JOLT Digest

Court Suppresses Email Evidence in Bear Sterns Case
By Stuart K. Tubis – Edited by Jad Mills

U.S. v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y. Oct. 26, 2009)
Slip Opinion (hosted by WSJ)

The Eastern District of New York granted defendant Matthew Tannin’s motion to suppress evidence obtained from his personal Gmail account. Ralph Cioffi and Matthew Tannin were charged with conspiracy, securities fraud and wire fraud in connection with their roles as Bear Sterns hedge fund managers. Prosecutors obtained a warrant to search Tannin’s personal Gmail account, but the warrant failed to specify what evidence could be seized or to what crimes the evidence must relate.  After some initial difficulty, Google delivered a copy of the email account to the Government. As the Wall Street Journal reported, one email contained a comment that funds Tannin managed could “blow up.” Tannin moved to suppress this evidence on the ground that it violated the Fourth Amendment.

District Judge Block held that the warrant was facially overbroad and thus violated the Fourth Amendment. The Court reasoned that because the warrant itself was not particular as to either the items to be seized or to a particular crime, and because the affidavit was not attached or incorporated into the warrant, the warrant was unconstitutional. The court also held that the warrant did not merit a “good faith” or “inevitable discovery” exception, largely because the executing officers should have known the warrant was overbroad.

The Wall Street Journal provides a brief overview of the case. The Eric Goldman Blog also provides a summary of the case. Orin Kerr of the Volokh Conspiracy criticizes the ruling, saying that the good faith exception should have been granted since the case law was not firmly established at the time of execution. (more…)

By Sharona Hakimi

EU Court Advisor Supports Google Keyword Searches in Trademark Suit

On September 22, Reuters reported that an advocate general to the European Court of Justice, the EU’s highest court, stated that Google did not infringe trademark rights of luxury goods maker Louis Vuitton (LVMH). Google sells keywords that use the company’s trademarks, but Advocate General Poiares Maduro concluded that trademark protections do not extend to search advertising keywords because they are not considered a product sold to the public. ZDNet’s Richard Koman argues that this decision does not account for brand confusion arising from keyword searches, and demonstrates the court’s “misunderstanding of the Web as something tangential to ‘real’ commerce.” Although the Luxembourg-based court follows the opinions of its advocates general in most cases, the judges will give their final judgment at a later date.

Facebook Shuts Down Beacon Ad Software as Part of Lawsuit Settlement

Ars Technica reports that on September 18, Facebook announced it will shut down its controversial Beacon ad software as part of a settlement for a class-action privacy suit. The Beacon software, launched in November 2007, allowed off-Facebook activities to be published in users’ news feeds without their explicit consent. After over a year of legal disputes regarding the software, Facebook decided to settle with complaining users, agreeing to discontinue Beacon and offering $9.5 million to create a foundation that would “fund projects and initiatives that promote the cause of online privacy, safety, and security.” Facebook’s director of policy communications said that the company has “learned a great deal from the experience.” The settlement proposal still awaits a district court judge’s approval.

FCC Proposes Net Neutrality Rules for Internet Service Providers

The New York Times reports that on September 12, the chairman of the Federal Communications Commission proposed new regulations regarding net neutrality for Internet service providers. The proposal would bar providers from blocking or slowing Internet traffic on the basis of content. Consumer advocates of the policy say networks should not be able to deter users from accessing lawful Internet content or applications by restricting bandwidth. Wired’s Dylan Tweeny warns that the proposed rules may be difficult to enforce, stifle overall service due to capacity limitations, and decrease innovation in a market that has flourished without government intervention. The rules will formally be proposed in an open FCC meeting in October.

By Andrew Jacobs

ISPs Found Liable for Websites’ Trademark and Copyright Infringement

Computerworld and Ars Technica report that on August 28, a federal jury handed down a $32.4 million judgment against two ISPs that hosted websites selling counterfeit Louis Vuitton products. Louis Vuitton successfully argued on a theory of contributory infringement, overcoming the ISPs’ claims of immunity under the Digital Millennium Copyright Act’s “safe harbor” provisions. Evidence that the ISPs had received and failed to respond to notices of the illegal activity from Louis Vuitton was key to the case.

EU to Investigate Oracle/Sun Deal

On September 3, the European Union’s antitrust regulators announced plans for a formal investigation of Oracle’s planned buyout of Sun Microsystems, The Washington Post reports. The investigation will center on the competitive consequences of “the world’s biggest proprietary database company . . . tak[ing] over the world’s leading open-source database company.” The European Commission will come to a ruling on the deal by January 19; the U.S. Department of Justice has already approved it.

Authors Voice Privacy Concerns in Objection to Google Settlement

A group of authors and publishers filed an objection to the proposed settlement between The Authors’ Guild and Google Book Search (GBS), the Electronic Frontier Foundation (EFF) reported on September 8. A fairness hearing regarding the settlement is set for next month. In the objection, prepared by EFF, the ACLU, and the Samuelson Clinic at UC Berkeley School of Law, the authors assert that GBS’s collection of personally identifiable information regarding users’ habits will having a chilling effect on readership. Limited information retention and strict disclosure standards are among the authors’ specific demands.

Third Circuit Upholds Online Gambling Ban
By Caitlyn Ross – Edited by Amanda Rice

Interactive Media Entertainment and Gaming Association Inc. v. Attorney General of the United States, No. 08-1981 (3d Cir. Sept. 1, 2009)
Opinion (Hosted by wired.com)

On September 1, 2009, the U.S. Court of Appeals for the Third Circuit affirmed the United States District Court for the District of New Jersey decision, which upheld the Unlawful Internet Gambling Enforcement Act of 2006.

Wired.com provides an overview of the case. The Wall Street Journal features an analysis of the decision and its potential effects on online gambling. Additional analysis can be found on ZDnet and Law.com. (more…)

By Ian B. Brooks

Paris Hilton Obtains Small Victory in Ninth Circuit

WSJ Blogs reports that the Ninth Circuit gave Paris Hilton the green light on August 31 to proceed in her lawsuit against Hallmark for its use of her image and the phrase “That’s Hot” in a birthday greeting card. The court made note of the similarities between the card and Hilton’s appearance on the television show “The Simple Life.” In support of Hilton, the court stated that she “has at least some probability of prevailing on the merits before a trier of fact.” The case name is Hilton v. Hallmark Cards.

Cable Companies No Longer Capped at 30% Market Share

The Washington Post reports that on August 28, the Court of Appeals for the D.C. Circuit in Comcast v. FCC invalidated an FCC rule that capped the market share of cable companies at 30%. The FCC supported the rule because it believed that cable companies with market share larger than 30% would harm consumers. The court rejected the FCC’s rule in part because it failed to show how consumers would be harmed by the large cable companies in the current market, given the competition between cable, satellite, and fiber optic providers.

Texas Links DNA to Criminal Records

WSJ Blogs reports that on September 1, a new law took effect in Texas will link DNA evidence to sexual assault suspects’ criminal records. The link will be maintained regardless of whether the statute of limitations has passed or the suspect has been tried. The law’s supporters want to ensure harsher penalties to these suspects should they face legal troubles in the future, as the record would be available to parole boards and prosecutors. Critics of the law, including the ACLU, fear the potential abuse of due process rights.

Florida Bar Wants Access to Certain Applicant Facebook Profiles

The Florida Board of Bar Examiners will now be requesting access to the Facebook profiles of certain applicants on a case-by-case basis. The Board has identified a number of categories of applicants that it will require access from, including persons with a history of certain types of legal experience or substance abuse. The Citizen Media Law Project notes many of the privacy concerns related to the Bar’s decision.