CLIP-ings: August 23, 2019

Internet Governance

Facebook Faces Fair Housing Act Lawsuit Over Advertising Practices: Several New York residents filed a proposed class action in California federal court alleging that Facebook allowed advertisers to restrict ads from certain users based on characteristics such as race and gender; the lawsuit is the latest in a string of litigation concerning the allegedly discriminatory nature of housing advertisements on Facebook.

States Reportedly Planning Antitrust Investigation Of Big Tech Companies: At least twelve states’ attorneys general are intending to issue civil subpoenas in the latest antitrust investigation into the major technology companies; the investigation is expected to be formally announced in September.

Privacy

Facebook Launches “Clear History” Privacy Feature: The new tool, which will initially be introduced in Spain, Ireland, and South Korea, will show users which websites are tracking their off-Facebook activity and sending ad targeting reports to Facebook, and will allow users to “disconnect” their off-Facebook activity from their Facebook account; the tool will not delete data from Facebook’s servers, however.

Is Libra What It Seems? A new opinion paper released by researchers at the Digital Equity Association and University College London’s Centre for Blockchain Technologies argues that Facebook’s Libra cryptocurrency is born out of the social network’s motivation to “become the world’s digital identity provider”—a role that would be of significant financial interest to Facebook as an advertising company.

Information Security & Cyberthreats

Ransomware Attack Targets 22 Texas City And Local Governments: The coordinated attack has reportedly affected access to birth and death certificates and utility bill payment services; the attack highlights the vulnerabilities of some local governments’ IT infrastructure.

Intellectual Property

YouTube Sues Alleged Copyright Troll Over Extortion Scheme: YouTube contends that a user who caused the website to remove other users’ content by making false allegations of copyright violations, and then demanded payment from the users to withdraw the allegations, violated the Digital Millennium Copyright Act’s prohibition against fraudulent takedown claims.

Free Expression & Censorship

Facebook, Twitter, Investigate Chinese Government-Linked Accounts Critical Of Hong Kong Protests: The social media companies discovered and have suspended certain accounts and advertisers which are alleged to have “deliberately and specifically” sought to create political discord around the protests in Hong Kong.

Practice Note

Federal Circuit Affirms Injunction Barring PTAB Proceedings On Basis Of Forum Selection Clause: A clause in a patent license agreement which stated that any disputes would be litigated in a court in San Francisco County or Orange County, California, precluded PTAB proceedings in litigation concerning royalty payments for distribution of virtual reality headsets.

On The Lighter Side

YouTube Mistakenly Removes Robot Fight Videos For Animal Cruelty: The website conceded that it was mistaken to have removed videos of robots fighting for violating its policies against deliberate infliction of animal suffering.

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

Tom Norton
Executive Director, Fordham CLIP

Alison Gordon
Editorial Fellow

CLIP-ings: August 16, 2019

Internet Governance

Job Search Websites Ask European Antitrust Regulator To Investigate Google: 23 job search websites have written to the European Commission alleging that Google has engaged in unfair and anti-competitive conduct by using its own service to steal their market share; the company is reportedly already making changes to its job search feature in Europe in response.

U.S. Trade Representative Announces Delay To Tariffs On Certain Electronic Devices From China: Although a round of tariffs on Chinese imports will take effect on September 1, tariffs on products such as cellphones, laptops, video game consoles, and computer monitors will be delayed until December 15; the announcement comes after Apple, Sony, Nintendo, and Microsoft wrote to the USTR expressing concern over the impact of the tariffs.

Privacy

Irish Regulator Investigates Facebook’s Review Of Audio Recordings: Ireland’s Data Protection Commission is “seeking detailed information” about the social network’s manual review of audio recordings after already investigating Google, Apple, and Microsoft for engaging in the practice; Facebook has stated that it paused human reviews of audio more than a week ago.

QR Codes On Debt Collection Letters Violate Consumer Protection Law: The Third Circuit recently ruled that debt collection notices that include the codes, which can be scanned by any smartphone and are “susceptible to privacy intrusions,” reveal encrypted account numbers and thus violate the Fair Debt Collection Practices Act.

Information Security & Cyberthreats

SEC Investigating First American Financial Corp. Over Exposure Of 885 Million Records: The investigation will determine whether the title insurance company violated any federal securities laws as a result of the exposure of financial records relating to mortgage deals; the New York Department of Financial Services is already investigating the company for potential cybersecurity violations in connection with the leak.

Intellectual Property

Federal Circuit Vacates International Trade Commission Preclusion Ruling: As part of a trademark infringement suit brought by personal transportation company Segway, a three-judge panel vacated the court’s earlier opinion that found trademark rulings from the ITC preclude district court litigation over the same issue.

Free Expression & Censorship

LGBTQ Creators Sue YouTube, Google, Over Alleged Discrimination And Censorship Practices: The lawsuit alleges that YouTube discriminatorily and unfairly applies its policies to restrict, block, demonetize, and financially harm the plaintiffs and the LGBTQ community.

Practice Note

California Supreme Court Rules On Standing Of Website Visitors: In a case challenging payment processing service Square’s “Prohibited Goods and Services” policy as discriminatory, the court found that “visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store”; the ruling may have wide-reaching ramifications for online businesses.

On The Lighter Side

Amazon’s Facial Recognition Technology Mistakes California Lawmakers For Criminals: A recent test by the ACLU mismatched one in five photographs of lawmakers with mugshot pictures.

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

Tom Norton
Executive Director, Fordham CLIP

Alison Gordon
Editorial Fellow

CLIP-ings: August 9, 2019

Internet Governance

eBay Sues Amazon Over Alleged Seller Poaching: The lawsuit, filed in federal court in California, claims that Amazon managers carried out a criminal conspiracy in which they directed employees to target and recruit to Amazon high-value eBay sellers; this is the second such lawsuit by eBay against Amazon.

Privacy

FCC Filing Reveals Pentagon Is Testing Mass Surveillance Balloons: Up to 25 unmanned solar-powered balloons have been launched to surveil six Midwestern states; while the balloons will reportedly detect narcotics trafficking and homeland security threats, privacy groups have criticized the wide-area surveillance, which could track the travel and location of any vehicle in the target area.

Technology Companies Pause Reviews Of Audio Recordings: Apple and Google have halted employee reviews of recordings made by voice assistants and Amazon has introduced an opt-out feature, but Microsoft contractors are reportedly continuing to review recordings; Apple now faces a federal lawsuit in California and the German data protection regulator is investigating Google’s practices.

Information Security & Cyberthreats

AT&T Employees Allegedly Received Bribes To Help Unlock Millions Of Smartphones: The DOJ has charged a Pakistani man with paying bribes totaling more than $1 million to AT&T employees at a company call center in Washington; the scheme allegedly involved the installation of malware that captured confidential and proprietary information about AT&T’s internal computers and applications, and automatically unlocked phones without requiring any employee input.

Intellectual Property

Walmart Files Patent Application For Digital Currency: The filing proposes a method for a blockchain-based digital currency which could be pegged to the U.S. dollar and made available for use at selected Walmart retailers or partners; the proposal is similar to Facebook’s planned cryptocurrency Libra.

Free Expression And Censorship

Social Media Companies Face Scrutiny Over Hate Speech: Civil rights activists have urged Twitter to ban white supremacist content following the recent mass shooting in El Paso, and the House Homeland Security Committee has asked the owner of website 8chan to testify on what the forum is doing to address the proliferation of extremist content.

Practice Note

Appeals Court Voids Google Cookie Privacy Class Action Settlement: The Third Circuit found the settlement raised due process concerns by releasing money damages claims and paying privacy groups, rather than class members, under the cy pres doctrine; a district judge will now revisit the settlement.

On The Lighter Side

Amazon Scammer Arrested For Obtaining Refunds By Returning Packages Filled With Dirt: The alleged scam, which took in nearly $370,000, was only discovered after a random search at an Amazon warehouse revealed a dirt-filled box.

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

Tom Norton
Executive Director, Fordham CLIP

Alison Gordon
Editorial Fellow

CLIP-ings: August 2, 2019

Internet Governance

European Court Issues GDPR Ruling On Websites Using Facebook “Like” Button: The Court of Justice of the European Union held that websites that embed Facebook’s “Like” button are, along with Facebook, jointly responsible for the initial processing of visitor data collected though the button and therefore must either obtain visitors’ consent before transferring their data to the social media company or demonstrate a valid legal basis for processing the data; the ruling is also likely to apply to websites that embed other social media plug-ins, many of which collect the data of all website visitors irrespective of whether those users have social media accounts.

Privacy

Consumer Privacy Group Files Motion To Challenge Facebook-FTC Settlement: The Electronic Privacy Information Center has filed a motion to intervene to prevent court approval of the $5 billion settlement, contending that the proposed deal, which grants Facebook immunity from thousands of outstanding consumer complaints over privacy issues and the use of facial-recognition technology, violates the Commission’s “mandate to review consumer complaints.”

Information Security & Cyberthreats

Capital One Data Breach Exposes Data Of 100 Million Americans: The hack compromised approximately 140,000 social security numbers and 80,000 bank account numbers; a Seattle woman has been arrested in connection with the breach, and the New York attorney general has commenced an investigation.

New York Passes New Data Breach Legislation: The Stop Hacks and Improve Electronic Data Security Act, which takes effect on March 21, 2020, expands the definition of “private information” and imposes more stringent breach notification obligations, among other things.

Intellectual Property

TV Broadcasters Sue Streaming Service For Copyright Violations: ABC, NBC, CBS, and Fox are suing Locast, a non-profit entity funded by AT&T and Dish that streams local broadcast television programming via the internet; Locast contends that under the Copyright Act, it is not required to pay the broadcasters for their programming due to its non-profit status.

Free Expression & Censorship

Appeals Court Upholds Dismissal In Facebook Terrorism Case: The Second Circuit affirmed that the Communications Decency Act shields Facebook from civil liability to American victims of Hamas attacks in Israel, who had argued that the social media company was liable for providing Hamas with a platform to further its terroristic goals.

Practice Note

USPTO Proposes 25% Fee Increase For America Invents Act Reviews: The proposed fee increase is reportedly due to an increased workload at the PTAB; the proposed rule will be open for comments in September.

On The Lighter Side

Lyft Withdraws Electric Bikes After Two Battery Fires: The ride-sharing company announced its e-bikes will be temporarily unavailable in San Francisco, Oakland, and San Jose while it investigates its battery technology.

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

Tom Norton
Executive Director, Fordham CLIP

Alison Gordon
Editorial Fellow

CLIP-ings: July 26, 2019

Internet Governance

Facebook Under Further FTC Scrutiny: After it was granted authority last month to investigate Facebook for antitrust violations, it was confirmed this week that the FTC formally opened an antitrust investigation of the social network.

Privacy

Facebook, SEC, Reach Settlement Over Disclosures About Risks Of User Data Misuse: Facebook will pay a $100 million fine for allegedly presenting the risk of misuse of user data as hypothetical when it knew user data had actually been misused; in the wake of its settlement with the FTC over privacy violations, Facebook also announced this week that a bug in its code allowed partners access to limited friend data, even though Facebook purportedly cut off such access late last year.

New York City Bill Proposes Ban On Sale Of Location Data: The bill would prohibit cellphone companies and mobile app developers from sharing location data collected within the five boroughs; if the legislation passes, New York would become the first city to ban the sale of geolocation data to third parties.

Information Security & Cyberthreats

Equifax Data Breach Investigations To Settle For $700 Million: Equifax is close to reaching a settlement with federal and state regulators over a 2017 data breach that exposed the personal information of more than 147 million Americans; the proposed settlement amount is the largest ever for a U.S. data breach and includes a restitution fund of up to $425 million to compensate affected individuals.

Intellectual Property

PTAB Invalidates Patent Claims On Electronic Messaging: The Board found that media company TriPlay’s patent for a cross-platform electronic messaging system, which TriPlay alleged WhatsApp to have infringed, was invalid for obviousness in light of three examples of prior art.

Free Expression & Censorship

Tinder Announces New LGBTQ Safety Feature: The dating app will notify LGBTQ users when they open the app in an area that criminalizes same-sex consensual activity and will hide the users’ profiles by default; users will then have the option to make their profile public.

Practice Note

PTAB Releases New Edition Of Trial Practice Guide: The new edition offers guidance for filing multiple petitions challenging the same patent, addresses the practice of patent owners submitting testimonial evidence in their responses to petitions, and emphasizes the importance of prompt adjudication.

On the Lighter Side

Hoverboard Channel Crossing Attempt Fails After Ten Minutes: A Frenchman sought to cross the English Channel on a jet-powered hoverboard that reached an average speed of 87 miles per hour, but the attempt failed halfway through the planned 20-minute crossing.

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

Tom Norton
Executive Director, Fordham CLIP

Alison Gordon
Editorial Fellow

CLIP-ings: July 19, 2019

Internet Governance

House And Senate Committees Hold Antitrust Hearings On Amazon, Apple, Facebook And Google: The tech companies’ market power and Facebook’s proposed cryptocurrency, Libra, were the main focus of this week’s hearings; G7 leaders and Treasury Secretary Mnuchin have also expressed skepticism about Libra, and a draft bill targeting the cryptocurrency, the Keep Big Tech Out Of Finance Act, is circulating in the House Financial Services Committee.

Privacy

FaceApp Revives In Popularity Despite Privacy Concerns: The Russian photo-editing app, which allows users to upload photos and make their subjects appear older or younger, is being criticized because uploaded photos are processed in the cloud rather than on local devices; the app can also access photos on Apple devices even where the user’s photo permission setting would prevent any access.

FTC Proposes $5 Billion Fine For Facebook’s Role In Cambridge Analytica Scandal: The fine follows an investigation into whether Cambridge Analytica’s accessing of approximately 87 million Facebook users’ data violated an earlier consent decree; while the fine is the largest ever proposed by the FTC against a tech company, and its largest ever for a privacy violation, some Senators have labeled it “woefully inadequate.”

Information Security & Cyberthreats

Bulgarian Tax Agency Hack Exposes Bulgarian Taxpayers’ Personal And Financial Data: A 20-year-old cybersecurity worker has been arrested in connection with the hack, which is believed to have exposed the data of the majority of Bulgaria’s adult population; depending on the extent of the breach, the tax agency may face a fine of up to 20 million euros.

Intellectual Property

Qualcomm, DOJ, Seek Temporary Pause In Patent Licensing Litigation: The chipmaker is asking the Ninth Circuit to stay a May District Court ruling which found that Qualcomm broke antitrust law by charging cellphone makers high fees for rights to its wireless equipment; the government has requested a pause in the proceedings due to national security interests stemming from Qualcomm’s position as a supplier of 5G technology.

Free Expression & Censorship

Facebook Granted “Shadowbanning” Patent: The patent covers the process by which moderators can demote or hide comments in online forums without the commenter’s knowledge; although the feature is designed to manage offensive content, it stokes concern about social media companies’ control over speech, as reflected in a letter from two Republican Senators to the FTC this week asking it to investigate technology companies’ alleged censorship practices.

Practice Note

USPTO Announces New Rule Requiring All Foreign Trademark Applicants, Registrants And Parties To Be Represented By U.S. Counsel: The rule, announced earlier this month, takes effect on August 3 and is expected to affect tens of thousands of foreign-domiciled participants to USPTO proceedings; the rule is a response to a recent surge in fraudulent, inaccurate, and bad faith submissions.

On the Lighter Side

Uber Passengers Inadvertently Charged 100 Times The Advertised Price: The glitch, which triggered fraud alerts and maxed out customers’ credit cards, affected passengers in San Diego and Washington, with one rider charged $9,672 for a $96.72 fare.

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

Tom Norton
Executive Director, Fordham CLIP

Robert Chislett
Alison Gordon

Editorial Fellows

CLIP-ings: July 12, 2019

Internet Governance

FCC Preempts San Francisco Broadband Ordinance: The Commission voted three to two to block an ordinance prohibiting building owners from denying ISPs access to a building’s existing wiring; opponents of the FCC’s proposed order criticize its potentially anticompetitive effect.

Privacy

FBI, ICE Use Facial Recognition Software To Search Driver’s License Databases: Facial recognition technology-assisted searches designed to identify suspects, witnesses, and bystanders that are reportedly conducted without warrants or court orders face scrutiny following a House Homeland Security Committee hearing this week; the Privacy and Civil Liberties Oversight Board has also announced it will investigate the use of facial recognition software in aviation security.

Victim Of Electric Scooter Hit-And-Run Seeks User Data From Chicago Scooter Companies: A cyclist injured in the collision petitioned ten scooter companies for data on all riders in the area at the time of the incident; the case tests companies’ promises to protect riders’ privacy and data.

Information Security & Cyberthreats

British Airways And Marriott Face Record GDPR Fines For Data Breaches: The U.K. Information Commissioner’s Office has proposed fines on British Airways and Marriott of $230 million and $124 million, respectively, in response to data breaches discovered in 2018.

Intellectual Property

Patent Rejected For Smartphones-As-Remote Controls: The Federal Circuit upheld the PTAB’s rejection of smart home technology manufacturer Universal Electronics’ patent for connecting smartphones to televisions for use as remote controls on the basis that the invention was obvious based on a combination of earlier inventions.

Free Expression & Censorship

Federal Court Rules President Trump’s Twitter Blocking Unconstitutional: The Second Circuit affirmed a district court ruling that the President’s blocking of Twitter users amounts to an unconstitutional restriction of speech under theFirst Amendment’s public forum doctrine; the public’s right to criticize politicians online has spurred two lawsuits filed by New York politicians against Rep. Ocasio-Cortez for similar management of her official Twitter account.

Practice Note

California Senate Committee Amends Three Of Five CCPA Bills Now Pending Final Approval: Three of five business-backed bills were pushed forward with consumer-friendly amendments that, among other things, increase the transparency of employer surveillance practices and provide greater information for consumers who wish to contact online businesses regarding data use.

On the Lighter Side

Tesco Supermarkets Soon To Implement Cashierless Stores: Cameras and sensors powered by artificial intelligence will detect products selected by customers and automatically charge customers as they leave the store.  

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

Tom Norton
Executive Director, Fordham CLIP

Robert Chislett
Alison Gordon

Editorial Fellows