**************Introductory Note**********************
MIRLN (Misc. IT Related Legal News) is a free product for members of the American Bar Association’s Cyberspace Law Committee, et al., and is produced by www.KnowConnect.com.
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**************End of Introductory Note***************
**** UPCOMING EVENT - INTERNET GOVERNANCE ****
At the ABA Annual Meeting New York City, the Cyberspace Law Committee of the Section of Business Law is sponsoring a high-level program entitled, “The Internet — How It is Governed Today and How it May Be Governed Tomorrow: A VIP Panel Discusses the Internet Governance Forum of the United Nations and the Global Debate About the Control and Future of the Internet.” The panelists will be Paul Twomey, President & CEO of ICANN, Richard Beaird, Senior Deputy U.S. Coordinator, Information and Communications Policy, U.S. Department of State, Bill Graham, Strategic Global Engagement, ISOC, and Markus Kummer, Executive Coordinator of the Internet Governance Forum. The Program will take place on Saturday, August 9, 2008 from 10:30 am-12:30 pm at the Section’s headquarters hotel, the Grand Hyatt Hotel on Park Avenue (109 East 42nd Street), in the Juilliard & Uris Rooms on the Conference Level. More info, and related governance resources: http://www.abanet.org/dch/committee.cfm?com=CL320061. Other Cyberspace Committee activities in NYC are here: http://www.abanet.org/dch/committee.cfm?com=CL320000 (see “Committee News”)
**** MIRLN NEWS ****
EBAY BEATS TIFFANY IN COURT CASE OVER TRADEMARKS (SiliconValley.com, 14 July 2008) - EBay scored an important victory in court today, as a federal judge said companies such as jeweler Tiffany & Co. are responsible for policing their trademarks online, not auction platforms like eBay. Tiffany had sued San Jose-based eBay over the sale of counterfeit jewelry on eBay’s sites. U.S. District Judge Richard J. Sullivan in New York said in today’s ruling that eBay can’t be held liable for trademark infringement “based solely on their generalized knowledge that trademark infringement might be occurring on their Web sites.” Sullivan’s ruling came in response to a lawsuit filed in 2004, in which the jeweler alleged that most items listed on eBay as genuine Tiffany products were fakes. The company said it had asked eBay to remove counterfeit listings, but the sales continued. EBay spokeswoman Nichola Sharpe said today that the ruling “confirms that that eBay acted reasonably and has adequate procedures in place to effectively address counterfeiting.” A Tiffany spokeswoman did not immediately return a call for comment. The Tiffany ruling was a welcome twist for eBay, which recently lost a different case stemming from counterfeit luxury goods. Last month, a French court ordered eBay to pay more than $61 million to LVMH Moet Hennessy Louis Vuitton SA, which complained it was hurt by sale of knockoff bags, perfume and clothes. EBay is appealing that ruling. EBay says it spends tens of millions each year to combat counterfeiting. It runs a program that lets companies review listings and inform eBay of those they believe are for fake goods. The company also suspends and blocks users who have been found selling or are suspected of selling fake goods on eBay. http://www.siliconvalley.com/news/ci_9877656?nclick_check=1
PRINTER DOTS RAISE PRIVACY CONCERNS (USA Today, 14 July 2008) - The affordability and growing popularity of color laser printers is raising concerns among civil liberties advocates that your privacy may not be worth the paper you’re printing on. More manufacturers are outfitting greater numbers of laser printers with technology that leaves microscopic yellow dots on each printed page to identify the printer’s serial number — and ultimately, you, says the San Francisco-based Electronic Frontier Foundation, one of the leading watchdogs of electronic privacy. The technology has been around for years, but the declining price of laser printers and the increasing number of models with this feature is causing renewed concerns. The dots, invisible to the naked eye, can be seen using a blue LED light and are used by authorities such as the Secret Service to investigate counterfeit bills made with laser printers, says Lorelei Pagano, director of the Central Bank Counterfeit Deterrence Group. Privacy advocates worry that the little-known technology could ensnare political dissidents, whistle-blowers or anyone who prints materials that authorities want to track. The dots tell authorities the serial number of a printer that made a document. In some cases, it also tells the time and date it was printed, Pagano says. “The Secret Service is the only U.S. body that has the ability to decode the information,” she says. [Editor: this is not true -- see http://w2.eff.org/Privacy/printers/docucolor] http://www.usatoday.com/tech/news/surveillance/2008-07-13-printer_N.htm
LAWYERS IN YOUTUBE LAWSUIT REACH USER PRIVACY DEAL (Reuters, 15 July 2008) - Defendants and plaintiffs in two related copyright infringement lawsuits against YouTube have reached a deal to protect the privacy of millions of YouTube watchers during evidence discovery, a spokesman for Google Inc said on Monday. Earlier in July, a New York federal judge ordered Google to turn over YouTube user data to Viacom Inc and other plaintiffs to help them to prepare a confidential study of what they argue are vast piracy violations on the video-sharing site. Google said it had now agreed to provide plaintiffs’ attorneys for Viacom and a class action group led by the Football Association of England a version of a massive viewership database that blanks out YouTube username and Internet address data that could be used to identify individual video watchers. “We have reached agreement with Viacom and the class action group,” Google spokesman Ricardo Reyes said. “They have agreed to let us anonymize YouTube user data,” he said. http://www.businessinsurance.com/cgi-bin/news.pl?newsId=13442
U.K. BUSINESSES BAN IM OVER SECURITY CONCERN (Computer World, 15 July 2008) - Nearly three-quarters of U.K. businesses have banned the use of instant messaging (IM) citing security concerns, reports IM supplier ProcessOne. The research noted that 88% of IT directors were concerned about the security risks created by employees using Windows Live Messenger, Yahoo Messenger and other IM services, with 56% citing the loss of sensitive business information as a primary concern. Despite this, only 12% of those surveyed said that their company kept an audit trail of IM messages sent by employees using free public IM software. The research also shows that 74% of those surveyed think IM could provide valuable collaboration benefits to their organization. According to ProcessOne, the research indicates that currently security fears are overriding the opportunity that U.K. businesses have to increase collaboration and business productivity. http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9110159&source=rss_news10
GERMANY MONITORING ‘PROBLEMATIC’ GOOGLE EARTH STREET SCANNING (SiliconValley.com, 16 July 2008) - German data-protection agencies have started to monitor street scanning by Google as it seeks to build three-dimensional city pictures for its Google Earth application. The Federal Commissioner for Data Protection, a Bonn-based agency, said Google’s activities in filming German streets are “problematic” though federal and state data-protection agents have yet to find a legal basis to stop filming that’s carried out by cameras mounted on vehicles. “From a privacy viewpoint, we don’t welcome this activity,” Federal Commission spokesman Dietmar Mueller said Tuesday. “Yet we have no legal instance to challenge it - anyone can walk along a street with a camera.” Google plans to create a three-dimensional image database of Frankfurt, Berlin and Munich to add to 40 U.S. cities already logged by the company. http://www.siliconvalley.com/news/ci_9895987 [Editor: “problematic”?]
- but -
GOOGLE STREET VIEW IS APPROVED FOR THE U.K. (CNET, 31 July 2008) - Google Street View has been given approval to drive on the other side of the street on the other side of the pond. The company’s controversial photo-mapping tool has gotten the green light from the U.K.’s privacy watchdog group. Street View uses special vehicles with panoramic cameras to snap pictures of streets. It then uses the digital images as part of its online mapping service, so that people can see what locations look like. Privacy groups in the U.K. have criticized the tool, saying it could violate privacy and data protection laws. These privacy advocates have been worried that people or other identifying markers, such as vehicle license plates, could be used to identify and track individuals in the Google pictures. But the Information Commissioner’s Office (ICO), an independent agency in the U.K. that is charged with helping protect personal information, said it is “satisfied” that Google has enough safeguards in the tool to prevent it from harming anyone’s privacy, the BBC reported Thursday. Specifically, the ICO said in a statement that it believes safeguards such as blurring faces and license plates on cars is enough to allay fears about breaching privacy. http://news.cnet.com/8301-1023_3-10003556-93.html
LAWMAKERS PROBE WEB TRACKING (Washington Post, 17 July 2008) - An Internet provider based in Kansas used a monitoring technology earlier this year to track sites visited by its users, apparently without directly notifying them, according to a congressional panel investigating the action. Embarq, which serves 1.3 million Internet customers in 18 states, including Virginia, acknowledged that it used “deep packet inspection” technology provided by the Silicon Valley firm NebuAd to direct targeted advertising to users. Some lawmakers and others question whether such actions violate users’ rights to keep their Internet behavior to themselves. The House Energy and Commerce subcommittee on telecommunications and the Internet will take up the subject at a hearing today. “Surreptitiously tracking individual users’ Internet activity cuts to the heart of consumer privacy,” said Rep. Edward J. Markey (D-Mass.), the panel’s chairman. “Embarq’s apparent use of this technology without directly notifying affected customers that their activity was being tracked, collected and analyzed raises serious privacy red flags.” Federal wiretap laws generally require consumers to consent to the collection and use of their communications. There has been ongoing debate over whether the technology’s use for behavioral targeting violates these laws. http://www.washingtonpost.com/wp-dyn/content/article/2008/07/16/AR2008071602378.html
SWEDES CALL ON HUMAN RIGHTS COURT TO REVIEW SNOOP LAW (The Register, 17 July 2008) - A Swedish organisation headed by lawyers and university professors has lodged a complaint this week with the European Court of Human Rights over Sweden’s controversial new snoop law. Last month, the Swedish parliament approved a law that will grant Sweden’s intelligence agency National Defence Radio Establishment sweeping powers to eavesdrop on all international phone calls and emails in a move to combat terror plots. The independent Centrum för Rättvisa (CFR) or Justice Center believes the bill violates the European Convention on Human Rights, which guarantees citizens the right to privacy and the ability to hold authorities to account. “There is a massive public interest in resolving the issue of whether the FRA Act is compatible with the demands of the European Convention. The Act basically means that everyone, not only Swedish citizens, risks having their electronic communication monitored by the Swedish state,” Clarence Crafoord, Chief legal counsel at CFR, said in a statement. Denmark, Finland and Norway last week also voiced concerns about the new law in Sweden. Danish citizens’ rights group TI-Politisk Forening demanded “an end to the Swedes’ surveillance of the world’s internet traffic”. In Norway, the national telecom agency said it will look into the new law. Finnish-Swedish telecoms operator TeliaSonera has already moved its servers from Sweden to Finland and Google is considering a similar move, according to a letter published by the heads of eight leading mobile phone service providers in the Dagens Nyheter newspaper. Google’s global privacy counsel Peter Fleischer had already condemned the new law. In the past Google was forced to censor its search services in China in order to gain greater access to China’s fast-growing market and is keen to avoid a repeat. Russian telecom operators have drawn up plans to re-route data and call traffic to avoid Swedish eavesdropping, according to Swedish news site The Local. Many protesters believe the real reason for the law is so Swedish intelligence can monitor data traffic to and from Russia. http://www.theregister.co.uk/2008/07/17/echr_swedish_wiretap_law_review/
ON THE WATERBOARD (Vanity Fair, 18 July 2008) - How does it feel to be “aggressively interrogated”? Christopher Hitchens found out for himself, submitting to a brutal waterboarding session in an effort to understand the human cost of America’s use of harsh tactics at Guantánamo and elsewhere. VF.com has the footage. http://www.vanityfair.com/politics/features/video/2008/hitchens_video200808 [Short video; astonishing, sobering, and frightening]
MOM FIGHTS MUSIC GIANT (SiliconValley.com, 19 July 2008) - For Pennsylvania mom Stephanie Lenz, a closely watched copyright showdown in San Jose federal court is a simple matter of standing up to powerful music moguls and petulant pop stars. Lenz, whose case reached a critical stage Friday, finds herself at the heart of an epic copyright fight over Universal Music’s attempt to force her to take down a YouTube video of her toddler learning to walk with the Prince song “Let’s Go Crazy” blaring in the background. Calling it a “case of first impression,” U.S. District Judge Jeremy Fogel on Friday considered Universal’s attempt to dismiss Lenz’s lawsuit, which maintains the media giant and Prince are abusing a 10-year-old copyright law intended to curtail movie and music thievery on the Web. Lenz is seeking unspecified damages and a court finding that she did not violate Universal’s copyrights with the YouTube video. Fogel dismissed a previous version of Lenz’s lawsuit, but her lawyers filed a revised complaint that recasts the case as a test of what copyright holders must consider before sending out takedown letters. Electronic Frontier Foundation lawyers urged the judge to keep the case alive, arguing that companies such as Universal have an obligation to investigate and evaluate a video such as Lenz’s before firing off the threatening letters. “It’s a tiny, blurry little home movie,” said Corynne McSherry, the foundation’s attorney on the case. Lenz and her legal team depict the video as a “fair use” of the Prince song. But Universal attorneys insist the company had the legal right to send the letter in Lenz’s case, and that it would be unfair to artists and media companies to force them to undertake lengthy inquiries before asserting copyright violations. http://www.siliconvalley.com/news/ci_9932068
BANK BACK ON HOOK FOR DATA THEFT AT BJ’S WHOLESALE (Information Week, 21 July 2008) - A federal appeals court last week reversed a lower court’s order that credit card processor Fifth Third Bancorp did not have to pay for new credit cards for some cardholders whose data was stolen during a 2004 hacking incident at BJ’s Wholesale Club. In ruling, the United States Court of Appeal upheld a challenge to the lower court’s decision brought by the Pennsylvania State Employees Credit Union. Fifth Third provided credit card processing services to BJ’s. PSECU, which issues Visa credit cards to its members, said it was forced to spend $100,000 canceling and reissuing more than 235,000 cards after the breach, and sought damages against Fifth Third. However, a U.S. District Court judge in Pennsylvania dismissed the claim two years ago. In its initial complaint, PSECU argued that Fifth Third bore some liability for the data breach because it failed to properly train the retailer’s staff in proper security procedures. http://www.informationweek.com/shared/printableArticle.jhtml?articleID=209400073
AMERICAN AIRLINES AND GOOGLE SETTLE LAWSUIT (Washington Post, 21 July 2008) - American Airlines has dropped its lawsuit against Google Inc. over its search engine directing some users to advertisements for the airline’s competitors. American sued the search giant last year seeking unspecified damages for trademark infringement. Last week, a federal district court judge in Fort Worth dismissed the lawsuit. Each side agreed to pay its own legal fees, and American recovered nothing from Google, according to an order signed by Judge John McBryde. Spokesmen for Fort Worth-based American, a unit of AMR Corp., and Google said in identical statements that they were pleased to “resolve these claims on mutually satisfactory terms.” American was upset that when Google users entered search terms such as AAdvantage, the trademark name of its frequent-flier program, the results included Web sites that had no connection to American. The airline said the results could confuse consumers and divert customers from its own Web site. Google compared its policy to grocery stores that give shoppers a coupon for Minute Maid orange juice if they buy Tropicana, or magazines that publish a Ford ad on the page opposite from a story about Chevrolets. “Of course they are seeking to ‘hijack’ or ‘divert’ consumers who have indicated an interest in their competitors’ products,” Google lawyers wrote in a motion seeking to dismiss the lawsuit. As long as the companies don’t falsely identify a product or service, it’s legal, they said. http://www.washingtonpost.com/wp-dyn/content/article/2008/07/21/AR2008072102149.html
BIG UK FIRM BANS BLACKBERRYS FOR ATTORNEYS ON VACATION (ABA Journal, 22 July 2008) - Apparently seeking to help associates maintain a better work/life balance, one of London’s major “magic circle” law firms has banned attorneys from using their BlackBerrys while on vacation. But the recent edict by Linklaters, which applies both to partners and to associates, hasn’t been received with unqualified agreement, reports the Lawyer. One partner is quoted saying, “‘Total communication blackouts couldn’t work, as you could be working on a major deal while someone’s on holiday and they need to be contactable.” http://www.abajournal.com/weekly/big_uk_firm_bans_blackberrys_for_attorneys_on_vacation
MYSPACE JUMPS ON OPENID BANDWAGON AS A PROVIDER (Ars Technica, 23 July 2008) - MySpace announced this morning that it has joined the OpenID alliance as a provider, freeing millions of MySpace logins to be used across other OpenID-compatible websites. MySpace hopes that, by adopting OpenID, it will help users avoid having to sign up for handfuls of web accounts with different logins and passwords, although users of other OpenID logins won’t be able to use them with MySpace just yet. OpenID is a movement aimed at establishing a safe, secure, and standards-based single sign-on framework for use across the Internet. The initiative allows people to sign in and access multiple websites with a single username. Unlike certain earlier initiatives such as Microsoft’s Passport, however, OpenID does not store all end-user information in a single centralized data server. An OpenID user with a Yahoo account, for example, could enter his OpenID (JohnDoe@yahoo.com) at any web site where the authentication standard is supported. JohnDoe would then be redirected to a secure Yahoo server and asked to enter his Yahoo login and password. The tricky part is that websites that are part of the OpenID initiative are either providers or relying parties, or both, and the decision is entirely up to each site. An OpenID login and password created at MySpace (a provider only) can’t be used at Yahoo (another provider only), but OpenIDs from both MySpace and Yahoo could be used at Plaxo (a relying party). MySpace’s senior VP of technology, Jim Benedetto, told Reuters that that it would “consider” also becoming a relying party in the future. http://arstechnica.com/news.ars/post/20080723-myspace-joins-the-openid-bandwagon-as-a-provider.html
UK PARENTS TO BE PUNISHED FOR CHILDREN’S NET PIRACY (TimesOnline, 24 July 2008) - Parents whose children download music and films illegally will be blacklisted and have their internet access curbed under government reforms to fight online piracy. Households that ignore warnings will be subjected to online surveillance and their internet speeds will be reduced, making it very difficult for them to download large files. The measures, the first of their kind in the world, will be announced today by Baroness Vadera, who brokered the deal between internet service providers and Ofcom, the telecoms body. About 6.5 million Britons are thought to have downloaded music illegally last year. It has been estimated that illegal downloads will cost the music industry alone £1 billion over the next five years. Many parents do not realise that their children are using the internet to download files illegally. Britain’s six biggest service providers - BT, Virgin Media, Orange, Tiscali, BSkyB and Carphone Warehouse - have signed up to the scheme. In return, the Government has abandoned a controversial proposal to disconnect broadband services for users who had been caught out three times. http://technology.timesonline.co.uk/tol/news/tech_and_web/article4387283.ece
WHAT’S THE DIFFERENCE BETWEEN A “DISC” AND A “DISK”? (Apple, 25 July 2008) - They’re pronounced the same, but, technically speaking, there is a distinct difference between a disc and a disk. A disc refers to optical media, such as an audio CD, CD-ROM, DVD-ROM, DVD-RAM, or DVD-Video disc. Some discs are read-only (ROM), others allow you to burn content (write files) to the disc once (such as a CD-R or DVD-R, unless you do a multisession burn), and some can be erased and rewritten over many times (such as CD-RW, DVD-RW, and DVD-RAM discs). All discs are removable, meaning when you unmount or eject the disc from your desktop or Finder, it physically comes out of your computer. A disk refers to magnetic media, such as a floppy disk or the disk in your computer’s hard drive, an external hard drive, and even iPod. Disks are always rewritable unless intentionally locked or write-protected. You can easily partition a disk into several smaller volumes, too. Although both discs and disks are circular, disks are usually sealed inside a metal or plastic casing (often, a disk and its enclosing mechanism are collectively known as a “hard drive”). http://support.apple.com/kb/HT2300
U.S. WARNS TRAVELERS THAT FOREIGN GOVERNMENTS MAY SPY ON THEIR MOBILE DEVICES (Steptoe & Johnson’s E-Commerce Law Week, 27 July 2008) - The U.S. Department of Homeland Security (DHS) has warned U.S. citizens traveling abroad that information they carry on laptops, cell phones, and PDAs could be secretly intercepted by foreign governments. DHS reports that these governments “routinely target” electronic devices and media, noting that “corporate and government leaders are most at risk because of the potentially useful information that they carry.” The warning provides advice on security precautions travelers can take to minimize the risk to sensitive information, including the use of encryption. The release of the warning comes as U.S. officials are reportedly weighing the benefits of advising travelers to China of the heightened risk that their mobile devices may be subject to secret searches against the potential costs of offending an essential economic partner. (Senator Sam Brownback (R-CO) felt no such ambivalence, warning this week that Chinese authorities have ordered hotels to spy on their guests’ Internet activities.) The DHS advice, while well taken, has a tinge of irony, since U.S. border and customs agents (a part of DHS) have also been examining incoming travelers’ mobile devices and copying information, as we have recently reported. http://www.steptoe.com/publications-5454.html
- so, on the other hand -
TRAVELERS’ LAPTOPS MAY BE DETAINED AT BORDER (Washington Post, 1 August 2008) - Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed. Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. “The policies . . . are truly alarming,” said Sen. Russell Feingold (D-Wis.), who is probing the government’s border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin. DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter. The policies cover “any device capable of storing information in digital or analog form,” including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover “all papers and other written documentation,” including books, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’” Reasonable measures must be taken to protect business information and attorney-client privileged material, the policies say, but there is no specific mention of the handling of personal data such as medical and financial records. http://www.washingtonpost.com/wp-dyn/content/article/2008/08/01/AR2008080103030.html?hpid%3Dtopnews%E2%8A%82=AR
U.S. TO PILOT INTERNET TRAVEL IDEA (The Globe and Mail, 28 July 2008) - The United States will launch a pilot scheme on Friday which will require travellers covered by its visa waiver program to get prior Internet authorization before boarding flights to America. U.S. officials outlining the Electronic System for Travel Authorization (ESTA) denied it would amount to reintroduction of visas — a concern voiced in the European Union — even though fees might be charged for the process in future. “The ESTA is not a visa,” Jackie Bednarz, attaché for the U.S. Department of Homeland Security, told a news briefing in Brussels on Monday. “It’s very different in our minds.” She said a two-month pilot program for the system would be launched on Aug. 1. It will formally start on Oct. 1 and electronic authorization will be a requirement for all citizens covered by the visa waiver program from Jan. 12. The system will require travellers to complete an online application form via the website https://esta.cbp.dhs.gov answering questions they must currently respond to on paper forms aboard flights or ships bound for the United States. These include whether a passenger has a communicable disease, a physical or mental disorder, or abuses drugs, or has been convicted of certain criminal offences, or been involved in espionage, terrorism or genocide. A spokesman for the European Commission, the executive body of the 27-nation European Union, said it would have to assess whether the program is tantamount to a visa once the new regulations are formally published. While U.S. authorities recommended applications be submitted 72 hours before travel, in most cases authorization — required to enable a passenger to check in — would be virtually instantaneous and valid for two years for multiple journeys. http://www.theglobeandmail.com/servlet/story/RTGAM.20080728.wgttravel0728/BNStory/Technology/?page=rss&id=RTGAM.20080728.wgttravel0728
NASA AND INTERNET ARCHIVE LAUNCH HISTORICAL ONLINE LIBRARY OF IMAGES, VIDEO, AUDIO (beSpacific blog, 29 July 2008) - NASA Images is a service of Internet Archive, a non-profit library, to offer public access to NASA’s images, videos and audio collections. NASA Images is constantly growing with the addition of current media from NASA as well as newly digitized media from the archives of the NASA Centers. The goal of NASA Images is to increase our understanding of the earth, our solar system and the universe beyond in order to benefit humanity.” http://www.bespacific.com/mt/archives/018921.html NASA Images at http://www.nasaimages.org/
SEC ADOPTS NEW “CORPORATE USE OF WEBSITE” GUIDANCE (CorporateCounsel.net, 31 July 2008) - Yesterday, the SEC adopted updated interpretive guidance regarding how companies can use their websites. Based on comments made during the open Commission meeting and the press release, we know the SEC’s guidance is principles-based that relies on a facts-and-circumstances analysis and is divided into four parts as follows:
1. Reg FD Guidance - How information posted on a company’s site can be considered “public” and provides guidance to help companies comply with Regulation FD. The upcoming release contains factors to help determine whether online information is considered “public” so that subsequent communications would not constitute disclosure of material non-public information, including whether:
(i) a company site is a recognized channel of distribution
(ii) online information is considered broadly disseminated
(iii) information has been posted for a sufficiently long period of time so that it has been absorbed by investors
In addition, the release addresses when disclosure of information on a site is considered adequate to make such information “public” for purposes of the alternative public disclosure prong of Regulation FD (the default prong is furnishing a Form 8-K). At the open Commission meeting, it was predicted that fewer Form 8-Ks will be filed under this guidance.
2. How Liability Standards Work Online - What the liability framework is for electronic disclosure, including how companies can provide access to archived data without it being considered reissued or republished; how companies can link to third party information; appropriate use of summary information; how antifraud provisions apply to statements made by the company in blogs and electronic shareholder forums, and more.
3. No Disclosure Controls Necessary for Website - How information posted on company sites would not be subject to rules relating to disclosure controls and procedures (unless the information is the type to satisfy a ‘34 Act obligation). This information remains subject to Rule 10b-5 liability.
4. Printer-Friendly Functionality Not Required - How information need not satisfy a “printer-friendly” standard, unless other rules explicitly require it. http://www.thecorporatecounsel.net/blog/archive/001807.html
CHINA TO LIMIT WEB ACCESS DURING OLYMPIC GAMES (New York Times, 31 July 2008) - The International Olympic Committee failed to press China to allow fully unfettered access to the Internet for the thousands of journalists arriving here to cover the Olympics, despite promising repeatedly that the foreign news media could “report freely” during the Games, Olympic officials acknowledged Wednesday. Since the Olympic Village press center opened Friday, reporters have been unable to access scores of Web pages — among them those that discuss Tibetan issues, Taiwanese independence, the violent crackdown on the protests in Tiananmen Square and the Web sites of Amnesty International, the BBC’s Chinese-language news, Radio Free Asia and several Hong Kong newspapers known for their freewheeling political discourse. The restrictions, which closely resemble the blocks that China places on the Internet for its citizens, undermine sweeping claims by Jacques Rogge, the International Olympic Committee president, that China had agreed to provide full Web access for foreign news media during the Games. Mr. Rogge has long argued that one of the main benefits of awarding the Games to Beijing was that the event would make China more open. http://www.nytimes.com/2008/07/31/sports/olympics/31china.html?_r=1&oref=slogin
- and -
PENALTY FOR CHINA QUAKE PHOTOS REPORTED (New York Times, 31 July 2008) - A school employee in Sichuan Province has been ordered to a labor camp for a year for taking photographs of schools that collapsed in the powerful May 12 earthquake and posting them on the Internet, a human rights group reported Wednesday. The worker, Liu Shaokun, 54, was detained at Guanghan Middle School on June 25, according to the group, Human Rights in China, which is based in New York. Family members informed the group that Mr. Liu had posted the photographs online; that has not been independently verified. The order against Mr. Liu, for “re-education through labor,” is an extrajudicial punishment that does not require a trial. http://www.nytimes.com/2008/07/31/world/asia/31quake.html?scp=1&sq=%22penalty%20for%20china%20quake%20photos%22&st=cse
DON’T WANT TO TALK? NEW SERVICE SELLS MISSED CALLS (New York Times, 2 August 2008) - When Alexis Gorman, 26, wanted to tell a man she had been dating that the courtship was over, she felt sending a Dear John text message was too impersonal. But she worried that if she called the man, she would face an awkward conversation or a confrontation. So she found a middle ground. She broke it off in a voice mail message, using new technology that allowed her to jump directly to the suitor’s voice mail, without ever having to talk to the man — or risk his actually answering the phone. The technology, called Slydial, lets callers dial a mobile phone but avoid an unwanted conversation — or unwanted intimacy — on the other end. The incoming call goes undetected by the recipient, who simply receives the traditional blinking light or ping that indicates that a voice mail message has been received. Ms. Gorman used a test version of Slydial that has been available for months. But since the finished product was unveiled to the public last week, more than 200,000 people have used the service, which is supported by advertisers like McDonald’s. The concept may sound antithetical to a digital era defined by ubiquitous communication and interactivity, but Slydial turns out to be only the latest in a breed of new technologies that fit squarely into an emerging paradox: tools that let users avoid direct communication. Technologies like e-mailing and blogging give the communicator the power to choose the time and manner of expression. Now, some academics, text messagers and creators of technologies say a trend has emerged: We are constantly just missing one another — on purpose. An array of recent innovations by other companies has encouraged the use of technology to deceive. One development, for instance, allows the employee who is running late to add background noises resembling heavy traffic to a mobile phone call. Another service places an automated call at a predetermined time so that the recipient can be extricated from a situation (a work meeting, or bad date) under the auspices of taking the “urgent” call.
http://www.nytimes.com/2008/08/02/us/02sly.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1217678496-vS7kBvL4E1aw9pbGM0De/A
F.C.C. VOTE SETS PRECEDENT ON UNFETTERED WEB USAGE (New York Times, 2 August 2008) - The Federal Communications Commission formally voted Friday to uphold the complaint against Comcast, the nation’s largest cable company, saying that it had illegally inhibited users of its high-speed Internet service from using popular file-sharing software. The decision, which imposes no fine, requires Comcast to end such blocking this year. Kevin J. Martin, the commission’s chairman, said the order was meant to set a precedent that Internet providers, and indeed all communications companies, could not keep customers from using their networks the way they see fit unless there is a good reason. “We are preserving the open character of the Internet,” Mr. Martin said in an interview after the 3-to-2 vote. “We are saying that network operators can’t block people from getting access to any content and any applications.” The case also highlights the broader issue of whether new legislation is needed to force Internet providers to treat all uses of their networks equally, a concept called network neutrality. Some have urged legislation to make sure that big Internet companies do not discriminate against small companies or those that compete with their video or telephone services. Analysts said they expected Comcast to appeal the decision. Curiously, representatives from other telecommunications companies praised the decision, even though they objected to the commission meddling in how they manage their networks. They said they would prefer such rulings to legislation from Congress, which has discussed enshrining net neutrality principles in the law. Jim Cicconi, senior executive vice president for external and legislative affairs for AT&T, said in a statement, “Regardless of how one views the merits of the complaint against Comcast, the F.C.C. today has shown that its national Internet policies work, and that they are more than sufficient for handling any net neutrality concerns that may arise.” http://www.nytimes.com/2008/08/02/technology/02fcc.html?ref=business
**** PODCASTS ****
A MIRLN subscriber has pointed me at HOMOPHILY, ANTI-RECOMMENDATION, AND DRIVEWAY MOMENTS (Jon Udell, 16 July 2008) - “The folks at National Public Radio love to create driveway moments: You’re driving along, listening to a story on NPR. Suddenly, you find yourself at your destination, so riveted to a piece that you sit in your idling car to hear it all the way through. That’s a Driveway Moment. The podcasting counterpart, for me, is the Ashuelot Moment. I’m jogging along the Ashuelot River, and I’m so riveted to a piece that I take a longer route so my run won’t end before the story does.” http://blog.jonudell.net/2008/07/16/homophily-anti-recommendation-and-driveway-moments/ [Editor: I’m trying several of the podcasts mentioned in this story, and will report on my experiences in later MIRLN issues.]
**** RESOURCES ****
HOW THE WEB WAS WON (Vanity Fair, July 2008) - Fifty years ago, in response to the surprise Soviet launch of Sputnik, the U.S. military set up the Advanced Research Projects Agency. It would become the cradle of connectivity, spawning the era of Google and YouTube, of Amazon and Facebook, of the Drudge Report and the Obama campaign. Each breakthrough—network protocols, hypertext, the World Wide Web, the browser—inspired another as narrow-tied engineers, long-haired hackers, and other visionaries built the foundations for a world-changing technology. Keenan Mayo and Peter Newcomb let the people who made it happen tell the story. Millions of words—multiplied and sent forth by the technology itself—have been written on the world-changing significance of the Internet, for good or ill, and the point hardly needs belaboring. Surprisingly, few books have been written that cover the full history of the Internet, from progenitors such as Vannevar Bush and J. C. R. Licklider up through the entrepreneurial age of our own times. Not many people recall that the first impetus for what became the technology of the Internet had its origins in Cold War theorizing about nuclear warfare. To observe this year’s twin anniversaries, Vanity Fair set out to do something that has never been done: to compile an oral history, speaking with scores of people involved in every stage of the Internet’s development, from the 1950s onward. From more than 100 hours of interviews we have distilled and edited their words into a concise narrative of the past half-century—a history of the Internet in the words of the people who made it. http://www.vanityfair.com/culture/features/2008/07/internet200807 [Editor: as you might imagine, this is a long read.]
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. Edupage, http://www.educause.edu/pub/edupage/edupage.html.
3. SANS Newsbites, sans@sans.org.
4. NewsScan and Innovation, http://www.newsscan.com.
5. BNA’s Internet Law News, http://ecommercecenter.bna.com.
6. Crypto-Gram, http://www.schneier.com/crypto-gram.html.
7. McGuire Wood’s Technology & Business Articles of Note, http://tinyurl.com/ywsusp
8. Steptoe & Johnson’s E-Commerce Law Week, www.steptoe.com
9. Readers’ submissions, and the editor’s discoveries.
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