JOLT Digest

By Charlie Stiernberg

What Changed in Google’s Privacy Policy

Google recently announced changes to its privacy policy and terms of service, prompting concerns by a bipartisan group of congressmen over the future safety of customer data. Reuters reports that Pablo Chavez, Google’s director of public policy, responded directly to the lawmakers’ questions in a letter, stating that “the updated privacy policy does not allow us to collect any new or additional types of information about users.” The Electronic Frontier Foundation (“EFF”) applauded Google’s efforts to notify its customers of the changes, but criticized the company for not adequately explaining what it meant until after the congressional inquiry. According to EFF, the major substantive changes include (1) combining all of Google’s separate product policies into one, (2) removing the separation between customer data sets stored in each of those products, and (3) using the information obtained from one product in another. The new privacy policy goes into effect on March 1, 2012.

Intel Purchases $120M in Patents from RealNetworks

Intel agreed to pay RealNetworks $120 million for 190 patents and 170 patent applications covering RealNetworks’s streaming video codec technology. The Wall Street Journal reports that this is the latest in a set of large patent purchases by major technology companies, which peaked in June with the Nortel Networks patent auction. Competition in the smartphone and tablet markets has become more intense and patents more important as companies, including Intel, expand their businesses into the mobile sector. According to ZDNet, Intel called some of the patents “foundational,” indicating its belief that that some are important to the company’s efforts in the mobile media space. In addition to the sales agreement, Intel acquired the video codec’s development team, and the two companies signed a memorandum of understanding to develop next-generation video software and related products.

New Mobile Device Privacy Act Proposed

Rep. Edward Markey released draft legislation this week that would require mobile phone carriers to reveal if they are employing tracking software such as Carrier IQ. Wired reports that under the Mobile Device Privacy Act, consumers would have to give their consent before data—including web usage, call history, and text messages—can be sent to third parties. According to Ars Technica, the controversy started when a developer publicized the widespread use of Carrier IQ software on smartphones a few months ago. Rep. Markey said such software should only be used with the consumer’s “express consent,” and emphasized that the legislation is just a “discussion draft” right now. Sprint and Apple both recently announced they are dropping Carrier IQ, but T-Mobile and AT&T still use it. Verizon does not.

Twitter Reveals 4,400+ DMCA Takedown Notices Last Year

Twitter partnered with Chilling Effects, a project sponsored by the Electronic Frontier Foundation and the Berkman Center for Internet & Society, to publish all Digital Millennium Copyright Act (“DMCA”) takedown notices it has received since November 2010. Ars Technica reports that the site lists 4,410 takedown notices in that time frame. While Twitter regularly deletes tweets to gain safe harbor under the DMCA, the company stated that it wants to “be transparent with users.” The Huffington Post breaks down the requests by sender, showing that Magnolia Pictures, a New York film distributor owned by Mark Cuban, was responsible for a third of them. Web Sheriff, a third-party that automates takedown notices for its customers, sent at least half of all the requests in the list.

Megaupload.com indicted by Department of Justice
By Daniella Adler – Edited by Abby Lauer

U.S. v. Kim Dotcom et al., 1:12-cr-3 (E.D. Va.)
Indictment

The Department of Justice recently brought a criminal indictment against Megaupload.com and related websites in the Eastern District of Virginia on three different counts of copyright infringement as well as money laundering and racketeering.

The indictment calls the operators of Megaupload.com and its environs the “Mega-Conspiracy” and describes it as a “worldwide criminal organization.” The government estimates that $175 million in profits from subscriptions and advertising comes directly from the large volume of copyrighted material illegally posted on the website. Among the individuals indicted were Megaupload.com founder Kim Dotcom and several of the sites’ main employees and officers.

Currently, when users attempt to access any of the “Mega” sites, they are confronted with an FBI Piracy Warning, which explains that the domain has been seized, states that the “individuals and entities” associated with the crimes have been indicted, and lists the charges.  (more…)

By Susanna Lichter

Google Privacy Revisions Stir Debate
Google announced a new privacy policy last Monday, raising the concerns of privacy advocates, the Washington Post reports. The policy will allow the web giant to collect information across Google services including search, Gmail and YouTube. Google alleges that the changes will “provide, maintain, protect and improve” Google’s functionality as well as generate “more relevant search results and ads” for users. So far the policy has received mixed reviews. Digital rights organizations like Common Sense Media criticized the policy, calling it “frustrating and a little frightening,” and suggesting the inability to opt out of the policy may violate the company’s agreement with the FTC. However, the Telegraph reports that Viviane Reding, the European Commissioner for Justice, who advocates for laws on Internet privacy and data protection, made a statement praising the policy and commending Google’s forward thinking.

Facebook Prepares for IPO Filing
The WSJ reports that Facebook might file for an initial public offering as early as this week in what could be one of the biggest debuts for a U.S. company ever. The 7 year old website, which boasts 800 million members and was famously founded in a Harvard College dorm room, could raise as much as $10 billion and be valued upwards of $100 billion. According to the WSJ, Facebook Chief Executive Mark Zuckerburg had been reluctant to go public, fearing it would pose a distraction to the staff. Likely another factor that has kept the young company from going public is the public disclosure requirements. However, as the company fast approaches 500 shareholders, at which point the company would have to publicly report financial information anyway, public disclosure seems inevitable. Morgan Stanley is expected to underwrite the deal, beating out Goldman Sachs who appeared to have the edge on the underwrite a year ago. Morgan Stanley is the leader in Internet stock underwrites with clients including Groupon and LinkedIn Corp.

Feds Arrest Megaupload Execs, Anonymous Retaliates
Seven executives connected to the popular file sharing website Megaupload were arrested last week and the website was shuttered, Wired.com reports. The individuals were indicted on charges including criminal copyright infringement, conspiracy to commit money laundering and racketeering. The government says that the company facilitated in excess of $500 million in harm to copyright holders. Hacker collective “Anonymous” claimed responsibility for retaliatory attacks on the websites of the Justice Department, Recording Industry Association of America, and Universal Music that occurred shortly after Megaupload was taken down. Megaupload’s controversial founder, Kim Schmitz, aka Kim Dotcom, was among the arrests. The site’s chief executive, Swizz Beatz, was not implicated.

Written by Laura Fishwick
Edited by Adam Lewin
Editorial Policy

Introduction

The most recent U.S. Supreme Court case to address the legality of school-imposed punishment for student expression was more than forty years ago in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In that seminal case, the Supreme Court found that a state’s interest in maintaining its educational system can justify limitations on students’ First Amendment rights to the extent necessary to maintain an effective learning environment. Id. In Tinker, school officials suspended students for wearing black arm bands to protest the Vietnam War. Articulating the standard still used by courts today,[1] the Court held that a school may regulate student speech or expression if school officials can reasonably conclude that such speech caused or is likely to cause a “material and substantial” disruption to school activities. Id. at 513 (finding no substantial disruption because the protests were non-violent and did not interfere with class activities).

Tinker and subsequent Supreme Court cases have not addressed whether a school may regulate student speech that occurs off campus or online and is not connected to a school event, but that nonetheless causes disruption on campus or in the classroom. Further complicating the analysis of on campus, off campus, and online speech are additional factors such as the location where recorded activity takes place before it is posted online, and the location of the computer used to upload data onto the Internet. This comment explores the recent lower court decisions applying the Tinker standard to school-enforced limits on student speech made on the Internet. In cases of off campus or online speech, some courts have responded to the fact that Tinker involved on campus speech by requiring the school to show a substantial nexus between the speech and the school before applying Tinker. Beyond the nexus inquiry, courts move onto Tinker and examine the intensity of on campus discussions surrounding the expression, the burden the expression places on the administration, and whether the expression contains violent content.  (more…)

District Judge Seems to Pilot Test SOPA in a Temporary Restraining Order
By Julie Dorais – Edited by Matt Gelfand

Chanel, Inc. v. Does, et al., 11-cv-01508-KJD-PAL (D. Nev. 2011)
Order

On November 14, 2011, the U.S. District Court for the District of Nevada issued a far-reaching temporary restraining order (TRO) in response to luxury goods company Chanel’s allegations that 288 defendants were selling counterfeit goods online. In addition to ordering the seizure of the defendants’ domain names, the ruling requires that domain registries transfer the domain names to GoDaddy.com, that GoDaddy.com redirect incoming traffic to a separate website, and that search engines and social networks remove the domain names from search results.

Commentators note that the remedy bears an uncanny resemblance to the remedies available under the recently proposed Stop Online Piracy Act (SOPA). As explained by Information Today, SOPA would give the government the expanded ability to obtain injunctions to seize domains that appear to be hosting infringing material. The injunctions may also direct certain actions by third parties, such as service providers and search engines. JOLT Digest has covered the proposed bill and the surrounding controversy.

CBS News summarizes the Nevada judge’s ruling and comments on its comparison to SOPA. Technology and Marketing Law Blog, Ars Technica, TechNewsWorld and TechDirt offer critical commentary. In particular, Technology and Marketing Law Blog argues that the ruling raises issues about due process, and questions the enforceability of the broad order. (more…)