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DOJ Indicts Nine for Zeus Malware Theft From Online Bank Accounts
By Emma Winer – Edited by Sheri Pan

United States v. Penchukov

Last week, the Department of Justice released a previously sealed indictment against alleged conspirators in an international scheme that stole millions of dollars from online bank accounts. The conspirators allegedly infected thousands of computers with “Zeus” malware, which captured passwords, bank account numbers, and other online banking information. Two of the defendants were arraigned in Nebraska after being extradited from the United Kingdom.

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European Court of Justice Invalidates Data Retention Directive
By Paul Klein – Edited by Alex Shank

In a preliminary ruling requested by courts in Ireland and Austria, the European Court of Justice found that Directive 2006/24/EC was invalid. The Grand Chamber recognized the legitimacy of retaining telecommunications data as a means to combat serious crime and terrorism, but it ultimately held that the far-reaching scope of the Directive disproportionately affected individual privacy under the Charter of Fundamental Rights of the European Union.

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Google to Supreme Court: Snagging Data from Unsecured Wi-Fi is Perfectly Legal
By Michael Shammas – Edited by Mary Schnoor

Google has filed a petition for a writ of certiorari asking the Supreme Court to label its Street View cars’ collection of unencrypted Wi-Fi traffic legal, appealing the Ninth Circuit’s decision that Google may have violated the federal Wiretap Act. Google believes unencrypted Wi-Fi traffic should be classed as “radio communications” accessible to the public.

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Mozilla Announces Resignation of Recently Appointed CEO Brendan Eich Following Controversy over Gay Marriage Opposition
By Sheri Pan – Edited by Corey Omer

On April 3, Mozilla Corporation (“Mozilla”), a subsidiary of the non-profit Mozilla Foundation most widely known for producing the Firefox browser, announced that its CEO of less than two weeks, Brendan Eich, has resigned, after pressure from Mozilla employees, bloggers, and developers who opposed his appointment in light of a $1000 donation that he made in 2008 in support of Proposition 8, a ballot measure that sought to ban gay marriage in California.

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Flash Digest: News In Brief
By Emma Winer

Third Circuit Vacates Hacker Conviction for Improper Venue

French Unions and Employers Agree to Curb After-Hours Work Email

Limited Sale of Google Glass Slated For April 15

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G.C. v. Owensboro Public Schools
By Michelle Sohn– Edited by Sarah Jeong

G.C. v. Owensboro Public Schools, No. 11-6476, (6th Cir. Mar. 28, 2013)
Slip Opinion

In a 2-1 decision, the Sixth Circuit reversed the U.S. District Court for the Western District of Kentucky. The lower court had granted summary judgment for Owensboro, holding that the school’s search of a student’s cell phone did not violate the Fourth Amendment.

The Sixth Circuit held that the school’s search of G.C.’s cell phone was an unreasonable search and seizure. In so holding, the court stated that despite the school’s knowledge of G.C.’s prior behavioral problems, school officials had no specific reason at the time of the search to believe that he was engaging in an unlawful activity. Although using a cell phone in class contravened the school’s policy, “using a cell phone on school grounds [did] not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone.” G.C.,slip op. at 13.

EducationWeek provides a thorough analysis of the Fourth Amendment issue. The New York Times editorial board lauded the decision, writing that the Sixth Circuit “correctly ruled” and “wisely interpreted” the scope of a reasonable search as applied to students. (more…)

Posted On Apr - 13 - 2013 Comments Off READ FULL POST

WNET, Thirteen v. Aereo, Inc.
By Natalie Kim – Edited by Samantha Rothberg

WNET, Thirteen v. Aereo, Inc. 12-2786-cv, 12-2807-cv (2d Cir. Apr. 1, 2013)
Slip opinion

Last Wednesday, the U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s July 2012 denial of a preliminary injunction motion filed against Aereo by several broadcast TV networks. Aereo is an Internet-based streaming service that allows users to watch broadcast TV shows live or record them for future viewing. A group of broadcast networks, including Fox and Univision, sued Aereo for allegedly violating their public performance rights under § 106(4) of the Copyright Act and demanded a preliminary injunction to prevent Aereo from continued operation. Aereo, slip op. at 5

In a 2–1 decision, the Second Circuit applied its own precedent, Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), to find that Aereo did not infringe plaintiffs’ copyright and therefore no preliminary injunction was warranted. Aereo, slip op. at 32–35.

The New York Times summarizes the holding, giving a pessimistic outlook on the broadcasters’ prospects of rooting out Aereo and other like services. TVNewsCheck takes a spirited position against the district court’s July 2012 ruling, warning of the “havoc this travesty will wreak.” Aereo released a statement regarding the decision. (more…)

Posted On Apr - 10 - 2013 Comments Off READ FULL POST

By Craig Fratrik

Flash DigestGoogle Challenges FBI’s National Security Letters Process for Requesting Information

Google filed a petition to set aside a request for user data by the FBI. The case is in front of U.S. District Judge Susan Illston, who two weeks prior ruled that the associated gag order accompanying national security letters (“NSL”), which the FBI uses to request user data, rendered them unconstitutional (previously reported by the Digest). Judge Illston stayed that ruling for ninety days, and allowed the documents in Google’s case to be sealed pursuant to the the requirement of the statute under which the FBI makes the requests by sending national security letters (NSLs). Nevertheless, Google’s petition is a further challenge to the use of NSLs.  Bloomberg broke the story. Ars Technica and the Washington Post report as well.

Rackspace Sues “Patent Troll” For Breaking Forbearance Agreement

On its blog, Rackspace explained its lawsuit against IP Navigation Group (IP Nav), who they called “the most notorious patent troll in America.” They claim that IP Nav violated a mutual forbearance agreement to give 30 days notice of a lawsuit that the two had negotiated in 2010. Rackspace seems eager to take a stand against patent trolls, claiming that they have seen a “500 percent spike since 2010 in [their] legal spend.” Ars Technica provides some more background about IP Nav.

California Bill Would Require Companies to Provide Tracked Personal Information

California Assembly Member Bonnie Lowenthal introduced the “Right to Know Act of 2013,” (AB-1291), which would require businesses to provide customers’ personal information upon request. Many have noted that this bill would move customers’ rights to request such data closer to those possessed by European citizens (e.g., Wall Street Journal, EFF, The Verge). The bill is supported by both the EFF and the ACLU of Northern California. The Wall Street Journal‘s coverage highlights the industry backlash.

Posted On Apr - 8 - 2013 Comments Off READ FULL POST

Florida v. Jardines
By Mary Grinman – Edited by Geng Chen

Florida v. Jardines, No. 11-564 (U.S. Mar. 26, 2013)
Slip opinion

Photo By: Charlie KaijoCC BY 2.0

In a 5–4 decision, the Supreme Court of the United States affirmed the Supreme Court of Florida, which had held that the use of a trained narcotics dog to inspect the area immediately surrounding Joelis Jardines’s home, including his porch, constituted a Fourth Amendment “search.”

Justice Scalia’s majority opinion held that using drug-sniffing dogs in the area immediately surrounding a home was a search within the original meaning of the Fourth Amendment because the Government physically intruded onto the constitutionally protected “curtilage” of the home. See Jardines, slip op. at 9–10.  Although some intrusion onto curtilage is permissible, the Government’s purpose “to engage in conduct not explicitly or implicitly permitted by the homeowner,” id. at 3–4, rendered this intrusion unlawful. The Court found it unnecessary to decide whether Jardines had a reasonable expectation of privacy under Katz v. United States because this was a much more fundamental Fourth Amendment case. Id. at 9.

SCOTUSblog presents a concise summary of the opinion. Forbes questions whether the decision’s focus on property rights lays groundwork for an attempt to overrule Katz. The Cato Institute, one of the amici in this case, applauds Justice Kagan’s concurrence for focusing on the specialized nature of the drug-sniffing dog, but regrets the use of the “reasonable expectation of privacy test.” (more…)

Posted On Apr - 4 - 2013 1 Comment READ FULL POST

FTC v. Actavis, Inc.
By Suzanne Van Arsdale – Edited by Jennifer Wong

FTC v. Actavis, Inc., No. 12-416 (U.S. Mar. 25, 2013)
Transcript of Oral Argument

Photo By: e-Magine ArtCC BY 2.0

On Monday, March 25, the Supreme Court heard oral arguments in FTC v. Actavis, Inc., to determine the legality, under antitrust laws, of patent litigation settlements made by the maker of a brand-name drug to the maker of a generic competitor to keep the generic off the market temporarily, known as a “reverse payment agreement” or “pay for delay.”

The FTC has been opposed to this type of deal for years, but the Eleventh Circuit and other circuits have held such settlements per se lawful unless the underlying litigation was a sham or obtained by fraud. In 2012 the Third Circuit held reverse payments presumptively anticompetitive and unlawful in the K-Dur opinion (previously covered by the Digest). In Re K-Dur Antitrust Litigation, 686 F.3d 197 (3d Cir. 2012).

SCOTUSblog, Patently-O, the New York Times, and the Washington Post have further coverage. SCOTUSblog also has information about the case’s background. (more…)

Posted On Apr - 3 - 2013 Comments Off READ FULL POST
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DOJ Indicts Nine for

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European Court of Ju

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Google to Supreme Co

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Mozilla Announces Re

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By Emma Winer Third Circuit Vacates Hacker Conviction for Improper Venue The ...