CLIP-ings: June 17, 2016

Internet Governance

Net Neutrality Win: The D.C. Circuit in a 2-to-1 decision upheld FCC regulations declaring broadband internet a public utility and internet service providers common carriers, opening the way for stricter consumer protection measures and industry oversight, such as bans on selective blocking or slowing delivery of content to internet users.

Tech Enablement:  A man whose daughter died in November’s terrorist attacks in Paris is suing Facebook, Twitter and Google, claiming that the companies “knowingly” permitted ISIS to use their networks to raise money, spread propaganda, and recruit; the tech companies may not enjoy their usual immunity under the Communications Decency Act because the lawsuit targets the “enablement” of ISIS, rather than the explicit content.

New Measures for Cybersecurity Strategy: Senators from both sides of the aisle announced the establishment of the Senate Cybersecurity Caucus enabling lawmaker education on cyber and the study of “cyberspace’s effects on national security and the economy.”


Circuit Court Finds Credit Card Seizure Legal:  The Eighth Circuit recently found that where all of the information in a credit card’s magnetic strip is identical to the information visible on the front of the card, law enforcement’s swiping or scanning of a seized, counterfeit card does not constitute a physical search in violation of the Fourth Amendment because the defendant has no reasonable privacy interest in the card.

Apple Vows to Protect Privacy by Collecting Even More User Data:  Revealing new security and privacy features on its devices such as user fingerprint ID login on laptops, Apple maintained that it would ensure data security through differential privacy, a complex technique that adds statistical noise from aggregate user databases to hide individual contributions, thereby preventing individual identification from usage data.

Potential Privacy Reform: A widely supported bipartisan group of House members will propose amendments to the current House Defense Appropriations bill to heighten privacy and security measures, by cutting funding for warrantless agency backdoor searches and protecting encryption devices and standards from NSA and CIA interference; however passage will depend on whether the House Rules Committee maintains the current rule preventing debate on privacy and security amendments.

Information Security and Cyberthreats

Campaign Infiltration: Two sophisticated Russian hacking groups breached the Democratic National Committee’s network and have accessed data as far back as one year, looking for foreign policy, strategy, and campaign information; each group conducted its attack at different times and did not appear to be collaborating.

Intellectual Property

Flexible Test for Treble Damages in Patent Infringement: The Supreme Court unanimously ruled that the Seagate two-step test for awarding treble damages in patent infringement cases is “unduly rigid,” granting district court judges discretion to “award enhanced damages to egregious cases of misconduct beyond typical infringement.”

Free Expression and Censorship

Europe May ‘Delete Your Account’:  The EU’s new code of conduct targeting illegal online hate speech, and backed by Facebook, Twitter, YouTube and Microsoft, raises questions about Donald Trump’s controversial Twitter account in Europe, as the EU’s framework may prohibit much of his account’s content.

Practice Note

IT Admins Liable under the CFAA: A Texas jury found an IT administrator guilty of violating the CFAA for deleting files from his employer’s database before he left his job; his charge of “unauthorized damages” for “intentionally causing damage to a computer system” reveals the ease with which IT professionals may face criminal charges.

On the Lighter Side

No Papers Left Behind: Morocco will ban cafés from offering free newspapers, including those left behind by patrons, as part of a plan to protect the shrinking newspaper industry.

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

N. Cameron Russell
Executive Director, Fordham CLIP

Editorial Fellows, CLIP
Victoria J.A. Loeb
Vlad A. Herta