A student-run resource for reliable reports on the latest law and technology news
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Facebook Blocks British Insurance Company from Basing Premiums on Posts and Likes

By Javier Careaga– Edited by Mila Owen

Admiral Insurance has created an initiative called firstcarquote, which analyzes Facebook activity of first-time car owners. The firstcarquote algorithm determines risk based on personality traits and habits that are linked to safe driving. Firstcarquote was recalled two hours before its official launch and then was launched with reduced functionality after Facebook denied authorization, stating that the initiative breaches Facebook’s platform policy.

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Airbnb challenges New York law regulating short-term rentals

By Daisy Joo – Edited by Nehaa Chaudhari

Airbnb filed a complaint in the Federal District Court of the Southern District of New York seeking to “enjoin and declare unlawful the enforcement against Airbnb” of the recent law that prohibits  the advertising of short-term rentals on Airbnb and other similar websites.  Airbnb argued that the new law violated its rights to free speech and due process, and that it was inconsistent with Section 230 of the Communications Decency Act, which protects online intermediaries that host or republish speech from a range of liabilities.

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Medtronic v. Bosch post-Cuozzo: PTAB continues to have the final say on inter partes review

By Nehaa Chaudhari – Edited by Grace Truong

The Court of Appeals for the Federal Circuit (“the Federal Circuit”) reaffirmed its earlier order, dismissing Medtronic’s appeal against a decision of the Patent Trial and Appeal Board (“PTAB”). The PTAB had dismissed Medtronic’s petition for inter partes review of Bosch’s patents, since Medtronic had failed to disclose all real parties in interest, as required by 35 U.S.C. §312(a)(2).

 

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California DMV Discuss Rules on Autonomous Vehicles

DOJ Release Guidelines on CFAA Prosecutions

Illinois Supreme Court Rule in Favor of State Provisions Requiring Disclosure of Online Identities of Sex Offenders

Research Shows Concerns for Crucial Infrastructure Information Leaks

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Flash Digest: News in Brief

By Cristina Azcoitia – Edited by Kayla Haran

FTC Explores Crowdfunding Oversight

Comcast Sues Nashville to Stall Google Fiber

FCC Imposes New Consumer Privacy Rules on Internet Service Providers

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3293465641_b6c5081e87_qBy Filippo Raso – Edited by Ariane Moss

Detroit Free Press, Inc. v. U.S. Dep’t of Justice, — F.3d — (6th Cir. 2016).

In a 9-7 en banc decision, the U.S. Court of Appeals for the Sixth Circuit reversed the lower courts’ ruling, holding individuals have a privacy interest in their booking photos for the purposes of Exemption 7(C) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In so doing, the Court overruled Circuit precedent established two decades ago in Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93 (6th Cir. 1996) (“Free Press I”).

The FOIA requires federal agencies to make their records available to any requester unless the documents fall within the statutory exemptions. Exemption 7(C) allows agencies to refuse requests for “records or information compiled for law enforcement purposes” if public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The burden rests on the agency. Free Press I held there is no privacy interest in booking photos in ongoing criminal proceedings. Following Free Press I, the United States Marshals Service (“USMS”) allowed booking photos to be released by requesters under the Sixth Circuit jurisdiction. Following opinions by the Tenth and Eleventh Circuits disagreeing with Free Press I, the USMS refused booking photos nationwide. This suit followed. Both the District Court and a Panel of the Sixth Circuit, bound by Free Press I, ordered the USMS to disclose the photos. The Sixth Circuit granted rehearing en banc.

Writing for the Court, Circuit Judge Deborah Cook relied heavily on U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). Reporters involved a request for a defendant’s rap sheet. In finding there is a privacy interest in rap sheets, the Supreme Court in Reporters required “balance[ing] the public interest in disclosure against the interest Congress intended the Exemption to protect.” Following the Supreme Court’s reasoning in Reporters, Judge Cook found that Exemption 7(C) protects citizens’ interest in avoiding disclosure of “[e]barassing and humiliating facts—particularly those connecting an individual to criminality.” Booking photos “fit squarely within this realm.”

To justify overruling a twenty-year precedent, Judge Cook explained the impacts booking photos have and new realities from modern technology. For example, Judge Cook highlighted that booking photos “convey guilt to the viewer.” This is why the Sixth Circuit disfavors showing juries booking photos in criminal trials. Booking photos also persist longer than before—“an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.” Finally, Judge Cook cited the “online-reputation-management industry,” specifically websites that aggregate booking photos and remove them for a fee, as demonstrating a privacy interest.

The Sixth Circuit endorsed the “case-by-case” balancing requested by USMS. Because the FOIA is meant to provide understanding of the operations or activities of government, it may be inappropriate to disclose a private citizen’s information that reveals little or nothing about the agency’s conduct. The Sixth Circuit leaves open two methods to receive booking photos through the FOIA. First, where the public interest outweighs the individual privacy interest. Second, where the defendant waives her privacy interest in the booking photo.

Chief Judge Cole joined in full with the Court, but wrote a concurrence to emphasize two points. First, Exemption 7(C) “plainly extends to a private individual’s desire to avoid disclosure of personal details that may be humiliating, embarrassing, or painful.” Second, that the Court’s opinion does not foreclose a requester making a “meaningful showing of the significant public interest.” Instead, the opinion merely provides a “workable formula” for lower courts to balance the interest.

Circuit Judge Boggs dissented, joined by Circuit Judges Batchelder, Moore, Clay, Griffin, Stranch, and Donald. Judge Boggs argued that the Supreme Court looked to history, common law, and both state and federal practice to determine whether Congress intended to protect that privacy interest. Since the “rogue’s galleries” of early police forces, dangers people would have their likeness on public display—even if cleared of wrongdoing. Courts routinely rejected privacy interests in booking photos, even after the creation of an invasion of privacy tort. “[O]nce indicted, individuals become figures of public interest. Publishing their photographs is thus not an invasion of privacy.” The majority of state laws permit disclosure and the former federal practice was disclosure. Judge Boggs concluded that upon indictment and appearance in open court, there is no cognizable privacy interest in the booking photo. Even if, according to Judge Boggs, there was a privacy interest, the public has a strong interest in knowing whom the government is prosecuting.

Josh Gerstein of Politico provides a summary of the case. Noah Feldman in Bloomberg argues that democracy demands government actions be open to scrutiny, even at the cost of permanent embarrassment. Feldman recognizes the baggage a booking photo can have on someone, but insists that the photos are central to informing the public an arrest was made. Additionally, the USMS can still voluntarily disclose the booking photo—the ruling only limited “what the government must disclose.”

The ruling has been extensively covered, including reports by ABA Journal, LawNewz, and Reuters.

Filippo Raso is a rising 2L at Harvard Law School and a summer clerk at the Electronic Privacy Information Center (EPIC).

 

Posted On Aug - 4 - 2016 Comments Off READ FULL POST

free-speechBy Priyanka Nawathe – Edited by Kayla Haran

17 U.S.C § 1201 – The Anti-Circumvention Provision

Electronic Frontier Foundation Complaint

In 1998, Congress enacted 17 U.S.C § 1201, better known as the anti-circumvention provision. This legislation prohibits bypassing technological measures that control access to a work and includes a process to create exceptions to this general rule. On October 28, 2015, the Library of Congress denied a motion to create an exception for “speech using clips of motion pictures, for the shifting of lawfully-acquired media to different formats and devices, and for certain forms of security research.” On July 21, 2016, the Electronic Frontier Foundation (EFF) sued the government on behalf of researchers and persons affected by this denial claiming the legislation is unconstitutional. The EFF seeks an injunction enjoining the Department of Justice from enforcing this legislation.

A summary of the history surrounding EFF’s lawsuit is available here. Online commentary is generally in support of this lawsuit, calling the anti-circumvention provision “broken” and “one of the worst US copyright rules.”

The EFF claims that the anti-circumvention provision is unconstitutional because it violates the First Amendment. This provision, primarily designed to “fight music and movie piracy” is written so broadly that it restricts access to lawfully purchased copyright material, prohibits fair use of accessed materials, and even hinders people’s ability to speak about copyrighted materials. This law can make it a crime to “tinker” or repair your own devices, remix a video, and conduct independent security research to reveal security flaws, fueling the EFF’s argument that this legislation is creating a chilling effect and is preventing the right to freedom of expression.

Although there is a process to create exceptions to the anti-circumvention provision, the EFF complaint states that this process is unhelpful and “is itself an unconstitutional speech-licensing regime.” The process for creating an exception is long, complex, and impermanent. Only once every three years may members of the public approach the Copyright Office to create an exception. The Copyright Office then forwards the recommend exceptions to the Librarian of Congress who then makes an ultimate decision based on certain factors included in the legislation. However, the EFF claims that the “rulemaking defendants” have imposed several additional onerous requirements, including requiring evidence that “people are already engaging in circumvention,” and that “there is no viable alternative means of engaging in that use.” On top of that, the exceptions expire within three years requiring members of the public to go through this onerous process repeatedly. The exemptions that are granted, according to the Verge, are oddly limited and specific, for example allowing phones to be jailbroken but not tablets. The EFF finds this process to be “arbitrary, capricious, and contrary to law.”

In this lawsuit, the EFF is representing three clients that have been negatively impacted by this legislation and the Librarian of Congress’s refusal to create certain exceptions. The first client is Mathew Green, an Assistant Professor and Johns Hopkins University. According to the EFF and Ars Technica, his research is focused on investigating security and encryption devices but he has avoided certain research that would help increase our understanding of how secure our systems are for fear of litigation. The second client is Andrew Huang, an electrical engineer, hacker, and the owner of Alphamax, LLC, an audiovisual media company. Alphamax creates devices for editing television, opening up a world of new types of non-infringing speech. However, in order to do this, the “lock” on HDMI signals has be circumvented which he cannot do for fear of being sued. The final client is Alphamax itself.

It is hard to counter EFF’s arguments. 17 U.S.C § 1201(c)(1) states that this legislation will not affect defenses to copyright infringement, including fair use, but that is not much help when certain courts hold this provision to apply even when the circumvention has no relation to copyright infringement. As Kerry Sheehan, Policy Fellow at Public Knowledge, stated “This suit highlights the fundamental failures by the Copyright Office in the DMCA exemption process.” There definitely seem to be some problems with this out of date law, and it will be interesting to see what happens moving forward.

Priyanka Nawathe is a 2L at Harvard Law School.

 

Posted On Aug - 4 - 2016 Comments Off READ FULL POST

UnknownBy Jaehwan Park – Edited by Kayla Haran

Bipartisan Lawmakers Introduce Bill Encouraging U.S. Government Agencies to Use the Cloud as a Secure Alternative to Legacy Systems

Senators Jerry Moran (R-Kas.) and Tom Udall (D-N.M.), along with Representatives Will Hurd (R-Tex.) and Gerry Connolly (D-Va.), introduced identical bills in both the House and Senate to spur government agencies to transition away from unsecure and expensive legacy systems to cloud computing services. The MOVE It (Modernizing Outdated and Vulnerable Equipment and Information Technology) Act will require each government agency to create IT modernization funds using resources that would otherwise be used to operate and maintain legacy systems. In tandem with the Federal Risk and Authorization Management Program (FedRAMP), which vets cloud systems for vulnerabilities, the MOVE It Act is intended to achieve the twin goals of enhancing cybersecurity and reducing spending on legacy systems. The IT Alliance for Public Sector (ITAPS) lauded the companion bills as an opportunity for the federal government to keep pace with technological innovation and deliver greater efficiencies for the taxpayer. (more…)

Posted On Jul - 25 - 2016 Comments Off READ FULL POST

13399-surveillance_newsBy Filippo Raso – Edited by Shailin Thomas

Microsoft v. US, Docket No. 14-2985 (2nd. Cir. July 14, 2016) Opinion hosted by DocumentCloud.

The U.S. Court of Appeals for the Second Circuit reversed in part, vacated in part, and remanded the decision of the U.S. District Court for the Southern District of New York. The Second Circuit found the Magistrate Judge’s decision rested on a mistaken interpretation of the statute and its legislative history, and accordingly reversed the District Court’s denial of Microsoft’s motion to quash a warrant, reversed the District Court’s finding of civil contempt, and remanded with instructions to quash the warrant insofar as it directs Microsoft to produce customer content stored outside of the United States.

The Second Circuit held that the warrant provisions in § 2703 of the Stored Communications Act, 18 USC §§2701-2712 (1986) (“SCA”), cannot be used to compel a service provider to disclose user e-mail content stored exclusively on a server in a foreign country. In so holding, the Court noted that the SCA granted users a privacy interest in their stored electronic communication, and that the SCA formally recognized that service providers take on a “special role” when acting on behalf of the government. The Fourth Amendment restrictions apply to service providers when acting pursuant to this “special role.” (more…)

Posted On Jul - 25 - 2016 Comments Off READ FULL POST

infringementBy Emily Chan – Edited by Evan Tallmadge

In re TC Heartland LLC, 821 F.3d 1338 (Fed. Cir. 2016)

In April 2016, the Federal Circuit denied TC Heartland LLC’s (“Heartland”) writ of mandamus. Hartland requested the court order the U.S. District Court for the District of Delaware to dismiss or transfer the patent infringement suit initiated by Kraft Foods Group Brands LLC (“Kraft”). In rejecting Hartland’s request, the court explained that a writ of mandamus is an “extraordinary remedy appropriate only in exceptional circumstances” and Hartland did not meet this bar. In re TC Heartland LLC, 821 F.3d 1338, 1341 (Fed. Cir. 2016). (more…)

Posted On Jul - 25 - 2016 Comments Off READ FULL POST
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