Ninth Circuit Denies Rehearing En Banc in Quon v. Arch Wireless Text Message Privacy Case
By Debbie Rosenbaum — Edited by Christina Hayes

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.”

(more…)

Kentucky Appeals Court Overturns Domain Name Seizure 
By Anthony Kammer – Edited by Stephanie Weiner

Vicsbingo.com v. Commonwealth of Kentucky, No 08-CI-01409
Court of Appeals Ruling (Hosted by EFF)
Commonwealth of Kentucky v. 141 Internet Domain Names (original ruling) 

On January 20, 2009, the Kentucky Court of Appeals overturned a lower court’s order to seize 141 Internet domain names that could potentially be used as illegal “gambling devices” within the state. The appeals court granted a stay back in November, but Tuesday’s decision makes it look increasingly unlikely that the state can seize domains in this fashion. According to John Pappas of the Poker Players Alliance, this decision is “a tremendous victory for Internet freedom.” 

On January 21, 2009, a day after this decision was entered, the Commonwealth of Kentucky filed a notice of appeal to the Kentucky Supreme Court.

The three judge panel of the Court of Appeals did not provide a majority opinion, but in a 2-1 decision, Judges Keller and Taylor granted a Writ of Prohibition against the Franklin Circuit Court and successfully blocked the domain name seizure. In his opinion, Judge Keller concluded that domain names did not fall within the statutory definition of “gambling devices” and consequently that the lower court lacked jurisdiction over them. 

The appeals court focused its decision on the language of Kentucky’s gambling statutes, declining to address many of the jurisdictional and constitutional issues posed by the state’s attempt to seize out-of-state interests. Judge Taylor agreed, but in a concurring opinion said that even if the domain names had qualified as “gambling devices,” the statute still did not authorize civil in rem forfeitures and that absent criminal charges, the domain names could not be seized.

Jeremiah Johnston of the Internet Commerce Association told the Associated Press that he approved of the Court of Appeals decision to return the 141 websites but noted that the court had not resolved the important question of whether or not Kentucky has the authority to seize the domain names of overseas companies.

The Court of Appeals emphasized that the Kentucky legislature could redraft the gambling law and provide courts with the authority to seize Internet domain names. However, the Electronic Frontier Foundation points out that even if the Kentucky legislature amended its gambling laws in accordance with the court’s decision, several constitutional problems would still be likely render any attempt at seizure unenforceable. The Amicus Curiae brief filed by the EFF, the Center for Democracy and Technology, and the ACLU of Kentucky, addresses many of these problems.

(more…)

Amazon’s Constitutional Challenge to NY Tax Law Dismissed
By Andrew Ungberg – Edited by Sarah Sorscher
Amazon.com LLC v. New York Dept. of Tax and Finance, No. 601247/08
New York State Supreme Court, First Judicial District, January 12^th 2008
Order

On January 12^th, 2008, Judge Bransten dismissed Amazon’s lawsuit challenging a recently enacted New York State tax law.  The law requires certain sellers, who have no physical presence within the state, to collect sales tax if the seller has commissions-based independent contractors in-state that generate more than $10,000 worth of business in a given year.  Among other things, Amazon alleged the law violated the Commerce Clause because it imposes tax obligations on out-of-state sellers who lack a “substantial nexus” with New York. Judge Bransten rejected all of Amazon’s claims, noting that the statute was “carefully crafted to ensure that there is a sufficient basis for requiring collection of New York taxes . . . .” 

Law.com and Ars Technica provide an overview of the order and litigation thus far.

Erick Schonfeld of Tech Crunch comments, agreeing with New York’s motive but objecting to the means state legislators used to achieve them.  He writes that the law creates “bad precedent” insofar as it overstates the connection between Amazon and its “affiliates.”

(more…)

District Court Finds FISA Preempts State Secrets Doctrine; Government Wiretap Litigation To Continue
By Anna Lamut – Edited by Andrew Ungberg
Al-Haramain v. Bush, No 06-1791 VRW,
District Court for the Northern District of California, January 5, 2009
Order

On Monday, January 5, 2009, Chief Judge Vaughn* Walker of the United States District Court for the Northern District of California denied the U.S. government’s third motion to dismiss the Al-Haramain v. Bush litigation, in which the Al-Haramain Islamic Foundation sued the Bush administration for illegal surveillance of the organization.  The original suit was based on an inadvertently revealed, top-secret government call log which indicated Al-Haramain had been the subject of wiretapping.  However, the case was nearly dismissed after the court found the log to be a state secret, and thus would not be admissible due to national security concerns.  Al-Haramain claimed the document showed the organization was subject to surveillance outside of the scope of the Foreign Intelligence Surveillance Act (FISA).

Ed Brayton of Scienceblogs states that this case may finally end use of the secrets privilege as a means of avoiding all judicial scrutiny of the NSA’s wiretapping program.

Julian Sanchez of Ars Technica points out that the suit is unique in that the Electronic Frontier Foundation, whose attorneys represent the Foundation’s directors, does not normally represent clients who they know were targeted by the NSA for warrantless surveillance. Sanchez also notes that in the opinion, Chief Judge Walker pointed out that in writing the FISA, Congress would not have provided for in camera review of classified documents if it meant to allow the government to use the state secrets provision in each case.
(more…)

Harvard Journal of Law & Technology Vol. 22.1 

Happy New Year!  The Digest Staff has returned to start the new year, and we’re thirlled to begin our coverage with the newest volume of the Harvard Journal of Law & Technology! Volume 22.1 is now available online, featuring: 

Rethinking Broadband Internet Access
Daniel F. Spulber & Christopher S. Yoo
Professors Spulber and Yoo discuss the regulation of broadband Internet access and the reasons why the traditional model based on telecommunication regulation is not applicable to broadband internet using a branch of mathematics called graph theory. Spulber and Yoo argue that the failure to properly adjust to this fact has led to current issues regarding the availability of last-mile broadband systems, most notably the recent conflict between the FCC and Comcast.

The Layers of Obviousness in Patent Law
Jeanne C. Fromer 
Professor Fromer reviews recent developments in the obviousness standard for patents arguing that the examination for obvious should be layered – the court should consider both the obviousness of the conception and the obviousness of the reduction to practice of the invention. She then discusses the implication of such a layered process on patentability of inventions in specific subject areas such as biotechnology and software.

Finding a Cure: The Case for Regulation and Oversight of Electronic Health Records Systems 
Sharona Hoffman & Andy Podgurski 
In the past couple of years, both Congress and the President have promoted programs that would incentivize the creation of electronic health records systems that would allow doctors easy access to all of a patient’s medical background. Professor Hoffman and Podgurski argue both that these systems should and will be created.  However, they also propose a system of regulation not only to ensure the privacy and security of patient records, but to make certain that the systems are reliable and contain accurate information.

Electronically Manufacture Law
Katrina Fischer Kuh
The advent of legal databases such as Westlaw and Lexis have substantially altered the way that legal research is performed. Professor Kuh uses principles of cognitive psychology to examine several specific differences in the approach to legal research and the consequences that these changes will have on the practice of law.

Toward a Culture of Cybersecurity Research
Aaron J. Burstein
Burstein argues that while cybersecurity researchers are making great stride in the protection of data, the progress in this field is actually being inhibited by statutory and informal measures aimed at protecting individual privacy. Burstein promotes the creation of research exception to federal privacy laws so that cybersecurity researchers may have access to data that improve security for all. 

Making Available as Distribution: File Sharing and the Copyright Act
John Horsfield-Bradbury
Student Note discussing several recent copyright cases, specifically, whether simply making a copyrighted work available, but not actually transferring it, counts as infringement.

The Web Difference: A Non-CDA-230 Rationale Against Liability for Online Reproduction of Third-Party Defamatory Content
Matt Sanchez 
Student Note arguing that, regardless of how courts and lawmakers end up interpreting the Communications Decency Act, internet speakers should be immune from liability for reproducing defamatory content. The Note supports this through an analysis of the unique nature and benefits of online speech and reproduction.