Month: September 2017

Internet Governance

Privacy Pleasantries: Amid criticism that the U.S.-E.U. Privacy Shield consists of the same limitations as the previously negotiated Safe Harbor agreement, the Privacy Shield’s first annual review seemed to go well as officials from both sides released a joint statement of their continued support of the current framework.

Movers and Shakers: The U.S. Food and Drug Administration (FDA) has enlisted the help of nine makers of digital health devices, such FitBit, Johnson & Johnson, and Samsung, to assist the FDA in developing new regulations for health monitoring devices.

Privacy

Mining Mystery: Websites owned by Showtime’s parent company CBS were discovered to be using a portion of users’ processing power to mine cryptocurrency, which generated revenue despite the presence of ad-blocking software and prompted questions as to CBS’ involvement in this unusual activity.

Facebook is Following You: Facebook will soon tailor the ads shown on its platform to include ads for the brick-and-mortar stores shoppers visit in real life by utilizing the in-app location tracking feature on their smartphones.

Information Security and Cyberthreats

Drama for Deloitte: Global accountancy firm Deloitte was the target of a complex cyberattack that impacted its global email server and reportedly compromised the confidential emails of some of its largest clients, prompting the firm to conduct an investigation to evaluate its cyber vulnerabilities.

Cries of a Category One: The director of the United Kingdom’s National Cybersecurity Centre warns that the first “category one” cyberattack could be upon us in the next few years and suggests that companies and governments should focus on managing risk and entrusting and empowering their employees instead of depending on the expertise of outside entities.

Intellectual Property

Tribe Transfer: A Native American tribe is suing Apple for patent infringement on a part used in its iPad, part of a litigation strategy in which technology companies transfer patent rights to a tribe to shield the patent from scrutiny by the Patent Trial and Appeal Board.

Troll Tribunal? A Texas federal judge notorious for handling about a quarter of all U.S. patent cases has for the second time been told by a higher court that he can only hear patent lawsuits if the defendant “resides” in his district, after becoming a favorite among forum-shopping patent “trolls.”

Free Expression and Censorship

Censoring Catalan: The Spanish government’s recent issuance of court orders to both registrants of the .cat domain name and to ISPs, in an effort to block online content related to the upcoming Catalan referendum, prompted accusations that the Spanish government violated E.U. censorship laws.

Big Block: To encourage the use of the state-monitored messaging app WeChat and better enforce censorship of 68 categories of content now deemed inappropriate for their citizens, China has blocked the highly popular messaging app WhatsApp by developing specialized software to interfere with the app’s end-to-end encryption.

Practice Note

Picking Protections: Businesses that develop valuable proprietary information should consider whether to obtain patent protection or trade secret protection, taking into account that patents are typically more costly and require specialized counsel to obtain, while trade secrets are usually more difficult to enforce and do not prevent competitors from independently developing inventions.

On The Lighter Side

Fly Dubai: On Monday, Dubai conducted the maiden test flight for its flying taxi service with the Dubai Crown Prince onboard; this promising first flight means that this flying fleet could be up and running within the next five years.

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Information Law News From CLIP-ings International Correspondents Around the Globe

This academic year, former CLIP-ings Editorial Fellows studying abroad are reporting from time-to-time on current local news and developments in the field of information law!

From Victoria Loeb – Paris, France:

French Government Wants High-Speed, Parliament Concerned about Digital Divide: In response to President Macron’s push to expand high-speed mobile and fiber optic coverage by the end of 2020, Parliament published a report expressing its concerns about digital inequality in France, stating that high-speed expansion would leave a large portion of French territory without basic mobile access, while better optical fiber deployment in large cities would lead to delays in more rural areas.

France Taxes Video Platforms to Finance Digital Creation: France signed a decree to implement a 2% tax on the ad revenues of video-streaming websites with the goal of integrating these video platforms into the financing of original French content; the tax passed in Parliament in December of 2016 but faced criticism from the government.

From Meghna Prasad – Rome, Italy:

The End of the Free Internet: At the UN General Assembly recently, Britain, France, and Italy issued a joint statement to insist that Silicon Valley focuses on building technology to suppress violent extremism online; in a move that has previously been criticized for encroaching on free expression, these countries and the heads of major tech companies are increasingly agreeing on the urgency of monitoring this content.

Don’t Worry, Robots Won’t Replace All of Us: YuMi the robot recently led an orchestra accompanying renowned tenor Andrea Bocelli at a charity gala in Pisa, Italy; it is unlikely, though, that robots will ever replace orchestral conductors because of the artistry and human element required to direct an orchestra.

The End of Fascist Propaganda in Italy? The Italian Parliament’s Chamber of Deputies recently approved a bill which will impose a prison sentence between six months and two years for promoting fascist propaganda; the highly controversial bill is argued by some to threaten free expression in Italy, but if it passes through Italy’s Senate, the bill will become law.

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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

Yemi Danmola
Harrison Kay
Rilana Wenske
Editorial Fellows, Fordham CLIP

Internet Governance

Kaspersky Gets Canned: The Senate has voted to ban the Russian cybersecurity firm Kaspersky Lab’s software from use in the federal government, stating that the firm’s products pose a national security risk despite its CEO’s insistence that it does not conduct espionage on behalf of the Russian government.

Internet Influences: To reduce the prevalence of prejudice in court proceedings resulting from internet use, such as a jurist researching the details of a current proceeding online and sharing the information with fellow jurors, the attorney general of the U.K. is ramping up use of the little-known Contempt of Court Act of 1981 to discharge and jail violating jurists.

Privacy

Identity Inventory: The State of Illinois is developing a blockchain birth registry that will contain a “secure ‘self-sovereign’” digital identity of each Illinois citizen and would contain their name, gender, birth date, and blood type; while each identity would be controlled entirely by the individual, the registry would serve as a centralized database for easy identity verification for the government and private entities.

Blundered Bill: A proposed California bill that would have required internet service providers (ISPs) to get opt-in consent from customers before showing or selling their information to third parties failed in the state legislature; it faced intense opposition not only from major ISPs but also from internet companies like Google and Facebook.

Information Security and Cyberthreats

Grandma’s USB: The Department of Veterans Affairs is providing veterans seeking access to the vets.gov website with a new method of identity verification in lieu of a password: a physical USB-security key developed by an army veteran that is allegedly “unphishable” and can hold sensitive information such as social security numbers, driver’s licenses, school or military IDs, professional licenses and passports.

Crack the Code: The National Security Agency (NSA) has released the fifth iteration of its Codebreaker Challenge, which encourages students to compete in solving a fictitious government cybersecurity scenario by completing a series of exercises that progressively increase in technical complexity.

Intellectual Property

Taylor in Trouble: Two songwriters have accused Taylor Swift of infringing on lyrics they popularized in 2001, claiming that they were first to put the particular lyric sequence together and that it is common industry practice to give credit to the source material that artists use in future songs.

Protecting Pepe: The creator of Pepe the Frog has been fighting against the alt-right’s use of his art for their propaganda with mixed success, first with cease and desist letters and now by invoking the Digital Millennium Copyright Act against websites featuring the appropriated work.

Free Expression and Censorship

Good Faith Government? Although denounced by courts and policymakers, governmental bodies are seeking judgments against requestors of legally sensitive or embarrassing public documents to allow the government to avoid disclosure.

Saudi Stipulations: Under pressure from the Saudi Arabian government, Snap has removed the Al-Jazeera channel from the Snapchat Discover section on its app, in an effort to comply with Saudi media and criminal laws that prohibit publishing content jeopardizing national security or the public order.

Practice Note

Alice Advice: Recent decisions from the Federal Circuit and U.S. Patent and Trademark Office provide guidance for software-related patent applicants to improve their chances of passing step one of the Alice two-step patent-eligibility test; in order to pass, drafters should (1) provide detailed explanations of the benefits of their alleged invention compared to the conventional art, (2) include source code and/or pseudo code in the application’s appendix, and, if applicable, (3) provide a detailed explanation of the improvement in the hardware-related features of their invention as compared to contemporary approaches to those same features.

On The Lighter Side

Museum Matchup: A battle of wits broke out on Twitter this week as the UK-based Natural History Museum and Science Museum both leveraged their most fascinating exhibits in an effort to prove which museum was superior.

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Information Law News From CLIP-ings International Correspondents Around the Globe

This academic year, former CLIP-ings Editorial Fellows studying abroad are reporting from time-to-time on current local news and developments in the field of information law!

From Victoria Loeb – Paris, France:

European High Court Takes on Workplace Surveillance: The Grand Chamber of the European Court of Human Rights, reviewing a 2016 decision by the Court that upheld the monitoring of an employee’s personal email use and his subsequent firing, ruled that workplace monitoring of electronic communication violates the right to privacy where there is no policy that gives notice of the specific nature and extent of the monitoring; the French-based court’s ruling on monitoring of electronic communication echoes regional privacy concerns of both public and private e-surveillance.

European Response to Heightened Cyber Threats: Following a speech on the state of the European Union last week by European Commission President Jean-Claude Juncker, the European Commission proposed to delegate greater authority to information security agency Enisa, which since 2004 has functioned mostly as an advisory and oversight tool; notably, the agency will be responsible for implementing the NIS Cybersecurity Directive, recently adopted by the EU and outlining principles similar to those in place in France.

Asian Media Covets French Agency’s Presence in North Korea: Through its exclusive coverage of official events in North Korea and frequent reporting since opening an office in Pyongyang last year, Agence France Presse (AFP) has solidified its presence as one of the few news sources operating live from the region, leading to contracts with agencies and channels throughout Asia; to compete with agencies already established in Asia, AFP plans to increase its video content and distribute “lives” on web media.

From Meghna Prasad – Rome, Italy:

From Drought to Fortification: After a severe drought throughout Italy forced Rome to implement rationing and a temporary halt of water delivery from its central lake last spring, the Italian government has turned to Israel for a solution, receiving advice not only on water management and conservation, but also on cybersecurity and monitoring techniques to prevent hackers from compromising the Italian water system.

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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

Yemi Danmola
Harrison Kay
Rilana Wenske
Editorial Fellows, Fordham CLIP

Internet Governance

Atypical Ads: Following Facebook’s disclosures about Russian-purchased political advertisements, Senator Warner of the Senate Intelligence Committee wants Congress to enact laws to regulate political digital advertising consistent with the laws for political television ads.

Rocky Tweets: A California court has refused to find the existence of a contract for the development of a Rocky franchise spinoff movie based on a series of tweets that the complaining party sent to actors from the original films, with the court concluding that broad disclosure of an abstract idea does not imply a promise to pay for that idea.

Privacy

Evasive Exchanges: Kaspersky Lab opened a pop-up shop in London where customers purchased exclusive items by street artist Ben Eine by providing certain amounts of personal data; the stunt was a thought experiment designed to make people more concerned about the information they give away every day.

Agency Access: Despite increasing congressional and state legislative protections on access to personal medical records, federal law enforcement agencies such as the Drug Enforcement Agency (DEA) can override existing state law to access and act on patient and prescription information without a warrant.

Information Security and Cyberthreats

Diseased Devices: Google, Apple, and Microsoft are taking Armis Labs’ warnings seriously by creating updates to protect their devices, as at least 5.3 billion of the 8.2 billion Bluetooth-enabled devices worldwide are vulnerable to an attack called BlueBorne that requires no user involvement to spread between devices.

Better Bureaus? After a breach of credit bureau Equifax exposed the personal information of more than 143 million U.S. citizens, a group of Senators has reintroduced legislation that would require credit reporting agencies to provide more transparent credit reporting and injunctive relief if they mishandle credit information.

Intellectual Property

Outlawing Oldies: Last week, the civil rights classic “We Shall Overcome” lost its copyright protection as a New York federal judge determined that the song’s lyrics are not sufficiently different from that of the 1948 version, which is already in the public domain.

Win for Skin? A New York federal judge is expected to decide whether tattoos drawn on human skin is an “expressive medium” that can receive copyright protection, after a group of tattoo artists sued a video game creator for portraying in-game characters with tattoos mimicking the artists’ copyrighted designs.

Free Expression and Censorship

Enraged Emailer: A federal judge dismissed a libel suit from the self-proclaimed inventor of email against a Techdirt writer who regarded the inventor as a fraud because “the claim is incapable of being proven true or false[,]” the inventor of email depends on the definition of email, and there are many individuals that could be credited with this invention.

Practice Note

Board or Bench? Parties interested in resolving disputes through the Trademark Trial and Appeal Board (TTAB) should consider the impact of recent decisions when bringing disputes before the Board, which now allow foreign trademark protection in the U.S., registration of disparaging marks, issue preclusion, and fee shifting for some TTAB decisions on appeal.

On The Lighter Side

Name Game: WiFi network names that often default to complicated alphanumeric chains are increasingly being personalized by users, with names like DropItLikeItsHotspot believed to add creativity and personality to homes and businesses.

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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

Yemi Danmola
Harrison Kay
Editorial Fellows, Fordham CLIP

Internet Governance

Droning Differences: China’s adoption of stricter laws on flying drones resulted in many citizens flocking to aviation schools in pursuit of official licenses; meanwhile the FAA’s looser drone restrictions have provided telecommunications companies like AT&T and insurance companies like Allstate and Farmers Insurance the opportunity to utilize commercial drones in conducting their inspections for repairs and damages from Hurricane Harvey.

Wheels Up? Representatives from both sides of the aisle of the U.S. House voted to pass the SELF DRIVE Act, a move that will eventually allow companies to perform safety tests on up to 100,000 autonomous vehicles on regular roads if the legislation receives Senate approval.

Privacy

Win for Workers: The European Court of Human Rights ruled in favor of worker privacy rights forcing employers to inform their employees of the monitoring of their work email accounts, make employees aware of the consequences of utilizing work email for personal correspondence, and require legitimate justifications for monitoring their accounts such as IT risks or illegal activity.

Personnel Passcodes: The Court of Appeals for the Armed Forces has suggested that demanding a soldier provide a phone passcode is a violation of the Fifth Amendment, reasoning that providing or entering a passcode while in custody can be considered a self-incriminating act.

Information Security and Cyberthreats

Unkind Uploads: A 20-year old college student informed the Federal Communications Commission of a potential vulnerability to their commenting system in which, when commenting, an individual can upload an accompanying file harboring malware.

Pay Phones: Consumers around the world are now quicker to adopt mobile payment systems that run on their smartphones, citing convenience and confidence in security features like biometric authentication and notification capabilities despite the fact that smartphones are easier to hack than credit and debit cards.

Intellectual Property

Ripped Off: A soon-to-be-finalized settlement between major record labels and the world’s largest audio-ripping website will end a copyright infringement suit brought by the labels last year to enjoin the site from illegally distributing and profiting from millions of copies of label-owned music.

Coffee Flop: Starbucks has settled a trademark suit brought by the parent company of a single coffee shop in Brooklyn for allegedly infringing on its “Unicorn Latte” and drowning out the small shop’s opportunity to obtain fame for creating the drink.

Free Expression and Censorship

Fond of the Filter: Recently-leaked documents from the Council of the European Union show that Estonia, the current holder of the EU Presidency, is pushing for indiscriminate internet surveillance and to censor the internet in a manner similar to China, including a proposal to filter all uploaded content.

Practice Note

Keeping Up with Copyright: Recent developments in copyright law have drawn attention to some of the key issues in the area, including an updated test for separability used in the Star Athletica case, new case law to clarify who counts as a “repeat infringer” of copyrighted materials, and the still-open question of when a copyrighted work meets the registration requirement so that the owner can sue for infringement.

On The Lighter Side

Move Over Amazon: The government of Tanzania and Zipline International Inc. await the start of their partnership resulting in the world’s largest drone delivery service, which will distribute up to 2,000 life-saving medical supplies daily to the country’s 5,640 public health facilities.

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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

Yemi Danmola
Harrison Kay
Editorial Fellows, Fordham CLIP

Internet Governance

Interfered Innovation: Despite opposition from the Iranian people, Apple continues to aggressively remove apps developed for and by Iranians from its App Store in compliance with current U.S. sanctions against the country.

Privacy

Final Destination? Uber’s chief security officer has announced that users will once again be able to disable a feature that previously forced them to be tracked by the app for up to five minutes after completing a trip, in response to a series of controversies involving spying, stalking, and generally poor handling of private location data.

Fundamental Fears: Last week the Indian Supreme Court ruled that privacy is a fundamental right protected by their constitution; this move will hopefully alleviate the difficulties the Indian government faced in its push for the adoption of unique ID cards that store large amounts of sensitive information, from banking information to fingerprint data.

Information Security and Cyberthreats

Please Drive Through: A group of security researchers have devised a way to remotely hack into internet-connected car washes by writing an “attack script” that can trap vehicles and can cause the machinery to damage the vehicle and even spray water on passengers inside.

Trust Issues: A WikiLeak revealed that the CIA utilizes its technical liaison service personnel to conduct software updates for its partner agencies; disguising a data siphoner as the software update, the CIA gains access to the agency’s biometric data to see if the agency is holding back information.

Intellectual Property

Cube Copy: Rubik’s Brand Ltd., maker of the iconic Rubik’s cube, sued another toy maker for manufacturing “twist puzzles” that allegedly copy the original trademark-protected design and create confusion among consumers in violation of the Lanham Act.

Crackin or Snackin: Wonderful Pistachios & Almonds LLC (Wonderful) is suing Utz Quality Foods LLC (Utz) for trademark infringement as alleging that Utz’s new slogan “Get Snacking” is too similar to and will likely cause mass customer confusion with Wonderful’s longstanding slogan “Get Crackin”.

Free Expression and Censorship

Away with Anonymity: To discourage “false rumors, filthy language and illegal messages,” China will require tech firms to track the real identity of any user who posts a comment in an online message board in what is being seen as the latest move by the Chinese government to silence political opposition.

Say Cheese? A group of voters interested in having the ability to take selfies with their marked ballots is asking a New York court to repeal a 127-year-old state law banning the practice of showing a completed ballot to others, claiming that the law violates their First Amendment rights despite concern that repealing the law would result in undue political pressure to show a ballot to others.

Practice Note

Acquisition Aspirations: As more startups now aim to be acquired by larger companies instead of to become long-term businesses, patent counsel should be mindful of the shift when advising startup clients on intellectual property matters and take into account not only the interest of the client to drive up its valuation but also the interest of the acquiring company to purchase a firm with substantial IP protection.

On The Lighter Side

Aww, Mom! An app designed by Toyota utilizing Google Map’s API to monitor teenage drivers, triggered by unlawful behavior such as texting and driving or surpassing the speed limit, results in the app playing an embarrassing Spotify playlist chosen by the teen’s parents until the teen resumes lawful motorist conduct.

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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

Yemi Danmola
Harrison Kay
Editorial Fellows, Fordham CLIP