Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)

As an initial note, Twitter's decision is entirely defensible and I thought Twitter (and its General Counsel Alexander Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there. What was striking about this story was how it played out in the media. In particular the muddled nature of the media narrative that followed this story.

What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):

Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.

Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:

Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.

There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):

some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."

(??) It's strange that the stories all described the key decision in question in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, depending on how Twitter's policy is implemented, there are ways around the blocking of content even in the local jurisdiction.)

Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):

Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

From what I gather, Twitter's blocking policy will be implemented on a case by case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.

Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case by case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.

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Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep? Either way, I thought most of the stories were fundamentally lacking.

As for how the people on Twitter themselves reacted to the story, that's a depressing one. Take a cruise through the #twitterblackout hashtag and see for yourself.

[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."]

Other posts worth checking out:

• Twitter's initial blog post which wasn't crystal clear on the issue: "Tweets still must flow."
• Lauren Weinstein: "Twitter's censorship muddle."

This has been simmering around for like six months and I have to get it off my chest.

Is there a controller for National Days? Any sort of registry? Any process through which you have a National Day certified?  Is there any sort of regulation of "National Days"?  Should there be?

I ask because (probably owing to my time spent on Twitter) I've noticed that there's a "national day" for everything. I'm not taking about holidays, or days honoring a particular country's independence. I'm talking about things like National Donut Day, National Hugging Day, National Peanut Butter day, and National Day of Unplugging.

Do people just make up their own National Days and put up a website? Is it usually a commercial event?

I'm mildly curious.

BTW: on a related note, Happy National Compliment Day (You. Are. So. Awesome!). This National Day is my personal favorite and yielded a new rallying cry.  YASAAAAAA! (h/t @LilyJang)

I don't know whether lawyers "should" use Pinterest. I don't know whether lawyers should use Instagram. I don't know whether lawyers should use Google+. I don't know whether lawyers should use Foursquare.

Why are people asking these questions? Why are people answering these questions? There are lawyers out there who are doing good work. Being hungry. Being ethical, zealous, and responsive. Helping people. Advancing causes. Mentoring other lawyers. Doing interesting things with their lives outside of lawyering.

Do you really want to be one of those lawyers who spends their time worrying about whether "lawyers should use Pinterest?"

My first podcast, with Mike Reitz of the Supreme Court of Washington Blog (published by the Freedom Foundation): "Honk if you love free speech."

I've never done a podcast before, and Mike was a great host. We talked about State v. Immelt, a case where the Washington State Supreme Court struck down a Snohomish County noise ordinance which prohibits horn honking except when the honking is done for public safety or as part of a public event.

Check out the podcast here. Also, check out the excellent Supreme Court of Washington blog. It's a great resource for following the Washington State Supreme Court.

Of course, you can also follow Mike on Twitter.

I posted some time back about lawyers and iPads ("What is the 'iPad for Lawyers' Crowd Smoking?"). At Simple Justice I see that the debate continues, and Scott mentions some back and forth that took place on Twitter. ("The 7 "P's" and the iPad").  (See the kind of stuff you miss out on if you aren't on Twitter?)

I'm over this debate. If you are a lawyer or other professional and you're extolling the virtues of having an iPad I can chalk it up to you pushing your pet issue. Maybe you don't like carrying briefcases? Maybe you're one of those people who likes their toys. Who knows? If you are a consultant of some sort, this is more problematic, and borders on negligent.

Anyway, I noticed that someone else chimed in on the whole debate, and it happened to be Paul Ceglia's latest lawyer! Ceglia, who is suing Mark Zuckerberg and claiming a significant ownership interest in Facebook, has been through several lawyers. ("Facebook Claimant Paul Ceglia Gets New Lawyer.") Ceglia's latest lawyer has posted a bunch about the Facebook dispute, but here is one post of his that caught my attention: "Tech Behemoth Facebook's Un-Techy Legal Team."  

Another day another expedited discovery hearing in Ceglia v. Facebook. An amazing sight, which I am sure that Mr. Zuckerberg does not know. Let me paint the scene. I walked in to the courtroom and took my seat with Paul Argentieri, local counsel, and setup my iPad. No pen, no paper, just an iPad2 and some great apps like Goodreader and Evernote. In walks Facebook’s Dream Team. Three lawyers at the table and four other lawyers sitting on the bench behind the three. Seven lawyers and take a guess how many laptops? iPads? Think small. Think zero. An amazing irony today that between a huge law firm and a small town lawyer, the most tech savvy lawyer was NOT the one paid millions by one of the largest tech companies in the world.

I have no idea how Ceglia's lawsuit will turn out. Like most people, I'm skeptical. Also, you raise the skepticism meter as a litigant about a thousand notches when you go through a bunch of lawyers. I did think it was strange that his lawyer knocked Facebook's allegedly untechy legal team, and did so in a post that highlighted the virtues of the iPad! For what it's worth, I wasn't particularly sold on his post (really, he could find documents faster?), but as I said earlier I'm over the debate.

I'm not a fan of talking about law practice consulting (coaching). One reason is that I don't think I've cracked the code on lawyering and I'm thus hesitant to opine on what goes on in the world of lawyer-consulting. I'm also not sure about whether someone needs to be a standout in a particular field in order to coach in it. (My strong instinct is, "yes," but one look at athletic coaches make me rethink this every time.)

However, I've noticed a proliferation of lawyer-coaches out there and I've developed a deep skepticism about their trade in general. While I know I may not have cracked the code, I'm fairly certain that no lawyer-consultant has cracked the code either. You know why? If they had, they would be lawyering and not consulting. Lawyer-consultants will offer up a variety of reasons for why they would rather be consulting than lawyering, but I think it pays to be skeptical of these justifications. The work-life balance justification, the flexibility justification. The modern law practice (at least as the consultants would have you believe) allows you to achieve all of this and still maintain a law practice. Why wouldn't they be doing it? Let's leave aside the question of money (you can easily draw your own conclusions there) but when pressed, lawyer-coaches rarely offer convincing justifications for why they do what they do. There's a final justification that I've seen often raised but I think this deserves to be dismissed this as an outright joke: they're doing it out of a sense of altruism or to improve the profession. Right.

At the end of the day, the minimal requirements to be a lawyer who keeps his or her head above water can be summarized in a few short sentences. I have yet to come across a lawyer who is implementing these strategies (tactics? -- I don't know the difference but I'm sure a consultant will be quick to point out the difference) but who is still struggling. Consider this my own contribution to the well of lawyer-consulting knowledge. If you're a lawyer and you are considering hiring a lawyer-coach, try implementing these strategies first and then come talk to me.

Here are the basic traits* a lawyer needs to survive:

• be diligent
• be zealous (as in, a zealous advocate)
• be highly ethical
• be honest
• be friendly (as in, don't be a jerk)

If you develop these traits and you are still not surviving as a lawyer, drop me a comment. I'm happy to take you out to lunch and offer my consulting services. For free.  (There's a final element which is getting more difficult for young lawyers and that's to gain experience in the field. I doubt a consultant will help you much in this regard, and this is something that has always been a challenge to young lawyers outside the organized firm/collective setting.)

In the three week lag between when I drafted this post and hit publish, I came across an article from author and surgeon Atul Gawande in the New Yorker: "Top Athletes and Singers Have Coaches. Should You?" This is a great article that explores this very question. I urge you to read it if you are interested in this topic. Gawande concludes that it's helpful for surgeons to have coaches so they can continue to develop (it's helpful to have an "outside perspective," he says, even for accomplished musicians, athletes, and even surgeons). Gawande grapples in the article with the question of whether coaches need to be standouts. Regardless of how he resolves the question ("no," he says), you'll notice one thing. The person who he picks to rely on for coaching is no slouch:

a retired general surgeon, whom I trained under during my residency, to see if he might consider the idea. He’s one of the surgeons I most hoped to emulate in my career. His operations were swift without seeming hurried and elegant without seeming showy. He was calm. I never once saw him lose his temper. He had a plan for every circumstance. He had impeccable judgment. And his patients had unusually few complications.

Food for thought. 

* you will notice I did not include "become an expert marketer" on the list. If that's what you are hiring your consultant for, you have a long road ahead of you.

[I should add that mentorship is incredibly important as a lawyer, even for experienced lawyers. But in the legal realm, there's a grand canyon of difference between a mentor and a paid consultant.]

Kevin O'Keefe posts about Klout and provides a sensible take ("Klout for Lawyers: what is it? does it matter?").

Other than if you are interested in snack foods and subway sandwiches, I don't know the answer to the question of whether "Klout really matters." (If you're into free snack foods and subway sandwiches, there's definitely some measurable ROI from Klout.) There's not a whole lot to disagree with in Kevin's post, but what struck me is that a lawyer actually asked Kevin this question. I understand that Kevin is steeped in blogging and the use of media by lawyers and often provides useful information and would very likely have an opinion on this topic, but let's step back for a second. A lawyer actually asked someone whether they should be using Klout?

Lawyers are supposed to be critical, be able to do their due diligence. We may not be whiz marketers, but something like the efficacy of Klout for our own practice should be something we should be able to readily develop an informed opinion on, right? This is the type of thing we're called on to do every day in our practices, whether you are evaluating a case, business transaction, an argument, etc. In the time you email someone to get their opinion on Klout, you could check out Klout's website and figure out what they are about. The next step is to determine whether any of your clients or potential clients use Klout or will care about it. There's a pretty obvious way to do this: ask them! (In fact asking one or two of your clients is probably a better way than reading any number of blog posts to figure out whether Klout is at all relevant to your professional life.)

I understand there may be a variety of opinions on Klout, but seriously people. Let's get it together. Should the legal profession really be having a discussion on whether Klout is useful for lawyers?

There are lots of reasons to fear for the future of the profession, but this definitely makes the list.

Added: I came across this detailed piece from The Time Blawg: "UK Law Firms With Klout -- A Clearer Picture," which takes a look at a 'report' from The Lawyer, a UK publication: "Top firms losing out to upstarts in social media sphere."

The picture looks bleak is about all I can say.

Thanks to Ken Adams who blogs at The Koncise Drafter (f/k/a AdamsDrafting), I tried out Koncision's NDA builder product.

It basically takes you through a questionnaire aimed at the terms for your soon-to-be built non-disclosure agreement. After answering the various questions, the product generates a non-disclosure agreement tailored to your needs. You can then freely edit and use this document.

The product is easy to use and supported by the type of clean and precise drafting language that you would expect from a person such as Ken Adams.

My one very minor qualm is that it basically builds you a robust agreement and doesn't give you a choice to build the scaled back version. (It may have, but it wasn't apparent to me.)  I have mixed feelings on NDAs and some people like them and others think they are useless. (Still others will refuse a meeting with you if you ask them to sign an NDA.) It would be nice to be able to choose between the scaled back/minimalist NDA and the big Kahuna, without having to answer all of the questions. 

Either way, I was impressed with the product. It's intuitive and easy to use and I can see this being useful for in-house counsel or even business folks.  Is this the Susskindian revolution in action? Time will tell. I can see many other agreements being templatized in this way. (Either way, good luck to Koncision. I've always been a fan of Ken's blog and work.)

Added (see Ken's comment below):

If you want a fewer-bells-and-whistles NDA, you would answer "No" to questions addressing issues that are irrelevant. Sure, that means you still have to answer all the questions, but once you're used to the questionnaire, you can zip through it.

And even simpler, if you want to create an NDA that closely resembles one you created previously using Koncision, you can simply relaunch that earlier questionnaire and make the necessary adjustments, thereby avoiding having to redo the entire questionnaire.

More:

from Carolyn Elefant: "How to get a Piece of Ken Adams, Without Paying an Arm or a Leg." 

I have an interest in the legal issues raised by social media, but I wonder if the issues are being overhyped?

I attended a conference last week (where I actually presented on social media legal issues) and I happened to sit in and listen to another panel where the panelists also covered some related issues. Mark Herrmann, ex Drug and Device blogger and currently a columnist at Above The Law (and general counsel at Aon), was talking about social media policies. He pointed to some good resources, but ultimately he raised the question of whether a policy that is tailored specifically to social media really added anything to the mix. He posed the question of whether common sense and whatever existing policies you have in place get you 90% of the way there?  (I'm paraphrasing, but this was what I took away from some of his comments.)

This got me thinking about the tremendous amount of attention that is paid by law bloggers, and the legal and tech media to the legal issues raised by social media. Mark also said something else that resonated--he said that the "blogging echo chamber" tends to disproportionately amplify legal issues related to the internet (and to blogs). This makes sense.  If you are into spelunking as a hobby, you probably get excited to read about and discuss any issues, including legal issues, relating to caves. So it's not surprising that bloggers in general, and law bloggers in particular, get really excited about the legal issues that relate to the internet and to blogs.

For the most part, many of these legal issues will be resolved with reference to traditional rules. There are a few big exceptions obviously, such as the protection afforded to online intermediaries, but apart from these, a legal issue that presents itself in an online context may be novel from a factual standpoint, but the baseline rules are the same. Despite this, we as law bloggers get pretty excited when we see a legal issue that relates to Facebook or Twitter (or, in the old days, MySpace). I'm as guilty as the next person here. I have Lexis alerts set for many of these companies and a big portion of the cases in my blogging queue are cases involving these companies. However, it seems like a chunk of the legal profession seems to use these legal issues as a scare tactic to drum up business from clients and potential clients. I can't tell you how many posts I've seen that follow this formula:

• there's a very cutting edge legal issue out there in the social media space and this presents significant risk for you or your company;
• if you put in place a social media policy you can limit your risk with respect to this issue;
• for further information, call me at xxx-xxx-xxxx -- I'd be more than happy to help draft a policy for you [for a small fee, of course].

The general public has a sense that the social media space is a legal minefield. And the ones who are significantly responsible for this misperception aren't necessarily the old school press or the lawyers who haven't yet joined the blogging and tweeting revolution. This leaves those lawyers who are active online. Are lawyers who blog and tweet actually responsible for this misperception?  I don't know, but my sense is that we're certainly contributing to it (some more than others).

It's also worth stepping back and asking a big picture question of how social media has informed the general public and actually resulted in the dissemination of useful information in a way that will minimize waste with respect to dealing with lawyers. Through the slow and painful embrace of social media by lawyers, have clients become better informed in a way that has allowed them to save money and save dealing with lawyers for the real issues that matter? Have lawyers empowered clients to allow the clients to deal with many of the issues that would otherwise require a phone call or an email to the lawyer? Or have lawyers used the social media bugaboo to try to drum up more business for themselves?  In other words, has social media ushered in the beginnings of a "revolution" that legal industry commentator Richard Susskind predicted or has it had the opposite effect in some ways? I don't know the answers to these questions, but I think it's a question worth asking. There are some interesting things going on such as wikis and drafting tools, and a push to standardize and templatize (and make paperless) certain contracts and transactions, but I don't see this much when it comes to social media. I don't get the sense that the general public has become well informed as to the true risks (if any) from using social media.

[While you are at it, take this survey about the "Impact of Social Media on Access to Legal Information" (via Scott Greenfield).]

Bubbles are bad, unless you happen to be a kid playing with those soap bubbles you blow. They have a bad connotation in the economic context. Most often they are used to describe someone whose views are limited. 'Living in a bubble' is the equivalent of wearing rose colored glasses. It's like having a fundamental block or a screen that prevents you from seeing the relationship of your day-to-day actions to the overall scheme of life.

I'm convinced that people can and do develop bubbles online. The social network or website where you most spend your time. It's probably a bubble. (That bubble for me, happens to be Twitter.  Specifically, the group of people I follow and interact with on Twitter.) There's this view that online networks open you to connections in far flung regions of the world and subcultures that you would not otherwise experience offline. Therefore, interacting online presents less of a danger of the bubble. This seems like the exception to me. For the most part, you form a network online like you do offline, and you filter the information you take in through this network. I'm tempted to say that if your network is good, there's no real downside of having this filter, but my instinct is that this is wrong. It does not matter what your network consists of. A bubble is a bubble, and if you fall prey to it, it results in myopia. It does not matter if your network consists of tattoo artists, punk rock musicians, bloggers, Fortune 500 CEOs, entrepreneurs, marketers, multi-millionaires, high powered lawyers, or politicians. You may think you have carefully selected and curated your own eclectic and varied mix of online friends, but I'm really skeptical that this somehow negates the effects of the bubble. Virtually every single person I've observed and interacted with online (and in real life) has this bubble. I think the problem is that we're lulled into a false sense of security into thinking that since we're interacting online, the serendipity of online interactions will somehow save us from this bubble or negate its effects. I'm not so sure this is the case. (I posted a ways back about Journalists and the social media bubble: "Social Media and Journalism - Downsides?")

In thinking about the effects of the online bubble, I mostly considered the ever-narrowing influences of one's online friends. I did not think at all about the effect of another participant in this interaction - the social networking service itself. Google, Facebook, and others are increasingly interested in "personalizing" your online experience. The obvious reason is that the more personal the experience is, and the more targeted it is, the more the network could charge an advertiser. But what is the unconscious effect on the users of the network? Are we even aware that our bubble is being tweaked by the likes of Google or Facebook? We may be aware on a general level that the algorithms of Google or Facebook result in slight changes to our online experience and what we see and read, and who we interact with, but I doubt this is something any of us thinks about on a day to day basis when we spend increasing amounts of time online. 

Eli Pariser has come out with a new book which delves into the effects of this: "The Filter Bubble." I just picked up the book and I'm very excited to read it. In the meantime, check out Pariser's TED Talk - this is really interesting and important stuff (h/t @rocketmatter):