Month: October 2018

Internet Governance

E-Scooter Companies Sued For Negligence: California residents filed a proposed class action lawsuit alleging that electric scooter companies are liable for personal injury and property damage caused by e-scooters; the plaintiffs’ lawyer argues that the companies’ user agreements, which preclude riders from bringing class action lawsuits and suing for negligence, are “draconian.”

White House Seeks Tech Support:  The Trump Administration met with tech companies to discuss ways to enable workers to take leaves to work on government projects, including modernizing state and federal agencies; the conversation took place amid worker protests against tech industry involvement with government initiatives in areas such as artificial-intelligence-powered drone attacks and facial recognition technology.

Privacy

Location, Location, Location: Facebook and Google users who opted out of location tracking filed separate proposed class-action lawsuits against the two companies, alleging that each deceptively collected and sold the users’ location information despite their opt-out; the allegations arise in the wake of a recent University of Oxford study placing Google and Facebook atop the list of third-party data trackers.

Apple Calls For Stronger Privacy: In his keynote speech at the 40th International Conference of Data Protection and Privacy Commissioners, Apple CEO Tim Cook criticized business models that unethically profit from privacy invasion, applauded international reforms such as the GDPR, and voiced support for a comprehensive federal U.S. privacy law that would prioritize data minimization, transparency, a right to access, and a right to security; the speech followed Apple’s recent policy adjustments designed to give consumers more control over their privacy.

Information Security and Cyberthreats

U.S. Charges Russian Troll: The Department of Justice formally charged a Russian woman who is a part of the Internet Research Agency — the same group that Special Counsel Robert Mueller indicted earlier this year for its involvement in the 2016 presidential election — for overseeing a social media effort to influence the upcoming U.S. midterm elections; the U.S. Cyber Command, the military wing tasked with overseeing offensive cyber operations, subsequently announced its plan to warn known Russian operatives spreading fake news that they are being watched.

Intellectual Property

Georgia Can’t Copyright Code Annotations: The Eleventh Circuit ruled that the State of Georgia cannot claim copyright ownership over its annotated code—the only official version of the state’s laws—and thus found against Georgia’s Code Revision Commission in its copyright infringement suit against an organization that purchased the code and made it publicly available online; the Court reasoned that while annotations do not carry the weight of the law, the legislature chose “to make them an integral part of the official codification of Georgia’s laws,” resulting in work that is “intrinsically public domain material, belonging to the People, and, as such, [ ] free for publication by all.”

Free Expression and Censorship

Crackdown On Brazil Spam Network: Facebook removed 68 pages and 43 accounts associated with Raposo Fernandes Associados, a marketing group supporting far-right presidential candidate Jair Bolsonaro, for violating the social network’s misrepresentation and spam policies by using fake or duplicative accounts and by posting clickbait intended to direct users to third-party websites; Facebook-owned WhatsApp also banned more than 100,000 accounts used by Bolsonaro’s supporters to send bulk messaging during the campaign.

China Drafts Blockchain Regulation: The Cyberspace Administration, China’s top-level internet censorship agency, published and is seeking public feedback on a draft policy for regulating blockchain-related service providers; blockchain technology has been used in the past to bypass China’s internet censorship, but the proposed rules would require blockchain service providers to enforce know-your-customer measures by collecting certain user information and sharing it with law enforcement as requested.

Practice Note

Foreign Trademark Filers May Need U.S. Lawyer: The Patent and Trademark Office (“PTO”) is working on a new rule that would require foreign trademark applicants to be represented by U.S. attorneys; the rule could take effect by July 2019, as the PTO plans to issue a proposal in November and seek comment until February 2019.

On The Lighter Side

Virtual Reality Makes Food Taste Better: A study by Cornell University food scientists found that cheese eaten in pleasant VR settings was perceived to taste better than the same cheese eaten in a bleak sensory booth.

---

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

Tom Norton 
Executive Director, Fordham CLIP

Tommine McCarthy 
Subrina Chowdhury 
Editorial Fellows, Fordham CLIP

Internet Governance

FCC Makes Case For Net Neutrality Repeal: The Federal Communications Commission filed a brief with the U.S. Court of Appeals for the D.C. Circuit to defend its recent repeal of the 2015 net neutrality rules, marking its first move to defend a challenge by 22 states, consumer advocates, and technology companies that contend the repeal was arbitrary and capricious; the brief argues that the agency acted within its discretion in rolling back the rules and presents evidence that the rules stifled investment in broadband networks.

SEC Warning:  The Securities and Exchange Commission issued an investigative report warning that public companies’ failure to consider cyber threats in their internal accounting controls may violate federal law; the report stems from the SEC’s investigation of nine companies victimized by “business email compromise” frauds, in which cyber criminals pose as company executives to deceive employees into sending company funds to bank accounts controlled by the hackers.

Privacy

TSA Unveils Biometrics Roadmap: The Transportation Security Administration published a roadmap for expanding the use of biometrics in airports across the country to strengthen security and improve the travel experience; while the roadmap only hints at addressing privacy issues in later studies, the Administration plans to begin working with U.S. Customs and Border Protection on biometric security for international travel, put biometric technology into use for TSA PreCheck  travelers, and eventually use biometric data for screening at airport security checkpoints.

Anthem Pays Record $16 Million Settlement: Anthem agreed to pay a record $16 million to the Department of Health and Human Services and Office for Civil Rights to settle potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules after a series of cyberattacks led to the largest health data breach in history and exposed the electronic health information — including names, birth dates, Social Security numbers, and medical IDs — of nearly 79 million people in 2015; Anthem also agreed to take corrective steps to comply with HIPAA, including assessing its electronic security risks, taking appropriate countermeasures, and maintaining surveillance.

Information Security and Cyberthreats

Penta-gone! 30,000 Personal Records Swiped: The Pentagon announced that a cyber breach at an unnamed contractor that maintains the Defense Department’s travel records compromised the personal information and credit card data of nearly 30,000 U.S. military and civilian staffers; the Department is unsure about when the initial breach occurred, and a Pentagon spokesperson stated that the Department will “continue to assess the risk of harm and will ensure notifications are made to impacted personnel whose PII may have been compromised.”

Intellectual Property

Facebook Demotes Inauthentic Content: Facebook is displaying articles that are stolen and republished with little or no modification less prominently; the new Publisher Guidelines will hopefully curtail copyright infringement by reducing the illicit websites’ referral traffic and ad revenue, and thus discourage content misappropriation.

Free Expression and Censorship

Google Confirms Censored Search Engine For China: CEO Sundar Pichai confirmed that Google will launch a search engine that automatically removes websites banned by the Chinese government from search results; in response to backlash from constituents such as Google employees and the U.S government, Pichai defended the project by arguing it could provide “information better than what’s available” to people in China presently.

Wikimedia Warns Of Stifled Criticism: TVEyes, a service that records television content and compiles it into a searchable database of 10-minute clips, filed a petition for Supreme Court review after the Second Circuit rejected TVEyes’s fair use argument and upheld Fox News’s copyright infringement claims; an amicus brief filed by the Wikimedia Foundation argues that the ruling permits copyright owners to “stifle criticism and undermines established fair use principles that are vital for media commentary.”

Practice Note

ABA Issues Opinion On Lawyers’ Obligation After Data Breach: The ABA issued a formal opinion that addresses a lawyer’s duty in the event of a data breach that destroys or discloses client confidences; the opinion only provides guidance for the breach of client data, not other data breaches that may also require action on the part of an attorney or firm.

On The Lighter Side

MIT Will Open College Of Computing: As pressure mounts on the U.S. to stay competitive in the global AI race, MIT is opening a college of computing that will focus on educating a new generation of artificial intelligence experts; the training will also bridge the talent gap in the AI hiring pipeline for human-powered industries such as customer service and trucking.

---

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

Tom Norton 
Executive Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP

Internet Governance

Google Won’t Bid on Pentagon Contract: Google will not submit a proposal for the Joint Enterprise Defense Infrastructure (“JEDI”), an estimated $10 billion contract designed to accelerate the Defense Department’s cloud computing capabilities, because JEDI does not align with the tech giant’s AI principles prohibiting the use of AI in weaponry; additionally, Google disagrees with the government’s decision to choose one vendor instead of adopting “a multi-cloud approach.”

Introducing the “Internet Bill of Rights”:  Democratic representative Ro Khanna of California has worked with think tanks, big tech companies, and government IT pros to devise ten consumer data privacy principles that he hopes will be passed into law; the list includes protecting net neutrality, ensuring consumer choice for ISPs, offering greater transparency on how data is collected, and notifying consumers in a timely manner when personal data has been hacked.

Privacy

UK Court Blocks Privacy Suit Against Google: The UK High Court dismissed an estimated £3 billion class action lawsuit against Google alleging that the tech giant harvested personal data from Safari users without their permission through tracking cookies; although the Court deemed Google’s behavior “wrongful, and a breach of duty,” it nevertheless found that the claimants “had not suffered damage” and did not share the “same interest,” as required by UK law.

Amazon Fires Employee for Selling Emails: Weeks after confirming that marketplace sellers bribed Amazon employees to delete negative reviews or share users’ proprietary information, the company fired an employee who sold customer email addresses to a third-party seller; with customer email addresses, marketplace sellers can gain a competitive edge by directly asking customers to change or remove negative reviews, which is a violation of Amazon’s policy.

Information Security and Cyberthreats

U.S. Telecom Discovers Manipulated Hardware: Following an earlier report that China infiltrated a Supermicro factory to install chips on motherboards used in Apple and Amazon servers, Bloomberg issued a second report claiming that an unnamed U.S. telecom discovered that hardware used in its datacenter had been “manipulated” by an implant designed to “conduct covert surveillance and exfiltrate corporate or government secrets.”

Google Plus Shuts Down After Breach: Google announced its plan to shut down Google Plus after discovering a bug that made available to third-party developers information from over 500,000 accounts, including users’ occupation, gender, and email address; Google defended its decision not to announce the discovery in March—the same month that the Facebook Cambridge Analytica scandal came to light—on the basis that there was no evidence of data misuse. 

Intellectual Property

Microsoft Adds 60,000 Patents to OIN: After joining the anti-patent-trolling group LOT Network last week, Microsoft announced it is also joining the Open Invention Network (“OIN”), an open-source patent group designed to protect Linux and other open-source software from patent-related suits; while 60,000 of Microsoft’s patents will be open-source and available to OIN members, Windows desktop and desktop application code will not be available.

Free Expression and Censorship

Wikipedia Bans Breitbart: Wikipedia editors voted to ban use of the far-right media outlet as a source of fact in articles “due to its unreliability;” Wikipedia editors similarly decided that the “use of InfoWars as a reference should be generally prohibited.

Practice Note

European Union IP Customs Plan: Concerned by the influx of counterfeit and pirated goods into Europe, the Council of Ministers endorsed a proposed new European Union Customs Action Plan to combat intellectual property rights infringement; the plan outlines “an exchange of best practices on the customs follow-up of internet trade” between the European Commission and EU member states and claims that blockchain could be used to effectuate that purpose.

On The Lighter Side

Sue Anyone at the Touch of a Button: The AI-powered “robot lawyer” chatbot DoNotPay has a new iOS app that could help you “sue anyone” simply by pressing a button.

---

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

Tom Norton 
Executive Director, Fordham CLIP

Subrina Chowdhury
Tommine McCarthy
Editorial Fellows, Fordham CLIP

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