Saturday, April 03, 2010

MIRLN --- 14 March – 3 April (v13.05)

(supplemented by related Tweets:

·      Thanks for the Headache
·      How College Students Use Wikipedia for Course-Related Research
·      Police Blotter: Bid For Breathalyzer Code Denied
·      11th Circuit Eliminates 4th Amend. In E-mail
·      Social Networking Pitfalls for Judges, Attorneys
·      Wiring Up The Big Brother Machine... And Fighting It
·      DHS To Share Intelligence With Some CIOs
·      NCAA to Release Datasets
·      Verizon Wireless Enters Online Payment Space
·      Confusion Carries the Day in E-Discovery
·      Court’s Google Search Did Not Violate Evidence Rules, 2nd Circuit Says
·      Big Clients Keep Their Head Start
·      Get Your Head in the Cloud
·      Harvard Launches on iTunes U
·      Lawyer Warns of Blogging Burden, Even as Top Law Firms Embrace It
·      FAQ on Washington State’s PCI Law
·      ACTA Draft: No Internet for Copyright Scofflaws
·      FTC Investigates Widespread Data Breaches Over P2P Networks
·      Hollywood Wins Another Lawsuit Against a Search Engine
·      Blocking NLRA Protected Activities In the Workplace Via Email
·      Policy Makers, Businesses Debate Role of Washington in Cloud Computing
·      Top Execs Need to be Involved in Cybersecurity, Study Says
·      Privilege Trumps Company E-Mail Surveillance
·      2nd Circuit Rejects Claim EBay Violated Tiffany’s Trademark


Thanks for the Headache (ABA Journal, 1 March 2010) - Usually they were just trying to help. But when someone—often a client—gives a lawyer privileged information that was stolen from the opposing party in a case, the main thing it does for the lawyer is create a great big ethics headache. Actually, it is fairly common for lawyers to come into possession of an adversary’s privileged information, but most of the time it happens inadvertently. Rule 4.4(b) of the ABA Model Rules of Professional Conduct directs a lawyer who “knows or reasonably should know that the document was inadvertently sent” to “promptly notify the sender.” (The Model Rules are the direct basis for lawyer ethics codes in every state except California.) The Model Rules clearly prohibit a lawyer from initiating the theft of an adversary’s privileged information. But sometimes clients, or others, take matters into their own hands. Technology makes the task even easier. Many people now have the means to access e-mail accounts or documents belonging to others, or to secretly record conversations. And then they deliver the materials to the lawyer, secure in the belief that they have helped the cause or at least enjoyed a small measure of revenge. Whatever the motivation, however, it leaves the lawyer in an ethics quandary. But in deciding on a course of action, a lawyer should address these [five] questions:

How College Students Use Wikipedia for Course-Related Research (First Monday, March 2010) - Findings are reported from student focus groups and a large–scale survey about how and why students (enrolled at six different U.S. colleges) use Wikipedia during the course–related research process. A majority of respondents frequently used Wikipedia for background information, but less often than they used other common resources, such as course readings and Google. Architecture, engineering, and science majors were more likely to use Wikipedia for course–related research than respondents in other majors. The findings suggest Wikipedia is used in combination with other information resources. Wikipedia meets the needs of college students because it offers a mixture of coverage, currency, convenience, and comprehensibility in a world where credibility is less of a given or an expectation from today’s students.

Police Blotter: Bid For Breathalyzer Code Denied (CNET, 15 March 2010) - A Minnesota man convicted of drunk driving did not have the right to inspect the programming of a police breathalyzer, a state appeals court has ruled. The Minnesota Court of Appeals last week rejected Michael Garberg’s claim that he was entitled to obtain the source code to the Intoxilyzer 5000EN. Garberg failed to convince the court that obtaining the source code “may relate to his guilt or innocence,” wrote Judge Heidi Schellhas. As more and more defense attorneys--especially in Minnesota--have questioned the reliability and accuracy of CMI’s code, judges have wrestled with the circumstances under which the source code should be disclosed. CMI has resisted releasing the complete, unredacted original source code in electronic form. In April 2009, the Minnesota Supreme Court ruled that, at least in situations where the source code has been proven to be necessary to evaluate the Intoxilyzer’s results, DUI defendants should be able to have access to it. That ruling said that “an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer.”

11th Circuit Eliminates 4th Amend. In E-mail (SlashDot, 16 March 2010) - “Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.”

Social Networking Pitfalls for Judges, Attorneys (New York Law Journal, 17 March 2010) - Social networking online is a remote sensory experience engaging our minds at many levels, and it will take time for us to adapt to this unprecedented way of communicating with one another. Moreover, it imposes a unique burden on the judicial component of our system. Several recent cases illustrate the pitfalls for judges and lawyers who use social networking. Early in 2009, the Advisory Committee on Judicial Ethics issued opinion No. 08-176 prompted by an inquiry from a judge who received an invitation to join a social networking site. This site was aimed at professional networking that would allow sharing business-related information, contacts and, most notably, the ability to “interact with lawyers and litigants.” The committee recognized a host of potential benefits from membership, such as staying in touch with distant family members, former schoolmates and associates. There was nothing “inherently” wrong with joining, since it was comparable to the type of socializing judges already do in person. They keenly divorced the mode of communication from how it was used. The Rules of Judicial Conduct cautioned against the appearance of impropriety and emphasize the need for promoting public confidence in the integrity of the judiciary and maintaining its dignity. The first tocsin for a judge’s online profile is that it is “public” in nature, and the items posted there can raise issues depending on their content and affiliation. Secondly, the profile can serve as a public Rolodex, listing as “friends” attorneys, litigants, experts, or anyone who might participate in the legal system. And it could invite inquiries from the public or litigants about some matter before the court. Overall, it could potentially convey the wrong impression about the extent of the relationships of those “friends.” The committee’s well-thought-out opinion was not intended to be exhaustive. New issues crop up constantly, which is why they encouraged judges to stay on top of developments in social networking features, such as privacy settings.

Wiring Up The Big Brother Machine... And Fighting It (EFF, 17 March 2010) - Here’s a movie pitch: One lone telecommunications technician, going about his ordinary daily work in San Francisco, begins to realize things aren’t quite what they seem. There’s a “secret room” downstairs, and ordinary employees aren’t allowed to enter it. Coworkers — almost casually! — remark that a government spy agency is involved, that similar facilities are being built across the country, that some of them are stamped with the government’s ominous eye-and-pyramid “Total Information Awareness” logo. Soon, the plot thickens. Mundane technical procedures produce startling revelations. He stumbles on a document that suggests the room contains a supercomputer designed to data-mine phone calls and Internet traffic. And, indeed, he soon realizes that the room is sucking up copies of electronic communications from millions of random Americans. All this in the early 2000s, when “the political atmosphere in the country after 9/11 had a witchhunt feel to it, and even modest criticism of the administration was getting painted as disloyalty or worse.” What happens to our hero when he finally decides to go public? Even though I’d heard Mark Klein’s story before, I’d never considered just how frightening and surreal his experience must have been. His new memoir reads like something out of a kafka-esque sci-fi spy thriller — except that it all really happened right here in the USA, just a few years ago. For instance, when Klein shares his evidence with an eager reporter for the Los Angeles Times, at first he’s told the story will be ground-breaking and “a big front-page spread.” Yet, the story languishes for weeks. Indeed, as ABC’s Nightline revealed much later, both Negroponte and National Security Agency Director Michael Hayden pressured the LA Times to kill the story. And when Klein told his story to CBS’s 60 Minutes, they too eventually killed the story without explanation. [See the “Looking Back” entry below]

DHS To Share Intelligence With Some CIOs (Information Week, 18 March 2010) - Some public- and private-sector CIOs and chief security officers (CSOs) now have access to intelligence about security threats to critical infrastructure from state and local fusion centers through a new Department of Homeland Security (DHS) pilot program. Through the program, underway now, CIOs and CSOs from state and local governments as well as private-sector organizations that partner with the federal government will periodically be allowed to read classified e-mails from fusion centers regarding cyber threats, said Amy Kudwa, a DHS spokeswoman. Fusion centers coordinate counter-terrorist information and data collected by both government agencies and private companies. CIOs and CSOs taking part in the program may also participate in quarterly cybersecurity briefings and discussions via secure video teleconference and/or audio teleconference, and access classified communications channels in the event of a cybersecurity incident, she said. Greg Schaffer, the DHS assistant secretary for Cybersecurity and Communications, first publicly referenced the pilot in his remarks at the RSA Conference in San Francisco earlier this month. The DHS hasn’t decided whether or not the pilot will become an actual program and has set no deadline for making that decision, Kudwa said. The DHS collaborated with the Department of Justice in 2003 to set up fusion centers that coordinate counter-terrorist information and data collected by both government agencies and private companies. According to the DHS, it has invested more than $327 million to fund fusion centers, of which there are now more than 70, between fiscal 2004 and fiscal 2008.

NCAA to Release Datasets (InsideHigherEd, 19 March 2010) - Data on college sports and athletes will be much more accessible than it has been, under an arrangement announced by the National Collegiate Athletic Association and the Inter-university Consortium for Political and Social Research at the University of Michigan. The new Web site will eventually feature longitudinal datasets of team-level graduation rates and Academic Progress Rates, an NCAA-developed score judging teams’ performances in the classroom. In addition, the site will present results from two ongoing NCAA projects, “the Study of College Outcomes and Recent Experiences” (SCORE) and “the Growth, Opportunities, Aspirations and Learning of Students“ (GOALS). Some of these figures are already available from the NCAA but are not readily accessible in an open-source, searchable format. NCAA officials say that “the data-sharing initiative will enhance research directly benefiting student-athletes, colleges and intercollegiate sports, and will broaden the dialogue between NCAA research staff and outside scholars.”

Verizon Wireless Enters Online Payment Space (GigaOM, 22 March 2010) - Verizon Wireless has signed an agreement with online payments company Danal that will enable customers to buy digital goods online and have them billed to their Verizon account using just their mobile phone numbers. This puts the nation’s largest wireless provider in similar company as Apple, Amazon and PayPal’s eBay when it comes to offering a payment platform, but with this strategy Verizon is swinging for the fences. Verizon is smart to create an online payment platform that it can offer its 91.2 million wireless subscribers, but getting people to use it will be a challenge. If Verizon can get people accustomed to putting in their phone numbers instead of credit cards while shopping online, then it could own a critical element in building an application and services platform that spans the wired and wireless world. Much like Apple has such a large stake in the mobile application and commerce space today because it has millions of credit cards in iTunes, Verizon could be expanding its own payments information for a similar goal. Verizon’s billing will work when consumers go to a participating web site and choose something to download. When buying the approved game, music or other content, users click on the BilltoMobile button during checkout and enter their mobile numbers and mobile billing zip codes. Then they get a text message on their mobile phones with a one-time code, and once they enter this code into the online checkout window, they’re done. It’s not clear if Verizon will charge folks for this text. No pre-registration or links to credit cards or bank accounts are required, which is good. Also worth nothing is that there is a $25 spending limit on purchases made via this platform, which means parents could let kids use it and control both the content the kids can download and how much they can spend. In fact, since teens have cell phones and not credit cards, such a service might really take off among the younger set.

Confusion Carries the Day in E-Discovery (, 22 March 2010) - Lawyers and vendors look for ways to create common standards in e-discovery. As the market for electronic discovery software and services continues to grow and mature, making sense of exactly what it is e-discovery vendors are selling is not always easy. “I’ve been hearing from providers for years, ‘look, you don’t understand e-discovery. We’ve got the ultimate solution -- those other guys you’ve talked to don’t know what they’re doing,’” says George Socha, an attorney and e-discovery consultant in St. Paul, Minnesota. “Well, they all can’t be right. But there was and is no way to verify a lot of the claims vendors are making.” Lawyers trying to find out the cost to process electronic records for litigation often run into a confusing array of data and terminology that can obscure the issue. Everyday terms such as cull, image, document, and duplicate take on new meanings in e-discovery projects and legal processes like early case assessment, and production varies depending on the discovery query and the data set. And that’s not even considering the variation in local rules in different jurisdictions. The explosion of digital evidence has been extreme, so that e-discovery firms are wrestling with how to prove their capabilities in processing huge volumes of evidence. “Two or three years ago a big job might involve thirty, maybe fifty gigabytes of evidence,” says Jim McGann, vice president of marketing with Index Engines, a New Jersey-based e-discovery software maker. “Now we have to handle terabytes of data in just days, which is such an extreme increase that you can’t pretend the same old hardware and software will do the job.” E-discovery vendors regularly throw around impressive-sounding numbers about the speeds at which their software tools can index and search data, though these numbers often lack context. In practice, e-discovery processing depends on a number of factors, such as the computing platforms data resides on, the types of media it is stored on, and the types of attachments and associated information included in a data set. Unfortunately, there is no simple way to create a common language. The cost of discovery is unique to each project, depending on the number of custodians, the total volume of data, and the types of data included in the collection. Pricing models for e-discovery providers also run the gamut -- pricing can be per page, per gigabyte, per hour, or per custodian. “It is impossible to pit one application against the next based on marketing claims alone,” says Craig Ball, an e-discovery consultant and special master in Austin, Texas. “Speed does matter, but the software isn’t often the bottleneck. Until there is one set of benchmarking data available for processing and certain hardware standards put in place for measurement of performance, companies can game the metrics like crazy, and it’s all mostly hokum.”

Court’s Google Search Did Not Violate Evidence Rules, 2nd Circuit Says (New York Law Journal, 23 March 2010) - A judge whose chambers surfed the Internet to survey rain hats available to consumers while evaluating the evidence in a case before him did not violate federal rules, an appellate court has found. Southern District of New York Judge Denny Chin’s use of the Web was merely the electronic equivalent of what a judge in an earlier era would have done: gone to a local department store to confirm in person the “common-sense” belief that a variety of yellow rain hats, like that worn by a bank robber, can be purchased, the 2nd U.S. Circuit Court of Appeals ruled Monday in United States v. Bari, 09-1074-cr. As “broadband speeds increase and Internet search engines improve,” judicial use of computers is only likely to increase, the court said. “As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that,” the court held. “More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed.”

Big Clients Keep Their Head Start (NYT, 23 March 2010) - Wall Street hates a level playing field. What it loves is an edge, an inside track, that extra something — especially when it comes to information that moves markets. So it’s not surprising that big banks would go to court to keep ordinary investors from getting their hands on hot stock research. What is a bit surprising is that the court would actually side with the banks. It’s one of those maddening, ‘can’t a little guy catch a break?’ moments. Here’s what happened: A while ago, a group of banks sued a Web site called to prevent the site from publishing news headlines about their stock upgrades and downgrades. Last week, Judge Denise Cote, of the United States District Court in New York, ruled in favor of the banks. The decision could have big implications for who gets Wall Street’s hottest tips, and when. The banks — Barclays, Bank of America and Morgan Stanley — argued that even publishing a headline about an upgrade or downgrade amounted to stealing intellectual property. As such, their paying customers — which means big-money investors — should get to see this sort of research before everyone else. The ruling came as a shock to many on Wall Street. Judge Cote issued an injunction against that will essentially give Wall Street’s big clients a head start each trading day. The site must wait until 10 a.m. to publish news about research that was issued before the 9:30 a.m. opening bell — giving select investors 30 valuable minutes to act before the rest of the investing public. During the day, the site must delay its headlines by a full two hours. (To be clear, published headlines about the research reports, never the entire reports.) [Editor: useful, thorough analysis by Citizen Media Law Project here:]

Get Your Head in the Cloud (ABA Journal, 23 March 2010) - Interest in “cloud computing” is picking up steam among lawyers for several good reasons. Proponents say its advantages center on economy, simplicity and accessibility. Cloud computing—also known as software as a service, or SaaS—is, in essence, a sophisticated form of remote electronic data storage on the Internet. Unlike traditional methods that maintain data on a computer or server at a law office or other place of business, data stored “in the cloud” is kept on large servers located elsewhere and maintained by a vendor. That means the vendor—not the firm—purchases, maintains and updates hardware and software, and the firm generally pays a monthly fee to the vendor for its services. More over, data stored in the cloud can be accessed more easily than information maintained on a local network, as long as there is a handy Internet connection. But some of the advantages of cloud computing also are reasons for lawyers to be cautious about its use. In particular, the fact that client data and work product are stored somewhere outside the direct control of the law firm raises potential ethics concerns about whether the confidentiality and security of the information is adequately protected within the mandates of professional conduct rules for lawyers. Confidentiality issues center on where the data is being stored, how and to where it’s moved, and where it might be moving in the future, says Roland Trope, a partner at Trope and Schramm in New York City who is writing a book on cloud computing. [Editor: more, useful discussion follows – e.g., of Model Rule 1.6]

Harvard Launches on iTunes U (Harvard Gazette, 23 March 2010) - Harvard University today launched its own content on iTunes U, a dedicated area within iTunes that allows students, faculty, alumni, and visitors to tap into the University’s wealth of public lectures and educational materials on video and audio. The University’s content features the sights and sounds of Harvard, including educational material such as Professor Michael Sandel’s renowned “Justice” course, which is an introduction to moral and political philosophy, and is one of the most popular courses at Harvard. Visitors also will be able to learn about the science of the brain’s “black box,” the secrets of aging, and other health-related topics from Harvard Medical School’s “labcasts,” and will have the opportunity to view public lectures by many of the University’s distinguished professors and guests.

Lawyer Warns of Blogging Burden, Even as Top Law Firms Embrace It (ABA Journal, 23 March 2010) - A former law firm blogger has written a cautionary tale for those who would like to follow in his footsteps, even as new data shows nearly half of the large law firms are blogging. Ninety-six of the nation’s top 200 law firms have blogs, a 149 percent increase from August 2007 when only 39 of the top firms had blogs, according to Kevin O’Keefe’s Real Lawyers Have Blogs. These law firms account for 297 blogs, an increase of nearly 300 percent from August 2007, when the top 200 law firms published only 74 blogs, O’Keefe says. The swelling numbers were released at about the same time that a former Jones Day partner warns in an article that blogging demands “Herculean efforts.” Writing in Litigation (PDF), a magazine published by the ABA Section of Litigation, lawyer Mark Herrmann says he figured he had lots of ideas to write about when he launched the Drug and Device Law Blog in October 2006. But after about six weeks, he and a fellow blogger from Dechert had exhausted their initial ideas and themselves. “If you’re thinking of launching a legal blog, have your eyes open,” Herrmann writes. “Once you launch a blog, you will face the relentless, mind-numbing, never-ending task of finding worthwhile material to publish. That burden begins on the day of your first post and ends only the day you call it quits.” Herrmann advises would-be lawyer bloggers to find their niche and find a voice. “Be provocative; be funny; be distinctive,” he writes. “Perhaps most importantly, don’t be staid.” “A blog written by a committee of starched-shirt, bureaucratic lawyers might proclaim: ‘Our firm has the utmost respect for our learned adversaries, whose experience in complex, multi-jurisdictional litigation nearly matches our own.’ We’d write: ‘Those clowns couldn’t spell “FDA” if you spotted ‘em two letters.’ We might not have much institutional gravitas, but we sure as heck have readers.”

FAQ on Washington State’s PCI Law (Information Law Group, 24 March 2010) - On March 22, 2010, Washington state became the third state to incorporate the Payment Card Industry Data Security Standard (“PCI”) into law (the other two are Nevada and Minnesota). The Washington House and Senate have passed HB 1149 by substantial margins, and it has now been signed into law by the governor. HB 1149 amends Washington’s breach notice law (and borrows some of its definitions). Similar to Minnesota’s Plastic Card Security Act, HB 1149 provides issuing banks a legal mechanism to collect the costs to reissue payment cards after a payment card security breach. This blogpost summarizes HB 1149 in “FAQ” format and looks at its potential impact.

ACTA Draft: No Internet for Copyright Scofflaws (Wired, 24 March 2010) - The United States is nudging the international community to develop protocols to suspend the internet connections of customers caught downloading copyrighted works, according to a leaked draft of the Anti-Counterfeiting Trade Agreement. The United States is leading the 2-year-old, once-secret negotiations over the so-called ACTA accord. The Jan. 18 draft, about 56 pages and labeled “confidential,” just surfaced, and follows a string of earlier, less comprehensive leaks. The leak shows that the treaty, if adopted under the U.S. language, would for the first time on a global scale hold internet service providers responsible when customers download infringing material, unless those ISPs take action by “adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights.” The specific ISP policy suggested in a footnote “is providing for the termination in appropriate circumstances of subscriptions and accounts on the service provider’s system or network of repeat infringers.” This so-called “three strikes” or “graduated response” policy, is the holy grail of internet-copyright enforcement, staunchly backed by the Motion Picture Association of America and the Recording Industry Association of America. “This makes it clear that the U.S. has put on the table a mandatory ISP safe-harbor policy,” Michael Geist, an ACTA expert at the University of Ottawa, said in a telephone interview. The leak, courtesy of the French digital rights group La Quadrature du Net, marks the first time the entirety of the ever-changing draft proposal has come to light, and it confirms suspicions that the Obama administration is laundering a U.S. policy change through the treaty negotiations. Under the current U.S. law, the Digital Millennium Copyright Act, internet service providers are responsible for the infringing material hosted on their networks if they fail to remove the content at the rightsholder’s request.

FTC Investigates Widespread Data Breaches Over P2P Networks (Steptoe & Johnson’s E-Commerce Law Week, 25 March 2010) - The Federal Trade Commission has notified nearly 100 companies and other organizations that sensitive personal data about their customers and employees has been made publicly available over peer-to-peer (P2P) file-sharing networks. This discovery of widespread data breaches also led the FTC to launch a non-public investigation and send Civil Investigative Demand letters to several entities, requiring them to respond to extensive inquiries about their data collection, usage and security practices. This investigation underscores the need to enforce strict policies regarding the use of P2P file-sharing software. It also demonstrates once again the FTC’s prominent role as America’s most aggressive data security enforcer.

Hollywood Wins Another Lawsuit Against a Search Engine (LA Times, 29 March 2010) - Chalk up another legal victory for the Motion Picture Assn. of America in its battle against websites that make it easier for people to find and download bootlegged Hollywood movies. Monday, a judge in London’s High Court of Justice ruled that Newzbin -- a site that indexed files posted to Usenet newsgroups -- had violated the studios’ copyrights by helping members who paid a monthly fee stitch together complete movie files from the hundreds of segments posted to Usenet binaries. In fact, the judge’s ruling went to an unusual extent in finding that the defendant not only encouraged users to infringe, but actually authorized the illegal activity and made bootlegs available to its members. And while the court stopped short of banning the technology used by Newzbin, it appears poised to require the company to filter its search results to exclude the studios’ movies. Like the Torrent search sites that the MPAA has sued, Newzbin claimed it was simply doing for Usenet what Google has done for the Web. But it struck some of the most telling blows against that argument itself, submitting evidence that Justice David Kitchin dismissed as fake. Newzbin doesn’t host anything; instead, it creates various indexes to the files stored on Usenet servers. These include indexes devoted to specific categories of material, such as music and movies, and subcategories, such as “cam,” “screener” and “Blu-ray.” For customers who pay a monthly fee (“premium members”), Newzbin’s software will create a downloadable bit of code that can be used to retrieve all the various pieces of a file available on Usenet. [Editor: infringement-by-Usenet has been a troubling potential for nearly 2 decades! Corporations that maintain their own usenet servers long have worried about this.]

Blocking NLRA Protected Activities In the Workplace Via Email (Media Law Prof Blog, 29 March 2010) - A newspaper company creates a workplace communications systems policy that prohibits use of its e-mail for non-job-related or outside solicitations and then disciplines an employee who sends several union-related e-mails to employees. The employer permits other personal uses of its e-mail system. In the last day of then Chairman Battista’s tenure at the National Labor Relations Board, a deeply divided Board ruled the employer has a right to regulate and restrict the use of its property. The dissent, authored by now Chairman Wilma Liebman, compared the majority’s perspective and the agency itself to ‘Rip Van Winkle’ because it overlooked the transforming effect of e-mail on the workplace. The United States Court of Appeals for the District of Columbia Circuit overturned the Board’s decision finding that the Register-Guard unlawfully disciplined a union steward for her e-mails when the newspaper discriminatorily enforced its no-solicitation rule. The article suggests how the NLRB should handle the Register-Guard case upon remand. The Board’s decision on employer e-mail policies affects the parameters of NLRA section 7 rights for all private sector employees, not just those represented by unions. This article assesses the legality of workplace communication systems policies that permit non-business uses of communications systems yet prohibit concerted activity and/or union-related communications. [88 Oregon Law Review 195 (2009); paper online at SSRN]

Policy Makers, Businesses Debate Role of Washington in Cloud Computing (Washington Post, 29 March 2010) - Behind Facebook, Gmail and the Bing search engine is a multibillion-dollar shift in technology that users don’t see and Washington doesn’t quite know how to handle. That trend is called cloud computing: the hosting of data on remote servers that can be tapped from any computer connected to the Web. And the policy implications of cloud computing was the subject of debate last night at a roundtable dinner discussion at the Aspen Institute, hosted by Microsoft. Microsoft has emerged as a proponent of some rules of the road for the largely Wild West that cloud computing companies such as Google, Yahoo and Amazon operate. Yes, that’s right – the company wants more rules. Microsoft has called on Congress to update the Electronic Communications Privacy Act to clearly apply to protections on the Web. And it wants stronger rules against cyber attacks by reforming the Computer Fraud and Abuse Act. Like so many parts of the Web, cloud computing doesn’t fit neatly under regulatory oversight of any one agency. Check out Verizon and AT&T’s call for Congress to rethink the way federal regulators oversee Internet service providers, applications, cloud computing and device makers. Former FCC Chairman Michael Powell wouldn’t offer an opinion on Verizon’s call to restructure Internet oversight. But he said during a visit to The Post Thursday that regulators at the Federal Communications Commission and other agencies are often trying to “fit square pegs into circles” as they apply old rules for phones and other technologies to the fast -moving high-tech and Web industries.

Top Execs Need to be Involved in Cybersecurity, Study Says (ComputerWorld, 31 March 2010) - Organizations with top executives who aren’t involved in cybersecurity decisions face a serious problem -- a major hit to their bottom lines, according to a report released Wednesday. “Many organizations see cybersecurity as solely an IT problem,” said Karen Hughes, director of homeland security standards programs at the American National Standards Institute (ANSI), one of the major sponsors of the new report. “We are directing a wake-up call to executives nationwide. The message is, this is a very serious issue, and it’s costing you a lot of money.” The report, called “The Financial Management of Cyber Risk,” recommends how C-level executives can implement cybersecurity risk management programs at their companies. Part of the goal is to get executives such as chief financial officers directly involved in cybersecurity efforts, said Larry Clinton, president of the Internet Security Alliance (ISA), the other major sponsor of the report. The report cites a cyberpolicy review released by President Barack Obama’s administration last May saying that U.S. businesses lost $1 trillion worth of intellectual property to cyberattacks between 2008 and 2009. That number doesn’t include losses due to theft of personal information and loss of customers, the report said. The total cost of a typical breach of 10,000 personal records held by an organization would be about $2 million, the report said. “We believe if we can educate American organizations about how much they’re actually losing, we can move to the next step, which is solving the problem,” Clinton said. Eighty to 90% of cybersecurity problems can be avoided by a combination of best practices, standards and security technology, but some organizations need to understand the financial problems associated with poor security practices before they will make changes, Clinton said.

Privilege Trumps Company E-Mail Surveillance (, 1 April 2010) - The New Jersey Supreme Court on Tuesday gave workers in New Jersey an assurance of privacy in using workplace computers to talk with their lawyers, ruling a company’s e-mail-monitoring policy yields to the attorney-client privilege. Chief Justice Stuart Rabner, writing for the unanimous court in Stengart v. Loving Care Agency Inc., A-16-09, said a plaintiff in an employment discrimination suit against her employer had a reasonable expectation that e-mails to and from her attorney on her personal Yahoo account would be private, although transmitted via a company-owned laptop. While finding the employer’s policy ambiguous in its reach, Rabner said that “even a more clearly written company manual -- that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system -- would not be enforceable.” The court also found that the company’s lawyers at Sills Cummis & Gross in Newark violated Rule of Professional Conduct 4.4(b) by not immediately returning the e-mails without reading them, but did not do so in bad faith. The Appellate Division reversed the ruling on the privilege issue, saying, “we reject the employer’s claimed right to rummage through and retain the employee’s e-mails to her attorney” because “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation.” Rabner agreed. “The venerable privilege is enshrined in history and practice,” he wrote. “Our system strives to keep private the very type of conversations that took place here in order to foster probing and honest exchanges.” Rabner also cited Formal Opinion 413 of the American Bar Association’s Committee on Ethics and Professional Responsibility, which says “lawyers have a reasonable expectation of privacy when communicating by e-mail maintained by an [online service provider].” The court declined to endorse any policy that would allow companies to bar all use of personal, password-protected e-mail accounts on their computers. “We recognize that a zero-tolerance policy can be unworkable and unwelcome in today’s dynamic and mobile workforce and do not seek to encourage that approach in any way,” Rabner said. A company may monitor an employee’s use of a company-owned computer in order to protect its assets, reputation, and productivity, and could even discipline or fire an employee who was using his or her company computer to engage in lengthy conversations with an attorney, said Rabner. “But employers have no need to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.”

2nd Circuit Rejects Claim EBay Violated Tiffany’s Trademark (New York Law Journal, 2 April 2010) - Rebuffed on its claim that the online auction site eBay had violated its trademark, Tiffany & Co. said Thursday it was considering taking its case to the U.S. Supreme Court. The 2nd U.S. Circuit Court of Appeals affirmed in Tiffany Inc. v. eBay Inc., 08-3947-cv, a lower court ruling finding that eBay could not be sued for trademark infringement for including on its Web site knockoffs of Tiffany’s luxury jewelry as long as eBay takes steps to remove them and is not willfully blind to their presence. Second Circuit Judge Robert Sack, writing for a unanimous three-judge panel in a closely-watched case, said that the record suggests that “private market forces give eBay and those operating similar businesses a strong incentive to minimize the counterfeit goods on its Web site.” Tiffany was not appeased by the circuit’s decision to remand to Southern District Judge Richard Sullivan for reconsideration a separate claim for false advertising. The litigation stemmed from widespread sales of counterfeit Tiffany goods through eBay, which earned over $4 million between 2000 and 2004 from completed transactions on Tiffany items it had listed. Tiffany sued in 2004, claiming that the sale of knockoffs constituted direct and contributory trademark infringement, trademark dilution and false advertising. Sullivan dismissed the case in July 2008, following a bench trial. He summarily rejected Tiffany’s claim of direct trademark infringement, calling the use of the Tiffany name in online ads to drive sales a “protected, nominative fair use of the marks.” He also credited eBay’s efforts to combat fraud, including spending up to $20 million annually to reimburse buyers who were duped into buying fakes, adding a “fraud engine” that ferreted out suspicious listings and suspending sellers from listing items. And, the lower court concluded, there was no contributory infringement either.

**** RESOURCES ****
“Communications and the Internet: Facebook, E-Mail, and Beyond.” (Prof. David Hricik) - Ethical issues arise with the use of communicating over the Internet, whether by e-mail, social networking sites, or linking and commenting through static web pages. This article addresses all these issues. SSRN:

Copyright for Librarians (Berkman Center, 24 March 2010) - Copyright for Librarians is a joint project of the Berkman Center for Internet & Society and Electronic Information for Libraries (eIFL), a consortium of libraries from 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
·      copyright law in general
·      the aspects of copyright law that most affect libraries
·      how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.
The course materials can be used in three different ways. First, they can provide the basis for a self-taught course. A librarian can read the modules in sequence or focus on the modules that address issues that interest him or her. Second, the course materials can be used in a traditional classroom-based course. In such a setting, the instructor will determine the pace at which the materials are read and will select topics for discussion. The instructor may find useful the Assignments we have included in the modules, but will likely pose additional questions as well. Third and finally, the materials can be used in a distance-learning course. An instructor will guide the inquiry, but the librarians taking the course will participate remotely through their computers. To assist the instructors in such settings, we have included a discussion tool, originally developed at the Berkman Center, known as the Rotisserie. A manual explaining to instructors how they might use the Rotisserie is available here. Instructions explaining to students how to sign up for and use the Rotisserie are available here. This system can be used to facilitate conversations among the students concerning the Assignments we have included in each module. Alternatively, an instructor could identify different questions for discussion.

**** DIFFERENT ****
A Father-Daughter Bond, Page by Page (New York Times, 21 March 2010) – When Jim Brozina’s older daughter, Kathy, was in fourth grade, he was reading Beverly Cleary’s “Dear Mr. Henshaw” to her at bedtime, when she announced she’d had enough. “She said, ‘Dad, that’s it, I’ll take over from here,’ “ Mr. Brozina recalled. “I was, ‘Oh no.’ I didn’t want to stop. We really never got back to reading together after that.” Mr. Brozina, a single father and an elementary school librarian who reads aloud for a living, did not want the same thing to happen with his younger daughter, Kristen. So when she hit fourth grade, he proposed The Streak: to see if they could read together for 100 straight bedtimes without missing once. They were both big fans of L. Frank Baum’s Oz books, and on Nov. 11, 1997, started The Streak with “The Tin Woodman of Oz.” When The Streak reached 100, they celebrated with a pancake breakfast, and Kristen whispered, “I think we should try for 1,000 nights.” Mr. Brozina was delighted, but what he was thinking was, a thousand nights?! “I thought, we’ll never do it,” he recalled. “And then we got to 1,000, and we said, ‘How can we stop?’ “ For 3,218 nights (and some mornings, if Mr. Brozina was coming home too late to read), The Streak went on.

NSA DENIES BEING INFO VACUUM CLEANER The head of the National Security Agency (NSA), the secretive agency that has been accused by some civil liberties groups and some foreign countries of using a satellite communications system code-named “Echelon” to spy on huge numbers of private phone calls, e-mail messages, and faxes, says that all such accusations are unfounded. In an appearance before a House subcommittee NSA director Lt. Gen. Michael Hayden testified: “There is a rich body of oversight that ensures that we stay within the law. Can you imagine the capacity that would be required if we in any way approached the allegations we’re sweeping up everything in the universe? This ability to vacuum up -- that’s badly misstated in the popular press. We don’t have that capability and we don’t want that capability. For both legal and operational reasons there is a requirement that we focus on the highest priority foreign intelligence targets that we have.” (Reuters/San Jose Mercury News 12 Apr 2000)

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

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