CLIP-ings

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.”

Privacy

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.

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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

Internet Governance

Ask Before You Give? Senator Ted Cruz has moved for the passage of a new bill that would require Congressional approval for IANA transition of control of domain names and IP numbers and would require the Obama administration to secure “sole ownership” of top-level domain names dot-gov and dot-mil.

App Sparks “Traffic War”: Google’s traffic navigation app Waze, that updates its map with real time driver information on optimal routes and blockages, has created an influx of traffic in some residential neighborhoods, leading inhabitants to post false accident and blockage information to detour this traffic from insider resident shortcuts; however, Waze has mechanisms to recognize and boot out ‘impostors’.

Internet Access Cut for Singapore Government Workers: In an attempt to improve government cybersecurity, Singapore is cutting all public workers’ internet access from office computers by May 2017; questions remain as to how workers will be able to collaborate without internet.

Privacy

Identifiable Ink:  The National Institution of Standards and Technology (NIST) and the FBI, studying the effectiveness of tattoo-recognition systems, used prisoner tattoo images to form a database that can identify and match visual aspects of tattoos; however, NIST has halted future plans to use third-party algorithms to further analyze the 100,000 tattoo images in response to concerns that the system may misidentify people, or lead to religious, political, social, or other types of profiling.

Data Protection Agreement: The U.S. and the E.U. have signed an agreement regarding the protection of personal information and data exchanged during law enforcement agency investigations; however this “umbrella” agreement requires U.S. Senate and European Parliament approval to become law.

Information Security and Cyberthreats

A Call for Fed Transparency: The House Science, Space and Technology Committee’s oversight panel, investigating the Federal Reserve’s protection of sensitive financial information, has requested that the Fed’s cybersecurity uniformity team deliver all cyber breach reports, local incident reports, and documents and communications relating to “higher impact cases” from January 2009 to now, in response to a Reuters report revealing over fifty U.S. central bank cyber breaches between 2011 and 2015.

Repeat Attacks: According to a recent study, many European organizations face repeat  attacks within months of the initial hack as outdated methods prevent identification of  network threats; minimal external agency breach alerts and high “dwell times” for  breaches in Europe, the Middle East and Africa means that local governments may not  adequately spot and notify businesses about a breach.

Celebrity Account Vulnerability? Mark Zuckerberg’s Twitter, Pinterest and LinkedIn accounts were temporarily compromised, possibly after hackers obtained his password from last month’s LinkedIn email and password dump from the 2012 hack; the incident is part of a series of recent celebrity account hacks, reflecting questionable security in high-profile account management.

Free Expression and Censorship

“Hate Speech” Manipulated: Days after tech companies such as Facebook and Google backed the E.U.’s appeal to start censoring online “hate speech,” reports emerged about Russia’s use of hate speech laws to imprison ordinary social media users expressing views in opposition to government policies.

Practice Note

Metadata Needs Privacy Too:  New research highlights the need for privacy laws to respond to the difficulty of differentiating between the actual content of private communications and the metadata records that derive from those communications and contain personal information.

On the Lighter Side

Not Now Siri, We’re in Public! Study reveals people are too embarrassed to talk to digital assistants in front of other people.

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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

Internet Governance

Toothless Open Access Initiative?  E.U. research ministers forming the Competitiveness Council pledged to achieve free and open access to scientific publications by 2020, seeking to eliminate or reduce the six to twelve month post-publication online exclusion period, and inviting member states to implement policies in accordance with their unique research and development structures; however, there is no legal enforcement mechanism at present. 

Under the Sea: Tech companies’ need for bandwidth has led them to invest in laying undersea cables, rather than relying on telecomm companies; Microsoft and Facebook announced plans to build a 160 terabits-per-second-capacity cable (the highest capacity cable ever built) stretching from the coast of Virginia to Bilbao, Spain.

Privacy

FBI Information Requests Made Public: Yahoo was able to publish three national security letters from the FBI requesting user information after the FBI lightened its nondisclosure provisions in compliance with changes to the USA Freedom Act; the tech company pledged to update its Transparency Reports to acknowledge the number of NSLs received and the accounts listed in those letters – a departure from the standard, discrete reporting of national security demands.

Biometric Law Likely Safe: The Illinois Biometric Information Privacy Act, one of the few U.S. laws restricting the collection and retention of facial images and a source of Facebook’s facial recognition technology litigation, was threatened by a proposed amendment that would have excluded digital photo “tagging” from the Illinois law’s scope; the amendment, proposed to a bill unrelated to biometrics, was blocked at the judicial committee hearing.

Anti-security Bill Dead: A bipartisan Senate bill, proposed after Apple’s noncompliance with the FBI’s request to hack the San Bernardino shooter’s iPhone, would have required tech companies to leave an “encryption backdoor” in their products to ensure compliance with government requests for the decryption of consumer data; but, security concerns and pro-encryption privacy efforts led to minimal support for the bill.

Information Security and Cyberthreats

Beneficial Overreaction: Over-hyped reports on allegedly significant data breaches that urge users to change their passwords, even though actual security threats remain minimal or unchanged, serve to increase user awareness of security risks and implementation of effortless and straightforward security protections.

Intellectual Property

The Verdict Is Out: A jury verdict finding that Google’s implementation of Java APIs in developing Android constituted fair use and saving Google $9 billion in damages brought relief to the software development community; however, since the APIs are protected by copyright, questions remain about whether other Java implementations infringe.

Free Expression and Censorship

Tech Giants’ Efforts Against Hate Speech:  Responding to the E.U.’s appeals for support, Facebook, Twitter, Google, YouTube and Microsoft will review notice and takedown requests and disable access to hateful content and will collaborate with civil society organizations to back “counter-narratives” to online hate speech.

Information War Defenses: Pro-Russian internet and social media campaigns are perceived as a developing risk to Europe’s security, democracy and domestic exchange of information; NATO and the E.U. have created “special units” to handle the threat; and E.U. member Finland, a vigorous participant in these “information wars,” has broadened its collaboration with NATO in consideration of full alliance.

On the Lighter Side

Facebook Crimebuster? UK police were able to find and convict a thief after one of his victims noticed the crook on the Facebook’s “People You May know” feature.

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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

Internet Governance

One Low Price:  In addition to proposals relating to online video streaming services and potential unfair practices in web platforms’ terms of use, the European Commission put forward a rule to prohibit “geoblocking” by internet retailers in Europe, a practice which allows online sellers to charge different prices for the same product in different E.U. Member States.

“.@FordhamCLIP” No More:  In an effort to simplify the social network and attract new users, Twitter has changed several peculiarities of tweeting, including new exemptions from the 140-character limit and altered default rules for recipient audiences.

Password Prohibition:  The freedom to use “Password123” as your password on Microsoft platforms is no longer permitted; in addition to character length and sophistication requirements, the company will also prevent users from choosing any password contained on a recurrently updated list derived from cyber leaks.

Privacy

Launch Pad For Mainstream:  Best practices for commercial, individual and journalistic uses of unmanned aircraft systems were promulgated by the National Telecommunications and Information Administration; companies should provide advance notices, drones should not be used for employment or health care coverage information gathering, and news media should utilize drones in accordance with laws and their own codes of ethics.

Information Security And Cyberthreats

Good As New?  A new GAO report describes the condition of United States government IT systems and equipment; noting that a Department of Defense nuclear system is using an IBM Series 1 computer and eight-inch floppy disks, lawmakers push for modernization and investment in upgrades.

Free Expression

Higher Learning:  To disseminate information to the North Korean people more effectively and precisely than previous methods to do so, including with air balloons and human smugglers, activists are now distributing SD cards and USB drives containing entertainment and informational content with helicopter drones.

Practice Note

DTSA Deployment:  Employers are required to include a notice that the new Defend Trade Secrets Act gives certain immunities to whistle blowers “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”

On The Lighter Side

Capitalized Or Not?  CLIP-ings will evolve with “The Times” on this grammatical issue often debated among our editorial staff.

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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

Internet Governance

Optimizing Self:  The European Commission reportedly may fine Google three billion Euros, nearly three times the Commission’s largest fine yet, for Google allegedly favoring its shopping services over the competition in its search results.

Privacy

Spies Disguised As Spies:  A Philadelphia Police Department SUV, armed with automatic license plate readers capable of collecting thousands of license plate images per minute, was masqueraded as a Google Maps vehicle.

Punt Return:  Opening the door for recognition of intangible non-economic privacy harms, the Supreme Court remanded Spokeo, Inc. v. Robins back to the Ninth Circuit to reconsider whether inaccuracies in Mr. Robins’ personal data profile were “concrete” injuries to merit statutory damages under the Fair Credit Reporting Act.

Information Security And Cyberthreats

For Sale:  A posting on the dark web offers user IDs, email addresses and SHA1 hashes – “unique, verifiable cryptographic representations” of users’ passwords – for over 167 million LinkedIn users; it is believed that the data derives from a 2012 hack previously purported to have only affected 6.5 million.

Build A Cyber Wall:  Director of National Intelligence James Clapper cautioned that the Presidential campaigns of Hillary Clinton, Bernie Sanders and Donald Trump may be special targets for foreign hackers.

Forty-hour Hack-week:  A “professional hacking group with a specific mandate,” linked to network infiltrations in South Korea and Saudi Arabia, is systematically targeting key government and private sector organizations in India; interestingly, the Indian hacks only take place during a Monday through Friday workweek.

Intellectual Property

Prepare For The Worst:  As technology improves and self-driving automobiles enter the mainstream, Google was granted a patent for a car hood with an adhesive coating that can protect pedestrians struck by autonomous vehicles from “secondary impact” injuries.

Free Expression

Examination Nation:  The Iraqi government shut down Internet access for everyone in all provinces under its control during three different three-hour time periods, when students were taking exams, in order to prevent web-enabled cheating.

On The Lighter Side

Virtual Office Hours:  “…I wanted to nominate Jill Watson as an outstanding TA in the [Computer Information and Office Systems] survey [course]!”

 

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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

Internet Governance

No Method, No Madness: The FBI will not share with Apple the method used by a third-party hacker to gain access to the San Bernardino shooter’s iPhone because the Bureau purchased the rights to neither the method employed nor details about any vulnerabilities exposed through its use.

Privacy

“Likely Guilty”––But Not Yet: A Maryland judge suppressed evidence obtained through a stingray operation on the ground that, though the police had legal authorization to use the stingray to locate the suspect in his apartment, the police’s subsequent warrantless search of the apartment was unconstitutional.

Email Privacy Act Reprise: After the House Judiciary Committee unanimously approved the Act earlier this month, the House of Representatives this week ratified the legislation, which would require law enforcement agencies to obtain a warrant to access email and other digital communications older than 180 days.

Information Security And Cyberthreats

“We Are Dropping Cyberbombs” The Cyber Command, the NSA’s military counterpart, will for the first time begin to employ “computer-network attacks” against ISIS to disrupt its presence, message, and operations.

Intellectual Property

Your Secret Is Safe With Us: Both chambers of Congress passed the Defend Trade Secrets Act, which would allow companies to bring federal civil suits and pursue damages for trade secret theft, and which would also pave the way for an enhanced dual state-federal trade secret law regime.

Free Expression

“How Do Ya Like Them Apples?”  Chinese authorities shut down Chinese consumers’ ability to purchase books and movies from Apple’s iTunes store without providing any reason for the ban.

Practice Note

A Lawsuit From A to Z: A federal district judge held Amazon liable for not having sufficient safeguards in place to prevent children from making purchases without their parents’ consent while using the company’s app; Amazon must refund the full price of any unauthorized purchases plus pay additional fines.

On The Lighter Side

Red Light, Green Light: Texting and walking just got safer in one city.

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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

Thomas B. Norton
Privacy Fellow, Fordham CLIP

Carey McConnell and Idalys Núñez
Editorial Fellows, Fordham CLIP

Internet Governance

Reaching Out-Of-District: A federal judge suppressed evidence federal investigators collected using a “network investigative technique” on the Tor browser in a child pornography case on the basis that the warrant authorizing the collection was invalid.

Droney Delivery: The Senate passed drone safety and security rules which could help realize more widespread commercial drone use; critics of the bill are concerned that it would prohibit states from enacting their own laws on drone usage and safety.

Privacy

Handing Over The Keys: Blackberry confirmed that it cooperates with reasonable law enforcement requests after allegations arose that it provided the Canadian federal police with a “global cryptographic key” that enabled monitoring of suspected Montreal gang members’ PIN-to-PIN communications.

Information Security And Cyberthreats

What’s Privilege Got To Do With It? Plaintiffs in a fraud suit against Ashley Madison seek to use information released in the hack, including communications between the company and its lawyers, to make their case; this leaves the judge to consider an “unresolved area of the law: whether litigants can use hacked data released to the public to fight their battles.”

Intellectual Property

The Final Chapter: The Supreme Court denied certiorari to a decade-long case on whether Google’s digitization of books qualifies as fair use, thus leaving intact the Second Circuit’s decision that Google Books excerpts are transformative.

Free Expression And Censorship

Too Soon, Dude: Venmo refused to disburse or refund a payment titled “ISIS   beer funds!!!” after determining that it did not comply with the Office of Foreign Assets Control’s regulations regarding economic and trade sanctions. 

Practice Note

Facebook Stalking Gone Too Far: The New Jersey Supreme Court allowed a misconduct case to go forward after the state’s Office of Attorney Ethics filed a complaint against defense attorneys who spied on a plaintiff’s Facebook page after the page went private by having a paralegal friend the plaintiff without disclosing the motive for the friend request.

On The Lighter Side

Mind [Whistle]blowing Music: Snowden, an EDM story.

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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

Thomas B. Norton
Privacy Fellow, Fordham CLIP

Carey McConnell and Idalys Núñez
Editorial Fellows, Fordham CLIP

Internet Governance

Privacy Shield Impasse: The European Commission’s Article 29 Working Party refused to endorse the EU-U.S. Privacy Shield on the basis that the scheme lacks clarity, does not properly limit how American agencies conduct the collection of personal information for national security purposes, and that the prescribed ombudsperson lacks sufficient independence and power to conduct its duty.

Privacy

ECPA Reform? The Email Privacy Act, which would require law enforcement agencies to obtain a warrant in order to access email and other digital communication older than 180 days, was unanimously approved by the House Judiciary Committee and will soon go up for a full House vote.

Sharing About Ride Sharing: Uber released its first ever transparency report, which details the requests and court orders the company has received from the government and describes the extent of Uber’s compliance.

Information Security And Cyberthreats

Apple-FBI Battle Continues: Recently unsealed court documents reveal that a Boston federal magistrate judge granted the FBI’s order to compel Apple to provide “reasonable technical assistance” in decrypting an iPhone related to a Boston gang case.

Congress Enters The Fight: A draft encryption bill proposed by two senators would require companies to comply with court orders to decrypt device data in criminal cases involving serious injury, drugs, or child victims, and in national security cases; critics of the bill argue that it may have serious security and privacy implications for manufacturers and users.

Intellectual Property

Link Swapping Not Illegal: The Advocate General for the Court of Justice of the European Union opined in a Dutch case that a blog link to a collection of unauthorized Playboy photos did not give rise to a copyright infringement claim because while the link facilitated the discovery of the copyrighted works, linking is not equivalent to making the works available to the general public.

Practice Note

Diminished Expectation of Privacy: The Sixth Circuit held that the FBI’s warrantless collection of cell-site data was not an unlawful search on the grounds that the agency obtained the information through third-party business records.

On The Lighter Side

Rorschach-ing Emojis: It turns out we’re not all on the same page when it comes to interpretation.

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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

Thomas B. Norton
Privacy Fellow, Fordham CLIP

Carey McConnell and Idalys Núñez
Editorial Fellows, Fordham CLIP

Internet Governance

FCC Privacy Rules: Newly proposed rules would allow consumers to opt-out of letting their Internet service providers use their data to specifically target ads from the ISPs themselves, and opt-in should consumers desire ads directly from third-parties; ISPs argue that the proposed rules would threaten their advertising revenues and overall business models.

Mum’s The Word: The White House declined to give public support to a soon-to-be-proposed federal bill that would afford federal judges “broad authority” to compel tech companies to help the government decrypt encrypted devices.

Privacy

Replacement Data Plan: The Council of the EU will soon formally endorse a new data protection plan, which will then be passed on to the European Parliament for approval.

Information Security And Cyberthreats

WhatsApp Doubles Down: The messaging service adopted full end-to-end encryption to further protect its users’ messages from unauthorized access; given the services’ international footprint, the move further pitts the tech company against federal authorities in the ongoing debate about encryption backdoors.

Intellectual Property

Taker Or Maker? Under draft Chinese antitrust policy guidelines focused on improving core technological infrastructure, some foreign companies could be forced to license their IP to Chinese competitors.

Free Expression And Censorship

Freedom Of The Press? A Canadian court has ordered a Vice News journalist to relinquish to the Royal Canadian Mounted Police all of his online communications related to an interview he conducted with an alleged Canadian-born ISIS member; critics fear that the ruling will have a chilling effect on investigative journalism.

Practice Note

Sharing Confidence: The Missouri Supreme Court suspended a lawyer for failing to disclose to opposing counsel that information the lawyer used in a divorce proceeding was obtained through his client’s unauthorized access of an email account belonging to opposing counsel’s client.

On The Lighter Side

Coffee Sounds: Hipsters love “white noise.”

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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

Thomas B. Norton
Privacy Fellow, Fordham CLIP

Carey McConnell and Idalys Núñez
Editorial Fellows, Fordham CLIP

Internet Governance

No Bite Of The Apple: The Department of Justice withdrew its legal action against Apple, which sought to compel the tech company to provide means to access the San Bernardino shooter’s iPhone, after it independently found a way to unlock the phone.

Privacy

Non, Merci: The French data privacy regulator fined Google €100,000 for violating the European Union’s “right to be forgotten” rule by not removing requested links from search results on a worldwide basis, thus rejecting Google’s efforts to balance the EU rule with free speech principles by only delisting links to users with a French IP address.

Get A Warrant: A Maryland appellate court upheld a lower court ruling that police use of stingrays requires a warrant based upon disclosure to the court of the “particularity” of the stingray’s functions and the “manner of the search,” because “cell phone users have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices” by police.

Information Security And Cyberthreats

Exposing Inadequacy: CNBC published a story to help readers judge their passwords’ adequacy but inadvertently made the inputted passwords available to other users on the same network and to advertisers.

Intellectual Property

Image Control: Retired world-famous soccer player Pelé brought suit against Samsung for $30 million dollars in a Chicago federal court, alleging Samsung impermissibly used his likeness to advertise one of its products after his endorsement negotiations with the company failed.

Court Spikes Publicity Claims: An Ohio federal court dismissed Amazon, Barnes & Noble, and Smashwords as defendants in a lawsuit alleging that a couple’s publicity and privacy rights were violated when an author used their engagement photograph on the cover of his self-published book “A Gronking to Remember.”

Practice Note

Disclosure Duties: A California federal district court judge gave counsel in the Google v. Oracle case the choice of agreeing to a ban on internet research of potential jurors or disclosing the method and extent of their internet research.

On The Lighter Side

Wrong Demo Turn: Google Maps wrong directions may lead to your house being demolished.

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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

Thomas B. Norton
Privacy Fellow, Fordham CLIP

Victoria Geronimo
Dean’s Fellow, Fordham CLIP

Carey McConnell and Idalys Núñez
Editorial Fellows, Fordham CLIP