Before becoming a lawyer, I worked as a political consultant. As a result I am a political junky, mostly in areas that affect the legal profession and internet freedom. I saw commentary on Politico this morning by Grover Norquist, (the man who’s organization is famous for its “tax pledge” most often signed by conservative politicians) and Laura Murphy of the American Civil Liberties Union (strange bedfellows indeed), concerning internet privacy and the Electronic Communications Privacy Act (1986), an issue I have previously addressed on this blog. Norquist is a philosophically a libertarian, so along with tax issues, issues related to protection of privacy rights from government intrusion are important to him. Currently under the now 27 year old ECPA, any email over 180 days old is considered “abandoned”, and for a government agency to have access to those emails, all that is needed is a written statement that the emails are somehow “relevant” to a government investigation. No warrant necessary. I am of the opinion that such broad government power is a violation of 4th Amendment protections against unreasonable searches and seizures. It would be akin to government being able to read your diary entrees that are over 180 days old. Norquist and Murphy address this issue in the article and proposes a solution.
Technology has changed dramatically since 1986. With free, unlimited email storage and high-speed broadband service widely available, we no longer have to download email onto our hard drives. Instead, we indefinitely store our email and other personal effects — private reflections, financial records, photographs and love letters — in the “cloud,” where the power and flexibility of massive servers are available for free or at very low cost….
Our proposal is simple: All private communications and documents stored online with service providers should have the same protections from unreasonable search and seizure as material locally stored. If government agencies want to read emails, they should go to court, show probable cause to believe a crime is being committed and obtain a search warrant just as they would for postal mail and telephone calls.
January and February were arduous months both personally and professionally. Sometimes when life gets busy, it gets very busy. I am back and of course I am always fielding questions on Internet Law, and now other areas of law as well. I am also going to continue doing my editorial content for this blog. So if you have any questions, or would like to contribute, feel free to let me know. Also visit Skyles Law Group’s website at http://www.skyleslaw.com if you have a legal need that needs to be addressed.
The on going dispute between Google and Apple over video rights is full of technical and legal jargon that will drive anyone without at least 2 PhD’s completely mad. In a nutshell, Apple and its friends (formed as a licensing format company called MPEG-LA) have a patents on video formats, Google wants to get into the game, MPEG-LA wants to block them out of the game. To the point, this dispute is the reason why you can’t get Flash on your iPhone, and why when you updated your iPhone 4 a few months ago, it took away your YouTube and Google Maps, and left you with really crappy alternatives from… Bing.
To best explain this, let’s look at an example from History. A little over a century ago, Henry Ford revolutionized auto manufacturing and manufacturing in general by creating the assembly line for the Ford Model T. There was one problem, the patent on the automobile the was held by George Selden, who formed an association of 20 or so automobile manufacturers called the Association of Licensed Automobile Manufacturers (ALAM). As holders of most of the patents related to the design and manufacturer, ALAM was able to decide who was, and who was not allowed in their club, and as a result, who was and was not allowed to make cars. On paper the reason for ALAM was to set standards and to protect the public. In reality, it was to protect the member companies from competition.
ALAM did not grant the Ford Motor Company a license to use the automobile patent because they felt threatened by Ford’s concept of being able to use the assembly line process cheaply and to make the car affordable to working Americans. So what did Ford do? They built their cars without a license, and ALAM sued them. Ford countered arguing that ALAM’s use of patents made them a trust, holding an illegal monopoly on car manufacturing. After years of litigation, Ford was legally allowed to manufacture their cars and revolutionize the automobile industry.
Fast forward a hundred years, and the Ford Motor Company is still going strong. Of all of the members of ALAM, the only company that is still in business today is Cadillac as a part of General Motors.
In the modern context, Google is Ford, and MPEG-LA is ALAM, as driven by Apple. MPEG-LA holds what amounts to a trust in video formatting software. Google is attempting to introduce its products and let the market decide, and MPEG-LA is attempting to keep them out. Like the original Studebaker, MPEG-LA is able to drive up the price of their products because they are the only ones out there, passing along high prices to the consumer.
On top of that, monopolies on these types of patents stifle innovation. Just as ALAM’s attempt to stop Ford stifled the assembly line innovation, monopolies on software prevent entrepreneurs from developing software that is more effective and efficient. In a depressed economy, economic recovery is dependent on the rise of entrepreneurs, mostly from small companies, to come up with new and innovative ways to address issues, and make those solutions worthwhile to consumers. If business is barred from entrance into the market place by monopolies, then there is no way for the public to have an adequate choice in their consumer decisions. This is why anti-trust laws exist. This is why American has been successful, our culture is built in an environment that awards success and builds upon the achievements of the innovators that came before us. This ever changing world is why I practice cyberlaw to begin with.
Just as ALAM’s ability to stifle innovation was cut down, MPEG-LA’s must follow suit.
For more reading:
Huffington Post- Patent Licensing Schemes: Creating a Bad Holiday Bargain?
Wall Street Journal- Web Video Rivalry Sparks U.S. Probe
Before I was a licensed attorney, I worked in journalism, not as a reporter, but as an analyst. I am very well aware of the ethical standards that “should” apply to the media profession, but often doesn’t. Today we are in mourning for innocent lives lost in Connecticut, but in the rush to get a story, the media botched items up big time. In attempting to identify the shooter, the media identified and broadcasted the name and image of the wrong man. Fox News, CNN and CBS named the shooter as “Ryan Lanza”, when in reality it may have been this man’s younger brother “Adam Lanza”.
Apparently, according to Business Insider, Mr. Lanza took to his facebook account to vent his frustration.
This man may have lost his father, his mother, and his brother today, along with the feeling of being associated with one of the worst cases of mass murder in history. His name has been broadcast as the perpetrator of a horrible crime at the same time. Above everything, he needs to have our sympathy and prayers. The media really screwed up big time today. There are several causes of action Mr. Lanza could have against the agencies that reported this blatantly irresponsible information. Among them, invasion of privacy- false light, and defamation. Mr. Lanza did not ask to be thrusted into the situation. He was put there by grossly negligent actions of several large news agencies.
While I can never feel what he’s going through I can sympathize. A few years ago, a friend of mine had a sibling (who I had only met once), who was involved in a mass school shooting. The press was not sympathetic to her either, but at least they didn’t accuse her.
If Mr. Lanza reads this, I am more than willing to take on the case, free of charge, and I will work as hard as possible to see that he receives a just and fair result.
We live in a world fueled by sensationalism, and a media that is obsessed with a washed up former child star, and a woman with physical features out of a 90′s west coat gangsta rap, made famous by a sex tape. Unfortunately, I work and write in a field where there sensational headlines are few and far between. So when there is a scandal where my line of work, which can be analyzed from a cyber law point of view, I must take advantage of it.
So it is with the David Patraeus love pentagon, yes it ironically is a love pentagon. The entire scandal blew up because of emails. You thought there was some expectation of privacy in emails, you were dead wrong.
The reason why the FBI was able to get such easy access to the emails is because under the grossly outdated Electronic Communications Privacy act of 1986, yes its been 26 years since comprehensive electronic privacy litigation has been drafted, emails under 6 months old can accessed with just a subpoena. No warrant necessary. Because the emails in question were less than 6 months old, the FBI was able to gain access to them without a warrant. Guess what? The same can happen to you.
The 1986 law was drafted in an era when the only people using email were government employees, the military, and some very highly sophisticated businesses. The only access most people had to the internet was through ancient modem based programs like Prodigy. Because of the limited nature of email communication, the law made sense at the time. It does not do so now.
What was they government proposed solution? According the rumors last week there was a proposal last week by Senator Patrick Leahy, to make any and all emails accessible by subpoena. A rather draconian answer to what should be a simple question. The answer is to extend the legal expectation privacy to all emails, including those less than 6 months old, in order to ensure that people’s 4th amendment rights are not violated. In circumstances such as the Patraeus scandal, access would be grained to those emails by a warrant on showing of probable cause.
On a related note, laws concerning the breach of internet privacy are equally outdated. Companies (and especially government bodies) which do not adequately protect personal information, often avoid consequences because federal laws offer almost no individual protection, and state laws often offer little individual protection. The burden of proof in showing negligence on the part of plaintiffs is costly and often insurmountable. In the days where cyber attacks are becoming more and more common, and firewalls become weaker and weaker, greater incentive needs to be placed on the part of government and private industry in order to protect individual privacy.
Hey, I got a question I need answered! Luckily I decent number of followers on twitter, and friends on facebook. So I’ll just go ahead and put it out there and see if someone can answer. Usually it is something like “I am going to Vegas, what should I do while I am there” (keeping in mind that it will either stay in Vegas or end up on youtube). Or I might be hungry and ask the internet “Should I get Pizza or Mexican”. A bit more risky question would be “What should I wear for Halloween?”. Usually I will get a decent answer that meets my needs. This is an example of an appropriate use of crowdsourcing.
The following use posted on “The Atlantic Wire” is an example of an inappropriate use of crowdsourcing:
Just when you thought Reddit couldn’t become more powerful, Rep. Zoe Lofgren has enlisted the power of the crowd to help her write a new Internet law. It’s right up Reddit’s alley, too. Lofgren’s law will legislate how domain name seizures are handled in the United States, specifically in the cases of copyright infringement, accusations of libel and obscenity.
The new law would apply to cases like that of Kim Dotcom and Megaupload, not to mention the hundreds of cases that the U.S. Department of Justice has pursed with two separate sting operations against suspected violators. Redditors do not like it when the government seizes domain names, which is exactly why Lofgren, a California Democrat, says she wants their help with her new law
For those who really don’t know what Reddit is, it is sort of the Occupy Wall Street of the internet. Not that it blocks traffic, defecates on police cars, and smells like a open sewer hatch. Reddit is the Occupy Wall Street of the internet in the way it conducts its business through a series of up-twinkles and down-twinkles that show which ideas are to dominate the forum. Fairly democratic, but usually the most radical voices are the ones most likely to be heard. It is generally good for discussions on Star Wars, atheism, scientific development, and generally nerd stuff. However, they are not legislators, and while they are very much up on internet related issues, the view point is very narrow as it is not a very diverse demographic. Think of it this way, it is your High School AV club.
Luckily, there weren’t enough up-twinkles for this bid, so it never received a whole lot of traction on Reddit.
Rep. Lofgren should consider the needs of her district, and the population as a whole before she goes and let “the internet” decide what should and should not be a part of legislation that impacts us all.
Anti-Semitism is on the rise in Europe, especially in France and Germany. One outlet for anti-Semetic commentary has been twitter. In France, the hashtag #unbonjuif (literally “a good Jew” has been used to spread anti-Semetic jokes. It is now the 3rd most popular hashtag in France.
In France, as well as Germany, the notion of “Free Speech” is not protected as it is in the United States. Germany for example, has outlawed anti-Semetic speech as a whole, something unthinkable in the U.S. The French government is seeking to crack down on the use of twitter to spreed anti-Semitism. The problem is individuals can use twitter anonymously, and twitter servers are offshore and are generally cannot be subpoenaed in French Courts. The solution is this, sue twitter. From France24.com.
According to French lawyer and online media specialist Gérard Haas, Twitter, as a publisher, is legally responsible for the content of its website, just as much as its individual contributors.
He told FRANCE 24 that the only solution for anti-racism organisations was to target individual tweeters and “sue, sue, sue” in response to last week’s anti-Semitic Twitter binge.
“Twitter has to improve its reaction to events like these so that the justice system can quickly identify who has made posts that are illegal under French anti-racism laws,” he said.
While this is happening in France, if a similar situation were to happen in the United States, this course of action could not happen. First, as tasteless and repugnant as anti-Semetic speech is, it is still covered by the first Amendment to the Constitution as free speech, with very little exception.
Even if that were not the case, twitter is protected by the Section 230 of the Communications Decency Act. Most people know the Communications Decency Act as the anti-internet-porn act of 1996. Well, less than a year later, the anti-pornography provisions were largely struck down by the United States Supreme Court in Reno v. ACLU. However, the safe harbor provisions and section 230 still remain.
Section 230 basically gives websites and servers immunity from any slanderous or defamatory communication posted by a third party, stating in part “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. The key part being “publisher or speaker”. In tort law, a publisher (anyone who prints or repeats the defamatory communication) of information has the same liability as the original speaker. Without that provision, then twitter would be liable for everything everyone posts on its webpage, as would facebook, or any blog or news source with a comments section. So hooray for forward thinking which allows us to have forums to express our thoughts freely, without them having to bear the costs of our own stupidity… for now…
I received this question via email from a reader:
Dear Ask a Cyber Lawyer:
My boyfriend is stationed over seas in the Air Force, and we usually use the internet to communicate. It turns out that his ex-wife has been using an old account of his, and pretending to be him. I just found out that while I thought I have been chatting with him, I was really chatting with his ex. This has caused me a lot of emotional anguish. Is there any way I can sue her?
My response is this. With out knowing anything else about the case, it is possible that there could be several causes of action that could be brought against her by both you and your boyfriend.
First, in some jurisdictions it is actually a crime to impersonate someone on the internet. So it might be worth while to involve the police.
Second, there are civil causes of actions you can bring up. One is the tort of Intentional Infliction of Emotional Distress, or IIED. Intentional Infliction of Emotional Distress occurs when the Defendant intentionally or recklessly commits extreme and outrageous conduct which causes the plaintiff to suffer emotional distress (in some jurisdictions this action must be done in public). If you were induced by this person to commit some sort of act, such as send money, there are fraud actions which may be available as well.
Your boyfriend may also have causes of action available. First, anything she said while impersonating him is likely actionable as defamation. Likewise he may also have an invasion of privacy claim for portraying him in a false light.
My advice is call my firm, or an attorney in your area and make an appointment to discuss the specifics in this matter.
Disclaimer: This blog post contains no actual legal advice. It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
It’s fun to look at publications and see their commentaries on legal issues, particularly when they involve pop cultural phenomena. Often times they completely miss the mark. Other times they hit the nail on the head. Last week, Forbes.com published a funny article on parody videos of the strange yet fascinating appearance of Gangnam Style by Korean pop signer Psy, and got the legal issues right. For those who have no idea what I am talking about, here’s the video.
I can’t explain it either, but as a slightly overweight, Asian, 30-something male, I appreciate that I am finally cool with the hipsters. The Forbes article goes into detail on the legal definition of parody, which allows individuals to essentially “get away with” making a “Gangnam Style” video, without getting in trouble. From Forbes.com
Creating a new work based on someone else’s prior work (called a “derivative work”) is another example of an infringement that copyright law protects against. Many songwriters have been sued for “sampling” other writers’ music (incorporating parts of other writers’ songs into their works). Contrary to a widely circulated rule of thumb, even using as few as four notes from another song can be an infringement.
So how is it that the hundreds of Gangnam Style remake creators have not gotten into trouble?
Many of these remakes may qualify as parodies, which are generally protected under the copyright law’s “fair use” doctrine….
Thanks to another rapper two decades ago, parodies are generally considered to be a form of fair use. In 1989, rap group 2 Live Crew recorded the song “Pretty Woman,” a parody of singer Roy Orbison’s earlier rock ballad “Oh, Pretty Woman.” The publisher of Orbison’s song sued for infringement and took the case up to the U.S. Supreme Court.
As Justice David Souter described it in the Supreme Court case Campbell v. Acuff-Rose Music, Inc., 2 Live Crew’s version juxtaposed “the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility,” serving as a commentary “on the naivete of the original of an earlier day.” After carefully analyzing each factor in the four-factor fair use test, the Court decided that 2 Live Crew’s parody of Orbison’s song was fair use. Key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.
It is important to note that when it comes to music videos, the video portion and the music portion have separate copyright issues, so if a video is to be truly considered a parody, they need to parody both. Here are some popular videos to show the difference.
So as you can see, not only do the “not parody” videos fall outside of “fair use”, they are also are not nearly as funny. I greatly respect the future officers of the United States Navy, but does that video do anything to dispel the 200+ year old stereotype of American seagoing servicemen? Oh, by they way, did Vanilla Ice really think that revisiting “Go Ninja Go”, the “sell out” which killed his career, would somehow boost his public image? Fortunately for them, Psy doesn’t seem interested in litigating copyright issues on parody attempts.