Remember the Facebook  "Beacon" scandal, in which the world's leading social network suddenly began broadcasting purchases made through through other sites, like Amazon, to users' friends?

"Why no, honey, I did not buy a dvd box set of the entire run of CHiPs to watch during your business trip, nor did I purchase $300 worth of virtual animals to populate my Farmville account.  As for the rotary-glide nostril hair trimmers, that must have been someone else with the same name, who's also on your friends list."

It was a serious gaffe on Facebook's part, betraying just how little regard the company has for its users privacy, and the extent to which Facebook is just a marketing machine as intrusive and stupid as any government bureaucracy.  Threats of lawsuits abounded, as did threats to abandon the service in favor of luddite technologies of the past, like email and blogs.

Fortunately, Facebook survived, promising to turn over a new leaf, that in the future users' privacy would be respected.  Although a class action was filed, that case has now settled.  And just as fortunately for Facebook, the Court hearing the class action over the Beacon program has concluded that no one suffered any embarrassment at all.

How else to justify a settlement in which no one, absolutely no one, allegedly harmed by Facebook gets any compensation whatsoever?

Read the settlement order yourself.

Facebook is paying a total of $9.5 million to resolve the case.  Against the agony and expense of a trial, with the attendant embarrassment of testimony from people who really didn't want their friends to know about that Mein Kampf purchase, that's a pretty sweet deal for Facebook.  It's also a pretty sweet deal for the attorneys allegedly representing the plaintiff class, Scott Kamber and David Stampley of KamberLaw, LLC, and Joseph Malley.  Up to $3 million has been set aside for their fees, in an order to be issued later by the court.

As for the allegedly injured parties, the three named plaintiffs will divide $20,000 among themselves.  The remaining $6.5 million will be divided among the thousands of injured Facebook users, compensating them for their humiliation and shame.

Nah, just kidding.  It will actually be spent to establish a "foundation for the study of internet privacy," on which Facebook will have a board seat.  The actual people allegedly harmed by Facebook will receive … nothing.

Zilch.

This sort of settlement, known as cy-pres, in which a big pocket defendant makes a (by its standards) small contribution to a charity which may or may not have anything to do with compensating those actually harmed by the defendant, while the attorneys representing the plaintiffs receive a (by their standards) huge windfall, is becoming increasingly common in class action litigation.  Federal judges, who are supposed to act as gatekeepers looking out for the interests of the class, and protecting the sanctity of the court system by refusing to certify class actions which lack actual merit, increasingly turn a blind eye to their duties, certifying any class, no matter how ridiculous, and signing off on any settlement, no matter how little it does for the people it's allegedly intended to benefit, as long as it gets the damned case off of their desks.

Class actions, as originally conceived, were intended to allow large numbers of people with similar claims, none of whom could afford an attorney on their own, to mass their claims together and receive just compensation.  It's the compensation part that's been forgotten.  Today, as with the Lane v. Facebook case, a class action is all too often just a shakedown, in which attorneys receive a windfall at the expense of a defendant which is only too happy to buy its peace on the cheap, while the alleged clients get little or nothing.

Think of all the notices you've received in which you're told you could get up to $1.25, six months from now, if you fill out a ten page form and mail it, at your own expense, to a PO Box in Washington State.  The cy-pres settlement just cuts out the middleman: you.  You're not going to fill out that form for a buck and change.  But the attorneys who say they represent you are surely going to pocket their share, for hundreds of thousands or millions.

But if we're going to cut out the first middleman, the injured party, and turn class actions into vehicles for pure charity, why not cut out the second middleman: the attorneys?  For all the good that this foundation will do for people harmed by Facebook's alleged wrongdoing (I'd venture none whatsoever), what good did the attorneys representing the class do for their clients?

The federal rules on class actions need to be amended.  Attorneys representing classes should be forced to do their jobs, to put real money in the hand of their clients.  Judges should be required to exercise real oversight of settlements, to ensure that they're not signing off on a shakedown which will only benefit attorneys and "foundations" and other charities which did not suffer an injury, and judges should be required, in cases where the actual injury alleged is as ridiculous as this one, to rule on class certification before considering any settlement.

I wanted to write something about the British government office apologizing to the self-professed Jedi for asking him to remove his hood. But even though the Force is strong with me, there's no way I can write something even nearly as funny as Kevin Underhill did.

I laughed all the way through. I snorted twice. The associates were rolling their eyes in the hallway.

It's time for the Road to Popehat, the feature in which we check out the site logs to see what Google searches brought visitors here, shudder, then go drink tequila straight from the bottle until we achieve the sweet, sweet release of oblivion.

In Spring, a young man's fancy lightly turn to thoughts of love. Or, for those of you who used Google to get here, heavily lurches towards thoughts of freakish fetishes. Here's a sample. Please note I've omitted the especially nauseating, as well as the ones that have tempted me to report IP addresses to the FBI's child porn unit. All of the following are searches that have brought people here in the last 30 days:

Your fetishes run from the strangely specific (gay women of Van Nuys social security office; celebrity men in scarfs [sic]; public penis punishment; explicit vaginal tattoos [query: if you're having your hoo-ha tattooed, does the tattoo really need to be explicit? I mean, couldn't you even accomplish shock and awe with a rainbow or something?]) . . .

. . . to the classic and general (games were [sic] you play wih [sic] boobs) . . .

. . . to the disturbing (big breasted monkeys; printable color pictures of burning boobs . . .

. . . to inquiries regarding koalas, chlamydia, and koalas with chlamydia (that's what I get for writing about free speech in Australia, I guess) (koalas with chlamydia; can you catch chlamydia from koala's [sic] [note: if you use an apostrophe that way, then yes, you probably can]; why shouldn't we get chlamydia [ask the apostrophe guy]) . . .

. . . to the race-to-get-a-trademark-on-that (star wars lesbians) . . .

. . . to queries that may either reflect fetishes or political attitudes, legal conundrums, or efforts to get us to do your homework for you (uc berkeley fuck conservatives; opposing quotes on stachatory [sic] rape laws; which state is it legal marriage [sic] to animals; silly rules for Orthodox Jews to follow).

Fortunately, we still draw visitors concerned with our core issues:

how are are officers disciplined for testifying: That's inaccurate. They're only disciplined for testifying truthfully.

can you sue someone for committing suicide: I think you're going to find the deposition unsatisfying.

why do women like to be treated like shit: Don't worry, she's going to see what a great guy you are and rescue you from the friend zone any day now. Keep acting needy; that works.

how do you do a legitimate question: I'm sorry, we specialize in impertinent questions.

lawyers are assholes: AWESOME assholes, thank you.

Unsurprisingly, I love political boardgames. The excellent 1960 is the gold standard, but it can be a long game, and is definitely complex.The designers of 1960, Jason Matthews and Christian Leonhard, have distilled a lot of the concepts and gameplay of 1960 into their latest game - Campaign Manager 2008.

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I can write what is, all humility aside, the most effing brilliant post about federalism or free speech principles or some arcane point of law that has ever been blogged. It will take me hours of research and writing and thought.

But the traffic and links for that post will never, ever approach what we get for one of my "LOL my kids is funny" posts that took me five minutes of whimsy.

And that, in turn, will never get the traffic that we get every.single.freaking.day. from image search engines just because I labeled a picture of Dora the Explorer as Dora the Explorer in a throwaway post. [God, I hope those searchers are all little kids. Really I do.]

So I've decided that the blog is changing. It's going to be called "My kid kicked me in the nads today", and it's going to be all cloyingly funny kid stories all the time, mostly culled from other people's posts on Facebook. And every post will have a labeled image of a kid's TV character. And of a naked eunuch, that being another preposterously popular image search.

So I'm saying the whole ambiance might change a bit.

I'm expecting my co-bloggers to change with me. Patrick will be expected only to write brilliant and incisive blog posts about deranged litigation and out-of-control public servants to the extent the impact five-year-olds saying clever things. Ezra will be expected only to write about how the imperialist state subjugates the working man to the extent the working man's toddler shat in a Prada handbag or something. David will be expected only to write the worth-waiting-for artistic evaluations of Hummel figurines. Charles may only blog about consumer culture as it pertains to scrapbooking. And the rest may only continue to not blog about approved subjects.

I must admit that I know almost nothing about Australia's Aboriginal peoples. I've had unkind words about a chauvanistic and scientifically questionable attitude towards didgeridoos, but beyond that, I got nada.

But I do know a very small amount about the Australian government's increasingly appalling attitude towards freedom of expression. So it comes as no surprise to me that Australia is threatening foreign bloggers with suit for the crime of being assholes when writing about Aborigines.

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Life with the demonically possessed three-year-old, part 1:

I am awakened at 4:30 a.m. to strange sounds. I investigate. Three-year-old — whose blanket was taken away the night before for various crimes against our tranquility — has (1) defeated "child-proof" door knob on office, (2) dragged heavy high-chair all the way across the house from the dining room to the office and positioned it next to eight-foot cat climbing structure, and (3) scaled high-chair to attempt to retrieve blanket from top of cat climbing structure. Asked what she is doing, responds helpfully "Nothing!"

Part 2:

Upon my waking, three-year-old is found on couch, looking innocent. It appears she has opened the door to the atrium to let the cat out. How nice! Later investigation by wife reveals that three-year-old has actually (1) opened heaving sliding glass door, (2) successfully manipulated key to open locked door to garage, (3) poured out partial container of laundry detergent onto garage floor, (4) inserted car key into wife's minivan and started van sufficiently to play with windshield-wipers, and (5) bored of this, returned to couch to look innocent.

Part 3, from this morning: I am awakened by repeated clicking sound. I get up and find hall bathroom light on. Three-year-old has (1) climbed onto sink, (2) retrieved boxed, sealed children's Motrin from medicine cabinet, (3) removed plastic wrap from box, bottle from box, and tight and strong plastic wrapping from bottle, and (4) is attempting to defeat child-proof cap on bottle. Post-hoc analysis of clicking sound suggests that three-year-old has concluded that cap uses combination lock and is trying various combinations in effort to defeat lock. When confronted and asked what she is doing, three-year-old looks at bottle in hand, carefully places it on counter, then raises both arms to me and says "Daddy, I need to cuddle!" Subsequent protective sweep of bathroom reveals three-year-old has dismantled flush-handle on toilet. I require 15 minutes to determine how to re-assemble it.

Either she's going to grow up to be a brilliant engineer, or she's going to kill us all, possibly in our sleep.

Left: Destroyer of worlds. Right: Drama girl.

Edit: Greetings to our many visitors to this post. If you liked this, you might like my Conversations With Kids series.

In 1988, I watched Jesse Jackson march with students on the Stanford University campus, leading them in a rousing chant of "Hey Hey, Ho Ho, Western Civ Has Got To Go." Jackson was lending his voice to the movement that suggested that Stanford's entry-level Western Civilization track was — well — too Western, too cluttered by the infamous "dead white males" so scorned by the academic Left, too un-inclusive of the works of deep thinkers like Rigoberta Menchu.

At the time, Rev. Jackson was a candidate for the Democratic nomination for President of the United States. Jackson, like or him or hate him, is a master of the highly stylized art of classic oratory and all of its techniques. That year he was up against a field of mush-mouthed mumblers and stumblers who hacked at the English language like a senile grandfather carving the Thanksgiving turkey with a dull knife. Rev. Jackson, the most prominent American critic of the academy's focus on Western culture, was therefore the only Presidential candidate who demonstrated any particular affinity for it. The irony was lost on most of us at the time.

I bring this up because I hear echoes of Jesse's march this week. Are the Lefties at it again? Nope. This time it's the Texas State Board of Education.

I'm sure you've read already about how the Texas State Board of Education, in reviewing the state's social studies curriculum, indulged in open political hackery, voting on what children should learn based on how it advanced their ideological agendas. The Texas Freedom Network's blog had excellent live-blogging coverage of the whole sad affair. One highlight — the Soviet-style un-personing of Thomas Jefferson and the de-emphasis of that un-American movement the Enlightenment:

9:27 – The board is taking up remaining amendments on the high school world history course.

9:30 – Board member Cynthia Dunbar wants to change a standard having students study the impact of Enlightenment ideas on political revolutions from 1750 to the present. She wants to drop the reference to Enlightenment ideas (replacing with “the writings of”) and to Thomas Jefferson. She adds Thomas Aquinas and others. Jefferson’s ideas, she argues, were based on other political philosophers listed in the standards. We don’t buy her argument at all. Board member Bob Craig of Lubbock points out that the curriculum writers clearly wanted to students to study Enlightenment ideas and Jefferson. Could Dunbar’s problem be that Jefferson was a Deist? The board approves the amendment, taking Thomas Jefferson OUT of the world history standards.

. . . .

9:45 – Here’s the amendment Dunbar changed: “explain the impact of Enlightenment ideas from John Locke, Thomas Hobbes, Voltaire, Charles de Montesquieu, Jean Jacques Rousseau, and Thomas Jefferson on political revolutions from 1750 to the present.” Here’s Dunbar’s replacement standard, which passed: “explain the impact of the writings of John Locke, Thomas Hobbes, Voltaire, Charles de Montesquieu, Jean Jacques Rousseau, Thomas Aquinas, John Calvin and Sir William Blackstone.” Not only does Dunbar’s amendment completely change the thrust of the standard. It also appalling drops one of the most influential political philosophers in American history — Thomas Jefferson.

Note also how the Board eliminated words because their political opponents had used those words in a nasty tone of voice:

12:04 – The current standards draft currently refer to the economic system that exists in the United States as “free enterprise (capitalist, free market).” Mercer offers an amendment to strike out “(capitalist, free market)” in the standards and leave just “free enterprise.” The board’s far-right members have repeatedly complained (absurd) that “capitalism” is a negative term and, in any case, that state statute requires students to learn about the “free enterprise system.” Scholars on the curriculum teams had argued that “capitalism” and “free market” are commonly used terms in economics courses and everyday discourse. But Mercer and his allies on the board have this bizarre fetish with the words “free enterprise” over all others. Terri Leo: “I do think words mean things. . . . I see no reason, frankly, to compromise with liberal professors from academia.” The woman is shameless. How dare she attack someone whose politics she doesn’t even know.

12:08 – Pat Hardy notes that the scholar who recommended that “capitalism” and “free market” be used in the standards teaches at Texas A&M and is a Republican. He is “not some kind of crazy liberal,” she says.

12:11 – One is tempted to climb to the top of the Texas Education Agency building and shout: “These people have lost their minds.”

12:12 – Pat Hardy is calling out the board for its silliness and the suggestion that “capitalism” is a “nasty word.”

12:13 – Ken Mercer: I think capitalism is a good word, but academics don’t. Really? And where does he get that? This is a classic example of how some board members attack and smear without any facts.

12:15 – Guess what? It passes. The Texas State Board of Education has stricken from the standards references to “capitalism” and “free market” because the board’s right-wingers think “capitalism” is a negative term. The only permitted term for such an economic system will be “free enterprise.” We wouldn’t believe this if we hadn’t just watched it happen. This is so stupid it makes our head hurt.

Is watching such blood sausage being made ugly and nauseating? Yes. But is this politicization of knowledge the sole province of the Right? No. And the commentators who are harping on this incident are deluded or dishonest to suggest that it is.

What happened before the Texas State Board of Education is appalling. But to the lefties of academia who are particularly incensed, I must paraphrase the pothead kid from the anti-drug advertisements: they learned it by watching you, okay? They learned it by watching you. The academic left has contributed at least equally to the crass politicization of education, knowledge, and epistemology. The scorn you see on the Texas board towards wrong-thinkers like Jefferson is just the Left's sneer of "dead white males" repackaged and re-spun for modern conservative tastes. The lefty tropes of the sixties through the eighties — that a biased educational system has suppressed the truth about the groups we sympathize with in favor of the groups we don't like — have been adroitly scooped up and brought to bear from the right.

So, go ahead and condemn the Texas State Board of Education. I do. But if you pretend that it's a problem of the Right, as opposed to a universal problem when the self-important and politically inclined are let lose on curricula, then you're part of the problem.

Bank of America sued for wrongful seizure of parrot.

Ok, it sounds like a funny lawsuit story, but consider what Angela Ianelli alleges:

Her lawsuit alleges that a contractor working for the bank broke into her home near Pittsburgh, changed the locks, cut off the utilities, damaged the floors, poured antifreeze down sinks and toilets, and "stole" the parrot.

Why the scare quotes? If one takes another person's parrot without permission, that's theft. If one takes the parrot from that person's house, it's burglary.

Bank of America has admitted wrongdoing, saying a clerical error meant the debt collector was wrongly told that Ms Iannelli's home was empty, that she was in default on her mortgage, and that it should be repossessed.

In fact, Ms Iannelli, who owns a local diner, still lived at the address. Records show she'd missed one mortgage payment, but that the debt was quickly settled, a couple of days after the due date.

If a natural person entered Ms. Ianelli's home, tore up her floors, poured anti-freeze down her sink, and stole her belongings, he'd quickly become a felon.

When Ms Iannelli rang Bank of America, they first denied knowing where the parrot was, and then told her she could drive to the offices of the contractor, 80 miles away, to retrieve the bird herself. Call-centre workers later told her they were "tired" of hearing from her, advised her to seek help from the police, and hung up. Bank of America has now apologised, saying it is conducting a review and has "zero tolerance for that kind of error".

Right. Bank of America has "zero tolerance" for rude, incompetent call center drones who slough off complaints from customers even when the complaints aren't as seemingly ridiculous as a parrot abduction. Bank of America has "zero tolerance" for home invasion by its asshat collection contractors. Bank of America has "zero tolerance" for computer error putting honest citizens through Kafkaesque nightmares as bad as anything the government does on its worst days.

Critics of the Supreme Court's recent Citizens United v. FEC decision were wrong on the law, but they had a point. If corporations wish to be treated as people, we should go all the way. Bank of America shouldn't just pay Ms. Ianelli damages. If Ken Lewis, who was chair of BOA when this outrage occurred, or the head of Bank of America's recovery division, faced jail for burglarizing Ms. Ianelli's home and kidnapping her parrot Bank of America would go a long way toward actualizing itself as a person.

There are days when I crave erudite discussion.

But there are days when I'm just in the mood to laugh and point at WHAARGARBL.

Today is one of the WHAARGARBL days. So I said to myself, "Self, you old so-and-so, where can we go for some quality panty-bunching? What topic will provoke the socially marginal, the fecklessly noisy, the Internet Tough Guy, and every other subset of digital twerp into a paroxysm of spittle-flecked rage?"

Thank God for swarthy babies.

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A while ago, Patrick recommended a book to me. The Life of Potemkin by Simon Montefiore. It's excellent. As I was reading, a line jumped out at me. I thought that if everyone saw this line, they would almost have to go out & read the book. Keep in mind, there is almost no context for this sentence in the book. It's just that good.

"Later Potemkin was to introduce a badly behaved monkey."

As long as we're piling on stupid protesters today:

U-Dub might want to take a close look at their remedial English program.

They're geniuses compared to some people.

Mao Zedong had gay people shot or put into concentration camps.

Let's get this straight from the start: I'm in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I'm just not convinced that federalizing libel law is the right way to go about it.

Last week Marc Randazza touted Congressman Steve Cohen (D-TN)'s Citizen Participation Act, a federal anti-SLAPP statute. It's been boosted elsewhere as well. Randazza is absolutely the cat's ass on First Amendment issues — he has more fun than should be legal eviscerating opponents of free speech. I was happy to hear his call to make March "National SLAPP month," and remain happy even after Patrick explained to me that it doesn't mean I actually get to hit anyone. But I'm not entirely with Marc on Rep. Cohen's bill.

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Via Game Politics comes news of a bill introduced in the Rhode Island Senate, and strongly backed by such "it's all for the children" censors as the Parents Television Council, which would make it a crime to sell a violent videogame (in this case one rated "M" (mature) or "AO" (adults only) by the Entertainment Software Rating Board) to a person under the age of 18.

The bill, sponsored by Senators Frank Ciccone, Paul Jabour, Beatrice Lanzi, and Michael McCaffrey (all Democrats) is utterly and blatantly unconstitutional for reasons which should be obvious.  But in case they aren't, here's a quick rundown of the law:

Restraint of artistic speech (and videogames, like movies and books, are considered art and speech) is prima facie unconstitutional unless the speech is considered "obscene," that is prurient, offensive to community standards, and having absolutely no redeeming artistic value.  This presumption applies, with some caveats, even to laws which make it a crime to show or disseminate offensive material to minors, which is why no state makes it a crime to admit a minor to an R-rated movie.

In fact, just this week an Indiana prosecutor who threatened to prosecute the people who run those "red box" dvd rental kiosks for offering R-rated movies to anyone who could pay backed down from his threats, evidently concluding that he would be made a national laughingstock if he went further.

Yet this bill would do just that.  It would make the State of Rhode Island a national laughingstock, more so than it already is.  Another rason the bill is problematic, that is to say unconstitutional, is that it makes the ESRB, a voluntary trade association with no governing power whatsoever, the sole arbiter of what is and is not a crime in Rhode Island.  Just because some prude at ESRB considers Headshot II: the Columbine Simulator offensive, doesn't make it obscene.  Rhode Island would not only be violating the First Amendment; It would be unconstitutionally delegating sovereign power to a private corporation.

Just how misguided is this bill, constitutionally speaking?  It's so unconstitutional that even Jack Thompson, the disbarred crank Florida lawyer famous for his anti-videogame crusades (and sending gay porn to federal judges, agrees with me:

On December 11, 2005, about a similar federal bill which never passed Congress, Thompson wrote:

Sen. Hillary Rodham Clinton recently introduced her "Family Entertainment Protection Act" in a purported attempt to ban the sale of M-rated games to minors. Will it work? Not a chance.

Clinton's FEPA, as proposed, is completely unconstitutional.

U.S. law is clear: A private-sector standard for rating entertainment products cannot be enforced by the government. This has been settled constitutional law for decades.

Yet this is precisely what Clinton's bill would do. It seeks to convert the industry's Entertainment Software Rating Board (ESRB) game ratings into the law of the land.  Such an approach has been unconstitutional since local communities in the early 1900s created private-sector "obscenity councils" in an attempt to dictate to state juries which books were "obscene."

It wasn't constitutional then, and it isn't constitutional now.

The mistake that various states have made in formulating a governmental standard for games has been to vaguely define how much and what kind of sex and violence can be in interactive media sold to minors. Such an approach utterly fails on constitutional "vagueness" grounds. I've been in those legislative fights that wind up in the courts. I've been paying attention.

[Source: Fort Worth Star Telegram, December 11, 2005, "What Kind of Game is Hillary Clinton Playing?", not available for free online, archive purchased by me and excerpted as fair use for its value as political commentary from a respected scholar of the First Amendment.]

Rhode Island's Senate has achieved what we thought could never be done:  They've made Jack Thompson look like a thoughtful and judicious defender of free speech.