Saturday, June 16, 2012

MIRLN --- 27 May - 16 June 2012 (v15.08) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: http://twitter.com/vpolley #mirln)

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NEWS | RESOURCES | LOOKING BACK | NOTES

The Basics of Flash Mob Law (ABA GP/Solo Ereport, 10 May 2012) - Anyone who's spent time on YouTube has seen the videos from flash mobs-people frozen in Grand Central Station , not wearing pants on public transportation , and dancing in unison for no particular reason. For those who have been living under a rock, flash mobs are unexpected group performances that appear to occur spontaneously and disperse shortly after they begin. The purpose is usually to surprise and entertain the unsuspecting audience, although companies are now organizing flash mobs as a way to promote products and events. I participated in my first flash mob when I was a 1L at Arizona State University . The event was the No Pants Light Rail Ride in Phoenix, Arizona in 2009. At that event, I met the people with whom I formed a flash mob troupe called Improv Arizona. We organize several flash mobs every year. Some of our past events include the annual No Pants Light Rail Ride , the award-winning Epic Super Hero Battle , welcoming a stranger at the airport , and fake protests . From the beginning, I was fascinated by flash mob law-all the issues that arise while planning a flash mob, putting on the event, and the legal implications that come into play once the flash mob is over. Flash mob law isn't a separate area of law but a hybrid of criminal, tort, property, intellectual property, First Amendment, and entertainment law. It takes a particular lawyer to practice flash mob law because you have to be open to and generally support your clients' ridiculous ideas, patiently work with them to try to keep their events legal, and be willing to be the killjoy who explains how many ways they could get arrested or sued if they proceed with their plans.

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Governance of Enterprise Security (Carnegie Mellon University CyLab report, 16 May 2012) - It has long been recognized that directors and officers have a fiduciary duty to protect the assets of their organizations. Today, this duty extends to digital assets, and has been expanded by laws and regulations that impose specific privacy and cybersecurity obligations on companies. This is the third biennial survey that Carnegie Mellon CyLab has conducted on how boards of directors and senior management are governing the security of their organizations' information, applications, and networks (digital assets). First conducted in 2008 and carried forward in 2010 and 2012, the surveys are intended to measure the extent to which cyber governance is improving. The 2012 survey is the first global governance survey, comparing responses from industry sectors and geographical regions.

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Florida Jurors Banned From Using Social Media to Discuss Criminal Cases (ABA Journal, 21 May 2012) - The Florida Supreme Court banned jurors from using electronic devices or social media to talk about their cases Thursday. The detailed opinion adopts the work of the court's Committee on Standard Jury Instructions in Criminal Cases, which builds on more broad-ranged 2010 juror instructions prohibiting the use of social media, the Daily Business Review reports. The opinion comes at a time when courts are increasingly aware of the challenges social media and electronic devices present in the courtroom. At least 90 verdicts were subject to challenge from 1999 to 2010 because of internet-related juror misconduct, according to a 2010 Reuters Legal survey, the Daily Business Review reports. "Judges may give a fairly off-the-cuff instruction," said Barry Butin, secretary of the Broward Association of Criminal Defense Lawyers, of the updated set of juror rules. "This looks like a more formalized jury instruction that the committee worked on to get it uniform."

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Lawyers May Look at Sender's Metadata but Can't Use Program to Find Scrubbed Info (Bloomberg BNA, 23 May 2012) - Lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use sophisticated forensic software to extract such metadata from a "scrubbed" document, the Washington bar's ethics committee advised in a recent opinion (Washington State Bar Ass'n Rules of Professional Conduct Comm., Informal Op. 2216 ). The sender has a duty to ensure that confidential information is not transmitted to third parties, and this includes metadata that reflects attorney-client communications and other information protected by the rule on confidentiality, the committee said. The recipient's duty is to notify the sender that the document contains readily accessible metadata, but the recipient is not ethically obligated to stop reading it or to return the document, the committee added. But the opinion draws the line at lawyers' attempt to dig up metadata that the sender has affirmatively tried to remove. Such conduct, the panel concluded, would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.

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The Compliance Risks of Social Media (Experian, 29 May 2012) - Organizations are adopting social media tools within their networks at increasing rates, yet the legal and compliance risks are often not fully understood or addressed. A recent Forrester report noted that more than half of security decision-makers and influencers at enterprises reported that they were "concerned" or "very concerned" about the inability to meet regulatory obligations using social media platforms. According to the report, critical reliance on third parties for information collection and capture, rapidly rising social media content volume and fast-changing applications, and the difficulty of ensuring authentication all make it difficult for security professionals to keep up with the legal and regulatory compliance associated with social media. The report suggested that security pros should look to financial services for guidance on social media risks, keeping in mind that retention obligations clearly apply to social media, retention obligations also apply to both corporate- and employee-owned mobile devices, and firms should monitor and provide ongoing training to employees. Above all, critical steps that security professionals must take in order to respond to the risks that social media poses include the following * * *

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Hospital Agrees to Pay $750,000 Over Data Breach Allegations (SC Magazine, 25 May 2012) - A Massachusetts hospital has agreed to settle in court to the sum of $750,000 over allegations concerning its failure to protect sensitive patient data. According to a statement released by the Massachusetts Attorney General's (AG) office, a consent judgment approved in Suffolk Superior Court involving South Shore Hospital includes a $250,000 civil penalty and a payment of $225,000 to be used by the AG's office to create awareness concerning data security and sensitive information. The hospital was credited $275,000 "to reflect security measures it has taken subsequent to the breach." In February 2010, three boxes containing 473 unencrypted tapes with the personal and confidential information of 800,000 people, was shipped by South Shore Hospital to data management contractor Archive Data Solutions, which was to erase the information, then resell the tapes, the statement said. In June 2010, the hospital learned that only one of the boxes had arrived. The statement reveals that the hospital not only failed to notify Archive Data Solutions of the sensitive information stored on the files, but did not establish if the contractor had the proper security measures in place to protect the information, thus violating the federal Health Insurance Portability and Accountability Act (HIPAA).

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Ninth Circuit Finds Substantive Due Process Right to "Control Public Dissemination of a Family Member's Death Images" (Volokh Conspiracy, 29 May 2012) - The opinion in Marsh v. County of San Diego is by Chief Judge Kozinski and joined by Judges Paez and Wardlaw. It involves a claim by a mother that her Due Process rights were violated when a prosecutor investigating the death of her 2-year old son copied autopsy photographs of her son and then disclosed one of the photos to a newspaper. "Given the viral nature of the Internet," the court concludes, the effort to publish the autopsy photo was an "intrusion into the grief of a mother over her dead son" that shocks the conscience and therefore violates the mother's right to substantive due process. I'm skeptical of the court's reasoning, but then I am often skeptical when judges find new rights that no one noticed before. The court then holds that qualified immunity applies, however, as no court has previously found a federal constitutional right in the control of death images.

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New NLRB Guidance on Social Media Policies (Dan Schwartz, 30 May 2012) - The NLRB today released new guidance on what is appropriate for employers to include in their social media policies. You can download the guidance here. I'll have more on the guidance in a post later but in my quick read of the guidance, I was struck by three things: (1) Employers that have attempted to define bright-line rules for social media policies are going to have a lot harder time defining those rules concisely. Even rules that seem innocuous are getting shot down by the NLRB. For example, a policy encouraging employees to resolve concerns by talking with co-workers or boss about work is unlawful, according to the NLRB. (2) The NLRB is redefining not only social media policies, but other policies that employers have long since believed were legal. Those policies prohibiting employers from sharing "confidential" information? No good, says the agency. (3) The NLRB is again taking a strident view that "savings clauses" do not cure an otherwise faulty (in the NLRB's view) policy.

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Maryland Allows Wiretaps of Out-of-State Phone Calls (Steptoe, 31 May 2012) - Maryland's highest court has ruled that police can monitor cell phone calls regardless of the phone's location, as long as the police listen to the calls within the jurisdiction of the court that issued the order. The Maryland Court of Appeals held in Davis v. State of Maryland that under Maryland's wiretap law-just as under the federal Wiretap Act--jurisdiction to order a wiretap lies where the interception takes place, and that an "interception" occurs both where the call is first captured or "redirected" and where the police first listen to it. The court's decision seems to fly in the face of the plain language of the statute, which appears to limit wiretaps to devices located "within the State." But the court interpreted the statute's grant of jurisdiction broadly so as to avoid the "logistical and technological challenge" that would otherwise be posed to law enforcement when wiretapping mobile phones that can easily cross state borders.

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Should We All Be Getting the Twitter 'Jitters'? - Be Careful What You Say Online (MoFo, 31 May 2012) - History is littered with examples of the law being slow to catch up with the use of technology. Social media is no exception. As our Socially Aware blog attests, countries around the world are having to think fast to apply legal norms to rapidly evolving communications technologies and practices. Law enforcement authorities in the UK have not found the absence of a codified "social media law" to be a problem. They have applied a "horses for courses" approach and brought prosecutions or allowed claims under a range of different laws that were designed for other purposes. Of course, this presents problems to social media platform users, developers and providers who can be by no means certain which legal standards apply. The use of Twitter and other forms of social media is ever increasing and the attraction is obvious - social media gives people a platform to share views and ideas. Online communities can bring like-minded people together to discuss their passions and interests; and, with an increasing number of celebrities harnessing social media for both personal and commercial purposes, Twitter often provides a peek into the lives of the rich and famous. As an increased number of Twitter-related cases have hit the front pages and the UK courts, it is becoming increasingly clear that, in the UK at least, the authorities are working hard to re-purpose laws designed for other purposes to catch unwary and unlawful online posters.

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The Right of Publicity and Free Speech: DMLP Joins Amicus Brief in Hart v. Electronic Arts (DMLP, 31 May 2012) - Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc ., currently before the United States Court of Appeals for the Third Circuit. [FN] Hart is yet another case concerning the ever-uncomfortable balance between free speech and intellectual property, this time in the context of "right of publicity" laws. This case involves the NCAA Football series developed by Electronic Arts ("EA"), which allows players to play for and manage real-world collegiate football teams. EA licenses the right to use the team and league names, but not the names or likenesses of individual players. In fact, according to Wikipedia , EA does not claim that the players in the game are based on their real-world counterparts. That said, users are quick to point out that the jersey numbers, personal stats, and player hometowns of the virtual players frequently align with the real athletes. Ryan Hart, a former quarterback for Rutgers University, claims that he appears in the NCAA Football games from 2004-06 both as a virtual player (that is, there is a character in the game who shares Hart's team, position, basic player stats, and jersey number) and in the 2009 edition of the game in a brief video clip showing the real-world Hart throwing a pass, which appears when a player selects Rutgers as a favorite team. Hart objects to his appearance in the game without his permission as a violation of his right of publicity. Right of publicity laws vary state to state, but in general these laws prohibit the unauthorized use of a "protected attribute" of a person (such as their name, likeness, or other identifiable characteristic, sometimes limited to those that commercially exploit their likeness, such as celebrities) for a "forbidden purpose" (usually meaning a commercial purpose - the paradigm being a use as part of the defendant's advertising for a product - but it can also mean a use for the defendant's "personal benefit"). See our Legal Guide for more information. EA responded to Hart's claim by asserting that even if Hart met the elements of a right of publicity claim, such a claim is barred by the First Amendment, as EA should have the right to make the true statement that Hart was a member of the Rutgers football team, and embody that truth in the video game. The U.S. District Court for the District of New Jersey agreed with EA , finding that the games were protected expression, and holding that EA's First Amendment rights outweighed Hart's right of publicity. However, in granting summary judgment for EA, the district court did not resolve which test should be applied to balance these competing rights. Hart then appealed to the Third Circuit claiming that a different, more plaintiff-friendly test should be applied. This is where we came in. It might seem unusual that the DMLP, as an organization focused on independent and online journalism, would get involved in a case about video games. We nevertheless decided to join as an amicus because, although the Hart involves entertainment, the test that the Third Circuit selects to resolve the conflict between rights of publicity and First Amendment rights can have a significant impact in other contexts, including journalism.

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Why Are You Paying For Legal Research? (Future Lawyer, 31 May 2012) - I have written about Google Scholar before. It is a great case finder, and is free. It contains the full text of just about every case ever decided, has a really good search engine, and has official pagination, internal linking to the full text of every cited case, a built in Shepard's like citator, which, with one click, will pull up every case that has cited the case you are viewing. $69 addon, CiteStack, creates pin cites, and memoranda on the fly, while you are doing Scholar research. Take three minutes and watch how CiteStack works in Google Chrome. Google Chrome, Google Scholar and CiteStack. A complete legal research solution.

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Judges Should Write Their Own Opinions (NYT OpEd, 31 May 2012) - There is a crisis in the federal appellate judiciary. No, I'm not referring to the high number of judicial vacancies or overloaded case dockets - though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I'm talking about the longstanding and well-established practice of having law clerks ghostwrite judges' legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work. With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges' own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument - while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure. An informal review of federal appellate court opinions over the past five years suggests that of the more than 150 active judges, only a tiny number almost always write their own opinions in full, among them Frank H. Easterbrook, Richard A. Posner and Diane P. Wood, of the United States Court of Appeals for the Seventh Circuit, and Michael Boudin, of the First Circuit. A few others evidently write a fair percentage of their opinions from start to finish. Another relatively small group adds stylistic flair like dramatic introductions or figurative language. The former appellate judge Abner J. Mikva has said that when he served on the District of Columbia Circuit, he reserved for himself the opening paragraph of his opinions. Unlike lawyers who are paid to argue for just one side in a case, judges are paid to pursue the truth. The bench is free from the limitations of advocacy; judges get to test arguments and follow a line of reasoning wherever it might take them. They get to explore the law. The opinion, properly done, reveals the judge sorting through the problem, thinking on the page. For similar reasons, judge-written opinions are also less vulnerable to a judge's reflexive political and ideological leanings. The act of writing brings judges closer to the specific details and relevant issues of a case, forcing them to reckon with the case at hand in all its particulars, rather than seeing it as an instance of some more general theory or problem. [Editor: As an arbitrator, this resonates strongly with me. "Reasoned Awards" (i.e., those with analysis, as opposed to a bare-bones "We find for claimant in the amount of $xxx") should always be sought by parties - the process of thinking through and writing such an award imposes an important analytic rigor.]

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National Security and International Intellectual Property Law (MLPB, 31 May 2012) - David S. Levin, Elon University School of Law; Stanford University Center for Internet and Society, has published Bring in the Nerds: Secrecy, National Security and the Creation of International Intellectual Property Law at 30 Cardozo Arts & Entertainment Law Journal 105 (2012). Here is the abstract: "The negotiations of the international Anti-Counterfeiting Trade Agreement and Trans Pacific Partnership Agreement have been conducted largely in secret, elevating intellectual property piracy to the level of national security concerns for purposes of accessing information through the Freedom of Information Act (FOIA). However, the level of actual secrecy has been tiered, with corporate interests enjoying far more access to negotiation information than the general public. At the same time, similar intellectual property issues were negotiated in the relative transparency of Congress' debate over the Stop Online Piracy Act and PROTECT IP Act, allowing for much greater public involvement. With national security concerns as the backdrop, the focus of this Article is the use of national security arguments to prevent the public, and more specifically, public experts (i.e., the "nerds") from accessing information through FOIA about the creation of international intellectual property law. The Article proposes ways to address the information failures existing in international intellectual property lawmaking and international lawmaking more generally from policy and, as introduced in this Article, theoretical perspectives."

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Can A Judge Order Individuals to Consent to Facebook Disclosing Their Status Updates? (Volokh Conspiracy by Orin Kerr, 1 June 2012) - This issue arose in Juror Number One v. Superior Court , handed down yesterday by the California Court of Appeal, Third District. Because the facts of the case are likely to recur, and they involve a statute I have written a lot about, I thought I would blog my thoughts on the case. The case involves an investigation into juror misconduct. Exactly what happened is kind of murky, but here's what I can piece together. During a two-month trial, the jurors were told that they couldn't discuss the case with anyone. Despite this, one of the jurors - call him "Juror Number One" - posted status updates during the trial that were somewhat related to the case. Juror Number One had "friended" some of the other jurors, and they had access to the status updates, too. The losing party in the trial later found out about the status updates, and somehow obtained copies of what it thought were a complete set of status updates. The trial judge held a hearing and determined that based on the known status updates, there was no prejudice to the trial from the messages. The problem was that no one knew if this was the complete set of status updates. There may have been other status updates that were prejudicial but that weren't part of the set that the losing party had obtained. Yesterday's decision arose in the course of trying to find the complete set of status updates. The losing party at the trial issued two subpoenas to try to get full copies of the postings. The first subpoena was to Facebook, and the second was to Juror Number One. Facebook moved to quash the subpoena on grounds that the subpoena violated the Stored Communications Act, and instead told the judge that the losing party had to subpoena the juror directly. Juror Number One moved to quash the second subpoena on grounds that it was overbroad. The trial judge did not rule on the subpoena to Facebook but quashed the subpoena to the juror on overbreadth grounds. The trial judge then decided that the best way to proceed was to order the juror to sign a consent form that consented to Facebook disclosing the juror's relevant posting to the judge for in camera review. The idea is that the juror will be forced to consent to Facebook disclosing all the updates, and then the judge can review the full set of updates independently to determine if they were prejudicial. Juror Number One has objected to this procedure and in this appeal is arguing (primarily) that the consent order violated the Stored Communications Act, 18 U.S.C. 2701-11.

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Cybersecurity WiKi: Introduction and Call for Assistance (Lawfare, by Jack Goldsmith, 1 June 2012) - Harvard's Berkman Center for Internet & Society has developed a Cybersecurity Wiki that is designed to be a curated, comprehensive, evolving, and interactive collection of resources for researchers (not just legal researchers), technologists, policy-makers, judges, students, and others interested in cybersecurity issues, broadly conceived. The general aim of the wiki is to collect in one place, and organize intelligently, every important document related to cybersecurity. At present the wiki has an annotated list of almost 100 documents. We obviously have a long way to go; both the organization and the materials collected thus far (which only extend through 2011) are incomplete. But we are excited about our progress thus far. I urge anyone interested in cybersecurity to explore the wiki. The main page (including a brief description of the project) is here ; and the table of contents is here . During the next phase of the project, we hope to have experts from different disciplines review and evaluate the current collection and make recommendations for additional resources. (Some of the suggested materials for review and possible inclusion in the next phase of the project can be found here .)

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Breaking Barriers to Innovation in Education and Practice (ABA Journal, 1 June 2012) - Disquiet and frustration with the state of legal education and law practice has led two professors to create a cyber-based program that spans international time zones and school rankings to design a new legal profession from scratch. LawWithoutWalls is a collaborative academic model that brings together students and faculty from 11 international law schools and one business school, law practitioners, business professionals, entrepreneurs and venture capitalists to develop innovative solutions to problems facing law school and practice. "We needed to do something that involved students and teams, built bridges with the business community and embraced out-of-the-box ideas," says Michele DeStefano, founder and co-creator of LawWithoutWalls and a professor at the University of Miami School of Law. DeStefano leads LWW with co-creator Michael Bossone, special adviser to the dean at Miami Law. The program's premise mirrors that of successful tech companies: Toss out past blueprints and design original business models. There is no IRAC-the issue, rule, application and conclusion exam formula so familiar to law students-only a swiftly evolving market and a controversial or unsettled topic. Small groups of students and mentors collaborate and reimagine legal business models. Then they determine where their projects can make a real economic difference. Topics for 2012 include seeking ways to combine cultures and systems into global law practice, questioning disaggregation of legal services, and providing access to justice. "There's nothing like this in the law," says mentor Hugh Totten, a partner at Valorem Law Group in Chicago. "They are learning skills that are anticipatory to the profession -skills that are not necessarily used every day today, but they will be. "Students use their legal background and industry knowledge along with business analytical tools to create something ... that doesn't exist," Totten says. "That never happens in legal education."

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Privacy, Please: This is Only for the Two of Us (NYT, 2 June 2012) - Some friends were gushing recently about a new mobile application called Pair , intended for people in a relationship. Initially, I didn't see the appeal of the app, which lets the two partners send messages and photos back and forth. The idea of adding another service to the daily routine of Twitter, Facebook and their ilk seemed exhausting. And wouldn't it be just as easy to exchange e-mails, text messages or, better yet, just flirt face to face? Curious, I tried it - even though I'm single. I recruited a friend to help me test it. And, after a few hours, the app started to grow on me. Something was thrilling about the secret little notes that Shaun, my temporary beau, and I sent to each other throughout the day. The secrecy was welcome. We weren't cluttering up anyone else's feeds on Twitter, and didn't have to worry about random high school friends seeing and commenting on our exchanges on Facebook. In addition, there were gestures distinct to the app. It let us share information about our locations, and to exchange doodles, to-do lists and virtual nudges - all conveying that "I'm thinking about you." The app highlights the best elements of social networking - the warm, fuzzy feeling of being connected to people you care about when you're physically nowhere near them. And it says it eliminates some of the worst - the worry about who can see the content you're posting and how they may interpret it. Apparently, venture capitalists also see the point: The company that developed Pair raised $4.2 million in seed funding from a group of early investors last month.

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Lawyers May Use a Different Name Socially or When Writing Novels, Ethics Opinion Says (ABA Journal, 4 June 2012) - Lawyers can have more than one identity, according to an Arizona ethics opinion. Lawyers may use a different name outside their law practice, despite an ethics rule barring false or misleading communications, according to the opinion by the State Bar of Arizona. The ethics opinion considered two possibilities, according to Howard Fischer Capitol Media Services. In the first, a lawyer wants to use a pseudonym to write murder mysteries. In the second, a lawyer wants to practice law under her maiden name-the name that is on bar records-but use her husband's name for social or personal purposes. The lawyers may use a different name in such situations, as long as there is no fraudulent or improper motive, the opinion says. For nonlegal activities, a lawyer may "adopt any name by which the lawyer chooses to be known." For their law practice, however, lawyers should not use a name that is materially different from the one on bar records, the opinion says. The different name could confuse clients, who would have trouble researching the lawyer's disciplinary history, license status or malpractice coverage.

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DOE Publishes Electric Grid Cybersecurity Model (Fierce Gov't IT, 4 June 2012) - After five months of development, the Energy Department published May 31 the Electricity Subsector Cybersecurity Capability Maturity Model (.pdf). The model serves as a "tool to evaluate and strengthen cybersecurity capabilities and enable utilities to prioritize their actions and their cybersecurity investments," said White House Cybersecurity Coordinator Howard Schmidt in a White House blog post May 25. The maturity model combines elements from existing cybersecurity efforts into a common guide that spans 10 categories of capabilities, or domains. Each of these 10 domains has objectives that an organization can fulfill in order to establish a mature capability in the domain. The model also employs four maturity indicator levels, which apply independently to each domain. To earn an MIL in a given domain, an organization must fulfill all objectives in a level and the preceding level, says the document. The 10 domains are * * *

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Copyright, Technology, and Parody (MLPB, 4 June 2012) - Aaron Schwabach, Thomas Jefferson School of Law, is publishing Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody in the Buffalo Intellectual Property Journal (2012). Here is the abstract: "Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.
This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The user then adds English subtitles, creating a video that is, or is intended to be, humorous, with the humor largely derived from the incongruous and anachronistic content of the subtitles as well as from the inherently transgressive use of the original content for comic purposes.

 This article examines whether the Downfall videos, and other similar works, are more transformative than derivative under 17 U.S.C. section 107, as well as whether the use of the copyrighted material, even if otherwise derivative, is fair use under 17 U.S.C. section 107. The article also considers whether the videos are parody within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)."

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Clear Channel and Taylor Swift's Label Agree to Reinvent Royalty System (NYT, 5 June 2012) - Taylor Swift could be helping to propel one of the biggest shifts in the economics of radio in decades. Clear Channel Communications has agreed to share revenues from standard radio broadcasts with the record label behind Taylor Swift, a move that deviates from the traditional economics of the radio industry. The deal is a departure from the way broadcast companies have traditionally done business with record labels; performers and labels currently do not collect royalty payments when their songs are played on standard over-the-air radio. According to federal law, broadcasters must pay only the composers and publishers of the song. The deal announced Tuesday would give Big Machine, which also represents country stars like Tim McGraw and Rascal Flatts, an undisclosed portion of Clear Channel's revenue, an amount based on how many times a broadcaster plays songs by the label's acts. If the agreement takes hold throughout the industry, it would give performers and record companies access to an income stream they have long coveted. In return, broadcasters like Clear Channel, which streams music on 850 radio stations as well as through its iHeartRadio app, could save money in the growing and unpredictable realm of Internet radio. Unlike for traditional radio broadcasters, Internet radio broadcasters already pay record companies and performers when a song is played. For example, Pandora pays 0.11 cents to labels and artists every time a song is streamed on its service, a reason many broadcasters have refrained from investing in online broadcasting. Last year Pandora paid 54 percent of its revenue in royalties. Through its deal with Big Machine, Clear Channel can limit the royalty payments for its online streams.

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Israel Asks Arab Visitors to Open Emails to Search (NY Post, 5 June 2012) - When Sandra Tamari arrived at Israel's international airport, she received an unusual request: A security agent pushed a computer screen in front of her, connected to Gmail and told her to "log in." The agent, suspecting Tamari was involved in pro-Palestinian activism, wanted to inspect her private email account for incriminating evidence. The 42-year-old American of Palestinian descent refused and was swiftly expelled from the country. Tamari's experience is not unique. In a cyber-age twist on Israel's vaunted history of airport security, the country has begun to force incoming travelers deemed suspicious to open personal email accounts for inspection, visitors say. Targeting mainly Muslims or Arabs, the practice appears to be aimed at rooting out visitors who have histories of pro-Palestinian activism, and in recent weeks, has led to the expulsion of at least three American women. It remains unclear how widespread the practice is. Diana Butto, a former legal adviser to the Palestinian Authority and a fellow at the Harvard Kennedy School of Government, said the policy of email checks, once used sporadically, appears to have become more widespread over the past year. Butto said she has led three tour groups to the region over the past year, and in each case, at least one member of the group was asked to open their email. She said Muslims, Arabs and Indians were typically targeted, and in most cases, were denied entry. Butto said agents typically want to see people's itineraries, articles they have written or Facebook status updates.

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Cyberspace Resources and International Law (MLPB, 6 June 2012) - Duncan B. Hollis, Temple University School of Law, has published Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace in Canada Centre for Global Security Studies, Cyberdialogue 2012: What is Stewardship in Cyberspace? Here is the abstract: "The 2012 Cyberdialogue Conference, hosted by the University of Toronto, asked the question 'What is Stewardship in Cyberspace'? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law - to the extent they are raised at all - have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become). 

International law has long divvied up the world's resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is "space" at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the "stewardship" label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that - instead of fighting over what we should call cyberspace - a discussion of what behaviour we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance."

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MLA Shift on Copyright (InsideHigherEd, 6 June 2012) - Literary scholars on Twitter were offering praise Tuesday for an announcement by the Modern Language Association that it is adopting a new author agreement for its journals (including the flagship PMLA ) that will leave copyright with authors, enabling them to post versions in open access repositories, or on individual or departmental websites. The reactions included "Fantastic," "Great open access news," "very cool and important" and "a watershed [for open access] in the humanities?" The open access movement has in some ways made the most headway in the sciences, where requirements from federal agencies and other funders have many times forced journals to permit authors to post their papers in repositories that have no paywall. Humanities journals, in contrast, publish relatively little work that is the direct result of grants, so these publications (and the disciplinary groups that run them) have been able to consider these issues without government pressure. Until now, the MLA policy was that the journals held copyright, and the only blanket exception was that authors could use their works (with attribution to the MLA publication that published it) in other works. The new MLA policy appears to move beyond those of other humanities organizations -- although some of them have created ways to work with authors who want their scholarship in open access repositories. The American Historical Association, for example, holds copyright on articles that appear in its journals, but its author agreement tells authors that -- if they ask -- they will be granted permission to post articles in repositories and on personal websites. The Organization of American Historians -- which publishes The Journal of American History with the Oxford University Press -- gives authors a link that can be used for open access repositories. But Nancy Croker, director of operations for the OAH, said that "we do hope that an author would not circulate their article in such a way that it jeopardizes the integrity of the publication as a whole."

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- and -

Setting Prices for Open Access (InsideHigherEd, 7 June 2012) - The group charged with thrashing out how Britain should expand access to publicly funded research has decided against setting any guideline figures for open-access article charges, raising concerns that it will not stop commercial publishers' alleged profiteering. The Working Group on Expanding Access, chaired by a former Keele University vice chancellor, Janet Finch, is basing its projections of what a wholesale switch to "gold" - or "author pays" - open access would cost the British academy on a "cost-neutral" fee of £1,450 (about $2,250) per article published. However, according to the minutes of the group's penultimate meeting in April, members noted that the figure was "no more than an average" that would vary according to discipline and various other factors such as take-up rates both within the UK and abroad. For these reasons, they "agreed strongly that it would not be appropriate" to set a "benchmark" figure for article fees. The group, which includes funders, librarians and publishers, was convened by universities and science minister David Willetts and its report, expected later this month, is likely to form the basis of government policy. Tim Gowers, the University of Cambridge professor of mathematics whose pledge in January to boycott Elsevier has so far been echoed by 12,000 academics, told Times Higher Education that he was concerned that the Finch commission was not intending to address the issue of publishers' profits.

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What What!: Appeals Court Affirms South Park Parody Was Obvious Fair Use (EFF, 7 June 2012) - In an important ruling for free speech, the Court of Appeals for the Seventh Circuit today affirmed that a parody of a popular online video called "What What (In the Butt)" (NSFW, unless you happen to work at EFF!) was a clear case of fair use and that the district court's early dismissal of the case was correct. South Park aired the "What What" parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, alleging copyright infringement. Recognizing the episode was an obvious fair use, a federal judge promptly dismissed the case. Brownmark appealed, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. Viacom fought back, and EFF filed an amicus brief in support, explaining that being able to dismiss a case early in litigation-before legal costs can really add up-is crucial to protect free speech and discourage frivolous litigation. The appeals court agreed, calling the district court's decision "well-reasoned and delightful". [Editor: "Delightful"? Makes you want to read it, no?]

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App Records, Reports Controversial Police 'Stop and Frisk' Practice (MSNBC, 8 June 2012) - Believe you are witnessing an unlawful police stop and want to record the moment? There's an app for that, courtesy of the New York Civil Liberties Union. The group released a free smartphone application on Wednesday that allows people to record videos of and report police "stop and frisk" activity, a practice widely denounced by civil rights groups as unjustified stops that they say mostly target minorities and almost never results in an arrest. The app was thoroughly criticized by the New York Police Department, which said that the tool might prove useful for criminals. The "Stop and Frisk Watch" phone app is meant for bystanders watching a police stop, not those subject to it, the NYCLU said. Now available on Android phones, an iPhone version will launch later in the summer. It comes in English and Spanish. The recording and report will be sent to the civil liberties group, which will collect the information. One of the app's three main functions is called "listen," in which users can learn when and where people around them are being stopped. This would be useful for community groups monitoring police activity, the NYCLU said in a statement. New York City police stopped and questioned people 685,724 times in 2011, a more than 600 percent increase in street stops since 2002 -- Bloomberg's first year in office -- when there were 97,296 stops, the group said in a statement. Of that, 87 percent were black or Latino, and nine out of every 10 of the people who were stopped were not arrested or ticketed.

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New York Times to Shutter Online Learning Venture (InsideHigherEd, 11 June 2012) - The New York Times Company is closing down the Knowledge Network, its five-year-old venture into online learning, a company spokeswoman said on Friday. The Times announced the venture with much fanfare in 2007, believing that the esteem with which it is held in higher education and especially the depth of its content would give it a leg up in the increasingly crowded distance education market (and, like many newspaper companies, hoping to generate new lines of revenue as its traditional businesses sagged). The company established partnerships with a relatively small number of colleges and other organizations to offer courses jointly as well as offering its own, but the business apparently did not take off.

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Law Firm Website Can't Include Judges' Comments (Lawyerist.com 11 June 2012) - Has a judge said something complimentary about you as a lawyer? Shhh, don't tell anyone. And certainly don't publish the comments on your website. At least not in New Jersey. As reported at Law.com : "A New Jersey attorney is suing a Supreme Court panel over a ban on attorneys' ads that quote judges' favorable comments about them, claiming it violates the First and Fourteenth amendments." 
Unless of course you include the entire text of the opinion. Pursuant to New Jersey Attorney Advertising Guideline 3 : "An attorney of law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney's abilities or legal services. An attorney my, however, present the full text of opinions, including those that discuss the attorney's legal abilities, on a website or other advertisement."

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U.S. Penalizes Online Company in Sale of Personal Data (NYT, 12 June 2012) - The Federal Trade Commission assessed an $800,000 penalty on Tuesday against Spokeo, a data collector that the commission said violated federal law by compiling and selling people's personal information for use by potential employers in screening job applicants. The action is the F.T.C.'s first case addressing the sale of Internet and social media data for use in employment screening. Spokeo, of Pasadena, Calif., agreed to settle the civil charges without admitting that they were true. The trade commission said that Spokeo violated the Fair Credit Reporting Act by marketing its consumer profiles without making sure that they would be used for legal purposes, failing to ensure their accuracy and neglecting to tell consumers of its own responsibilities under federal law. The F.T.C. also charged that Spokeo created fake endorsements of its service and posted those comments on news and technology Web sites and blogs. The commission said the comments were made up by Spokeo's own employees.

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Facebook Isn't the Place to Serve Legal Papers, Says Judge (CNET, 12 June 2012) - Facebook is the normal way to communicate with people. It may not yet be a fine place to slap legal papers upon an adversary, however. In an intriguing case involving a mother, a daughter, and a bank, a federal judge decided that it's not yet time for Facebook to become a fine substitute for chasing someone down a street in order to serve them with papers. Paid Content reports the contents of his ruling as being highly nuanced. The case involves the pursuit of an alleged identity thief by Chase Bank. Chase is accusing Nicole Fortunato of using her mother's identity to apply for a credit card and then spending the sum of $1,243 on it. Chase first went after her mother, garnishing her paychecks. However, Lorri Fortunato tried to explain that she wasn't exactly in touch with her daughter. She seems to have found that it was more effective to explain that to Chase through a lawsuit. Chase couldn't find a good address for Nicole. So someone at the bank experienced a modern "Aha" and thought they could find the daughter on Facebook. Having petitioned the court, the bank seems to have been bounced. Indeed, U.S. District Judge John Keenan offered that he found service on Facebook to be "unorthodox." Actually, many people find it entirely non-existent. But I think he meant serving papers via the social network. The judge didn't feel there was precedent, at least in the U.S. Earlier this year, a U.K. judge declared himself quite happy for Facebook to be the medium of legally bad news. In this case, though, there was some doubt as to whether the profile that Chase had found was the right one.

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Retired Judge Joins Fight Against DOJ's 'Outrageous' Seizures in Megaupload Case (Wired, 13 June 2012) - Abraham David Sofaer, a former New York federal judge, recently was presenting a paper at the National Academy of Sciences about deterring cyberattacks when he learned the feds had shut down Megaupload, seizing its domain names, in a criminal copyright infringement case. Troubling him more than his paper on global cybersecurity (.pdf) was learning that the government had seized the files of 66.6 million customers as part of its prosecution of the file-sharing site's top officers, and was refusing to give any of the data back to its owners. "It's really quite outrageous, frankly," the 74-year-old President Jimmy Carter appointee said in a recent telephone interview. "I was thinking the government hadn't learned to be discreet in its conduct in the digital world. This is a perfect example on how they are failing to apply traditional standards in the new context." A former State Department legal adviser, Sofaer has teamed up - free of charge - with the Electronic Frontier Foundation in urging a federal court to set up a system to allow Megaupload users to get back their legal content. His entry into the high-profile case comes as users increasingly turn to online storage systems and services, including Dropbox, Gmail, YouTube, ReadItLater, iCloud, and Google Drive, among others, to share and store their data - despite the fact that legal protections for cloud services are weak and servers can be shut down at any time by an aggressive prosecutor. In an unrelated copyright infringement seizure, the feds confiscated the domain of a hip-hop music blog at the behest of the recording industry, only to return it, without apology or recompense, a year later for lack of evidence.

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Lawyer May Blog About Cases, Must Have Disclaimer (Sharon Nelson, 13 June 2012) - On June 5th, a three judge panel in Virginia ruled that a lawyer did not violate ethical rules when he wrote about his cases on his blog without client consent. Attorney Howard Hunter had drawn his descriptions of cases he had won from the public record. The panel's ruling overturned a disciplinary committee's finding of misconduct under Rule 1.6, which deals with confidentiality. However, the panel upheld the committee's finding that failing to include a disclaimer that results could vary depending on the facts did violate Rules 7.1 and 7.2 which deal with communications about a lawyer's services and attorney advertising. The panel upheld a public admonition for those violations and ordered Hunter to post a disclaimer in 30 days.

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Scores of U.S. Firms Keep Quiet About Cyber Attacks (Reuters, 13 June 2012) - Scores of U.S. companies have not disclosed breaches of their computer systems, even though eight months have passed since U.S. securities regulators issued guidelines on disclosing cyber attacks, according to leading security experts. Calling for more rigorous rules and enforcement, these experts told the Reuters Global Media and Technology Summit in New York they know of many cyber intrusions, thefts and other digital security issues that were kept quiet. "There have been lots of breaches in every industry that have never been publicized," said Shawn Henry, the FBI's former top cyber cop, who joined a new cyber security company, CrowdStrike, in April. Henry said the FBI was working on 2,000 active cyber cases when he retired from the agency in March. "There's only a handful of cases that anybody has ever heard about," he said. The U.S. Securities and Exchange Commission issued guidance on October 13 that outlined how and when companies should report hacking incidents and cybersecurity risk. The guidance did not establish new rules, and many experts say it lacks the teeth to compel heightened reporting. Some companies do not disclose cyber breaches because they feel they were not material, said Dmitri Alperovitch, founder and chief technology officer of CrowdStrike. He said he knew of a publicly traded defense contractor that lost intellectual property (IP) to China because of a cyber intrusion. Henry and other top U.S. officials have underscored the severity of cyber threats by citing a case in which one publicly traded company lost $1 billion of intellectual property in a single intrusion over a weekend.

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RESOURCES

Academic and Scholar Search Engines and Sources - An Annotated Link Compilation (LLRX, 31 May 2012) - This new guide by research guru Marcus P. Zillman focuses on the latest and most significant academic and scholar search engines and sources. With the addition of new and pertinent information released online from every sector continually, it is very easy to experience information overload. A real asset in responding to the challenges of so much data is to apply techniques to identify and locate significant, reliable academic and scholarly information that resides in both the visible and invisible web.

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LOOKING BACK - MIRLN TEN YEARS AGO

(note: link-rot has affected about 50% of these original URLs)

PENTAGON PLANS A COMPUTER SYSTEM THAT WOULD PEEK AT PERSONAL DATA OF AMERICANS (New York Times, 9 Nov 2002) -- The Pentagon is constructing a computer system that could create a vast electronic dragnet, searching for personal information as part of the hunt for terrorists around the globe - including the United States. As the director of the effort, Vice Adm. John M. Poindexter, has described the system in Pentagon documents and in speeches, it will provide intelligence analysts and law enforcement officials with instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents, without a search warrant. Historically, military and intelligence agencies have not been permitted to spy on Americans without extraordinary legal authorization. But Admiral Poindexter, the former national security adviser in the Reagan administration, has argued that the government needs broad new powers to process, store and mine billions of minute details of electronic life in the United States. Admiral Poindexter, who has described the plan in public documents and speeches but declined to be interviewed, has said that the government needs to "break down the stovepipes" that separate commercial and government databases, allowing teams of intelligence agency analysts to hunt for hidden patterns of activity with powerful computers. In order to deploy [the] system, known as Total Information Awareness, new legislation would be needed, some of which has been proposed by the Bush administration in the Homeland Security Act that is now before Congress. That legislation would amend the Privacy Act of 1974, which was intended to limit what government agencies could do with private information. http://nytimes.com/2002/11/09/politics/09COMP.html

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UNIVERSITY BACKS DOWN ON LINK BAN (CNET, 8 Oct 2002) -- The University of California at San Diego has abandoned plans to discipline a student group for linking to an alleged terrorist Web site. On Tuesday, the American Association of University Professors and nine other groups wrote a letter asking UCSD to abandon its threats of disciplinary action against the Che Cafe Collective, a move that the school had claimed was necessary because of the USA Patriot Act. The cafe had linked to a site supporting the Revolutionary Armed Forces of Colombia, which the U.S. government has designated as a terrorist group. In an interview later Tuesday, Joseph Watson, UCSD vice chancellor for student affairs, said that the school had made a mistake and would not pursue its earlier warnings of disciplinary action for linking. "We agree with the signers of this letter that links are a First Amendment right," Watson said. http://news.com.com/2100-1023-961297.html

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NOTES

MIRLN (Misc. IT Related Legal News) is a free e-newsletter published every three weeks by Vince Polley at KnowConnect PLLC. You can subscribe to the MIRLN distribution list by sending email to Vince Polley ( mailto:vpolley@knowconnect.com?subject=MIRLN ) with the word "MIRLN" in the subject line. Unsubscribe by sending email to Vince with the words "MIRLN REMOVAL" in the subject line.

Recent MIRLN issues are archived at www.knowconnect.com/mirln . Get supplemental information through Twitter: http://twitter.com/vpolley #mirln.

SOURCES (inter alia):

1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu

2. InsideHigherEd - http://www.insidehighered.com/

3. SANS Newsbites, sans@sans.org

4. NewsScan and Innovation, http://www.newsscan.com

5. Aon's Technology & Professional Risks Newsletter

6. Crypto-Gram, http://www.schneier.com/crypto-gram.html

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, http://blog.ericgoldman.org/

10. The Benton Foundation's Communications Headlines

11. Readers' submissions, and the editor's discoveries

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