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Issue 60 June 2002 BYTES IN BRIEF® by Editors: Sharon D. Nelson, Esq. and John W. Simek Associate Editor: Amelia C. Hierholzer Editor Emeritus: G.V. Nelson 9500+ subscribers worldwide © 2001 Sensei Enterprises, Inc./Nelson & Wolfe. All rights reserved. This newsletter may not be reproduced or redistributed in any manner except with consent of the copyright owner. Distributed by Silver Law Inc. under license. FEDERAL COURTS PUT CRIMINAL RECORDS ONLINE The Administrative Office of the U.S. Courts announced on May 7th that it has selected eleven federal courts to pilot putting criminal case files online. The pilot will include the 8th Circuit Court of Appeals and the district courts for the Southern District of California, the District of Columbia, the Northern District of Illinois, the Southern District of Florida, the Idaho District, the Southern District of Georgia, the Northern District of Oklahoma, the Southern District of West Virginia, the District of Utah and the District of Massachusetts. The AO announced that the records are or will be available shortly from the Public Access to Court Electronic Records (PACER) system, at a charge of seven cents per page. The Judicial Conference voted to approve the pilot two months ago. The concern about balancing the right of access and privacy rights remains and the issues will be re-examined at the September 2003 meeting of the Judicial Conference. Further information may be found at http://www.uscourts.gov/Press_Releases/pilotcts.pdf NINTH CIRCUIT RULES NUREMBERG FILES SITE ILLEGAL On May 16th, in a 6-5 decision, the Ninth Circuit ruled that the anti-abortion Nuremberg Files web site constituted illegal threats to abortion doctors and not free speech. The site contained Western style "wanted" posters of abortion doctors and had been challenged by the doctors as violating a 1994 federal law, the Freedom of Access to Clinics Entrances Act (FACE) which makes it illegal to incite violence and threaten abortion doctors. However, the Court sent the $108 million awarded to the four abortion doctors in punitive damages back to the lower court for reconsideration. It is expected that the decision will be appealed to the Supreme Court. The opinion in Planned Parenthood of the Columbia/Williamette, Inc. et al v. American Coalition of Life Activists et al may be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ A3AC4A8F164DA30288256BBA0080B31D/$file/9935320.pdf?openelement LIMITED SUPREME COURT RULING ON COPA On May 13th, the U.S. Supreme Court issued its ruling with respect to the constitutionality of the Child Online Protection Act (COPA), which prohibits the online distribution of material deemed "harmful to minors." The Court designated its decision as quite limited, and held that COPA’s reliance on community standards to identify material "harmful to minors" did not, in and of itself, render the law impermissibly broad under the First Amendment. The court did not, however, lift the existing injunction against COPA’s enforcement and remanded the case to the appellate court for further proceedings. The opinion in Ashcroft v. American Civil Liberties Union et al may be found at http://www.supremecourtus.gov/opinions/01pdf/00-1293.pdf OPERATION WEB SWEEP: FIGHTING CHILD PORN Federal and state law enforcement authorities announced on May 8th that they were targeting as many as 200 suspects in what they said is the first undercover sting operation in the U.S. to tackle child porn. According to New Jersey Attorney General David Samson, authorities in 29 states and at least 15 nations were preparing to serve search warrants on suspects’ computers after the authorities took over a child porn web site and used it as a base for an undercover operation. The site was cleaned of all illegal images and users were advised that the image collection was being rebuilt, but that they could upload or transmit photos to the site. Further information may be found at http://www.state.nj.us/lps/dcj/releases/2002/child_pornography_0508.htm PORN SITES NERVOUS AFTER COURT RULING On May 10th, Adult Check, which calls itself the world’s largest "adult verification system" (AVS), dropped its support of more than three thousand nude celebrity web sites in compliance with an order by U.S. Federal Court Judge Lourdes Baird. Other AVS companies are expected to follow suit. Adult Check claims that it restricts children’s access to porn sites by making users prove they are adults through the use of credit cards. For $19.95, Adult Check users get a password that lasts three months and allows them access to protected sites, with those webmasters getting a piece of the proceeds. The magazine Perfect 10 filed the lawsuit, which claims that its photos are all of implant-free "natural women." Perfect 10 alleged in its suit that Adult Check affiliates posted its copyrighted photos on their web sites. Generally, courts have ruled that web sites are not liable for merely linking to sites that violate the law. However, Judge Baird suggested that Adult Check might indeed be liable because it may have a partnership with the sites it protects. The judge also suggested that there might be a case against Adult Check for linking to web sites that do not display what they promise to display, e.g. nude pictures of a particular celebrity. Britney Spears has reportedly filed papers in the case supporting the claim that Adult Check links to non-existent photos. Further information may be found at http://www.wired.com/news/business/0,1367,52429,00.html DMCA CASE AGAINST ELCOMSOFT GOES FORWARD On May 8th, U.S. District Judge Ronald Whyte denied a motion to dismiss the copyright infringement case against the Russian technology company ElcomSoft. This clears the way for criminal prosecution under the Digital Millennium Copyright Act. The court found that the DMCA bans all instrumentalities that circumvent copyright protections whether they are used to infringe copyrights or to exercise fair use. Whyte also ruled that the DMCA is not unconstitutionally vague under the Fifth Amendment and is not too restrictive under the First Amendment, finding that the law is content neutral and therefore not subject to strict scrutiny. He found that the DMCA passed intermediate scrutiny because it "does not burden substantially more speech than is necessary to achieve the government's asserted goals of promoting electronic commerce, protecting copyrights, and preventing electronic piracy." ElcomSoft and programmer Dmitry Sklyarov were indicted in August 2001 for marketing software that removes protections built into Adobe's eBook Reader, allowing readers to copy, print and electronically distribute electronic books. Prosecutors dismissed Sklyarov when he agreed to testify in the case. Further information about the case may be found at http://www.adobe.com/aboutadobe/pressroom/pressreleases/ 200108/elcomsoftqa.html VERISIGN WILL AUCTION ".BZ" NAMES ON EBAY Just when you thought you’d heard it all. Having experienced layoffs and missed sales targets, VeriSign is turning to online auctioneer eBay to sell domain names. On May 8th, VeriSign announced that it will begin auctioning off ".bz" domain names on eBay, with other domain names expected to follow. The auctions will be targeted at businesses, which may be confused because ".bz" is the top-level domain for the Central American nation of Belize and is distinct from the ".biz" domain, which will soon be entering the domain name market, but under another registrar’s administration. Under its agreement with eBay, VeriSign will also provide assistance in verifying the identification of eBay sellers to cut back on fraud. VeriSign’s press release regarding the arrangement may be found at http://corporate.verisign.com/news/2002/pr_20020508.html ICANN APPROVES .PRO CONTRACT On May 8th, RegistryPro Ltd. announced that the Internet Corporation for Assigned Names and Numbers (ICANN) had approved its contract to register domains with the .pro suffix. The U.S. Department of Commerce must also agree to the contract, and is expected to do so. RegistryPro will sell .pro addresses only to Internet users who can prove that they are certified physicians, lawyers or accountants. Verification will be partially automated, but RegistryPro’s employees will also check certification status. One year registrations are expected to retail for $250-$300, about 10 times the cost of a one-year .com registration. The domain is expected to debut late in 2002 or early in 2003. Further information may be found at http://www.registrypro.com/newsreleases/20020508.htm COURT ORDERS HALT TO VERISIGN ADS In a preliminary hearing on May 14th, U.S. District Court Judge Frederic N. Smalkin ordered VeriSign to halt a direct-mail campaign, finding that it was likely that the company had engaged in deceptive conduct. Domain name seller BulkRegister had sued VeriSign in Baltimore on May 13th, alleging that VeriSign had sent its customers renewal notices which were deceptive and likely to cause domain holders to unknowingly transfer their accounts to VeriSign. In March, VeriSign began mailing out domain expiration notices implying that owners could lose control of their names if they did not return the form and $29.00 by May 15th. According to the fine print on the back of the form, those who responded were authorizing VeriSign to assume control of the account from the existing domain name seller. BulkRegister is seeking consumer refunds, corrective advertising from VeriSign and punitive damages. MOUSETRAPPER FINED $1.9 MILLION On May 24th, the Federal Trade Commission announced that the U.S. District Court for the Eastern District of Pennsylvania had ordered John Zuccarini to pay $1.9 million to victims of his mousetrapping rampage and further ordered that he halt his illegal conduct. Zuccarini set up more than 5,500 web sites containing misspellings of popular names – when users innocently misspelled a name, they went to one of Zuccarini’s sites where they were met with a hail of pop-up ads for pornography and gambling, which would return to the screen even when closed. "Mousetrapping" code prevented surfers from closing their browsers or going back to the preceding page. The FTC said Zuccarini made $800,000 to $1 million per year by charging the advertisers whose ads popped up. Zuccarini reportedly has lost 53 state and federal suits and some 200 domain names were removed from his control and transferred to the legitimate copyright holders. No one seems to know Zuccarini’s whereabouts. He never appeared in court. The court order permanently bars Zuccarini from redirecting or obstructing consumers on the Internet in connection with the advertising, promoting, offering for sale, selling, or providing any goods or services on the Internet, the World Wide Web or any Web page or Web site. He is also prohibited from launching the Web sites of others without their permission. Consumers who were victims of this cyber scheme are urged to contact the FTC at 202-326-2560 or toll-free at its Consumer Response Center (CRC) at 1-877-FTC-HELP and reference the FTC's case name, "Cupcake Party." Further information may be found at http://www.ftc.gov/opa/2002/05/cupcake.htm KLEZ SNAGS #1 VIRUS RANKING By May 24th, more than half a dozen leading anti-virus firms had moved the SirCam virus down to the #2 slot, and declared Klez the most pervasive virus in cyberhistory. Klez infected hundreds of thousands of computers after it first appeared in April and it shows no sign of slowing down. Though Klez is not considered a particularly brilliant virus in its composition, it entices many users to open its infected attachments. Particularly troublesome has been its use of the antiviral settings, which are set to automatically reply to an incoming virus-infected message with a warning to the sender that a virus was detected. Because Klez spoofs senders’ addresses by extracting a random e-mail address from the infected computer’s address book, it deluges people who did not send the virus and do not have infected machines with notification of the infected message. As always in the antiviral industry, warnings about the virus have equaled the chaos caused by the virus itself. Klez’ number one ranking and a link to information about Klez may be found at http://www.symantec.com/avcenter/ MICROSOFT TAKES ANOTHER BLOW FROM LINDOWS On May 14th, Judge John C. Coughenour, of the U.S. District Court for the Western District of Washington, denied Microsoft’s request for reconsideration of a ruling in which he had determined that the word "windows" might be generic and Microsoft’s trademark somewhat tenuous. He had also ruled that Microsoft had not given enough evidence to prove that it would be harmed by the use of the Lindows name. The ruling will allow Lindows to continue to use its name pending the outcome of the trial, set to begin in April 2003. The judge’s order and other case documents may be found at http://www.net2.com/lindows/ WINDOWS XP SERVICE PACK BOWS TO ANTITRUST Microsoft plans to begin testing Service Pack 1 for Windows XP over the next few weeks, and will begin shipping it to PC manufacturers this summer. For licensed users, it will be available as a free download from the Microsoft web site. The service pack will contain the usual bug fixes and patches, but other changes are meant to comply with Microsoft’s settlement with the Department of Justice in its antitrust suit, even though the court has not yet approved the settlement. A new control will permit computer makers or end users to replace Microsoft software with that of competitors, including e-mail packages, web browsers, media players, and instant messaging tools. The update is also configured to identify pirated copies of Windows XP, which use a stolen unlocking combination – the update will not load on machines with the illegal version of Windows XP. Further information may be found at http://news.com.com/2100-1001-922066.html?tag=dd.ne.dht.nl-sty.0 BUSH INCREASES BUDGET $1.7 BILLION FOR CYBERSECURITY With mounting concern that terrorists may plan to resort to cyberwarfare, President Bush has included a $1.7 billion increase in cyber security spending in his proposed budget. This represents a 68% increase over the previous year’s budget and brings the total allocated for computer security to $4.2 billion. A Congressional study in the fall of 2001 gave 17 of 24 federal agencies a grade of "F" in security preparedness. Further information may be found at http://www.siliconvalley.com/mld/siliconvalley/news/3324403.htm?template=content Modules/printstory.jsp DRINKORDIE LEADER DRAWS 46 MONTHS IN PRISON On May 17th, John Sankus Jr., a leader of the software pirate ring DrinkOrDie, was sentenced to 46 months in prison, the longest such sentence imposed thus far. The sentence was imposed by U.S. District Judge Leonie Brinkema of the Eastern District of Virginia and represented the minimum under the federal sentencing guidelines. Though Sankus could have been fined $100,000, the judge waived the fine, saying that Sankus could not afford to pay it. Sankus pled guilty in February to conspiring to commit copyright infringement. Authorities say that DrinkOrDie cost the software industry up to $5 billion in lost sales each year. 2600 LOSES DVD CASE RECONSIDERATION BID The 2nd Circuit Court of Appeals has refused the request of hacker magazine 2600 to reconsider its ruling banning 2600 from posting code, known as DeCSS, that is used to crack DVD copy protection. Major movie studios filed the suit two years ago, alleging that posting the code constituted contributory copyright infringement and violated the Digital Millennium Copyright Act (DMCA), which prohibits the sale or distribution of software used to crack copyright protection measures. The original ruling in Universal City Studios, Inc. et al v. Eric Corley and 2600 Enterprises, Inc. may be found at http://news.com.com/html/ne/Special/Legal/brief.pdf COURT REJECTS COPYRIGHT PROTECTION FOR FAQS On May 2nd, the U.S. District Court for the Western District of Wisconsin ruled that the FAQs at issue in the case were not infringed by a competitor’s strikingly similar FAQs. The suit was filed by Mist-On Systems against Gilley’s European Tan Spa, alleging copyright infringement because Gilley’s FAQ web page mirrored Mist-On’s FAQ web page. The suit sought monetary and injunctive relief. Judge Barbara B. Crabb held that "a business cannot copyright a Frequently Asked Questions page" or the words or phrases that comprise such a page because "the format of a Frequently Asked Questions page is a common idea in our society." Although Mist-On agreed that it could not copyright the concept of a FAQ page, it argued that the pages were so similar that its copyright had been infringed, but the court found sufficient differences in sequence, wording, number of questions, and layout that it rejected that argument, and granted the defendant’s motion for summary judgment. Further information be found at http://www.usatoday.com/life/cyber/ccarch/2002/05/23/sinrod.htm MINNESOTA LAW LETS CONSUMERS BLOCK ISP DISCLOSURES On May 15th, Minnesota Governor Jesse Ventura signed into law a bill described by its authors as the most comprehensive state Internet privacy law currently in existence. The law, which will take effect in March of 2003, allows Internet users to determine whether their Internet Service Providers may disclose their personal information. The law requires an ISP to tell users when they plan to disclose such information as which web sites users have visited, their e-mail, home address, phone numbers, etc. They would also have to identify the purposes for which the information would be used. In their contracts, the ISPs would have to conspicuously tell customers if they need to take action to prevent information disclosure once notified or whether the service provider needs permission to disclose. A second portion of the bill requires businesses sending out unsolicited advertisements via e-mail to include the letters "ADV" in the subject line, making the messages easier to filter. A copy of the bill may be found at http://www.revisor.leg.state.mn.us/cgi-bin/getbill.pl?session=ls82&version=l atest&number=SF2908&session_number=0&session_year= HOUSE PASSES KID FRIENDLY INTERNET BILL On May 21st, the House of Representatives passed a bill that would create an Internet kid-friendly area, free of violence, pornography and adult materials, within the .us domain. The area, intended for children 12 and younger, would require webmasters to certify that their sites do not contain sexually explicit material, hate speech, violence or other content considered unsuitable for minors. Sites would not be allowed to link to sites outside the domain and could not set up chat rooms, instant messaging or other interactive services unless they could certify that they did not expose children to pedophiles or other risks. The .kids subdomain would be under the control of NeuStar, the telecommunications firm that has the contract administering the .us domain. NeuStar would regulate content on the subdomain and would report to the Commerce Department’s National Telecommunications and Information Administration. A similar bill is expected to be introduced in the Senate. The text of the bill may be found by entering the bill number (H.R. 3833) at http://thomas.loc.gov/ SUPREME COURT WILL REVIEW ONLINE SEX OFFENDER REGISTRIES On May 20th, the Supreme Court announced that it would hear a constitutional challenge to a Connecticut law that requires convicted sex offenders’ names, addresses and photographs to be posted online. Connecticut is seeking to reverse a lower court ruling which held that the registry violates the sex offenders’ rights to due process because the state posts the information online without holding a hearing to determine whether they pose a danger to the community. The trial court’s ruling, which resulted in pulling the registry off the Internet, was upheld by the 2nd Circuit Court of Appeals. The 2nd Circuit wrote that the law "fails to accommodate the constitutional rights of persons . . . who are branded as likely to be currently dangerous offenders irrespective of whether or not they are." The 2nd Circuit’s opinion in Doe v. Public Safety may be found at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/ci rcs/2nd/017561v2.html MELISSA AUTHOR SENTENCED TO PRISON David L. Smith, the creator of the Melissa virus, was sentenced to 20 months in prison by a federal court on May 1st and received an identical sentence from a New Jersey state court on May 3rd. He was also fined $2,500 by the state court on a single count of computer theft. The sentences will run concurrently. The federal sentence was on a charge of intentionally spreading a computer virus. Smith might have received up to five years on the federal charge, but U.S. prosecutors recommended a lighter sentence noting his extensive assistance in the three years since he was arrested. When Melissa spread in 1999, it was then the worst virus the world had seen and damages were estimated to exceed $80 million. Further information may be found at http://www.cbsnews.com/stories/2002/05/01/tech/main507751.shtml NEW YORK SUES SPAMMER MONSTERHUT New York Attorney General Eliot Spitzer announced that New York sued bulk e-mailer MonsterHut, Inc. on May 27th for sending more than 500 million unsolicited commercial e-mail messages. According to the suit, MonsterHut falsely claimed that consumers had asked for the e-mail. The e-mail promoted "natural marriage enhancers" and "BeSlimmer" weight-loss products or carried messages for such clients as Overstock.com, ProFlowers.com and Beaverhome.com. The state is seeking a court order to prevent MonsterHut from falsely representing the source of their e-mails, to force the site to disclose how it got consumer e-mail addresses and to require payment of fines and court costs. Further information may be found at http://www.oag.state.ny.us/press/2002/may/may28a_02.html FBI PRESSURES ISPS TO REMOVE PEARL VIDEO On May 23rd, according to Internet Service Provider Pro Hosters, FBI agents told the company to remove the four-minute video of reporter Daniel Pearl’s execution, which had been posted on ogrish.com by a customer. The FBI suggested that the video violated federal obscenity laws. Though the ISP did remove the video, it was reposted on the 28th. The video has sprung up on a number of sites and shows the brutal murder of Pearl by Muslin extremists in Pakistan. Ted Hickman, the ISP’s owner, said that the FBI requested the identity of the owner of ogrish.com, which Hickman declined to give without a subpoena. Hickman said he allowed the video to be reposted after realizing that the FBI’s pressure was unsubstantiated by the law and after receiving legal assistance from the American Civil Liberties Union. Kent Willis, Executive Director of the ACLU’s Virginia affiliate, indicated that he had spoken to the FBI and that it does not intend to take any legal action and that it does not intend to put further pressure on websites to remove the video. Further information may be found at http://www.wired.com/news/print/0,1294,52818,00.html MICROSOFT HEARINGS END The month began with MIT professor Stuart Madnick testifying for Microsoft and alleging that a stripped down version of Windows was not technically feasible and would make Windows crumble "like a house of cards." However, he seemed to retreat from that testimony under cross-examination, saying that it was possible to remove Internet Explorer from the operating system, but maintaining that the many interdependencies among Windows components could cause problems and would make the operating system much more bloated. On May 2nd, e-mails introduced in court showed that Microsoft added Windows Media Player to its Windows operating system in an attempt to combat the threat it perceived from Real Networks, Inc. In 1999, Real’s software was seen as dominating the video/audio playback market. Once Microsoft began including its software as part of the OS, Real’s marketing share declined as it was compelled to negotiate with manufacturers to include its software or to rely on users to download it. Microsoft’s witness, Will Poole, Vice President for Digital Media, said the intent was to compete with Real and to take fuller advantage in its Media Player of OS features. He said that removal of the Media Player would cause a number of applications to failed, including Real Networks’ software. On May 6th, Microsoft removed CEO Steve Ballmer from its witness list, along with OEM account manager Gayle Brock, having already removed eight others. Commentators suggested that this was done to exploit the other side’s failure to have certain pretrial depositions entered into the record, thereby restricting the evidence in the case. On May 7th, Microsoft’s Senior Vice President for Windows, Jim Allchin, warned that the remedies proposed by the non-settling states would weaken the security of Windows and could thereby result in the illegal spreading of music, movies, and other digital content. He said that too much disclosure of Windows’ technical information would assist hackers and virus-writers as well. On May 10th, Microsoft rested its case. Oral arguments were held in mid-May and closing arguments are scheduled for June 19th. Legal documents in the case may be found at http://www.microsoft.com/presspass/legalnews.asp Copyright ©  2001 Nelson & Wolfe/Sensei Enterprises, Inc. All rights reserved.