By Craig Fratrik

Google 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.

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 Kaijo – CC 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…)

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 Art – CC 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…)

By Kathleen McGuinness

Supreme Court of Canada Rules That Text Message Monitoring Requires Warrant

On Saturday, the Supreme Court of Canada ruled 5-2 that the real-time police monitoring of text messages was an interception of private communications and required a hard-to-obtain wiretap authorization. R. v. TELUS Communications Co., 2013 SCC 16 (Can.). As the Globe and Mail describes, these authorizations are limited to certain serious crimes and to situations where other investigative techniques have been ineffective. Ars Technica contrasts this privacy-protective holding with the law in the United States, where courts have split over the legal protections afforded to text messaging.

Google Announces Open Patent Non-Assertion Pledge

To encourage the development of open source software, Google recently announced its new Open Patent Non-Assertion Pledge (OPN). Under this framework, Google has promised not to assert ten of its patents against open source software, subject to “defensive termination” if another entity sues them. The EFF describes the importance of these patents, one of which had already raised worries among open source developers, and discusses Google’s future proposals for similar licensing agreements designed to promote innovation. Google expects the OPN to have several benefits, including transparency, broad protection, and durability; Forbes describes these benefits in detail.

Legal Challenges to “Stingray” Surveillance Devices Continue to Grow

According to emails published on Wednesday, federal investigators have used “stingray” devices, a form of electronic surveillance, without explaining the method clearly to the judges issuing warrants. Ars Technica reports the story. As the EFF reports, “stingrays” can locate a cell phone by mimicking a phone tower, but gather large amounts of information from non-targeted users in the process. Because of this indiscriminant data gathering and the lack of effective judicial oversight, privacy organizations are concerned about the use of the devices. One case, United States v. Rigmaiden, No 08-814, 2012 WL 1038817 (D. Ariz. Mar. 28, 2012), has become the center of this legal controversy, with involvement from privacy organizations including the ACLU and EPIC. The Wall Street Journal describes the case’s history.

UMG v. Veoh
by Pio Szamel ­– Edited by Jacob Rogers

UMG Recordings, Inc. v Veoh Networks, Inc., Nos. 09–55902, 09–56777, 10–55732 (9th Cir. Mar. 14, 2013)
Slip opinion

The Ninth Circuit affirmed the Federal District Court for the Central District of California, which had granted summary judgment finding that the streaming-video host Veoh was protected by the safe harbor provisions of the Digital Millenium Copyright Act (“DMCA”) and dismissed additional infringement claims against Veoh’s investors.

On March 14, the Ninth Circuit handed down a much-delayed opinion in UMG v Veoh, rejecting Universal Music Group’s contentions that the streaming-video host Veoh was not protected by the DMCA’s safe harbor provision for online hosting providers, 17 U.S.C. §512(c). While UMG had argued that Veoh was outside the scope of the DMCA because it went beyond simple “storage at the direction of a user” by transcoding videos into common streaming formats and facilitating access to them, the court found that enabling access in this way is an essential part of web-hosting. UMG at 24-25. It also affirmed that the safe-harbor exception for actual or red-flag knowledge of infringement, 17 U.S.C. § 512(c)(1)(A), requires knowledge of specific infringing or likely infringing content, not just suspicious categories of content. Id. at 31-34.  Finally it found that Veoh did not have the “right and ability to control” infringing activity, as required by another exception to the safe harbor provisions, 17 U.S.C. § 512(c)(1)(B), rejecting Viacom’s contention that this exception should be interpreted in line with the common law definition of vicarious liability. Id. at 40, 42.

The Electronic Frontier Foundation, which had filed an amicus brief in support of Veoh, hails the decision as a victory for hosts of user-generated content, while TechCrunch provides a primer on the state of DMCA safe-harbor law in its wake. The Copyright Alliance, a content industry trade group, argues that the 9th Circuit opinion still leaves open a few possible lines of attack against hosting providers. (more…)