids instead of freeze their eggs and don’t feel like they are getting off their career path.  It has to do with the chore gap, and it’s a great big chart that talks about the difference between the amount of housework done by women and men by country.

Halley:  Whoa.

Denise:  These are figures compiled by the World Economic Forum.  India far and away has the biggest chore gap, and Norway has the smallest.  The US is on the lower third of the gap, or of the graph I would say.  Lower quarter of it anyway.  In India, in rural India women definitely bear most of the chores and they spend the great majority of their time preparing cow dung cakes.  This is not a joke.  Preparing cow dung patties and walking to collect clean water, and far and away have the bulk of the responsibilities for those important tasks.  The chore gap definitely plays into what we’re talking about, and in countries with a low chore gap, I think you probably see a different kind of work place culture and attitude too.  So that was my follow up question for the male on our show today.  Franklin, not to put you on the spot, but where do you feel you fall on the chore gap continuum household activity wise?

Franklin:  I know my wife won’t be listening, so I can just say whatever I want, right?  (laughs)

Denise:  Exactly.  (laughs)

Franklin:  No, I think my wife honestly, she definitely does handle the majority of work that involves the house.  I can say it now.  There is an uneven balance in that sense, and we’re both aware of it.  Especially after being a male going through law school and having female partner who was, she was also in graduate school at the same time, but law school I think kind of developed, it took more of my time than I was able to handle at times.  It got difficult, so she bore a large majority of the chore responsibilities if you want to look at it that way, because of the amount of time and effort that I had to put into being in school.  Luckily, now that I have graduated and that’s done with and I am in the house rather than working at a law firm where I am doing 70 or 80 hours at a time of work, I can kind of help get it back to a more equal base point, but I still obviously just because we are in the south, there is this sense.  It’s kind of ironic this is being talked about because my wife and I have been discussing it recently as well.  Just a sense that she has this feeling that a lot of these responsibilities that would fall within the home and be classified as chores, she has this sense that that’s what part of her role is.  I think that’s just a societal thing, especially being in the south, one fo the roles that women used to have.  Back in the 60’s you would see Leave it to Beaver.  The woman would be at home cooking and have dinner ready right on time when the husband came home from working and all the kids were perfectly washed and taken care of.  I think we are moving away from that slowly, but in our household it’s just a reality that she struggles with feeling like a lot of this is her responsibility just from a societal pressure type standpoint.  I would definitely be proud enough to say that I do at least take on a lot of the responsibilities that in the past normally would have been seen as predominately a woman’s role if you will. 

Denise:  Yay!  Good for you Franklin!  I suspected it was true and I wanted to hear it.  Alright, let us move on to our tip and resource of the week.  The resource of the week, we mentioned before and it’s also a repeat resource of the week from Episode 223 in August of 2013.  That is the movie that Franklin brought up:  Terms and Conditions May Apply.  Great movie, great thought piece.  If you are paying for NetFlix you can watch it there, and if you haven’t checked it out, you should.  It definitely plays into all the data gathering discussions that we’ve been having today, and also the constant problem of having agreements that were bound by that we may not have read at all, or definitely understand.  So, check out that film.  It’s wonderful.  Franklin, you’ve watched it more recently than I have.  Any salient quick points you want to make about it?

Franklin:  I watched it late at night in bed when I couldn’t go to sleep, so it was definitely freaky with all the lights out.  It’s kind of more of what you have to take with a grain of salt, because not every single thing can be controlled.  Such as video cameras are becoming more and more prominent in public areas, so you can’t get away from everything.  I know earlier in the show I’ve been sprinkling in little bits from what I saw, but one of the things I held onto is the fact that I know that one of the things we talked about was with Facebook.  Halley, you said your husband is not on Facebook at all, right?

Halley:  Right, right.  And actually I’ve seen the movie.  I saw the movie with the makers presented at Berkeley. 

Franklin:  Wow, jealous!  There are so many ways we are being tracked outside of Facebook. 

Halley:  Absolutely.

Franklin:  And social networks.  And you are being tracked without really noticing it.  I think that’s one of the things it brought to light to me watching it recently. 

Denise:  If you are convinced someone is watching you.

Halley:  They are.

Denise:  Yes, you are. Alright, so our tip of the week is, we’ve got a couple of them for you.  One is a serious tip.  Again, having right to do with privacy and tracking this is something that Wired and Forbes reported earlier in the week, and there’s a great write up on it at ProPublica and it has to do with an ID that both Verizon and AT & T are using to know, they can tag and track cell phone users for ads.  They can see what they are doing with their phone, what apps they are using, what sites they are visiting, for how long.  The type of tracking known in the industry as header enrichment is the latest step in the mobile industry’s tracking of users and their devices.  So, our tip, though, is not just that this is happening, but there is a resource, a little tool you can use over at ProPublica if you follow the link in our discussion points at you’ll get the URL to the ProPublica site where you can check for the tracking code and see if your Verizon or AT & T is in fact using this.  AT&T says it is purely experimental and if they were actually to roll this out for users, they would of course disclose that this was happening and give people the ability to opt out.  It would be like clearing cookies says the AT&T representative, but as of right now, ProPublica is reporting that this is very difficult to even know is happening, let alone opt out of.  So they developed this tracking tool. Again, this came from Lindsey Cook from last week and her great little newsletter, so thank you Lindsey.  For our tip, our second tip is more lighthearted and more in keeping with tonight’s festivities.  That is if you are looking for a costume, we thought we’d give you some ideas.  Halley, I saw the first of these costumes on Mary Hodder’s Facebook page yesterday.  Mary’s been on our show before too.  These are all comic spoof costumes, but hey, you might want to take some inspiration.  This is all from college humor.  The social media professional who is just the complete and utter douche.  Mary’s comment in keeping with our conversations here today was, you wouldn’t have to be the guy.  You could be the sexy female social media professional as well.

Halley:  Yes, yes.  (laughing)

Denise:  What I think a 401K is is another one, and these are all….the libertarian gets drunk at a  party and starts babbling about policy issues.  (laughs)  I love the one that we are on now if you are watching the video.  The one word text response from the girl, or it could be the guy that you like.  The bone rattling costume that comes in things like the letter K or just cool, nice and yeah.  (laughs)  You’re not sure what that person is thinking.  So, I’ve seen some wonderful Net and social media oriented costumes in these add to it.  Allie Spagnola who has been on the show posted up a picture of her grumpy cat costume which was quite delightful.  Last year at my son’s school, one of the teachers went as an Instagram photo.  He left out any kind of like, I would put a piece of tissue paper in front so you have a filter, like orange or something.  (laughs)  So guys, this has been frighteningly good fun.  I’m so glad that you could join me today for our Halloween episode of This Week in Law.  Halley, what is going on with you these days?  I know you are writing for the Boston Globe, correct?

Halley:  That’s right.  I’m working at Beta Boston, and they do, we cover everything techy.  So it’s been fun.  I did one year go as a pregnant nun, but with this wild Pope over in the Vatican, I just don’t want to go near that stuff.  He just makes the most amazing claims lately.  So, this year, I’m doing the blue hair.  I turned the switch off to save the battery as you might notice.

Denise:  Smart, very smart.  Alright, well it’s been great having you.  Have a lovely Halloween, Halley.  We’ve enjoyed you and your hair on the show today and all of your great ideas for terrifying tech to discuss.  And, Franklin, it’s so great to have you back on the show.  People might not know that Franklin was our intern for a very long time and is now gainfully employed and fighting crime on Halloween.

Halley:  (laughs) 

Franklin:  (laughs)

Denise:  There we go. 

Franklin:  Thank you so much for having me.

Denise:  Remind people where you are working these days and what you’re up to.

Franklin:  Yeah, well I actually as you can see behind me there is an office Halloween party going on.  It starts at 3:00 here Nashville time.  But I work in the North American office of Naxos of America and it is a worldwide organization that is a record label, but also classical music distributor as well.  One of the things I love about working here and why I felt comfortable working at a record label these days, is that we handle a lot of tech, we’re on the forefront of a lot of the technologies that come out.  We actually have a team of developers in house that, and that surprised me when I first got hired here.  I never would have thought that a record label, especially a classical music record label would have developers in house, a whole team of people.  It’s really a lot of fun.  I enjoy what I do.  I basically handle business and legal affairs, so contracts review, you name it.  If it involves law and the company, I normally have a hand in it. 

Halley:  That’s great. 

Denise:  Awesome.  So good to hear from you again, Franklin, and to share this time with you today on Halloween.  We hope you have a safe and fun evening as well, and all of you too.  Be careful out there if you’ve been imbibing in the 12 drinking game, definitely give yourself a break before you pick it up again tonight.  (laughs)  Let us know what you thought of the terrifying things we covered, other things that are frightening you that you think we should cover in the future, or things that you think are positive developments.  It’s so good when we can talk about the good things that are happening with respect to our privacy or intellectual property law, or all the other areas of law that impact the web and technology.  If you do want to get in touch with us along those lines, you can email me.  I’m  You can find me on Twitter; I’m @dhowell there.  You can head on over to our Facebook page or our Google+ page.  Those are great places to let us know what you thought of this show and what you think we should talk about and who we should have on in the future.  You can watch our past episodes of This Week in Law and find out what other resources we may dredge up and throw back at you if you haven’t had enough of them yet.   You can find them all at  We have a channel on YouTube.  It’s This Week in Law on YouTube. We’re on Roku and in iTunes and various other ways that you can get this kind of entertainment on your big screen television, because I know that’s how I like to watch our network.  In the meantime, you guys have a wonderful frighteningly good Halloween and we will see you next week on This Week in Law! 


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