JOLT Digest

By Marsha Sukach

FCC and CTIA Announce Plan to Reduce “Bill Shock”

The FCC, the wireless communications association CTIA, and Consumers Union have announced a plan to help customers avoid “bill shock,” or the discovery of unexpected charges that consumers must pay when they exceed their monthly voice, data, and text limits. The FCC identified bill shock as a major problem, CNET reports, with many complaints from consumers who were surprised to find additional charges on their bill. A year ago, the FCC proposed adopting a regulation forcing wireless providers to send alerts to consumers, but this regulation was heavily opposed in the industry. Instead, under the current deal, wireless providers covering 97 percent of users have agreed to provide consumers with alerts voluntarily, according to the Washington Post. The new alerts will begin within 18 months, and will include wireless phone and tablet services, CNET explains.

Verisign Wants Authority to Shut Down Websites Without a Court Order

Verisign, the company that manages .com and .net registrations, wants the power to shut down websites on the request of law enforcement, TIME reports. Verisign filed a request with ICANN, the nonprofit that oversees the Internet’s domain name system, to “allow the denial, cancellation or transfer” of domain name registrations to comply with “laws, government rules or requirements, requests of law enforcement or other governmental quasi-governmental agency, or any dispute resolution process.” The policy is aimed largely at taking down sites that harbor malware, launch phishing attacks, or are otherwise used to launch attacks across the Internet, reports Ars Technica. However, the language does not indicate that the proposed policy will be limited to such cases, and some experts worry that this authority would create an opportunity for abuse by law enforcement.

Amazon’s Kindle Fire Raises Privacy Concerns

Amazon’s coming tablet, the Kindle Fire, is raising privacy concerns with its new Silk browser, ZDNet reports. While Silk may provide faster browsing, funneling all user activity through Amazon’s own servers, it can also track everything that a user does on the web, and create a permanent record of those activities. In Congress, there has been unease on both sides of the aisle, as well as a demand for answers, according to Ars Technica. Rep. Ed Markey (D-MA), co-Chair of the Congressional Bi-Partisan Privacy Caucus, wrote a letter to Amazon CEO Jeff Bezos inquiring about the nature of the information that Amazon plans to collect, how it plans to use the information, and the level of control that customers will have over their data. When Amazon first introduced the Fire, writes the New York Times, it drew a distinction between activity on its own site, which is individually tracked with the user’s permission, and activity on the rest of the internet, which would be aggregated but not linked to users’ identities. Concerns remain, but EFF concludes that it is generally satisfied with Silk’s privacy design, saying that users can easily turn off cloud acceleration mode, and that the safeguards create sufficient protection.

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…)

By Andrew Segna

Google Acquires Motorola Mobility for $12.5 Billion

Google announced on August 15, 2011 that it will acquire Motorola Mobility for $12.5 billion in cash. Ars Technica reports that this purchase was motivated in part by Google’s desire to acquire Motorola’s patents and to protect its Android mobile platform, as this deal will give Google control of more than 17,000 patents in the mobile arena and 7,000 patent applications. This acquisition comes in light of Google accusing Microsoft, Apple, Oracle, and other companies of attacking Google and Android by acquiring Novell and Nortel patents.

Missouri Federal Court Reject LegalZoom’s Motion for Summary Judgment on Whether LegalZoom Violates Unauthorized Practice Law

As reported on Eric Goldman’s Technology and Marketing Law Blog, the District Court for the Western District of Missouri rejected LegalZoom’s motion for summary judgment against accusations that the website dealt in the unauthorized practice of law. LegalZoom offers both blank legal forms and a service in which customers answer a series of questions, which provides LegalZoom’s software with the information necessary to create a completed legal document for the customer. The court did not have an issue with the blank forms. However, the court found that there was a question of whether LegalZoom, through the questionnaire, did more than just allow a customer to pick various wordings of a document.

Activists Protest Bay Area Rapid Transit’s Decision to Cut Mobile Phone Access in Subway Stations

According to the Guardian, a protest occurred in the Civic Center subway station in San Francisco on the night of August 15, 2011 over the decision by Bay Area Rapid Transit (BART) to cut mobile phone access on August 5 in anticipation of a protest against police shootings that threatened to disrupt rush hour commute. Anonymous, the online activist group, broke into BART websites and organized the August 15 protest. BART did not cut off mobile access on August 15 but did temporarily shut down the Civic Center station and three other stations.

Minecraft Developer Vows to Oppose Trademark Infringement Suit

Markus “Notch” Persson, the creator of the popular PC game Minecraft, asserted that he would oppose video game publisher Besthesda Softworks’ claim of trademark infringement, as reported by Ars Technica. Besthesda claims that the title of Persson’s new game, Scrolls, infringes its trademark on its own video games series, The Elder Scrolls. Persson initially responded to the allegations, which he called “bogus,” by challenging Bethesda to a match of the video game Quake III to determine who was right.