CLIP-ings April 29, 2016

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.


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

CLIP-ings: April 22, 2016

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.


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

CLIP-ings: April 15, 2016

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.


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

CLIP-ings: April 8, 2016

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.”


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

CLIP-ings: April 1, 2016

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.


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

CLIP-ings: March 11, 2016

Internet Governance

Fantasy Fulfilled: Virginia is the first state to legalize the operation of daily fantasy sports sites through a series of regulations, which include annual audits, banning employees from using the sites, and paying a $50,000 fee.

Privacy

Employer Do Not Track: The Netherlands Data Protection Authority held that Dutch companies may not track their employees’ active movements and other sensitive health information acquired by a wearable fitness tracker, even with consent.

ISP Privacy Proposal: The FCC introduced a proposal which would prevent internet service providers from giving consumers’ information to a third party without express consent.

Information Security And Cyberthreats

High Tech On The High Seas: Pirates hacked into a shipping company’s server to identify and locate the ship’s cargo and minimize the amount of time the pirates spent sifting through the cargo for valuable items.

Intellectual Property

Creative Coding? A federal district court held that HTML and CSS formatting codes may be copyrightable, despite the Copyright Office Compendium’s assertion that those codes generally do not satisfy the requisite level of creativity for protection.

Free Expression And Censorship

School Sexting: A California state legislator introduced a bill that would allow public schools to expel students under 18 for “sexting” photos or videos “with the purpose or effect of humiliating or harassing” another student.

Practice Note

Patented Privilege: The Federal Circuit held that a limited privilege applies to communications between non-attorney patent agents and their clients, primarily because of a statute authorizing such agents to prosecute patents before the United States Patent and Trademark Office and a Supreme Court ruling that such prosecution constitutes the practice of law.

On The Lighter Side

Hackers, A Retrospective: Daniel Solove rounds up another batch of hacker stock photos, featuring liberal use of ski masks and questionable typing habits.


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

CLIP-ings: March 4, 2016

Internet Governance

Privacy Shield: Details of the proposed EU-U.S. “trans-Atlantic data transfer agreement” were released, and it recommends stricter regulations for companies and promised limits on America’s surveillance of Europeans’ online information.

Privacy

Unlocking Precedence: A New York federal magistrate judge denied the government’s motion requesting that the court force Apple to unlock an iPhone in connection with a criminal trial, holding that the governments’ interpretation of the All Writs Act was too broad.

Facebooked: A Brazilian Facebook executive was released from jail after refusing to turnover WhatsApp messages in connection with a pending criminal case.

Information Security And Cyberthreats

Phishing Snaps: Snapchat’s payroll department fell victim to a phishing attack when a scammer obtained employees’ information by impersonating the company’s CEO.

Intellectual Property

Country Confusion: The Federal Circuit reversed and remanded a Court of International Trade decision affirming a U.S. Customs’ finding that jeans manufactured in China under the “C’est Toi Jeans USA” unregistered mark did not meet the “country-of-origin labeling requirement,” holding that the meaning of “trademark” within the customs regulation is subject to the Lanham Act’s definition, not the agency’s interpretation.

Free Expression And Censorship

Emoji Crisis: A 12-year old girl in Virginia is being criminally charged with “threatening the school and computer harassment,” after posting certain messages comprised of words and emojis on Instagram.

Practice Note

Food Truck Speech Curbed: A New York federal judge dismissed a lawsuit alleging that New York State officials’ interpretation of what constitutes “government speech” violated food truck owners’ First Amendment rights by refusing to let them operate in front of a state building due to an ethnic slur contained in the name of the truck.

On The Lighter Side

Selfie Free, Way To Be? Mumbai, India has designated 16 spots throughout the city as no-selfie zones in order to limit the amount of selfie-related injuries.


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

CLIP-ings: February 26, 2016

Internet Governance

A New Strategy: The Department of Justice has reached out to social media companies and community organizations to support a “counter messaging” approach to attempt to curb the spread of online radicalization.

Privacy

DoD Outed: A court order related to the ongoing criminal investigation of a Silk Road 2.0 administrator confirmed that the Department of Defense paid the Software Engineering Institute of Carnegie Mellon University to share data related to Tor research and also stated that the administrator lacked a reasonable expectation of privacy in his IP address while using the browser.

Information Security And Cyberthreats

How Not To Lose: The Department of Homeland Security released guidelines to aid organizations in the execution of rights granted to them under the Cybersecurity Information Sharing Act, which allows companies to report and share information about cybersecurity threats with the government without breaching privacy obligations.

Das Backdoor: Police in Germany may now push spyware into suspects’ computers and mobile devices to monitor their communications with the “outside world” when lives or national security are at risk and after receiving a court order.

Intellectual Property

Trademark Grounded: The TTAB upheld the USPTO’s decision to deny the registration of a “BOOKING.com” trademark to the website of the same name on the grounds that the term is generic for travel reservation services.

Free Expression And Censorship

Express Yourself? A Pennsylvania federal judge ruled that the right to passively record police conduct is not protected by the First Amendment unless the recording is done for an “expressive” purpose such as to challenge or criticize police behavior.

Your Words Are Ours: After the Chinese government released regulations designed to increase control of foreign media content in the country, President Xi Jinping declared that the country’s news media exists primarily to serve the Communist Party’s objectives.

On The Lighter Side

“Selfie Pay:” MasterCard wants your Insta-skills to enhance online security.


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

CLIP-ings: February 19, 2016

Internet Governance

Pushing iOS Boundaries: A U.S. magistrate judge ordered Apple to help the FBI decrypt the iPhone of one of the San Bernardino shooters in order to allow it to access the phone’s data; Apple opposes the order as “an unprecedented step which threatens the security of [its] customers.”

Privacy

Their Eyes Are Watching You: Employers, insurers, and employee wellness firms are hiring health care analytics companies to track employees’ daily habits to predict possible health risks and conditions, prompting concerns over what sensitive information they might uncover.

Information Security And Cyberthreats

Holding Health Hostage: Ten days after hackers seized control of its computer systems, Hollywood Presbyterian Medical Center agreed to pay a ransom of 40 bitcoins worth $17,000 to restore its network access.

Intellectual Property

Copyright Confusion: Wikimedia voluntary removed The Diary of Anne Frank from its website upon finding that the work is protected by U.S. copyright, after mistakenly believing that the copyright had expired.

Free Expression And Censorship

Keyboard Equality? Indonesia’s Ministry of Communications and Information Technology has requested that LINE, an Internet messaging service, remove all emojis that portray signs of affection among same-sex couples on the basis that some consider the emojis offensive.

Practice Note

Quoter Beware: A New York judge upheld a lower court’s denial of a motion to dismiss a legal malpractice suit against an attorney who was quoted in The Wall Street Journal about his client’s pending employment dispute; the client alleges that the quote triggered a no-comment-clause in his employment contract and resulted in the loss of his severance pay.

On The Lighter Side

Flexing It: Was the iPhone 6 ahead of its time?


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

CLIP-ings: February 12, 2016

Internet Governance

Forgotten Euro-wide: Google will begin removing information under “Right to be Forgotten” requests from all its search engines accessible to searchers located in Europe.

Privacy

Post-Safe Harbor: The French CNIL ordered Facebook to stop tracking non-users’ Internet activity and cease some data transfers to the United States within three months.

Unified Approach? Congressman Ted Lieu has introduced a bill named the ENCRYPT Act of 2016, which would preempt states from enacting their own anti-encryption laws.

Information Security And Cyberthreats

A Bunch Of Hacks? A hacker group claims to have released the personal information of over 25,000 FBI and DHS employees­—including job titles, names, and contact information—after hacking a DOJ web portal using “fairly basic” techniques.

Intellectual Property

Birthday Reveal: After a California district court found Warner Music Group’s copyright of the “Happy Birthday” song invalid last year, Warner has reached a settlement agreement obligating it to pay $14 million dollars to claimants and to declare the song part of the public domain.

Free Expression And Censorship

Joined By Damages: Florida’s Fourth District Court of Appeal rejected a divorced couple’s First Amendment defense and upheld a $350,000 damage award against them for writing various defamatory reviews about their divorce attorney on Yelp and Avvo.

Practice Note

Exculpatory API: A Pennsylvania judge rejected a defense attorney’s request to inspect the source code of a computer program used to process DNA evidence so the attorney could challenge the validity of the evidence against his client on the grounds that the source code is a trade secret.

On The Lighter Side

Super Bowl Blur: Apple’s CEO Tim Cook probably won’t win the photography world championship.


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