CLIP-ings: June 1, 2018

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 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.


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.

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