Have you had trouble getting a concert ticket recently? The problem may be caused by a Bot. And a recent report issued by the New York State Attorney General explains why.
Attorney General Eric Schneiderman apparently considers the problem severe enough to issue a report entitled “Obstructed View – What’s Blocking New Yorkers from Getting Tickets.” The report includes comments from concert goers weighing in on the subject. This comment is typical: “The average fan has no chance to buy tickets at face value … this is a disgrace.” The report indicates performers too are frustrated. Elton John is quoted in the report noting: “I think it’s extortionate and I think it’s disgraceful.”
And the report contains some examples of particularly egregious behavior. For example, on December 8, 2014, when tickets first went on sale for a tour by U2, a single broker purchased 1,012 tickets to one show at Madison Square Garden in a single minute, despite the ticket vendor’s claim of a “4 ticket limit.” By the end of that day, the same broker and one other had together amassed more than 15,000 tickets to U2’s shows across North America. Not exactly a beautiful day.
The New York AG is interested in this issue because there are regulations governing ticket brokers in New York. The regulatory scheme has evolved over time. Before 2007, New York law capped the markup resellers could charge. The caps were lifted in 2007 with the hope that the free market would actually make tickets more available and less costly. But it didn’t immediately work out that way. Ticket brokers used schemes to buy massive quantities of tickets, which allowed them to artificially inflate costs. They also imposed large “service fees.” New York amended the law in 2010 to prohibit the use of Bots. It also mandated that service fees had to be “reasonable.”
The term “Bots” refers to software that allows buyers to avoid limits and efforts by venues to impede rapid purchases. Bots are able to bypass those annoying boxes that ask the buyer to replicate squiggly letters and numbers. According to the AG Report, however, despite the 2010 amendments, Bots are still in use, as evidenced by the U2 concert.
The Report asks the New York legislature to enact legislation criminalizing the use of Bots. Currently, a broker using Bots faces a loss of license and fines. That has not proved to be much of a deterrent. Perhaps the sentence should require the broker to fill out one of these stupid things for eight hours a day. But that might be cruel and unusual.
Illegal Conduct on Campus
Two fraternities at Kansas University – Delta Tau Delta and Phi Beta Sigma -- have been put on probation for violating the University’s hazing policy. It’s possible that the hazing involved criminal activity. But that’s not the real legal violation here. The true scofflaw (I rarely use that word, but I love it) turns out to be good old KU itself. It is thumbing its nose at Kansas Public Records law based on its incredibly loose interpretation of the Federal Education Rights and Privacy Act. The law is typically referred to as FERPA. And KU is using that law to hide the activities of its rogue fraternities, giving new meaning to the term from the movie Animal House “double secret probation.”
The Lawrence, Kansas Journal-World newspaper has been trying to report on the incident. As part of its reporting, the Journal-World asked for records concerning the incidents. The paper made it clear it was not interested in the names of the students involved – whether they were perpetrators or victims. In its production, however, KU exhausted its supply of black marker as it blotted out pages of information – none of which would have identified any individual students. Indeed, the newspaper has been unable to describe what the hazing consisted of.
Why is that a problem? Well, KU is a public university, which means it is funded at least in part by taxes. So, given KU’s concern for the privacy rights of anonymous students, the public has no way of knowing the severity of the hazing. That is not only unfair to taxpayers, it’s unfair to the fraternity. Given the range of activity that might constitute hazing, which runs from merely stupid to criminal, the public is left to speculate on what exactly happened. That leads directly to misinformation and rumors.
The public also has no way of knowing if the two fraternities (one was a small primarily black fraternity, the other was much larger) were treated equally. Again, does it make any sense to leave that issue dangling?
And worse yet, the claim that FERPA applies is simply false. First, FERPA does not expressly prohibit the release of any information. What the law actually says is: “No [federal] funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . .” If KU released the requested information in this extraordinary instance, that would not constitute a “policy or practice.” It would be a one off event. So, relying on FERPA is dishonest.
More importantly, records concerning fraternity hazing are not educational records. And, since the newspaper didn’t ask for names, the records in no way contained personally identifiable student information. The records are not covered by FERPA.
FERPA exists to protect the privacy of real students’ actual educational records. It does not exist to provide a smokescreen to a University embarrassed by the conduct of its fraternities. Illegal conduct may have occurred at the KU frat houses. Illegal conduct for sure occurred at the KU administration building.