2012 Year in Review

Posted on January 2, 2013 
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2012 was a good year, with a variety of professional and personal pursuits.

Professionally, I had many good experiences:

Personally, I had the opportunity to travel to Israel and South Africa in 2012. Both trips are recommended for different reasons. Religious or not, Israel was an opportunity to see the very beginning of humanity, and the religious sites are certainly worth seeing, as well. Attending a safari in South Africa is well worth doing one time in life and Cape Town is one of the most striking cities in the world. No international traveler should be shy about putting either destination on their travel wish list.

News and Notes from Summer 2011

Posted on November 7, 2011 
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I’ve been staying busy with some interesting cases. Here are a few press clippings that may be of interest:

I feel blessed to work with so many good people on interesting cases like these. If you’re looking to contact me for help on similar cases, you can visit my law firm’s website.

Eric Discusses Consumer Privacy In Trade Journal

Posted on March 5, 2011 
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I recently commented on consumer privacy issues for a major industry publication. You read more about it on Lexero.com. The article also has a nice discussion of the benefits and limitations of advertisers’ self regulation, and the challenges created by non-standardized data and practices in making self-regulation a reality.

Eric Menhart Quoted in Business Insider

Posted on March 10, 2010 
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Recently, quite a bit of attention has been paid to sites like pleaserobme.com, which simply republish public Twitter posts of people tweeting about their present locations.  PleaseRobMe.com republishes tweets of people that contain search strings like “left home,” that might be theoretically useful to robbers looking for an empty house.What liability would these sites likely incur if someone were actually robbed? In a word, none.

Follow Me on Twitter @EricMenhart

Posted on December 10, 2009 
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I’ve finally joined the Twitter bandwagon. I invite you to follow me here. I primarily post about professional issues, such as Internet law and intellectual property law. Posts discuss issues such as copyright, trademarks, and domain names. I also tend to keep on eye on interesting cases, pending legislation and industry happenings.

The CyberLaw Trademark Debate

Posted on July 2, 2009 
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You may have seen some criticism by others regarding the trademark application for the term “CyberLaw.” While the critics have every right to their opinion, I felt it was important to provide the full story behind the issue, as well as some relevant links to credible third-party coverage, such as this Baltimore Sun article.

CyberLaw PC applied for the trademark “CyberLaw” in December of 2007. Several bloggers criticized the application for being generic or “everyday language.” The firm responded on January 19, 2008 via the blog post “Of CyberLaw and CyberLawg.” That response has remained published since that time.

Simply stated, the firm defended its original application by noting that the application was lawfully filed with the USPTO, along with the appropriate application fee. The firm also noted that the application would have protected only those services that the firm provided. Finally, the firm pointed out that the U.S. Patent and Trademark Office, the authority that makes such determinations, itself has previously found the mark “CyberLaw” to be protectable as recently as 2000 for virtually identical services. The mark was granted to Attorney Jonathan Rosenoer of Greenbrae, California in 1996. Mr. Rosenoer let his protection expire in 2000. These records were free and publicly available from the USPTO.

On February 21, 2008, the Baltimore Sun wrote an article about the matter. The article as it originally appeared in the newspaper is here. I encourage anyone that wants a fact-based, journalistic view of the matter to read it.

The trademark application was eventually modified in an effort to protect the firm’s logo, as opposed to the standard character mark. The firm does not assert any federal trademark rights in the standard character mark “CyberLaw.”

Eric Menhart On Brief in Appellate Win

Posted on May 23, 2009 
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A recent decision by the District of Columbia Court of Appeals addressed whether a private right of action under the Telephone Consumer Protection Act (TCPA) required a separate act of enabling legislation. Eric Menhart was on the brief for the prevailing appellant. Read the full text of the opinion: Portuguese American Leadership Council of the United States, Inc. v. Investors’ Alert, Inc. No. 04-CV-1187 (D.C. 2008).

The Court found that private causes of action may be brought in the D.C. Superior Court under the Act without the need for enabling legislation.

Eric Menhart Comments on Internet Sales Tax Issues

Posted on April 22, 2009 
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You may have noticed that the recent economic troubles are leading most folks to tighten their belts and rethink their spending. Many are also considering new sources of income. State and local governments are no different. The question as to whether States can legally collect sales taxes from online transactions is attracting attention, particularly given the hard economic times and the beginning of a new Congress with many new faces.

Eric was recently quoted in two articles addressing the topic. The first, in Forbes.com, was entitled “Web Sales Tax Looms.” FierceCIO also brought the issue to it’s readers attention in Debate Looms for Web Sales Tax.

Eric wrote an extended article entitled Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue that explores the tax issues that are becoming more salient in the current economic and political environment. Published in 2007 by the Journal of State Taxation, the article is an in depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions.

FlyClear Review, Experience and Discount Code

Posted on June 21, 2008 
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The FlyCLear Experience

I travel relatively frequently for business and I also do my fair share of recreational travel. I am also, unfortunately, not the world’s most timely person, particularly when it comes to airports and catching planes. I’ve missed more than my share of flights.

For these reasons, the new “pre-screened” airport security option known as Clear® or “FlyClear” located at flyclear.com was of interest to me. Clear® promises the following:

“Clear® is the fast pass for airport security. Clear members are pre-screened and provided with a high-tech card which allows them to access designated airport security fast lanes nationwide. Clear members pass through airport security faster, with more predictability and less hassle.”

I live and work primarily in Washington, DC, where we have the benefit of three nearby airports: Reagan National, in Arlington, VA, Thurgood Marshall Baltimore/Washington Airport (BWI), near Baltimore, and Dulles International, also in Northern Virginia. Dulles and National Airports have adopted the program. BWI has begun to seek proposals for a system at its airport as of this writing, which Clear® will unquestionably vie for.

With two of the three already with Clear® lanes in place, I took the plunge and gave it a try.

Signing Up with FlyCLear.com

I started by signing up via the flyclear.com website. The process was simple enough and not unlike signing up for most anything else online. You provide contact information, identity information, and payment information on the secure flyclear.com website. The annual fee as of this writing is $128 annually. $100 is the fee for the Clear® service and $28 is the government identity verification fee. You get an extra month if you use a refer-a-friend code as your “FlyClear discount code” when you sign up. It gives both you and your referrer an extra month of service compared to signing up with out a code. Feel free to use the Flyclear.com discount code of DSCAM1149342 if you don’t otherwise have one.

Once registered online, you have to take the time to head to an “in-person enrollment center.” My center was at an American Express travel store in downtown Washington, D.C. The Clear® enrollment area was basically two kiosks and two attendants in one part of the store. I called to make an appointment first, instead of “dropping in.” I recommend making an appointment because it seems like there could be long lines if you go at the wrong time of day. The process takes 10-20 minutes or so even if it is running smoothly, so you really want to be able to walk in and get started right away.

Once I arrived I needed to provide my Clear® account number. I also had to have two forms of government-issued identification. Clear “highly recommends” a U.S. passport and a driver’s license. I followed their advice and provided those forms of documentation. Once I had my identification verified, a Clear® attendant had me approach one of the two kiosks. The kiosks are a bit taller than standalone ATM machines but otherwise look similar to a cash machine.

The Clear® attendant starts by putting in his or her own employee identification number. Next, you have images of your irises taken. Iris scanning is one of the newer identity verification methods and it will likely grow more prevalent in the years to come. Iris imaging (not the same as retinal scans) is more reliable than fingerprints because it is more difficult to impersonate an iris than a fingerprint, among other things. Wikipedia has a good article on iris recognition technologies if you want to know more.

Next, the attendant helps you take fingerprints. You place your fingertips on plates of glass and the images are captured digitally as opposed to the old fashioned ink and paper methods. You get each fingerprint on both hands, but you can choose your favorite. I went for the right index finger as my “favorite.”

Finally, you get a good old fashioned digital photograph taken. Once the enrollment is complete you’re notified that your card will receive in a short period of time. I received mine in the mail approximately ten days after my enrollment process.

Clear® at the Airport

My new card in hand, I gave it a try during my next trip departing from Reagan National Airport. I was traveling during a relatively quiet day at the Airport. Security lines were pretty short anyway, but I headed to the Clear® line for the “pursuit of science.” Immediately upon entering the line, there is an attendant whose primary role appears to be directing non-members to the “standard” security line. It was clear that he was very used to directing people elsewhere because the Clear® line was very empty and was situated very close to the other lines. Almost immediately upon my approaching him the attendant was already directing me to the “standard” line. I presented my FlyClear card and was shown through to the Clear® screening area.

The screening area is just open space near the normal security lines with a few kiosks set up. There were also two Clear® attendants there. Once I made it to the kiosk, the screening process was pretty quick, taking about a minute or so. You present your Clear® card to the attendant, who sticks it in a reading slot. The computer reads the card and identifies you. You then have your iris scanned and/or fingerprints scanned. If it matches up, you’re “clear” to proceed to security.

The defining (and major) limitation of the Clear® program is that it doesn’t actually let you avoid the standard security. You still have to have “only one, quart-size, zip-top, clear plastic bag,” and “each container must be three ounces or smaller” as we know from the TSA. You still have to take virtually every article of clothing off, and your laptop still has to be separate from your other carry-on luggage.

Clear’s “company line” on this limitation was something along the lines of: “just because someone is not a threat at the time of registration does not mean that they may not become one.” Of course, this is true, but there is literally no benefit of Clear® that relates directly to the security. You can’t keep your shoes on, you can’t bring a bottle of, say, four ounces on the plane, and you can’t keep your belt on. Clear® is just to get to the actual security process faster.

Once verified, you’re ready to head to “standard” security screening. In my case, the attendant took one of my bags and led me to a table where the bins were stored. Of course, this table is the same table used by everyone else, and you literally have to “cut” in front of someone else. In my case, the attendant headed for a senior woman, age seventy or so, and asked “May I place this registered traveler in front of you?” Of course, this woman, and I presume others, would have no idea why a registered traveler would be getting in front of them in line, but she simply agreed to let me in front of her.

I must admit this was something of an awkward feeling, being placed in front of a surprised person who had been dutifully waiting her turn. I tried to be friendly and play it off, joking with her and trying to change the subject: “Well, at least you know I’m non-threatening, right? Where are you headed today?” That seemed to help alleviate her surprised look and we made friends in the few moments we had. Once the “line cut” was secured, security proceeded normally.

Conclusions and Recommendations

Is it worth it? I think the answer is, as in most cases: “it depends.” If you often fly alone at airports with Clear® lines and during times of long security lines, I think it probably is worthwhile. I think this is particularly true for folks who might be able to use time otherwise spent in security lines productively at the airports, like professional business travelers. It’s a simple opportunity cost analysis. If you bill, say, $300 an hour as a busy attorney, and you’d save 30 minutes over the course of a year by using Clear® (ignoring for a moment the enrollment time, etc.), it makes sense to do it. Or, if you save yourself one missed flight a year, it likely makes sense as well. Remember also that this may be a tax-deductible business expense for business travelers, as your financial professional may advise.

If you are a casual flyer, taking a few trips a year, particularly with a family or significant other, I think the administrative hassle and additional fees are probably not worthwhile. First, there is the additional cost of registering everyone in the traveling party. Second, there is the logistical burden. In my case, I often travel with business associates or individuals that do not have a Clear® card. When we approach the security lines I find that the more polite course of action is to stay with the travel partner in normal security lines, so the card is never even used in those situations.

Take care to see which airports offer Clear® lines. If you live in or frequently fly to Washington DC, San Francisco, New York City, Orlando, Cincinnati, Atlanta or Los Angeles (among others), the investment is likely worthwhile if your circumstances otherwise suggest it might be right for you.

In my case it was worthwhile because I often travel for business, live near two airports that offer the service, and have a tendency to miss flights. Other circumstances may lead to different conclusions, but these considerations, along with the “entertainment value” of the experience made it well worthwhile to at least give it a try.

If you do end up trying FlyClear, you can use FlyClear discount code DSCAM1149342 when you sign up for an extra month free of charge.

Happy flying!

Going For Two in the NFL: Right or Wrong?

Posted on June 28, 2007 
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The National Football League’s 1994 decision to allow the two-point conversion helped to make the games more exciting by assuring that a team down by eight points could tie the game with one score. Under the previous rules, which only allowed the “extra point” after a touchdown, a team would need two scores to win. I often thought that teams were not taking advantage of the two point conversion early in games, and I decided to put that theory to the test.

Understanding the Principles

The basic point of a football game is to score more points than the other team. By definition, the more points a team scores, the greater the likelihood that the team will win the game. Thus, a team is generally correct to pursue situations in which it is more likely to score points than not; where they will achieve a positive “expected value.” Your expected value is the total benefit you expect to receive if you do the same thing over a statistically relevant number of times.

For example, your expected value of having “heads” turn up when flipping a coin is 50%. Of course, you may flip a coin 10 times, and see heads seven of ten times, or only three times out of ten. This is called “variance.” You’ll experience variance over a small sample size, but variance will be nearly irrelevant once your sample size is large enough.

Calculating Expected Value

In 2006, NFL teams scored 1181 touchdowns league wide according to NFL.com. Divided by 32 teams, we expect that each team will score about 37 TDs per season, or about 2.3 TDs per game. League wide, teams successfully convert the classic “field goal” style extra point about 96% of the time, again, based on statistics available from NFL.com.

A good, documented statistic detailing the success rate of the two point conversion in the NFL is surprisingly hard to find. I found two rates that seemed sufficiently credible, both on “official” NFL sites. The first estimate puts the rate at “below 45 percent . . . since 1994,” but provides no hard numbers. The second estimate puts the two point conversion success rate at 50.9% for teams in 2005, but is potentially faulty due to small sample size. I use both numbers below.

If our “average” team in the NFL only kicked for extra points after each of their touchdowns, those teams would expect to score 35.52 points over the course of the season, as shown:

37 (number of TDs) x 0.96 (extra point success rate) x 1 (available points) = 35.52 points

What would happen if a team went for two every time they scored a TD? Here is the application of both of our “success rate” numbers from above:

Calculation A

37 (number of TDs) x 0.45 (conversion success rate A) x 2 (available points) = 33.3 points

Calculation B

37 (number of TDs) x 0.509 (conversion success rate B) x 2 (available points) = 37.66 points

From a pure expected value calculation, a team that expects to convert a two point conversion over 50% of the time, as one might expect, should go for two. One that would not should kick the standard extra point.

Game Day Application

When it comes to game day application, however, it appears that going for two is likely not worth the additional variance, even if we assume that the 50.9% success rate is accurate. The potential benefit over an entire season is only 2.14 points:

37.66 (50.9% two-point conversion expected value) – 35.52 (extra point expected value) = 2.14

Spreading that additional point margin over 16 games leads to an expectation of only .13375 points per game, which would not even register on the scoreboard that only counts whole numbers. Teams are better off taking the more secure points by taking the standard extra point in most situations, barring circumstances where going for two might “balance the score” or allow the team to tie or win the game.