Barely Legally

Confessions of a Moot Court Bailiff

Fourteen Zeros

Here’s a provocative title from the usually sober Ars Technica: Secret Source Code Pronounces You Guilty As Charged:

Secret code now has infiltrated the criminal justice system. The latest challenge to it concerns a handyman and a convicted sex offender named Martell Chubbs, now accused of a 1977 Long Beach, California murder. Local police were investigating cold cases and arrested Chubbs after DNA taken from the crime scene long ago matched a sample in a national criminal database, the authorities said.

A private company called Sorenson Forensics, testing vaginal swabs from the victim, concluded that the frequency in the profile occurrence in the general population was one in approximately 10,000 for African Americans. The same sample, when examined by Cybergenetics at the company’s Pittsburgh lab, concluded that the DNA match between the vaginal sperm sample and Chubbs is “1.62 quintillion times more probable than a coincidental match to an unrelated Black person,” according to court records.

Okay, both of those sound like slam dunks, right? What’s the problem with the Cybergenetics analysis if Chubbs is screwed either way?

Well, let’s back up a bit. What exactly do those numbers mean? They’re the likelihood of some random person with the same DNA profile as the person who left their DNA at the crime scene. Take Sorenson’s one in ten thousand number. It doesn’t mean there are 10,000 to 1 odds that Chubbs did it: that’s the prosecutor’s fallacy talking. It also doesn’t mean that if there are 20 million black men in America, that there are 20,000 people whose DNA would match the killer’s, so there’s only a 1 in 20,000 chance that Chubbs is the killer. That’s the defense attorney’s fallacy.

Published in Legal Theory on

Consider the Source

Volkswagen’s diesel cars aren’t nearly as fuel-efficient as the company claimed for the last decade or so. The New York Times talked with Eben Moglen, who’s been evangelizing open-source software for several centuries, and he points out that this scandal could have been discovered before it started if not for closed-source software:

“Software is in everything,” [Moglen] said, citing airplanes, medical devices and cars, much of it proprietary and thus invisible. “We shouldn’t use it for purposes that could conceivably cause harm, like running personal computers, let alone should we use it for things like anti-lock brakes or throttle control in automobiles.” […] “If Volkswagen knew that every customer who buys a vehicle would have a right to read the source code of all the software in the vehicle, they would never even consider the cheat, because the certainty of getting caught would terrify them.”

Moglen’s definitely not wrong, though I wouldn’t hold my breath on the “open-source software in anti-lock brakes” bit. I think the fact that it’s a felony to tinker with your car’s software is absurd, and that it’s impossible to actually regulate the functioning of closed-source software. But Volkswagen didn’t trick the E.P.A. with closed-source software.

From the Times article again:

When the test was done and the car was on the road, the pollution controls shut off automatically, apparently giving the car more pep, better fuel mileage or both, but letting it spew up to 35 times the legal limit of nitrogen oxide. This cheating was not discovered by the E.P.A., which sets emissions standards but tests only 10 to 15 percent of new cars annually, relying instead on “self certification” by auto manufacturers.

Federal regulators and their European counterparts were bamboozled because the car companies were the ones doing the testing. That’s beyond ridiculous. Think of Volkswagen like a student who got ahold of the answer key and spent all night memorizing the answers to the final exam, only to be asked to grade his own test paper and report his grade to the teacher.

What Volkswagen did was pretty awful, but it’s not surprising. If Volkswagen’s engines pollute too much, they don’t get to sell cars in America. That’s objectively a good thing; I rather enjoy that cars are under strict(?) regulations on the amount of poisonous material they can produce. But if you have those kinds of stakes and then let companies grade their own performance, they’re going to cheat. Full stop.

If we’re being honest, the idea that the E.P.A didn’t have the resources to check the math itself is the really insane part. Open-sourcing Volkswagen’s software would have been an instant fix for this, but regardless of whether that happens, the E.P.A should absolutely be able to afford to drive a car around in circles and measure what comes out of the tailpipe.

Published in This Doesn’t Add Up on

Probably Predatory

Marco Arment changed the pricing model for his podcast app Overcast last week. Previously, the app was ‘try a bit of it for free, but get all the good features after paying $5.’ Now, it’s ‘all the good stuff is free, but you can donate some money if you want.’ Michael Anderson pointed out that this was a somewhat predatory pricing model, on account of how he sells his app… for free. Arment countered that anybody could make their app free (plus donations), that nobody is entitled to keep their market share, and that other people are copying Overcast’s features to use in their own apps.

There are a few problems with those points, and Samantha Bielefeld wrote about them rather expertly:

The idea that any app developer can witness Marco’s attempt at a different business model, and employ the idea in their own app offering, is true. Anybody can try this model if they wish, the difference is that hardly any other developers will. We are all keenly aware of the publicity surrounding Marco, and the influence he has over the entire industry. From his ground floor involvement in Tumblr (for which he is now a millionaire), to the creation and sale of a wildly successful app called Instapaper, he has become a household name in technology minded circles.

It is this extensive time spent in the spotlight, the huge following on Twitter, and dedicated listeners of his weekly aired Accidental Tech Podcast, that has granted him the freedom to break from seeking revenue in more traditional manners. The success I would see by releasing a music album stating, “pay what you feel my talent is worth”, would pale in comparision to when Radiohead does so.

Arment’s “pragmatic” pricing model reminds me of Taylor Swift’s essay in the Wall Street Journal last summer. She wrote that people will definitely pay artists because art is important and it’s important because it’s rare. She was wrong on one count: music isn’t a scarce resource. Anyone with an email address can sign up for Spotify and start streaming 20 million songs instantly. That’s more than a hundred years of music. You could start listening from the moment you were born until the day you died and never hear the same song twice.

But Swift was absolutely correct on another count. As Nilay Patel noted, Taylor Swift is a very scarce resource.

“In the future, artists will get record deals because they have fans — not the other way around,” writes Taylor. We’re in that future now; that’s where Justin Bieber came from. […] But hitting that tipping point is almost impossible for the vast majority of artists working today, and their inability to actually sell music means they have to sell other things — and making all those other things means they’ll have less time and money to put into making their music. It’s a vicious cycle, and it means that being Taylor Swift is perhaps more valuable than Taylor Swift’s music.

Now sure, Swift was arguing that her music shouldn’t be available for free, and Arment is arguing that everyone can give away their app for free (plus donations). Also, I’m willing to bet she’s a better singer than he is, and that he’s a better coder, etc. But they’re both gigantic brands in their respective fields.

Sure, nothing was special about Arment ten years ago. He was working hard like everyone else was working hard. But he was lucky enough to hit that tipping point working at a startup a long time ago, and now he’s in a position that most developers aren’t. Like Bielefeld said, Radiohead can make a lot more money selling an album for free (plus donations) than you or I can. Arment, Swift, and Radiohead worked very hard and got very lucky. Because of that work and luck, they can take risks that other folks can’t: like giving away your stuff for free and asking for donations.

Those risks have different externalities for musicians than they do for mobile app developers. There’s room for more than one band on my phone, but there’s not really room for more than one podcast app on my phone. Radiohead isn’t putting Taylor Swift out of business by giving their album away for free (plus donations). Arment’s price point is a tough one to beat for developers who aren’t as famous as he is, with the brand he has.

It’s bizarre to watch people like Arment reach their dreams and achieve so much, but still feel like they’re the little guy just doing little guy stuff. He’s famous now. He has his own category on Business Insider, for Pete’s sake. I know they’re not exactly the Wall Street Journal; they’re more like the Huffington Post of business journalism but haha oh wait he has a category there, too.

Congratulations. You’re not the underdog.

Published in Disrupt Everything on

Bird Law 101

Here’s one that didn’t make it through my queue this summer. Gordy Megroz writing for Bloomberg Business about the cutting edge of… sports drinks:

[Physiologist Allen] Lim worked much of the last decade for the Slipstream cycling team (now the Cannondale-Garmin Pro team) as its riders competed in the Tour de France. His job was to ensure the 25 cyclists were getting proper training, food, and liquids. “But their guts hurt,” he says. “They were throwing up and getting cramps.” He traced the issue back to the squad’s go-to drink, a popular brand he won’t disclose. He tested every other option on the market, all of which caused similar issues. “We tried cutting them with water,” he says. “But then they weren’t getting enough salt. So we added Alka-Seltzer tablets, which made it taste gross.”

Then he started experimenting with homemade concoctions. He tested those on the team’s top athletes, including Bradley Wiggins, who would go on to win the 2012 Tour. After a year of trial and error, the formula started working well, and cyclists from other teams began to ask for the secret swill, too. “I completely avoided our team sponsor’s drink and would sneak Allen’s into my water bottles,” says Ted King, a professional cyclist.

Yeah, sure, it’s a story about professional athletes. Didn’t we just have one of those, Dominic? Big deal; these guys are drinking some sugar water so they can Sport harder. It’s mildly interesting, but there’s nothing here to-

Shhhh. Shhh shhhh. Here’s the fun bit. How did this fellow decide whether to sell his business to a competitor? How far did Mr. Lim follow his dream, and what did he get for it? What Profound Universal Business Wisdom will Bloomberg Goddamn Business pour into your eye holes from the screen you hold in your hand?

At first, Lim made the product only for athletes who asked. Then, in 2010, sports drink company FRS—which sponsored Lance Armstrong at the time—offered to buy Lim out. As he mulled over the contract, a bird flew by and pooped on it. “I took that as an omen,” he says.

It’s like my law professor used to say: contractus cum avis excretim sit malus contractus. That’s just bird law 101.

Published in Jest, Mostly on

The Tailpipe Blues

Bertell Schmitt at the automotive blog Daily Kanban writes about a bizarre twist in emissions testing. As it turns out, cars have essentially been lying to regulators about their fuel efficiency and the amount of pollutants they spew into the air. Volkswagen is about to recall a half-million cars:

The EPA was righteously appalled to find out that Volkswagen diesel “cars contained software that turns off emissions controls when driving normally and turns them on when the car is undergoing an emissions test,” as enforcement officer Cynthia Giles told reporters. OMG, really? How naïve can they be? Defeat devices are as old as emission controls. When computers entered cars some 40 years ago, they soon more or less routinely contained software that turned a car into a clean kitten when on the dyno, and into a pig when on the road. Cheater 1.0 saw that only one axle was turning, and deduced that the car was sitting on a dyno. […]

Cheating became so prevalent that a “Prohibition of defeat devices” entered the U.S. books in 2007. The rules also say that the EPA “may test or require testing on any vehicle at a designated location, using driving cycles and conditions that may reasonably be expected to be encountered in normal operation and use, for the purposes of investigating a potential defeat device.” It may, but it didn’t.

So the EPA never would have found out if it weren’t for the ingenious sleuthing performed by some watchdogs. What brilliant feats of reverse-engineering did they perform? What arcane rituals did they perform upon these Damned Cars to glean such profound insights into the oiled heart of these steely beasts?

Finally, a little known group, the International Council on Clean Transportation, did what should have been obvious: Stick a probe into the exhaust pipe, and actually drive the car around the country. In this real world test, “the Jetta exceeded the U.S. nitrogen oxide emissions standard by 15 to 35 times. The Passat was 5 to 20 times the standard,” says Bloomberg. The EPA opened an investigation into Volkswagen more than a year ago. Finally, Volkswagen admitted to be using a defeat device, if they wouldn’t have confessed, the EPA still would be sitting in the dark.

They… drove it. They drove it around and looked at what came out of the exhaust pipe.

That’s some fine regulating, EPA. Real fine.

Update Sep. 22, 2015: Volkswagen was off by a factor of 20. Not just with their emissions, but with the number of cars affected. It’s not half a million, it’s eleven million cars.

Published in This Doesn’t Add Up on

It’s a No-Brainer

So here’s a new thing from Frontline: just about everyone who plays football walks away from the sport with brain damage.

A total of 87 out of 91 former NFL players have tested positive for the brain disease at the center of the debate over concussions in football, according to new figures from the nation’s largest brain bank focused on the study of traumatic head injury.

Researchers with the Department of Veterans Affairs and Boston University have now identified the degenerative disease known as chronic traumatic encephalopathy, or CTE, in 96 percent of NFL players that they’ve examined and in 79 percent of all football players. The disease is widely believed to stem from repetitive trauma to the head, and can lead to conditions such as memory loss, depression and dementia.

There’s really no disputing the fact that the sport kills the people that play it; not just some of them and not just the ones that play professionally. It’s hard to enjoy the sport when you’re really just watching young men die in slow motion.

On the other hand: it’s a free country. If some people want to trade their shot at old age for a shot at a life as a professional athlete, there are worse ways to go. Sure, statistically, I’ll live to be 80 years old. But I’ll never be on a Wheaties box, no matter how wildly successful this whole law blog thing becomes. That’s an acceptable tradeoff to me, but other folks might want to go for the glory. To each their own.

Let’s not pretend that this is a simple transaction. Consider the source: I’m awfully privileged. I came from a socioeconomic background that left me with a lot more career options than “get paid to turn my brain into mush.” There are thousands and thousands of poor kids from small towns and inner cities that just won’t have the same embarrassing richness of options that I did. That changes the calculus – a lot.

we can’t have nice things

It still might be worth the tradeoff. But we can’t have a real conversation about this stuff because the NFL is reluctant to admit or speak openly about the way its sport kills folks. They’ve been sandbagging this conversation for years. From the same Frontline story:

From 2003 to 2009, for example, the NFL’s now disbanded Mild Traumatic Brain Injury Committee concluded in a series of scientific papers that “no NFL player” had experienced chronic brain damage from repeat concussions, and that “Professional football players do not sustain frequent repetitive blows to the brain on a regular basis.”

I’d have a lot more respect for their position as ‘merchants of brain death’ if they would just own up to it. The league should admit that the sport is disastrous for the people who play it, so the athletes could understand what they’re getting themselves into.

It’s hard to believe the NFL will ever do that. They display tremendous apathy toward more than just their athletes’ health. The vast majority of players are bankrupt a few years after they retire. Most careers last three to six years, depending on who you ask. Even if the league can’t keep the players from destroying their brains, it could at least get them a financial planner. Their families would appreciate it later.

Published in It’s Nerf or Neck Brace on