TechLaw

Ten Interesting Things I Read This Week

This post is a collection of links to materials I've been reading this week, really just trying to catch up on old news and re-engage myself in subjects that I spent most of my summer trying to forget while on vacation. I made supplications to the Muse all morning in the hope she would favor me with a catchy title, something that might yield one of those tragically sardonic acronyms like CAN-SPAM or SPY Act, but no, nothing, and now it's time to get back to work and all I have is Ten Interesting Things I Read This Week (TITIRTW):

1. Cleveland Plain Dealer: Idea for protecting newspapers draws national spotlight, bloggers' ire

2. Media & Communications Policy: More on Newspapers and Aggregators

At this point management at most of the leading newspapers have let go of the notion that "parasitic aggregators" are a significant source of their business problems. Yet here is a respected attorney (and counsel to the Cleveland Plain Dealer) making an argument that parasitic aggregators who are free-riding on newspaper content should be stopped. Stopped by reviving the common law doctrine of "hot news" misappropriation. He believes that the Copyright Act should be amended so that it no longer preempts state-law misappropriation claims. The attorney writes: "If the legal principles that we advocate in this analysis were the law, the newspaper publisher would have a legal right to enjoin temporarily or otherwise impede the business of an aggregator that commercially exploits the publisher's news reports in direct competition with the publisher." I don't want to "Go Pundit" here, but this is a solution to a problem that just does not exist.

3. Citizen Media Law Blog: Southeastern Conference Sacks Social Media, Then Recovers

A nice account of the Southeastern Conference's attempt to protect the interests of its television broadcast partners by prohibiting fans from blogging, twittering et cetera during football games that reminded me we are still very much at the beginning of the user-generated media era. The article summarizes the state of the law on the "hot news" doctrine, making a nice counterpoint to the "save the newspapers" discussions above. 

4. U.S. Department of Homeland Security: Secretary Napolitano Announces New Directives on Border Searches of Electronic Media

Modest privacy-enhancing protections announced here, though DHS is not giving back an ounce of their authority to search anyone, anything, any time, at the border. Which still includes laptops: "In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border."

The American Civil Liberties Union filed a lawsuit this week seeking records relating to searches of electronic devices at the border.

5. The Volokh Conspiracy: How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches

Prof. Orin Kerr ruefully labels the en banc Ninth Circuit's decision in United States v. Comprehensive Drug Testing Inc. as Miranda for computer searches. He writes: "I think the best way to understand today's remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches. Chief Judge Kozinski's opinion created an elaborate statute-like new regime to make sure the government acts like there is no plain view exception. The decision is a workaround that effectively ends plain view for computer searches by making sure the government will never collect electronic evidence in plain view in the first place."

Sounds a little bitter to me. Judge Kozinski's opinion is a sensational read. And if it really is like Miranda, read it, because it's going to be around for a long time.

6 & 7. Gregg Easterbrook (ESPN): Tuesday Morning Quarterback's AFC preview and TMQ travels back in time to August 2009

A personal favorite, a guilty pleasure, one of the best writers on the Web, reminds me of Tom Wolfe way back when. More than football in here too: smart ruminations on Twitter, the British Humanist Association, and deadly objects from space.

8. Consumer Law & Policy Blog: Official Word from US Courts -- Feel Free to Use RECAP With Our Blessing

The implication here is that the AO's office would naturally have disapproved of RECAP, a Firefox addon that uploads PACER documents to a free repository. But surprise surprise it appears they don't mind at all. Am I the only one who believes the judiciary is the most -- not the least -- open branch of the federal government?

9. Spam Notes: Electronic Communications, Privacy, Data Protection, and More: Gordon v. Virtumundo: 9th Cir Smacks Down Anti-Spammers in Trifecta Defense Win

Ah, August 6, 10 a.m. PST. I was fly-fishing a gentlemanly stretch of the Gallatin River in Yellowstone National Park. Wretched souls like Venkat were slogging through Gordon v. Virtumundo's discussion of CAN-SPAM preemption. He writes: "As far as opinions go, this is as good as it gets." I couldn't agree more. About the fishing, of course.

10. Techdirt: Interview With William Patry: Understanding How The Copyright Debate Got Twisted

Prof. William Patry is coming out with a new book, Moral Panics and the Copyright Wars. Here, a very interesting discussion with Techdirt's Mike Masnick draws out Patry's views on fair use, the file-sharing wars, and copyright politics.

Defending the Consumer Wireless Experience

If you're laboring under the misapprehension that there is a not a lot of consumer choice in wireless service or appliances, representatives from AT&T and the AT&T-supported Progress and Freedom Foundation will explain otherwise at the Senate Energy and Commerce Committee's "The Consumer Wireless Experience" hearing this afternoon. For persons not in the Washington area, the event is available on the series of tubes. Also testifying will be representatives from U.S. Cellullar (no service in Washington, D.C. area) and Cellullar South (no service in Washington, D.C. area), as well as Prof. Robert Frieden, Pioneers Chair of Telecommunications and Law, Pennsylvania State University, lately prominent for his paper, "The Spin in Broadband Statistics: Finding Ways to Make a Credible Assessment of Next Generation Network Deployment."

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Follow me on Twitter at @bnatechlaw

U.K. Lawmakers Weigh Need for Greater ISP Liability

An ad hoc group of Parliament ministers, the All Party Parliamentary Group on Communications (apComms), has opened a public inquiry into a handful of pressing Internet policy issues. Among them: net neutrality, privacy issues relating to behavioral advertising and deep packet inspection, and child abuse.

The main objective of the inquiry, it seems to me, is to decide whether Internet service providers should be given a measure of legal responsibility for rooting out bad behavior on the Internet. From the inquiry announcement:

Existing European legislation provides ISPs with some key immunities for "mere conduit" along with protections for "hosting" and "caching". Almost a decade after they were decided upon, are these immunities still appropriate? Should they be recast to reflect the way in which modern networks operate?

The apComms group is seeking public comment on five specific questions:

1. Can we distinguish circumstances when ISPs should be forced to act to deal with some type of bad traffic? When should we insist that ISPs should not be forced into dealing with a problem, and that the solution must be found elsewhere?

2. Should the Government be intervening over behavioural advertising services, either to encourage or discourage their deployment; or is this entirely a matter for individual users, ISPs and websites?

3. Is there a need for new initiatives to deal with online privacy, and if so, what should be done?

4. Is the current global approach to dealing with child sexual abuse images working effectively? If not, then how should it be improved?

5. Who should be paying for the transmission of Internet traffic? Would it be appropriate to enshrine any of the various notions of Network Neutrality in statute?

Comments are due May 22. Public hearings are scheduled for June 15-17, 2009, in Westminster. The apComms group is chaired by MPs John Robertson Derek Wyatt.

Cinderella Stories

When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.

Last night when I finally finished filling out my NCAA basketball tournament brackets (I have Michigan defeating Memphis in the title game), it occurred to me (it was late!) that the way I think about the basketball tournament -- my love of the underdog and my selective memory -- is similar to the way a lot of us view tech policymaking. And that's a bad thing. We tend to cast tech policy matters in terms of win-lose affairs, deluding ourselves into thinking that they will be close, hard-fought close contests. Emotionally, it is satisfying to entertain the idea that the underdog will win. Marketers vs. Privacy Advocates. "Innovators" vs. Telco Operators. IP Owners vs. Fair Use Advocates. But these are never close contests. The same teams always win. What a facile way to look at law.

In sports, as in much of life, we love to root for the underdog. Hoosiers, Rudy, Rocky. It's all the same. Somebody we can identify with lands the big punch, makes a long run, hits the last-second shot and in the process pulls off an improbable yet emotionally satisfying victory.

This is a psychological booby trap that can kill you at tournament time. And in handicapping politics.

That's why they call it March Madness. Delusion is a form of madness. Very few of us possess the hard data necessary to pluck out the best teams among this year's 64 entrants. We have only our emotions. When it comes to filling out our tournament brackets, the exploits of underdogs past loom large in our memories. We remember the underdogs, not the winners.

Not many people remember who won last year's tournament. But everybody remembers Davidson's Stephen Curry draining threes against Gonzaga, Georgetown, and Wisconsin, en route to a two-point loss to Kansas in the Midwest Regional Final.

In 2006, the role of Cinderella was played by George Mason, a small school just south of Washington, D.C., which made it to the Final Four that year, stunning college basketball bluebloods Michigan State, North Carolina, and Connecticut along the way.

Cherished memories of the underdog's rare victory obscures the fact that, in nearly every contest, the favorite wins. David's late, lucky shot against trash-talking Goliath has totally overshadowed the fact that the Philistines dominated the Jews for a generation before that.

The favorite always wins. Three-quarters of the time, anyhow. Perhaps you'll recognize this list of recent tournament winners: Kansas (2008), Florida (2007), Florida (2006), North Carolina (2005), Connecticut (2004), Syracuse (2003), Maryland (2002), Duke (2001), Michigan State (2000), Connecticut (1999), and Kentucky (1998). Not an underdog in the bunch.

Just for facile fun, I've made up a list of the 16 teams I'd put in a hypothetical Tech Policy Bracket. And I've ranked them -- "seeding" in tourney jargon -- according to who has the better record and best prospects for success this year. This list isn't about who I want to win but who has actually been winning these games. All games will be played in Washington, of course.

(1) AT&T. Perennial top seed. Plodding, methodical team. Likes to Big Foot opponents, offense consists mostly of dunks.

(2) IP Owners. Recruits some of the best talent in the country, players have a reputation for flopping. Always pleading with the NCAA for rule changes.

(3) Business Lobbyists. Persistent, in-your-face defensive specialists. Along with AT&T and IP Owners, among the largest donors to the Referee Retention and Retirement Fund. Tends to get the close calls.

(4) Google. Literally came out of nowhere, boasts a "Beat us if you can" attitude. Relationship with referees will be key.

(5) Amazon. Like Google, made it to the Big Dance on hustle alone. Will shoot from anywhere on the court.

(6) Online Marketers. Rarely defeated, they still play with a chip on their shoulder. They love to run up the score on inferior opponents.

(7) White House. Story here is Barack Obama. Lit it up last fall, untested on the big stage.

(8) Apple. Flashy, high-scoring, can beat you with hardware or software. Rabid fans.

(9) Free Software. Fundamentally sound. International fan base. Plays to sellout crowds, possibly due to free ticket promotions.

(10) Bloggers. Reputation for trash-talking and making long shots, players frequently play in their pajamas.

(11) Federal Trade Commission. Fundamentally sound with lots of offensive firepower, but very rarely uses it.

(12) State Legislatures. Historically a powerhouse, lately has fallen on hard times. Resourcefulness is going to be key to victory.

(13) Newspapers. Coping with deteriorating training facilities and loss of alumni support, this year's team is wearing uniforms purchased in 1989.

(14) ICANN. Getting it done with smoke and mirrors, this team often plays abroad. Spends a lot of time on public relations.

(15) Internet User Advocates. Talented but underfunded, the players on this team have not yet learned to play together.

(16) Internet. A hardy opponent, often taken for granted.

(Going to the NIT this year: Microsoft, Yahoo!, Dell, Research in Motion)

Looking to the first round games, I see AT&T (1) easily getting past Internet (16) with a combination of throttling, traffic management, and content deals. The Apple (8) - Free Software (9) matchup is too close to call, I could go either way on it, but I would love to see Apple meet AT&T in the second round. Amazon (5) is going to have a lot of trouble with State Legislatures (12), and I don't see them being able to turn back State Legislatures' need for tax revenues, especially in these tough economic times. Google (4) has been killing Newspapers (13) for years now; that should continue in this game.

The Online Marketers (6) matchup against Federal Trade Commission (11) is game you'd think would be a close one. But historically Online Marketers have won every time. I see them getting through to the next round in easy fashion. It's also a safe bet that Business Lobbyists (3) will crush ICANN (14) in what I see as a low-scoring, defensive battle. I'll be very surprised if ICANN gets makes any of its new gTLD shots.

White House (7) versus Bloggers (10). It's a shame they had to meet in the first round, since Bloggers were so instrumental in Obama's win last fall. I'm going to give this one to White House. Having the Commander in Chief on your team has got to count for something.

The final first round game, IP Owners (2) vs. Internet User Advocates (15), is shaping up to be another walkover. Internet User Advocates didn't score a single point in the Copyright Term Extension Game and scored just a handful of points in the Digital Millennium Copyright Game. No matter how much publicity is given to this game, the fact is that if it wasn't constitutionally required IP Owners and Internet User Advocates wouldn't even be on the same court together.

My Final Four is AT&T, Google, Business Lobbyists, and IP Owners. After that, I don't see Google getting past AT&T. Maybe next year. In the other semi, IP Owners' greater experience and depth, combined with an overwhelming need to win, should get them through to the final. An AT&T-IP Owner final is really too close to call. I've been hearing for years that, if they had the opportunity, they'd cut a deal and share the title. Not this year. My pick: AT&T.

Go Blue.

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Follow me on Twitter at @bnatechlaw

House Antitrust Task Force to Examine Claims of Censorship by Broadband Providers

The House Judiciary Committee's newly formed Task Force on Competition Policy and Antitrust Laws will hold a hearing March 11 on Net Neutrality and Free Speech on the Internet. The witness list has not yet been announced. The hearing promises to air some of the same issues aired at the Federal Communications Commission's Feb. 25 meeting in Cambridge, Mass. -- charges that large broadband providers have engaged in bandwidth degradation against some types of content and some technologies, such as peer-to-peer file-sharing applications. BNA will be there. If you'd like to join us, get there early.

Deadlines, Rules Announced for 700 MHz "Open Access" Auction

Theresa Cavanaugh and Chris Fedeli at Davis Wright Tremaine summarize today the Federal Communications Commission's recently announced dates and procedures for Auction 73, the highly publicized wireless spectrum auction that will impose limited open access requirements on successful bidders in some of the spectrum available. The application filing deadline is Dec. 3, 2007. The auction itself will begin Jan. 24, 2008.

In a related item, Wall Street Journal columnist Walt Mossberg blisters the federal government today for leaving the cell phone industry in a position to control the content that traverses their networks as well as the devices that connect to it.

A shortsighted and often just plain stupid federal government has allowed itself to be bullied and fooled by a handful of big wireless phone operators for decades now. And the result has been a mobile phone system that is the direct opposite of the PC model. It severely limits consumer choice, stifles innovation, crushes entrepreneurship, and has made the U.S. the laughingstock of the mobile-technology world, just as the cellphone is morphing into a powerful hand-held computer.

Bullied and fooled? Considering the influence that net neutrality's foes have traditionally wielded in Washington (AT&T alone gave over $38 million to federal office seekers during 1990-2006; Verizon gave $15.5 million during the same period), it's something of a miracle that any open access requirements were imposed at all. If baseball was played like telecom policymaking, the umpire would consult with the pitcher, and the pitcher's attorneys, before calling every ball or strike. What the FCC did in the 700 MHz auction was brave, not cowardly, given the way business usually gets done here.