Saturday, July 28, 2012

MIRLN --- 8-28 July 2012 (v15.10)

MIRLN --- 8-28 July 2012 (v15.10) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: http://twitter.com/vpolley #mirln)

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Cyber Threats Facilitate Ability to Commit Economic Espionage (GAO, 28 June 2012) - The nation faces an evolving array of cyber-based threats arising from a variety of sources. These sources include criminal groups, hackers, terrorists, organization insiders, and foreign nations engaged in crime, political activism, or espionage and information warfare. These threat sources vary in terms of the capabilities of the actors, their willingness to act, and their motives, which can include monetary gain or political advantage, among others. Moreover, potential threat actors have a variety of attack techniques at their disposal, which can adversely affect an organization's computers or networks and be used to intercept or steal valuable information. The magnitude of the threat is compounded by the ever-increasing sophistication of cyber attack techniques, such as attacks that may combine multiple techniques. Using these techniques, threat actors may target individuals and businesses, resulting in, among other things, loss of sensitive personal or proprietary information. These concerns are highlighted by reports of cyber incidents that have had serious effects on consumers and businesses. These include the compromise of individuals' sensitive personal data such as credit- and debit-card information and the theft of businesses' IP and other proprietary information. While difficult to quantify monetarily, the loss of such information can result in identity theft; lower-quality counterfeit goods; lost sales or brand value to businesses; and lower overall economic growth and declining international trade. To protect against these threats, a variety of security controls and other techniques are available. These include technical controls such as those that manage access to systems, ensure system integrity, and encrypt sensitive data. But they also include risk management and strategic planning that organizations undertake to improve their overall security posture and reduce their exposure to risk. Further, effective public-private partnerships are a key element for, among other things, sharing information about threats. Multiple federal agencies undertake a wide range of activities in support of IP rights. Some of these agencies include the Departments of Commerce, Justice, and Homeland Security, among others. For example, components within the Justice Department and the Federal Bureau of Investigation are dedicated to fighting computer-based threats to IP. In addition, both Congress and the Administration have established interagency mechanisms for better coordinating the protection of IP. Ensuring effective coordination will be critical for better protecting the economic security of America's businesses. GAO report here .

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Social Media Moves into List of Top Risks (Insurance Networking, 3 July 2012) - Fewer than 25 percent of executives report their organizations continuously monitor risk, according to a Deloitte and Forbes Insights survey, and more than a quarter (27 percent) said the risks posed by social media would be increasingly important. "Social media wasn't even on the radar a few years ago, and we're now seeing it ranked among the top five sources of risk, on the same level as financial risk," said Henry Ristuccia, partner, Deloitte & Touche LLP and co-leader of Deloitte's Governance and Risk Management services. "The rise of social media is just another contributor to the volatile risk environment companies are being forced to navigate. The current marketplace seems to require that organizations be nimble in their risk assessment approach, whether it's dealing with what employees post on social networks, or how they're coping with regulatory changes or taking advantage of the opportunities rewarded risks can create." "We believe technology has the potential to play a breakout role in the management of risk, but many companies are still behind the curve in this area," said Mark Carey, partner, Deloitte & Touche LLP and leader of the U.S. Governance and Risk Strategies services for commercial and public sector industries. "It is encouraging, however, that more than half the respondents said their companies were planning to invest in continuous risk monitoring, and the tools that are available should not only help them with risk management overall, but also increase efficiency and decrease costs over time."

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Federal Appeals Court Raps Bank Over Shoddy Online Security (Computer World, 5 July 2012) - A construction company in Maine may stand a greater chance of recovering some of the $345,000 it lost in fraudulent wire transfers that it blames on poor online banking practices of its bank. Patco Construction Company, based in Sanford, Maine, sued Ocean Bank, now called People's United Bank, after fraudsters made six wire transfers using the Automated Clearing House (ACH) transfer system amounting to more than $588,000 in May 2009. About $243,000 was recovered. In its suit, Patco alleged among other claims that Ocean Bank's online security was not commercially reasonable under Article 4A of the Uniform Commercial Code (UCC), a federal code governing contractual disputes that has been adopted into most U.S. states' laws. The UCC does not allow claims such as negligence, fraud and breach of contract. The code makes it potentially costly for small businesses to sue financial institutions over cybercrime-related fraud. Even if a small business wins a lawsuit, under the code the financial damages are limited only to the money stolen plus interest. In a significant twist, a three-judge federal appeals court panel found on Tuesday that Ocean Bank's online security measures were not "commercially reasonable," reversing a lower court ruling from May 2011.

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Board Oversight and Cybersecurity - What are the Risks to Your Company? (Foley Hoag, 8 July 2012) - Does your board exercise proper oversight over cybersecurity risks? Directors and officers have fiduciary duties to protect the assets of their companies. This obligation covers digital assets, including corporate information, applications, and networks. The scope of the obligation is defined, in part, by laws and regulations that impose specific privacy and security obligations on companies. The threats to digital assets are real, and companies are increasingly grappling with how best to manage network infiltrations, denial-of-service attacks, and other cyber-threats. In this context, a new report found that while boards are engaged in risk management, the link between cybersecurity risks and enterprise risk management remains poorly understood. The report, How Boards & Senior Executives are Managing Cyber Risks , is based on a survey conducted by Carnegie Mellon CyLab . This is the third survey that CyLab has conducted and its findings reveal that, for many companies, boards do not have sufficient information to properly oversee the management of cybersecurity risks. CyLab identified the following areas as specifically lacking: * * *

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EFF Backs Libraries in Battle Over Book Digitization (EFF, 9 July 2012) - The Electronic Frontier Foundation (EFF) has joined several national library associations in urging a federal court to find that the fair use doctrine permitted the creation of a valuable digital library. Although the case was filed long after the more famous Google Books lawsuit, Authors Guild v. HathiTrust presents a similar issue: whether digitization of books without granting full text access to the public is a legal fair use of copyrighted material. For the past seven years, major university libraries have been collaborating with Google to digitize their collections, with one result being the creation of the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow for users to access books in their entirety - it simply does a search for keywords and delivers titles and page numbers as results. Nonetheless, the Authors Guild claims its members are due compensation in exchange for being included in the collection. In an amicus brief filed Friday, EFF and the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries argue that the copying of books for a database like the HDL is a clear case of fair use, and obviously in the public interest. "The HDL doesn't give most users whole copies of a book. Instead, libraries use the HDL to search for books titles that they should borrow or purchase for their users," said EFF Intellectual Property Director Corynne McSherry. "This is a highly detailed map - a reference tool - and doesn't take the place of book sales. This is just the kind of fair use that copyright law is supposed to protect." For the full amicus brief in The Authors Guild v. HathiTrust:
 https://www.eff.org/node/71166

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Why The New York Times Eschews Formal Social Media Guidelines (Poynter, 10 July 2012) - Phil Corbett, The New York Times associate managing editor for standards, tells me in a phone interview why the paper chooses to have only informal social media guidelines: We have not done a very formal, detailed written policy. We've talked about it, but up until now we've made a conscious decision not to do that. Partly because we've really been encouraging our journalists over the past couple of years to embrace social media, to use it as a tool, to get comfortable with it. We think it's really important for them to do that, and we've been concerned that if on the one hand you tell all your reporters and editors "Social media is great, you really should be experimenting and getting the benefit of this great tool," but on the other hand, "Here's 27 rules that you better not violate or you're going to be in big trouble" - that's not necessarily the most effective way to encourage your journalists. … We do talk about it a lot. I talk to new people who come on board, and to reporters and editors who are getting more deeply into social media. We have social media editors and producers who are available to work with our journalists to help them and to give them advice and guidance. … But in general our message is that people should be thoughtful. They need to realize that social media is basically a public activity, it's not a private activity, and that people will know that they work for the Times, that they are Times journalists, and will identify them with the Times. And so they should just keep that in mind and be careful not to do anything on social media that would undercut their credibility. … So far this approach seems to be working for us. People have been smart about it, and thoughtful.

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No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) (Eric Goldman's blog, 11 July 2012) - A question that was floating around in the blogosphere was whether you can be sued for maintaining an open wi-fi connection where a third party engages in file-sharing using your connection. A district court judge in New York answered that question in the negative. (This case involved a shared internet connection, rather than open wi-fi, but this shouldn't change the result.) Liberty Media sued Whetstone and Tabora, who were roommates. Liberty alleged that Whetstone "regularly pirat[ed] copyrighted content." Liberty alleged that Tabora "knowingly participated and . . . declined to put a stop to Whetstone's [alleged infringement,] despite having had the ability to have done so." Although Liberty asserted claims for direct and contributory infringement against both defendants, it also asserted a claim for negligence against Tabora. The court says that the negligence claim against Tabora is preempted by the Copyright Act: "[t]he right that Liberty seeks to vindicate by its state law negligence claim - the imposition on one who knowingly contributes to a direct infringement by another - already is protected by the Copyright Act under the doctrine of contributory infringement." Case is Liberty Media Holdings, LLC v. Tabora & Whetstone , 12 Civ. 2234 (LAK) (S.D.N.Y.; July 9, 2012). Related EFF post here .

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Lèse Majesté: 16th Century Censorship Meets 21st Century Law (CMLP, 12 July 2012) - When hearing the expression "lèse majesté," images of the Queen of Hearts ordering heads to be chopped off ASAP may come to mind. Marie-Antoinette, the queen who was once a "majesté" in France, herself lost her head during the French Revolution. Surely, the crime of lèse majesté is now a thing of the past? Not quite, as some monarchies still prosecute this crime. Several of the European monarchies still have lèse-majesté laws, including Norway, where prosecuting the crime can only be carried out by the king or with his consent. Article 112 of the Thai Criminal Code states that "Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to 15 years." The code does not define, however, what constitutes a defamation or an insult. Thailand has been enforcing its lèse majesté law quite aggressively lately. It seems that the law has been used by Thailand prosecutors to suppress political speech critical of the monarchy, particularly speech by partisans of former Prime Minister Thakshin Shinawatra, who are known as the "Red Shirts." In September 2006, a military coup d'état deseated Prime Minister Thakshin Shinawatra and dissolved the Parliament. Since 2009, the Thailand public prosecutor has filed 12 lèse majesté suits against the Red Shirts, or persons suspected of supporting them. For instance, Ampon Tangnoppakul was sentenced last November to 20 years in prison by a Thai Court, for having sent four text messages to a government official criticizing Thailand's royal family. He claimed that he never sent these messages, and that he does not even know how to send text messages. Mr. Tangnoppakul died last May while serving his sentence. He was not the only person incriminated of lèse-majesté in Thailand. Surachai Danwattananusorn, who has criticized the 2006 coup d'état, was sentenced in February 2012 to seven and a half years of prison for having insulted the monarchy. 

Journalists and bloggers are also feeling the heat. The editor of a Thai political website was sentenced in 2012 to a eight-month suspended sentence because she had not removed comments believed to be insulting to the monarchy, an offense under section 15 of the Thai Computer Crime Act.

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Social Media and [NLRB] Law: An In-Depth Look (Constangy, 12 July 2012) - As Constangy previously reported here and here , the Acting General Counsel of the National Labor Relations Board recently issued a third memorandum specifically addressing the lawfulness of seven social media policies. The inconsistencies contained within the report, as well as its two predecessors , have left many - pundits and employers alike - scratching their heads. The good news is that the most recent report closes by providing discussion about and a copy of a policy that "passed" - from Walmart - which employers can use as a model for their own policies. Because our prior publications on the subject were relatively brief, the following is a more in-depth look at the position of the NLRB and the courts on social media policies * * *

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FFIEC's New Cloud Info 'Disappointing' (BankInfoSecurity, 13 July 2012) - An attorney who specializes in data security issues says a cloud computing resource document that the Federal Financial Institutions Examination Council issued July 10 falls short of providing useful insights about how banks and credit unions must address privacy and security risks. In the four-page document, the FFIEC explains how banking institutions should apply existing guidance to deals they sign for outsourced cloud-based services. But Francoise Gilbert, an attorney at the IT Law Group, says the resource is far too shallow to offer banks and credit unions any real insights about precautions they should take when considering cloud computing. The FFIEC's insistence that institutions should apply the same standards to cloud providers that they apply to other service providers reveals a lack of knowledge on the part of banking regulators about the unique risks posed by cloud computing, Gilbert says. "I find this document a bit disappointing," she says. "They view cloud computing as just another form of outsourcing, and that's a far too simplistic view." The FFIEC suggests that when considering cloud computing, banks and credit unions continue to follow the same fundamental guidelines and risk strategies outlined in the FFIEC Information Technology Examination Handbook , especially the Outsourcing Technology Services Booklet . Gilbert points to separate cloud security guidelines that other agencies have issued to illustrate the shortcomings of the FFIEC's new resource. For example, guidelines issued in December by the National Institute for Standards and Technology and on July 1 by the European Commission delve more deeply into the nuances of cloud computing and offer specific risk mitigation considerations organizations should consider, she notes. "Compare what the FFIEC has issued with the guidance just issued by the European Commission," Gilbert says. "That document is nearly 30 pages long and is much more detailed about the cloud's unique risks."

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Lawyers in Alabama Can't Use Groupon (Legal Skills Prof Blog, 14 July 2012) - According to Alabama State Bar Disciplinary Commission, Op. 2012-01 , Alabama lawyers can't use group coupon websites, because the arrangement violates ethics rules against fee-sharing with nonlawyers and the rule requiring all unearned fees to be placed in a trust account. According to the Alabama commission, use of Groupon-style programs risks violating rules on conflicts of interest, competence, diligence, and communication. These marketing websites offer consumers the opportunity to purchase goods and services at deep discounts. The websites get a percentage of every purchase. Three other state bars have reached a contrary conclusion: North Carolina, South Carolina, and New York. Indiana sides with Alabama.

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What Social Media Do Government Officials Use Most? (Gov't Technology, 16 July 2012) - All social media platforms are not created equal in the eyes of public officials. A new survey of 164 members of the GOVERNING Exchange, an online community of government executives, finds that Facebook and LinkedIn are used most often in the workplace. Unsurprisingly, Facebook is used at home by more that 4 out of 5 government executives. The findings reveal that Pinterest - despite being only two years old - is used at home by 1 out of 5 public servants. Only 16 percent of respondents said they don't use social networks at all. Meanwhile, 17 percent said someone else manages their social media accounts.

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Chuck Close Succeeds In Stifling A Creative Homage... But Only For Another 100 Years Or So! (TechDirt, 16 July 2012) - Chuck Close is an interesting artist. One of the most famous, most successful artists alive today, he paints giant portraits of people based on photographs. He does so by enlarging photographs, dividing up the images, and copying smaller areas square by square. The effect is quite striking. A couple years ago, there was an astoundingly fascinating interview of both Close and famed neuroscientist Oliver Sachs (who the movie Awakenings was based on) talking about how both have face blindness, in that they simply cannot recognize faces. Given that, it's interesting to see that Close's entire career is based on painting faces. Scott Blake is a long-time devoted Chuck Close fan -- and also a skilled computer artist. In 2001 he had the idea to create a "Chuck Close Filter," which would take images and turn them into something that looks like a Chuck Close image. While it took a lot of work, and was showcased at an exhibit in 2002, he said that computers weren't fast enough to make use of the filter in realtime at the time. In 2008, computers were fast enough that they could take an uploaded photo and automatically generate a "Chuck Close filtered version," so he set up a site called FreeChuckCloseArt.com . Two years later than that, Close threatened to take legal action against him. Blake has now detailed the whole thing in a long blog post . Here's the exchange between the two, though, reading the entire story (and seeing the images) is absolutely worthwhile * * * Blake notes that while he has shut down the site, he has a plan. Recognizing that eventually Close's works will go into the public domain, he's made plans for the filter to be re-released in 100 years after Close's death, on the assumption (perhaps not a good one due to extensions) that the works will be public domain by then.

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ACLU: "Reasonable Suspicion" Not Good Enough for GPS Tracking (ArsTechnica, 17 July 2012) - If you're a student of the privacy and tech law worlds (or you just read Ars) then you're probably familiar with last year's Supreme Court decision, Jones v. United States . Earlier this year, the nine justices unanimously agreed that placing a GPS tracking device on a suspect's car without a warrant was unconstitutional. That decision continues to have ripple effects throughout the privacy law world, and likely will for years to come. However, as we pointed out in our January 2012 coverage , the justices disagreed amongst themselves about why it violated the Fourth Amendment, which protects citizens against unreasonable searches and seizures. One wing of the court found that installing the GPS device was an unwarranted physical trespass on private property and therefore illegal. The minority wing found the practice unconstitutional as it violated the doctrine known as "a reasonable expectation of privacy." In Jones , the Supreme Court found the act of installing the GPS tracking device was a Fourth Amendment search, and doing so without a warrant in that case was unconstitutional. However, the court did not consider the question of whether a warrant-and probable cause-is always required when the government uses a GPS device. In a new case, known as United States v. Robinson , the government argues that an officer's mere " reasonable suspicion " of wrongdoing is enough to justify the placement of a GPS tracking device on a suspect's car without a warrant. Earlier this year, a federal magistrate judge in Missouri agreed, allowing evidence collected by the GPS device to stand. Last week, the American Civil Liberties Union (ACLU) filed an amicus brief in the case, which is still being argued before the United States District Court in the Eastern District of Missouri. The ACLU argues that Jones bolsters its position that "[t]his Court should adhere to the Supreme Court's long-standing directive that warrantless searches are presumptively unreasonable and hold that defendant's Fourth Amendment rights were violated."

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Paul Hastings Considers Permanent Home Offices (ABA Journal, 17 July 2012) - Wood paneling and large offices are going by the wayside at some law firms. The idea is to cut office expenses and encourage cooperation, the Wall Street Journal (sub. req.) reports. Firms embracing this 21st century design are "shrinking private offices, swapping out walls for glass, and installing high-tech meeting rooms in dead space once occupied by law libraries and filing cabinets," the story says. Lawyer offices have decreased in size by 20 percent to 25 percent, according to Matthew Barlow, executive vice president at the brokerage firm Studley Inc. Some firms, he said, are placing junior lawyers in interior space once used by administrative staffers. Typical office sizes are 225 square feet for partners, the story says, and 150 square feet for associates. In New York, however, many firms put two associates in an office. The idea was first embraced by U.K law firms. Allen & Overy opted for a "generic office size," all with soundproof glass walls, when it moved its London headquarters in 2005. Others have implemented open-plan offices where lawyers sit at workstations separated by glass partitions. Among the U.S. law firms making the change is Paul Hastings, which is planning to make the changes when its leases come up for renewal, the story says. The firm is also considering allowing some lawyers to work permanently from home.

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Cyber-Screening, Social Media, and Fair Credit Reporting: Why We Need to Move Beyond the FTC's Recent Spokeo Enforcement Action (Anita Ramasastry, 17 July 2012) - As American employees, we are increasingly becoming aware that our current and potential employers are trawling the Internet to look for our social-media activity as a way of judging whether we should be hired or retained. Is that practice legal? As a baseline rule, it is, as long as the current or potential employer does not discriminate on protected grounds, such as race, religion, or gender. Many companies are turning to private data-collection firms as a way of getting around possible discrimination claims or problems. To do so, they are hiring data brokers or aggregation firms that can collect data and "scrub" it (for example, by removing someone's race). These companies-much like Experian, Transunion, or Equifax, which prepare traditional credit reports-are subject to the Fair Credit Reporting Act (FCRA)-a federal law that was designed to ensure that the information provided by third parties to employers or creditors is accurate, and that consumers are informed of any adverse decisions that are made about them, based on such information. Are companies that compile social-media data subject to the FCRA? Until recently, the answer was unclear, but the FTC has now made it clearer. Indeed, the FTC recently imposed a $800,000 fine against one of these social-media-data companies, Spokeo, for its failure to adhere to the FCRA when collecting social-media data and passing it on to prospective employers. In this column, I will discuss the implications of the FTC's Spokeo enforcement action, and why it is important. I will also discuss why the collection and use of social-media data is inherently different from the collection of the kind of data that has traditionally been gathered for credit-reporting purposes. This contrast means that policymakers now need to look afresh at the FCRA to see how it does, or does not, adequately address the ways in which social-media data is used to assess consumer and employee behavior.

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Without Credit (InsideHigherEd, 18 July 2012) - The University of Washington plans to offer "enhanced" versions of the massive open online courses (MOOCs) it will develop through a partnership with Coursera, according to the university's provost. The "enhanced" versions will add a number of features designed to make them more closely resemble conventional online courses -- including more assessments, direct interaction with instructors, and the opportunity to earn a certificate that hypothetically could be redeemed for course credit. But the "enhanced" MOOCs will also come with price tags and enrollment caps. And while students might be able to redeem their completion certificates for credit toward a University of Washington degree, they could do so only if they enrolled as tuition-paying students at the university, says David P. Szatmary, the provost. Apart from residing online and on the Coursera platform, these "enhanced" and potentially credit-bearing courses will hardly qualify as MOOCs. Even as traditional universities have embraced massive free courses, those institutions have drawn a line on the matter of offering credit. Some professors send a letter of recognition to students who succeed in the free, online versions of their courses, but the universities have refrained from offering those students course credits that count toward the completion of a traditional degree. So far the only way students might redeem their success in MOOCs for formal college credit is by seeking validation through prior-learning assessment apparatuses . This despite rumors, following Monday's news of 12 new universities plotting to broadcast free versions of their highly regarded courses, that Washington was going to become the first traditional institution to take the plunge on offering course credit for its MOOCs. Washington is slated to develop 19 courses with Coursera -- covering topics in economics, business, biology and computer science -- making it the company's most ambitious partner. "[S]ome of them will offer credit," The New York Times wrote of Coursera's new partners in a widely circulated article about the company's announcement. The article cited Washington, in particular, as planning to offer university credit for its MOOCs this fall, and noted that "other online ventures are also moving in that direction." The report was the most e-mailed story on the Times 's website Monday, and the detail about Washington offering credit was parroted in several places around the Web . [Editor: See also here .]

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It's Legal: Cops Seize Cell Phone, Impersonate Owner (ArsTechnica, 19 July 2012) - In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, "Hey whats up dogg can you call me i need to talk to you." Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store-where Hinton was arrested and charged with attempted possession of heroin. Hinton wasn't Sawyer's only target. According to a court decision summing up the facts, "Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee's iPhone had received and stored were from individuals who were seeking drugs from Lee." So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.") But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee. But in a pair of decisions, one of which was recently covered by Forbes , a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.

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Why Skype? Get Google Hangouts (Attorney @ Work, 20 July 2012) - Google+ is Google's effort to create a social media community. It seems like a lot of people have a Google+ account but don't really use it. There is, though, one aspect of Google+ that differentiates it from the other social media sites and it is Google Hangouts . It's my favorite part of Google+ and it has become one of my favorite means of communication-and it won't drive up your long-distance bill. Google Hangouts is similar to Skype in that it's a videoconferencing tool. With Skype, you have to pay if you want to talk to more than one person at a time, but in a Google Hangouts session, you can have up to 10 people. It has screenshare capabilities so you can share what's on your screen with everyone else. You can set up a Hangout to be public or private where you only invite select individuals to participate. Hangouts are a fantastic way to talk with multiple people in multiple places without driving up your long-distance bill. It works anywhere that you have an Internet connection and a webcam with a microphone. Here are my personal favorite five uses for Google Hangouts * * *

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The NYT'S Bill Keller on Why We Should Defend WikiLeaks (GigaOM, 25 July 2012) - In a post on Tuesday entitled "First they came for WikiLeaks, then the New York Times ," we wrote about how there is growing evidence that Congress and the Justice Department may be considering legal sanctions against traditional journalists who publish classified information - in other words, extending the kind of legal attacks they have been making on WikiLeaks to the traditional media such as the New York Times . In an emailed response to that post, former NYT executive editor Bill Keller said he strongly agrees that an attack on WikiLeaks' right to publish such leaked documents is an implicit attack on the media as a whole, and that the mainstream media should protest any prosecution of the organization as a betrayal of the First Amendment. [Editor: for much more detail and analysis see Yochai Benkler's terrific March article on this.]

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US Copyright Office Takes a Position on Yoga (1709 Blog, 25 July 2012) - The US Copyright Office has issued a policy explaining that Yoga positions and poses are not covered by S102 of the US Copyright Act as they are neither dramatic works nor choreographic works - and most certainly are not musical, artistic or literary works. The policy explains "[W]hile such a functional system or process may be aesthetically appealing, it is nevertheless uncopyrightable subject matter. A film or description of such an exercise routine or simple dance routine may be copyrightable, as may a compilation of photographs of such movements. However, such a copyright will not extend to the movements themselves, either individually or in combination, but only to the expressive description, depiction, or illustration of the routine that falls within a section 102(a) category of authorship. You can read the Copyright Office's full Statement of Policy here and here .

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Service of Process, 2.0 (CMLP, 26 July 2012) - The judicial system in the United States has kept up with technological change in many ways. We have electronic filing, websites for federal courts, and Internet streaming court coverage. But there is one way that courts have not been as quick to adapt electronically - service of process. Last month, the U.S. District Court for the Southern District of New York denied a request to allow service of process via social networking site (in this case, Facebook). The case, Fortunato v. Chase Bank U.S.A., involved Chase Bank's attempts to locate and serve process on a third-party defendant who fraudulently charged up multiple credit cards and gave a false physical address. The judge called the request "unorthodox," and found that Chase Bank had not given the court "a degree of certainty" about the defendant's alleged Facebook profile and the email address attached to that profile that would ensure that the defendant would receive and read the notice. However, the judge did allow for alternative service by general publication in local newspapers. The inclusion of methods of service recognized under state law widens the range of options, but electronic service remains outside of the norm. That said, when traditional methods of service have failed, courts may permit "alternative service of process." In 1950, the Supreme Court in Mullane v. Central Hanover Trust set forth the standard for alternate service of process when "due diligence" had been exhausted to serve a defendant: "To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond." The United States has in fact allowed for electronic service of process as an alternative, but exclusively in the international context. Fed. R. Civ. P. 4(f)(3), which governs service internationally, allows for international service "by other means not prohibited by international agreement, as the court orders." A 2002 Ninth Circuit decision, Rio Properties, Inc. v. Rio International Interlink , discussed international email service's inherent pros and cons, stating that constitutional principles of notice and opportunity to respond "unshackles the federal courts from anachronistic methods of service and permits them entry into the technological renaissance." Other countries are also recognizing electronic service of process. In 2008 a judge in Australia authorized service of a default judgment to defendants via Facebook after multiple failed attempts to effectuate service, including in person and via email. Other countries soon followed suit allowing alternative service of process via email or Facebook private message, including New Zealand , Canada and most recently, the United Kingdom .

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Showcasing Academic Technology (InsideHigherEd, 27 July 2012) - Faculty and staff from the University of Minnesota accomplished what some might consider a near-miracle of publishing: they turned blank pages into a 317-page book in 10 weeks. E-book, that is. Since the book -- Cultivating Change in the Academy: 50+ Stories from the Digital Frontlines at the University of Minnesota in 2012 -- is online, its producers could circumvent some of the cost and time associated with print publishing. Ann Hill Duin, a professor of writing studies at the University of Minnesota-Twin Cities and one of the book's three editors, elicited the help of colleagues to produce the book, which addresses advances in academic technology. The book was released to the University of Minnesota Digital Conservancy, along with its complementary WordPress site, this month. The book addresses four overarching topics -- ideas for transforming teaching methods, solutions to specific classroom problems, examples of campus leaders providing direction and support for these efforts, and ways the university is spreading its innovation off campus. It includes chapters on web-based problem-solving coaches for physics students, using disc jockey vernacular to encourage instructors to "remix" education by combining instructional materials, concepts or areas of expertise, and developing instructional videos geared toward multilingual students needing help with American academic English.

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RESOURCES

ABA Compendium on Cloud Ethics Opinions (ABA's LTRC, 11 July 2012) - Comprehensive index of various States' ethics opinions on lawyers' use of cloud computing services.

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DIFFERENT

When Art, Apple and the Secret Service Collide: 'People Staring at Computers' (Wired, 12 July 2012) - Maybe an email, or a phone call from Apple. Instead, my first indication that something was "wrong" was a real-life visit from the organization best known for protecting the President of the United States of America. They rang the doorbell a few times. It woke me up, and I tried to ignore it. There were always kids playing with the doorbells in our apartment building. But the kids don't normally shout, "this is the Secret Service, open the door," so I took that as my cue to get out of bed. * * * [Editor: pretty interesting discussion of using public-space computers to take photos of people in public spaces as part of an art project. I saw something similar in an Amsterdam museum last summer. The activities of law enforcement were very interesting. All in all, a good read if you've got 20 minutes.]

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LOOKING BACK - MIRLN TEN YEARS AGO

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

NET CLEARINGHOUSE FOR CREATIVES (Wired, 15 May 2002) -- An Internet clearinghouse seeks to counteract the barriers to creativity that its founders believe current copyright protection law fosters. The Creative Commons, a nonprofit organization based at Stanford University and formed by legal scholars and Web publishers, will encourage authors and other creative people to donate selected writings, music, video and other works for free exchange. A documentary filmmaker needing a shot of the New York skyline could use the clearinghouse to find royalty-free footage. Or a small-town orchestra with limited funding could find pieces to perform for free. Currently, a filmmaker or orchestra director must track down a copyright holder, obtain permission and often pay royalties. Projects may never take off if copyright holders won't license their works. Copyright holders who choose to participate in the Commons may set general conditions such as allowing royalty-free use only in noncommercial settings, but they won't be able to veto individual projects. Users would be able to search for digital and physical materials at creativecommons.org. Spearheading the effort is Stanford law professor Lawrence Lessig, a prominent scholar who complains that the current strict legal interpretation of intellectual property rights frequently stifles the type of sharing that spurs innovation. The Creative Commons seeks to counteract that tendency. Molly S. Van Houweling, the project's executive director, said the clearinghouse is ideal for start-up bands and lesser-known authors who want their works more widely heard or read. More established creators, meanwhile, may wish to donate their works so that noncommercial projects could succeed, she said. Contributors retain copyrights on their works. They can still sell them -- for instance, they can offer them through the project royalty-free for noncommercial use but charge others independent of the Commons. The Creative Commons has raised nearly $900,000, mostly from the Center for the Public Domain, a nonprofit foundation. http://www.wired.com/news/culture/0,1284,52562,00.html

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AIR FORCE SEEKS BETTER SECURITY FROM MICROSOFT (USA Today, 10 March 2002) -- A top U.S. Air Force official has warned Microsoft to dramatically improve the security of its software or risk losing the Air Force as a customer. In an interview, Air Force chief information officer John Gilligan revealed he has met with senior Microsoft executives to tell them the Air Force is "raising the bar on our level of expectation" for secure software. Since being named Air Force CIO in November, Gilligan, who controls a $6 billion-a-year technology budget, also has met with executives from Cisco Systems and delivered a similar message at a handful of industry forums. "We just can't afford the exposures, and so those who give us better solutions, that's where we're going to put our business," Gilligan says. Gilligan, former Energy Department CIO, has discussed security most often with executives at Microsoft. "They are the biggest supplier to the Air Force, and my attempt has been to encourage them to set an example," he says. http://www.usatoday.com/life/cyber/tech/2002/03/11/gilligan.htm

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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

This work is licensed under the Creative Commons Attribution-Share Alike 3.0 United States License. To view a copy of this license, visit or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA.

PRIVACY NOTICE: Addresses and other personal information provided during the subscription process will be kept confidential, and will not be used for any other purpose. top

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