Flash Digest – News in Brief

Trump Campaign Files Motion to Dismiss in Wikileaks Suit, Arguing Section 230 Immunity

Donald J. Trump for President has filed a motion to dismiss the claims of two DNC donors and one DNC staffer in Cockrum v. Campaign for Donald Trump, No. 1:17-CV-1370 (D.D.C. 2017), hosted by politico.com, arguing in part that allegations it conspired with Wikileaks and the Russian government to steal and leak the plaintiffs’ private information fail to state a claim upon which relief can be granted. The suit stems from Wikileaks’ selective leaking of private information damaging to Hillary Clinton’s campaign for president. The Cockrum complaint seeks damages for the Trump Campaign’s alleged role in facilitating these leaks, which involved the publishing of the plaintiffs’ stolen social security numbers, home addresses, and other personal information. Among other contentions, the Trump Campaign has cited section 230 of the Communications Decency Act, 47 U.S.C. § 230, in arguing it cannot be vicariously liable for Wikileaks’ posting of stolen information. Section 230 shields online forums from liability for information posted by third parties, Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014), hosted by leagle.com, and the Trump Campaign contends this means Wikileaks’ posting of leaked private information was not an unlawful act. However, some commentators have questioned whether Wikileaks is merely a forum for information, arguing that Section 230 may not apply if Wikileaks took an active role in creating the information it hosted. Santa Clara University Law Professor Eric Goldman has noted that while Section 230 may shield Wikileaks from civil liability, that does not necessarily mean it did not commit an illegal act constituting the basis of a conspiracy claim. If the Cockrum case survives the motion to dismiss, it could soon move into the discovery phase, which could run in parallel to Robert Mueller’s investigation of Russian interference in the 2016 presidential election.  While President Trump and his supporters have characterized the suit as baseless, US attorney John McKay, Harvard professor Laurence Tribe, and Berkeley Law dean Erwin Chemerinsky have predicted the suit is likely to make it to discovery.

Five-Day Retrial Scheduled in Apple vs. Samsung

Judge Lucy Koh has ordered a fourth jury trial scheduled from May 14 to May 18, 2018 to determine whether Apple’s $399 million verdict against Samsung for patent infringement should stand after the Supreme Court’s recent decision in Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429 (2016). Apple won the original verdict—equal to Samsung’s entire profit from sales of infringing smartphones—after claiming Samsung smartphones had infringed on its design patents covering “a rectangular front face with rounded edges and a grid of colorful icons on a black screen.” However, the Supreme Court held Samsung’s damages under 35 U.S.C. § 289 (providing a remedy for unauthorized application of a patented design to “any article of manufacture for the purpose of sale”) are limited because “the relevant articles of manufacture” under the statute were individual components of the smartphone, the front face or screen in this case, “rather than the entire smartphone.” While the Supreme Court’s ruling is anticipated to have a sweeping effect on the way damages are calculated in patent infringement cases, it did not provide specific guidance on how to calculate damages in Apple’s dispute with Samsung; the trial will thus serve as a test for how the Supreme Court’s ruling will apply in practice. Judge Koh’s order finds that Apple will have the burden of proving it is entitled to retain all of the $399 million in damages Samsung has already turned over, identifying each relevant article of manufacture and proving Samsung’s profits on each specific article; in an effort to expedite the case—which has been ongoing since 2011—Judge Koh has limited briefing, pretrial motions, and new discovery, remarking, “I would prefer to not keep doing this until I retire.” Some observers have speculated that this litigation will incentivize patent-holders to acquire additional design patents for different components of a given product, allowing them to recover higher damage awards from infringers.

Georgia Election Server Wiped Clean in Days After Lawsuit

Newly-released emails show that four days after activists filed a lawsuit against Georgia state election officials over security problems with Georgia’s voting system and the lack of verifiable paper ballots, Curling v. Kemp, No. 1:17-CV-02989-AT, (Ga. Super. Ct. 2017), the organization responsible for running Georgia’s election wiped its election servers and backups clean. Curling arises out of Georgia’s hotly-contested June 20 special election, in which Democrat John Osoff lost by a significant margin to Republican Karen Handel in a bid to represent Georgia’s Sixth Congressional District. Attracting national attention, the election was widely portrayed as a referendum on President Trump’s agenda and leadership, and a test of the viability of Democratic challengers in traditionally Republican districts. A week before the election, cybersecurity researcher Logan Lamb discovered a relatively simple means of bypassing the Georgia election database’s firewall and accessing registration records for millions of Georgia voters. Activists  filed suit on June 3, alleging local officials ignored warnings the state’s election system had been compromised, thereby casting doubt on the legitimacy of the election’s result (the case has since been removed to federal court). Four days later, on June 7, Georgia’s election server was wiped clean, and its backups were destroyed on the same day the case was removed to federal court. Plaintiffs’ counsel had sent a letter to defendants’ counsel on June 10 (after the server had been wiped clean, but before its backups had been) notifying them of their obligation to take “reasonable steps to preserve and maintain” the election information. The defendants have since clarified that the FBI retained a forensic copy of the data on the election server in the course of its investigation of an alleged data breach, and have notified the court of their intention to subpoena the FBI in order to regain the information. Alleged Russian meddling in the 2016 election has spurred new research and inquiries into ways of improving insecure electronic voting systems, both at the national and state levels; some experts hope the Curling case will similarly serve as a wake-up call.

Rumors of November FCC Vote on Net Neutrality Reportedly False

Despite wide speculation that the FCC would vote on the adoption of the “Restoring Internet Freedom” order shortly before Thanksgiving, TechCrunch has reportedly confirmed with the FCC that the vote will not take place in November and that the agency will give at least 3 weeks notice before such a vote. Many sources cited a Reddit thread on net neutrality as evidence the FCC would vote on the rule the “day before Thanksgiving” so as hide the vote from public scrutiny. The rule rolls back the FCC’s pro-net neutrality 2015 Open Internet Order. President Trump and FCC Chairman Ajit Pai (first appointed by President Obama) have signaled a willingness to do away with regulations restricting the ability of Internet service providers (ISPs) to selectively price or otherwise restrict users’ access to different kinds of online content, characterizing these regulations as an example of government overreach and protectionism. The debate over net neutrality—the idea that Internet service providers should or must treat all Internet data as the same regardless of its kind, source, or destination—has a long history of controversy. Broadband companies and many political conservatives have argued that government regulation of the Internet stifles innovation and competition, leading to higher prices and limited choices for consumers. Recently, opponents of net neutrality have even argued that repealing net neutrality protections could help Puerto Rico recover after Hurricane Irma. Net neutrality proponents argue abolishing net neutrality rules would allow ISPs to restrict the flow of information to Internet users based on their own political or economic preferences, undermining a free and open Internet. While consumer groups have had wide political success in equating Obama-era restrictions on ISPs with net neutrality protections, some have characterized Chairman Pai's opposition as rooted in the rule’s wide scope, rather than hostility toward the principles underlying the net neutrality movement. Some members of Congress have indicated an intent to legislatively enact net neutrality protections limiting the ability of ISPs to block or restrict content, which would supersede the FCC effort.  The Senate has drafted a bill, and the House Judiciary Committee has scheduled a November 1 hearing on the topic.