JOLT Digest

New Information about Carrier IQ Software Sparks Concerns that Wireless Carriers Have Violated Federal Anti-Wiretapping Laws

By Abby Lauer – Edited by Michael Hoven

Last month, a security researcher from Connecticut published information about a software program installed on some mobile smartphones that may be surreptitiously collecting data about how the phones are used. The software, called Carrier IQ and manufactured by a company of the same name, has been described as hard to detect, hard to remove, and programmed to run by default without the user’s knowledge. The scandal escalated last week when Senator Al Franken sent a letter to Carrier IQ asking for details about the software and the company’s business practices. Privacy analysts are concerned that the software violates the Federal Wiretap Act, as amended by the Electronic Communications Privacy Act, which forbids the intercepting of “wire, oral or electronic communication” and authorizes penalties of $100 per day for each violation. 18 U.S.C. §§ 2511, 2520. Other commentators have suggested that Carrier IQ may also violate the Computer Fraud and Abuse Act. 18 U.S.C. § 1030. So far, at least eight class action lawsuits have been filed against Carrier IQ and various device makers and wireless carriers.

Computerworld provides a general overview of the Carrier IQ software and the recent scandal. For a more detailed analysis of the legal issues, see Forbes, paidContent.org, and Talking Points Memo. (more…)

Third Circuit Affirms Prior Decision to Strike Down FCC Fine for CBS Broadcast of Janet Jackson’s Breast During Super Bowl Halftime Show
By Abby Lauer – Edited by Albert Wang

CBS Corp. v. FCC, No. 06-3575 (3d Cir. Nov. 2, 2011)
Slip Opinion

The Third Circuit Court of Appeals affirmed its earlier decision throwing out a $550,000 fine that the Federal Communications Commission imposed on broadcasting corporation CBS for airing a split-second image of Janet Jackson’s exposed breast during the 2004 Super Bowl Halftime Show.

Reaching the same conclusion as it had in a 2008 ruling, the Third Circuit held that CBS’s broadcast was legal under the FCC’s policy at the time, which permitted networks to air instances of “fleeting” indecency without being sanctioned. The Court of Appeals ruled that it was arbitrary and capricious for the FCC to change its policy retroactively and impose a steep fine on CBS without notifying the network of the policy change. In reaffirming its 2008 ruling, the Third Circuit declined to change its position in light of the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), which upheld the FCC’s decision to abandon its safe harbor for broadcasted expletives that are not repeated. The Third Circuit stated that “Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the [FCC] acted arbitrarily . . . .” Slip op. at 5.

SCOTUSblog provides an overview of the case. Ars Technica also describes the decision and discusses possible implications for future prime time broadcasts.

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By Andrew Crocker

AT&T/T-Mobile Merger Blocked by Justice Department

The New York Times reports that the Justice Department is seeking to prevent the proposed merger between AT&T and T-Mobile, which are respectively the second and fourth largest mobile carriers in the United States.  In a suit filed in the U.S. District Court for the District of Columbia, the Justice Department stated that the merger would “substantially lessen competition” in the wireless marketplace and lead to price increases.  According to Bloomberg News, in the event the merger does not go through, Deutsche Telekom, which owns T-Mobile, is contractually entitled to $7 billion in “breakup fees” and other concessions, which would provide AT&T with a significant incentive to fight the government intervention in court.  The Washington Post points out that a court battle will also have high stakes for the Justice Department, which has been criticized for taking a weak approach to possible antitrust issues in recent high-profile mergers, including Comcast’s acquisition of NBC earlier this year.

EFF Challenges Dismissal of NSA Wiretapping Suits

Appearing before a panel of the Ninth Circuit, the Electronic Frontier Foundation (EFF) has challenged the dismissal of a number of lawsuits focusing on the National Security Agency’s alleged illegal mass wiretapping of Internet traffic through backdoor access to major telecommunications companies, Wired reports.  EFF brought suit against AT&T and other telecoms, but the suits were dismissed after the NSA invoked the state secrets doctrine and Congress passed a law that allowed the President to grant the companies retroactive immunity.  A parallel suit against the NSA itself was dismissed for lack of standing.  According to EFF, allowing the President to grant the telecoms immunity is a violation of the Constitution’s separation of powers, suggesting that the suits should be allowed to proceed on their merits.

Unredacted Wikileaks Files Available Online

A quarter-million U.S. State Department cables contained in an encrypted file belonging to the whistleblower organization Wikileaks are currently available on the web in unredacted form, according to Ars Technica.  The diplomatic cables contain the names of informants and confidential sources, whom the State Department argues may be put in danger by the publication.  Wired reports that Wikileaks, which has before removed potentially sensitive information from documents it leaks to the public, blames its contacts at the British newspaper the Guardian for publishing a book that contained the password to the unredacted file.  However, Der Spiegel reports that the Guardian responded by blaming Wikileaks founder Julian Assange for his own allegedly lax security procedures, a charge also made by Daniel Domscheit-Berg, an ex-spokesman for Wikileaks.

Despite First Amendment Challenge, Seventh Circuit Allows High School Sports Association to Exclusively License Broadcasting Right

By Abby Lauer – Edited by Andrew Segna

Wis. Interscholastic Athletic Ass’n v. Gannett Co., Inc., No. 10-2627 (7th Cir. Aug. 24, 2011)
Slip Opinion

The Seventh Circuit Court of Appeals affirmed the District Court for the Western District of Wisconsin, which had granted summary judgment to the Wisconsin Interscholastic Athletic Associate (WIAA) in a declaratory judgment action against local news media company Gannett Co., Inc.

The Seventh Circuit held that it is constitutional for the WIAA, a state actor, to exclusively license the right to broadcast tournament games played by member schools. In so holding, the court rejected Gannett’s argument that WIAA’s contract, which grants American Hi-Fi the exclusive right to stream tournament games and requires consent and payment for third-party broadcasts of entire games, violates the First Amendment.

The State Bar of Wisconsin provides an overview of the case. Techdirt criticizes the decision, expressing concern that the Seventh Circuit has created a new intellectual property right. (more…)

District Court Requires Warrant for Cell Phone Location Data

By Michael Hoven – Edited by Jonathan Allred

In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (E.D.N.Y. Aug. 22, 2011)

Slip opinion

The United States District Court of the Eastern District of New York denied the government’s request to order Verizon Wireless to turn over 113 days of customer location data which, according to the government, was relevant to a criminal investigation.

The court held that the Fourth Amendment covered cell phone location data and that law enforcement would need to show probable cause and receive a warrant to access such information. The court decided that cell phone users have a reasonable expectation of privacy that deserves protection from government intrusion. In so holding, the court applied an exception to the third-party-disclosure doctrine that would otherwise give law enforcement access to non-content information (such as location data) that users have already divulged to a third party (such as a service provider), concluding that disclosure of cumulative cell phone location data would be as intrusive as disclosure of the content of cell phone communications.

Ars Technica provides an overview of the case. Techdirt applauds the decision’s protection of cell phone users’ privacy. Wired notes that action by the Supreme Court or the Senate could favor government access over user privacy and limit the effect of the court’s ruling. (more…)