Brown, Budgets, Prisons, and Contempt.

The enduring wild card in California's budget is the situation in California's prisons.  This one came up here in January and back in November. The failure of the Brown administration to regain control of California prison's mental health services (which came up in April twice) led most people to believe that the State's plan to deal with prison overcrowding would similarly fail when reviewed by the courts.

Thursday, the three judge panel supervising the State's reduction of prison overcrowding duly rejected the State's plan to deal with the problem. Jerry Brown narrowly avoided being held in contempt of court, but the panel made clear that, failure of the State to comply with the latest order "shall constitute an act of contempt."

Michael Bien

Image available at http://tinyurl.com/mmegjnc

It's interesting to contrast this case with the decisions that are expected in Perry v. Hollingsworth and Windsor v. United States (prior blog posts on that topic are here and here) on the 24th 26th of June. The consequences of the prison overcrowding litigation will easily be as far reaching as the Prop. 8 cases, and Michael Bien deserves a lot of credit for doggedly pursuing the issues for years.

The result in the prison overcrowding case also provides a nice explanation for an oddity that was in the back of my mind last week, when the Economist noted (with amazement) that Jerry Brown 2.0's conservatism was having unexpected consequences in dealing with California's budget:

"POLITICIANS seldom show the caution required of fiscal analysts. Revenue projections are too rosy, deficit targets are blithely missed and rash promises are lavished on voters. Yet last month California’s Legislative Analyst’s Office, an independent fiscal monitor, rebuked the governor, Jerry Brown, for his 'unduly pessimistic' account of the state’s
economy. Mr Brown had predicted a $1.2 billion surplus for the coming fiscal year; the LAO put the figure at over $4.6 billion. This week the state’s leaders found themselves in the unusual position of agreeing a budget that did not include whopping cuts."

However, it makes perfect sense for the Governor to have been pessimistic -- the estimated amount necessary to address overcrowding by housing some prisoners out of state for 2013 is $1.9 billion.  The Governor and his advisors had to have known this kind of a ruling was coming, and that the difference between budgeted and projected revenues would probably need to be spent pursuant to the court order on reducing prison overcrowding ...

... While the ATF Moves on Big Data.

R--OPTION - Investigative System
Solicitation Number: DJA-13-AOSI-PR-0238-1
Agency: Department of Justice
Office: Bureau of Alcohol, Tobacco and Firearms (ATF)
Location: Administrative Programs Division (APD)
available at http://tinyurl.com/cbwoq59

From Wired: "[ATF] is looking to buy a 'massive online data repository system' ... to process automated searches of individuals, and 'find connection points between two or more individuals' ... instead of requiring an analyst to manually search around for your personal information, the database should 'obtain exact matches from partial source data searches' such as social security numbers (or even just a fragment of one), vehicle serial codes, age range, 'phonetic name spelling,' or a general area where your address is located. Input that data, and out comes your identity, while the computer automatically establishes connections you have with others."

"... the ATF is widely perceived as a weak, stagnant and underfunded agency. Even if it has a database that can track you down and find out who your friends are, it won’t necessarily be able to apply that to tracing gun transactions due to Congressional restrictions. If the agency finds a gun linked to a crime, and then traces the gun to someone who bought it from someone else, all of that work figuring out the who’s-who will still likely have to be done manually."

It takes a few months for the Federal Government to get moving after something like Newtown.  They're making progress.  However, as the article notes, Federal Law bars the ATF from creating a centralized database tracing gun transactions.  It doesn't bar anyone else from doing it, just ATF.  Which is a policy with certain downsides.

Dear Instagram -- Don't Mess With Kurt Opsahl.

It's always nice to hear from readers -- and it's even better when they suggest good topics ...

One thoughtful friend pointed out a news story about Instagram today. I'd noticed headlines on the subject earlier, but had kind of figured they were all spin by corporate executives. I somewhat subconsciously usually do what Felix Salmon described earlier this week, in that I start with the dual questions: “who is the main source for this story” and “what is that person trying to achieve.”  I figured the first answer would be "a Facebook competitor," and the second would be "slam their stock."

I was wrong.

Kurt Opsahl.

The main resource for this story was Kurt Opsahl. Kurt's a lawyer at EFF, and he's been around for a while -- to put his career in context, he was involved in litigating the Arriba Soft case, which I actually wrote about when I was in law school.  When Kurt writes about something, it's safe to say he's generally not engaged in a pump-and-dump stock manipulation scheme.

One interesting thing about the Arriba Soft case is that you couldn't have worked on it and not realize that a social network will need to obtain nonexclusive licenses to the photographs its users upload, in order to display those photos and redistribute them -- in the early days of the web, people relied on "implied licenses" to do that, and of course, like all such things in law that are "implied," what the courts really meant was "we've just always done things that way."

But social networks, well, they can't exactly rely on tradition, and so they have to have explicit licenses.  And their attorneys draft the language as broadly as possible, because frankly, they have no idea what rights they're really going to need even 18 months down the road, and they're careful people trying to play football on a field with moving goalposts. So you get very broad grants of rights in these "clickwrap" types of agreements.

"Instagram's New Terms of Service to Sell Your Photos"

Kurt Opsahl, Electronic Freedom Foundation

available at http://tinyurl.com/dyjsrvc

Of course, the real thing the lawyers have to guard against is that their contractual language doesn't let them do something that their competitor can do -- that Google will be able to roll out a killer service because their TOS (Terms of Service) is more expansive than Instagram's, and playing catchup legally will take six months when advantages in the Valley are measured in weeks.  What needs to happen, then, is for a neutral party to say "hey, you're going to scare off all the users if you write ridiculous TOS like that, here's what a reasonable such service should look like."

Enter Kurt.

Kurt has pointed out that there are three key things that every user of a social network deserves -- the kind of things that a social network must have if it is not to alienate its users in the long run.  They aren't that complicated:

• The Right to Informed Decision-Making
• The Right to Control
• The Right to Leave.

Instagram's TOS didn't have any of these -- they aren't even close, and Kurt pointed that out, too.  Instagram responded, but hasn't changed anything yet. 

The one thing I'd observe is that, perhaps surprisingly for professionals in the copyright field, is the degree to which the executives at Instagram probably weren't originally all that aware of their terms of service in the first place.  In the old days, it's startling to realize how frequently the TOS was an afterthought at a startup.  I suspect that Instagram's initial terms deviated significantly from those that a reasonable and prudent attorney familiar with the field would have recommended -- chances are that the drafting "team" was an intern cutting-and-pasting a competitor's TOS into Instagram's HTML.

Enter Facebook, and their (very professional) outside counsel.  Those lawyers like following rules, and they know that the Instagram terms just didn't cut it.  Their clients, locked in a running battle with deep pocketed corporate titans (Apple, Google), want them to push the envelope as far as is reasonably possible, but no further. As those attorneys found out today, that's a tough task when the parameters of the envelope are unknown, and perhaps unknowable. 

People like Kurt drawing attention to issues like this one is a very big part of how we figure out what will be reasonable going forward.  Certainly, it is clear that we should give kudos to EFF -- this is the second day in a row their work is showing up here.  I can't imagine this is the end of the road for the Instagram TOS issue -- this one will crop up again and again -- but I'll certainly be keeping an eye out for Kurt's take, if I want to know what the practical consequences are going to be.