Monthly Archives: April 2012

Congress Passed CISPA. But Will It Become Law?

CISPA
Will CISPA Become Law?

Yesterday, in a 248-168 vote, Congress passed H.R. 3523, the little discussed Cyber Intelligence Sharing and Protection Act (a.k.a., CISPA, a.k.a. the Rogers-Rupperberger  Cybersecurity law). At first compared to SOPA and PIPA, CISPA includes an intellectual property component. Proponents, however, insist its purpose is to eradicate information sharing road-blocks between social networking platforms and Internet service providers.

If passed by the Senate and signed into law by the President, CISPA would make it legal for social media platforms to give personal information about users to the government.  In an effort to thwart digital security threats, CISPA would also make it possible for government agencies to share classified information with networks.

What IS CISPA, Who Supports It And Why?

An amendment to the National Security Act of 1947, CISPA’s primary purpose is to allow for information sharing between private entities (i.e., social networking platforms and Internet service providers) and federal agencies.

CISPA defines a cyber-threat as any “vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from either efforts to degrade, disrupt, or destroy such system or network.” It also asserts that a “threat” could be the “theft or misappropriation of private or government information, intellectual property or personally identifiable information (PII).”

CISPA supporters insist the bill’s mention of intellectual property has nothing to do with downloading Mp3s and movies, but instead only refers to “research and development” data (i.e., corporate and government secrets).

Also, unlike SOPA and PIPA, CISPA is backed by several power-house tech companies like Facebook, Microsoft, IBM, Intel and Verizon – most of whom vehemently opposed SOPA and PIPA. The U.S. Chamber of Commerce and the majority of Republican representatives in Congress also support the Act. All have different reasons for backing CISPA. Perhaps some of the IT companies fancy having access to classified information; maybe CISPA supporters truly believe it’s the best bill to combat cyber terrorism.

Father of the Internet, Tim Berners Lee, Representative Ron Paul, the White House and The Constitution Project are amongst CISPA’s opponents. All believe the bill threatens personal privacy rights.

Will CISPA Be Used To Prosecute Pirates?

According to CISPA advocates, the law will not be used to go after illegal downloaders, but is that really the case?

Bill backers insist they’re only concerned with material related to cyber criminality and espionage, yet they fail to define parameters for each. As a result, it’s possible that the government will declare an element of a given bit-torrent file germane to an electronic threat, and bingo, information about the “seeds” could be handed over under the auspices of CISPA.

They say they won’t do that, though.

Since CISPA includes a provision that allows citizens to sue the Federal Government for misusing any data obtained through CISPA, it will be interesting to see, if it’s passed, whether or not they try to use the bill to thwart online piracy, and if in doing so end up getting sued because of it.

Will CISPA Make It To The Law Books?

Congress gave CISPA the stamp of approval yesterday, but will it become a law?

The White House has already said they will veto the bill in its current state; moreover, the Senate is a cyber-security kill joy – it’s known as the place where cybercrime bills go to die. If the trend continues, CISPA may have seen its hay-day yesterday and will soon be thrown in the “abandoned bills” pile.

Still, civil liberty watchdog groups are sounding the CISPA warning bell in the hopes of garnering public outrage against the act, like they did for SOPA and PIPA.

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Libel Tourism: Is It Almost Done For Good?

While we publicly grapple with online privacy and intellectual property legal issues on this side of the pond, our English-speaking brethren on the other side are engaged in a hot debate over defamation law and libel tourism. Donning a very distinguished name, if passed, the Lord Lester of Herne Hill’s draft defamation bill will significantly alter libel and slander laws in England and Wales.

Journalists will have more freedom to publish parody and “irreverent criticism” without fear of a costly defamation lawsuit; “convenience test” standards will be stricter, thus making it harder for wealthy entities to file claims for little cause; and perhaps of most import to US citizens, the proposed bill with most likely eradicate UK libel tourism.

What Is Libel Tourism?

Some people shop for jewelry and others for jurisdictions. The act of filing a defamation lawsuit in a dominion with the most favorable laws is known as libel tourism. Over the years, London has earned a reputation for being very defamation-claimant-friendly. The result is an increase in costly legal battles, which tax payers end up covering, that involve individuals with extremely tenuous links to the UK.

The Duke of Brunswick Rule: Why London Is The Libel Tourism Capitol Of The World

We’ve established what libel tourism is, and we’ve established that England and Wales are popular spots for libel tourism; so now the obvious question is: why is the UK such a popular spot for libel tourism?

The root of the phenomenon can be traced back to The Duke of Brunswick.

One day, way back – we’re talking 17th century back – an exceptionally paranoid German Duke, recently exiled to France due to an peasant rebellion in his region, sent a servant to England to purchase a newspaper the nobleman suspected of having published material that could hurt his reputation.

Turns out Brunswick’s hunch was on-point; the Duke subsequently won his libel claim in a British court and was awarded pecuniary damages. The most important aspect of the famous defamation case, though, was its establishment of the precedence that every purchase of a newspaper constitutes a new act of libel.

In the Internet age, the Duke of Brunswick rule translates to one view of a web page.

But Is Libel Tourism Really A Problem?

There’s little theoretical doubt that London is where you go to get your tourism libel on, but the actual number of foreign lawsuits that make it in front of a high court or jury is on the decline. In fact, according to Joint Committee on Draft Defamation Bill, there hasn’t been such a case in two years.

While very few libel tourism classes have been heard by the UK’s high court as of late, the mere threat of a potentially costly London-based defamation suit dissuades foreign media outlets and others from publishing stories in the first place.

In the defamation draft bill comments, the committee acknowledged the “exaggerated” number of libel tourism lawsuits in their nation, but also averred that the courts “could benefit from more robust” judicial powers with regards to defamation law when it comes to dismissing cases that have little to do with a UK resident or entity.

Moreover, the committee also points out that while there are very few jurisdictionally questionable lawsuits that make it far in their system, the mere threat of being pulled into a London defamation court is damaging to international free speech. In other words, a blogger in Canada may be hesitant to publish something about a Saudi businessman for fear of being hauled into a London court because their blog page was viewed in the UK. (Yes, a scenario very close to that has actually happened and the claimant won!)

The US SPEECH Act

One of the reasons parliamentarians are keen to reform defamation standards is because other countries are beginning to pass laws that render UK Legislation impotent. One of those nullifying nations is the United States.

Unimpressed with how the Duke of Brunswick rule was “chilling” free speech in America and around the world, the Federal government enacted the Securing the Protection of our Enduring and Established Constitutional Heritage – or SPEECH Act – in 2010. Its purpose is to prevent foreign slander and libel rulings that don’t pass a First Amendment sniff test from being enforceable in the United States.

The libel tourism is only a small part of UK defamation reforms. The island nation also seeks to codify stricter rules concerning fair comment and editorial freedom – moves that could open up a bold new era of British parody and free speech.

Jan Brewer’s Veto Pen: Which Way Will It Wag On Arizona House Bill 2549?

Arizona House Bill 2549 - CyberbullyingToday, Arizona Governor, Jan Brewer, vetoed Arizona House Bill 2729 — a piece of legislation concerning firearm freedoms. Being an Internet law firm, though, we’re more curious to see if Gov. Brewer will use the same veto power on Arizona House Bill 2549.

A few weeks ago, the Arizona Legislature angered First Amendment advocates and freedom-loving netizens. Copper State officials poked the “hive mind” by passing Arizona House Bill 2549 – an Act intended to thwart cyberbullying and stalking, has instead caused consternation in free speech circles.

Arizona House Bill 2549 Basics

When you divorce Arizona’s new Internet law from legal analysis, its administrative purpose is to update section 13-2916 of the Arizona Revised Statutes – the state’s long-standing telephone harassment law.

A one-and-a-half-paged piece of legislation, all 2549 does is redact the words “telephone” from the statute and replaces it with “any Electronic or digital device.”

Sounds simple enough, right? After all, everyone agrees that laws need to catch up to our new-fangled communication tools, correct?

Well, not everything is as simple as it seems.

The Language of Arizona House Bill 2549: Harmless or A First Amendment Threat?

Though the ostensible intent of 2549 is noble, the problem with the bill is its lack of definitions. While the updates address the outdated “telephone language,” the surrounding verbiage remains unchanged, and the result is causing a few raised eye-brows amongst legal eagles.

The excerpt attracting attention:
“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”

The Internet is the last bastion of free speech…and if there’s one universal online mantra, it’s “what’s crude and lewd for you, may not be crude and lewd for me.” Hence, the concern over Arizona’s new Internet Conduct Law.

Arizona House Bill 2549 also says that “disturbing the peace, quiet or right of privacy of any person at the place where the…Communications were received” is a class 1 misdemeanor; it makes threatening online stalking a class 5 felony and online death threats a class 8 felony.

Arizona’s new Internet Protection Law also defines “immediate family members” as any person who regularly resides with the person in the household within the past six months. A measure undoubtedly included to allow parents to bring charges, on behalf of their children, against cyberbullies.

Proponents Say Speech Is Protected In Arizona Bill 2549

But are the free speech advocates screaming fire when there’s little cause for concern? Advocates of the bill point out that 2549 explicitly states: “’constitutionally protected activity or other activity authorized by the law’ cannot be prosecuted under this statute.”

That said, when it comes to drafting laws, little wiggle room exists. When you change “telephone” to “electronic communications” without definition, the scope of the act widens and falls dangerously close to infringing on personal freedoms. Before, if you were using the telephone to harass someone your target was a specific person. With the Internet, there’s a greater chance that bystanders could view it and be offended. As such, the statute should focus more on the intent, as opposed to the action. The language of the bill should be tweaked to include language surrounding the concept of “harassment.”

For those interested in law redundancies, take note that Arizona already has a computer harassment statute on the books – A.R.S. 13-2921 – which makes illegal “a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.” Makes one wonder: Do we really need two online harassment laws?

The Future Of Cyberbullying Legislation

When asked, state representative and co-sponsor of 2549, Steve Farley, said the intention of the bill was to protect stalking and cyber bully victims. Justin Patchin, co-director of the Cyberbullying Research Center, elaborated by explaining he was a “defender of the Constitution like anyone else, but the First Amendment doesn’t give you the right to harass and terrorize someone.”

The clamor surrounding Arizona Bill 2549 has prompted officials to pull-back and tweak the language. When the updated version is released, we’ll see if they listened to objections and incorporated the necessary changes.

And most importantly, we’ll see if Gov. Brewer’s veto pen will get some more exercise.

Yahoo!’s Do Not Track Mechanism Announced

Yahoo Provides Do Not Track Tool for Browser Privacy

On Thursday, March 29 Yahoo! announced the imminent release of a new tool to promote privacy during web browsing. The company’s “Do not track” tool will be available this summer, and while few details have been released about its functionality, Yahoo spokespeople are pushing the line that “Yahoo! continues its leadership in privacy innovation while continuing to create the free online services consumers demand that are made possible through advertising.”

How Yahoo!’s New User-Controlled Advertising System Will Work

As far as I can tell from the literature published thus far, the new Yahoo! Do Not Track tool allows users to pick which ads they want to see across websites. The system runs on two Yahoo!-owned advertising systems – Interclick and Right Media.

The ability to control what ads users will see during web browsing means advertisers are more likely to draw customers who would have wanted to see their product in the first place, and it makes the browsing experience itself more enjoyable for the user.

The Do Not Track Browser Wars

Yahoo! is the latest search engine to implement a “do not track” mechanism – and most of the search engines are making a lot of PR noise when they do. Why? Because if the company’s take it upon themselves to institute tracking measures, the less likely it is that the FTC or federal government will pass a universal “Do Not Track” bill – a piece of regulation the major tech companies are adamantly against.

At this point, there’s not much to say about Yahoo!’s foray into Do Not Track, we’ll just have to wait until summer rolls around when the search engine company fully implements the system into standard use.

Defamation Lawsuit Dismissed Thanks To Anti-SLAPP Legislation

Defamation Lawsuit Dismissed Under Washington Anti-SLAPP Statute

Seattle-based lawyer review website, AVVO.com, emerged victorious in an online defamation lawsuit filed by Florida lawyer, Larry Joe Davis, Jr. One of the first cases to fall under Washington state’s relatively new Anti-SLAPP statute, Davis v. AVVO barely got started before it was shot down.

AVVO.com: Online Review Site Being Sued For Defamation

A well-trafficked online portal, AVVO.com is half expert-answer database, half professional rating site. Consumers can head to AVVO to research a legal question, and they can also access the site’s extensive professional-ratings database of lawyers, doctors and dentists in the United States.

According to their website, “Avvo pairs an expert-only Q&A forum with the largest online directory of rated health and legal professionals to empower you with the information you need to confidently make the right decisions about your health and legal needs.”

AVVO.com executive, Mark Britton, summed up the company’s philosophy in one sentence: “People have a right to the information about the professionals they are seeking to hire.”

Lawyer Larry Joe Davis, Jr. Sues For Defamation

Imagine getting a call from a potential client who opens with: “I found you through a professional review website; you were listed dead last, so I figured you’d be desperate for work; what kind of deal can you give me?”

That’s exactly what happened to Larry Joe Davis, Jr. in 2010. A board-certified health law attorney in the state of Florida, Mr. Davis was appalled to learn of his lowly AVVO.com rating and took steps to rectify the situation. Unsatisfied with the results he was able to garner via available means, Davis decided to file a defamation lawsuit against AVVO.

At first, Davis filed a defamation lawsuit, but later amended his claim to remove the libel tort, and instead averred false light, false advertising and misrepresentation torts.

Judge Dismissed Defamation Lawsuit Under Washington’s New Anti-SLAPP Statute

Before Davis v. AVVO, Inc. could get in front of a jury, a judge dismissed the claim using Washington state’s new anti-SLAPP statute.

SLAPP stands for Strategic Lawsuit Against Public Participation, and Washington recently passed a statute (Senate Bill 6395, Laws of 2010, Ch. 118, Section 1) because the legislators “expressed concern over lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”

Senate Bill 6395 states that “a party may bring a special motion to strike any claim that is based on an action involving public participation.” The law goes on  to assert that “any oral statement made…in a public place, to the public, or a public forum in connection with an issue of public concern” is protected from prosecution.

In the ruling statement for this defamation lawsuit, the court averred that it had “no difficulty finding that the AVVO.com website is an action involving ‘public participation,’ in that it provides information to the general public which may be helpful to them in choosing a doctor, dentist, or lawyer.”

As a consequence of loosing the defamation turned false light lawsuit, Davis now must pay AVVO’s legal fees, in addition to a $10,000 fine. It should be noted that this is the second defamation lawsuit wherein AVVO.com has emerged the victor. It just goes to show that the U.S. Courts are, indeed, serious in their protection of “vehicle[s] for discussion of public issues…distributed to a large and interested community.”

Disclosure: Aaron Kelly is an AVVO blogger.

Crystal Cox Defamation Lawsuit: Blogger Denied Journalistic Protection And Rights

A judge presiding over the well-publicized Oregon defamation lawsuit involving Crystal Cox recently ruled against the self-styled, self-published investigative blogger. Cox was ordered to pay $2.5 million in damages and the decision has stirred online First Amendment crusaders.

The Crystal Cox Defamation Lawsuit Background

A self-described investigative blogger and whistle blower, Crystal Cox is a real estate agent by day and Internet vigilante by night. Among her cadre of websites was obsidianfinancialsucks.com, an outlet Ms. Cox used to accuse Kevin Padrick — one of Obsidian’s founding executives — of fraud, misappropriation of funds, lie telling, and a litany of other unscrupulous actions. Cox even insinuated Padrick may have hired an assassin to silence her.

As a result of her online accusations, Mr. Padrick decided to sue for defamation. He maintained his company lost considerable business thanks to Ms. Cox’s allegedly misleading statements. Padrick explained that the Internet was awash with Cox’s disparaging claims — a digital reality which damaged him financially.

Defamation Pro Se Trial

In court, representing herself “pro se,” Cox argued her blog posts were journalistic, of “pubic concern,” and that the Oregon retraction laws should apply to her situation (retraction laws allow journalists to correct or retract defamatory statements in lieu of compensatory damages.). Cox also characterized herself as a “whistle blower” exposing the unscrupulous practices in the finance world.

The Definition of Journalist When It Comes To Online Defamation Lawsuits

Judge, Marco A. Hernandez, however, rejected the assertion that Cox was a journalist.
By applying Oregon law, Hernandez ruled Cox could not be treated as a journalist since:

  • She did not have a formal education in journalism
  • She did not hold proof of affiliation with a recognized news entity
  • She arguably didn’t adhere to journalistic standards such as editing and fact checking
  • She did not keep notes of conversations and interviews conducted
  • She could not produce evidence that she had a mutual understanding or an agreement between the defendant and his or her sources
  • She did not contact the grieved party, before publishing, to get both sides of the story

Offering SEO Services Sunk Cox

In addition to the legal Oregon defamation elements noted above, perhaps the most damning piece of evidence against Cox was an email, presented as evidence by the defense, wherein Cox offered Padrick online reputation management services for $2,500 a month.

In the eyes of the court, the email helped in disqualifying Cox for journalistic immunity. After all, the offending email framed Cox as someone who was actively looking to profit off her statements, and thanks to the presence of the email, the defense could argue that Cox was essentially holding Padrick’s business reputation hostage.

The Right Defamation Decision…But At What Cost

Based on the above defamation definition elements — and the fact that Cox couldn’t prove wrongdoing on the part of Mr. Padrick — it’s no surprise that Obsidian and it’s executive emerged victorious.

That being said, many are concerned about the unintended First Amendment ramifications this decision may have on Internet bloggers in the future. Many wonder how well bloggers, who work for online magazines or news organizations, fit into the qualifying factors listed by Hernandez. For instance, not every blogger working for a news organization has a a journalism degree.

The defamation lawsuit of Crystal Cox is sure to play a role in future blogger defamation lawsuits; it’s established legal precedence that is certain to be tested and challenged in the coming years.