CLIP-ings: October 5, 2018

Internet Governance

California Sued Over Net Neutrality: Internet, cable, and wireless providers filed a federal lawsuit seeking to block California’s new statute mandating net neutrality rules, following a separate lawsuit filed by the Department of Justice; the lawsuit alleges California’s law is a “classic example of unconstitutional state regulation” and urges the court to block the legislation before it takes effect on January 1.

Amazon Raises Minimum Wage: Following months of public criticism about its labor practices, Amazon announced it will begin paying all U.S. employees, including part-time, seasonal, and temporary workers, at least $15 an hour and all U.K. employees at least £9.50; Amazon also revealed that it will begin lobbying Congress to raise the federal minimum wage, which has been set at $7.25 for almost a decade.

Privacy

EU Enforcement Can Access Telecom Data: The European Court of Justice ruled that national law enforcement authorities may access individuals’ basic information, such as addresses and phone numbers, held by telecommunication companies when investigating minor criminal offenses so long as the data-gathering does not seriously infringe their privacy rights; the decision arises as the court is dealing with several privacy disputes, including efforts to extend the “Right to be Forgotten” worldwide and upcoming hearings related to the legality of the EU-U.S. Privacy Shield.

Suspect Unlocks iPhone With Face: In what may be a world first, the FBI forced a suspect to unlock his iPhone X using Apple’s Face ID feature and searched photos and chats on the iPhone, allegedly finding material and conversations associated with child pornography; while courts ruled that there is a difference between a facial or fingerprint recognition system and a passcode typed into a phone, the case raises an interesting legal question of whether a person can be compelled to unlock his or her phone by looking at it.

Information Security and Cyberthreats

Sentenced for ATM “Jackpotting”: A federal judge sentenced a man from Springfield, Massachusetts to twelve months and one day of imprisonment for his role in an ATM “jackpotting” scheme, marking the first time someone in the U.S. is imprisoned for this form of ATM hacking; according to the Department of Justice, the hackers dressed as legitimate repair technicians to install malware on an ATM while others used the malware to extract the cash.

Irish Regulator Opens Facebook Investigation: The Irish Data Protection Commissioner commenced an investigation into a massive cyberattack that allowed hackers access to more than 50 million accounts, potentially costing Facebook more than $1.63 billion in fines; the investigation will examine “Facebook’s compliance with its obligation under the GDPR to implement appropriate technical and organizational measures to ensure the security and safeguarding of the personal data it processes.”

Intellectual Property

Vigilante Prevents Waymo Patent: Eric Swildens, an engineer with no connection to the self-driving industry, spent $6,000 of his own funds to successfully argue that the lidar circuit in Waymo’s patent already existed, causing the US Patent and Trademark Office to deny 53 of out Waymo’s 56 claims; the same patent was at issue in Waymo’s lawsuit against Uber in December 2016, which resulted in Uber agreeing to redesign its lidar instrument and give Waymo $254 million worth of equity, a resolution that now seems unnecessary.

Groupon Settles IBM Patent Infringement Claim:  Having previously argued in court that some of IBM’s patents involving pre-internet technology from the 1980s are outdated, Groupon agreed to pay $57 million to settle IBM’s infringement claims and entered into a long-term cross-licensing deal; IBM, which maintains over 45,000 technology patents, previously litigated patent infringement suits against titans such as Twitter, Amazon, and Expedia.

Free Expression and Censorship

Alphabet Takes on DNS Manipulation: Jigsaw, an Alphabet incubator tasked with addressing global security challenges, developed a tool called Intra that defends Android users against attacks on free speech by encrypting connection to the DNS server and pointing to Google’s own DNS servers, which prevents authoritarian governments from denying access to information deemed off-limits;  DNS manipulation is widespread with more than 60 countries, including Iran, China, and Turkey censoring parts of the Internet.

Infowars Publisher Sues PayPal: After PayPal banned his account for violating its policy against promoting hate and discriminatory intolerance in September, Alex Jones, publisher of Infowars, sued the digital payment platform, complaining of “viewpoint discrimination” against political conservatives that permeates technology companies; PayPal spokesperson, Kim Eichorn, responded, “PayPal believes the claims in the complaint are without merit.”

Practice Note

California Overhauls Ethics Rules: California’s ethics rules will be in-line with the ABA Model Rules of Professional Conduct starting November 1, which means all U.S. states will track the Model Rules; Dennis Rendleman, lead senior counsel for ethics for the ABA’s Center for Professional Responsibility, in reflecting on lawyers’ increasingly multi-jurisdictional practice, stated, “It’s better for the rules to be consistent from state to state … [s]o the development in California, which of course is one of the largest economies in the country, is a positive development.”

On The Lighter Side

9 Million Wikipedia Links Rescued: Internet Archive, a nonprofit digital library, reinstated 9 million previously broken Wikipedia links and intends on continuing its efforts with Wikipedia as well as other media such as e-books and academic papers; replacing broken links with their archived versions boosts the credibility of Wikipedia, preserves internet history, and expands access to original sources.


Joel R. Reidenberg
Stanley D. and Nikki Waxberg Chair and Professor of Law
Founding Academic Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP

CLIP-ings: September 21, 2018

Internet Governance

Stopping Fintechs: The New York Department of Financial Services filed a suit against the U.S. Office of the Comptroller of the Currency to repeal its decision permitting payment services like Venmo and online lenders to apply for national bank charters, stating the move violated the Constitution’s Tenth Amendment and put vulnerable consumers at risk of exploitation.

Hunting Pirates: The Supreme Court of Canada unanimously held media makers and other copyright holders must pay internet service providers “reasonable” compensation to link pirates’ IP addresses to customers’ personal data; the Supreme Court asked a lower court to determine the “reasonable” amount that internet service providers should be reimbursed for identifying subscribers accused of infringing on copyrights.

Privacy

Protecting Children’s Privacy: New Mexico Attorney General Hector Balderas filed a federal lawsuit against Tiny Lab Productions and its contracted advertisers, including Google and Twitter, for allegedly sending children’s location, demographic, and other personal information to advertisers without parental consent; the Attorney General also claims Google gave its customers the false impression that the apps adhere to child privacy policies by marketing the apps in the family section of its online store.

Amazon Under Preliminary Antitrust Probe: The European Commission launched a preliminary antitrust investigation into Amazon’s use of data on third-party merchants to determine whether retailers are being placed at a disadvantage; Competition Commissioner Margrethe Vestager stated her office received complaints and sent questionnaires to retailers who do business with Amazon to gather more information.

Information Security and Cyberthreats

Newegg Data Breach: Hardware retailer Newegg suffered a data breach that exposed customers’ credit card information for a month to Magecart, the same group behind the British Airways and Ticketmaster UK breaches earlier this year; the hackers injected a 15-line credit card-skimming code into Newegg’s payments webpage and sent the data to a server with a similar domain name and an HTTPS certificate controlled by the hackers.

UK Fines Equifax: The UK Information Commissioner’s Office (“ICO”) fined Equifax’s UK arm for 500,000 pounds for failing to protect up to 15 million citizens’ personal data; ICO found significant problems with Equifax’s data retention, IT system patching, and audit procedures and discovered the company failed take appropriate steps to fix a critical vulnerability identified by the U.S. Department of Homeland Security.

Intellectual Property

Modernizing Music: The Senate unanimously passed a bill that revamps Section 115 of the U.S. Copyright Act by making music licensing easier and more rewarding for rights holders, compensating songwriters and artists for pre-1972 creations, and improving payouts for producers and engineers when their recordings are used on satellite and online radio; reflecting on the bill’s likelihood of becoming law, Mitch Glazier, the president of the Recording Industry Association of America, said that the Music Modernization Act, “moves us toward a modern music licensing landscape better founded on fair market rates and fair pay for all.”

USPTO Seeks Artificial Intelligence: In hopes of moving quicker without compromising integrity, the United States Patent and Trademark Office (“USTPO”)  issued a request for information about an artificial intelligence solution that would aid the agency’s internal search function as it reviews patent applications; one challenge the USTPO hopes to address is the ever-changing nature of language as applicants and innovation cultivate new terms, which makes keyword searches difficult.

Free Expression and Censorship

China Collaborates on Artificial Intelligence: Facing rigid content restrictions, U.S. tech giants, such as Google, Microsoft, and Amazon, are finding an opportunity to make headway into the Chinese economy and data through artificial intelligence; for example, Google has introduced a new line of AI-backed products, which marks its first new consumer product in China since its search engine was largely blocked in 2010.

Registering Domains with “Seven Dirty Words”: The National Telecommunications and Information Administration rescinded its rule prohibiting the “seven dirty words” in domain names; after back-and-forth views between a registrant, the Electronic Frontier Foundation, and Harvard Law School,  the government found that Federal Communications Commission v. Pacifica Foundation only restricts the language on over-the-air broadcasts and thus the First Amendment protects the “seven dirty words” in domain name registrations.

Practice Note

Free Access to Public Judiciary Records? Republican Congressman Doug Collins introduced legislation that gives free access to documents on the federal judiciary’s website PACER, instead of charging 10 cents per page; in addition to cutting costs for the legal community, the legislation would allow readers to readily access external site links to the electronic records and enable the use of modern software to analyze legal files and evaluate biases and other trends in the judicial system.

On The Lighter Side

New Robo-Dog Litter: For those interested in experiencing evolving AI at home, Sony’s latest Aibo robot puppy is now on sale in the U.S.; the adorable mechanical pet recognizes up to 100 faces, develops a personality that changes (and becomes more obedient with training) over time, and even plugs itself in by walking to its charging station.


Joel R. Reidenberg
Stanley D. and Nikki Waxberg Chair and Professor of Law
Founding Academic Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP

CLIP-ings: September 7, 2018

Internet Governance

Tech Meeting on Capitol Hill: While Google declined to make a C-suite executive available for the hearing, Facebook COO Sheryl Sandberg and Twitter CEO Jack Dorsey testified to the Senate Intelligence Committee about their efforts to curb foreign interference in U.S. elections and whether Twitter is biased in how it monitors online accounts; directly after the hearing ended, the Department of Justice stated that Attorney General Jeff Sessions “has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.”

‘Stop BEZOS Act’: Senator Bernie Sanders introduced a bill entitled “Stop Bad Employers by Zeroing Out Subsidies Act” that would require companies with at least 500 employees to pay a one-hundred percent tax on government benefits received by workers, following similar legislation introduced in Congress last summer by Representative Ro Khanna; while Sanders claimed Amazon’s employees are paid inadequate wages and rely on federal benefits to cover their families’ basic needs, Amazon argued Sanders’ figures are “inaccurate and misleading” because they include temporary and part time workers.

Privacy

‘Five Eyes’ on Encrypted Data:  Homeland Security Secretary Kirstjen Nielsen and her counterparts from Britain, Canada, Australia, and New Zealand, the so-called Five Eyes nations, issued a joint memo calling on technology firms to create workarounds to their encrypted products and services so the governments may lawfully access encrypted e-mails, text messages and voice communications; while technology firms have not yet commented on the memo, Facebook’s global public policy lead on security Gail Kent wrote in May that “cybersecurity experts have repeatedly proven that it’s impossible to create any back door that couldn’t be discovered — and exploited — by bad actors. It’s why weakening any part of encryption weakens the whole security ecosystem.”

LinkedIn Recruits Spies? U.S. counter-intelligence chief William Evanina claims that Chinese espionage agencies are using fake LinkedIn accounts to recruit spies in America with access to government and commercial secrets and asked Microsoft, the owner of LinkedIn, to shut down the alleged fake accounts; while German and British authorities previously cautioned their citizens that China is using LinkedIn to recruit spies, this is the first time a U.S official publicly discussed the issue.

Information Security and Cyberthreats

Spy Gets Spied Upon: mSpy, an app that allows people to track their children, loved ones, or anyone else, leaked more than two million sensitive records, including personal passwords, text messages, contacts, notes, and even location data for mSpy users; the leak emerged when security researcher Nitish Shah found mSpy’s online database did not require authentication and allowed anyone to find up-to-the-minute records for customer transactions and mobile phone data.

Intellectual Property

Facebook v. Blackberry: Facebook filed a complaint against Blackberry in the U.S. District Court of the Northern District of California claiming six patent infringements, including “Voice Instant Messaging”; the allegation comes only months after Blackberry filed a lawsuit against Facebook and its subsidiaries, WhatsApp and Instagram, in March which also involved messaging patents.

EU Copyright Reform Warning: The Wikimedia Foundation issued a blog post that warns against the EU copyright reform that will be voted on next week, which proposes a copyright for snippets of journalistic content online and shifting liability for platform users’ copyright infringements onto the platforms themselves; supporters argue the legislation will help fairly recompense European creatives for their work.

Free Expression and Censorship

Saudi Arabia Punishes Satire: Saudi Arabia’s Public Prosecution tweeted on Monday that posting satire online that “mocks, provokes, or disrupts public order, religious values and public morals” could result in an $800,000 fine and up to 5 years in jail; the restriction was announced amidst the apparent crackdown over the past year on critics of the government.

Apple Pride Watch Face Removed in Russia: iOS developer Guilherme Rambo discovered that the pride Apple watch face is “hardcoded to not show up if the paired iPhone is using the Russian locale”; Apple’s removal is an apparent attempt to abide by a Russian “gay propaganda” law passed in 2013 which makes actions such as supporting LGBTQ rights punishable by jail time.

Practice Note

Development of Domain Name Jurisprudence: Panels appointed to adjudicate nearly 50,000 domain name disputes under the Uniform Domain Name Dispute Resolution Policy have developed a complex jurisprudence of domain names, including certain evidentiary hurdles for complainants and respondents; as a result, there has been an emergence of counsel who have expertise in domain names.

On The Lighter Side

AP Computer Science Female, Minority Students on the Rise: Thanks to an introductory course in tech skills, a record number of female, black, and Latino students took the Advanced Placement computer science course this year according to the College Board; the program is designed to expose high school students, especially those belonging to groups currently underrepresented in the tech industry, to computer science training and hopefully provide access to high-paying tech jobs in the future.


Joel R. Reidenberg
Stanley D. and Nikki Waxberg Chair and Professor of Law
Founding Academic Director, Fordham CLIP

N. Cameron Russell
Executive Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP

CLIP-ings: August 31, 2018

Internet Governance

Defining Competitive Markets: The Eighth Circuit upheld the ruling of the Federal Communications Commission (“FCC”) that a business broadband market with one provider can be “competitive” if another provider is within a half-mile radius of the service area, which enables the FCC to remove price caps in monopolized regions; the court was deferential to the FCC in reasoning that the agency has the authority to “rationally choose which evidence to believe among conflicting evidence.”

FTC Asked to Investigate Verizon: Following Verizon’s recent data throttling of first responders who were battling wildfires in California, a group of senators have called on the Federal Trade Commission (“FTC”) to investigate the controversy; the letter stated that the FCC has “abdicated its jurisdiction over broadband communications.”

Privacy

Data Protection Complaints on the Rise: Since the GDPR went into effect three months ago, the number of data protection complaints has more than doubled; the Information Commissioner’s Office in the U.K. attributes the spike to greater privacy awareness and recent high-profile data scandals and expects the figures will continue to climb.

Inbox Scanning: Oath confirmed that humans and algorithms scan over 200 million Yahoo! users’ promotional emails to create data segments to sell to advertisers; the practice takes place as Yahoo! continues to compete with Gmail and face unfavorable public perception after a series of data breaches in recent years.

Information Security and Cyberthreats

PIN Vulnerability: Following the recent T-Mobile database breach, two security researchers uncovered flaws in third-party websites that allowed an interested party unlimited attempts at guessing T-Mobile and AT&T customers’ PIN numbers; Apple and Asurion have confirmed that all vulnerabilities have been addressed.

The Key to Two-Factor Authentication: Google’s internal security kit, which serves as a physical tool for two-factor authentication, was made available to the public yesterday and consists of one USB key and another that supports Bluetooth and NFC for mobile devices; Google reports there have been “no reported or confirmed account takeovers since implementing security keys at Google.”

Intellectual Property

IP Address Not Enough to Catch Pirate: The Ninth Circuit held that an internet protocol address used to illegally download copyrighted films, standing alone, is insufficient to state a direct copyright infringement claim against the registered subscriber of the IP address, affirming the dismissal of a copyright infringement lawsuit against an owner of an adult foster home where someone downloaded pirated copies of the movie “The Cobbler”; the contributory infringement claim similarly failed because the complaint contained no allegations that the registered subscriber encouraged or assisted the copyright infringement.

NAFTA Creates Copyright Confusion: After the Trump Administration reached a preliminary agreement with Mexico to revise NAFTA, the Office of the U.S. Trade Representative (“USTR”) created confusion by posting a fact sheet that indicates the copyright term would “extend” to 75 years; it remains unclear whether this means there will be an extension of the copyright term, which is currently the life of an author plus 70 years for most works owned by individuals – one official at the USTR told the Hollywood Reporter that the fact sheet did not extend the copyright term because it referred to “publication based” works with a 95 year term, while other officials told reporters that they mean to extend the copyright term to life plus 75 years.

Free Expression and Censorship

Gun Blueprints In The Mail: Defense Distributed founder Cody Wilson began selling blueprints of 3-D printed firearms at a price determined by the customer, despite a federal judge’s court order requiring the State Department to continue blocking him from publishing his blueprints; Wilson believes his strategy to sell the blueprints by emailing them or mailing them on USB drives is permitted because the judge ruled that the blueprints “cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States.”

Facebook Finally Bans Myanmar Leaders: After criticism for failing to remove the Myanmar army’s anti-Rohingya posts, Facebook acknowledged that it was slow to respond to the problem, pledged to hire more Burmese-speaking monitors, and banned Myanmar military officials and army chief from the platform for using Facebook to spread false information about the Rohingya and promote “hate and misinformation,” making it the first time Facebook banned a country’s military and political leaders.

Practice Note

Better Get It In Writing: A California judge granted Johnny Depp’s bid to dismiss a claim by his former attorneys and found that an oral agreement entitling Depp’s former attorneys to a percentage of Depp’s earnings was invalid, citing a statute that requires contingency fee agreements to be in writing; the ruling will likely change how attorneys and actors execute their agreements and may motivate other actors displeased with their counsel to seek similar legal claims.  

On The Lighter Side

A Look Into Unseen Amazon Tribe: Ever wonder what life is like for Amazon Tribes? Now you can find out. Using a drone, a Brazilian government agency filmed the first footage of an extremely isolated tribe in the Amazon. Still photos are available on the agency’s website and drone footage can be viewed on YouTube


Joel R. Reidenberg
Stanley D. and Nikki Waxberg Chair and Professor of Law
Founding Academic Director, Fordham CLIP

N. Cameron Russell
Executive Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP