Archive for the ‘Cyberlaw’ Category

The Yale Law Journal, Vol. 119, Issue 4 & Forthcoming Supreme Court Conference

posted by Yale Law Journal

January 2010 | Volume 119, Issue 4

ARTICLES
	Antibankruptcy Douglas G. Baird & Robert K. Rasmussen	648
	Fourth Amendment Seizures of Computer Data Orin S. Kerr	700
FEATURE
	American Needle v. NFL: An Opportunity To Reshape Sports Law Michael A. McCann	726
NOTE
	Strategic or Sincere? Analyzing Agency Use of Guidance Documents Connor N. Raso	782
COMMENTS
	Suspending the Writ at Guantánamo: Take III?	825
	Constitutional Avoidance Step Zero	837

On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, and practitioners to discuss potential reforms to the Supreme Court’s certiorari process. All events will be held at Yale Law School’s Sterling Law Building in New Haven, CT. Please click here for more information.

IMPORTANT QUESTIONS OF FEDERAL LAW
Yale Law School | New Haven, CT | March 23, 2010

Panel I: The Judge’s Perspective: Is the Court Taking the “Right” Cases?
4:10pm‐5:30pm, Room 129

Moderator: Linda Greenhouse (Yale Law School)
Panelists:
The Honorable José Cabranes (2d Cir.)
Drew Days (Yale Law School)
The Honorable Brett Kavanaugh (D.C. Cir.)
The Honorable Sandra Lynch (1st Cir.)

Panel II: The Practitioners’ Perspective: What Makes An Issue “Important” to the Court?
5:40pm‐6:55pm, Room 127

Moderator: Charles Rothfeld (Mayer Brown LLP and Yale Law School)
Panelists:
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)

  March 9, 2010 at 9:44 pm   Posted in: Administrative Law, Bankruptcy, Civil Rights, Conferences, Constitutional Law, Cyberlaw, Law Rev (Yale), Law Rev Contents, Law Rev Forum, Supreme Court   Print This Post   No Comments

The Right to the Internet

posted by Danielle Citron

According to a poll sponsored by the BBC World Service, four in five adults in more than 26 countries believe that Internet access is a fundamental right.  The poll asked more than 27,000 adults about their attitudes towards the Internet and found that 87 percent of regular Internet users agree that access should be a “fundamental right of all people.”  More than 71 percent of non-Internet users felt that they should have the right to access the global network.

Crucial to our access to the Internet is our continued adherence to the end-to-end principle.  As legal scholar and computer scientist Barbara van Schewick explained in her Opening Statement at the FCC’s Workshop on Innovation, Investment, and the Open Internet, the “network was designed to be as general as possible in order to support a wide variety of applications with different needs.  So when a new application comes along, the network doesn’t have to be changed to allow the application to run.  All the innovator has to do is write the program that runs on a computer attached to the Internet.”  As van Schewick notes, the low cost of developing new applications has enabled the creation of eBay and Skype, even though many questioned those applications’ ability to succeed in the marketplace (who would buy goods through online auctions?) or their plausibility (network engineers didn’t initially think internet telephony was possible).

Now, however, sophisticated technology is available that “enables network providers to identify the applications and content on their network and control their execution.”    According to van Schewick, the “original Internet was application-blind,” but “today’s Internet is not.”  This matters to access and innovation.  Although a programmer may have a great idea for a video platform that will revolutionize the way people watch television, cable providers could squash it.  They could block the inventor’s application or slow it down.  Why would they do that?  As van Schewick explains, maybe the application competes with theirs, maybe they want a share of the inventor’s profits, maybe they don’t like the content, or maybe the application is slowed down to manage bandwidth.  Whatever the reason, the network provider can ensure the failure of the inventor’s project, chasing away potential investors and other inventors.  In the end, this risks the diversity of innovation and its concomitant societal benefits.  If network providers “pick winners and losers on the Internet, if they decide how users can use the network, users may end up with applications that they would not have chosen, and may be forced to use the Internet in a way that does not create the value it could.”

In short, our failure to commit to network neutrality, to permit discrimination among applications, has a deep impact on what people now believe is their fundamental right.  van Schewick closed her Open Statement with a telling story.  She asked if the audience had tried to explained to their partners’ grandparents why they should get the Internet.  She explained that she had and noted that she didn’t say: “Grandma, you have to get the Internet?  It’s cool!  It lets you send data packets back and forth.”  “No, I said: ‘If you get the Internet, you can call us and see your grandchildren on the screen.  And if we have new pictures, you’ll be able to see them immediately after we send them.  And you can read about everything you can possibly imagine’ . . . “  Thus, by “protecting the factors that have fostered application innovation in the past, we can make sure that the Internet will be even more useful and valuable in the future.”

  March 8, 2010 at 8:53 am   Posted in: Architecture, Culture, Current Events, Cyberlaw, Technology   Print This Post   3 Comments

DU Process: Cyber Civil Rights Symposium Papers

posted by Danielle Citron

Denver University Law Review recently rolled out its online companion, DU Process, which focuses on three areas. First, the forum extends the Law Review’s annual 10th Circuit Survey issue by posting detailed summaries of recent 10th Circuit decisions. Second, it periodically hosts online symposia discussing pressing legal issues. And finally, it previews the forthcoming print issues by posting summaries of our upcoming articles

In connection with the DU Law Review’s Cyber Civil Rights symposium, participants published short, engrossing pieces, which are now posted at DU Process.  Here is an overview of the papers and layout:

Part I: Contextualizing Online Harassment

Danielle Keats Citron, Cyber Civil Rights: Looking Forward; Mary Anne Franks, The Banality of Cyber Discrimination, or, the Eternal Recurrence of September; Helen Norton, Regulating Cyberharassment: Some Thoughts on Sexual Harassment 2.0;  Nancy Ehrenreich, Cyber Sexual Harassment: Thoughts on Citron and Franks.

Part II: The Privacy Problem

James Grimmelmann, The Unmasking Option; Christopher Wolff, Accountability for Online Hate Speech: What Are the Lessons from “Unmasking Laws?”; Jacqueline D. Lipton, Online Social Networks and Global Online Privacy; John Soma, Perspectives on Online Privacy: Comments on Lipton, Grimmelmann, and Wolff

Part III: How to Regulate?

Paul Ohm, Breaking Felten’s Third Law: How Not to Fix the Internet; Viva Moffat, Who to Sue?:  A Brief Comment on the Cyber Civil Rights Agenda; Eric Goldman, Unregulating Online Harassment

  March 3, 2010 at 10:16 am   Posted in: Cyber Civil Rights, Cyberlaw, Employment Law, Feminism and Gender, Privacy, Privacy (Gossip & Shaming)   Print This Post   One Comment

Boyden on Google Buzz and COPPA

posted by Danielle Citron

Guest blogger Professor Bruce Boyden has terrific insights on all things technology and law and so I invited him to comment on the Children’s Online Privacy Protection Act and its impact on the Google Buzz phenomenon.  So here is Professor Boyden:

Thanks, Danielle, for inviting me to expand on my comment yesterday on your post on the Google Buzz story. Google Buzz has been obviously been all over the news lately, in part for various complaints about Google’s privacy practices. Those complaints have focused on the way in which Buzz, enrollment in which was automatic for Gmail users, initially defaulted to effectively sharing users’ email contacts with the public. EPIC has filed a complaint with the FTC arguing that this combination of automatic enrollment and “opt-out” of information-sharing was an unfair or deceptive trade practice in violation of Section 5 of the FTC Act.

But that’s not what caught my attention in Danielle’s post. What really set off alarm bells in my head was Danielle’s recounting how her children and their friends, all under the age of 13, suddenly had their Gmail accounts turned into Google Buzz accounts,  and then proceeded to upload all sorts of information about themselves using the service. That raises the prospect that Google Buzz, by collecting such information without getting the appropriate parental consent, violated the Children’s Online Privacy Protection Act, or COPPA. I haven’t seen any discussion of this issue anywhere else.

COPPA is one of the few privacy statutes with real bite: it has strict rules that require substantial effort to follow, and the FTC has shown itself to be a vigorous enforcer. Indeed, the FTC has gone after two social networking sites for COPPA violations recently, and in one case imposed a fine of $1 million. So is Google violating COPPA? The answer is unclear but there’s definitely risk for Google here.

COPPA regulates the online collection of information from children under the age of 13. It applies to two classes of websites: those that have “actual knowledge” that they are collecting information from children, and those that are “directed to children.” If a website in either category is going to collect personally identifiable information (PII) from children, it first has to get “verifiable consent” from a parent. The FTC uses a “sliding scale” to determine what sort of verifiable parental consent is required; for information that is going to be publicly disclosed, as here, the FTC’s COPPA regulations require something like a mail-in form or a credit card. Read the rest of this post »

  February 17, 2010 at 9:34 am   Posted in: Architecture, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   One Comment

Still Buzzing, the Under 13 Set

posted by Danielle Citron

Google Buzz thrust itself on the social scene at a particularly auspicious time.  Snow had trapped East Coasters in their homes so kids talked to their friends digitally and watched television (usually at the same time).  Those over 13 likely spent their time on Facebook, which now seems like a privacy haven compared to its newest pesky social network comrade, Google Buzz.  Kids under 13 discovered that Google Buzz hit their Gmail account.  It was, for many, their first social network experience: intoxicating, terrifying, and all theirs.

As many parents know, Facebook and other social network sites welcome anyone 13 and older to make friends and become fans at their site.  That leaves kids under 13 (at least ones with watchful parents) with a less dynamic online life.  Before last week, my kids and their pals communicated via email and Gmail chats, happy to wait until their 13th birthday when they might get a chance to create profiles and network on Facebook (parent approval pending).  Then came the Buzz.  As parents busied themselves shoveling or trying to work, kids found their Gmail inboxes transformed into garden of online delights.  They could post pictures and videos for their contacts (their contacts’ contacts and their contacts’ contacts) to see, and they gained access to everyone’s email list.  Status updates from contacts appeared in an endless stream along with wall-like postings.

Aside from the obvious privacy problems that advocates such as Marc Rotenberg make stunningly clear, see here, another arose, one that has received less press.  Those under 13 had, and may continue to have, a powerful taste of social networking that they may be ill-equipped to handle.  Online communications have a powerful disinhibiting effect.  As a result, people do and say things online that they would never do or say offline.  This is particularly tricky for young children who have much emotional intelligence to learn.  Although I had only a small sample to watch, my friends tell a resoundingly similar story: kids under 13 got swept into a nasty free for all, a melange of bullying, shaming, and privacy-busting disclosures that would make a more emotionally mature crowd cringe.  As the recent story of 15-year old Phoebe Prince’s suicide illustrate and that of Megan Meier, online bullying can escalate into serious harassment, inflicting mental distress so serious as to drive the emotionally vulnerable to suicide.

Google Buzz did parents a favor with its shocking jump into social networking, foisted on Gmail users.  Since the snow storm has abated for the moment, parents are now probably paying attention to what is going on with their kids.  Hopefully, this turns into a crucial teaching moment for families who need to talk about acting responsibly online, to treat others as ends in themselves, worthy of respect, not as objects that we can shame and demean.  I know that our house took that opportunity.  So should yours.

Hat Tip: Citron gang, Tea Carnell, and Ray Cha

  February 16, 2010 at 5:04 am   Posted in: Anonymity, Culture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   2 Comments

The Secret Behind Amazon and Macmillan’s Fight: Google?

posted by Deven Desai

Many may know about the fight between Amazon and Macmillan publishing. Yes it is about e-books and pricing, and the death of an industry, the death of print, and heck throw in Death in Venice if you like. But the real move may have been to highlight something else Amazon is quite worried about: Google and the Book Settlement.

Would Amazon really refuse to carry all books from one of the largest publishers in the Untied States? As my friend John Scalzi pointed out (He was one of the first to notice the move, because his publisher is part of Macmillan, and his fans asked him why his books were not available almost immediately after Amazon’s move.), Amazon waited until late Friday to remove the Macmillan books. John thought that the timing was probably designed to mitigate any negative responses that might go Amazon’s way. I think John was correct, but I think this statement reveals a perhaps bigger reason for the bluff:

“We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles,” Amazon said. “We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.”

Just to repeat it: “Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.” Where else does monopoly and books arise? Ah yes, when Amazon (and others) opposes the Google Book Settlement.

I think this move provides an interesting, concrete example that will be offered to argue that the GBS will provide Google with power equal to or greater than Macmillan’s. The question is, if it is a monopoly as Amazon claims, why aren’t folks attacking all major publishers? Amazon may argue that Google will have a unique position in the e-book market, but those claims require more details if one is to sort them properly.

  February 3, 2010 at 4:17 pm   Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Technology   Print This Post   No Comments

More media, less news?

posted by Viva Moffat

The New York Times reported yesterday on a study of the coverage of six major stories during one week in July 2009.   According to the Times, the study found that 83 percent of the news reports conveyed “no new information” and that of the stories that did contain some new information, 95 percent came from “old media”  (emphasis mine).  I would put this into the “depressing but not surprising” category.   The Times article concludes: “the study offered support for the argument often made by the traditional media that, so far, most of what the digital news outlets offer is repetition and commentary, not new information.”   We have heard these arguments a lot; it is interesting — and useful — to see empirical evidence of the phenomenon.  I think it’s a real problem.  As a lawyer and legal academic it frustrates me that there does not appear to be a legal solution to this problem.  I wonder if there is any solution at all?

  January 12, 2010 at 3:40 pm   Posted in: Cyberlaw   Print This Post   3 Comments

The costs of piracy and the costs of anti-piracy efforts

posted by Viva Moffat

In that time-honored new year’s tradition, I’ve been looking at top 10 (or top 100) lists.  It turns out that five of the top ten grossing movies of 2009 are also in the top 10 most downloaded movies on BitTorrent:  Star Trek, Transformers, Harry Potter and the Half-Blood Prince, Twilight, and The Hangover.  So I think we can conclude that popular movies are popular, with downloaders and moviegoers alike (and that people don’t use BitTorrent so much to download kids’ movies — there are three in the top ten grossing movies, and none on the BitTorrent list).  I have always been skeptical of the RIAA’s and MPAA’s assertions about the effect of file-sharing/downloading on their sales.  There certainly is not a one-to-one correlation (i.e., not every pirated copy is a lost sale), and I wonder if it’s possible that anti-piracy efforts cost more than they are worth.  2009 was a good year for the movie industry.  No doubt it would have been better in the absence of piracy, but how much better?

  January 7, 2010 at 10:44 am   Posted in: Cyberlaw, Intellectual Property   Print This Post   No Comments

A “Content Loss Ratio” for Cable Companies?

posted by Frank Pasquale

I’ve been following the debate over ala carte cable TV pricing, and the recent Fox/Time Warner showdown has put it back in the news. Brian Stelter’s NYT article on the topic reveals some interesting revenue figures in the cable industry:
Read the rest of this post »

  January 4, 2010 at 7:23 pm   Posted in: Consumer Protection Law, Culture, Cyberlaw, Economic Analysis of Law, Law and Inequality, Media Law, Technology   Print This Post   One Comment

Managing Global Data Privacy

posted by Danielle Citron

Privacy Clearinghouse reports that over 341 million records of sensitive personal information have been leaked, hacked, or otherwise compromised since 2005.  It lists data leaks by the responsible entity and total number of released records.  Most recently, on December 17, 2009, the North Carolina Library System’s central server in Raleigh suffered a security breach, resulting in the release of 51,000 drivers license numbers and Social Security numbers.  On December 18, 2009, the Dickinson School of Law discovered that a computer containing 261 Social Security numbers from an archived class list had been “infected with malware that enabled it to communicate with an unauthorized computer outside the network.”

Privacy Clearinghouse helps us identify easy privacy breach cases, i.e.,  those involving easily identifiable, static sources such as infected computers, hacked servers or centralized databases, stolen flash drives, and the like.  Yet as privacy scholar Paul Schwartz highlights in an important new study entitled Managing Global Data Privacy: Cross-Border Information Flows in a Networked Environment, privacy problems increasingly involve a much more complex set of circumstances.

As Schwartz’s study explains, in the recent past, companies largely maintained localized data sets and processes.  A data transfer usually occurred at a predictable moment and into databases controlled by a single entity.  In the present, however, international data flows occur continuously in a “multi-directional fashion” through the globe and involve a multitude of entities.  As Schwartz thoughtfully explores, networked technologies, such as cloud computing, change a firm’s Coasean “make or buy” decisions in innovative ways.  Functions and operations can now be “packaged as modular units that can be pulled apart and re-assembled.”  Data flows can be “de-aggregated and de-coupled to allow companies to develop novel business approaches to operations and activities.”

Exciting as these developments may be, they complicate privacy and security protections afforded dynamic data flows.  Schwartz’s case studies reflect that firms take data privacy and security seriously.  We have seen a professionalization of corporate data protection.  Companies now have Chief Privacy Officers and Chief Information Officers.  Although the study offers a number of important insights, it emphasizes the adoption of accountability principles to protect privacy and data security of global data flows.  This seems a wise move and one worth tracking.

  January 3, 2010 at 11:29 am   Posted in: Cyberlaw, Privacy, Technology, Web 2.0   Print This Post   No Comments

Recognizing Bottlenecks on the Net

posted by Frank Pasquale

Adam Raff’s editorial on “search neutrality” in the NYT today has already provoked critical commentary and schadenfreude. But I found the editorial both informative and compelling. Principles of search neutrality are bound to be more complex than the network nondiscrimination rules made notable in the net neutrality debate. But we must realize (as forward-thinking cyberlaw activists like Sherwin Siy do) that “bottlenecks” at any layer of the internet—physical, social, applications, or content—can be problematic.
Read the rest of this post »

  December 28, 2009 at 5:46 pm   Posted in: Cyberlaw, Google & Search Engines, Technology   Print This Post   11 Comments

Privacy’s Zietgeist Moment

posted by Danielle Citron

Privacy has seemingly come center stage.  Companies like Google, Microsoft, and eBay have joined forces to support a federal law that would impose uniform standards for the collection, use, and transfer of information across the private sector.  Activists and officials hope to update the Privacy Act of 1974 for the twenty-first century.  Senator Leahy has a renewed interest in data breach legislation, proposing the Personal Data Privacy and Security Act in July.  The American Recovery and Reinvestment Act of 2009, the stimulus bill, includes a data breach notification requirement for health providers.  The Federal Trade Commission recently published its final rule on data breach notification for e-health records.

Strengthening the nation’s commitment to privacy is crucial.  But, as Paul Schwartz’s engrossing Preemption and Privacy essay (Yale Law Journal) illuminates, a unitary federal information privacy statute should give us pause.  Today’s information privacy law landscape is mainly comprised of federal sector-specific statutes and stronger state regulation.  Schwartz makes a compelling case for remaining on that course, rather than adopting a uniform federal privacy statute.  As Schwartz underscores, a uniform federal approach would likely preempt stronger state law rules, eliminating successful experimentation at the state level.  California exemplifies this trend:  its privacy innovations include allowing consumers to freeze their credit in the face of identity theft among others.  New York and Connecticut are now considering bills that would set limits on companies that track consumers across websites to deliver targeted advertisements based on their online behavior.  A uniform federal law would likely extinguish state-driven innovations whereas most federal sectoral privacy laws, such as the Gramm-Leach-Bliley Act, only provide a federal floor for information privacy and security, not a ceiling.  Schwartz highlights the possibility that a comprehensive information privacy law may ossify, thus making the loss of state experimentation all the more grave.  The piece also spearheads an important discussion about whether the centralizing forces at work today undermines the contributions of competitive federalism.

Schwartz’s piece is a must read.  Here is the abstract for Preemption and Privacy: Read the rest of this post »

  October 27, 2009 at 11:08 am   Posted in: Current Events, Cyberlaw, Privacy   Print This Post   No Comments

Danger Will Robinson: Google Book Deal Is at DEFCON 2

posted by Deven Desai

The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.

  October 8, 2009 at 2:59 pm  Tags: Google, Google Book Settlement, Registry  Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology   Print This Post   No Comments

Making the Internet Safer, the NSA Way

posted by Danielle Citron

Securing our networked environment is both crucial and difficult.  Six months ago, President Obama declared his Administration’s commitment to protect cyberspace from sabotage of all stripes.  For the President, the rise of online theft, electronic espionage, and military-related cyber assaults necessitated the appointment of a cyber czar to protect our cyber “national assets.”  The President has tried to fill that spot: Shane Harris of National Journal explains that “more candidates had declined the job than were still in the running for it.”  And despite our failed efforts at CoOp to recruit Orin Kerr for the job, the cyber czar position remains empty.

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: “There is no regime for us to work within to respond to cyberattack.  We are in a place where technology has long outstripped policy–let alone law–in term of what’s available.  We are going to have to rely on heroism instead of a plan.”  If Hayden has it right, it is no wonder that no one wants the job.

Nonetheless, the Administration may have already charted its path, one that entrusts the National Security Agency with protecting cyberspace.  According to the National Journal, Lt. General Keith B. Alexander, the NSA’s director, has been “setting up the central nervous system in the government’s campaign to defend cyberspace.”  The NSA will now, unlike the past, help oversee the networks of civilian government and privately-owned, criticial infrastructure (dams, railroads, hospitals, banks, food industry, hotels, telecommunications, postal, shipping, retail, transportation, and well everything else).  This is true even though DHS is charged with defending civilian networks and coordinating private sector protection.  Homeland Security Security Secretary Janet Napolitano said that NSA will provide DHS “technical assistance” on this issue.  In short, DHS will rely on the NSA for the tools, expertise, and resources to protect cyberspace.

So the NSA apparently will be overseeing and securing private networks, the same NSA that engaged in wholesale warrantless surveillance of Americans after 9/11 (and the agency that monitored telegrams coming in and out of the United States to detect individuals with communist ties in the 1950s and 1960s)?  Congress has, of course, limited the NSA’s warrantless wiretapping and the President has promised us greater transparency in government decision-making.  Nonetheless, NSA’s oversight over privately-owned systems and wholesale access to their contents raises serious concerns.  And because the NSA will direct these efforts in the name of national security and intelligence, little transparency will be forthcoming.  On another note, the question remains whether it was agency turf-war antics that led to Melissa Hathaway’s decision to leave government–she was the DHS official and most senior cyber expert in the White House who had been a leading candidate for the cyber czar post.  At the time of her resignation, Hathaway told the Washington Post that she “wasn’t willing to continue to wait any longer,” and she wasn’t “empowered” to make any changes.

  October 6, 2009 at 9:12 am   Posted in: Architecture, Cyberlaw, Privacy, Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized   Print This Post   2 Comments

FTC and Blogger Disclosure Rules

posted by Deven Desai

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

  October 5, 2009 at 1:44 pm  Tags: Blogging, FTC, guides  Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0   Print This Post   7 Comments

Tweeting for the Party

posted by Danielle Citron

During the 2008 election, Democrats effectively used Web 2.0 platforms to garner interest in the campaign and win supporters.  President Obama has been widely hailed as the first “Tech President,” and he seems to have trounced the Facebook landscape.  To date, President Barack Obama has over 6.6 million Facebook friends, while Sarah Palin only has 848, 614 Facebook pals and Mitt Romney has 70, 130.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor now that they are in the minority.  AMERICAblogs’ John Aravosis worries that Democrats have ceded their online advantage.

No matter the current political victor in this social media landscape, Government 2.0 is here to stay.  It surely has great potential to shine light on government policymaking and to marshal public participation, especially from people who otherwise wouldn’t bother getting involved with government policymaking.  Adding the President as a friend on MySpace and joining live chats may seem to be a relatively costless endeavor as compared to writing letters or commenting on agency rulemakings.  But Government 2.0 also poses privacy risks: social media sites not only give government access to people’s policy insights but also access to all of individuals’ social media data, such as their videos, photos, walls musings, “Top 25 things you don’t know about me” lists, and the like.  Soon, I will be posting on SSRN a draft of my essay “The One-Way Mirror: Enhancing Participation and Securing Privacy for Government 2.0″ (forthcoming George Washington Law Review) and hope to get your feedback.

  September 28, 2009 at 12:11 pm   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Social Network Websites, Technology, Uncategorized   Print This Post   No Comments

Professional Responsibility Meets Facebook, Another Oops the Bar

posted by Danielle Citron

Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.”  The Times talked about recent cases where lawyers do violence to their careers through their online activities.  Lawyers blog about judges:  one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence.  Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking.  The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network.  The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).

Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times.  The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him.  But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits).  Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online.  People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous.  As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.”  They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.”  They assume that only close friends are paying attention to their online activities.  All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online.  Maybe lawyers need the lesson too.

Wikimedia Commons Image

  September 14, 2009 at 3:58 pm   Posted in: Cyberlaw, Law Practice, Privacy, Psychology and Behavior, Uncategorized   Print This Post   3 Comments

Twits, As In The NFL Management Folks and Twitter

posted by Deven Desai

Although I despise those who twitter as a general matter (and will thus likely embrace the odd medium any day now), it has moments where it is useful. Short bursts of information updates for natural disasters, airport shut downs, and possible revolutionary mayhem come to mind. Today a less major (depending on how you look at it) issue, gmail going down, has shown that Twitter is again useful but barely. As TechCrunch notes, Twitter may have come close to crashing but held up well as thousands upon thousands of folks expressed frustration and ore about the great Google in the sky going down. And yes some Google folks used the medium to communicate bland statements about how Google was addressing the problem (probably asking some extraordinarily smart people about some obscure math issue and then finding that such knowledge may not help them figure out email service).

Now the NFL has come along and has regulated the use of Twitter as CNET describes:

[The NFL has] modified its social-media policy to limit Twitter and social-networking use by players, coaches, league officials, and even the media. The NFL said that it will let players, coaches, and other team personnel engage in social networking during the season. However, they will be prohibited from using Twitter and from updating profiles on Facebook and other social-networking sites during games. In addition, they will not be allowed to tweet or update social-networking profiles 90 minutes before a game and until post-game interviews are completed. The rules even extend to people “representing” a player or coach on their personal accounts. The NFL didn’t just stop with the league itself, though. The organization also said that media attending games will be prohibited from providing game updates through social networks.

I love the NFL’s reason and think that it is trying to assert that even fans ought not be able to share play-by-play:

“Longstanding policies prohibiting play-by-play descriptions of NFL games in progress apply fully to Twitter and other social media platforms,” the National Football League said in its statement. “Internet sites may not post detailed information that approximates play-by-play during a game. “While a game is in progress, any forms of accounts of the game must be sufficiently time-delayed and limited in amount (e.g., score updates with detail given only in quarterly game updates) so that the accredited organization’s game coverage cannot be used as a substitute for, or otherwise approximate, authorized play-by-play accounts.”

This position seems to suggest that one, players, etc. twittering has something to do with approximating play-by-play when most likely the NFL wants to regulate the way in which all those connected with a team communicate and represent themselves around a game. One might agree that being in the NFL requires following its odd ethics. How those goals havve anything to do with play-by-play recounting is beyond me. If fans start to share exuberant moments in almost real time, as I did via text in the glorious game to of the NBA finals this past season, but instead of using text, fans used Twitter, the NFL might assert that such sharing is not allowed. At least the quoted logic above seems to point to such nonsense. As CNET notes enforcement even at the team level will be quite difficult as the nFL won’t know who posted what. Of course the NFL could require some sort of disclosure of Twitter and other social networking aliases which raises a host of standard objections that readers here can easily figure out while the NFL may not. All of which makes me wonder, should the twits who came up with these positions love Twitter?

  September 1, 2009 at 2:17 pm  Tags: gmail, NFL, Twitter  Posted in: Cyberlaw, First Amendment, Social Network Websites   Print This Post   One Comment

I See Code: Plain View and Computer Searches

posted by Deven Desai

The Ninth Circuit has taken a swat computer searches and the plain view doctrine (pdf). I have not yet read the entire opinion but Orin Kerr has a series of posts about the decision here. And Shaun Martin, for whom I have a ton of respect as well, covers the case here. Shaun’s post captures how well-written the opinion is: “In my dreams I could write an opinion this good. It’s clear. It’s concise. It provides meaningful, systemic guidelines. It’s just. It’s got a keen sense of both the practical way the world works as well as the dangers inherent in certain conduct. In short, it’s exactly what I want in a wide-ranging opinion that makes meaningful precedent. … If you only read a dozen Ninth Circuit opinions this year, this should be amongst them.”

Dan and others will likely have more to say, so stay tuned, folks. As Orin notes, “This is really new territory, so it will be interesting to see how it plays out. I suspect we’ll find out soon, as there are a lot of these cases.” In the interim, here are three paragraphs worth reading:

The point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can’t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file—and we have no cavil with this general proposition—then everything the government chooses to seize will, under this theory, automatically come into plain view. Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.

This would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity. All three judges below rejected this construction, and with good reason. One phrase in the warrant cannot be read as eviscerating the other parts, which would be the result if the “otherwise legally seized” language were read to permit the government to keep anything one of its agents happened to see while performing a forensic analysis of a hard drive. The phrase is more plausibly construed as referring to any evidence that the government is entitled to retain entirely independent of this seizure.

To avoid this illogical result, the government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be sepHTTP/1.1 200 OK Date: Sat, 20 Mar 2010 18:56:22 GMT Server: Apache X-Pingback: http://www.concurringopinions.com/xmlrpc.php Connection: close Transfer-Encoding: chunked Content-Type: text/html; charset=iso-8859-1

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