Dan Krohn's Blog

New Case on Noncompete Agreements

edwin@aldridge.com — Fri, 02 Sep 2011 15:52:21 -0500

In June of 2011, the Texas Supreme Court issued its opinion in Marsh USA Inc. v. Cook, the latest in a long line of cases dealing with noncompete agreements in the employment context. The enforceability of noncompete agreements against former employees has been a challenging issue in Texas for some decades with the pendulum swinging from one side to the other. The new opinion, having been signed by only a five justice majority, indicates that the pendulum may have swung but for how long no one knows. The test for an enforceable employee noncompete agreement has two parts: (1) the agreement not to compete must be �ancillary to or part of an otherwise enforceable agreement� and (2) the restrictions on the employee must be reasonable � not limiting the employee�s ability to seek new employment beyond that which is necessary. The wording which has challenged courts and attorneys is the requirement that noncompete provisions be "ancillary to or a part of an otherwise enforceable agreement." There has been particular confusion over what "ancillary to" means in this context and almost as much confusion as to how one identifies an "otherwise enforceable agreement." Now we have Marsh, which in my opinion confuses the issue further. If nothing else, the rather lengthy Marsh opinion evidences the merit of Justice Holmes famous comment that judicial opinions ought to be written while standing. The Marsh opinion, after considerable struggle with �ancillary to� in the context of an employer�s goodwill, clearly states that the Court at this time believes the reasonableness portion of the test to be the critical element. What does Marsh mean for employers? Some experts say that they would not attempt to rewrite existing agreements. But it is not advisable after Marsh to simply reuse an old noncompete agreement with new hires. In this writer�s opinion, after Marsh, noncompete agreements with employees ought to be customized for each employee to maximize the odds of their being upheld. The practice of just filling in the blanks of a standard form invites problems. Employers should keep in mind that there is no certainty in the employee noncompete context, and what works now might not be valid at some future date.

The Trouble with Marijuana's Aroma

edwin@aldridge.com — Mon, 16 May 2011 12:05:59 -0500

On May 16, 2011 the U.S. Supreme Court ruled on a case involving a warrantless search. Apparently police smelled the rather distinctive aroma of marijuana emanating from an apartment. They knocked on the door asking that it be opened. It wasn't. Instead, the police testified, they heard sounds consistent with the destruction of evidence, so after warning that they would bust their way in if the door were not opened - they knocked it out of the way. Surprise - the police found evidence in plain sight and proceeded to arresting. Actually the legal arguments are rather interesting, but cutting to the chase: if the smell of marijuana is wafting out the cracks of your front door, you're likely to be arrested and it will likely be upheld. This writer believes our nation's approach to illegal drug use should be seriously examined from several points of view. But today the popular view is to punish those criminals who smoke pot. So pot smokers be aware, if the aroma floats outside, you've got a problem.

Compassion and Economics

edwin@aldridge.com — Fri, 04 Mar 2011 15:14:15 -0600

We humans on this planet have yet to figure out that we need to get along with each other. We are far from having incorporated the knowledge that if all people are better off, then we are better off. Our species seems trapped in an us vs. them mentality. This writer sees no early end to that problem. But fear not, as the world economy is in the process of teaching us a lesson on the topic. The Middle East and Northern Africa supply much of the world's oil. Right now that region is in chaos, so oil prices are rising - rapidly. The Saudi government is doing what it can to stabilize the situation, but even it's ability is limited - and one must remember that one of the most repressive governments on the planet is the Saudi regime. What would happen if the regional chaos spread to that country? Unfortunately, that oil producing part of the world is still largely caught up in a rather primitive tribal us vs. them mind set. Though one religion, Islam, dominates the region - there are tremendous differences within the Muslim world, which are more than adequate to insure instability for years to come. On everyone's lips, at least in this town, is the rising price of gasoline. When oil prices rise, fuel prices rise and they do so without hesitation. Since some form of oil based fuel is involved in the manufacture and delivery of almost everything, rising fuel prices ultimately mean inflation. Aha! Our governments know how to deal with inflation. The central banks tighten money supplies, and the executive/legislative branches adopt a fiscal policy of reduced spending and higher taxes to slow things down. What a prescription! Just what the doctor ordered for the United States and much of the rest of the world where a long and stubborn recession is already pervasive. Unemployment remains high, and employers continue to cut back. Concerned conservative politicians are slashing spending in all sorts of ways such as reduced funding for education. (That's a good one; we can dumb our way to a booming economy.) To sum it up, we are already fighting a recession; and to the extent fuel shortages trigger inflation, our leaders will be tempted to take steps which will worsen the recession because that's all they know. It's not a pretty picture. Unfortunately fuel shortages are indeed likely. Much of the oil production in Northern Africa and the Middle East depends on foreign companies providing technology and foreign workers implementing those technologies for the local producers. Those people are no doubt feeling uncomfortable with the current rebellions in full swing, and to a large extent those individuals have left or are contemplating leaving the region. So the oil picture is likely to deteriorate further before a change for the better. One can foresee any number of even uglier scenarios unless there is real change. Historically sufficient hunger leads to battles between people paid and armed by the wealthy to protect their wealth on one side, and people starving, lacking hope, and striking out in desperation on the other. When compassion becomes universal, prosperity will follow in its wake.

Better answer for drug users

edwin@aldridge.com — Thu, 03 Mar 2011 15:17:02 -0600

What saves money and improves society? According to a new "Economist" article, a new government program! This new intensive treatment for those convicted of drug use has offenders sent to special drug courts. Judges there keep close tabs on the cases and use reward and punishment to encourage rehabilitation and clean living. The program teaches them how to be productive members of society by helping them get job training, teaching them how to stay off the drugs, and testing them along the way. The program is reported to cost significantly less than sending offenders to prison and the repeat offense rate among participants is lower than with those serving the typical jail time for the same crime. Those who come out of the program are also more likely to be employed. These claims sound promising!

Internet and Juries

edwin@aldridge.com — Thu, 03 Mar 2011 15:08:12 -0600

The traditional voir dire just got a little more interesting. Lawyers are taking advantage of the scads of public information on social networking sites to learn more about potential jurors. With access to the internet anywhere, research can be done right in the courtroom during the selection process. The practice, while technically legal, is not well publicized due to being generally frowned upon by judges so far. At least one case of Googling potential jurors has been contested. The initial ruling that it was unfair considering opposing counsel had not brought their laptops. That was overturned on appeals based on the idea that both sides had access to the internet and only one chose to make use of it. Just remember that the next time you go for jury duty, you might be selected based on your internet presence as well as your answers in court!

Foreclosure New Depressing

edwin@aldridge.com — Thu, 10 Feb 2011 16:17:45 -0600

The Houston Business Journal just announced that the news on the foreclosure front in Texas is rather grimmer than many expected. http://tinyurl.com/6kaxl4r Unfortunately, in this blogger's opinion, many have underestimated the stubbornness of this recession. The usual Keynesian tools may well have less effect than in the past due to the globalization of the economy. We simply do not have as much control as we once did. Eventually the nations on this planet will learn that they will gain by cooperation and work together on the economic front. It�s a pity that a competitive attitude still rules.

Healthcare Revisited

edwin@aldridge.com — Thu, 17 Mar 2011 12:49:59 -0500

Healthcare is in the news again, which should be no surprise given its importance. About a year ago, this blog addressed healthcare. This time no specific plan is proposed, just a plea that the system gets fixed � at least let�s acknowledge that it needs fixing and try. Republicans and Democrats argue interminably over the latest legislation. Several people have suggested that we start healthcare reform by eliminating subsidized healthcare for politicians. That might be a good place to start as some compassion might arise once they experience the pain (in the literal sense) experienced by many Americans due to our broken system. For the most part, our politicians duck that real issue � lack of access to good healthcare really hurts. Indeed, rather than have our politicians divided into Republicans and Democrats; on this issue at least, it would make more sense to label them as either compassionate or greedy. A compassionate person cannot be content with a system which denies reasonable access to healthcare resulting in needless pain, disability and financial ruin for many � which unfortunately our system does. The truth is that the healthcare system in the United States stinks, needs a major revisiting, and is an embarrassment to the country. It's been well established that for many if not most people, access to healthcare in the U.S. is a problem. By most standards used to measure health, the United States lags behind almost all other advanced industrialized countries. One need only look at the individual bankruptcy records to see the extent to which the cost of healthcare wreaks havoc on Americans. Those who oppose any changes in the healthcare system are either wealthy enough not to have to worry, paid by campaign donation or otherwise to oppose general access to good healthcare, or sufficiently ignorant to buy the lies spread by the first two categories. (This is not to say that all wealthy are opposed to changes in healthcare access as many of the wealthy are compassionate and willing to sacrifice some wealth to benefit others - just not enough of them.) Any honest look at the healthcare system in the U.S. will show that the overhead costs associated with the current system are tremendous. We support a huge healthcare insurance industry which adds greatly to the cost of healthcare. Indeed, a look at Medicare (which many demonize since it is a government program) shows that it is remarkably more efficient than the private health insurance industry. Government is not always the problem. Unfortunately, there are real and accurate horror stories to be found in every nation using every system for delivery of healthcare. Any system created by humans will to some degree be flawed. But that is no excuse for keeping a healthcare delivery system which we know is inferior and unjust. Are we as a people so lacking in compassion that we will contentedly watch as our neighbors suffer severe pain, become handicapped, die prematurely, and/or have their families become destitute or nearly such. That is what the lack of quick access to quality healthcare brings. And in the U.S. we have too much of this. As a country we need to decide whether we will be guided by compassion or greed. At the moment, the answer is clearly greed. This writer is no expert on how to design a better system, but better systems do exist; and we need to create one.

Health Care Debate

edwin@aldridge.com — Thu, 05 Nov 2009 17:38:39 -0600

As seems to be unfortunately typical in the modern U.S.A., the country appears crippled on the issue of health care. That great change needs to occur is well established. In the U.S.A. twice as much is spent per capita on health care than is spent in any other country, while the quality of health care does not make it into the top ten. Most personal bankruptcies are health related. That's enough to justify substantial change. Yet, we are an extremely divided country with everyone out for himself, rather than the health of the country as a whole; and any proposal not seen as perfect by a majority faces tremendous opposition. U.S. get real. There is no perfection in health care delivery. We need to settle for something less, and we can do that and still experience great improvement. Yet, it seems most likely that nothing of real consequence will change - leaving millions of Americans with no insurance will little access to health care and leaving millions more to go broke paying high insurance premiums for too little coverage. Unfortunately this blogger's idea would not stand a chance, because it would get Washington altogether out of it, but leave government heavily involved. Specifically, this blog proposes that the states be empowered to do whatever they want regarding health care with no federal interference. Emphasis on "whatever". So if a state decided to outlaw health insurance altogether - okay. If a state decided to have a tax to fund socialized medicine in that state - okay. If a state decided to do nothing and let the market work it out - okay. Eventually we'd see what works and what doesn't. Yes, that's a pretty wild idea - trusting the state governments to do a better job than the feds, but would we really lose? Unfortunately, many of those who call themselves conservatives want the federal government calling the shots - contrary to true conservatives of old - because of their lobbying power in Washington. And many liberals don't think anything can be handled on a state basis. Oh well, food for thought.

Who Counts as a Member of the Media?

edwin@aldridge.com — Sat, 25 Jul 2009 12:55:20 -0500

In a recent case the Second District Texas Court of Appeals in Ft. Worth considered questions as to the degree a writer whose stories and editorial pieces are published on the Internet was entitled to a specific right given to journalists under Texas law. (The specific Texas statute in question as applied in this case addresses a rather narrow specific procedural issue (the right to an interlocutory appeal from a trial court ruling denying a motion for summary judgment, and it is doubtful that the readers of this blog entry would be interested in that procedural aspect of the case. Suffice it to say that the ability to proceed with such an appeal could save a party a great deal of time and money.) However, two portions of the court's opinion should be of interest to many readers. The writer involved, a chap named Joe Kaufman, was sued for defamation for a story he had written which was published in an online Internet magazine discussing an event called Muslim Family Day to be held at Six Flags over Texas. Several Muslim organizations filed suit claiming defamation. The portions of the court opinion that interest this blogger do not deal with the defamation issues, and this blog entry does not address the defamation aspects of the case. To this blogger the interesting issues are those which address the issue of whether or not Kaufman was entitled to exercise this procedure which Texas law gives to members of "the electronic or print media". The plaintiffs claimed that Kaufman was not covered by this statute because the article/opinion piece at issue was published solely on the Internet, and that the Internet was not the kind of media which the legislature had in mind. They argued that "electronic or print media" was meant to include radio, television, and print publications but not the Internet. Fortunately, the court had little trouble in finding that the Internet was included within the "electronic or print media" umbrella. But then things get trickier, and in this blogger's opinion much more dangerous, as the court proceeded to analyze the story by Kaufman, the online magazine in which it was published, and Kaufman's "notoriety" apart from the opinion piece at issue. In support of its conclusion that Kaufman was entitled to an interlocutory appeal as a part of the media, the court noted that the online magazine in question has 500,000 readers. One wonders how many readers it takes for a particular website to qualify for this statutory protection. The court opinion tells us only that 500,000 is good. The court also noted that the piece at issue addressed a topic of general interest - terrorism. One wonders just what topics would qualify as being of general interest, and which would be of too narrow an interest to help the writer. This blogger lives in Houston, Texas. It would be hard to argue that the Minnesota Twins baseball team is a topic of general interest in Houston (though it is surely a matter of great interest to some Houstonians). How does one measure general interest, and how should a court decide whether or not a topic qualifies. Except to give Kaufman a boost in this case because he addressed an aspect of terrorism, the court's opinion contains few clues. The court moved on to an analysis which this blogger finds truly discomforting. The degree of Kaufman's notoriety without regard to the writing at issue was analyzed as a factor in determining whether or not he was entitled to this particular procedural benefit aimed at protecting members of the media. The court noted that Kaufman had a history which included numerous television appearances hundreds of published articles, and that Kaufman had other substantial journalism training and experience. Note that the court specifically stated:" We do not hold, therefore, that everyone who communicates on the Internet would qualify as a member of the electronic media under section 51.04(a)(6)." As written, the opinion leaves its reader wondering whether, for example, most, if any, blogs would qualify for that procedural benefit. Consider this purely hypothetical example. Dr. Snidley Birdbrain, who holds a PhD in ornithology, maintains a blog dedicated to swallows of the Gulf Coast area, which is extremely popular and well read by area birdwatchers. In one of his blog posts, he attacks the intelligence, credentials, and observational capabilities of one Seymour Birdies, who claims to have identified a previously unknown species of blue-throated swallow near Beaumont, Texas. Birdies then sues Birdbrain for defamation. Given the Kaufman case, it would seem that Birdbrain is out of luck (should he file an interlocutory appeal of a summary judgment denial) for a number of reasons. Birdbrain's blog has far fewer than 500,000 readers. Courts would probably hold that Birdbrain's posting on the blue-throated swallow was not a subject, like terrorism, of general public interest. Indeed, outside the world of dedicated birdwatchers and ornithologists it's hard to imagine many who would have any interest at all. Our poor Dr. Birdbrain, while highly educated, has no specific training in journalism. Other than his blog, his experience as a journalist is limited to two articles published in scientific journals of limited circulation. And while our Dr. Birdbrain has lectured to a few birdwatching clubs and been a guest lecturer to a few college classes, he has never appeared on television. Without regard to whether or not Birdbrain's blog post was defamatory, the question still arises as to whether or not he should be entitled to this particular statutory right of appeal which was designed to help members of the media. Many experts have opined that blogs have become a major news and opinion source (and note that Kaufman's piece was as much an opinion piece as news story). Indeed, there are communications experts who have opined that blogs are replacing much of the traditional news media. And how about e-newsletters and listservs. This blogger subscribes to several such email services which address narrow legal subjects that would certainly not be of general public interest and which are sent to many but surely not 500,000. It is time for the Texas courts and, if necessary, the Texas legislature to wake up to the new online world. This blogger is not arguing for legalizing defamation - on the Internet or otherwise. This blogger is advocating that the courts recognize that the news media is not what it used to be. People expect to get the information they want from the Internet, and the Internet to which they go to find such information extends far beyond Web based magazines with large readerships. The very nature of news media is rapidly changing. Though law will lag behind, it must strive to keep up as best it can.

Worries for Pakistan

edwin@aldridge.com — Wed, 06 May 2009 12:36:41 -0500

Recently a Taliban leader or sympathizer in Pakistan stated, "It is a natural thing when democratic avenues are not working to take up arms.� What a succinct description of the problems there. In a civilized place, when one does not get one's way in a democratic process, one continues to campaign and vote. One does not take up arms. Indeed, the very idea that armed response is the result of losing a legislative battle or election (even if the electoral battle is lost over and over thoughout many years) undermines democracy. What kind of vote is it that results from fear of armed attack. The leader making that statement did so as a justification for the Taliban's increasing incursions into Pakistan. Apparently the Taliban have moved out from merely hiding in Pakistan mountains to launch efforts in Afghanistan to an effort to take over Pakistan itself. Readers are reminded that Pakistan has nuclear weapons and at least some ability to deliver them. Thus this is one country, which in the hands of fanatics, would be terribly dangerous. Dealing with Pakistan is unusually difficult due to its history and culture. Its history is one of seeing India as the enemy. Some Pakistani's might have difficulty concluding that the Taliban is now the greater threat, especially as some of their neighbors don't mind them a bit. Similarly, Pakistani's have a history of thinking of themselves as an Islamic nation most often at war with those who are not of the same faith. The understanding that Muslims are not uniform might have not yet pervaded the Pakistani consciousness. Some might hesitate to go to war against "fellow" Muslims. Unfortunately, the United States is often seen by the Muslim world as less than friendly, understandably given its history of involvement in the Middle East. This writer has no clear answers to this situation, and this writer would be very suspect of anyone who claims a quick answer. The United States is used to acting as the "sole superpower" and imposing its will on smaller countries. But the U.S. is stretched both economically and militarily. What's more important is that the U.S. ought to be careful not to create new enemies which will last for decades if not centuries - if that is possible. There is much more involved here than just Pakistan and the U.S. Much of this Taliban problem has been exported from Afghanistan, where the struggle for stability is still on and where other countries have troops supporting the U.S. effort. Lastly, let us not forget India. India has its history of seeing Pakistan as an enemy, and it was not that long ago that terrorist violence rocked Indian locations. India is also a nuclear power. And we cannot read the Indian mind as to how it would react to a radical Taliban government ruling its traditional enemy. For now, readers, it might be just wait and pray.

Breaking Up Is Hard to Do, Part 1

edwin@aldridge.com — Tue, 05 May 2009 18:53:40 -0500

Since the beginning of this year, this writer has seen a definite increase in breakups among owners of closely held businesses. This appears to be a sign of the times for many businesses whether large or small. The owners of a closely held business might find themselves changing the ownership structure or dissolving the business for reasons which include: (1) a changing market; (2) different capabilities of the business owners to contribute time or additional needed capital; (3) disagreements as to the direction the business should take; and (4) conflicts of interest with other business ventures. Also, in this economy, it is not uncommon for early stage business partners to be supported by their spouses. If the spouse should be laid off or suffer some other form of reduction in income, the business partner might have little choice but to seek additional personal income elsewhere. This writer has seen business breakups handled in many ways from peaceful and hostile negotiations to litigation and even violence. The purpose of this article is to suggest friendly negotiation as the preferred way to dissolve a closely held business. In addition to avoiding the costs of litigation and/or unreasonably protracted or hostile negotiations, peaceful negotiation as a resolution mechanism has much to offer. It provides less distraction from other matters which need attention for those involved. Distraction is the most commonly ignored and largest actual cost of litigation and hostility. Peaceful negotiation has a better likelihood of preserving assets and potential income, and/or reducing losses and preserving credit standing. As the business model might be very worthwhile with a change in the economy and quite worth preserving, the business stands a better chance of surviving peaceful negotiation, even if it must go into hibernation or semi-hibernation mode. Also, peaceful negotiation is more likely to leave the business in place operating profitably by some, if not all, of its owners; and the possibility of the owner who must take a reduced role returning in the future when circumstances change can be preserved to the benefit of all. Lastly, let�s not forget the burning of bridges which is avoidable through friendly negotiations. One never knows if or when one might want to do business with a former business partner who now works in a different place (or a relative or a friend of that former partner). In this day of online social networking, the airing of dirty laundry is far too easy and very public. Reputations are not to be destroyed lightly, but often are destroyed even without intent. With the economy in chaos there are always opportunities to maximize gains and minimize losses. Making the effort to adapt intelligently and as peacefully as possible is the preferred route.

Supporting Our Troops?

edwin@aldridge.com — Sat, 02 May 2009 19:23:35 -0500

Recently there was a minor furor when the Department of Homeland Security mentioned in a report that members of the military returning from wars in Iraq or Afghanistan might be subject to recruitment by terrorist organizations, and hence could be a risk to national security. Several politicians immediately pounced screaming "How can you insult our men and women in uniform like that!" This blogger believes that the critics were asking the wrong question and addressing the wrong issue. (Readers, please note that this blogger strenuously opposes terrorism by anyone for any reason.) If indeed Homeland Security has accurately identified a risk, then the questions that occurs to this writer are how we got there and how can we change it. On reflection, recent history of how the United States has treated its enlisted men and women should give considerable pause for thought. Though virtually all of our political leaders regularly proclaim their support for our troops, for many of them � their actions contradict their words. And the American people have failed to let their leaders know otherwise. Since the move to an all volunteer military, the United States has seen a major shift in its attitude towards the military. Perhaps most critically, unlike, most recently, the days of the Vietnam War when almost anyone could be drafted; wars today are fought by �them� not �us�. �Them� are the people who have volunteered to be in the trenches, on the ships or in the air. �Them� does not typically include the young members of the upper middle and upper classes, who upon graduation from high school move directly to college and then onto careers which generally do not include the military. The recruiters for the armed services know this, and consequently they target members of the lower middle and lower classes. You will see them more active at high schools where a higher proportion of the student body fits that description. There is generally a higher percentage of minority students at those schools - another factor supporting the �them� view of our enlisted men and women. For the students from such backgrounds the military offers a more attractive deal. But let�s look at how we have been treating them. The scandalous condition of Walter Reed hospital which made the news sometime ago was only a publicized aspect of one problem. The United States is simply not giving our military personnel the kind of quality medical care they have earned. Though medical care has improved with passing of time due to advances in technology and treatment, the military relative to the average American with health insurance does not get the same medical care � at least not at government expense. In the continuing effort to balance the budget and cut spending, care for the service men and women has too often been an easy place to wield the knife. Their lobbyists cannot compare to those of the major defense industry suppliers who continue to sell the military at bloated prices. Meanwhile, the U.S. has been privatizing increased amounts of what used to be military work. In Iraq there are private security companies and other military suppliers being paid huge amounts to do what were previously considered military tasks. And guess what? The guys and gals working for those private security companies are being paid two and three times what the men and women in the armed forces are being paid. Reader, how would you feel as soldier watching those folks make twice what you�re making? So some guy finally gets back home. His leg has been blown off. He has to wait way too long to get to a doctor. He can�t get a decent job, if he gets any at all. He can�t support his family. He has incredible psychological adjustments to make, after learning to kill and watching his buddies get killed. Maybe his wife leaves him, understandably not being able to take the stress any more. He sees other people around him living better � and their lives were not on the line. His was while he was protecting their asses. This poor chap is on the edge. So now the guy is being watched as a potential terrorist recruit. This country should be providing these returning soldiers timely counseling � all that they need. They should be getting prompt and superb medical care. They should be getting the best of outplacement help to find employment. They should be getting whatever training they need to be employable. And they should be getting some form of reasonable support during the transition. Some of this is provided, but it�s not being delivered in sufficient quantity and it�s being delivered too slowly. Supporting our troops? America � it�s time to put your money where your mouth is.

Music of Houston Composers in Concert

edwin@aldridge.com — Sat, 14 Feb 2009 10:28:16 -0600

Houston is a great arts town. On any given day there are multiple events and sites worthy of checking out. And many of Houston's attractions are very reasonably priced. One Houston arts resource that is generally not well known in the Houston Composers Alliance, a group which exists to promote performances of music composed by living artists who make Houston their home. HCA is putting on one of its all too rare concerts on March 2.

Third Party Content Gives Rise to Lawsuit

edwin@aldridge.com — Mon, 09 Feb 2009 09:08:52 -0600

For quite a while this blogger has been predicting that character assassination would be the crime of our time. Aided by the Internet, it is now exceedingly easy to distribute false information quickly. Once spread, nasty gossip and rumors are never fully erased. Someone somewhere always carries a seed of distrust planted by the character assassin. And one never knows how that seed might haunt the victim years down the road. So it was with interest that this blogger spotted an article asserting that Italian soccer star Alessandro del Piero is about to sue Facebook over a faked profile. Del Piero maintains that he has never had a Facebook page. Nonetheless, one appeared with links to Nazi websites. With sports figures looking at the potential of substantial income from product endorsements and the like, it is no wonder that the intelligent among them go to great lengths to protect their reputations - less their value as spokespeople be diminished. What is yet to be determined is the degree of culpability Facebook should be assigned and the amount of damages, if any, to be assessed against Facebook. In the United States we have Section 230 of the Communications Decency Act, which gives broad immunity to Internet sites containing third party content. So long as the Internet site pulls down the offensive material promptly upon notice, they are pretty much in the clear. But not every nation has such a statute. Readers can count on some countries' being much tougher on third party content containing sites. This will be an interesting case to watch as it progresses.

Another Computer Threat Alert

edwin@aldridge.com — Sun, 08 Feb 2009 11:09:43 -0600

A new scam has appeared in the ongoing effort by unscrupulous hackers to control your computer. In North Dakota it has been reported that a number of people received fake parking tickets which urged them to go to a particular URL in order to see a picture of the violation. To this blogger's knowledge, this is the first such combination cyber/physical attack on computer security aimed at people generally (rather than an effort to get into a particular person's computer). Though the incident thus far appears to be a local one, copycats will undoubtedly appear in other places.

For Those Who Missed the Cold War

edwin@aldridge.com — Wed, 04 Feb 2009 12:25:53 -0600

It's pretty well known that Vladimir Putin thinks the fall of the Soviet Union was a pity, and he is pursuing a path to recreate it - perhaps in another guise or with other words, but recreate it nonetheless. To do so will require that Russian dominate the former Soviet republics which after the breakup established their own governments. If Putin's Russia is not quite ready to fully absorb those states, they can at least be intimidated into behaving just the way Putin wants them to behave. Note Russia's support of rebels in Georgia and the brouhaha over gas supplies with Ukraine. But perhaps the best current example is seen in the recent news out of Kyrgyzstan. At least a fair chunk of the population of Kyrgyzstan likes the idea of independence from Russia and has made that clear. What's more, the government of Kyrgyzstan being in a perpetual state of economic strain did the unthinkable a few years back and leased land for a major military base to the United States. This base is said to be critical to U.S. efforts in Afghanistan, and no doubt provides a unique point of access to much of Asia. So the past week has seen a crunch. First, what is being called a Russian hacker militia launched massive denial of service attacks (DoS) on servers in Kyrgyzstan bringing its Internet access to a virtual halt. (Incidentally the U.S. military base was affected by the cyberattacks, too.) The news out of Kyrgyzstan today is that Russia has promised the country a major economic aid package. And, surprise, the Kyrgyzstan government is hinting strongly that they are going to ask the U.S. to vacate its military base. As of now the U.S. position is that this is still open for negotiation. But, for now, the Russians are simultaneously waving a monetary carrot and a cyberstick - and doing it well.

Freedom of the Press - Not Everywhere

edwin@aldridge.com — Tue, 03 Feb 2009 11:17:56 -0600

Google privacy counsel, Peter Fleischer, and three colleagues have reportedly been arrested in Italy as a result of Google's allegedly having an offensive video posted on its Google Video website. The video involved reportedly shows teens harassing a disabled teen for roughly two minutes. Italian law does not seem to be clear on the issue; enough ambiguity exists for the prosecutor to move forward. The crime carries a maximum sentence of three years. Google Video apparently removed the offensive video shortly after having received a take down notice. The case emphasizes the international nature of the Internet and serves as a useful warning that the applicable laws are not uniform. In the U.S., Section 230 of the Communications Decency Act would give Google and its personnel a safe harbor from prosecution in a situation such at this. But the U.S. has a relatively hands off culture and history regarding the Internet consistent with its policy of encouraging online resources to grow. This is not the case in all countries as some nations take strong measures to control the online behaviour of their residents: websites and those who post to them alike (for example, criminalizing criticism of the government or state religion). While the arrest which triggered this blog entry involved an Internet site's containing third party information, readers should also be aware of risks to information providers who post to third party sites such as Google Video. We U.S. citizens enjoy a tradition of free speech and free press. We often fail to appreciate how extraordinary and unusual these rights are. A U.S. citizen might post any number of comments, photos, etc. with great confidence while at home, only to find officers waiting to arrest her/him upon debarking in a foreign land. Certainly not the way to enjoy a vacation. Remembering that many, if not most, countries lack anything resembling the right to due process which we Americans take for granted adds a further worry. There might not be any trial, or the trial might not be a fair one. Only one aspect is common in every nation - prison is not a place to be.

Verdi's Macbeth

edwin@aldridge.com — Sun, 01 Feb 2009 13:35:45 -0600

Last night we experienced the current Opera in the Heights production of Macbeth. My wife thought it the best opera we've yet seen there. It was truly excellent, and I suggest to all readers that they take advantage of the run continuing to next week. The story is familiar, clearly based on Shakespeare's great tragedy. What made this production truly special was the quality of acting in addition to the singing of all involved. The leads fully captured the multiplicity of emotions, and Macbeth's last singing beautifully captured his decending view of human life. This is the first Opera in the Heights production at Lambert Hall since the damage it sustained from Ike. Perhaps that homecoming contributed to the splendid effort of all involved. Go see it. Go hear it.

A New Worry for Parents and Teens

edwin@aldridge.com — Sun, 18 Jan 2009 12:46:09 -0600

Sometimes things are too easy, so we do them before we think much about what we are doing. Such is the case in our new world of wireless communication. We can call anyone from almost anywhere. We can send text messages. And we can instantly send photographs. We can receive text messages and photos from our friends and send them on to other people that we know - sometimes a lot of people at the same time. This writer is of the Woodstock generation. We were a pretty wild bunch when we were young; and though many young people consider us old sticks, we understand that teenagers and young adults can lack discretion. Heck, we often did. But we did not have the technology to communicate quickly. Generally our indiscretions were not shared with the world. All of which leads to the concern addressed by this message: �sexting�. According to numerous news reports, increasingly teens are having fun taking nude photos of themselves and their friends and sending them to their boyfriends or girlfriends or others. A remote tease if you will. Of course, there can be quite a bit of peer pressure to participate. The problem is that once sent, there�s no controlling where the photos will go next. Sometimes photos are sent to a boyfriend�s cell phone, who in turn sends it to his buddies to show off the hot chick he�s dating, who in turn might send the nude photos anywhere. Some photos have appeared on popular Internet sites such as MySpace and Facebook, posted by recipients who either think it cute or perhaps are acting maliciously. Though we live in a permissive society, it has not become that permissive. There are employers who routinely search the Web for information as to applicants. Increasingly we can expect people and organizations to search the Web for information on many other decisions. Would it be inappropriate for a college to do so as part of its admission process? The distribution of nude photos can comeback to bite the photo�s subject in many ways. (Certainly it is incumbent on those who come across such information to remember that they, too, were young and foolish once and not judge too harshly.) Lastly, there is the matter of criminal law. Teens and young adults involved in this activity, though often naive and innocent in intent, are in many instances involved in the possession and distribution of child pornography. Enough said.

Civility Online

edwin@aldridge.com — Sun, 18 Jan 2009 12:12:16 -0600

The last couple of weeks have seen more than the usual number of Internet related libel cases in the news. Without commenting on the particular lawsuits (which have seen plenty of comments online already, insightful and insipid), there is something underlying the stories and many of the comments made in reaction which is deeply troubling. The ethic of the Old West held that nothing was more cowardly or loathsome than shooting a man in the back. There was and is truth and goodness in that philosophy. As this blogger has observed before, the new big hit crime of this century is character assassination. For some reason, it is now considered not only appropriate but acceptable by many to take pot shots at peoples� reputations online, often anonymously. Somehow the freedom of expression brought forth by the Internet has been distorted into authorization of unbridled gossip. Character assassination when not looking the target in the eye is indeed cowardly and reprehensible. The legal system has long contained a civil remedy for dealing with public false accusations: suits for slander or libel. But the new connectivity has brought such torts into a new realm, and how the law will develop over the next few years remains to be seen. If a person accuses you of something nasty to your face without others present, there is no legal remedy of this kind. Only when the accuser passes false accusations to third parties does the law of defamation come into play. From a purely legal standpoint, this issue is a tricky one. Few are more ardent supporters of free speech than this blogger. Clearly there are some entertainment personalities who promote their careers through the tabloids. But there are those who do not. Politicians who by the nature of their choice of careers (at least in the U.S.) are considered fair game. Famous personalities must show actual malice to prevail in the courts. But in a decent society, the limits on human activity are not guided solely by what is against the law or the possible subject of a lawsuit, but by a generally understood and accepted understanding of propriety. Section 230 of the Communications Decency Act protects websites from liability for defamatory comments posted by others. Traditional defamation law subjects anyone who repeats untrue damaging commentary to liability. That�s why the statute was passed. Web 2.0 could not exist without it. But at some point our society could find that it is necessary to curb abuse. That immunity from suit can be changed or repealed. Certainly anonymity could be limited. In days of old, a malicious gossip would be ostracized from his/her community. This blogger wonders: now that a community exists online, is it the obligation of those who use and appreciate the interactive aspects of the Internet to implement some kind of equivalent? People have feelings. Those feelings are real, and they are entitled to respect. One can argue that we ought not be hurt by anonymous comments; but being human, we are. So to those out there who misuse the newfound ability to slam someone�s reputation, this blogger says: If you haven�t got the guts to look someone in the eye and speak your mind, then leave it unsaid - and unwritten.