Convicted Murderer Demands that Wikipedia Remove His Name from Victim’s Article

On November 11, Wired reported that a convicted murderer in Germany has issued a cease-and-desist letter demanding that Wikipedia remove his name from his victim’s Wikipedia article. Wolfgang Werle murdered Bavarian actor Walter Sadlmayr in 1990, and was released on parole in 2007. The letter demands legal fees and compensation for “emotional suffering” caused by the publication of Werle’s name in connection with the murder since his release. German media have already stopped using Werle’s name. Since Wikipedia is an American organization, the Electronic Frontier Foundation describes the issue as “an apparent conflict between the U.S. First Amendment — which protects truthful speech — and German law — which seeks to protect the name and likenesses of private persons from unwanted publicity.”

Senator Criticizes Verizon’s Increased Cancellation Fees as “Anti-Competitive”

On November 10, Ars Technica reported that United States Senator Amy Klobuchar wrote a letter to Verizon, criticizing the company’s announced increase in early cancellation fees for cell phone contracts. Verizon recently announced that, beginning November 15, the fee for cancelling a subsidized smartphone contract would double from a maximum of $175 to $350. Senator Klobuchar, who is a proponent of the Cell Phone Consumer Empowerment Act, called the increase “anti-consumer and anti-competitive.” Senator Klobuchar also wrote a letter to the FCC, asking for an investigation into the competitive and economic impact of the decision on consumers. Verizon noted that consumers can avoid the early termination fees by purchasing smartphones without Verizon subsidies.

United Kingdom Proposes Mandatory Surveillance of Social Networks, Chat Rooms, and Video Games

On November 9, the BBC reported the United Kingdom government has proposed that communication service providers retain records from a variety of new sources including social networks, chat rooms and online games. The move is designed to monitor the parties to and date of each online communication, but not the “actual contents of what was said.” Specific legislation has not yet been introduced, but the proposal includes compensation for the communications providers that must implement the technically challenging requirements. The government has insisted that most concerns about the proposal have only to do with the “detail of what would be done with the information.”

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.

Microsoft, Yahoo, Amazon Join Opposition to Google Settlement

The New York Times reports that Microsoft, Yahoo, and Amazon have joined library associations, nonprofits, and individuals in opposing the Google Books settlement in The Authors Guild v. Google. The settlement, which would allow Google to provide digital versions of millions of books, still requires court approval and remains the subject of a Department of Justice antitrust investigation. The opposition group, tentatively called the Open Book Alliance, will argue to the Department of Justice that the settlement agreement is anticompetitive.

Internet Law Group Brings Suit Against Unidentified Hackers

“John Doe” suits brought against unidentified Eastern European hackers may offer a glimpse of the hackers’ targets and techniques through subpoenas against defrauded banks. However, the banks may challenge the subpoenas in order to protect customer privacy. Unspam Technologies, a group that recently filed suit against bank hackers in the Eastern District of Virginia, hopes to improve bank security and potentially identify the hackers. The New York Times outlines the stakes and key players in the case, Project Honey Pot v. Does.

Mozilla Versus Microsoft in EU Browser Investigation

Ryan Paul at Ars Technica criticizes Mozilla’s complaints regarding Microsoft’s Internet Explorer bundling and default-setting practices. Paul not only argues that many of Mozilla’s complaints “lack substance,” but also claims that the European Union has no business intervening to encourage competition because Mozilla’s Firefox browser has a 22 percent market share “amidst an increasingly competitive browser market.” In contrast, Mitchell Baker of Mozilla argues that the Firefox browser is at a disadvantage because Internet Explorer has a “uniquely privileged position on Windows installations.”

Marine Corps Bans Social Networking Sites

In a directive issued Monday, the U.S. Marine Corps banned the use of social networking sites on its Marine Corps Enterprise Network, Wired and InformationWeek report. Characterizing these sites — including Facebook, MySpace, and Twitter — as “a proven haven for malicious actors and content,” the Corps hopes the ban will protect the network from cyberattacks and keep adversaries from acquiring user-generated information leaks. The directive does not limit Marines’ access to social networking sites on non-military networks, and a follow-up press statement encouraged the use of social media by Marines on their own ISPs.

Senate Hears Debate on Radio Performance Rights

The Senate Judiciary Committee heard debate Tuesday on the proposed Performance Rights Act, which would compel terrestrial radio stations to pay royalties recording artists, Ars Technica reports. Under current copyright law, webcasters and satellite radio stations pay royalties to both a song’s writer and its performer, while terrestrial stations are only obliged to pay songwriters. The debate pits two powerful interest groups, among others, against each other: the National Association of Broadcasters (NAB) staunchly opposes the bill, while the Recording Industry Association of America (RIAA) has voiced its strong support.

FTC Takes New View of Online Privacy

The Wall Street Journal and The New York Times report new FTC consumer protection head David Vladeck plans to shift the agency’s approach to online privacy protection. In a New York Times interview, Vladeck states he hopes to address the “notice and consent” framework that he considers “no longer sufficient” online, as it has resulted in privacy disclosures that are rarely read or understood. He also plans to consider not only economic harm, but also the “dignity interest” that arises in online information collection. Though no new rulemaking is yet planned, updated FTC privacy guidelines are expected next summer.

By Tyler Lacey – Edited by Anthony Kammer
Federal Trade Commission v. Accusearch Inc., June 29, 2009, No. 08-8003
Slip Opinion

On June 29, 2009, the Tenth Circuit affirmed the Wyoming District Court, holding that Accursearch’s sale of private telephone records on its Abika.com website constituted an unfair practice in violation of the Federal Trade Commission Act (FTCA) and granted summary judgment for the Federal Trade Commission (FTC).

Dan Gooden of The Register provides an overview of the opinion. Eric Goldman criticizes the court’s opinion on his Technology & Marketing Law blog. Although Goldman doubts that “the literal holding of this case is all that troubling to most folks” he believes that the court “muddles the discussion” of each of the CDA immunity prongs.  In particular, Goldman believes that the court erred when it decided that “develop” was essentially synonymous with “publish” for the purposes of analyzing CDA immunity. Goldman describes the opinion as a “major carveback of [the CDA]’s coverage” and predicts problems for online retailers that republish third-party content.

The United States Court of Appeals for the Tenth Circuit held that Accusearch’s business could be considered “unfair” under § 5(a) of the FTCA, even if its behavior was not otherwise unlawful or contemplated by a specific law.  The court also held that Accusearch’s claimed defense under § 230(c)(1) of the Communications Decency Act (CDA) is not valid because Accusearch acted as an “information content provider” in selling the telephone records and is therefore not entitled to immunity under the CDA.

The Court ordered Accusearch to immediately cease selling telephone records and to disgorge nearly $200,000 in profits that it had gained by selling the records.  In holding that Accusearch’s CDA defense was invalid, the Court analyzed three limitations of CDA immunity: the immunized party must be (1) “a provider or user of an interactive computer service”; (2) acting as a “publisher or speaker”; and (3) providing information from “another information content provider.”  The court chose not to resolve the immunity question on either of the first two prongs, but instead employed a broad definition of the word “develop” to dissolve immunity using the third prong, holding that Accusearch was an “information content provider” because “confidential telephone information was exposed to public view through Abika.com.”

Accusearch ran the website Abika.com, which advertised that it could acquire “details of incoming or outgoing calls from any phone number, prepaid calling card or Internet Phone … for every country of the world.”  Accusearch stressed that its website merely provided “neutral tools” and that the data it sold was primarily provided by third-party researchers that were required by Accusearch to provide assurances that they would perform their work in accordance with applicable law.  In holding that Accusearch’s reliance on third-parties to acquire the data that it sold did not serve to limit its liability, the court found Accusearch’s “good faith” reliance on their supplier’s commitment to following the law remarkable.

Judge Tymkovich wrote a concurrence that disagreed with the majority’s “unnecessary extension of the CDA’s terms ‘responsible’ and ‘development.’”  The concurrence agreed that Accusearch should indeed have been held liable for violations of the FTCA, but argued that this liability should be based on Accusearch’s “unfair” conduct, rather the content that it published.  The concurrence sought to avoid the majority’s “amorphous” analysis of the three CDA immunity prongs altogether because liability could be found on grounds that did not involve the CDA.

This case develops new and broad interpretations of the factors that limit CDA immunity, potentially imposing liability on Internet publishers who may have previously believed that they were immune from FTCA liability by virtue of the CDA.  The holding calls into question whether providers of online bulletin boards, which the Court admits are the “prototypical service qualifying for this statutory immunity,” will continue to receive CDA immunity.

Senators Urge FCC to Carefully Examine Exclusive Cell Phone Deals

On June 16, Ars Technica reported that senators wrote a letter to the FCC voicing concern over exclusivity agreements between service providers and phone manufacturers. The four senators who signed the letter – Senators John Kerry (D-MA), Roger Wicker (R-MS), Byron Dorgan (D-ND), and Amy Klobuchar (D-MN) – expressed particular concern as to whether the deals restrict consumer choice regarding handsets and geographic regions. They also noted that the agreements may disadvantage competing smaller carriers and discourage new innovation. According to the letter, the “Senate Committee on Commerce, Science and Transportation will convene a hearing this week to examine issues confronting wireless consumers” and decide if legislative action is necessary. Although the iPhone’s exclusivity agreements have garnered the most attention, the letter considers all cell phone carriers.

Microsoft Files Suit After Finding Evidence of Click Fraud

On June 16, the New York Times reported that Microsoft sued three individuals and several corporations for $750,000 in damages for click fraud – manipulating clicks on online advertisements. After noticing suspicious spikes in traffic from auto insurance and World of Warcraft web advertisements, Microsoft began an investigation that eventually uncovered an alleged click fraud manipulation scheme. Microsoft’s complaint alleges that the defendant directed traffic to his competitors’ Web sites so they would pay for the clicks and exhaust their advertising budgets. Jeremy Fain, a vice president of Interactive Advertising Bureau, said that although there is much precedent for mail and wire fraud, there is little regarding internet fraud. He went on to say that this case may “create more of a legal precedent, and more of a legal library of cases to draw from in the future.”

EU Seizure of Indian Drugs Hinders Medicine Dispersal

According to a recent report by Intellectual Property Watch, an increase in European seizures of Indian medicines believed to infringe intellectual property rights has triggered concerns that there is a strategic pattern in enforcement. On June 16, Spicy IP reported that India has recently protested to the TRIPS Council, expressing strong disapproval of EU’s controversial regulations and demanding more transparency of the various seizures. In May, German officials held about 3 million pounds of Amoxicillin on suspicion of a trademark infringement, delaying shipment to the Pacific by 4 weeks. “These random seizures seriously impact our ability to service the healthcare needs of people living in developing countries in a timely manner,” according to a drug supplier spokesperson. The EU claims that it is merely trying to reduce the “fast growing and dangerous” problem of counterfeits in developing countries.

Federal Prosecutors Launch New Attack Against Online Gamblers in the United States

On June 9, the New York Times reported that federal prosecutors asked four American banks to freeze accounts containing money believed to be used for distributing winnings to online poker players. Wells Fargo, one of the contacted banks, received a court order requiring that the funds be frozen. Professor I. Nelson Rose of Whittier Law School described the move as “surprising” and as a “gamble” by the prosecutors. Professor Rose also said that it is unclear what laws apply to the seizure of individuals’ money.

Canadian Government Decides Not to Regulate Internet Video and Audio Broadcasts

Canadian radio and television broadcasters are required by the Canadian Radio-television and Telecommunications Commission (CRTC) to broadcast a minimum amount of Canadian content. On June 9, Ars Technica reported that the CRTC issued a report saying that although internet audio and video do count as “broadcasting” for the purposes of their regulatory schemes, they will retain a regulatory exemption from providing Canadian content. The CRTC’s decision, while currently supported by major providers of online audio and video such as Google, leaves open the possibility that the CRTC will impose future regulations.

Electronic Frontier Foundation Urges Court to Hold Email Protected Under the Fourth Amendment

On June 10, the Electronic Frontier Foundation (EFF) filed an amicus brief in the Sixth Circuit’s ongoing case Warshak v. United States. The brief argues that the Justice Department violated Warshak’s Fourth Amendment expectation of privacy in his email. The EFF reports that “the government acquired over 27,000 emails spanning over six months from Warshak’s email provider, all without probable cause.” The basis of EFF’s position is that email should receive the same protection against unlawful search and seizure as is given to phone calls, postal mail, and private papers kept at home.

Court Abused Discretion by Failing to Apply eBay Factors

On June 9, Patently-O reported that the Federal Circuit remanded a patent dispute case back to the district court because it failed to consider the eBay factors in its refusal to grant a permanent injunction to the patent holder. In the eBay case, the Supreme Court required a patentee seeking injunctive relief to “demonstrate (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

By Andrew Jacobs – Edited by Ezra Pinsky
Nat’l Cable & Telecomm. Association v. Fed. Commc’ns Comm’n, May 26, 2009, No. 08-1016
Slip opinion

On May 26, 2009, the Court of Appeals for the District of Columbia Circuit upheld the Federal Communications Commission’s (“FCC”) ban on future and existing exclusivity agreements between cable companies and the owners of apartment buildings and multi-unit developments (“MUDs”). Writing for a unanimous court, Judge Tatel held that the ban was both “well within the bounds” of the FCC’s statutory authority and in full accordance with the requirements of the Administrative Procedure Act (“APA”). The National Cable & Telecommunications Association (“NCTA”), a cable industry group, opposed the regulation.

Matthew Lasar summarizes the case while pointing out that this decision is “a victory for telcos like AT&T and Verizon.” However, he notes that many “MDU-like dwellings,” such as time share units and school dorms, are not subject to the ban. The Blog of Legal Times and Blawgletter also provide summaries of the case.

The FCC argued that the ban fell under section 628(b) of the Communications Act, which prohibits cable operators from “engag[ing] in … unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor [MPVD] from providing satellite cable programming or satellite broadcast programming to subscribers or consumers.”

The court agreed, using the two-step Chevron test to guide its analysis. First, it found that the statute does not “unambiguously foreclose[] the Commission’s interpretation.” Most importantly, the court reasoned, the ban falls within a literal reading of the statute: Exclusivity contracts prevent competing cable operators, which are considered MPVDs, from providing service, and thus programming, to consumers. The court rejected the NCTA’s argument that since the provision’s original purpose was merely to prevent cable companies from halting the flow of programming to competitors, indirect regulation on programming through broad regulation of service is unlawful. The court concluded that “while the statute’s text, structure, and history do support the proposition that Congress was, in fact, principally concerned with program hoarding,” it does not limit the FCC to regulating programming delivery in ways tailored to that problem alone. Proceeding to Chevron’s second step, the court found that whatever ambiguity section 628 did possess was reasonably resolved by the FCC’s interpretation.

In addition to upholding the regulation’s statutory authority, the court also rejected the argument that the FCC’s reversal of its 2003 decision allowing exclusivity contracts was arbitrary and capricious. The court pointed out that the FCC is allowed to change its position as long as it provides “a reasoned analysis,” and in this case their reasoning was “more than equal to our forgiving standard of review.” In particular, the court noted that the earlier decision to allow exclusivity contracts was explicitly based on the lack of a fully developed record regarding the effect that these contracts have on competition. However, the FCC’s extensive analysis since that decision is sufficient enough to support a reversal of their original position.

Finally, the court upheld the ban’s effect on existing exclusivity contracts. Petitioners had argued that the FCC’s actions violated “the APA’s requirements that ‘legislative rules … be given future effect only,’ or, alternatively, to agency action with harmful, secondarily retroactive effects that the Commission failed to consider.” The court responded that the FCC’s ban only affects the current situation, and does not act retroactively. Additionally, “the Commission did expressly consider the relative benefits and burdens of applying its rule to existing contracts and, after extensive analysis, concluded that banning enforcement of existing contracts was essential.”

Though Senior Circuit Judge Silberman “fully agree[d]” with Judge Tatel’s opinion, he wrote separately to highlight NCTA’s implicit reliance on Holy Trinity Church v. United States, 143 U.S. 457 (1892), the seminal case endorsing purpose-based, rather than plain-language, statutory interpretation.

The FCC hopes that as a result of the ban, “triple play” service—whereby video, telephone, and internet service are sold as a bundled package—will be more readily available in apartment buildings and other multi-unit dwellings. They found that triple play competition between telephone and cable companies will “spur[] deployment of advanced technology, and facilitate[] efficiency and simplicity in the market.”

British Web Tracking Tool Violates European Union Privacy Laws

This Tuesday, the European Union issued a legal warning against Britain for not applying EU data privacy rules to Phorm, a new advertising technology that tracks the Web movements of internet users. BT, Britain’s largest service provider, used Phorm without its customers’ consent during 2006 and 2007. As reported in the New York Times, the European telecommunications commissioner stated that the “European privacy rules are crystal clear: a person’s information can only be used with their prior consent.” The Associated Press describes further actions the European Commission may take if Britain does not adequately enforce European privacy laws.

Proposed Bill Would Remove Sales Tax “Loophole” for Online Purchases

CNET News reports that a congressional bill expected to be introduced early next week “would rewrite the ground rules for mail order and Internet sales.” Under existing law, consumers are responsible for reporting and paying the amount owed for online and mail order purchases under their home state’s sales tax. According to CNET, “California’s Board of Equalization estimates the state lost $1.34 billion in 2003 because residents aren’t paying use taxes–and attributes $208 million of that to online purchases.” The proposed bill could incorporate the Streamlined Sales Tax Agreement, which encourages states to simplify their sales tax codes in order to help online retailers collect sales taxes more easily.

Swedish Anti-File Sharing Law Decreases Traffic, Increases Legal Downloads

Enforcement of Sweden’s Intellectual Property Rights Enforcement Directive (IPRED) law began on April 1, 2009. The Local notes that the law resulted in a 30% decrease in online traffic, as well as a doubling of legal music downloads. T3 reports that the in response to the IPRED enforcement, The Pirate Bay plans to offer a Virtual Private Network service that will make internet users more anonymous.

Quon v. Arch Wireless Operating Co.
Ninth Circuit, No. 07-55282
Order denying rehearing en banc
Opinion concurring in denial of rehearing en banc
Opinion dissenting from denial of rehearing en banc

On January 27, 2009, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, a case decided by a Ninth Circuit panel in June of 2008.  The Ninth Circuit panel held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials audited text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

Shaun Martin of the California Appellate Report investigates the politics of the concurring and dissenting opinions.  Martin points out that despite the similarities between Judges Wardlaw and Ikuta (both judges are UCLA Law School graduates, well-recognized women in Southern California, and both practiced for the firm of O’Melveny & Myers), the conflict evident in their opinions amounts to a series of “dueling bench slaps extraordinarie.”

Judge Ikuta, who was joined in her dissent from the the denial of rehearing en banc by six other Ninth Circuit judges, criticized the Ninth Circuit panel’s conclusion that the city police department had violated the Fourth Amendment when it audited the text messages because it failed to use a less intrusive search method.  She argued that there were two problems with this conclusion: (1) in ruling that there was a reasonable expectation of privacy in the text messages sent and received on pagers provided to officers for work purposes, the panel “improperly hobble[d] government employers from managing their workforces;” and (2) the adoption of the less intrusive means test conflicted with Supreme Court case law and decisions of the majority of the federal circuit courts.

Judge Wardlaw, who authored the original panel opinion, responded in a concurring opinion that began with some harsh words:

No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.  The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding.

Judge Wardlaw argued that the panel opinion carefully and correctly applied Supreme Court precedent, whereas the dissent’s conclusions were based on its “loose recitation of ‘facts,’ untethered from the record evidence or jury findings.”

Previously: Ninth Circuit Applies Fourth Amendment to Text Messages at Work