Cyberlaw Central

I’ve been much more active lately on Twitter than here on the blog, for a variety of reasons. Most of them are work related, it’s nice to be busy! With the limited time I’ve had, it’s been much easier to post quick links to interesting articles on Twitter. For those of you who don’t follow me there (here’s a link), here are some of the more interesting tweets from the last month:

- New WPA encryption hack – To be secure, wifi users should switch to WPA-2 or WPA-AES standards. http://is.gd/2C7FL
- RT @CanadianPI: The security risks of “Free Public WiFi” http://bit.ly/9INRj
- More SCO lawsuit news coming, thanks to the 10th Cir. overturning the 2007 decision re: ownership of UNIX – http://is.gd/2xY4C
- RT @HostExploit: The US-CCU issues a report on a one year old cyberwar because? http://bit.ly/j7wkH
- RT @windycitizen: 7 crimes you can commit that cost less than downloading music. http://windycitizen.com/wdzF
- Wow, predictive blacklisting could block internet attacks before they happen – http://is.gd/2oAkL
- Interesting study of the M. Jackson death coverage on Twitter – “Detecting Sadness in 140 Characters.” http://is.gd/2osvD
- Reading about the latest Facebook privacy lawsuit, it’s a laugher. http://is.gd/2mPbG
- Reading how yesterday’s Twitter and Facebook outages were DDOS attacks against one user in the Republic of Georgia – http://is.gd/26O8b
- From NetworkWorld, a Latvian ISP was cut off by its upstream provider due to ties to cybercrime. http://is.gd/24Tmq
- The acting Cybersecurity Czar has stepped down. http://is.gd/22a0V

Enjoy,
Kevin

Welcome to 2009! Postings here have been light at the end of 2008 due to other considerations, such as work and sleep. Let’s see if 2009 brings the planned regular posting schedule. I’ve still been active online, just not here. You can follow me on Twitter at @cyberlaw.

The most interesting link to share recently is for the final report of the Commission on Cybersecurity for the 44th Presidency. The conclusions seem rather predictable at first glance, but there are some good nuggets in the report itself. In particular, in the “Regulating for Cybersecurity” section which begins on Page 49 (Page 55 in the downloadable PDF from the above link), there are recommendations for increasing the use of secure protocols by mandating that the government only contract with entities that use secure protocols themselves.

Another item I’ve been remiss in doing is posting my recommendations for Blawg Review of the Year in 2008. As a past host in 2008, I am eligible to post my favorite reviews. The winner will then be tabulated and announced later. My list, in no particular order other than numerical, are as follows:
- Blawg Review 148, hosted by Brett Trout. I gotta love Internet memes, even Rickrolling.
- Blawg Review 182, hosted by newly minted lawyer Dave! Gulbransen. Go ahead, take Dave’s test.
- Blawg Review 189, hosted by Colin Samuels. What can I say except that Colin does fabulous work.

Good job, all. I host again on May 25th…

That’s enough ramblings for one day, more regular posts will (hopefully) follow.

A good article over at the Wall Street Journal on the recent controversy over warrantless searches of laptops was pointed out to me by Venkat Balasubramani. Thanks, Venkat!

The article is worth reading as it discusses the recent cases involving searches of electronic items at the border (based upon a “reasonable suspicion” test), and contrasts that to searches the police can do when you are stopped for another reason. The latter doctrine is called “search incident to arrest” and is meant to allow the police to search the person’s immediate possessions, or “containers,” to search for items that are dangerous, like a gun, or from concealing or destroying evidence. The question is whether the same doctrine will allow the police to search your cell phone, iPod, or laptop.

It’s an untested area of the law, and one which can be debated. Certainly, it is easy to imagine a scenario where a person is able to quickly wipe the memory on the laptop, etc. before a regular warrant could be obtained. The flip side would be that the officer could detain the item for a short period of time until a warrant could be obtained.

Any thoughts? Let me know in the comments.

Here’s a link to a great article by Professor Lessig on the need for copyright reform. Despite the article’s title, he’s really not defending piracy per se, but merely noting that the law criminalizes certain behaviors that he believes should instead be encouraged. It’s well worth a read.

Posting here on the blog has been rather lax lately, I’ve apologized directly to those who have inquired. I’ve been busy with work, as well as some speaking. For example, I did a repeat of my copyright presentation to the Chicago Bar Association’s seminar on IP law for non-IP attorneys on October 1st.

Interested people can also follow me on Twitter, my profile is at http://www.twitter.com/cyberlaw. The discussions there are limited due to the 140 character limit per post, or “tweet”, but I believe it is a worthwhile forum. Topics are wide ranging and are usually non-legal, so caveat emptor.

In the meantime, enjoy the above-linked article.

I was honored to be asked to participate on the excellent Lawyer 2 Lawyer podcast on the topic of the recent stipulation entered into between Viacom and YouTube (Google) over user data that the Judge in that case ordered to be turned over to Viacom. My fellow guest was Lauren Gelman, the Executive Director of Stanford Law School’s Center for Internet and Society, and the discussion was very good. Of course, the hosts, J. Craig Williams and Bob Ambrogi, did their typically great job as well. I regularly listen to show during my commute, so it was fun to be on it for a change.

Please feel free to leave comments on the podcast here.

Here is a link to the show page, where you can download the show or listen online. You can also use the links on the left side of the page to subscribe to the show in Itunes.

The results of the FCC’s wireless spectrum auction are of particular interest to more than just people in the telecom industry, as it will significantly impact how people access the Internet for years to come.

It’s no big surprise that Verizon is the big winner, but I especially enjoyed reading Susan Crawford’s analysis of the issue of what Verizon will do with it entitled “Why Block C Matters.” Susan is an ICANN board member, as well as a law professor at Cardozo Law School. I agree with her that it confirms the existing business model of handheld devices being used to access the Internet.

It also means that we’re going to have to deal with Verizon’s dominance in this segment of the market.

It also means that we’re going to have less options for wireless access than we otherwise would have had if others would’ve won the bidding.

It also means that we’re going to have a company who can bring market pressures to bear to discriminate against other carriers, all while promising in public to have an “open” network.

I wonder if we will someday look back on this day as the day in which the wireless Internet changed.

Mike Masnick at Techdirt has written the latest in a series of posts which discuss the rationale and basis for what we think of as “Intellectual Property.” It’s a well written series, I’d recommend that you read it. I don’t agree with all he says, but it’s well reasoned.

It’s of particular interest to me because I often counsel people on their creative endeavors who do not know what regime under the umbrella of “intellectual property” their particular endeavor is best, whether it be trademark, copyright, patent, or trade secrets. It’s also interesting because people often think of “cyberlaw” as being the intersection of intellectual property and the Internet, but it really is much more than just that. It’s the application of both new and existing legal principles, whether they be IP or other regulations, to the Internet and other avenues of electronic communications. As more and more businesses go online, it’s rarer that people won’t have some issue that intersects with cyberlaw at one point or another.

Turning back to the article, to me the most important rationale for copyright and patent protection is the protecting the right of the creator to control the use, distribution, or exploitation for their ideas for a limited period of time. Trademark is a slightly different rationale, in that trademarks are tied into a consumer protection rationale and the right to identify the source of particular goods or services to avoid consumer confusion.

So, what rationale do you think is best to apply? Also, what term would you use other than “intellectual property” if you had a choice to do so? Those are certainly interesting questions posed by the article. Food for thought, as they say.

Raymond Niro, principal of Chicago firm Niro Scavone Haller & Niro, has posted a $10,000.00 reward for the identity of the anonymous patent blogger, “Troll Tracker.” For a discussion of the issues, here’s a link to the ABA Journal article on the subject. Full disclosure – the “Kevin A. Thompson” who posted in the comments is not me.

For the record, while I support anonymous speech, harmful speech cannot be supported. Until the “Troll Tracker” reaches that level, he or she is entitled to keep posting. And, until then, Mr. Niro’s reward is one of the few options he has to determine who the anonymous blogger is. But, when he or she does reach that level of harmful speech, then Mr. Niro may have more legal options to compel the disclosure of the identity. I just hope that the reward doesn’t have an unfortunate consequence – the “Troll Tracker” points out that his site is being hacked, which is itself a crime.

That comment from another “Kevin A. Thompson” is what made me want to write about this topic – I thought long and hard about how I was going to prove it wasn’t me. That’s the nature of identity on the internet – it’s hard to prove one way or the other. Essentially, we’re all judged by what we post or link or otherwise comment upon. While there can be an appeal to the ABA Journal’s records for some indicia of who made the post, there’s no link to wherever the poster claims as his own site. It’s just a name, posted online, in comments on a freely available site. And, it’s not me. For the record.

Here’s a link to the last post, written before his death, that blogger Andrew Olmstead wanted published in the event he died while serving in Iraq. He posted at the site Obsidian Wings as G’Kar, a character from Babylon 5. His choice of that character resonates with me as a fan of the show. The post is interspersed with some great quotes spoken through the series by that character as well as a few others, if you’re not already a fan of the show I can’t recommend it highly enough. And, it’s all available on DVD for you newbies.

What makes this particularly worthy of posting here are Andrew’s comments on the ephemeral nature of the web, that his last words will last only so long as someone continues to pay the hosting bill.

Here are a few short items of interest I’d like to pass along:

1) Conrad Jacoby has a great article on the electronic discovery of employee-owned computer equipment that was published at llrx. Here is a link.

2) If you’ve not already seen Michael Wesch’s video called Information R/evolution, check it out now. It only takes a few minutes, but is well worth it.