By Any Other Name, It Would Taste as Sweet

It’s almost amusing.  Actually, it is amusing.  If Larry Page and Sergey Brin had not decided in 1997 to rename their now-famous search engine at Stanford University, it is entirely possible that much of our dialogue about the Internet would be filled with strange innuendo.  Imagine a friend is curious about some topic or other.  But for that change in name, you might be telling him, “Oh, I don’t know.  Just backrub it.” 

Which name is the better one, Google or Backrub?  “Backrub” was descriptive in a way.  The innovation of the search engine that we now call Google was that it ranked the importance of search results according to the number of backlinks that a web page had.  It was a different approach than most other search engines at the time used. 

We are probably no worse off today because of the name change.  Indeed we are probably better off, with Google being considered by some to be one of the best company names.  It takes only a quick backrub of the Internet — perhaps that does not sound so awful after all — to come up with many companies who have changed their names to avoid negative connotations with their name.  Yahoo! is surely much better than the far-too-parochial Jerry’s Guide to the World Wide Web.  And people are still not entirely sure whether KFC adopted that name in 1999 to avoid connections with “Kentucky” (the state by that name trademarked its name and introduced substantial licensing fees), “Fried” (the company did not want its food products to seem totally unhealthy), or “Chicken” (government regulators were pressuring the company about its livestock practices). 

But when does renaming something cross the line into becoming deceptive?  In the last several years, high fructose corn syrup has been increasingly disparaged.  It is found in many processed foods, most notably in soft drinks but also in soups, lunch meats, breads, cereals, condiments, and may others.  It has been blamed for the high levels of obesity in the United States and as a contributor to a number of health issues.

The name “high fructose corn syrup” is essentially an accurate description.  Derived from corn, this sweetener comes in a number of different varieties, all of which have a mixture of fructose and glucose.  The most widely used variety, HFCS 55 has about 55% fructose and 42% glucose as compared with about equal amounts of fructose and glucose in sucrose (sugar).  Critics point to the different metabolic pathways of fructose and glucose in the body, namely that fructose consumption does not result in the body’s production of leptin, which is an important substance in signalling the brain to stop sending hunger signals.  It is fair to say, though, that there is a lack of consensus on the full impact of sucrose versus high fructose corn syrup consumption. 

The Corn Refiners Association takes the view that both high fructose corn syrup and sucrose have “similar” glucose-to-fructose ratios, and that those ratios are similar to the ratios found in natural fruits and vegetables.  Responding to advice from many quarters to reduce consumption of high fructose corn syrup, the Association petitioned the Food and Drug Administration (“FDA”) in September to change the name.  “Corn sugar” is the name they prefer and believe it remains free of an unjustified stigma.  Their views can be be found here

There can be no doubt that in petitioning for a name change the corn industry is responding to criticisms about consumption levels of high fructose corn syrup.  What is really at issue is whether changing the name is intended to be helpful in giving the public accurate information or is intended to be deceptive. 

One name change that the Association points to in making its case to the FDA is the FDA’s approval in 2000 to rename prunes as “dried plums.”  That action was initiated by the California Prune Board, which asserted that the public associated negative imagery with the name “prunes.”  Indeed, after approval by the FDA, the Board itself was renamed and is now the California Dried Plum Board, still active in promoting the value of prunes, no matter what they call them. 

The comparison that the corn industry wishes to make strikes me as a weak one, though.  While the word “prune” does sound decidedly less palatable than “dried plum,” allegations of unhealthiness of the product were not part of the motivation for seeking a name change.  And the purchase of prunes is made in a very different way than the purchase of high fructose corn syrup.  Someone purchasing prunes knows exactly what they are buying, but no one really goes to the grocery store to pick up some high fructose corn syrup — it’s just there, so ubiquitously present that those who wish to avoid consuming it need to expend some fair effort in finding products that do not contain it. 

Consumers deserve to know what they are buying and deserve to have useful information so they can decide for themselves what they wish to consume.  This is true even if the scientific research about the health effects of products is unclear.  It is even true if people are being irrational about what they choose to consume.  It is, after all, their bodies and their responsibility to inform themselves about the health effects of what they eat.  The precise contours of the corn industry’s motivation in seeking a name change thus need to be an essential part of the FDA’s deliberations. 

It will be some time before the FDA reaches a decision.  In the meantime, documents filed in connection with the petition, including comments from the public, can be found here.  It is worth emphasizing the importance of these public comments, which very often have a real impact on the decisions reached by government agencies.

The Right Most Valued

As you prepare to head off on vacation, you run through the list you have diligently prepared to make sure you haven’t forgotten anything.  Clothes for all kinds of weather, something nice to wear when you find a good restaurant, toiletries, and so on.  You check that the water is turned off, that you have left detailed notes for the petsitter, that your mobile phone is charged.  And, these days, you check for compliance with security restrictions:  that you haven’t accidentally put your eyedrops in your carryon bag, that all your liquids are in tiny bottles, that they are neatly packed in a quart-sized bag. 

At the airport, things do not go quite as well as you expect.  You’re standing in the security line, watching your shoes, your jacket, your sweater, your jewellery going through the x-ray scanner as men acting under the authority of the government scan you with detectors, examine your identification, look for telltale signs of nervousness.  Perhaps they even profile you based on the clothing you wear, the shade of your skin, and your age, even though they never admit it. 

One of them comes over to you as you move to retrieve your things from the plastic bins.  He asks you, “Are these your items?”  You’re uncertain why he’s asking but you acknowledge that they are.  “Do you have anything in your bag that you’re not supposed to,” he asks.  You say you don’t, but why is he asking?  He holds up a vial containing white powder.  “Did this come out of your bag?”  You can feel your palms turn sweaty and a lump forms in your throat.  Your voice cracks a bit when you say no, making you worry that it’s all going to make him more suspicious.  His face is serious, accusing.  “Are you sure?” 

It is only after he has frightened you that he confesses it’s just a joke. 

Too funny. 

What I have described is not fantasy.  In January of this year, an employee of the Transportation Security Administration engaged in this prank multiple times with passengers he knew were innocent.  My objective in highlighting the story is not to blow it out of proportion — people do engage in pranks, some of which are inappropriate, and they properly acknowledge that their judgment was poor when they consider things more soberly.  Instead, my objective is to remind us that the employees charged with implementing security at airports are human and the risk that they will act maliciously is not simply hypothetical. 

This is of real concern as the government continues to deploy full-body scanners at airports as part of its security procedures.  The scanners are technological marvels and it’s hard not to remember Arnold Schwarzenegger being scanned by something eerily similar in the movie Total Recall.  Innocent people simply wanting to travel from one location to another — and without the government having any specific reason to suspect them of wrongdoing — are now expected to allow themselves to be scanned in a way that generates images of their naked bodies through their clothes.  Reassurances that privacy protections are in place — by having the viewing officer remote from the scanner, by including imaging techniques that blur facial features, and by implementing a policy requiring deletion of the images — do not really strike at the heart of the privacy concerns.  Even with these protections in place, extremely personal details of people’s bodies are displayed to government agents: colostomy appliances, penile implants, evidence of mastectomy or testectomy, and more. 

Already it is known that many images have been saved, contrary to the policy.  At least one federal security screener in Miami has already been arrested in a conflict that arose when a coworker mocked images of his naked body generated by one of the scanners.  That story can be read here.  A security worker at Heathrow airport was subject to discipline when he made lewd comments about a coworker who was accidentally imaged by a scanner.  That story can be read here.  

The deployment of full-body scanners has been challenged in litigation that raises a number of arguments in asserting that they are unlawful.  First, the lawsuit alleges that the scanners violate the Fourth Amendment’s guarantee that people have the right “to be secure in their persons … against unreasonable searches and seizures.”  It is well-settled that airport security by itself is not an “unreasonable” search that violates the Fourth Amendment.  But there is a significant difference between having passengers walk through magnetometers to detect metal before subjecting them to a more thorough search and requiring that every passenger have their unclothed body imaged.  To be constitutional, airport searches must be “minimally intrusive,” “well tailored to protect personal privacy,” and “neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.”  Do full-body scanners meet these criteria? 

Perhaps most interesting about the lawsuit, though, is its allegation that the program violates the Religious Freedom Restoration Act.  This act prohibits the government from burdening the exercise of a person’s religion, even from generally applicable rules.  Many religions make physical modesty a part of their doctrine and rules that force all aircraft travelers to violate their beliefs regarding modesty may well violate the statute. 

Airport security has a legitimate role and almost no one maintains that full-body scanners do not have a reasonable place in that security.  What is objectionable is the uniform use of such a personally intrusive scanning technology on people who have raised no suspicion that they have any intention other than wanting to board a plane so they can travel from one place to another.  Programs that make use of the scanners only when some suspicion exists — after detection of metal by a magnetometer, suspicious behavior, unusual ticket-purchasing patterns, and so on — would generate far less objection among travelers. 

Benjamin Franklin has been quoted so frequently since the grim events of September 11, 2001 that to quote him again seems almost trite.  But there is nevertheless truth in his warning, which rings especially cleanly in the way it reminds us that the issues we face today are really no different in kind from those faced by contemporaries of the framers of the Constitution:  “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”  If our own bodies do not define an essential liberty … then what does?

Poisoned Needles

One of the most impressive stories of global human cooperation began in 1796 with a young dairymaid named Sarah Nelms.  The stories had been apocryphal, mere legends whose truth was suspect:  dairymaids did not get smallpox. 

Smallpox, of course, was one of the great scourges mankind has faced.  Evidence has been found for the disease in Egyptian mummies who died at least three thousand years ago.  Human history is rife with descriptions of smallpox decimating local populations when it was introduced to areas where it was previously unknown.  Smallpox epidemics in North America after introduction of the disease by settlers at Plymouth in 1633 are estimated to have had 80% fatality rates among the native population.  Similar results occurred later in Australia with aborigines.  Numerous isolated island settlements in both the Pacific and Atlantic had almost all of their native populations wiped out by the disease. 

The fact that dairymaids seemed to have a peculiar immunity to smallpox was remarkable, a consequence of the fact that they had frequently suffered from cowpox, a much less fatal disease.  It was Edward Jenner who recognized that deliberate infection with cowpox could serve as a way to protect against smallpox.  On May 14, 1796, he obtain matter from fresh cowpox lesions on the hands and arms of Sarah Nelms, using it to infect James Phipps, an eight-year old boy.  James developed fever, loss of appetite, and discomfort in his armpits — symptoms of cowpox — and recovered about a week and a half after being infected.  A couple of months later, Jenner infected him again, but this time with matter obtained from smallpox lesions, and no disease developed. 

It would take Jenner some years to persuade scientific colleagues that “vaccination” in this way — the word being derived from the latin “vacca” for cow and “vaccinia” for cowpox — could prevent the spread of smallpox.  He was ultimately vindicated.  The end result of his campaign came on December 9, 1979 (and endorsed by the World Health Assembly on May 8, 1980) with a certification that smallpox had been eradicated from the planet except for some small stores maintained for research purposes. 

On October 12, the Supreme Court of the United States will consider oral arguments in what is likely to be a pivotal vaccination case.  At issue is a portion of the National Childhood Vaccine Injury Act, originally passed in 1986 (42 U.S.C. §§ 300aa-1 – 300aa-34).  Aside from its independent relevance, the Vaccine Act is interesting because it can be seen as a case study for many current efforts to introduce broader tort reform prompted by the concern, popular in some circles, that compensation awarded in tort cases is excessive and that litigation is generally an ineffective mechanism for giving compensation. 

Vaccine cases have traditionally been handled under state law, particularly conventional products-liability law.  The Vaccine Act was intended to provide a substitute mechanism for compensating those who may have been injured by vaccines that they received.  At the time, there was active protest by the manufacturers of vaccines, who complained that the cost associated with lawsuit threats was too high and who threatened to cease production of vaccines because the economic risk was too great.  At the same time, those who were injured by vaccines were generally dissatisfied — the time taken to litigate claims and engage in settlement negotiations was long and the entire process was costly, still sometimes resulting in no compensation at all.  These are all arguments that are still currently made more broadly by advocates of broader tort reform. 

Congress created an administrative program that focuses on compensation to the victims of vaccine-related harms.  If a victim can demonstrate receiving a vaccination of a particular type listed in a special Vaccine Injury Table, he or she is awarded compensation, without regard to either fault or causation.  This takes place in the Office of Special Masters of the U.S. Court of Federal Claims, commonly called the “Vaccine Court.”  If the compensation is unsatisfactory or if no award is made, the possibility still exists to bring a tort claim.  The program thus attempts to strike a balance between allowing claims to be brought in the traditional manner, while at the same time offering an alternative that results in faster and more predictable claims being paid.  How much the program is used thus offers an interesting perspective on the success of such a tort alternative. 

In exchange for the essentially automatic awarding of claims, the Vaccine Act preempts tort claims arising from “unavoidable” injuries: 

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine … if the injury or death resulted from side effects that were unavoidable …

It is this provision that is at issue in the case being heard by the Supreme Court.

The fact that an injury is “unavoidable” from use of a product does not normally insulate the manufacturer of the product from having to pay damages when it injures someone.  Indeed, “design defects” of products frequently give rise to damages — it does not matter that the product was flawlessly produced in precise accordance with specifications and with extreme care; if it has a faulty design that injures people, there is still liability for the injuries. 

In 2008, the Georgia Supreme Court held that the Vaccine Act does not preempt all design defect claims — only those where the injurious side effects were unpreventable.  That decision can be read here.  In 2009, a federal appeals court ruled that all design-defect claims are preempted, i.e. even if it were possible to prepare a safer form of the vaccine, there is still no permissible state tort claim arising from use of the more harmful design. That opinion can be read here

While the issue the Supreme Court will consider appears at some level to be a narrow one in that it is a matter of resolving a disagreement over statutory interpretation, it has broader importance.  In the quarter century since it was passed, about two thirds of those applying for federal injury compensation have been turned away empty-handed.  The program was sold as one in which the adversarial nature of litigation claims was to be avoided, but critics suggest that proceedings before the Vaccine Court have turned out to be nearly as time-consuming, expensive, and contentious as traditional litigation.  Many thus consider this experiment in tort reform to have been a failure, and a decision on one of the Vaccine Act’s more important provisions by the nation’s highest court will help determine whether such a view is warranted.

Over a Barrel of Oil

There is a singular moment in the novel Dune when Paul Atreides mounts and controls a sandworm, one of the enormous creatures that tunnel through the sand of the desert world Arrakis.  It is an image that has been repeated numerous times in novels and on film — perhaps notably in Avatar when Jake Sully successfully tames the enormous flying beast Toruk — and which has been used countless times before Dune as a defining symbol.  The outsider tames what only those who are members of an inner circle have any hope of controlling, and he thereby becomes part of the group, perhaps even its leader. 

Dune was published in 1965 at a time when nations were coming to a full understanding of the role that oil had taken in the world’s economies in the time since Henry Ford built the first gasoline-powered automobile in 1896.  In Dune, the economy of the entire galaxy is reliant on melange or “spice,” a substance whose existence is directly linked with the sandworms over which Paul achieves dominion.  Until Paul disrupts what has become the natural order of things, access to the spice is controlled by the Combine Honnete Ober Advancer Mercantiles (“CHOAM”).  In an interview in 1980, the author Frank Herbert acknowledged that the spice was a metaphor for oil and that CHOAM was a metaphor for the Organization of the Petroleum Exporting Countries (“OPEC”), the cartel whose infamous imposition of oil embargoes during the Yom Kippur War in 1973 still echoes today. 

Limiting access to foreign sources of oil precipitated rationing measures in the United States as lines of cars snaked over streets waiting for access to gasoline pumps:  an extension of Daylight Savings Time, a ban on gasoline sales on Sundays, calls for homeowners to turn down their thermostats and for companies to trim their work hours.  The nation looked inwards, hating that it could be crippled by such foreign dependence.  Congress approved construction of the Trans-Alaskan oil pipeline, which was completed in 1977, the same year that the still-ongoing debate over whether to drill for oil in the Arctic National Wildlife Refuge began. 

In 1975, Congress introduced the Corporate Average Fuel Economy (“CAFE”) standards as a measure to improve the average fuel economy of vehicles in the United States.  Between 1975 and 1988, the fuel economy of new cars and trucks inceased by 70%.  Since that time, there has been relative stagnation in fuel economy even as there have continued to be scientific and technological advances that allow its improvement.  Rather than increase the overall fuel economy of vehicles, the gains in efficiency extracting energy from gasoline have been used instead to produce larger and more powerful vehicles. 

That may be about to change. 

On May 21, 2010, President Obama issued a Presidential Memorandum calling for “steps [to] be taken to produce a new generation of clean vehicles.”  A copy of the memorandum can be found here.  Last week, the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) together responded to that memorandum by issuing a Notice of Intent to develop new standards for both greenhouse-gas emissions and fuel economy for light vehicles for the years 2017 – 2025.  The current standards that cover model years 2012 – 2016 require average emission levels to be less than 250 g of CO2 per mile with a fuel efficiency of 35.5 miles per gallon.  A copy of the Notice of Intent can be read here

The Notice provides an overview of standards that might be considered, considers the technologies that would be needed to meet those goals, and calls for feedback from the public.  The current deadline for public comment is the end of this month, with plans to issue a second notice on November 30 that includes an updated analysis of the potential efficiency targets. 

While no actual standards have yet been developed, the outline of possible standards in the Notice is informative, providing scenarios that range from a fuel efficiency of 47 mpg to as high as 62 mpg.  Already, some environmental groups have indicated an intention to press for the highest standards, but many think this is unrealistic in light of the realities of consumer demands for vehicle size and performance.  Nevertheless, the Governors of eight states have sent a letter to the President calling for standards of 60 mpg by 2025.  A copy the letter from the New York Governor can be read here

Putting increased pressure on vehicle manufacturers to meet higher fuel economy standards is generally welcome news, and the new standards could provide a measure of time in which those standards catch up with technical advances that have been made over the last fifteen years.  It is one part of what could be a comprehensive strategy to develop independence from foreign oil sources, a strategy that includes not only conservation efforts but also more aggressive pursuit of other sources of energy such as through nuclear power generation.  Despite efforts to avoid the consequences of a similar reduction in access to foreign oil since the embargo of 1973, U.S. reliance on imported petroleum has nonetheless increased since then so that 57% of the oil currently used in the United States is imported. 

It is unrealistic to expect draconian reductions in living standards to be readily accepted.  But at the same time, it is foolish not to be ambitious in insisting that we take advantage of technological developments that allow us to make the best use that we can of our resources.

WARNING: THIS BLOG MAY BE ADDICTIVE

Well, I have to confess that there is a part of me that hopes so! But my title today is, at least to me, very obviously a spoof.

People need to be careful about spoofs though. Sometimes they take on a life of their own.

Consider Ivan Goldberg, a respected physician who specializes in treating individuals with mood disorders. He fabricated the term “Internet Addiction Disorder” in 1995. It was intended to be satirical, and he patterned his list of diagnostic criteria for the disorder after the entry for pathological gambling in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) — the authoritative work on psychiatric disorders published by the American Psychiatric Association. A copy of Goldberg’s parody can be found here.

Perhaps it was the technical way it was written, or perhaps it was because it struck a nerve among those who sometimes feel widowed as a result of significant Internet use by loved ones, but the parody caught on. Some thought it was real — even a few serious and respected publications were fooled — and many people began to accept that Internet Addiction Disorder was legitimately recognized.

In the fifteen years since Goldberg’s spoof, there has been increasing research on the effect of a variety of modern forms of technology on the human brain. One of the more interesting is the Starcraft study. Starcraft is a military science-fiction strategy game that has received enthusiastic accolades from those in the video-game industry, who have praised it as one of the best video games ever. The multiplayer version of it has gained particular popularity in South Korea.

Because it is so good, a lot of people want to play it. And some of them spend a lot of time playing it. Of the eleven participants in a the study, six had dropped out of school for two months because of the amount of time they were playing Starcraft and two were divorced by their spouses as a direct result of the time they put into the game. Psychiatrists at the Chung Ang University in South Korea tested a treatment of this group by prescribing the antidepressant Bupropion for six weeks, resulting in their playing time decreasing by about a third. MRI studies of their brains by the Brain Institute at the University of Utah showed increased brain activity in three areas that was not present in a control group when shown images from the game.

Many people remain dismissive of the idea that there can be such a disorder as Internet Addiction, and suggest that the treatment with an antidepressant works because those individuals were depressed — under that view, the excessive time playing Starcraft is a sympton of depression, not of a new type of disorder. They perhaps spend so much time playing in an effort to escape from the sadness that their depression causes. Known psychiatric disorders of obsession and compulsion are other likely candidates for disorders that are sometimes manifested by excessive Internet usage and game playing.

The game Lineage II is another multiplayer online game, also extremely popular in South Korea. Instead of the science-fiction theme of Starcraft, though, Lineage II has a fantasy theme. The makers of the game, NCsoft Corporation and NC Interactive, Inc., were sued about a year ago by Craig Smallwood, a 51-year-old resident of Hawaii who claims that he became addicted to the game. His complaint asserts that over the period of 2004-2009, he played the game some 20,000 hours — that comes out to an average of 11 hours a day, every day of the year, for five years. When his access to the game was cut off, he claims to have “suffered extreme and serious emotional distress and depression,… been unable to function independently,… suffered psychological trauma,… was hospitalized, and … requires treatment and therapy three times a week.”

In a decision in August of this year, the judge in the case, Alan C. Kay, dismissed some of the causes of action but declined to dismiss them all. The causes of action that remain, and which Smallwood presumably will now attempt to prove, include defamation, negligence, gross negligence, and negligent infliction of emotional distress. The full opinion (which considers a number of procedural issues at some length) can be read here.

Although some commentators have ridiculed the decision, finding it stretches credibility to allow a cause of action to proceed on the basis of Internet addiction, it is worth noting that this ruling is still at a very early stage of the litigation. This was a ruling on a motion brought by the defendants, meaning that the plaintiff’s assertions were necessarily considered in their most favorable light and assumed to be true. Those claims that were dismissed — misrepresentation, unfair trade practices, intentional infliction of emotional distress, and assessment of punitive damages — were found by the court to have no merit even if all of the assertions were true and construed in that most favorable way.

It is likely to be an arduous and uphill battle now to prove his assertions and to prevail on the surviving causes of action. Currently, Internet addiction is not a disorder recognized by the DSM and this is likely to be an important factor in the remainder of the litigation. It is also true, though, that some serious researchers advocate including Internet addiction in the next edition of the DSM, currently scheduled for release in 2013. This advocacy has been formal, appearing in prestigious peer-reviewed journals such as the American Journal of Psychiatry, but it still appears that those in the psychiatric-research community who advocate including it currently remain in the minority.

The ultimate decision of the American Psychiatric Association will likely have a strong impact on litigation. Courts will take notice of such an expert assessment, whichever way it goes. If the next edition of the DSM includes Internet addiction as a disorder, expect to see many more lawsuits like those brought by Smallwood, and expect them to have a greater chance of success than currently seems likely. Also expect the producers of Internet content to respond and seek ways to avoid any liability.

I’m putting myself out ahead of the curve. You’ve been warned.