9TH CIRCUIT RULES AGAINST JAILCAMS

On August 6th, the Ninth Circuit Court of Appeals affirmed a lower court decision holding that a sheriff in Maricopa County, Arizona, violated prisoners’ rights by using webcams to broadcast them being booked and held in cells. The sheriff had argued that Webcasts deterred crime and showed the public how jails work. Judge Richard Paez wrote that the Webcasts amounted to little more than a "reality show" and went beyond what would be considered a reasonable deterrent to crime. "Exposure to millions of complete strangers, not to mention friends, loved ones, co-workers and employers, as one is booked, fingerprinted, and generally processed as an arrestee, and as one sits, stands, or lies in a holding cell, constitutes a level of humiliation that almost anyone would regard as profoundly undesirable," Paez wrote. The decision in Demery v. Arpaio may be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/870530A1FDABD79688256EE800580191 /$file/0315698.pdf?openelement

On August 19th, the Ninth Circuit Court of Appeals upheld a lower court decision saying that peer-to-peer software developers are not liable for any copyright infringement committed by people using their products, as long as they had no direct ability to stop the acts. The ruling does not say file-trading itself is legal, and lower courts in the United States have said individual computer users are breaking the law when they trade copyrighted files without permission. An appeal is expected to be filed. The decision in Metro-Goldwyn-Mayer v. Grokster may be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E9CE41F2E90CC8D788256EF400822372 /$file/0355894.pdf?openelement

On August 23rd, the Ninth Circuit reversed a 2001 ruling by a San Jose federal judge who found that Yahoo!'s First Amendment rights protected the company against the orders of a French court. The 9th Circuit, while noting that Yahoo! could still raise its First Amendment defense if French authorities turn to the U.S. courts to enforce their orders, said obeying other nations' laws is the price of conducting international business. The court found that U.S. courts do not have jurisdiction to trump the orders of a foreign court without that foreign government first bringing the dispute into the American legal system. Yahoo! vowed to reassert its free speech arguments if French officials attempt to enforce an earlier judgment that Yahoo! must pay fines for allowing the auction of Nazi memorabilia. The decision in Yahoo! v. La Ligue Contra Le Rascisme et L’Antisemitisme may be found at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D079531C495BC5E288256EF90055E54C /$file/0117424.pdf?openelement

On August 4th, the Federal Communications Commission (FCC) acted to prohibit some forms of mobile spam, using its powers under the CAN-SPAM Act. The new rules cover commercial messages sent to mobiles that use email addresses provided by cellular carriers. The rules do not cover SMS (Short Message Service) spam sent to phone numbers as opposed to those sent to addresses referencing Internet domains, and do not appear to cover instant messaging spam. The FCC unanimously adopted "a general prohibition on sending commercial messages to any address referencing an Internet domain associated with wireless subscriber messaging services." Cellular carriers will have to provide the names of the domains that they use in subscriber messaging services. Any spam sent to addresses at those domains will be covered by the regulations. Messages sent to phone numbers are not covered. The FCC noted that existing junk fax laws that ban autodialed commercial faxing cover SMS spam, but only if it uses autodialers. The order may be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-194A1.doc

On August 4th, in a preliminary ruling, the Federal Communications Commission (FCC) decided that broadband providers and Internet phone services must comply with requirements designed for the traditional phone network. The 5-0 vote by the FCC was a major step toward regulations intended to help law enforcement agencies eavesdrop on all forms of high-speed Internet access, including cable modems, wireless, satellite and broadband over power lines. FCC Chairman Michael Powell said, "Above all, law enforcement access to IP-enabled communications is essential . . .these requirements can and should apply to VoIP and other IP-enabled service providers." The vote came five months after the FBI, the Drug Enforcement Administration and the Justice Department formally asked for guaranteed wiretapping access to broadband networks. The FCC's five commissioners agreed that the1994 Communications Assistance for Law Enforcement Act (CALEA) clearly covers broadband and managed VoIP services. However, the FCC did not grant law enforcement’s request to extend CALEA to cover instant messaging and VoIP programs that are not "managed," which refers to peer-to-peer programs which do not use the public telephone network. Chairman Powell’s statement may be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-250547A1.doc

On August 26th, Judge A. Howard Matz of the Central District Court of California dismissed VeriSign’s arguments that ICANN’s (Internet Corporation for Assigned Names and Numbers) ban on its Site Finder service constituted a violation of antitrust law. The service was designed to direct mistyped or non-existent domain names to VeriSign’s website. VeriSign had argued that its competitors had succeeded in foiling VeriSign's plans for its Site Finder service by providing advice to the board of directors of ICANN. Judge Matz ruled "there is nothing inherently conspiratorial about a 'bottom-up' policy development process that considers or even solicits input from advisory groups." A report on the Site Finder service, prepared by a group of technical experts organized by ICANN and released last month, concludes that Site Finder had undesirable side effects, violated commonly accepted codes of Internet conduct and should remain offline. The decision in VeriSign v. ICANN may be found at http://www.icann.org/legal/verisign-v-icann/verisign-v-icann-dismiss-26aug04.pdf

On August 4th, California attorney Stephen Galton filed suit against Yahoo! in Los Angeles Superior Court, claiming that Yahoo! has unfairly protected people who post personal attacks on its bulletin board and falsely advertises that it prevents such abusive postings. Galton is a partner in the firm of Galton & Helm, which specializes in insurance law. He registered to use Yahoo! message boards in early 2004 to respond to a negative late-2003 post about one of his clients, which he did not identify in the suit. After Galton posted his response, he was subjected to personal attacks by other users of the message boards. Galton filed suit against these users in April, seeking their information via a subpoena from Yahoo! According to the suit, Yahoo! responded with incomplete or inaccurate information. The suit proposes as a class any California resident who has been targeted by abusive messages on a Yahoo! board, who tried to get such messages stopped or learn the identity of the message poster, and who had such requests denied within the last four years. It seeks restitution, a permanent injunction and other forms of relief. Further information may be found at http://www.ecommercetimes.com/story/news/35627.html

On August 2nd, it was announced that TrekEight, a San Diego software company, had sued Symantec, alleging that Symantec is causing TrekEight to lose business by identifying its Spyware Nuker software as "adware." Spyware Nuker, created by TrekEight, is described as a tool for identifying and removing spyware on computer hard drives. But Symantec's Web site and its Norton AntiVirus software have for months identified TrekEight's software as a potentially damaging piece of "adware." TrekEight says its software is not adware and that, as a result of Symantec's actions, it has lost distributors, and its own distributors have lost the ability to advertise on Google. Further information may be found at http://zdnet.com.com/2100-1104-5293992.html

On August 3rd, the 10th Circuit Court of Appeals ruled that David Meneley, a former sheriff of Shawnee County, is immune from a civil lawsuit filed by Kansas residents he surreptitiously investigated through the FBI's Interstate Identification Index (III). The database includes records of anyone arrested for felonies or serious misdemeanors, a total of 50.5 million people as of December 2003. Meneley was hoping to discredit local activists who had organized a petition drive in March 1999 to remove him from office. Although the judges said they "strongly disapprove" of Meneley's actions, the appeals court concluded the former sheriff could not be sued on charges of violating the activists' First Amendment rights because there was no evidence that those rights had been violated. The decision in Eaton v. Meneley may be found at http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-3215.wpd

On August 9th, the Federal Trade Commission (FTC) announced that it had reached a settlement with D Squared Solutions, LLC, a company created by two college students. The FTC had filed a civil suit against the company last year in the U.S. District Court in Maryland. Under terms of the agreement, D Squared will no longer send pop-up ads using the Windows Messenger Service or sell software that blocks such ads. D Squared allegedly claimed it could send pop-ups to as many as 135,000 Internet addresses each hour and had a database of 2 billion addresses. It is also barred from sending any ads through the Internet that don't allow computer users to choose not to receive them. D Squared will have to let the FTC monitor its business for the next five years and report regularly on its activities. The company's founders, Anish Dhingra and Jeffrey Davis, do not admit wrongdoing and do not face any penalties. Further information may be found at http://www.ftc.gov/opa/2004/08/dsquared.htm

On July 26th, New York U.S. District Court Judge Denny Chin ruled that Cablevision, which provides broadband Internet access in Connecticut, New Jersey and New York, can be required to divulge the identities of subscribers sued over copyright violations. Commentators have pronounced the case significant because Chin's ruling is the most detailed so far in any of the many "John Doe" lawsuits brought by the Recording Industry Association of America (RIAA). Chin said that while file swapping "qualifies as speech" to some degree, the RIAA's member companies had overcome the hurdle posed by the First Amendment and could compel disclosure of the Doe defendants' identities. The decision in Sony v. Does 1-40 may be found at http://techlawadvisor.com/chin_072604.pdf

In a report released by the U.S. General Accounting Office (GAO), the agency found that compliance with federal information security standards is irregular and that the process that measures compliance is unreliable. A GAO survey of 24 federal agencies found that 63 percent of information systems met security guidelines issued by the National Institute of Standards and Technology, including the minimum security controls mandated by the 2002 Federal Information Security Management Act. The GAO report determined, however, that compliance and accreditation varied greatly. Seven of the 24 agencies reported that more than 90 percent of their systems were certified and accredited as secure while six reported less than half of their systems were accredited as secure. The Housing and Urban Development and Agriculture departments reported that none of their systems are certified or accredited to meet the NIST guidelines. The top compliance levels were at the Social Security Administration and the Nuclear Regulatory Commission, which both registered 100 percent accreditation and certification. At the Defense Department, 77 percent of systems meet the guidelines. The study was conducted between September 2003 and June 2004. The GAO report may be found at http://www.gao.gov/new.items/d04376.pdf

On August 3rd, the American Civil Liberties Union (ACLU) announced that it had joined with a former Michigan governor in a lawsuit to halt the Michigan State Police's participation in a multistate crime and terrorism database, saying the agency is illegally sharing information about individuals. The lawsuit against the federally funded Multistate Anti-Terrorism Information Exchange (MATRIX) was filed in Wayne County Circuit Court. The suit cites Michigan's Interstate Law Enforcement Intelligence Organizations Act, which Milliken signed in 1980. The Legislature passed the law after learning that Michigan police, during the 1960s and 1970s, developed and maintained files on hundreds of residents who had committed no crimes but were involved in civil rights and anti-war movements of the time. Matrix combines state vehicle and crime records with databases owned by a private company, Seisint Inc. of Boca Raton, Florida. It gives investigators quick access to billions of pieces of information on potential criminal suspects. The program, funded by $12 million from the U.S. departments of Justice and Homeland Security, encompasses Michigan, Florida, Connecticut, Ohio and Pennsylvania. The ACLU wrote to Michigan State Police in May warning the agency that, under the 1980 state law, it was acting illegally by taking part in an interstate intelligence organization without first receiving approval from either the Legislature or a citizen-oversight body. The civil liberties group sued when state police indicated that they would continue their Matrix participation. Further information may be found at http://www.aclu.org/Privacy/Privacy.cfm?ID=16206&c=130

Microsoft announced on August 3rd that it had settled a class action suit in New Mexico, promising to make as much as $31.5 million in vouchers available to consumers. Under the settlement, preliminarily approved by a New Mexico court last week, consumers in the state who bought certain Microsoft products during a specified period will be eligible to receive vouchers that can be used to buy computer hardware and software. Half of any unclaimed settlement money will go to needy public schools in New Mexico in the form of vouchers. The suit alleged that Microsoft abused its Windows monopoly to overcharge customers in the state for its software. The settlement is similar to ones Microsoft reached in 14 other states, including Arizona, California, Kansas, North Dakota, South Dakota, Tennessee and Vermont. In all the settlements, Microsoft denies any wrongdoing. Class-action cases in which Microsoft is accused of overcharging for its software are still pending in Nebraska, Wisconsin, Iowa and New York. Further information may be found at http://www.microsoft.com/presspass/press/2004/aug04/08-03NewMexicoSettlementPR.a sp

On August 3rd, a class action suit was filed in San Francisco Superior court against Google, Yahoo! and other major Web sites, alleging that gambling ads on those sites violate California law. The complaint alleges that the companies sell rights to Web advertisements based on searches for terms such as "illegal gambling," "Internet gambling" and "California gambling." The online businesses also use geotracking software to target particular regions, including California, for illegal gambling ads, according to the lawsuit. The lawsuit demands that the companies stop accepting the advertisements and give California "millions of dollars in ill-gotten gains." The complaint in Cisneros v. Yahoo! may be found at http://www.techfirm.com/yahoocomplaint.pdf

On August 10th, an Alaskan driver was acquitted of charges that he caused a fatal crash by taking his eyes off the road while watching a movie on a DVD player mounted on his truck dashboard. The jury acquitted Erwin Petterson Jr., 29, of two counts of second-degree murder and two counts of manslaughter. No law in Alaska prohibits operating a DVD player in view of a driver. Further information may be found at http://www.wired.com/news/autotech/0,2554,64546,00.html

The Congressional Budget Office released an August study on digital copyright issues, outlining economic problems for Congress to consider as it tackles making new laws. While not providing specific recommendations, the study offers a set of principles for lawmakers focused on avoiding being tied too closely to past practices or to the interests of powerful companies or consumer groups. The paper outlines the likely economic effects of several ideas that have been proposed in Congress or by copyright experts, without advocating support for any of them. The study may be found at http://www.cbo.gov/showdoc.cfm?index=5738&sequence=0

EOLAS BROWSER PATENT CLAIMS REJECTED

On August 16th, the U.S. Patent and Trademark Office (PTO) gave Microsoft another victory in its dispute with Eolas, rejecting Eolas’ browser patent claims. The patent in question, owned by the University of California (UC) and licensed exclusively to its Eolas software spinoff, describes the way a Web browser opens plug-ins within the browser. In the second of what are projected to be three opinions, or "office actions," in the case, the Patent Office rejected all ten patent claims under review. The fight between UC and Microsoft has two facets. The legal battle has seen UC win against Microsoft a $521 million infringement judgment, later raised to $565 million. Microsoft is appealing that decision. The second front is the PTO’s re-examination of Eolas’ patent based on the fact that prior art had been demonstrated prior to the filing of the patent application in 1994. Even if the PTO rules against UC and Eolas, they have two levels of appeal, the first to the Board of Patent Appeals and Interferences and the second to the Federal Circuit Court of Appeals in Washington, D.C. The PTO’s ruling may be found at http://i.i.com.com/cnwk.1d/pdf/ne/2004/eolas.pdf

According to a survey released on August 20th by NetRatings Inc., a majority of U.S. homes that have access to the Internet are now using broadband. There are now 50% who have broadband vs. 49% using dial-up. A year ago, broadband usage was pegged at 38%. Over the same period, the total number of Americans using the Internet at home grew less than 10%, from 113 million in July 2003 to 124 million in July 2004, according to NetRatings. The 2000 U.S. Census listed the total U.S. population at just over 281 million. Further information may be found at http://www.netratings.com/pr/pr_040820_newzealand.pdf

On August 26th, the Department of Justice (DOJ) announced the arrests or convictions of more than 150 individuals and the return of 117 criminal complaints, indictments, and informations in a collaborative nationwide enforcement operation directed at major forms of online economic crime and other cybercrimes. The ongoing action is known as Operation Web Snare. Operation Web Snare is targeting a variety of online economic crimes including identity theft, fraud, counterfeit software, computer intrusions, and other intellectual property crimes. The cases involved exemplify the extent to which alleged online criminal activity increasingly is not only multi-jurisdictional, but involves the blending of traditional crimes with various forms of computer crime, such as computer intrusion and malicious computer programs. More than 160 investigations have been opened as part of Web Snare, which ran from June 1 to August 26, 2004. Investigators have identified more than 150,000 victims with estimated losses of more than $215 million. Further information may be found at http://www.usdoj.gov/opa/pr/2004/August/04_crm_583.htm

On August 27th, it was announced that two California counties and two cities have filed a class-action lawsuit against Microsoft for using its monopoly power to deny government agencies free choice in software products and charge high prices. The suit alleges that Microsoft's tactics caused harm to government users of its Windows operating system. The lawsuit, which could reap millions of dollars for the California government, came as the state took out loans to cover a $15 billion budget shortfall. The city and county of Los Angeles, Santa Clara County, San Mateo County and Contra Costa County are all taking part in the class action. Further information may be found at http://www.internetnews.com/bus-news/article.php/3401641

The American Civil Liberties Union (ACLU) issued a report in August detailing surveillance practices in the United States. The report finds that the U.S. government is increasingly using corporations to engage in surveillance, which enables law enforcement to avoid restrictions that protect privacy and civil liberties. The report examines: 1) how companies are allegedly pressured to voluntarily provide consumer information to the government: 2) the means by which security agencies can compel companies to turn over sensitive information under such laws as the Patriot Act; 3) how the government is mandating that companies participate in watchlist programs and in systems for the automatic scrutiny of individuals’ financial transactions; and 4) how the government is making use of data mining programs or purchasing information from private sector data aggregators. The report may be found at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=16224&c=207