Month: June 2018

Internet Governance

Differing Approaches: In a bid to make the island of Hainan more tourist friendly, China will lift some internet censorship in its southernmost province, allowing visitors to access their Facebook, Twitter, and Youtube accounts; the policy is in sharp contrast to this week’s blocking of HBO’s website in China following presenter John Oliver’s humorous criticism of the nation’s President for life Xi Jinping.

Safe Space for Shopping: Amazon, Alibaba, eBay, and Rakuten signed an E.U. pledge this week, promising to speedily remove dangerous products being sold on their online marketplaces within the E.U.; other components of the pledge include cooperating with authorities, developing measures to act against repeat offenders, preventing reappearance of removed listings, and innovating new technologies to improve detection of unsafe products.

Privacy

Big Win for Consumer Privacy: In a landmark decision, the Supreme Court has ruled that law enforcement cannot access mobile phone location records from wireless providers without a warrant; the Court’s reasoning that “[j]ust because you have to entrust a third party with your data doesn’t necessarily mean you should lose all Fourth Amendment protections in it,” carving away a bit of the Third Party Doctrine.

Effect of Kennedy’s Retirement on Privacy: Justice Kennedy “did not always embrace a broad view of privacy rights,” but valued the importance of privacy in American democracy; his departure may make room for a justice who does not share Kennedy’s views in a time when interpretation of the Constitution is crucial for regulating the power of the government and tech companies.

Information Security and Cyberthreats

Vault Left Wide Open: A security researcher discovered that data broker Exactis’s 2TB database containing nearly 340 million individual records was missing firewall protection, permitting anyone with basic cybersecurity prowess to hack its entire database; although there is no evidence of intrusion by hackers, sensitive personal data including home and email addresses, religious beliefs, habits, phone numbers, and even the number, age, and sex of subject’s children were left exposed.

Fool Us Twice, Shame on Us: Tech giants including Amazon, Apple, Google, Facebook, and Twitter met with intelligence officials last month and discussed strategies to prevent repetition of the Russian interference that occurred during the 2016 elections; these companies have also been developing independent strategies to mitigate interference, e.g., Apple is introducing a curated 2018 midterm elections section in its News app and Twitter is developing algorithm for eliminating fake accounts with election-related content.

Intellectual Property

Worldwide Patent Damages? The Supreme Court’s opinion in WesternGeco LLC v. ION Geophysical Corp. has interpreted Section 271(f) of the Patent Act, concerning exports of components, to include lost profits for the use of an invention overseas as a remedy; critics believe this will disincentivize U.S.-based innovators who may face liability for reasonable royalties on domestic and international sales, whereas foreign infringers would likely only be liable for royalties on their U.S. sales.

Free Expression and Censorship

Limits to Free Expression? Hezbollah, the Lebanese militia with a State Department terrorist designation, claimed on Saturday that its Facebook and Twitter accounts have been shut down; the Times of Israel reports that the move closely followed threats of criminal prosecution against Twitter staff by Israeli authorities citing Hezbollah’s calls to violence.

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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

Mindy Nam
William Ioas
Editorial Fellows, Fordham CLIP

Internet Governance

Made in China 2025 Meets U.S. Tariffs: In its latest attempt to foil Beijing’s plans for technological dominance, the U.S. is introducing 25% tariffs on $50 billion worth of strategic Chinese imports targeted at high-tech industries; the tariffs aim to provide a critical shield against unfair industrial practices, like dumping, which have prompted industry experts like Warren Buffett to warn that the U.S. is being “colonized by purchase rather than conquest.”

Pie in the Sky Gets Closer: Citing a lack of competition concerns, the European Commission has approved unconditionally Comcast’s $30 billion bid for European pay-TV leader Sky, allowing Comcast to challenge 21st Century Fox’s existing bid; who will get the bigger slice is to be determined.

Corporations Are Persons – Right? The proposed California Consumer Privacy Act seeks to address data-sharing concerns by requiring companies to disclose the types of information they collect and allow consumers to opt-out of having their information sold; state disclosure records show that a group opposing the initiative has already received hefty funding from Amazon, Microsoft, Uber, Google, Comcast, Facebook, and Verizon.  

Privacy

Underrated Victory of the Week: After receiving heavy criticism from Oregon Senator Ron Wyden and the media, Verizon, AT&T, Sprint, and T-Mobile stated on Tuesday that they will stop sharing customer location data with location aggregators; in May, a report found that a Missouri sheriff used the location aggregation services to look up people’s real-time location without a warrant.

Is It a Bee? Is It a Fly? It’s a Drone! MIT researchers plan to unveil a computer chip as small as a LEGO minifigure’s footprint at a symposium this week that is smaller and more powerful than the version presented last year; this chip is capable of processing real-time camera images at up to 171 frames per second and may be used to power bee-sized drones in the near future, redefining the meaning of “being bugged.”   

Information Security and Cyberthreats

Working for ICE Can Be Nice, for the Wallet at Least: It was reported this week that several high-profile data and tech companies such as HP, Thomson Reuters, Microsoft, Motorola Solutions, and Palantir are discreetly making millions of dollars from supplying ICE with state-of-the-art technology, including facial recognition, predictive data analytics, and tactical communications technology; the contract between Thomson Reuters and ICE stipulates that the company will support ICE in its “mission to locate, arrest and remove criminal aliens that pose a threat to public safety.”

Sino-Canberra Relations Meet Summer Heat: Citing information and infrastructure concerns, Australia is likely to ban Chinese network equipment and smartphone giant Huawei from participating in its 5G mobile telecommunications roll-out; fearing a repetition of its current U.S. ban, Huawei has refuted these concerns in an open letter on Monday.

Intellectual Property

“Thou Hast Seen Nothing Yet”: Miguel de Cervantes, Don Quixote. After 25 years of setbacks, a heart attack, and an 18 month legal battle, Terry Gilliam has lost the rights to his passion project, The Man Who Killed Don Quixote, to ex-producer Paulo Branco, who allegedly bought the rights in 2016; the Paris Court of Appeal was not persuaded by Gilliam’s argument that Branco’s failure to fund the project voided the contract.

Say Bye to the Prequel Memes: The EU parliament’s legal affairs committee narrowly passed a highly controversial legislation that will require platforms such as Google and Microsoft to install filters that will block users from uploading copyrighted content–it is set to become law once approved by all EU countries; the opponents of the legislation fear that this measure would heavily curtail the internet users’ ability to share content such as news, memes, and even holiday photos, damaging the creativity of the internet.

Free Expression and Censorship

A New Robin Hood Story: Developer Sam Lavigne uploaded a database of 1,595 ICE employees that he gathered from LinkedIn to Github and published a Medium post asserting that people can “undermine entrenched power structures” by using the same tools that internet companies use to exploit them; both Github and Medium shut down the accounts of Lavigne as well as of the users who shared the ICE data, mimicking Twitter’s action this week of suspending users that shared the personal phone number of Stephen Miller.

Practice Note

Physical v. Virtual presence: Overturning its decision in Quill v. North Dakota, 504 U.S. 298 (1992), the Supreme Court ruled on Thursday that states can require online retailers to collect sales tax;  The 5-4 decision highlights how e-commerce has made the previous mail-order catalogues based ruling obsolete and the Government Accountability Office estimates that states missed out on over $13 billion in tax revenue last year.

On The Lighter Side

I Know It When I See It? China has classified sensory videos, a.k.a. ASMR videos, as pornography and began censoring them on the country’s biggest streaming sites such as Youku and Bilibili; China’s anti-pornography office claimed that the videos stimulate sexual sensations although a study found that the ASMR fans primarily use the videos for relaxation.  

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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

Mindy Nam
William Ioas
Editorial Fellows, Fordham CLIP

Internet Governance

The End of Cyberbullying? In a controversial move to criminalize cyberbullying, New York’s Senate Bill 2318 was unanimously passed by the Senate, making it a crime to “knowingly engag[e] in a repeated course of cyberbullying of a minor;” its vague and potentially broad language raises alarms – a similar law was struck down in 2014.

Expansive Drone Bill Draws Scrutiny: A proposed bill allowing DOJ and DHS officials to “intercept, acquire or access [drone] communications,” define any “threat” broadly, and bypass established procedures – such as the Wiretap Act, Electronic Communications Privacy Act, and the Computer Fraud and Abuse Act – is sparking criticism from many parties, including the Electronic Frontier Foundation.

Privacy

You Can Run But You Can’t Hide: Researchers at MIT have developed a technology that uses wifi signals to penetrate walls and capture detailed physical information of people on the other side such as movements, breathing, and even heartbeat; the primary aim of the project is to improve monitoring of the elderly and automate emergency alerts in cases of injury, but potential applications of this technology are limitless.

China’s Marauder’s Map: China plans to implement a new vehicle identification system that will empower the government to track drivers throughout the country using radio frequency identification (RFID) chips placed in cars; compliance will be mandatory for new vehicles starting in 2019, expanding the growing breadth of China’s surveillance system.

Information Security and Cyberthreats

Subaquatic Cyber Attack: In their latest bid to curtail U.S. naval supremacy in Southeast Asia, Chinese Ministry of State Security hackers stole 614 gigabytes of material from a Navy contractor, including: secret plans to develop supersonic anti-ship missiles, signals & sensor data, submarine radio room information, and an electronic warfare library; the incident adds one more success to a long line of Chinese hacking achievements – including snatched designs for the F-35 fighter, the Patriot PAC-3 missile system, the Navy’s Littoral Combat Ship, and the Army’s anti-ballistic missile system known as Terminal High Altitude Area Defense.

What Would Grandpa Do? In compliance with E.U. General Data Protection Regulation protocol, DNA testing and genealogy company MyHeritage revealed on Monday that its servers had been breached, compromising the emails and hashed passwords of over 92 million users; the company believes that the one-way hash of each user password it stores will not be of use to the culprit(s).

#SecurePhonesSaveLives: The forthcoming update to Apple’s iOS software will close the loophole, used extensively by law enforcement agencies, that permitted outsiders to access locked iPhones and obtain personal information; Apple’s CEO Tim Cook hails privacy as a “fundamental right,” which differentiates Apple from companies like Google and Facebook that show little qualms about extracting vast amounts of personal data from their users.  

Intellectual Property

Blackberry in a Jam: Moving to dismiss Blackberry’s patent infringement claims against them, Facebook and Snap have both asked the court to apply the two-step Alice test to throw out six of the plaintiff’s patents on the grounds that they are too vague or represent attempts to patent everyday operations performed by mobile devices.

Go Home, You’re Drunk: Uber has a pending application for a patent that would use AI to identify drunk passengers by analyzing uncharacteristic user activities such as user location, typos, and even the angle the smartphone is being held; the application states that the patent aims to “reduce undesired consequences” but Uber said this week that it has no immediate plans to implement this technology.

Free Expression and Censorship

Skinny and Slippery: Pro-eating disorder online communities that promote dangerous behaviors are evading oversight by bypassing the filter algorithms; the users’ ability to avoid automated detection by developing new hashtags and other conventions, in addition to recommendation algorithms that unwittingly suggest problematic contents to users, highlight the limits of automated content curation.  

My House, My Rules: This week, Vietnam passed a bill that requires tech companies to remove any offensive content within 24 hours of notice from the government authorities in addition to storing all user data domestically in order to do business in the country; protesters of the bill are concerned that the new law will stifle online dissent against the government since the law could also force tech companies to provide personal information of the dissenters to the government.

Practice Note

Johnson v. Twitter: California Superior Court ruled that Chuck Johnson, an infamous Twitter troll who was perma-banned from Twitter, failed to make a prima facie case against Twitter because Twitter is a private sector entity that may limit its service to users that abide by its TOS; the court found the analogy that Twitter is equivalent to an old town square unpersuasive.

On The Lighter Side

China Paves the Way for Smartphone Users: Literally. In an effort to increase pedestrian efficiency and protect “phubbers” – oblivious phone addicts – from themselves, the city of Xi’an has inaugurated a 100m walkway for their exclusive use.

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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

Mindy Nam
William Ioas
Editorial Fellows, Fordham CLIP

Internet Governance

SEC Appoints First-Ever Digital Currency Specialist: Monday saw SEC veteran Valerie A. Szczepanik named the commission’s first Senior Advisor for Digital Assets and Innovation; in her new role, Szczepanik will be responsible for coordinating all SEC efforts regarding the application of US securities laws to digital asset technologies as well as classifying and understanding technologies which don’t always fit into traditional frameworks.

Putting Theory into Practice: Following humanitarian concerns regarding the possible application of security technologies displayed last month at China International Big Data Expo, comes a study by the Economist shedding light on how China uses such tools to suppress dissent in its Xinjiang Province; featured prominently is the government’s Integrated Joint Operations Platform (IJOP), which uses machine-learning, cameras, smartphones, financial records, and electricity bills to generate lists of subjects for detention.

Working Remotely? Come to Vermont: The Green Mountain State continues to lead State-driven initiatives to promote population connectivity and boost its tax revenue; with a small and rapidly aging population, Vermont has signed into law $10,000  grants to cover relocation expenses, including work space, computer, and internet access, for the first 100 out-of-state employees to become full-time residents on or after January 1, 2019.

Privacy

Another Strike for Facebook: Facebook said it has been sharing user data with four Chinese device makers, including Huawei, a company that US intelligence agencies have described as a security threat, fueling further concern about Facebook’s privacy and information security policies; Facebook defended itself by saying that the partnerships were forged several years ago “when mobile phones were less powerful and app stores did not yet exist,” and stated that the partnership with Huawei will shut down this week.

Smile! You’re on Camera: DHS is launching a test of a facial recognition system that scans people entering and leaving the country through the US/Mexico border by capturing an image of the people inside the car; this test is part of a larger biometric data project currently going through a pilot program at eight U.S. airports and raised concerns in ACLU lawyers about the rise in the sophistication of surveillance technology used by the federal government.

Information Security and Cyberthreats

#ThatHappened: Gizmodo reported that new FCC emails obtained by advocacy group American Oversight casts further suspicion on the FCC’s claim that the outage of a comment system regarding net neutrality rules in 2017 was caused by a DDoS attack rather than heavy traffic generated by citizens attempting to comment; Separately, the New York State Attorney General’s Office is currently investigating fraud in the net neutrality comments process and has accused FCC Chairman Ajit Pai of withholding necessary information.

Credit card security, “priceless”: Last Friday witnessed an unprecedented hardware failure in Visa’s payment system across Europe, preventing many of today’s plastic-dependent consumers from purchasing goods and services; the company has since dispelled any hacking or data breach concerns and stated that its payment system is now operating at full capacity.

Intellectual Property

He Said What? Researchers at Stanford and other renowned technology institutes have submitted a paper to SIGGRAPH titled “Deep Video Portraits” that describes a refined method of generating highly convincing videos that reproduce the facial expressions and motions of a person by using the face of another; “Deepfakes,” videos that insert faces of celebrities into pornography and other videos have already been a topic of controversy this year–Jordan Peele raised awareness about this technology with a viral video in April.

Public’s Right of Access to Patent Briefs: This week, Electronic Frontier Foundation sent a letter to the Federal Circuit asking the court to allow public access to patent briefs pending review by the Clerk’s Office; the current practice of disabling public access until the briefs are accepted sometimes burdens those who submit amicus briefs because they are unable to read the brief and so prevent duplicating arguments.

Free Expression and Censorship

To Filter or To Not Filter: Youtube is being accused of discrimination because its automated filtering algorithm has been found to demonetize or remove videos with LGBT content in addition to failing to prevent anti-LGBT advertisements appearing before such videos; having recently faced similar criticisms about discrimination and abuse of discretion, Spotify and Valve officially announced this week that they are rolling back their policy of blocking undesirable content.

When Saying Less is More: In the signal-driven world which drives capital markets, a single Tweet may have grave consequences; whereas disagreement exists over the impact of President Trump’s preemptive post “Looking forward to seeing the unemployment numbers at 8:30 this morning,” multiple economists assert that the act violates custom and, perhaps, federal regulation – the reality is that many trading firms already track social media traffic in the hope of anticipating events.

Practice Note

Back to Contracts 101: Dismissal of TWiT LLC’s trademark lawsuit against Twitter Inc in the Northern District of California, alleging that the latter violated a “coexistence” agreement, serves as a sobering reminder that, where required elements of a contract are absent, there is no contract.

On The Lighter Side

Alternative Diplomacy: As the likelihood of a Trump-Kim summit in Singapore becomes an ever-greater reality, let us not forget the original North Korean relations trailblazer – Dennis Rodman; the retired basketball star, who has actively promoted digital currency PotCoin in the past, is reportedly seeking funding from the startup for his new peace mission.

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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

Mindy Nam
William Ioas
Editorial Fellows, Fordham CLIP

Internet Governance

Grace Period Ends — GDPR Enforcement Begins: The EU’s General Data Protection Regulation (GDPR) is in effect as of May 25, 2018, giving teeth to the union’s asserted fundamental right to data protection by expanding the scope of what companies must consider personal data, increasing EU residents’ personal control over their data, and extending liability to any company collecting, storing, or processing personal data; fines are steep (up to 4 percent of a company’s global revenue), and privacy advocate noyb.eu has already filed four complaints against Google, Facebook, Instagram, and WhatsApp.

You Can Have Your Lights On and Cryptos Too: Striking a balance between residences, businesses, and cryptocurrency miners, Quebec’s government will lift its moratorium on the sale of electricity to miners during off-peak grid hours – an approach lauded for its balancing of social and technological interests at a time when miners are relocating from increasingly crypto-skeptical China to energy rich Quebec.

Making a List Of The Listmakers: Vermont passed a first-of-its-kind law that requires data brokers to register with the State, make disclosures to consumers and meet a minimum security standard; until this law, data brokers have been operating unregulated for years, quietly selling personal information to a variety of industries from advertising to banking.

Privacy

Email Privacy Act: The House of Representatives approved a bill containing the Email Privacy Act which codifies the 6th Circuit decision in Warshak that provides warrant protections for emails, chats, and online traded messages that the government requests from service providers; however, the future of the bill is uncertain as the Senate Republicans have been resistant to the Email Privacy Act in the past.

Getting Good With Faces: In a purported effort to prevent school shootings, the Lockport school district in New York has joined the new trend of schools deploying face recognition technology many believe to be ineffective while creating the risk of surveillance on students which could hinder the students psychologically and may disparately impact students of color; in a similar vein, Orlando Police Department confirmed this week that three surveillance cameras in downtown Orlando are equipped with face recognition technology to ACLU’s vehement disapproval.

Information Security and Cyberthreats

“The Current Situation Is Untenable”: OMB has found that nearly three-quarters of federal agencies lack even basic cybersecurity capabilities such as detecting cyber-intrusions, which may be difficult to remedy due to the unstandardized array of IT systems currently used; two weeks prior to the release of the OMB report, the White House eliminated the top cyber policy role in an effort to “streamline authority.”

Can Zou Hear Mich? Developed by a group of Austrian scientists, sonic firewalls respond to acoustic cookies’ (a.k.a. ultrasound beacons) use of covert audio signals to track ads and communicate silently with other devices without the owner’s knowledge; sonic firewalls do so by playing their own inaudible sound over any others with an option for creating exceptions.

Intellectual Property

Yo Soy Boricua Pa’ Que Tú Lo Sepas: “I’m Puerto Rican just so you know.” When a 1996 hit refrain turns into a popular expression, the line between copyrightable subject matter and fair use may become obfuscated; this is the problem Joel Bosch faces in his suit against Sony Music for use of his lyrics as a title for its 2014 album compiling hits from multiple Puerto Rican artists.

Google v. Oracle: Google filed a petition for an en banc rehearing on the copyrightability of an API naming system after the Federal Circuit, in March, found that Google infringed on Oracle’s copyright by copying  the names, organization, and functionality of the Java APIs in the Android OS; Google is arguing that API naming systems are systems of operation and thus not entitled to copyright protection and that the use of API declaration in a new context is protected by the fair use doctrine.

Free Expression and Censorship

Can’t Block This: Rejecting the view that tweets are not state action because they simply utilize a functionality available to all Twitter users, the SDNY’s Judge Buchwald ruled on Summary Judgment that the President’s use of Twitter constitutes (1) an official use of a public forum, (2) subject to government control, (3) where blocking users, constitutes an impermissible violation of the First Amendment’s protection of political speech.

No Politics Please: Facebook blocked divisive ads from foreign sources relating to Ireland’s Abortion Referendum in order to showcase their ability to curtail foreign meddling in political affairs in the aftermath of the 2016 election (Google also blocked all referendum-related spots); Facebook has also rolled out a new policy in the US that imposes heightened authorization requirements on those seeking to promote political content but its tendency to flag false positives and the general vagueness on what constitutes a “political ad” have infuriated many advertisers.

Practice Note

Get Off My Domain! UDRP permits the transfer of a domain name from a cybersquatter to the complainant if the complainant can prove that the disputed domain infringes on their trademark and was registered in bad faith; the factors that influence the complainant’s chances of prevailing in a WIPO arbitration includes the uniqueness of their trademark, the scienter of the respondent and the content of the webpage under the domain.

On The Lighter Side

Not Your Kid’s Kinda Muppets: Alleging that upcoming puppet crime-comedy film The Happytime Murders’ marketing campaign causes brand confusion and tarnishes the name of Sesame Street, the company’s parent filed suit in the SDNY against STX Productions; the Court said on Wednesday that STX may continue to use the tagline “No Sesame. All Street,” the turf war goes on.

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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

Mindy Nam
William Ioas
Editorial Fellows, Fordham CLIP