Saturday, April 19, 2008

MIRLN 30 March - 19 April 2008 (v11.05)

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**** NEW VENUE ****
Vince Polley has returned to, providing consulting services on e-policies and knowledge management. Beginning in May 2008, MIRLN will be distributed by email from, and will be archived at

**** NEWS ****

CORPORATE EMPLOYEE BLOGS: LAWSUITS WAITING TO HAPPEN? (CNET, 26 March 2008) - A recent libel lawsuit filed against Cisco Systems over one of its employees’ personal blogs could spur companies, many of which have encouraged workers to share their writings publicly, to reconsider how much latitude to give them. Thousands of companies have embraced the idea of giving employees an unfiltered voice as a means to keep in touch with customers, suppliers, and the media. Sun Microsystems boasts a 4,000-employee-strong blog network, including its chief executive, and some corporate “spokesbloggers” like Microsoft’s Robert Scoble have even rocketed to Internet stardom. Cisco’s legal trouble stems from a Blogspot-hosted blog called Patent Troll Tracker, which Rick Frenkel, who directs the company’s intellectual property department, launched last May. His posts focused on patents and patent litigation-an issue that Cisco has pressed Congress to address by overhauling what it views as a broken U.S. patent system. A few weeks ago, Frenkel revealed his identity, and two patent attorneys in Texas filed suit, accusing him of tarnishing their good names and disparaging a patent case their client had filed against Cisco-all the while allegedly concealing his affiliation with the company. Cisco has responded by rethinking how it does blogging. Now the Patent Troll Tracker posts appear to be open only to invited readers. Although the company says it’s standing by Frenkel and allowing him to continue his personal blog, the incident also highlighted a number of important “lessons,” Cisco said in a statement-including the potential perils of unchecked anonymous blogging. and

ILLICIT SOFTWARE PLACED ON HANNAFORD SERVERS BLAMED FOR BREACH (, 28 March 2008) - Unauthorized software that was secretly installed on servers in Hannaford Bros. Co.’s supermarkets across the Northeast and in Florida enabled the massive data breach that compromised up to 4.2 million credit and debit cards, the company said Friday. The Scarborough, Maine-based grocer confirmed a report in The Boston Globe that it told Massachusetts regulators this week about the link between the breach and the illicit programs, known as “malware.” The company doesn’t know how the malware - short for malicious software - got onto nearly all its 271 stores’ servers, Hannaford spokeswoman Carol Eleazer said. At least 1,800 cases of fraud have been linked to the data breach, with unauthorized charges showing up as far afield as Mexico, Italy and Bulgaria. The breach has prompted concern in the industry because it appeared to be the first large-scale theft of credit and debit card numbers while the information was in transit.

CITY SUBPOENAS CREATOR OF TEXT MESSAGING CODE (New York Times, 30 March 2008) - When delegates to the Republican National Convention assembled in New York in August 2004, the streets and sidewalks near Union Square and Madison Square Garden filled with demonstrators. Police officers in helmets formed barriers by stretching orange netting across intersections. Hordes of bicyclists participated in rolling protests through nighttime streets, and helicopters hovered overhead. These tableaus and others were described as they happened in text messages that spread from mobile phone to mobile phone in New York City and beyond. The people sending and receiving the messages were using technology, developed by an anonymous group of artists and activists called the Institute for Applied Autonomy, that allowed users to form networks and transmit messages to hundreds or thousands of telephones. Although the service, called TXTmob, was widely used by demonstrators, reporters and possibly even police officers, little was known about its inventors. Last month, however, the New York City Law Department issued a subpoena to Tad Hirsch, a doctoral candidate at the Massachusetts Institute of Technology who wrote the code that created TXTmob. Lawyers representing the city in lawsuits filed by hundreds of people arrested during the convention asked Mr. Hirsch to hand over voluminous records revealing the content of messages exchanged on his service and identifying people who sent and received messages. Mr. Hirsch says that some of the subpoenaed material no longer exists and that he believes he has the right to keep other information secret. “There’s a principle at stake here,” he said recently by telephone. “I think I have a moral responsibility to the people who use my service to protect their privacy.” The subpoena, which was issued Feb. 4, instructed Mr. Hirsch, who is completing his dissertation at M.I.T., to produce a wide range of material, including all text messages sent via TXTmob during the convention, the date and time of the messages, information about people who sent and received messages, and lists of people who used the service.

RESPONSES TO CYBERCRIME TO BE DEBATED BY COUNCIL OF EUROPE, NATO (International Herald Tribune, 31 March 2008) - Cybercrime experts from around the world will meet in Europe this week to discuss how governments should counter attacks aimed at crippling the Internet and hitting users with data loss, identity theft and fraud. The European Union’s anti-terrorism has voiced concerns about cyber attacks and said the bloc was working on new laws addressing the increasingly common phenomenon. “Cybercrime terrorism is a source of concern. We know how much we’re dependent of the Web for everything,” said Gilles de Kerchove, who coordinates anti-terror efforts for the EU’s 27 countries. “Shutting down the net can really amplify a terror attack,” he told a European Parliament panel. A conference by the Council of Europe — a pan-European body concerned with human rights and the rule of law — will review the implementation of the Convention on Cybercrime, the only legally binding international treaty to address online crime. and

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EUROPEANS SERVE UP A CARNIVOROUS OCTOPUS (Steptoe & Johnson’s E-Commerce Law Week, 5 April 2008) - If you thought “Carnivore” was a sinister name for a government surveillance endeavor, how about the “Octopus Interface”? That was the name of a Council of Europe conference held last week in Strasbourg, France, bringing together law enforcement and Internet service providers (ISPs) from 65 countries to discuss how best to cooperate in the conduct of cybercrime investigations. The result? The adoption of a set of electronic surveillance and lawful access “best practices” to be followed by law enforcement and ISPs. Given the overtones of 007 (and alleged American conspiracies from the 1980s), the name of the conference is not likely to assure suspicious civil libertarians. But any effort to regularize and demystify the relationship between law enforcement and ISPs is a welcome development. Still, though representatives of the U.S. Department of Justice were present at the “Interface,” the FBI might find some of this Octopus’s meat a bit hard to swallow.

HIRING LAWYERS BY THE NUMBERS (, 1 April 2008) - Many companies are instituting new policies for hiring outside counsel - policies that are making some general counsel squirm and some law firm lawyers shudder. Under pressure to control expenditures for legal services, general counsel are increasingly called upon to explain their outside counsel hiring practices and the resulting costs to their clients. More important, while in the past the details of hiring decisions may have been left up to general counsel and their law departments, now many corporate employers are getting involved. Some corporations are implementing policies that mandate that their procurement or purchasing departments become involved in every decision to outsource services - including legal work - says Ron Friedmann, president of Prism Legal Consultants Inc. Some outside counsel say that this increased involvement by purchasing and procurement departments has resulted in a “commoditization” of legal services - corporate clients purchasing legal services much like commodities. “There’s a movement right now, across the board, to pay the lowest price you possibly can,” says Ed Hansen, a partner in the global outsourcing and technology practice at Morgan, Lewis & Bockius. “On the surface, it seems like a good idea, but companies aren’t able to differentiate what’s a commodity and what’s not. You can’t buy outsourcing services like you buy pencils.” “Unlike other portions of the company that can be easily measured and quantified, it’s very difficult to quantify legal services,” says Susan Hackett, general counsel of the Association of Corporate Counsel. Legal services have value beyond the billed hourly rate, although that value is tough to measure. “How do you measure the troubles the company didn’t experience?” says Hackett. “How do you prove the value of, ‘We didn’t have an SEC investigation this year’?” Procurement or purchasing employees who are not part of the legal department may find it difficult to appreciate or even understand those values. They may also find it hard to differentiate between a straightforward legal task that could be performed by most corporate lawyers and one that requires involvement by a trusted legal adviser who may be familiar with the company’s legal needs or who has particular expertise. [Editor: Other businesses have experienced this attempt to “commoditize” professional service offerings (e.g., oil exploration activities, with which I have some experience); they’ve learned to apply knowledge-management techniques to more-mundane activities (lowering costs, and prices), and differentiating the higher-margin, higher-skill services which then can be the focus of marketing activities.]

A QUARTER OF THE NATION’S TOP LAW FIRMS HAVE BLOGS (ABA Journal, 1 April 2008) - More than 25 percent of the top 200 law firms have blogs, and the numbers are increasing. A study reported by Kevin O’Keefe’s Real Lawyers Have Blogs says 53 of the top firms have blogs, and 10 percent have more than one blog. In all, the top firms publish 110 blogs. The number of top law firms that have blogs increased by 36 percent in just six months’ time, while the number of blogs published by the firms increased by 49 percent.

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REPORTS OF SUPREME COURT FANTASY BASEBALL CASE ARE WILDLY EXAGGERATED (ABA Journal, 2 April 2008) - A blogger created quite a stir yesterday when he reported that the U.S. Supreme Court had agreed to decide whether fantasy sports players had a First Amendment right to use statistics provided by Major League Baseball. Eric Turkewitz of the New York Personal Injury Law Blog wrote that five justices participate in a fantasy baseball league, but only three decided that their participation required their recusal. According to Turkewitz, those who recused were Justices John Paul Stevens, Samuel A. Alito Jr. and Stephen G. Breyer. But Justices Antonin Scalia and Ruth Bader Ginsburg declined to disqualify themselves. Other blogs noted the news, including the San Diego Tribune’s America’s Finest Blog, Above the Law and the Volokh Conspiracy. Funny, but SCOTUSblog didn’t note the cert grant. Some commenters pointed out that Turkewitz’s blog post also contained the news that Siddhartha Finch was trying to get back in baseball even though he is now over the age of 50. The story of Finch, who learned to pitch a 168 mile-an-hour fastball from a Tibetan master, was originally published in Sports Illustrated in 1985 and was part of an April Fool’s Day hoax. So too, was Turkewitz’s story, a fact later noted on America’s Finest Blog. Although the MLB dispute is a real case, and a petition for certiorari has been filed with the U.S. Supreme Court, there was no cert grant and no Supreme Court recusals. In an interview with, Turkewitz said David Lat of Above the Law was in on the joke, placing the link to Turkewitz’s website above a New York Times story in his morning roundup. And he notes that the Volokh Conspiracy, written by UCLA law professor Eugene Volokh, highlighted one of his clues: a reference to the supposed name of the Supreme Court fantasy team, Articles for Deletion, or AFD (also the initials of April Fool’s Day). “I don’t know if Volokh knew if it was a joke when he posted,” says Turkewitz. “I’d like to think that he was taken, but he’s a smart guy.” [Editor: this illustrates a foundational issue with blogs, vs. traditional reputation-based news media - specifically, reputation. Blog postings in particular need to be viewed provisionally, especially on April 1.]

SECOND LIFE: TAMED FOR CORPORATE CONSUMPTION (New York Times, 2 April 2008) - I.B.M. and Linden Lab, the creator of Second Life, are placing a stake in the ground today for corporate virtual worlds. The two companies have started a joint project to run Second Life technology behind corporate firewalls. The goal, they say, is to offer companies “secure, flexible and customizable” 3-D virtual environments that are designed and controlled by corporations. The initial effort is a demonstration project, running Second Life technology on I.B.M. servers, behind a Big Blue firewall. But the companies plan to introduce a corporate offering before the end of this year, either as a product or as a service, presumably hosted by I.B.M. “This is something people have been clamoring for in Second Life,” said Ginsu Yoon, vice president of business affairs for Linden Lab. Second Life has plenty of corporate users already, more than 100, says Mr. Yoon, running the gamut from Ben & Jerry’s to Toyota. Many companies have virtual storefronts for marketing their products to the presumably hip, younger consumers who frequent Second Life. Others, like I.B.M. and Intel, have used Second Life for meetings, product development and designing simulated services. But Second Life is a freewheeling virtual world, open the to public including anonymous pranksters and hackers. It is loosely governed and managed by Linden Lab. And that has made many companies reluctant to let their employees venture into virtual worlds, which management experts hail as an innovative tool for richer and more nuanced communication and collaboration among workers, industry partners and customers. “We talk to customers all the time who want to use this technology in their companies, but they worry about keeping the conversations and information secure,” said Neil Katz, chief technology officer of I.B.M.’s digital convergence unit.

WEBSITES WIN RIGHT TO SHOW GAMES CLIPS (Australian IT, 2 April 2008) - Internet sites in Australia will be allowed to show short video clips of Olympic events for the first time during the Beijing Games, following a historic agreement announced yesterday between the Seven Network and the International Olympic Committee. Internet sites in Australia will be allowed to show short video clips of Olympic events for the first time during the Beijing Games. Because of the aggressive nature of the domestic media industry, Australia is the first country in which an Olympic internet deal has been brokered for non-rights holders. It is also believed to be a first for a major world sporting event. Under the agreement, which has been a long time in the making, non-official sites will be allowed to show three minutes of Olympic events a day. But they will have to “geoblock” their websites so they cannot be seen by internet users outside Australia.,24897,23471129-15318,00.html

ZILLOW LAUNCHES ‘MORTGAGE MARKETPLACE’ (CNET, 2 April 2008) - Real estate site Zillow is set to launch on Thursday a service that will let borrowers get quotes anonymously and lenders get leads for free. People applying for home loans online now have to supply personal information to get quotes. Their information is often sold to other marketers, their credit rating can get harmed from so many credit checks, and the rates are usually higher than initially advertised. Zillow’s Mortgage Marketplace aims to solve those problems. Borrowers fill out detailed loan request forms but do not provide any personally identifiable information. When customized quotes are available, the borrowers get e-mail alerts and can choose which quote and lender they want. Zillow vets the lenders so only reputable ones can offer quotes and any lender can view competing quotes, but only lenders that have registered on Zillow can submit quotes. The quotes must use a standardized form that discloses all fees and Zillow estimates the taxes, insurance, and monthly payments, making comparison shopping easier. There also is a rating system for borrowers to provide feedback on specific lenders. Zillow’s marketplace lets the borrowers and lenders find each other, but does not participate beyond that in the transaction.

CENTERS TAP INTO PERSONAL DATABASES (Washington Post, 2 April 2008) - Intelligence centers run by states across the country have access to personal information about millions of Americans, including unlisted cellphone numbers, insurance claims, driver’s license photographs and credit reports, according to a document obtained by The Washington Post. One center also has access to top-secret data systems at the CIA, the document shows, though it’s not clear what information those systems contain. Dozens of the organizations known as fusion centers were created after the Sept. 11, 2001, terrorist attacks to identify potential threats and improve the way information is shared. The centers use law enforcement analysts and sophisticated computer systems to compile, or fuse, disparate tips and clues and pass along the refined information to other agencies. They are expected to play important roles in national information-sharing networks that link local, state and federal authorities and enable them to automatically sift their storehouses of records for patterns and clues. Though officials have publicly discussed the fusion centers’ importance to national security, they have generally declined to elaborate on the centers’ activities. But a document that lists resources used by the fusion centers shows how a dozen of the organizations in the northeastern United States rely far more on access to commercial and government databases than had previously been disclosed.

AVATARS ATTEND HOUSE HEARING ON VIRTUAL WORLD (CNET, 2 April 2008) - Second Life founder Philip Rosedale and a handful of other virtual-reality experts, testified Tuesday at a House of Representatives hearing that was also attended by online personas, or avatars, portrayed on a video screen in the hearing room. “It is likely that virtual world activities are somewhat more policeable and the law somewhat more maintainable within virtual worlds,” said Rosedale, chief executive of Linden Lab, the company that runs Second Life. Some lawmakers raised questions about what operators of virtual worlds are doing to stop them being used to stage real-world crimes such as terrorism, money-laundering, and the exploitation of children.

COURT RULES STATE PUBLICITY CLAIM NOT OVERRULED BY CDA SECTION 230 (BNA’s Internet Law News, 3 April 2008) - BNA’s Electronic Commerce & Law Report reports that a federal district court in New Hampshire has rules that a state-law right of publicity claim against a Web service, arising from material posted by a third-party user, is not subject to dismissal under Section 230 of the Communications Decency Act. The court rejected the Ninth Circuit’s reasoning in Perfect 10 Inc. v. CC Bill to hold that the plaintiff’s right of publicity under state law is an intellectual property right excluded from CDA immunity. Case name is Doe v. Friendfinder Network Inc.

ROOMMATES.COM DENIED 230 IMMUNITY BY NINTH CIRCUIT EN BANC (Eric Goldman blog, 3 April 2008) - The Ninth Circuit has issued its en banc ruling in the Fair Housing Councils v. case upholding the prior ruling of the three judge panel. The opinion concludes that does not qualify for 47 USC 230 immunization for some of its activities and sends the case back to the trial court for further litigation on other substantive questions, such as whether’s behavior actually violated the Fair Housing Act. The en banc panel voted 8-3 to reverse the district court. Judge Kozinski wrote the majority opinion, which was not surprising given that Kozinski had also written the lead opinion in the three-judge panel ruling. Judge McKoewn wrote the concurring/dissenting opinion. Substantively, Kozinski says that does not qualify for 230 immunization for (1) the questions it poses to users (such as asking racial preferences), (2) users’ profile answers made using pull-down menus (at least to the extent that the site required answers before the user could proceed), and (3) its search system and personalized email system that display profile results (and, by implication, suppressed other results) based on impermissible criteria. However, 230 immunized’s unstructured “Additional Comments” data field, even if impermissible sentiments were expressed in it. Like his last opinion, Kozinski’s opinion repeatedly indicates that unstructured searches pose fewer problems for 230 than structured ones. Specifically, the majority opinion repeatedly says that “neutral tools” (a term used 5 times but never defined) fully qualify for 230 protection, even if these search tools are misused for impermissible searches. Thus, the opinion explicitly says that general purpose search engines like Google can qualify for 230 even if someone uses it to engage in searches that violate the Fair Housing Act. [Other analysis by Eric, and comment-posters, are worth reading.] New York Times article at

JUDGES TAKE OPPOSITE SIDES ON LEGALITY OF UPLOADING MUSIC FILES TO SHARE (, 4 April 2008) - Leaving a copyrighted song where others can get at it with peer-to-peer software doesn’t constitute a copyright violation until someone downloads it, a federal judge said in a record industry lawsuit against college students. The Boston judge’s comments in a Monday pretrial ruling conflict with statements, also made Monday, by a New York federal judge that leaving a copyrighted file accessible could be illegal, even if nobody downloads it. At issue in both cases is whether people who initially download or own copyrighted music are legally liable if they leave music files accessible to be shared by others. Peer-to-peer sharing services allow computer users to make files on their PCs available to a multitude of other users. “Both of these rulings are important because it is the first time judges have thoroughly analyzed these questions,” said Fred von Lohmann, a staff attorney with the Electronic Frontier Foundation, a San Francisco-based nonprofit and online free-speech advocate that filed briefs as an interested party in both cases. Neither judge questioned that copy infringement occurs when people using peer-to-peer software search the Internet for a particular piece of music and then download it without authorization. However, Judge Nancy Gertner of Boston found that “merely exposing music files to the Internet is not copyright infringement.” The student-defendants could claim “they did not know that logging onto the peer-to-peer network would allow others to access these particular files,” Gertner wrote. But Judge Kenneth Karras in New York, ruling in a case against a single computer user, said just placing a copyrighted music file in a computer folder shared by peer-to-peer software users could amount to illegal publication of it.

EVERY CLICK YOU MAKE (Washington Post, 4 April 2008) - The online behavior of a small but growing number of computer users in the United States is monitored by their Internet service providers, who have access to every click and keystroke that comes down the line. The companies harvest the stream of data for clues to a person’s interests, making money from advertisers who use the information to target their online pitches. The practice represents a significant expansion in the ability to track a household’s Web use because it taps into Internet connections, and critics liken it to a phone company listening in on conversations. But the companies involved say customers’ privacy is protected because no personally identifying details are released. The extent of the practice is difficult to gauge because some service providers involved have declined to discuss their practices. Many Web surfers, moreover, probably have little idea they are being monitored. But at least 100,000 U.S. customers are tracked this way, and service providers have been testing it with as many as 10 percent of U.S. customers, according to tech companies involved in the data collection. Although common tracking systems, known as cookies, have counted a consumer’s visits to a network of sites, the new monitoring, known as “deep-packet inspection,” enables a far wider view - every Web page visited, every e-mail sent and every search entered. Every bit of data is divided into packets - like electronic envelopes - that the system can access and analyze for content. [Editor: has an interesting article on the implications of such ISP-snooping for lawyers:]

TOLL ROAD CAMERAS LOOKING BEYOND SCOFFLAW DRIVERS (Houston Chronicle, 4 April 2008) - Harris County Toll Road Authority cameras are now on the lookout for more than just those drivers who blow through EZ Tag lanes without paying. County authorities promise new, upgraded cameras can help catch murderers and other violent criminals. The cameras have the capability to search their databases and issue alerts to county dispatchers when a wanted criminal crosses their lenses. Eleven cameras already are in place and another 24 will be installed by the end of the month. The toll road authority plans to install cameras throughout the toll system by the end of the year. Five similar cameras are mounted on deputy constables’ patrol cars. The license plate recognition cameras are perched on toll booth canopies. As a car passes, the cameras focus on its plates. That information is then checked against a database of chronic toll road violators, as well as more serious criminals. License plates of automobiles involved in child abductions or other missing persons’ cases also are on record. If the system detects a match, a county dispatcher will be alerted and notify the nearest law enforcement officer. The system had been tested at one site on Texas 249 for about three years. Red-light cameras installed at 50 Houston intersections will not be used in the same way as the tollway authority’s cameras. “Red-light cameras are strictly used for traffic enforcement,” the HPD spokesman said. “That’s not what they were designed to do.”

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RED LIGHT CAMERAS TOO GOOD FOR THEIR OWN GOOD? (MSNBC, 21 March 2008) - Last week, Dallas officials reviewed the numbers and decided that a quarter of the cameras they had installed to catch motorists running red lights were too effective. So they shut them down. They are not alone. Faced with data showing that drivers pay attention to cameras at intersections — resulting in fewer ticketable violations and ever-shrinking revenue from fines — municipalities across the country are reconsidering red light cameras, which often work too well.

ADOBE MODIFIES PHOTOSHOP EXPRESS TERMS OF USE (Macworld, 4 April 2008) - After unveiling Photoshop Express, giving the vast online user base a place to start using Adobe products, the company found itself embroiled in a bit of a controversy over the terms of use for the service. At the center of the controversy was the terms of use said that by uploading images to publicly accessible areas of the service, you “grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.” According to Adobe, in the new terms of use the company has retained only those limited rights that allow them to operate the service. If a user decides to terminate their Photoshop Express account, Adobe’s rights also will be terminated. Adobe said they don’t claim ownership of the content and won’t sell the images. [Editor: Adobe says they’ll change these terms; aren’t you glad somebody bothers to read such?]

LAWSUIT CLAIM: STUDENTS’ LECTURE NOTES INFRINGE ON PROFESSOR’S COPYRIGHT (Wired Blog, 4 April 2008) - University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he’s headed to court to prove it. Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor’s copyright. Faulkner Press filed suit in a Florida court Tuesday against the owner of Einstein’s Notes, which sells “study kits” for classes, including Professor Michael Moulton’s course on “Wildlife Issues in the New Millennium.” Those notes are illegal, Faulkner and Moulton contend, since they are derivative works of the professor’s copyrighted lectures. If successful, the suit could put an end to a lucrative, but ethically murky businesses that have grown up around large universities to profit from students who don’t always want to go to the classes they are paying for. Complaint here:

BEWARE THE NEW NEW THING (New York Times Op-Ed, 5 April 2008) - Recently, the House Judiciary Committee’s antitrust task force invited me to be the lead witness for its hearing on “net neutrality.” I’ve collaborated with the Future of Music Coalition, and my band, OK Go, has been among the first to find real success on the Internet — our songs and videos have been streamed and downloaded hundreds of millions of times (orders of magnitude above our CD sales) — so the committee thought I’d make a decent spokesman for up-and-coming musicians in this new era of digital pandemonium. I’m flattered, of course, but it makes you wonder if Nancy Pelosi and John Boehner sit around arguing who was listening to Vampire Weekend first. If you haven’t been following the debate on net neutrality, you’re not alone. The details of the issue can lead into realms where only tech geeks and policy wonks dare to tread, but at root there’s a pretty simple question: How much control should network operators be allowed to have over the information on their lines? Most people assume that the Internet is a democratic free-for-all by nature — that it could be no other way. But the openness of the Internet as we know it is a byproduct of the fact that the network was started on phone lines. The phone system is subject to “common carriage” laws, which require phone companies to treat all calls and customers equally. They can’t offer tiered service in which higher-paying customers get their calls through faster or clearer, or calls originating on a competitor’s network are blocked or slowed. These laws have been on the books for about as long as telephones have been ringing, and were meant to keep Bell from using its elephantine market share to squash everyone else. And because of common carriage, digital data running over the phone lines has essentially been off limits to the people who laid the lines. But in the last decade, the network providers have argued that since the Internet is no longer primarily run on phone lines, the laws of data equality no longer apply. They reason that they own the fiber optic and coaxial lines, so they should be able to do whatever they want with the information crossing them. Under current law, they’re right. They can block certain files or Web sites for their subscribers, or slow or obstruct certain applications. And they do, albeit pretty rarely. Network providers have censored anti-Bush comments from an online Pearl Jam concert, refused to allow a text-messaging program from the pro-choice group Naral (saying it was “unsavory”), blocked access to the Internet phone service (and direct competitor) Vonage and selectively throttled online traffic that was using the BitTorrent protocol. When the network operators pull these stunts, there is generally widespread outrage. But outright censorship and obstruction of access are only one part of the issue, and they represent the lesser threat, in the long run. What we should worry about more is not what’s kept from us today, but what will be built (or not built) in the years to come. We hate when things are taken from us (so we rage at censorship), but we also love to get new things. And the providers are chomping at the bit to offer them to us: new high-bandwidth treats like superfast high-definition video and quick movie downloads. They can make it sound great: newer, bigger, faster, better! But the new fast lanes they propose will be theirs to control and exploit and sell access to, without the level playing field that common carriage built into today’s network. They won’t be blocking anything per se — we’ll never know what we’re not getting — they’ll just be leapfrogging today’s technology with a new, higher-bandwidth network where they get to be the gatekeepers and toll collectors. The superlative new video on offer will be available from (surprise, surprise) them, or companies who’ve paid them for the privilege of access to their customers. If this model sounds familiar, that’s because it is. It’s how cable TV operates. We can’t allow a system of gatekeepers to get built into the network. The Internet shouldn’t be harnessed for the profit of a few, rather than the good of the many; value should come from the quality of information, not the control of access to it. For some parallel examples: there are only two guitar companies who make most of the guitars sold in America, but they don’t control what we play on those guitars. Whether we use a Mac or a PC doesn’t govern what we can make with our computers. The telephone company doesn’t get to decide what we discuss over our phone lines. It would be absurd to let the handful of companies who connect us to the Internet determine what we can do online. Congress needs to establish basic ground rules for an open Internet, just as common carriage laws did for the phone system. The Internet, for now, is the type of place where my band’s homemade videos find a wider audience than the industry’s million-dollar productions. A good idea is still more important than deep pockets. If network providers are allowed to build the next generation of the Net as a pay-to-play system, we will all pay the price. [Editor: Sorry this is so long, but much of it is spot-on and I couldn’t figure what to cut.]

E-MAILS SUFFICIENT TO MODIFY CONTRACT, N.Y. APPELLATE PANEL SAYS (, 7 April 2008) - A series of e-mails were signed writings that could be used to modify an employment agreement, a New York appellate court ruled Tuesday. The e-mails fell under the Statute of Frauds because the name at the end of each message signaled the author’s “intent to authenticate” its contents, the Appellate Division, 1st Department, unanimously held in the unsigned opinion, Stevens v. Publicis, S.A., 602716/03. In March 2001, following the removal of Arthur H. Stevens from his post as CEO of Publicis-Dialog, New York, Stevens exchanged a series of e-mails with Bob Bloom, former chairman of Publicis USA. Bloom suggested that Stevens could remain at the company if he spent 70 percent of his time developing business and the remainder cultivating former clients and managing operations. The appellate panel upheld Manhattan Justice Richard B. Lowe III’s ruling that this proposal and Mr. Steven’s acceptance fulfilled a clause that obligated all parties to sign a modification of the employment agreement. In a statement, Peter Raymond, a partner at Reed Smith, who represented Publicis USA, said the decision means that standard contract clauses requiring that amendments be in writing will need to specify that e-mails with a typed name and/or signature block do not amount to a signed writing if that is the framers’ wish.

HIGH-TECH CRIME IS AN ONLINE BUBBLE THAT HASN’T BURST (New York Times, 7 April 2008) - There are no storefronts or corporate headquarters in the cybercrime industry, just savvy sellers in a murky, borderless economy who are moving merchandise by shilling credit card numbers — “two for the price of one.” “Sell fresh CC,” promised one who offered teaser credit card numbers. “Visa, MasterCard, Amex. Good Prices. Many countries.” Electronic crime is maturing, according to security experts, and with its evolution, criminals are adopting conventional approaches like supermarket-style pricing and outsourcing to specialists who might act as portfolio managers or computer technicians. “It’s a remarkable development of a whole alternative business environment that’s occurred over the last couple years,” said Richard Archdeacon, a senior director of global services for Symantec, an Internet security company with 11 research centers around the world. “What’s been so astonishing is the speed with which it’s developed.” In the United States alone, victims reported losses of $239 million to online fraud in 2007, with average losses running about $2,530. The complaints are recorded by a special Web-based hotline operated by the F.B.I. and the National White Collar Crime Center, a nonprofit corporation focusing on electronic crime. The most common frauds were fake e-mail messages and phony Web pages, and the crimes were organized from the United States, Britain, Nigeria, Canada, Romania and Italy, according to an F.B.I. report issued last month.

EU WANTS TO SLASH SEARCH DATA RETENTION PERIOD TO SIX MONTHS (Ars Technica, 7 April 2008) - The Article 29 Working Group, a collection of the EU’s top minds on data protection and privacy issues, has issued a major report (PDF) of its findings, and it won’t be good news to the search engine community. The EU started with the premise of a “right to a private life” and allowed only limited data collection exceptions to that right. Search engines can only hang on to European user data for six months, must generally treat IP addresses as “personal information,” and must comply with the rules even if they are based outside the EU. The retention period will prove one of the most controversial proposals. Google and other search engines have scaled back their retention periods over the last year, with Google keeping data for 18 months before anonymizing it. But, according to the Article 29 group, that won’t cut it. “Retention periods should be minimised and be proportionate to each purpose put forward by search engine providers,” says the report. “In view of the initial explanations given by search engine providers on the possible purposes for collecting personal data, the Working Party does not see a basis for a retention period beyond six months.” Working Group’s report here:

N.Y. LAW FIRM BANS BLACKBERRYS AT MAJOR MEETINGS (ABA Journal, 7 April 2008) - A law firm in suburban New York City has banned electronic devices from major meetings to prevent distractions caused by cell phones and BlackBerrys. The six-month-old “no-device policy” at the Long Island law firm of Meltzer, Lippe, Goldstein & Breitstone is intended to prevent even vibrations from incoming calls and e-mail messages from interrupting the flow of business, reports Newsday. At routine meetings, new guidelines allow participants to bring electronic devices but require them to step out into the hall when an essential call or e-mail demands an immediate response. [Editor: the blog-comments posted in reaction to this story are interesting.]

11TH CIRCUIT FREAKS OUT ABOUT METATAGS-NORTH AMERICAN MEDICAL V. AXIOM (Eric Goldman blog, 8 April 2008) - North American Medical Corp. v. Axiom Worldwide, Inc., 2008 WL 918411 (11th Cir. April 7, 2008). Oh man, what a bizarre and frustrating ruling from the 11th Circuit on metatags. The parties compete in the “spinal decompression” device market. Defendant Axiom included the plaintiff NAM’s trademarks “Accu-Spina” and “IDD Therapy” in the metatags but did not otherwise use the terms. The district court concluded that this constituted trademark infringement, a determination that the 11th Circuit upholds here.

TWENTY-ONE 9-11 RECORDING FROM NORAD AVAILABLE ONLINE (, 8 April 2008) - This material totals over 100 hours of audio recordings of various NORAD/NORTHCOM communications channels on September 11, 2001 in 21 separate mp3 audio files. These files are compressed into .zip files to facilitate downloading. The .zip files must be uncompressed with Microsoft Windows or an application like WinZIP or Stuffit in order to listen to them.

GOOGLE, U.N. UNVEIL PROJECT TO MAP MOVEMENT OF REFUGEES (, 8 April 2008) - Internet search giant Google Inc. unveiled a new feature Tuesday for its popular mapping programs that shines a spotlight on the movement of refugees around the world. The maps will aid humanitarian operations as well as help inform the public about the millions who have fled their homes because of violence or hardship, according to the office of the U.N. High Commissioner for Refugees, which is working with Google on the project. “All of the things that we do for refugees in the refugee camps around the world will become more visible,” U.N. Deputy High Commissioner for Refugees L. Craig Johnstone said at the launch in Geneva. Users can download Google Earth software to see satellite images of refugee hot spots such as Darfur, Iraq and Colombia. Information provided by the U.N. refugee agency explains where the refugees have come from and what problems they face. Google says more than 350 million people have already downloaded Google Earth. The software was launched three years ago and originally intended for highly realistic video games, but its use by rescuers during Hurricane Katrina led the company to reach out to governments and nonprofit organizations.

HOUSE STAFFERS LIVID OVER WEB SITE (Washington Post, 9 April 2008) - Working from a cramped loft apartment a mile from the Capitol, a small Internet company has sparked a privacy rights battle with hundreds of angry top House staffers upset that the Web site has begun posting details about their personal finances. In an unusual conflict over constitutional rights, the aides argue that the recent disclosures leave them highly vulnerable to identity theft. But the Web site, LegiStorm, contends that it has a First Amendment right to publish already public information about some of the Capitol’s most powerful players - the high-level staffers - and is creating a new check against potential corruption. For several years, LegiStorm has published salary and expenditure reports that are released regularly by the House and Senate. The reports, released quarterly by the House and semiannually by the Senate, provide detailed information on how much each lawmaker spends, along with the names, titles and salaries of every employee. In late February, however, LegiStorm expanded the data it provides by putting the staffers’ personal financial disclosure forms online. Those documents, which must be filed by senior aides, contain explicit detail on aides’ finances - including bank accounts and investment portfolios - as well as some home addresses and signatures.

RECORDING INDUSTRY SUBPOENA QUASHED BASED ON SPECIFICITY, PRIVACY FLAWS (BNA’s Internet Law News, 10 April 2008) - BNA’s Electronic Commerce & Law Report reports that a federal court in Massachusetts has ruled that a subpoena seeking to identify scores of university students allegedly engaged in illegal file sharing cannot proceed absent a showing that its identification of each target was specific and considerate of the privacy rights of potentially innocent parties. Case name is London-Sire Records Inc. v. Doe 1 et al.

MYSPACE MIND-SET FINALLY SHOWS UP AT THE OFFICE (New York Times, 9 April 2008) - As online social networking weaves itself more extensively into the fabric of everyday life, a new class of technology vendors has set out to make the social Web relevant in the workplace, too. These companies, with names like InsideView and Genius, seek to integrate broad Internet searching with social networking and business intelligence software to give workers access to interrelated pools of information. Despite the huge popularity of networks like MySpace and Facebook, they have had a slow start in the business world, where I.T. managers and executives remain leery of them. But that is starting to change as the technology is becoming more integrated into corporate software applications. These days, more companies are starting to appreciate the potential benefits of social networking programs that put workers, clients and others in touch with one another. “In its basic form, companies using social networking are trying to help employees put a face on the other people in the firm,” Mr. Brydon said. Visible Path is a sort of corporate version of LinkedIn, the popular networking tool that maps the connections among people, providing them with a view of who knows whom among their contacts. Visible Path performs a similar function for the corporate world by working with the existing software infrastructure, giving employees in a company a map of their contacts and their contacts’ relationships. Further movement of social networking into business appears inevitable. Oracle, IBM and Microsoft, among others, are increasingly adding social networking features to their corporate software applications. Some businesses have adopted social networking to better identify job candidates, in part by helping them maintain relationships with former employees who could serve as an informal recruiting network. SelectMinds works with a company’s enterprise software to create an electronic water cooler where former employees and managers can keep in touch. “Companies are looking at the knowledge loss and wondering if they can do something to retain it better,” said Mike Gotta, principal analyst with the Burton Group. Social networking is also finding its way into the sales department, as something of an automated prospecting tool. Programs like InsideView’s SalesView help sales teams identify leads and target customers by scouring more than 20,000 information sources, from the most popular social-networking sites to job boards, blogs and news sites. For the past year, Joe Busateri has been looking for a better way to tap into the collective intelligence of his company, MasterCard. Mr. Busateri, a senior business leader in the Global Technology and Operations business unit, has turned to social networking technology to create a system to get employees talking, brainstorming and cooperating across departments. “The goal is to try to stimulate innovation, to share information and collect ideas,” he said. He has established blogs and wikis, including a site called Priceless Ideas, where employees can broadcast their latest inspiration.

WAL-MART VIDEOS COULD BE BOON FOR PLAINTIFFS LAWYERS (ABA Journal, 10 April 2008) - Plaintiffs lawyers are expressing interest in 15,000 videos of Wal-Mart internal meetings being offered by a production company that recorded the company’s events for nearly 30 years. After Wal-Mart abruptly dropped Flagler Productions in 2006, the video company almost collapsed, said co-owner Mary Lyn Villaneuva. Flagler managed to stay afloat after it began to charge researchers $250 an hour to access the videos in its archive, the Associated Press reports. Additional fees are charged for DVD copies of film clips. One lawyer who has an interest in the videos is Brad Seligman, the lead lawyer in a class action suit that contends Wal-Mart discriminated against female employees, the AP story says. “What’s amazing about this is that this company has a video record going back many years showing senior management in at times fairly candid situations,” he said. One video shows Wal-Mart founder Sam Walton telling the board of directors in the 1980s that too few women were in management. Another shows Chief Executive Officer H. Lee Scott Jr. discussing sexual harassment cases in 1999, the Wall Street Journal reports. ABC News has posted the Walton video clip along with one of a Wal-Mart lawyer calling unions “blood-sucking parasites.” The Wall Street Journal’s front-page story, published yesterday, said plaintiffs attorney Diane Breneman hopes to use some Wal-Mart tapes as evidence in her lawsuit filed on behalf of a 12-year-old boy injured by a gasoline can she contends was unsafe. The can exploded when the boy poured gasoline onto wet wood he was trying to light on fire. Breneman has located tapes showing a Wal-Mart manager joking about the same brand of gasoline can and its ability to light wet wood. “I torched it. Boom! Fired right up,” he says. Villaneuva says Wal-Mart has offered to buy the video library for $500,000 but the amount is too low. Company founder Mike Flagler maintains Wal-Mart has no rights to the videos because it did not sign a contract restricting their use. Wal-Mart spokeswoman Daphne Moore said the company is reviewing its legal options. “Needless to say, we did not pay Flagler Productions to tape internal meetings with this aftermarket in mind,” she said.

THE NEW E-SPIONAGE THREAT (Business Week, 10 April 2008) - The e-mail message addressed to a Booz Allen Hamilton executive was mundane—a shopping list sent over by the Pentagon of weaponry India wanted to buy. But the missive turned out to be a brilliant fake. Lurking beneath the description of aircraft, engines, and radar equipment was an insidious piece of computer code known as “Poison Ivy” designed to suck sensitive data out of the $4 billion consulting firm’s computer network. The Pentagon hadn’t sent the e-mail at all. Its origin is unknown, but the message traveled through Korea on its way to Booz Allen. Its authors knew enough about the “sender” and “recipient” to craft a message unlikely to arouse suspicion. Had the Booz Allen executive clicked on the attachment, his every keystroke would have been reported back to a mysterious master at the Internet address, which is registered through an obscure company headquartered on the banks of China’s Yangtze River. The U.S. government, and its sprawl of defense contractors, have been the victims of an unprecedented rash of similar cyber attacks over the last two years, say current and former U.S. government officials. “It’s espionage on a massive scale,” says Paul B. Kurtz, a former high-ranking national security official. Government agencies reported 12,986 cyber security incidents to the U.S. Homeland Security Dept. last fiscal year, triple the number from two years earlier. Incursions on the military’s networks were up 55% last year, says Lieutenant General Charles E. Croom, head of the Pentagon’s Joint Task Force for Global Network Operations. Private targets like Booz Allen are just as vulnerable and pose just as much potential security risk. “They have our information on their networks. They’re building our weapon systems. You wouldn’t want that in enemy hands,” Croom says. Cyber attackers “are not denying, disrupting, or destroying operations—yet. But that doesn’t mean they don’t have the capability.” BusinessWeek has learned the U.S. government has launched a classified operation called Byzantine Foothold to detect, track, and disarm intrusions on the government’s most critical networks. And President George W. Bush on Jan. 8 quietly signed an order known as the Cyber Initiative to overhaul U.S. cyber defenses, at an eventual cost in the tens of billions of dollars, and establishing 12 distinct goals, according to people briefed on its contents. One goal in particular illustrates the urgency and scope of the problem: By June all government agencies must cut the number of communication channels, or ports, through which their networks connect to the Internet from more than 4,000 to fewer than 100. On Apr. 8, Homeland Security Dept. Secretary Michael Chertoff called the President’s order a cyber security “Manhattan Project.”

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LARGER PREY ARE TARGETS OF PHISHING (New York Times, 16 April 2008) - An e-mail scam aimed squarely at the nation’s top executives is raising new alarms about the ease with which people and companies can be deceived by online criminals. Thousands of high-ranking executives across the country have been receiving e-mail messages this week that appear to be official subpoenas from the United States District Court in San Diego. Each message includes the executive’s name, company and phone number, and commands the recipient to appear before a grand jury in a civil case. A link embedded in the message purports to offer a copy of the entire subpoena. But a recipient who tries to view the document unwittingly downloads and installs software that secretly records keystrokes and sends the data to a remote computer over the Internet. Another piece of the software allows the computer to be controlled remotely. According to researchers who have analyzed the downloaded file, less than 40 percent of commercial antivirus programs were able to recognize and intercept the attack. The tactic of aiming at the rich and powerful with an online scam is referred to by computer security experts as whaling. The term is a play on phishing, an approach that usually involves tricking e-mail users — in this case the big fish — into divulging personal information like credit card numbers. Phishing attacks that are directed at a particular person, rather than blasted out to millions, are also known as spear phishing. Security researchers at several firms indicated they believed there had been at least several thousand victims of the attack whose computers had been compromised. “I think that it was well done in terms of something people would feel compelled to respond to,” said Steve Kirsch, the chief executive of Abaca, an antispam company based in San Jose, Calif. Mr. Kirsch himself received a copy of the message and forwarded it to the company lawyer. “It had my name, phone number, company and correct e-mail address on it and looked pretty legitimate,” Mr. Kirsch said. “Even the U.R.L. to find out more looked legitimate at first glance.” The software used in the latest attack tries to communicate with a computer in Singapore. That system was still functioning on Tuesday evening, but security researchers said many Internet service providers had blocked access to it. [Editor: the ABA Journal runs a story suggesting that many of these phishing emails reference O’Melveny & Myers -]

PROFESSORS GONE PAPERLESS (InsideHigherEd, 16 April 2008) - Continuing their campaign to draw attention to the cost of textbooks, the Student Public Interest Research Groups celebrated Tuesday what they’re calling a major milestone — reaching 1,000 professors who’ve signed a statement supporting the use of free, online and open source textbooks. Colleges and individual faculty members continue to experiment with putting course information and material online, and “open textbooks” typically are licensed to allow users to download, share and alter the content as they see fit, so long as their purposes aren’t commercial and they credit the author for the original material. This allows instructors to customize e-textbooks and offer them to students for free online or as low-cost printed versions. By signing the statement, professors promise to include open textbooks in their search for course materials. “As faculty members,” the statement says, “we affirm that it is our prerogative and responsibility to select course materials that are pedagogically most appropriate for our classes. We also affirm that it is consistent with this principle to seek affordable and accessible course materials for our classes whenever possible.”

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PUBLISHERS SUE GEORGIA STATE ON DIGITAL READING MATTER (New York Times, 16 April 2007) - Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees. In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site. The lawsuit, which may be the first of its kind, raises questions about digital rights, which are confronting many media companies, but also about core issues like the future of the business model for academic publishers. The case centers on so-called course packs, compilations of reading materials from various books and journals. The lawsuit contends that in many cases, professors are providing students with multiple chapters of a given work, in violation of the “fair use” provision of copyright law. Over the years, electronic course packs have become increasingly common, supplanting their physical counterparts. They consist of reading material taken from a variety of printed sources, which is then scanned, compiled and posted on a university’s Web site. By some estimates, electronic course packs now constitute half of all syllabus reading at American colleges and universities. Legal precedents exist for cases involving course packs from photocopied material, but experts say the lawsuit against Georgia State is the first to be filed over electronic course packs. In 1991, Basic Books and others won a suit again Kinko’s, which was selling course packs it had photocopied. And in 1992, Princeton University Press and others sued Michigan Document Services, a photocopying service, which was producing course packs for University of Michigan students without permission from the copyright holders. The business was eventually found to be in copyright infringement. “Georgia State’s activity seems identical with Michigan Document Services’ activity,” said Susan P. Crawford, a visiting professor at Yale Law School. But she pointed out that unlike Kinko’s and Michigan Document Services, Georgia State was not making money from the electronic course packs.

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OREGON: PUBLISHING OUR LAWS ONLINE IS A COPYRIGHT VIOLATION (Ars Technica, 16 April 2008) - The State of Oregon takes exception to Web sites that republish the state’s Revised Statutes in full, claiming that the statutes contain copyrighted information in the republication causes the state to lose money it needs to continue putting out the official version of the statutes. Oregon’s Legislative Counsel, Dexter Johnson, has therefore requested that legal information site Justia remove the information or (preferably) take out a paid license from the state. All citizens are legally presumed to know the law, so claiming copyright over it might seem like an odd position for a state to take; wouldn’t massive copying be a goal rather than a problem? But in his letter to Justia, Johnson makes a more nuanced case. While the text of the law is not copyrighted, the “arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents” are under copyright. A quick visit to the Legislative Counsel’s web site shows that Johnson is serious about two things: order forms and copyright. The only items in red on the entire page are a copyright notice that includes “Oregon Laws, the Oregon Revised Statutes, and all specialty publications” and a set of links to order forms for such scintillating works as Landlord and Tenant Laws of Oregon 2008. The state also makes the complete text of its laws available online, and it welcomes sites like Justia to link these up. Republishing them, though, is strongly frowned upon, and Johnson indicates his hope that “it will not be necessary to litigate this matter” (translation: “we are willing to litigate this matter”).

COURT RULES JURISDICTION OVER BLOGGER REQUIRES MORE THAN IN-STATE HARM (BNA’s Internet Law News, 17 April 2008) - BNA’s Electronic Commerce & Law Report reports that a federal court in Florida has ruled that allegedly defamatory comments directed at a Florida corporation do not, absent more, subject an out-of-state blogger to jurisdiction there. The court said that blog posts describing a Florida corporation were not themselves enough to satisfy jurisdictional due process requirements over the author. The blog would have to be specifically targeted to a Florida audience, the court said; an injurious critique of a Florida company met the state’s long-arm requirements, but did not satisfy due process. Case name is Internet Solutions Corp. v. Marshall.

SURVEY: 12% OF U.S., U.K. CONSUMERS ‘BORROW’ FREE WI-FI (ComputerWorld, 17 April 2008) - Although it is illegal in some parts of the world, 12% of U.S. and U.K. respondents to an Accenture Ltd. survey have logged onto someone else’s unsecured Wi-Fi connection. Data that is sent via unsecured wireless routers is unencrypted and could theoretically be read by anyone who had the right network-sniffing tools, but many people have tried logging onto unsecure Wi-Fi. Logging onto open Wi-Fi signals is most popular with 18- to 34-year-olds, Accenture said. Nearly a third of them said they had done so at some point. The practice is apparently more common in the U.S., where one in seven have piggybacked on free Wi-Fi networks, than in the U.K., where Accenture found the move attempted by just one in 11 users. In some parts of the world, Wi-Fi piggybacking is considered to be a form of criminal hacking. In August, police arrested a 39-year-old man for using his laptop to connect to an unsecured Wi-Fi connection as he sat on a garden wall in the London suburb of Chiswick. And in a case that was widely publicized in the U.S., Sam Peterson of Sparta, Mich., was charged after using a cafe’s wireless connection to check his e-mail.

HEY, YOU! PAY ATTENTION! (InsideHigherEd, 18 April 2008) - The students sit in class, tapping away at their laptops as the boring old law professor mechanically plods through his lecture. Except one. Instead of hunching over a portable computer or a notebook, he’s playing solitaire with a deck of cards on his desk. The professor halts his droning. “What are you doing?” he demands. The student shrugs. “My laptop is broken,” he says. It was a sketch, performed at a Yale Law School skit night some time ago, that sent a chill through the professors’ section in the auditorium. Ian Ayres, the William K. Townsend Professor of Law at Yale, remembers it well. Long a critic of giving students free reign to surf the Web during class, he’s tried multiple approaches to discouraging laptop users from distracting themselves with e-mail, games (like solitaire) and gossip. Now his theories are being put to the test. Late last month, as students returned from spring break, the University of Chicago Law School announced that Internet access would be blocked from classrooms. While individual professors at law schools have created policies banning laptops or allowing them only for specific uses — and while some colleges don’t even have classroom Internet access, or mandate classroom-only use without any enforcement — the move by Chicago appears to be the first institution-wide directive of its kind. Already, there’s been an uproar among students and even senior administrators, while some law professors have stepped up to defend the policy.

NO ACCESS TO INTERNET DATA (IT Conversations, presentation by KC Claffy, 21 July 2007) - Interesting discussion about the almost total absence of reliable data about internet traffic types and volumes (because such data are proprietary to network operators, and there is no aggregation process). Such an absence make difficult effective FCC or Commerce Department policy-making; claims of rampant file-sharing similarly are rendered less credible. Rated 1 star. Fifteen minute podcast at; for much deeper information on disaggregated network statistics, there’s a 10-hour podcast lecture series called “The Future of the Internet” by Ramesh Johari at Stanford -

**** BOOK REVIEW ****
ADVISING THE SMALL BUSINESS - FORMS AND ADVICE FOR THE LEGAL PRACTITIONER - by Jean Batman (ABA, 2007) - A guide for general practitioners, small firm attorneys, and young lawyers engaged in providing legal counsel to small, privately-held businesses, with sample documents, checklists, and forms (on included CD-ROM). Includes analysis of how to approach an issue from scratch (e.g., drafting a contract for forming a corporation) and how to clean up an existing situation (e.g., amending agreements and corporate clean-up). Written by the former Chair of the Small Business Committee. Effectively (and succinctly) covers the gamut from corporate formation, to seed, angel, and venturing financing, to employee agreements, and IP protection.

SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School,
2. Edupage,
3. SANS Newsbites,
4. NewsScan and Innovation,
5. BNA’s Internet Law News,
6. Crypto-Gram,
7. McGuire Wood’s Technology & Business Articles of Note,
8. Steptoe & Johnson’s E-Commerce Law Week,
9. Readers’ submissions, and the editor’s discoveries.

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