Monthly Archives: May 2012

International Online Privacy Legislation: The UK “Cookie Law”

UK Cookie Law
The U.K. Cookie Law Explained By Internet Law Attorney

Recent U.K. legislation, known as the “Cookie Law” has forced the issue of business needs vs. online consumer privacy rights into the limelight.

Members of the British Parliament homologated The U.K. Privacy and Electronic Communication Regulations Act (PECR) on May 26, 2011. It requires all U.K. businesses — and sites that do business in the U.K. — to:

  1. Notify users of tracking and data-collecting cookies; and
  2. Obtain consent in order to use cookies on a computer.

PECR applies to apps developed for mobile devices as well as traditional online websites.

The move to institute this U.K-specific legislation was prompted by a similar E.U. directive that requires website administrators and e-commerce sites to monitor and maintain control over the types of cookies present on their sites, especially those that can be used to track the browsing activities of users.

Online Privacy UK Cookie Law: What re Cookies?

Cookies are small packets of data used to track online behavior. They’re how sites can remember you or provide behavioral-based recommendations. Session cookies last only for the duration of one visit to the website; persistent cookies are stored indefinitely to allow for easier navigation and a more personalized experience for the end user.

Cookies are primarily used to enhance the user’s experience by storing certain identifying information in order to streamline browsing. In some cases, however, tracking cookies are used to obtain detailed information on the user’s browsing habits, creating a significant threat to online privacy. These tracking cookies can be used to tailor advertising or monitor the user’s online activities for less savory purposes.

What is the U.K. Privacy and Electronic Communication Regulations Act?

The E.U. e-Privacy rules were already applicable to U.K. businesses and slated to go into effect in 2011; but a lack of public awareness delayed compliance. As a result, the new privacy protection legislation offered an extension to allow e-commerce companies, government agencies and website administrators the time needed to implement these new cookie restrictions and regulations. This extension expired and the new rules went into effect on May 26, 2012.

Online Privacy UK Cookie Law: Requirements of PECR

Companies and agencies that maintain an online presence are required to control the cookies present on their site. They’re also responsible for protecting consumers against unauthorized tracking of web activities. Cookies necessary to the e-commerce or online business payment process are exempted from the law; this includes cookies that allow items in an online shopping cart to be transferred to the payment page and cookies used to verify identity when processing those payments.

In other cases, companies are required to present users with a choice to accept or deny cookies from a site. Users who opt out of website cookies on a particular site can change their decision later. Additionally, many Internet service providers already offer users the choice to opt out of all cookies, to accept only cookies from certain sites or to allow all cookies from all sites.

Online Privacy UK Cookie Law: Other Forms of Online Tracking

Another critical element in the U.K. Cookie Law Act is the requirement that all forms of user tracking and tagging be monitored and maintained by website managers. The language of the legislation specifically targets non-essential tracking and non-essential cookies; however, these terms aren’t fully defined in the bill. In general, it’s likely that e-commerce related cookies and tracking will be exempt from PECR requirements. All other tracking and tagging of users without informed consent may create a liability for the offending website and company.

Online Privacy UK Cookie Law: A state of disarray

Despite the May 26 deadline, it is estimated that the majority of U.K. businesses, government entities and public sector agencies have failed to implement measures to meet these new requirements. According to official statements made by a spokesperson for the Cabinet Office, the majority of government websites have not yet achieved compliance with the new PECR Act regulations. In part, this high degree of non-compliance may be due to a failure to adequately publicize and explain the new requirements. No penalties are likely to be assessed at the current time according to the Information Commissioner’s Office (ICO), the government body responsible for enforcement of PECR legislation.

Online Privacy UK Cookie Law: Mixed messages

The ICO stated it’s unlikely to penalize companies that show progress toward meeting the requirements of PECR within a reasonable time frame, but the agency has not yet defined what level of progress is necessary to avoid penalties. In addition, recent changes in the ICO guidance regarding this legislation seem to indicate that implied consent will also be allowed as a method for meeting these requirements. Implied consent would be considered to exist if users continued to use the website after the May 26, 2012 deadline. This would essentially shift the burden of compliance from the website administrators to the end user.

Online Privacy UK Cookie Law: Will This Law Even Make A Difference?

PECR is likely to have a significant impact on advertising-dependent websites. However, recent adjustments to the U.K. guidance on compliance appear to weaken the consumer protection aspects significantly. These changes may actually allow businesses to assert compliance without making any changes to their existing sites at all, allowing the status quo to continue despite both the E.U. Directive and the provisions of PECR legislation.

Facebook’s Online Privacy Policy Explained By Internet Lawyer

Facebook online privacy policyWelp, it’s official. Mark Zuckerberg is a bona fide billionaire and a few more Facebook millionaires were most likely made. Woot for them. But while everybody else debates the arguably inflated IPO, let’s take time to dissect Facebook’s online privacy policy that launched just last week.

That’s right. It was Facebook’s turn to roll out a shiny new online privacy policy. After all, their arch Internet rival, Google, did it a few months ago. And like Google, Facebook insists their policy changes are only meant to “clarify existing language.” They’ve also made a point of highlighting their snazzy new “privacy hub” where users can easily access all of Facebook’s privacy info.

While my cynical side says the changes were all CYA initiatives, the truth is that the policy alterations aren’t only a vanity play. In fact, the changes were in large part prompted by an edict put forth by the Irish Data Protection Commissioner, who laid out several online privacy points Facebook would have to rectify in order to qualify for the EU Safe Harbor list.

All that said, the changes also knock down several information-sharing barriers, which will allow Facebook to grow, grow, grow and share, share, share (your data…that is) for revenue!

So if you’re interested in learning what Facebook plans to do with all your info, grab a cold one, as it’s time to pick apart their new privacy policy to see what changes are in store and how it will affect you (the user who did not become a multi-millionaire today).

Mundane Language & Housekeeping Changes In Facebook’s Online Privacy Policy

Before we get to the juicy stuff, let’s get the mundane language-clarifying/housekeeping changes out of the way.

  1. The word “post” has been largely replaced with “timeline.”
  2. Facebook’s European Union Safe Harbor certification was added.
  3. New language and explanations were added about the “activity log” functionality.
  4. Actual addresses of where you can snail-mail questions and concerns have been added.

Now let’s get to the points that online privacy pundits (both professional and armchair) will be talking about over the next four weeks.

The New Facebook Privacy Policy: We Want To Know Your Gender!

In the previous version of Facebook’s privacy policy, your profile picture, user ID, and network were listed as perpetually publicly available. In this knew iteration, gender has been added to the list. In the policy, Facebook says the addition of gender disclosure is so they “can refer to you properly” – but common sense says using someone’s profile name is the safest way to refer to them “properly.” Unless Facebook’s true intent is to transport us back to Edwardian days, when not to address someone using a male/female identifier was an insult, making gender a publicly available data point most likely has to do with ad targeting…but hey, that’s just me being cynical.

Your Private Life Is at the Mercy of Your Facebook Friends’ Whims

Sure, you may have considerable control over your own Facebook profile/timeline, but the new privacy policy makes it clear that your friends have a lot of control over your profile/timeline, too. What on earth do I mean? Well, the new terms clearly state that although some data, like group posts or messages, is not stored in your account, if you do delete your account, past “public” information associated with you does not get deleted.

The authors of Facebook’s new privacy policy also took the time to lay out an example of how your friends can foil any plans for secrecy you may have.

“Although you choose with whom you share, there may be ways for others to determine information about you. For example, if you hide your birthday so no one can see it on your timeline, but friends post “happy birthday!” on your timeline, people may determine your birthday.”

They also point out that if you originally comment on a story/post that your friend had marked private and your friend later decides to make said story public, any comment that you left on the story will also become public. In other words, never write anything on Facebook you wouldn’t ever want becoming public knowledge, even if your friend swears up, down, backwards and forwards that they will never make the story public; if you don’t want to kick yourself down the line, don’t post any thoughts or pics you want to remain private now – or ten years from now.

Oh, and, Facebook’s new privacy policy also now says that they receive information about you from friends and “others.” (Hmmm, I wonder how much info Jacob has on me?)

Ummm, We’re Gonna Stalk You, K?

Another point Facebook makes clear in their new privacy policy is that they plan to keep abreast of your location coordinates. Specifically, they may “retain the GPS coordinates of your last location-tagged post to send you relevant notifications” like “if any of your friends are nearby.” (Hint: If you’ve had a bad falling out with someone, you may want to look into blocking them from your Facebook completely, as it may not be to fun to have a foe clued in to your location.)

Sharing Is Caring (And A Great Way To Raise Revenue) So We’re Going To Do A Lot Of It

One of the most dramatic changes in Facebook’s new privacy policy is the added language that lets users know: “Yo! We intend to share your information with third parties; get used to it.” (Hey, how else are they gonna make enough revenue to live up to this IPO?) A detailed explanation of how the platform uses cookies is now also up on the Facebook privacy hub.

Facebook’s online privacy policy also asserts that:

  1. Your information can be used for “internal operations, including troubleshooting, data analysis, testing, research and service improvement.”
  2. Facebook is allowed to make photo tag suggestions based on your data.
  3. Apps you visit or use will be supplied with your age so they can serve up age appropriate content.
  4. Pretty much everything you do and share on Facebook can be used to target ads to you.

So yes, in order to use the site, all of Facebook’s 900 million users, must comply with the rules above. If you’re cool with them documenting every move you make on the platform (and beyond), go for it! (Just remember that they also mentioned in this new privacy policy that “Facebook doesn’t guarantee it can protect you from spam.”)

Copyright Infringement Case: Georgia State University

book copyright infringement case
Is it legal for universities to copy extended portions of books without committing copyright infringement?

In 2008, Cambridge University Press, Sage Publications and Oxford University Press filed an intellectual property lawsuit in the U.S. District Court against Georgia State University. The publishers accused the University of copyright infringement relating to the distribution of published materials to students. The complaint was not that the University distributed excerpts, it was that they disseminated such a large amount of verbatim information.

Professors Have Special Fair Use Leeway In Copyright Infringement Cases

According to the Fair Use Doctrine (17 U.S.C. § 107), university professors are allowed to use copyrighted material in modest amounts to assist students in learning the subject matter.

Judge Evans’ ‘Two-Edged’ Fair Use Copyright Infringement Case Decision

Despite the teaching exceptions in the law, there has always been a limit to the amount of information that is allowed to be distributed without paying a licensing fee, as well as certain standards that must be met to qualify the use as “fair.”

Fair Use was adopted as part of the Copyright Act of 1976, well before the advent of the Internet. While it’s broad enough to encompass use on higher-education websites and within the curriculum of virtual universities, this is the first time a case has been presented to the court based on violation of the doctrine via online mediums.

The May 11, 2012 Decision of Senior U.S. District Judge Orinda Evans created quite a stir in both the scholarly community as well as the publishing industry. While Judge Evans found that Georgia State University did violate copyright infringement laws, in the instance of five excerpts, she rejected 69 of the copyright claims in the complaint. In the Decision, she stated that “fair use principles are notoriously difficult to apply” and set the standard that universities are permitted to reproduce no more than ten percent of a book or no more than one chapter from a book with more than ten chapters.

Judge Evans even stated that she understood her ruling to be a “two-edged sword” because allowing the reproduction of copyrighted works will promote the spread of knowledge, while at the same time potentially reducing the ability of publishers to produce those same academic textbooks that spread knowledge. If her decision is upheld by the Appeals Court, colleges and universities will be permitted to continue to manage online reading rooms that hold excerpts of scholarly works for students to read and download for educational purposes.

Counsel for the publishers were disappointed with Judge Evans’ decision, referencing that it was based on the 2009 copyright policy for the University System, which was introduced one year after the lawsuit was filed.

This case garnered a great deal of attention from publishers and the academic world as it sets the precedent for how universities and other educational institutions can use published works in their curriculum, especially in this digital age. It was the first case to both analyze what constitutes fair use and directly address non-profit higher education’s use of protected works. While the decision will stand as law for all universities and colleges in Georgia, it will be used as the persuasive authority for educational copyright cases throughout the United States.

CALEA Expansion Could Mean Increased FBI Wiretapping Breadth

CALEA
Is the federal government going to extend their wiretapping abilities via CALEA?

Public protest against proposed Internet laws, like the Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA), has plagued the past twelve months. But according to CNet.com, it looks like a highly controversial amendment to the Communications Assistance for Law Enforcement Act (CALEA) — which seeks to extend the FBI’s electronic wiretapping abilities — is quietly being passed around hallowed government halls. The Department of Justice already approved the amendment, and word on the street is that high-level meetings between officials and tech companies are being planned to discuss next-steps and potential problem points.

The crux of the proposal addresses the FBI’s fear of “going dark” – a term used in the Bureau for not being able to legally monitor electronic information, which, officials aver, weakens our country’s ability to identify and thwart national security threats. Essentially, the changes sought will give officials “backdoor access” to social networks, VoIP and webmail providers – meaning they would be able to “tap into” a digital communication platform when investigating.

Granting the Feds special access to electronic communication systems is a scenario most citizens and privacy stalwarts eschew, but are their concerns enough to silence the loud bi-partisan drum beating inside the beltway for expanded wiretapping abilities?

The Communications Assistance for Law Enforcement Act (CALEA)

Originally authored by Senator Patrick Leahy, H.R. 4922 (a.k.a. The Communications Assistance for Law Enforcement Act) outlines allowable wiretap procedures. Originally enacted in 1994, the bill was amended once in 2004 to include definitions and requirements for broadband providers.

As its written now, the bill only applies to telecommunications and broadband companies. Politicians and national security officials, however, want all 21st century communication tools (i.e., social networking websites, voice over IP platforms, web mail service providers, etc.) added to the list.

The Fear of Going Dark Prompts CALEA Amendment Proposal

We like to think of the U.S. intelligence and investigative agencies as powerful forces; we glorify their bad-ass-ness through shows like “24”, “Homeland” and dozens of other procedurals. And while it’s true that we may voice concern over their tactics from time-to-time, we also have full confidence in the sleuths tasked with keeping us safe.

But those same super-spies say they can’t do their jobs properly without expanding CALEA. The state of “darkness” created due to their inability to access new communication avenues, they say, presents a gravely serious national security problem.

Reports indicate operatives and officials have been worried about “going dark” since 2006. As such, they’ve worked to strengthen the National Electronic Surveillance Strategy. Ostensibly, the addition of provisions that allow for expanded wiretapping capabilities will further their cause and mitigate fears about “going dark.”

Proposed CALEA Wiretapping Amendment Provisions

While the exact language of the proposed amendment has yet to make its way online, chatter suggests changes will involve making sure all communication technologies — not just phone and broadband — are covered. That means technology companies would be required to add a digital “backdoor” to their programs that, in theory, can only be accessed by authorized federal agents with proper warrants.

The way(s) in which this will actually happen, though, have yet to be laid out for inspection. Those in the know suggest the act will provide a “safe harbor” for communications companies (much like the DMCA aims to do for ISPs in defamation and copyright infringement lawsuits), so long as the attorney general determines the interception data collection techniques are “good enough.” Others have hinted the amendment may actually be more of an agreement to share data (which, actually, sounds a lot like CISPA – a bill recently passed in Congress with significant online privacy implications).

If the CALEA proposal does include a technology requirement, the current belief is that it will include compliance provisions. (Yep, the government will help companies foot the bill for implementing the new “backdoor” technology – kind of makes you wonder where they’re going to find the budget for this; but that’s another discussion for another day.)

Spokespeople for industry lobbyists have also expressed a desire to see safeguards that protect against the disclosure of trade secrets in court. In other words, the big-wigs don’t want their R&D (or dirt) inadvertently ending up in a public court filing.

Lastly, it’s widely believed the requirements will only apply to companies and platforms that surpass a certain user threshold. If true, when you think about the stated purpose of “national security,” this footnote seems astoundingly counterproductive – we’ll get to why in a few.

What The Anti-CALEA Crowd Is Arguing

Anti-CALEA-expansion advocates feel the changes cross privacy lines and increase the risk for hacking tomfoolery. (Have officials already forgotten the Sony/FBI/Financial Institution privacy debacle of 2011? If last year taught us one thing, it’s that more electronic access points in a given platform spell heightened security breech trouble.)

Trade associations and lobbying firms, like TechAmerica, point out that if passed, the CALEA amendment could mark a “sea change in government surveillance law [that would probably result in] significant compliance costs [for tech firms].”

Many are also concerned about how expanding the reach of CALEA will affect open-source projects. Will the cost of developing and maintaining the wiretap technology be too cost prohibitive for smaller start-ups and tech non-profits? Those pushing for the bill insist there will be pecuniary provisions to eliminate unfair barriers to competition and compliance. Moreover, many smaller operations may not even have to comply with the act if their user base is small.

Security vs. Privacy: The Great 21st Century Legal Debate

This new CALEA amendment is one of many statutes reviewed over the last decade that grapples with the question of security vs. personal privacy in the digital age. And like the bills before it, these alleged new CALEA amendments also fall short at striking a happy balance.

Which brings us to the national security point I promised we’d explore a smidge more. Check it: If the FBI and intelligence officials truly believe these new CALEA provisions are necessary to safeguard our nation (presumably in part against terrorist attacks), is it not silly for them to say, “Yeah, we only want to be able to access the most popular sites, platforms and communication systems. Those smaller ones that hardly anybody uses can do what they want.” Not to be cynical, but won’t would-be evil-doers choose to use little trafficked tools not under the watchful eye of “big brother” FED? Because let’s face it, cyber criminals — with an end-game of violence — may be terrible, but they’re not dumb; as such, the inclusion of the “user threshold limit” seems supremely counterproductive.

Let The CALEA Expansion Lobbying Games Begin!

Apple has already fired up their lobbying engine to attack the topic; Microsoft has made it known that they’re watching the CALEA developments closely; and at the time of this writing, Google, Facebook and Yahoo have yet to comment. (Perhaps because they, too, are eager to loosen online privacy statutes in order to allow for more sharing…which means more advertising revenue).

In an age where both privacy and security are equally valued, laws affecting both will continue to remain front and center on the Internet law stage – and you can expect the CALEA amendments will start garnering increasingly more press as the powers that be move forward on the issue.

Michigan Internet Cafes Shut Down for Illegal Gambling

Internet cafes
Michigan’s attorney general shuts down Internet cafes for illegal gambling.

Forget the rough economy, if you believe reports, Illegal Internet cafes are Michigan’s current scourge. According to Michigan officials, many seemingly innocent WiFi-friendly “tech-eries” offer illegal services – and as of May 3, 2012, eight Internet cafes in Grand Rapids, Saginaw, Lansing and Flint were shut down indefinitely after receiving state-issued cease and desist orders.

You Ain’t No Stinking Internet Café, You’re An Illegal Gambling “Pop Up” Casino

According to authorities, the targeted establishments are not ordinary Internet cafes that only offered basic web surfing. Oh no, the naughty establishments allegedly lured customers with a chance to win cash or a free sweepstakes entry. Michigan’s Attorney General, Bill Schuette, says the cafes are unregulated “pop-up” casinos. The state’s main issue (and legal stance) is that these Internet cafes are offering customers a chance to win cash rewards without the requisite gambling licenses.

Tucked in between tanning shops, restaurants and other strip mall staples, these cafes display brightly colored full-length signs that entice customers to surf the web and win cash. One Internet cafe even uses the business name “Monte Carlo.”

Operators Insist Customers Are Only “Buying Internet Time” Not Gambling at Internet Cafes

Despite state officials’ insistence on the illegal nature of the cafes (which use casino-style gaming software), proponents say customers are only buying Internet time.

online gambling
Michigan is cracking down on Internet cafes that offer games of chance and gambling.

Investigations revealed that an arguably elusive Michigan-based company known as Innovative Entertainment is responsible for licensing this software. The cafe’s computer systems feature Internet access with added games of chance. Customers can earn points while playing games, which can be redeemed for cash rewards. Other locations give customers free sweepstakes entries when they purchase Internet time.

Illegal Gambling Is Frowned Upon In Michigan But Some Think There Aren’t Actually Any Regulations Against It

Like many states, Michigan has strict illegal gambling laws. In fact, the Michigan Gaming Control Board published an explicit statement regarding Internet sweepstakes cafes. According to the organization, there is no exception in the penal code regulating illegal lotteries and gambling.

Furthermore, criminal misdemeanor punishments for individuals who maintain gaming rooms, casino tables and games of chance or skill include a $1,000 fine or up to two years in prison. While the attorney general found a statewide crackdown to be the most effective way to target these establishments, local officials are less enthusiastic. Davison Police Chief Bill Brandon said that the businesses seemed to conform to commercial zoning regulations, but his organization would assist with any enforcement efforts.

Until recently, even the prosecutor in Genesee County was unaware of the issue or the presence of such establishments. The prosecutor said that these businesses are taking advantage of a legal gray area and engaging in activities that state laws don’t permit but don’t explicitly prohibit.

Currently, business owners have voluntarily ceased operations, and Innovative Entertainment agreed to remotely disable the software. This issue brings up a double legal standard where companies like McDonald’s are permitted to run contests that encourage customers to buy more.

While the Internet cafes are not de facto casinos, state officials may need to enact new laws to combat these increasingly popular businesses.

Another Illegal Downloading (a.k.a. Copyright Troll) Lawsuit Shattered By Judge

Copyright Trolls Shut Down Once Again By Judge In Illegal Downloading Lawsuit

Four porn studios who sued unknown or anonymous John Doe defendants for copyright infringement recently saw their case suffer a serious setback.New York Magistrate Judge Gary R. Brown found the studios to be engaged in abusive litigation tactics.

Brown severely limited their discovery requests for detailed personal subscriber identifying information from Internet Service Providers (ISPs). Brown also found the studios had improperly joined defendants in an effort to avoid the costs of filing individual lawsuits. He ordered that all but one John Doe be dismissed from each case. One studio’s entire case was dismissed when it admitted that it did not own a copyright on the downloaded films.

It Started Like Nearly Every Other Copyright Troll Lawsuit

The plaintiffs claimed their copyrights were infringed when the John Does downloaded the studios’ copyrighted films using BitTorrent technology. The studios sought to discover, from the ISPs, the “name, address, telephone number, e-mail address, and Media Access Control (“MAC”) address of the defendant to whom the [provider] issued an IP address.” In the eyes of the studios, the subscriber was the infringer. The theory being: if the subscriber’s information is revealed, his or her name would then be substituted in the lawsuit in place of a John Doe.

Magistrate Brown Compares An IP Address To A Telephone Number & Therefore Is Not Suitable Evidence To Warrant The Disclosure Of PII

In denying the discovery request, Magistrate Brown noted that an IP address only identifies the location where any number of computers may exist. Claiming the subscriber to that address was the one who downloaded the film, according to Brown, was no more likely “[T]han to say an individual who pays the telephone bill made a specific telephone call.”

Brown also noted that one subscriber can have numerous computers used simultaneously by a number of different people. With wire-less connections, unknown people could be using a subscriber’s ISP. A company or business may be an ISP subscriber that allows access to employees, customers, or clients.

Since there is no way to determine the true downloaders identity via ISP records, granting the studios’ discovery request would have created too great a risk for the potential of innocent Internet users being drawn into litigation. Thus, Brown denied the discovery request finding that “the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”

Judge In Illegal Downloading Case Realized Plaintiff’s Primary Goal Was To Push For A Settlement

It also appeared, to the judge, that the studios primary reason for wanting the information was to pursue settlement with identified defendants – defendants who would likely not want to go to a public trial for downloading pornography. This type of abuse was verified when one identified John Doe presented uncontroverted evidence that he had offered the studios unfettered access to his computer; he also offered all discovery they might need to prove he was not the infringer. Instead of taking him up on his offer, the studios badgered him repeatedly to settle.

Judge Said Joinder Was Inappropriate In Illegal Downloading Lawsuit

Magistrate Brown found the studios had engaged in other abusive litigation tactics by improperly joining a large number of defendants in one lawsuit. The studios claimed that the joinder was proper because all the defendants were “acting in concert” to violate the copyright and that each case was based on common facts. Brown debunked both of these theories.

First, the dates of the alleged infringements were often weeks or months apart so the “acting in concert” standard was not met. Neither was the standard of “common facts” when it was noted that at least six of the already known defendants had individual defenses and the only way that they could defend themselves was on an individual case by case basis.

Brown noted it was more likely the studios were filing a single case with a large number of defendants in order to avoid a filing fee that would be involved with each individual case. In Brown’s district court that amounted to about $100,000 in filing fees the studios had “evaded.” Thus, Brown found the joinder to be improper and dismissed all but one John Doe from each case. If the studios intend to pursue their litigation, they must file each case individually.

Granted Limited Information For One John Doe In Illegal Downloading Lawsuit

For the one remaining Doe defendant in each case, Brown allowed the studios to obtain only the name and address of that one particular subscriber. No other information, such as email or telephone number, would be provided.

Attorneys for the Electronic Frontier Foundation, was heartened by this ruling. Mitch Stolz, an experienced copyright attorney with the foundation, was quoted as saying, “There absolutely is a trend toward shutting down this sort of abuse of discovery.”

In fact, that trend is supported by Brown’s order where he cited several other district courts that have recently made the same rulings in similar cases. It can certainly be inferred from his order that he hopes other courts continue this trend.

Government Seized Website Dajaz1.com Without Evidence

Government Seized Website Dajaz1Court documents show the US government seized website Dajaz1.com for more than 13 months despite a glaring lack of evidence.

Federal authorities released documents related to the government seizure of hip-hop site Dajaz1.com. Papers show that the seizure was extended for several months because the Recording Industry Association of America (RIAA) couldn’t provide information about the alleged copyright infringements. No charges were ever brought against Dajaz1.com, and the website eventually returned to the Internet.

The documents discussing the government seizure of DaJaz1 were held secretly for over six months, but released after public interest agencies requested the papers.

Government Seized Website DaJaz1: Federal Possession & Investigation

Dajaz1.com was shut down by Immigration and Customs Enforcement (ICE) in 2010. ICE is a division of homeland security. The original shutdown is allegedly related to the posts of four tracks that had not yet been released. The owners of Dajaz1.com and the attorney for the website suggested that the pre-release tracks were given to the site by members of the RIAA.

Both the government’s and the RIAA’s actions in this case are questionable. First there is the government seizure of the website. This seizure was based on information that the RIAA provided government authorities. However, the RIAA failed to follow through with their allegations, and no evidence was supplied to show that Dajaz1.com actually violated any laws. The government proceeded secretly and refused to return the properly of the site’s owners or provide evidence to support their seizure.

Government Seized Website DaJaz1: Returns To Internet After Insufficient Evidence Of Wrongdoing

In December, 2011, the Federal Government finally allowed Dajaz1.com to return to the Internet. Until now, the reason why the government seized the website for so long was a mystery. Documents now show that ICE received two secret extensions for the seizure. The government granted the extension while awaiting evidence of wrongdoing from the RIAA and other parties involved in the copyright disputes.

This case raises serious concerns and leads many to wonder just how effective the 2008 PRO IP Act really is. Ultimately, the statute allows the federal government to seize any website; they can shut down and seize Internet pages without any evidence of wrongdoing.

As of today, ICE has an ongoing operation called Our Sites, which has seized more than 750 websites. The federal government also maintains it has the authority to seize and shut down any website that ends in .com, .net or .org — even if the site is hosted outside of the United States.

A Vodka Online Defamation Case with a Twist

vodka online defamation lawsuit
There’s a vodka defamation lawsuit fermenting.

The Chicago Reader published an article on the origin of Qino One Vodka in January 2009. An article titled “Seeds of Change,” which was posted on a comment-enabled section of Chicago Reader’s website, is at the center of this online defamation controversy.

Our mixed cocktail of online defamation woe begins in 2008. Business partners Christine Cooney and Jean-Denis Courtin manufactured and distributed a quinoa-based vodka called Qino One. Cooney was a spirits specialist and Courtin was a French restaurateur. A business dispute resulted in Courtin filing suit against Cooney and her husband Daniel.

Open Mouth, Insert Foot

Allegedly, Daniel Cooney, upon seeing the article in February, felt compelled to post a comment claiming partial ownership of the Qino One Vodka product. In his comments, he described Cartwright as a young and socially-conscious freelance attorney who had been “conned” into “bleeding his partner” via endless exorbitant legal delays and litigation in Federal Court.

Cartwright subsequently responded in March, accusing Cooney of malicious intent and trying to harm Courtin’s business ventures and reputation. She described Cooney’s actions as an act of desperation in an attempt to sway Courtin into dropping the suit.

Now, here’s where a bit of prudence might have saved Cooney from himself.

Less than a week after Cartwright’s response, Cooney threw caution to the wind. He decided it was OK to add his own brand of sarcasm, thanking Ms. Cartwright for joining the conversation. However, he didn’t stop there. He went on to allege that she played a major part in the advancement of Courtin’s “fraud scheme.”

Sharpening his tongue, Cooney suggested Cartwright might even be considered a “metaphoric” partner in crime! He then surmised that she must be expecting a large reward, at rainbow’s end, should she succeed in neutralizing the Cooneys. One might think Mr. Cooney had said his piece – but they’d be wrong.

He then went on to claim that when he asked Cartwright if her client’s truthfulness bore any relevance to her, she said the truth was irrelevant in this instance. Furthermore, he strongly suggested that Cartwright significantly influenced the manipulation and prolonged effects of Courtin’s malicious, fraudulent and destructive behavior.

The lawsuit twixt Cooney and Courtin eventually settled in September. However, Ms. Cartwright’s determination to set other things straight did not, and she subsequently sued Cooney for tortious interference and defamation.

Adding Defamation Injury to Insult

Cooney complained to the Illinois Registration and Disciplinary Committee about Cartwright’s alleged behavior. In addition, he also sent a memo to U.S. District Judge Elaine Bucklo wherein he accused Cartwright of “making misrepresentations” amid the settlement negotiations. He also claimed Ms. Cartwright lied to the U.S. Patent and Trademark Office in the process of acquiring a patent for the Qino One Vodka formula.

During the defamation lawsuit trial, Defendant Cooney argued that his statements to Judge Bucklo and the ARDC were political expression and protected by the ICPA, the Illinois Citizen Participation Act. He argued he only made those comments to government officials in an attempt to receive favorable government actions.

Online Defamation Check Please

However, the District Court determined that while Cooney’s comments may have been protected, his defamation of Ms. Cartwright wasn’t. That, coupled with his intent to inflict emotional distress to Cartwright, were the real issues at hand. Since  defamation and intent was the topic under review, the judge disallowed Cooney’s defense of mere political expression.

So, what have we learned? Perhaps Mom said it best, “If you can’t say something nice about somebody, you had better keep your mouth full of pie….or risk an online defamation lawsuit.”

Google Online Privacy Safari Snafu Angers FTC

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Federal Trade Commission Expected To Levy Huge Fine Against Google

Recently, a Stanford student, Jonathan Mayer, uncovered a snafu in the way Google handles cookies in Safari – and the disclosure could cost the search engine corporation a pretty penny. You see, Google told Safari users they were protected and didn’t need to opt-out of Google’s cookies. What Google forgot to mention, however, is a little-known loophole used to track users’ data and web surfing habits.

How The Cookie Loophole Bypasses Online Privacy Protections

Google Adwords operates a service called Double Click. In theory, only users who click on the advertisement and interact with it can be tracked by cookies. To get around this requirement, Double Click sent out invisible forms that made Safari believe the user was interacting with the ad. As a result, the user’s computer allowed cookies to track their data. When users asked if they could opt out, Google advised it wasn’t necessary since Safari protected against any advertisement misuse.

Will Google Have To Pay Up For Safari Online Privacy Breach

Always eager to levy fines, the Federal Trade Commission is expected to force Google to cough up a few million as punishment for the security breach.

Since Mayer noticed, and pointed out, that the cookies placed in his browser were specifically created to avoid the protections Safari had in place, the FTC will most likely use this as an example-making incident.

In other words, the commission has grown a reputation for being, as an anonymous source in Bloomberg news called it, “all bark and no bite” – and a substantial fine would signal that the FTC does, actually, mean business when it comes to online consumer privacy and protection.

The Future of Online Privacy In The United States

Google said that none of the cookies were intended to collect any personal information about the consumer. After careful review, the Federal Trade Commission is now faced with a difficult decision. If they choose to find the company guilty, Google could be forced to pay fines that total more than $10 million.

In the past, the FTC has tried a more diplomatic approach to e-privacy compliance. However, online privacy has become a popular topic; citizens are starting to voice their displeasure with the lack of online privacy laws; so in response, the FTC has vowed to start getting serious about online consumer privacy.

And so, the online privacy battle rages on. The question still remains, though, if we will ever see a universal online privacy policy passed in the United States.

For the most part, successful Internet-based companies don’t want to see a universal privacy policy, since not having one means more opportunity for high-revenue, targeted marketing. The average Jane or John, however, isn’t too pleased with the lack of online privacy. Yet, according to a report last year in USA Today, John and Jane also want online services to remain free. In other words, it could be quite a while before there’s a resolution to the complex problem of online privacy.

Get Rich Quick Businesses Get FTC Smackdown

If you’re an online or affiliate marketer who runs a “get rich quick” operation, the FTC judgment against Jeff Paul’s Shortcuts to Internet Millions, John Alexander’s Real Estate Riches In 14 Days, and John Beck’s Free & Clear Real Estate System should be of particular interest to you.

Why?

Well, it looks like the FTC is to be awarded $450 million dollars after finding the named “get rich quick” websites and infomercials to be misleading and in violation of both the FTC Act and the telemarketing sales rules.

FTC Investigation Against Get Rich Quick Scams

After receiving many complaints against the get rich quick defendants, the FTC began an investigation into the business procedures and marketing campaigns of some of the most successful “get rich quick” networks around.

According to reports, the businesses engaged approximately 1 million private citizens with their programs. Consumers paid $39.95 to purchase a program that teaches one how to “get rich quick” via various real estate and Internet businesses. Now, that would have been fine if a respectable percentage of the participants made money, but according to reports, less than 1% of those who gave it a shot made a profit.

What The FTC Deemed Misleading About These Get Rich Quick Companies

The point the FTC lawyers found most corrupt was the use of a “continuity program.” Apparently, the defendants dinged users’ credit cards an additional $39.95 per month to stay “enrolled” in the program. The problem is they didn’t make this fact clear in their marketing material and website disclaimers. Moreover, a “personal coaching program” was made available to consumers for the price of $14,995, but nearly everyone who took advantage of the advanced option lost money.

The FTC put out a statement in which they said this judgment against get rich quick operations was one of the largest the commission has ever won. They also vowed to continue their fight against misleading and false advertising.

If you dabble in affiliate marketing or run an get rich quick program, it’s a good idea to retain the counsel of an affiliate marketing lawyer. Make sure that your operation is on the right side of the law, so that you, too, don’t have the FTC beating down your door.

UK Makes Move In An Attempt To Stop Online Piracy

online piracy
The UK High Court Has Said That Broadband Companies Must Block The Pirate Bay. Will It Work In Stopping Online Piracy?

Officials in the United Kingdom have made a bold move in the Internet copyright infringement and online piracy battle; they’ve ordered broadband providers to block infamous torrent search engine, The Pirate Bay.

But many feel the High Court’s decision will do little, if anything, to thwart pirates’ online piracy plans.

What Is The Pirate Bay? Why Do Officials Consider It Such An Online Piracy Threat

Nearly every article about online copyright infringement law mentions ubiquitous torrent site, The Pirate Bay.  One of the most well-trafficked websites in the world, The Pirate Bay consistently ranks in Alexa’s top 100 worldwide.

Now you may be wondering, “well, if it’s a known site for online piracy, why can’t governments shut them down easily?” The legal crux is in the nature of the website itself. You see, The Pirate Bay does not host any illegal torrents on its servers; it simply acts as a search engine for said torrents. And since many countries legally prescribe to the precedent that linking to material alleged to be in violation of intellectual property statutes is not illegal, it’s tough to find a way to shut down these sites without walking dangerously close to the censorship line.

High Court’s Online Piracy Decision

Despite the fact that The Pirate Bay only acts as a search engine, and does not host the actual infringing content, Justice Arnold of the England and Wales High Court decried that the website “actively encourages copyright infringement” on a “grand scale.” The judge also chastised the site’s operators, saying that they treat “any attempts to prevent [copyright infringement] with contempt.” He also opined that The Pirate Bay was undermining new British musical talent.

And then Judge Arnold dropped the bomb and passed an edict that broadband companies must block The Pirate Bay.

TalkTalk, O2, Virgin Media, Everything Everywhere and Sky have all announced their plans to comply. BT is still reviewing the proposal, but are expected to fall in line as well.

According to various reports, the broadband companies will be using technology similar to pornography blocking software.

Will The UK High Court’s Ruling Effectively Combat Online Piracy?

The question is, though, will the UK High Court’s decision actually succeed in combating online copyright infringement? Most tech-savvy people are saying, “probably not.”

After all, those who actively use torrent sites also know how to block their IP address and other handy illegal downloading tricks of the trade. In fact, TorrentFreak.com has already published an article explaining how users can take advantage of programs like i2p TOR, and other VPN options; they also advocate switching to an open DNS. The UK pirate party has also announced plans to operate a “proxy workaround.”

Moreover, analysts point out that by taking such an extreme action against online piracy, the court has inadvertently made the pirates Robin Hood-esque heroes. Not to mention that this ruling puts the cost onus on the ISPs, not the infringers.

And as they say, there’s no such thing as bad publicity. Since the news broke about shutting down The Pirate Bay in the UK, operators of the site say they have seen 12 million new visitors to the site.

Bottom line: blocking access to torrent sites is going to do very little to stop online piracy. And we can chase the problem with laws all we want to no avail. The truth is that some of these media distributors should probably start looking for more innovative ways to deliver content to the masses more quickly. After all, it’s the Internet-age, and I bet the movie studio or record label that first figures out a way to satiate our instant gratification needs, at a “new economy” price-point, will reap significant financial rewards and turn a large portion of the online pirates into paying customers.

Defamation Plaintiff Arrested for Having Sex with a Student

In a bizarre postscript to a high profile defamation case, Sarah Jones, a high school English teacher and the current captain of the Cincinnati Bengals cheerleading squad, has been indicted for having sex with a high school football player. Police claim that Jones had four or five sexual encounters with the student, and that she sent him numerous inappropriate text messages. Jones’ mother, who is the principal of the school, has been accused of tampering with evidence to protect her daughter. Both Jones and her mother claim complete innocence.

Jones subsequently resigned her position at the school but is still officially the captain of the cheerleading squad. A spokesperson for the Bengals said the team would not take any action until further information was available.

Jones first attracted national attention when she filed a defamation lawsuit against Nik Richie, founder of TheDirty.com. Richie posted a picture of Jones on his website, accompanied by a caption that claimed Jones had had sex with numerous members of the Bengals. Richie also claimed that Jones had a sexually transmitted disease, an important piece of evidence in a defamation case. Plaintiffs are usually required to prove that they suffered actual injury and that the defamatory statement caused their damages. Accusing someone of being infected with a loathsome and communicable disease, however, is subject to the doctrine of defamation per se. When a statement is found to be defamatory, courts do not require the plaintiff to prove damages.

Jones claimed that the pictures ruined her reputation and damaged her career. Jones attempted to take pre-emptive action, informing her students of the accusations and assuring them that the statements were false. To help her students understand, Jones compared her situation to being bullied on the Internet by a classmate. Jones’ efforts were only partially successful, however; in an interview with the news program “20/20,” she reported that a female student told her she refused to “learn from a slut like me.” According to Jones, she struggled throughout her life to earn and maintain a good reputation, a reputation Richie destroyed with a single online post.

After Richie refused two requests to remove the pictures, Jones filed a defamation suit in federal court. When Richie did not appear to defend the claims, the court granted a default judgment in Jones’ favor. Riche has appealed the judgment, and the case is scheduled for a hearing in June.