So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

Justice Scalia’s opinion emphasizes that we have no tradition in this country of sheltering children from violent depictions, and he catalogues many gory examples from books that children routinely read: Grimm’s Fairy Tales, The Odyssey, The Inferno, and The Lord of the Flies are a few of his examples.  His point is well-taken:  the image of poor, fat Piggy being killed by other children in The Lord of the Flies remains vivid in my mind forty years after I read the book.  Another of Scalia’s points is well-taken as well: such an account is not “just” fiction; it carries various social messages.  As a child, I had neither the size nor the personality to be a bully, but reading about Piggy’s plight, far from turning me into a violent attacker, made me empathize even more with those kids who were further down the social food chain than I was.

To me, the most interesting and thought-provoking thing about the opinion in this case, and the thing most likely to generate lots of commentary, is that the free speech right being protected here is not primarily that of the video game producers – it is instead the right of minors to have access to protected speech, unless their parents have made a prior objection to their receipt of that information.  The majority cites a 1975 case, Erznoznik v. Jacksonville (which struck down an ordinance forbidding owners of drive-in movies to show films containing nudity), for the proposition that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (564 U.S. at 7)   Justice Scalia distinguishes between the government enforcing or supporting a parental ban (which would be permissible) and, as in the case of the California statute, the government imposing its own ban on what materials minors can access (which is unconstitutional).

There will likely be much discussion in the future of where and how to draw the line between governmental support of parents’ restrictions on their own children, and governmental  interference with a child’s right to access protected speech.  This will be very interesting, and will include, no doubt, some violent differences of opinion to which minors, presumably, will have access.

No. Not any of those. There is a service that, judging by its password requirements, contains either information far more sensitive or capabilities far more powerful than any of these. It’s…

the Electronic Copyright Office, or eCO. eCO allows you to, get this, register copyright claims. So naturally, a power that awesome must be adequately protected from dopplegangers posing as registered users, through the use of rigorous password restrictions:

Each person using the Electronic Copyright Office System, eCO, must comply with the following:

• Minimum password length must be 8 characters and consist of at least 2 alpha characters, 1 number and 1 special character (but not an ampersand – &).
• A password must have no consecutive repeated characters.
• A password must not include your user name or any part thereof.
• A password must not include the names of a spouse, children, pets or one’s own name.
• A password must not include any regional sports teams or players.
• A password must not include any office symbols.
• A password must not include your social security number or any subset of your social security number that is more than a single number.
• A password must not include words that can be found in any dictionary, whether English or any language.
• A password must not be any of the 11 most recently used passwords for the account.
• Every user with an account on a Library of Congress system including eCO is responsible for safeguarding access to that account.
• A password must not ever be shared with anyone.
• An account owner can change his or her password at any time, but at a maximum of once per day.
• An account owner must change his or her password when prompted by the system.

I’ve highlighted a few of the requirements that make registering with eCO particularly challenging. Think of the passwords you use the most often. How many of them meet all of these requirements? Are you sure there are no repeated characters? If you guess wrong, you must wait for the system to think about it, and then fill out the entire registration form again. And again. And again. I think it took me at least five minutes to register an account.

Oh yeah, and once you’ve got one good password, you only need eleven more to make it through the forced rotation.

(And yes, in case you’re wondering, the reason why I’ve recently stumbled upon this is that I’ve registered my most recent articles. Practice what you preach, and all that.)

Cross-posted at Madisonian.net.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

Bynum begins his analysis by describing Europe’s commitment to renewable energy and the highs and lows of the offshore windpower industry abroad.  He then explores the federal and state regulatory regimes that govern such projects in Wisconsin and observes that there are significant obstacles facing developers.  Bynum argues that we should learn from the European experience and concludes by offering several proposals, such as providing federal loan guarantees and creating a new state office of “offshore wind coordinator,” to promote the development of offshore wind projects in Wisconsin.

Donald Stroud’s comment, which garnered the Silver Quill Award last spring, focuses on the use of Wisconsin’s Deceptive Trade Practices Act (DTPA) to adjudicate simple breach of contract claims in commercial transactions.  He describes the Wisconsin Supreme Court’s decision in K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc. (2007), which created a way for a contracting party to avoid legitimate but unfavorable terms (in K&S, a restrictive forum selection clause) in the contract by asserting a DTPA claim.  Stroud observes that indiscriminate applications of the DTPA may (1) disrupt expectations and risk allocations that are fairly negotiated into contracts, (2) conflict with UCC provisions, and (3) go beyond the intent behind DTPA.  He recommends the adoption of a “public interest standard” to distinguish between cases that fall within the ambit of the DTPA and those that should be governed by ordinary contract law.  He also suggests that the UCC should trump the DTPA whenever the two are in conflict.

Jessica Farley’s comment undertakes an examination of the conflict between Wisconsin’s open records law and the intellectual property interests of private companies that keep public records on behalf of municipalities in a copyrighted format.  Farley criticizes the state supreme court decision in WIREdata, Inc. v. Village of Sussex (2008), which held that a municipality complied with the state’s open records law when it provided the plaintiff with PDF versions of requested records, even though the data contained in such files were not manipulable and, therefore, useless to the plaintiff.  She observes that the court dodged the central issue in the case – whether the open records law requires a municipality to provide records in a more usable format when so requested – and argues that the statutory language and purpose of the open records law demand meaningful access to information.  Farley concludes that in light of this important public interest copyright must yield, and proposes an amendment to the law that would include usability as a factor for determining compliance with the open records law.

Last but not least, Rachel Helmers has written a comment critiquing federal courts’ treatment of negative equity that is rolled into a new car loan as a purchase money security interest (PMSI).  PMSI status not only grants super-priority on the collateral (here, the car) to the lender under the UCC, but it also protects the lender from cramdown under the 2005 amendments to the Bankruptcy Code.  Helmers argues that shielding the negative equity portion of a car loan from cramdown in a Chapter 13 bankruptcy does not effectuate congressional intent in the 2005 amendments and fails to treat similarly-situated creditors alike.  She urges courts to follow the “dual status” rule, which would separate the negative equity from the remaining amount of the loan used to purchase the car and treat only the latter as a PMSI.

But let’s say that you have a Facebook account. The other side believes that some of your Facebook communications might be relevant to the case, so they specifically request access to your account. You refuse, and the issue goes to the court to sort out (if you’re in federal court, under Rule 37, for those of you playing at home). How should the court rule? Specifically, what should the court order you to do? Do you have to give the password for your account over to a party that, to put it mildly, you are probably not on the best of terms with?

Surprisingly, at least one court has said yes [Update: see comments below], and I believe similar requests are being made in courts all around the country. I believe this is a deeply disturbing development and is the result of either a failure to understand social networking technology, the rules of civil procedure, or both.

The case is Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388 (Sept. 21, 2010). (H/T NY Law Journal, via Kashmir Hill, via Dan Solove.) In Romano, the plaintiff, Kathleen Romano, is suing Steelcase, the manufacturer of her office desk chair, for injuries she received as a result of alleged defects in the chair. Steelcase requested access to her Facebook and MySpace accounts, the public portions of which they claimed “reveal[ ] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.” The court — properly, in my view — held that the requested information was relevant and rejected the plaintiff’s privacy arguments that she should not have to produce any information at all from her Facebook and Myspace accounts. The court then ordered the following relief:

ORDERED, that Defendant STEELCASE’s motion for an Order granting said Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects; and it is further

ORDERED, that, within 30 days from the date of service of a copy of this Order, as directed herein below, Plaintiff shall deliver to Counsel for Defendant STEELCASE a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said Defendant to gain access to Plaintiff’s Facebook and MySpace records, including any records previously deleted or archived by said operators . . . .

As I indicated, I don’t believe this is an isolated incident. I’ve heard of similar requests being made here in Wisconsin, and there are probably other court orders out there that just haven’t made the news. In fact, this is probably the initial wave of a growing trend. So what’s wrong with issuing such an order?

Plenty. First of all, Romano was overreaching in trying to block any production at all of information from her Facebook account on privacy grounds. Parties in American courts are given broad latitude in seeking relevant materials; the general standard under the federal rules is “any nonprivileged matter that is relevant to any party’s claim or defense,” including finding leads to other admissible evidence. (R.26(b)(1). Romano is a New York case under N.Y. C.P.L.R. § 3101, but the differences are immaterial.) If the information is particularly sensitive and not terribly useful, Romano might have been able to seek a protective order, but there’s no across-the-board principle that says that individuals can never be forced to turn over private but relevant communications with third parties in a litigation. Certainly photos or descriptions of Romano engaged in vigorous activity pass the relevance test.

But in ordering Romano to turn over her account password access to her account, the court went way too far. The proper order would have been to require Romano to produce the requested material to Steelcase, not to allow Steelcase to go rummaging around in her account for it. The court spends quite some time talking about how Romano has no privacy interest in her Facebook and Myspace accounts, but that is not only false, it’s irrelevant to the question of how the requested information should be produced.

Social networking communications come in many forms. Some are communications made publicly available to the world. Others are posts visible to one’s entire network of “friends,” which can number in the dozens (if you’re like me) or even thousands. Still others are posts visible to some subset of that network, such as a group labeled “close friends.” Finally, social network sites can be used to send one-to-one communications that act just like emails.

In other words, communications on social networks have varying levels of privacy and relevance, just like other forms of communication, such as written documents. The ordinary discovery procedures for written documents are clear: one party must file a request with the other to produce relevant documents. The other party’s attorneys then do what litigation associates everywhere lovingly call a “document review”; they review the documents first to cull out documents that have not been asked for, then documents the production of which would be objectionable for some reason–for instance, privileged communications with counsel or material discussing litigation strategy. Only then are the remaining documents turned over to the other side for inspection.

It would be a highly intrusive system if the normal procedure was, instead of a party producing its own documents, the other party’s attorneys entering your house or business, looking through all your papers and effects, and taking away the material that in their judgement was relevant and non-privileged. That’s why the default is that parties produce their own materials after reviewing them first, except in very unusual cases. That default procedure does not depend on the producing party being able to show any special privacy interest in the materials — the general rule is that strangers shouldn’t be allowed to go rifling through your stuff, no matter how private you’ve kept it.

There aren’t many cases on point; it appears that few litigants have tried to make an argument in the pen-and-paper world that they should be allowed to go fishing for documents on the other side’s premises. At least one court has held that a Rule 34 request to permit inspection does not allow the requesting party to go roving around the other side’s facilities, questioning employees in mini-unsworn depositions without notice or the opportunity for objections. See Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 907-908 (4th Cir. 1978).

The electronic world is no different. There may be unusual circumstances where direct access to a hard drive or server is required, as the Rules Advisory Committee recognized in 2006 in updating the federal rules to account for electronically stored information. The committee was careful to note that “addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” As Moore’s Federal Practice concludes, “Any order for such discovery should define parameters of time and scope, and place sufficient access restrictions to protect the party from whom discovery is requested.” 7 Moore’s Federal Practice § 34.12.

There’s all sorts of irrelevant and embarrassing information that might be social networking sites. An individual might have sent flirting messages to someone. Satirical political posts might be misinterpreted out of context. Drunken party pictures or photos of one’s children might have no relevance to the case. Granting the opposing party access to the account means that they will see everything you’ve ever done with the account, no matter how irrelevant to the facts of the case. Indeed, it means that they will have continuing access to all of your communications, and friends’ communications, on the site going forward until you change the password. There’s even the risk that a malicious opposing party could send messages under your name — unlikely and dangerous for any opposing party to do, but there’s no need for civil litigants to even have to worry that such a thing will be possible. Civil litigants with relevant, nonprivileged Facebook or MySpace material should be required to produce that material and nothing else.

Tech nerds and media junkies have been buzzing lately about Google’s announcement that it will soon rollout Google-TV — a new device/platform that will turn people’s televisions into portals for online video and other web content.

Google representatives unveiled the project last week at a developers conference where they staged a Steve Jobs-like showcase that included animated demonstrations and bold statements about the end of TV as we know it.

Much of this was puffery, of course, but there is no denying Google’s determination to expand its dominion over the communications universe, nor the inevitability of the web’s eventual absorption of traditional television.

These two things terrify broadcast and cable executives. But the advent of web television might benefit traditional TV businesses –- particularly cable companies –- in one important category: First Amendment protection.

Even though the courts have long acknowledged that cable television is a First Amendment-protected medium, they have assigned it a kind of second-class constitutional status, based on the premise that cable markets are not sufficiently competitive.

In 1994, the U.S. Supreme Court held in Turner Broadcasting v. FCC that cable companies operate as effective monopolies, creating bottlenecks for the dissemination of video content in the communities where they operate. As a result, most government regulation of cable is subject to only an intermediate level of First Amendment scrutiny.

In Turner, the Court upheld the constitutionality of the must-carry rules, which require cable operators like Time Warner and Comcast to add the signals of local broadcast stations to their channel lineups. In addition, cable operators must set aside channels for leased-access by third parties, and they can be compelled to subsidize and disseminate public, educational and governmental (PEG) programming, among other things.

These regulations are constitutional only because of the lack of competition that existed when the laws were adopted in the early 1990s. But a lot has changed since then.

Phone companies, such as AT&T and Verizon, now offer cable service (which they were not allowed to do until 1996), DirecTV and Dish Network offer DBS service to nearly every home in the country, and video content is now ubiquitous on the web, even without the seamless packaging of Google-TV. The bottleneck, in short, has broken.

The disconnect between these policies and their underlying premises is not merely a public policy problem; it is a constitutional problem. All of these regulations interfere with the expressive autonomy of cable operators and put special burdens on them that are not imposed on newspapers, magazines or web communicators. (Imagine how quickly the courts would strike down a must-carry law requiring newspapers to set aside a few pages of each issue for use by competitors).

These problems are acute when the government moves from what are arguably structural regulations to more content-based restraints and mandates. There are several of these, most of which target the programming practices of the cable networks (e.g., Comedy Central, ESPN, Nickelodeon).

The federal courts have shot down attempts by the government to regulate indecent content on cable, applying something close to strict scrutiny in those cases. But there are many other content-based restrictions that remain in effect.

Cable networks cannot accept tobacco advertising. They must limit the amount of advertising time during children’s programs. They must provide equal opportunities to political candidates whose opponents appear on those networks in non-exempt programming. And they must abide by the payola rules, which prohibit non-disclosed payments made by third parties in exchange for airtime.

None of these restrictions would be tolerated if imposed on print or web communicators. Yet they continue to be enforced against cable communicators, despite the absence of a cogent regulatory rationale.

It is probably hard for most people to get exercised about the rights of giant cable companies, with their ever-expanding rates and outsourced customer service. But they are constitutionally protected speakers, and the claim that they are differently situated than their competitors using other media just isn’t credible anymore.

It is time for Congress and the FCC to scrap the current regulatory scheme and for the courts to reconsider cable’s constitutional status in light of the new technological and market realities.

Maybe Google-TV will provide the impetus for the end of cable regulation as we know it.

My inability to recall the name of that restaurant has prompted a flurry of Google searches on River North Japanese restaurants.   In the process, I have found many other places with likewise appealing aesthetics and succulent sushi, but my searches have returned no hits that appear to be the restaurant I was looking for.  The interior design of the River North establishment I found myself at distinguished it from every other restaurant Google has returned to me.  But those searches no less have provided me with other possible establishments awaiting my next trip to Chicago.

Now for a counterfactual.  How would my searches have turned out if I did remember the name of the restaurant? 

What if I saw a number of advertisements in my search results for other restaurants and, with complete knowledge that none were for the restaurant I searched for, decided to stop combing through hundreds upon thousands of search results for my intended target and directed my attention to the other restaurants’ websites instead?

Search engine algorithms and keywords serve as the nuts and bolts behind these results and advertisements.  In fact, Google has made a fortune selling these keywords to companies looking to advertise on Google searches.

Taking advantage of this technology, some companies and firms have used keywords containing their competitors’ trademarks to divert web users towards their businesses and away from their competitors.   Some mark owners have responded by pursuing trademark infringement suits to quell this use of search-engine programming.  And some recent judicial opinions suggest trademark infringement to be a viable theory in this context.  Last year, the Second Circuit in Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009), held that Google’s keyword sales constituted a “use in commerce” under the federal trademark laws in the Lanham Act.

But the infringement analysis does not end with use of another’s mark in commerce.  To be sure, the Lanham Act by its terms is limited to certain enumerated instances of consumer confusion.   15 U.S.C. § 1125(a) provides that a person who uses in commerce a name, symbol, device, or any combination of them that is likely to cause confusion “as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person” is liable for trademark infringement.  Thus, to create liability for trademark infringement, there must also be a likelihood of consumer confusion surrounding the subjects delineated by the terms of the statute.

In the keyword cases, consumer confusion certainly arises to the extent that the search results generated by the keywords have misdirected them.   This theory is what some courts have adopted as “initial interest confusion.”  This doctrine, however, has been subjected to substantial criticism, and justified criticism at that.  In the Ninth Circuit, Judge Berzon argued that initial interest confusion renders the proprietors of banner ads triggered by keywords liable for providing consumers more choices beyond those the user may have specifically surfed the Net for.  Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004) (Berzon, J., concurring).  More prominently displaying competing items in a brick-and-mortar store is not infringement, and thus, in Judge Berzon’s view, similar advertising in cyberspace should not be treated any differently.

Though Judge Berzon is correct in objecting to the doctrine of initial interest confusion, the argument that this behavior is not wrongful does not hold water.  Granted, providing more choice to the consumer is helpful, indeed essential, to the efficient functioning of a free market.  Furthermore, unfair competition laws cannot be so broad as to chill rather than promote competition.  The hypothetical signs  with more attention-grabbing characteristics that Judge Berzon describes, however, do not derive their effectiveness from the use of another’s trademark.   In the keyword context, a company takes a trademark right, the purpose of which being to allow consumers to find that competitor’s products among a sea of other similar products, and turns that intellectual property against the company to direct consumers towards the competitors’ products and services.   See, e.g., Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1062 (9th Cir. 1999).  This use of trademarks reeks of misappropriation of a competitor’s intellectual property.

Notwithstanding the behavior’s wrongfulness, a trademark analysis still attempts to fit the proverbial square peg in the round hole.  When a court utilizes initial interest confusion, one of the core purposes of trademark law, consumer protection, has the potential to fall by the wayside.  Jason Allen Cody, Note, Initial Interest Confusion: What Ever Happened to Traditional Likelihood of Confusion Analysis?, 12 Fed. Cir. B.J. 643, 662  (2003).  To be sure, there may be some instances in which consumers will be left better off because they happened to find a website that suits their needs and wants more fully than their intended target website would have.  Furthermore,  to the extent that these cases find infringement where there is no likelihood of confusion as to association, origin, or sponsorship, they have deviated from the Lanham Act’s plain language.  Though those particular species of confusion can and do arise in an initial interest confusion case, as was the case in Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254 (2d Cir. 1987), where a danger existed that unwitting consumers would erroneously believe that Pegasus was somehow related to Mobil, such cases are exceptions that prove the rule.  Unless the confusion happens to touch one of the Lanham Act’s subject matters, with confusion as to “connection” or “association” arising in Mobil, a trademark infringement theory is not an adequate overlay for consumer misdirection cases.

This is not to say, however, that there should be no other available means of legal recourse for this keyword practice.  One avenue to address this problem may lie in state-law unfair competition.  Unlike the Lanham Act’s treatment of trademark infringement, there is no hard and fast definition of unfair competition, other than the general principle that “it is illegal to compete ‘too hard.’”  J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 1:8 (2010).   As with the amorphous concepts of substantiality and reasonableness, the unfairness of competitive methods turns on a case-by-case circumstantial analysis.  Id. In addition, § 1 of the Restatement (Third) of Unfair Competition provides that “[o]ne who causes harm to the commercial relations of another by engaging in a business or trade is not subject to liability to the other for such harm unless” that individual engages in trademark infringement, marketing that makes deceptive representations to consumers, misappropriation of trade secrets and rights of publicity, “or from other acts or practices of the actor determined to be actionable as an unfair method of competition.”  Thus, the Restatement (Third) creates a catch-all provision for the development of new theories to address other unduly damaging competitive strategies that may arise in the future.

Providing that leeway makes for sound policy, as it would prevent unfair competition law from being limited to specific theories into which new facts cannot be pigeonholed.  Just as the inventive con-artist fashions new tools to escape the scrutiny of fraud actions, companies may develop their own methods to damage their competitors in ways that fall through the cracks of the limiting language of current trademark law, and keyword advertising could be one such method.

Therefore, until Congress amends the Lanham Act to specifically provide for initial interest confusion theories outside the instances of confusion enumerated in the statute’s text, the state courts should mold their own unfair competition theories to address this keyword misappropriation.  This option would avoid forcing these cases through ill-suited federal trademark infringement claims that, when applied in a manner consistent with the Lanham Act’s text, can only reach a small subset of keyword advertising cases.

As I listened to a few anectdotes and told a few of my own, I was reminded of the “mainland” in Second Life (r) (SL). I think of what I have been told about the reason that Houston “is the way it is,” generally meaning that there is a lot of mixing of buildings for public and private use and much city sprawl. I also begin to think of the mainland on Second Life (R). A chaotic place to say the least.

In an effort to better understand the basics of zoning, I looked it up in the dictionary and on Wikipedia. Here is a bit of what I’ve found. 

Webster’s says that zoning is “to partition (a city, borough, or township) by ordinance into sections reserved for different purposes (as residence or business).”  Wikipedia shows a more detailed, conflicted, and legally interesting view. After starting with a general overview of zoning in the USA, in which it states that zoning is the segregation of incompatible land uses, Wikipedia specifically states that Houstonians have three times struck down zoning in the city.  It further defends Houston, stating that many sunbelt cities have similar sprawl, which occured prior to the introduction of zoning. The article then went on to discuss law and a few notable cases, including Euclid v. Ambler Realty Co., the first (I think) and last facial challenge to zoning as a whole as unconstitutional.

I have a conflicted view of zoning myself. I don’t see  the sprawling city that I grew up in as a bad one, but its large size and highly mixed neighborhoods contribute to the increased use of personal vehicles and horizontal, rather than vertical, building habits. I see these things as part of the reason why Houston had to fight in the last few years to lose its title as the fattest city in the country, a title gained (pun intended) in 2005. I also feel that the relatively free use of the land better mimics the townships common in countries throughout history. Everything can and must be compatible. I think it gives homeowners more reason to be interested in the businesses in the area. If an adult book store and a factory can have the right to build up on opposite ends of your neighborhood, you will be much more likely to care about the business practices of both companies.

Also, I see zoning from the perspective of Second Life(r) (SL), which, like Houston, has no zoning. Many an avatar on SL bemoans the lack of sim planning by Linden Labs(c). The complaints are similar to those about Houston. There is a lot of mixing of buildings for public and private use, and the whole mainland seems to suffer from confused sprawl, but even more worriesome on SL is that the lack of restriction allows people to terraform the land as they wish – meaning that a mountain, a lake, and a plain may all be next to each other with no transition. Buildings in SL range from those that mimic real buildings to science fiction creations and nature recreations; they can be placed at any altitude and can emit light, sound, particles, and sometimes objects, at will. The land and buildings can interact with you. For example, if you wander off of the edge of the parcel where you are visiting a friend’s home, you may receive a welcome notice from the club next door and an invite to join the group that it owns, or you may get teleported to your home for trespassing on someone’s private property.The only unifying theme on the SL mainland is the road(s). The roads on the mainland start nowhere and lead to nowhere. They have no intersections and generally no traffic.

Whereas many of SL’s “islands” (sims owned by private parties) have covenants that restrict the usage of the land, even they are at risk of this convoluted mixing.  You may walk from one parcel that is a mountainous winter scene to another that contains a tropical island chain.  Here I am not conflicted about the need for zoning, although I find the disjointed buildings and land sometimes make me as frustrated as any one else.  I feel that the benefits of having the freedom to build what one likes, however one like, far outweighs any frustration that stems from encountering such confusion.

I’ll leave “why” I feel this way a cliff hanger, and invite all of you to my brand new blog, Life and Avatar Law. I have found that I like writing about SL from the perspective of a student of the law, and I hope that as my studies go on, my examination of the legal aspect of virtual living not only becomes more expert but also stimulates others to think of legal issues in the virtual world with more seriousness.

Thanks again to those who gave me this opportunity. I am very grateful for it and have learned a lot.

Google’s new social networking service, Google Buzz, has obviously been all over the news lately, in part for various complaints about Google’s privacy practices. Those complaints have focused on the way in which Buzz, enrollment in which was automatic for Gmail users, initially defaulted to effectively sharing users’ email contacts with the public. EPIC has filed a complaint with the FTC arguing that this combination of automatic enrollment and “opt-out” of information-sharing was an unfair or deceptive trade practice in violation of Section 5 of the FTC Act.

But that’s not what caught my attention in Danielle’s post. What really set off alarm bells in my head was Danielle’s recounting how her children and their friends, all under the age of 13, suddenly had their Gmail accounts turned into Google Buzz accounts, and then proceeded to upload all sorts of information about themselves using the service. That raises the prospect that Google Buzz, by collecting such information without getting the appropriate parental consent, violated the Children’s Online Privacy Protection Act, or COPPA. I haven’t seen any discussion of this issue anywhere else.

COPPA is one of the few privacy statutes with real bite: it has strict rules that require substantial effort to follow, and the FTC has shown itself to be a vigorous enforcer. Indeed, the FTC has gone after two social networking sites for COPPA violations recently, and in one case imposed a fine of $1 million. So is Google violating COPPA? The answer is unclear but there’s definitely risk for Google here.

COPPA regulates the online collection of information from children under the age of 13. It applies to two classes of websites: those that have “actual knowledge” that they are collecting information from children, and those that are “directed to children.” If a website in either category is going to collect personally identifiable information (PII) from children, it first has to get “verifiable consent” from a parent. The FTC uses a “sliding scale” to determine what sort of verifiable parental consent is required; for information that is going to be publicly disclosed, as here, the FTC’s COPPA regulations require something like a mail-in form or a credit card.

It’s clear that Google has been collecting PII from children and that it hasn’t been getting prior verifiable consent. But it doesn’t need to comply with COPPA if it doesn’t either have actual knowledge or if the site is not directed to children. “Actual knowledge” typically comes about because the site asks for an age or birth date in the registration process—whether or not a human actually looks at it, the site will have “actual knowledge” if a user provides a birth date that is less than 13 years ago. This is in fact the most common vector for COPPA violations: a site asks for the user’s age, but doesn’t bar the user or get verifiable consent if the user responds that they are less than 13. But Buzz didn’t ask for an age when its users joined, so Google doesn’t appear to have “actual knowledge” of Buzz’s users’ ages. [Update: it occurs to me that Google might very well know that some of its Gmail users are under 13, despite what its terms say (see below). So this could still be a problem for Google.]

Even if Google lacks “actual knowledge,” it might still need to comply with COPPA if Buzz is “directed to children.” Buzz users are Gmail users, and Gmail’s terms appear to bar users under 18:

2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google . . . .

But the FTC has taken the sensible position that merely stating a rule barring users under 13 is not enough to avoid COPPA compliance if the rule is not enforced. So we need to look at the definition of “directed to children,” According to the FTC regulations, a website is “directed to children” if it is “a commercial website . . . that is targeted to children,” which is not terribly helpful. The FTC looks at the following factors to determine whether a website is “targeted” at children: “its subject matter, visual or audio content, age of models, language or other characteristics of the website or online service, as well as whether advertising promoting or appearing on the website or online service is directed to children.” The Commission will also consider empirical evidence concerning who’s using the service, and who the intended audience is.

Buzz doesn’t seem to satisfy many of those factors. There’s not much about the site design that screams out “young children.” The short video promoting Buzz I watched had only adult cartoon figures in it. But focusing on the list of factors ignores the fact that we are talking about a social networking site here, which may be inherently “targeted at children.” Children are drawn to such sites like catnip. It’s worth noting that Facebook has made a different choice than Google: it asks for your age on registering, and bars those under 13. Google would be wise to adopt a similar policy.

I’m not certain the FTC has yet brought a COPPA enforcement action against a company that didn’t have any actual knowledge of users’ ages. As a result, there’s not much to go on in terms of deciding when a site might be found to be “directed to children.” And perhaps an enforcement action is unlikely here. But I’m sure Google doesn’t want to be the test case.

A quick skin change and some low key accessories later, you teleport out. A few seconds pass, and you find yourself among a group of people in shorts & skirts under the bright sun of Tropical Eden. You realize that the organizers of the contest you came to enter preferred tropical dress, so you popo open your inventory and change outfits, shorten your hair and put on different shoes.

Now that you are ready, you walk to the line that has formed. As you do, you notice the chat around you. “No furries allowed in the contest.” A well dressed wolf curses and disappears and a few tails come off. “Please no biting during the contest.” A lady behind you whispers to a friend, “That is what garlic is for.”

After a short wait, you walk onto the stage and up to the judges. The coordinator thanks you and tells you to whom you should send your application.Each judge asks you a couple of questions. You answer as you can, thank them for your chance to enter the contest.

You leave the stage, tp home, and log out. The next day you log in, look out your window at the snow and change into a winter outfit. A few friends invites you to go skiing with them and you accept. While you are skiing you get an inventory offer, a note card entitled “Congratulations Winners.” You open the note card and read it.

You are the second place winner. You’ve won 10,000 bucks, a photo shoot for advertising through the next month, multiple clothing and accessory prizes from the company sponsors. You are so excited you immediately tell all your friends and send a message to the coordinator to thank him. You don’t get a response, but you aren’t worried. After a bit more fun skiing and some chat at the ski lodge you head home.

At least, you try to head home. Your home is gone, not can’t-find-where-I-parked-my-car gone. Your home is… being returned to you with all the rest of your stuff because the sim that you lived on is an “invalid location.”

You send a message to your neighbor, the nice mermaid who lives in the cove next to your area of the sim. She says that she hasn’t tried to go home recently but has seen a few of her things returned and that she has heard from from a couple of the other six who live on the sim. You are a bit upset but need to go, so you bid her good day and log off.

The next day you log in, but you can’t look out the view at the snow because your home is still gone. You notice, also, that have been ejected from the land group and so will need to speak to the rental office to get back in, otherwise yo will not be able to place your house back on the land. You search for the real estate agent, who is surprisingly not your friend anymore. once you’ve found her name you send her a message. You get a busy response, “We apologize for the inconvenience, but the person you are messaging is a bot and cannot respond. Please send messages directly to the person from whom you purchased your land.”

You are a bit frustrated but remind yourself that you just won a lot of money and some fun stuff. You send a message to the coordinator, but he isn’t online. Slightly frustrated you log early that day.
A week passes. You find a new home on Sunny Paradise the sim that your neighbor moved to; she was a good neighbor before and is a good neighbor now. You find out that the sim on which you were living was repossessed because the owner was not paying the tier (taxes) on the land. Wondering where the 5,000 bucks that you paid the owner to rent your space went, you are glad that you will be getting some money coming in once you receive the contest prize.

Another week passes, and you receive an inventory offer, a note card entitled “Tropical Eden Contest Entry Form.” You accept it and notice that the contest is starting taking entries for the next cycle. Confused, you send a message to the coordinator asking about your prize.

He responds, “ty for participating in our contest; we found that you are using copybot sofwtare so have been disqulifie when you have change viewer plz be free to entr again.” Shocked and upset you respond that you have only the viewer downloaded from the website and that you want your prize. You also mention that there was no mention of viewers or anything else in the contest information. You get no response.

Barely holding yourself in check from berating this, obviously misinformed gentleman, you remind him that you paid 50 bucks to enter this contest and that you were declared the winner both in a note card and by general message. You still get no response. Angry and decidedly less inclined to socialize you turn down your friend’s invitation to visit a club that is having a ‘Best in tinies’ contest and log off.

–

Of course, by now, you realize that this scenario is about a ‘game’ or more accurately a virtual world. The entire scenario is fiction, both in the fact that it is virtual and the fact that I made it up, but the things that happened in this scenario do happen to avatars all over the virtual world Second Life® (SL). I hope for their sake that no one person has had to deal with all of these things.

I consider this scenario particularly intriguing, though, not just because of the inherent drama in such happenings but also because of the many hidden legal questions that I am learning to ask about them.

If these, or equivalent, things happened to someone in their real life, they would seek legal assistance, attempt to negotiate, and failing that file suit against both the real estate company and the contest coordinators, but in SL there is no law. Assuming the allegations about copybot software are untrue, everything that happened, including the blatant discrimination against “furries” is legal. Immoral, but legal.

Many of the things that happen on SL are minor in relation to their real world equivalents. For example, in this scenario you have lost 50L$ (L$ is the game money) which is equal to about ~$0.20USD. You have been deprived of 10,000L$ which is equivalent to about ~$40USD, and though you have had to move, you neither lost your home nor any of your personal property.

But those same things can have a major impact when compounded. The rental company made  40,000L$ (or ~$160USD) from you, your mermaid neighbor, and the other renters on the sim. The ‘well dressed wolf’ who was refused the right to enter the contest, suffers the oppression of blatant discrimination.

These are only a few of the many legal issues occur, like in real life, daily for an avatar in SL. This tension between the realities of life and the law and the entire absence of law in the life of an avatar is what changed my mind about the law. It opened my eyes to how greatly we all depend on the law and how important the legal profession is to those who need the kinds of assistance that avatars don’t have available to them.

—

And speaking of avatars and the law, the SL Bar Association, of which my avatar, Tigr Yoshikawa, is a member, will be hosting Bias in the Legal Profession March 17, 2010 at 12:00 noon, PST. Linda Batiste and Beth Loy from the Job Accommodation Network (JAN), West Virginia University will be discussing the professional work environment for lawyers with disabilities.  They will discuss barriers faced by attorneys with disabilities and what employers need to do in order to accommodate lawyers with disabilities.

The seminar will be held at The Sojourner Auditorium at Virtual Ability Island, in SL. Space is limited to 70 avatars. This event is free and has been approved for 1.0 hours of continuing legal education credit by the State Bar of California.  This seminar satisfies the specific requirement in California for one (1) hour in training related to elimination of bias in the legal profession.  (CLE provider is Fitz2  consulting, provider no. 14547)

The district court denied Mann’s motion to suppress the images found on his hard drives.  Mann then pled guilty, but preserved the right to litigate his Fourth Amendment claim on appeal.  In United States v. Mann (No. 08-3041) (Rovner, J.), the Seventh Circuit affirmed.  Although the scope of the warrant was limited by its terms to a search for “images of women in locker rooms or other private areas,” the court held that police did not exceed the scope of the warrant when they collected and viewed Mann’s collection of child pornography. 

Three aspects of the court’s opinion strike me as significant.  First, the court approved the use of forensic software “to index and catalogue [] files into a viewable format,” even if the software has a feature that flags known child pornography files and police do not have a warrant to search for child pornography.  This seems to break with the Ninth Circuit, which recently admonished that ”sophisticated hashing tools . . . that allow the identification of well-known illegal files . . . and similar search tools may not be used without specific authorization in the warrant.”  United States v. Comprehenisve Drug Testing, Inc., 579 F.3d 989, 999 (9th Cir. 2009).  To be sure, the Seventh Circuit did hold that files specifically flagged as known child pornography from Mann’s hard drve should not have been opened without a separate warrant.  However, the police were within the scope of the warrant they had when they opened the other files collected by the forensic software.

Second, the Seventh Circuit also declined to follow the Ninth Circuit’s rejection of the plain view doctrine in connection with searches and seizures of computers.  See Comprehensive Drug Testing, 579 F.3d at 998, 1006.

Finally, the Seventh Circuit interpreted United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), as narrowly limited to its particular facts.  In Carey, the Tenth Circuit held that police searching the defendant’s hard drive for evidence of drug dealing exceeded the scope of their warrant when they opened JPG files containing child pornography.  The Seventh Circuit distinguished Carey in two respects.  First, the warrant in Carey authorized a search solely for “documentary” evidence, whereas the warrant in Mann specifically mentioned “images.”  Second, the officer conducting the search in Carey admitted that he was not looking for evidence of drug dealing when he opened the JPG files, whereas the officer in Mann maintained that his intent throughout the search was to look for the evidence of voyeurism that was the focus of the warrant.  The intent of the officer conducting the search thus seems relevant now in determining whether the search remained within the scope of the warrant.

Those facts should not surprise present and former Marquette students: we were presented with the professional dangers of social networking during new student orientation.

It likely was only a matter of time, but it seems that state ethics committees have turned their attention to the judiciary.  The Florida Judicial Ethics Advisory Committee released an opinion last month that, among other things, finds it inappropriate for a judge to “friend” lawyers on social networking sites when those lawyers may appear before that judge.

The Committee’s opinion is interesting because it takes aim not at the substantive statements of a judge or lawyer, but at the appearance of impropriety created by a lawyer’s inclusion on a judge’s friend list.  The Committee explains:

The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages.  To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.

Canon 2B states:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

According to the Committee, friendship status violates the second clause of Canon 2B:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

Yet the Committee declined to set the same bar for judges’ campaign pages on sites like Facebook, stating that lawyers may be “fans” of an election effort without raising similar questions of undue influence so long as the manager of the judge’s page cannot “accept or reject the lawyer’s listing of himself or herself on the site.”  Presumably, the affirmative act of accepting a “fan” would mirror the process by which judges and lawyers list each other as friends on their personal pages, raising questions of special influence.

The question now is whether other states will follow Florida’s lead or adopt even stronger measures to limit the effects social networking could have on the integrity of the judiciary (admittedly, I have not done extensive research on this topic, so perhaps some states already have similar rules in their judicial codes of conduct).  Ultimately, this ruling may mark the opening of a new front in the judicial impartiality debate, which currently rages over the effects of judicial campaign finance and rhetoric (see Professor Richard Esenberg’s recent blog post).

I realized that the public interest in this topic might be quite limited, so when I e-mailed it to the Blog editors on Thursday night, I suggested that they might just want to file this posting directly in the Law & Sports archive.

When I checked this morning, my submission had not yet been posted anywhere on the Faculty Blog.  I did not check again until around 6:30 p.m. CDT.  At that point, I noticed that the post had in fact been placed in the “recent posts” section of the blog.

Out of curiosity, I typed the article title into the Google search box to see if any IP or baseball history sites had set up links to the post.  What I found was truly bizarre.  I found my post, which is devoted to a 1953 intellectual property case that no one knows about, reproduced in whole or in part on several different blogs and webpages.

Only one seemed to be remotely related to the topic.  That was a website entitled Baseball Now where it was placed under the heading “Baseball News” and positioned next to a story about the death of Larry Jansen, the subject of my post.  I had never heard of Baseball Now, and I am not sure that a report of a 1953 court decision counts as “news,” but at least it makes sense that a baseball themed webpage desperate for material would be searching the Internet for stories it could pirate.  To its credit, the Baseball Now page copied only the first five lines of the article.  To read the entire article you had to click through two pages of the website before finally arriving at the MU Faculty Blog where, of course, both the name of the author and the source of the writing are identified.

The other hits turned out to be nothing short of bizarre.

One is Widgetbox, which copied the first part of the post under the heading of politics where it sits next to a post entitled “Same sex couples allowed divorce” which is about a legal case in Texas.  Both my post and the Texas one are underneath a link “Legal advice online.” I also noticed that the page listed a number of other recent posts from the MU Faculty Blog.

If the widget-seeker clicks on the “Legal advice online” link, he or she is taken to a different site called Trafficlegaladvice.com which promises “free legal advice for consumers.”  There, my post is reproduced in its entirety, but without any indication that I am the author or that it is taken from the MU Faculty Blog.  Well, at least the article should come in very handy for any consumer contemplating travelling back in time to 1953 and filing a lawsuit against a company placing photos of major league baseball players in popcorn boxes.

My Google search also found the title of my post on a site called Blogsworld Vox.  The post itself is not there, but attached to the title is a link to an alleged real estate site called The Home For Sale.com.  That site contains only the first paragraph of my article but it is accompanied by a link that would take the curious home purchaser to the MU Law School faculty blog.  I suppose that now that Larry Jansen is dead, his home will be soon coming on to the market.

Incredibly, my post also shows up on a website called Beantown Online:  All about Boston.  There is no reference to Boston whatsoever in my post.  Only the first paragraph is reproduced, and it shows up sandwiched between posts entitled “Plant Decors At Home: Your Own Heaven On Earth”  and “Audit: Mass. home health system leaves vulnerable at risk.”  The latter article does appear to be about Boston, more or less, and it also appears to have been lifted from the Boston Globe’s webpage.

In my story, I mention in passing that in 1946, Larry Jansen won 30 games as a pitcher for the minor league San Francisco Seals of the Pacific Coast League.  Apparently that was enough to get it picked up by http://sanfranciscotaxi.info which includes only part of the first paragraph of the post and omits the part about the San Francisco Seals entirely.  It does, however, provide the viewer with an 800 number which presumably can be used to call a taxi in San Francisco.

I am, however, most proud of the fact that my post was picked up by Linda Nelson Blogsworld.  Linda’s blog appears to pick up about fifty posts every hour from other blogs.  My post on Larry Jansen is limited to the first 10 lines and appears between “REOs in Kuna Idaho Keeping Market Afloat” and “8 Fatal Mistakes Made By Google Adwords Advertisers.”

The best part of Linda’s blog is her photo.

And all of this just in the first few hours after the post was entered on the Marquette Faculty Blog.  I can only imagine how widely it will be distributed 24 hours from now.

Seriously, can anyone explain to me what is going on here?  It is as though robots are being sent out across the Internet to randomly capture posts from other blogs and then bring them back to be posted on completely pointless websites–my apologies to www.baseballnow.com–that should fool no one with an IQ over 40.

What I find intriguing about these responses is that they are all based on analogizing Kindle e-books to physical books located in your house. 

It’s often argued that copyright disputes are primarily, perhaps entirely, due to the fact that large media companies refuse to admit it’s a changed world out there; they just need to adapt. But I think controversies like the one over the Kindle indicate that this problem is universal. Everyone is calibrating their rights by looking backwards; no one likes the future.

David Pogue at the New York Times summed up the conceptual landscape nicely:

As one of my readers noted, it’s like Barnes & Noble sneaking into our homes in the middle of the night, taking some books that we’ve been reading off our nightstands, and leaving us a check on the coffee table.

Jack Balkin adopts this perspective as well. Balkin notes that “[f]or centuries, . . . owning books came with certain rights, including the right to keep what we purchase and to use it, mark it up, and sell it in any way we like.” Among other things, “[b]ecause [an ordinary book] is a physical copy, nobody would think that the publisher of the book would have the rights to enter your house and remove the book.” But “Amazon’s Kindle system upends all of these expectations.”

If Kindle ebooks are basically the same as physical books, then destroying them would seem to violate core expectations we have about retailers and books. But why is that the right analogy? Why aren’t they like websites? If Amazon was providing access to “1984″ on its servers instead of on the Kindle, and suddenly without warning deleted them off the servers, it is doubtful there would be much of any controversy here. That’s true even if the access was supposed to be permanent and was in return for payment of a one-time fee. The only issue would be Amazon’s abruptness in canceling access without sufficient warning to anyone who had taken notes that might be deleted. (Let me be clear: if I was one of those users, I’d be extremely annoyed at how Amazon handles copyright clearance problems.)

The core difference between a website and a Kindle ebook is where we think the object is located. We think of the Kindle as like a book, located in the device in our hands. We think of the website as being located on the server. But this just begs the question: we think of the Kindle as the same as a book because we think of the Kindle as the same as a book. In fact, copies of the information in both cases is located in multiple places: on the Kindle, and on Amazon’s servers; on the web servers, and a temporary cache on the user’s own computer. Physical location is not by itself determinative any more.

Many of the commentators on the Kindle issue have darkly noted the threat ebooks pose to the first-sale doctrine in copyright law—the right of purchasers of a copy of a work to resell that copy without permission from the copyright owner. Works like Kindle ebooks or video games that are tethered to a particular user can’t be sold without the permission of the tethering service.  But the idea that the first sale doctrine is important right worth saving in the first place may be another example of reflexively viewing the future in terms of the past. First sale makes sense in a world of physical books and copies–how else are you going to clear your house of junk you don’t need if you can’t sell it? Even throwing it away could be viewed as a transfer of ownership, and therefore a distribution. Requiring clearances for such sales impinges upon personal space with pointless transaction costs.

But not only is first sale harder with tethered digital works, it’s not clear what the point is. If you’re worried about hard drive space, you can just delete it. The only thing supporting first sale in such a situation is the fact that users have had first sale rights for time immemorial.

Balkin, Zittrain, Pogue’s readers, large media companies, legislators, and others are therefore correct: the networked digital world threatens to upend everything we take for granted about creative expression in the physical world. No one has a monopoly on surprise.

Threat Level was skeptical last week that Conficker would do anything more than send spam. But since then we’ve become aware of dramatic new evidence that reporting on a doomsday worm is good for page views. So welcome to our Conficker War Room! We’ll track this scourge throughout the day, so check back frequently for the latest updates. . . .

12:15 EDT: Felony conviction against Ted “Series of Tubes” Stevens is being thrown out for prosecutorial misconduct. Coincidence? Conficker hates net neutrality.

12:20 EDT: Reader reports, “I just got a message that said, ‘Windows has encountered a problem and will need to shut down’. OMG!!” . . .

3:05 p.m. EDT: CBC reports that attackers could be preparing a new version of Conficker that’s even worse than this one. Checking with art department about getting deadlier graphic.

3:55 p.m. EDT: You can now pre-order the DVD of 60 Minutes’ report on Conficker, The Internet is Infected. It’s just $15.99 on Amazon.com. Do it now, while the internet is still alive.

Here’s the situation: wrongdoing on the Internet is often difficult to track down, because often the only reliable traces a malfeaser leaves behind is their computer’s IP address. It’s a bit like having someone’s phone number show up on caller ID. But unlike phone numbers, IP addresses often change. If the phone company didn’t keep any track of who had what phone numbers, the police or victims of harassment wouldn’t have any way of using the number to track the perpetrator down. It’s the same with IP addresses. Usually internet access providers keep track of who they assign IP addresses to, but there’s no requirement that they do so. There’s also no requirement that they keep such information for any particular length of time—it’s purely up to them, and storing data costs money, so ISPs purge their logs on a regular basis. So suppose a kidnapper logs into Gmail and sends an email with a ransom demand to the victim’s family. If Google chooses not to keep any access logs, there may be no way for the police to track the kidnapper down, even if the kidnapper took no steps to cover his or her tracks.

Enter the Internet SAFETY Act, yet another in the long line of recent Congressional bills with cutesy acronyms.

The Internet SAFETY Act (S.423, H.R.1076) has been bandied around for a while; an early variant was first introduced in 2006. The basic idea is to combat a particular problem—in this case, child pornography—by, in part, imposing a record-keeping requirement on ISPs. Of course, once those records are retained, they can be used for more than just combatting child pornography. They’ll also be useful in investigating other crimes, or even as evidence in civil lawsuits (e.g., copyright infringement suits). As long as there’s sufficient legal process protecting the disclosure of these records, however, that doesn’t seem that troubling to me (your mileage may vary—but that’s not my issue right now).

“That’s great,” you might say, “but what does that have to do with home networks?” The record-keeping requirement would be imposed via an addition to the Stored Communications Act, 18 U.S.C. § 2702. Here’s the new subsection that would get added:

(h) Retention of Certain Records and Information.—A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.

The problem here is in the definitions of “electronic communication service” provider and “remote computing service” provider. Call them “ECS providers” and “RCS providers” for short. These terms aren’t new to the Internet SAFETY Act; they’re from the Electronic Communications Privacy Act, a law passed in 1986, when Congress understandably was a bit foggy on this newfangled Internet technology. (Not that they’re such big experts now, but they had more excuse back then.) It’s clear from the legislative history that Congress envisioned ECS providers and RCS providers as, essentially, big telecommunications companies that provide commercial internet access or data storage/processing service to paying subscribers. Indeed, from the statements of legislators concerning the Internet SAFETY Act quoted in the CNET story, it’s clear that members of Congress still view ECS providers and RCS providers that way.

The problem is that the statutory language doesn’t make that crystal clear. Here’s the definition of an ECS:

(15) “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications;

Read broadly, that means that any device that provides to users the ability to send or receive voice or data communications provides an “electronic communication service.” That would include routers, web servers, telephones, fax machines—indeed, every device connected to a telephone or computer network. And since every such device allows other users on the network to “send” communications to that device, then every owner of a networked device is an ECS provider to the public, subject to the nondisclosure requirements of the ECPA in Section 2702—the very same provision that would get the record-keeping obligations above.

That sounds ridiculous, but another portion of the ECPA gives courts a reason to interpret “ECS” broadly, in order to reach certain bad actors. Section 2701 provides that breaking into a “facility” through which ECS is provided in order to obtain electronic communications violates the statute. So, can you break into someone’s home computer to read their email? What if you access the hidden area of a website? Some courts have held that home computers and web servers are ECS facilities, making those unarguably bad actions violations of the statute. But if they are ECS facilities, aren’t their owners ECS providers?

Most courts have rejected the argument that web servers and home computer users are ECS providers, but they’ve never really offered a good explanation of why. One theory that’s been bandied about is the idea that you don’t pay home network or website operators to allow you to send or receive messages. But there’s nothing in the statute that limits ECS’s to commercial services.

A better distinction, it seems to me, hinges on the meaning of the word “provide.” “Providing” a service in this context seems to me to entail providing it directly to someone else. As I’ve written in a treatise chapter on the ECPA, a provider of ECS is therefore someone who provides to someone else the ability to send or receive messages; it’s the next link up from the “user” in the chain from endpoint to endpoint. If you think of a network as being like a spider web, a provider of ECS can only be towards the middle, where several strands come together, and never at the margins, where a single thread ends. A home network is at the edge of the network; although multiple individuals may use a home network, they are all members of a single group (a household), and therefore are not “providing” ECS to anyone. Read this way, the record-keeping requirement above would not apply to home networks.

This creates a tension with the cases saying that businesses provide ECS to their employees, but I’ll save that issue for another day.

Naturally, I had the same reaction to this story that anyone else would: Is that a violation of the Wiretap Act?

It’s pretty well established that you can’t bug a phone, even one that you own and pay for the service on, just to spy on someone. There are countless cases where jealous spouses have gotten hung up on this rule.  And the secret bcc here would seem to qualify as bugging (or, more properly, “acquisition of the contents of a communication”), unless an exception applies.

But I think an exception does apply, although it takes a little work to get there. The Act prohibits “interception,” defined as “acquisition of the contents of [a] communication” through the use of a “device.” The term “device” does not include telephone or telegraph equipment “furnished by [a] subscriber or user [of a wire or electronic communication service] for connection to the facilities of such service and used in the ordinary course of its [the subscriber or user's] business.” 18 U.S.C. § 2510(5)(a)(1). The phone here was “furnished by a subscriber or user” of a communication service, either the original owner or the “finder,” but the phone is not the relevant device, I don’t think — it’s the bcc rule on the phone that is the device doing the intercepting. (If the phone is the relevant device, this would be a huge loophole in the statute, as any bug or secret program installed in such a phone would be within the exception even if the user/subscriber of the phone service didn’t know about it.)  If I’m right and the bcc rule, or perhaps the entire email functionality on the phone, is the relevant device, then that device is telephone or telegraph equipment “furnished by the subscriber . . . for connection to the facilities” of a communication service, and that bcc rule is being used “in the ordinary course of [the subscriber's] business” — namely, finding lost property.

If that doesn’t work, well, there’s always the fact that the acquisition has to be intentional to violate the Wiretap Act. If the original owner of the phone set up the bcc rule for any other purpose — say, just so they would have a copy of all of their emails — then its use in tracking down the possessor of the phone in this case was accidental, not intentional. Hence, no Wiretap Act violation.

Side note: an acquaintance of mine once told me of his experience trying to access the outgoing call log on his own phone, using the account he was paying for, from Verizon, after he had been mugged and his cell phone stolen. Somewhat maddeningly, Verizon Wireless would not give him that information, even though it was arguably customer records pertaining to him.

A Beaver Dam Middle School teacher is on administrative leave after school officials discovered a photo of her with a gun on Facebook.

In the photo, Betsy Ramsdale was training a rifle at the camera.

In an e-mail to WKOW-TV in Madison, Ramsdale said she removed the photo immediately and that she is not “interested in any controversy.”

Schools superintendent Donald Childs says a concerned staff member brought the photo to the district’s attention.

Childs says the use of the photo “appears to be poor judgment” and is unaware of any sinister intent.

So here’s the question to you, my mere blogsters, would  you fire this teacher or give her a second chance?  Is your reason a legal one, policy one, or moral (this story combines two of my great loves – employment law and education law).

Also, just another story about the increasing role Facebook is playing in the lives of people of all ages.

In addition to the ridiculously overbroad nature of the requests (all of the emails in their personal accounts?), J.T. Shannon’s subpoenas ran up against the Stored Communications Act (SCA), Title II of the Electronic Communications Privacy Act. The SCA prohibits a non-party ISP from disclosing emails to litigants in a civil case without the consent of its subscriber. This law may seem counterintuitive to litigation attorneys, who are used to being able to subpoena whomever they want within the scope of the Federal Rules of Civil Procedure. But the SCA is not incredibly onerous; it just means you have to request that the party produce their own emails, not the ISP.

The first case to note this limitation on discovery practice imposed by the SCA was FTC v. Netscape Communications Corp., 196 F.R.D. 559 (N.D. Cal. 2000), but since that was a federal agency enforcement action, it may not have received much attention outside of that context. However, since the California Court of Appeals applied the same reasoning in an ordinary civil case in O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006), the SCA’s marker has clearly been placed. I expect a surge of such cases in the future as attorneys unfamiliar with electronic privacy law begin looking for emails in ordinary civil matters.

18 U.S.C. § 2702 limits what an ISP can disclose about their subscribers.  Section 2702(a) provides that neither an “electronic communication service” nor a “remote computing service” to the public may disclose the contents of any communication stored on the provider’s network to any person, with just a few exceptions. One is with the consent of the subscriber, obviously. There are other exceptions for responses to administrative subpoenas, grand jury subpoenas, or trial subpoenas from a “governmental entity.” But there is no exception for ordinary pre-trial discovery.

For reasons that are too complicated to go into here, I think the ISP holding old emails is best viewed as a “remote computing service,” not an “electronic communication service,” under the Act, but it doesn’t matter; in either case, the ISP cannot disclose emails in response to a civil subpoena. The J.T. Shannon court went even further, however, and said that ISPs cannot even disclose customer records to a private litigant, citing Section 2702(c). Customer records include such things as the name and address of the subscriber, a record of access times, and everything other than the contents of communications. But there’s a difference between the two anti-disclosure rules. Section 2702(a)(1) and (2) provide that ISPs cannot disclose the contents of communications to anyone, other than pursuant to an exception. Section 2702(a)(3), however, only prohibits ISPs from disclosing customer records “to any governmental entity.” (See also § 2702(c)(6).) Selling those records to telemarketers, for example, is A-OK, at least under the SCA. And so, it would seem, is responding to a civil subpoena for “non-content” records.

There’s one wrinkle in that argument, which is that attorneys sending a Rule 45 subpoena do so as officers of the court, Fed.R.Civ.P. 45(a)(3), and one might think that the court is a “governmental entity,” so an ISP could not disclose even customer records in response to a civil subpoena. “Governmental entity” is defined in 18 U.S.C. § 2711(4) as “a department or agency of the United States or any State or political subdivision thereof.” Is the judiciary a “department or agency of the United States”? I don’t think so; that sounds like it is referring to executive departments and independent agencies. There have been decisions that have held courts to be “governmental entities,” but those decisions did not discuss the actual definition of the term. The issue does not arise often since most subpoenas will be seeking the contents of emails anyway.

Carolyn Elefant of Legal Blog Watch Blog reports:

These days, Facebook isn’t just a go-to social media application. The Web site’s ubiquitous role in everyday life is also transforming it into a conduit for lawsuits. A few weeks back, I posed about the Australian court that allowed lawyers to serve a couple with lawsuit papers via Facebook. Now, the Calgary Herald reports that a Canadian spa used Facebook to fire an an employee, esthetician Crystal Bell.

Is it illlegal for an employer to fire a worker via Facebook, or just imprudent? Here in the United States where employment is entirely at will, there aren’t any laws, at least as far as I’m aware, that would protect an employee from being fired on Facebook. However, the Supreme Court of Canada, in a 1997 ruling known as the Wallace decision, set out how a firing, if done in a cavalier way, can result in “bad faith”damages in addition to normal severance pay. However, the ruling does not address the issue of whether being fired electronically equates with bad faith. Moreover, at least one lawyer whom Bell contacted advised that she didn’t have much of a case — she’d only been at the spa for two weeks.

Putting aside the merits of this specific case, the cause of action that comes to mind for me is the tort of intentional infliction of emotional distress, since the focus is the manner in which the employee has been fired. Yet, I am not convinced that Facebook firings, which are certainly in bad taste and demonstrate a lack of tact, would probably not meet the standard of extreme outrageousness, which would require the action taken be: “utterly intolerable in a civilized society.”

Indeed, the ubiquity of Facebook and the amount of communications taking place over it might make such electronic terminations seem more conventional than outrageous.

Earlier this year, the Seventh Circuit addressed the question in another enticement case, United States v. Gladish, 536 F.3d 646 (7th Cir. 2008).  Gladish was caught in an Internet sting.  A government agent posing as a fourteen-year-old girl encountered Gladish in an Internet chat room.  After engaging in sexually graphic communications, the two “agreed” to have sex, resulting in Gladish’s arrest.  However, the Seventh Circuit determined that Gladish’s plan did not proceed far enough to support an attempt conviction: despite the agreement to have sex, there was never any specific time or place determined for the tryst.  Without something more than graphic Internet communications and a vague agreement, there was no “substantial step” and, hence, no attempt liability.

The two new opinions, both authored by Judge Wood, elaborate on the meaning of Gladish, but still leave the “substantial step” line more gray than black and white.

The first was United States v. Davey (No. 07-3533).  Davey was caught in an Internet sting much like the one that nabbed Gladish.  Davey encountered an undercover agent posing as a fifteen-year-old girl in a chatroom.  However, their “agreement” to have sex was much more specific than Gladish’s.  Later that day, Davey drove to South Bend, Indiana, where the two were supposed to meet.  He was arrested shortly after calling the undercover agent from a pay phone. 

Davey initially pled guilty to attempted enticement, but then sought to withdraw the plea, asserting that it lacked an adequate basis in fact.  The district court judge denied the motion and sentenced Davey to 126 months in prison.  Davey appealed, arguing (among other things) that he had not taken a substantial step.  In affirming the conviction, though, the Seventh Circuit had little difficulty distinguishing Gladish: Davey’s agreement was not only much more specific than Gladish’s, but he also actually traveled to the intended rendezvous point.

The second case, United States v. Zawada (No. 08-1012), was harder to distinguish.  Like Gladish and Davey, Zawada was caught in an Internet sting.  Like Gladish (and unlike Davey), Zawada did not travel to a rendezvous point and did not even establish a firm time and place for meeting the undercover officer.  However, Zawada did not raise the “substantial step” issue in the district court, and so was found to have forfeited the issue on appeal.  As a result, he could only prevail if the evidence fell so short of the Gladish requirements that his conviction amounted to “plain error.”  Holding that Zawada could not meet this standard, the Seventh Circuit affirmed his conviction.

Because it relied on the highly deferential plain error standard, the court did not have to (and did not) squarely address whether the facts in Zawada were distinguishable from Gladish.  The court indicated that Zawada had at least come “somewhat closer” to a substantial step than Gladish, based on these facts:

Zawada and Kelsey [the undercover cop] had a relatively concrete conversation about making a “date,” and they discussed a specific date and time of day that they thought would work.  Zawada checked on the intimate detail of Kelsey’s birth control practices, and he asked her whether he should bring some kind of protection with him.

“Somewhat closer” to the substantial step line — but over it?  Given the procedural posture of Zawada (plain error review), the answer is still not clear.  Although the court indicated that travel (as in Davey) is not required for an attempt conviction, one wonders if something more than words is still necessary under Gladish, and, if so, what.  For instance, what if Zawada had purchased “protection” — would that be enough?  Gassed up the car in anticipation of a “date”?  Sent Kelsey a gift?  Given the frequency of these Internet sting cases, the Seventh Circuit will likely have to provide clearer answers to such questions before long.

Part 1 of Goldman’s series discusses the possibility that, under the prosecution’s theory, ISPs may lose their Section 230 immunity for the activities of users if those users violate the terms of some other website. Part 2 looks at the question of whether someone who does not actually click on a click-through agreement can nevertheless be bound by it. Courts in the few non-criminal cases to consider this have essentially said “yes.” Part 3 will offer suggestions for drafters of website terms. [Update: Part 3 is now up.]

In other news related to the case, the defense, assisted by George Washington University law professor Orin Kerr, has filed a supplemental brief on its motion to dismiss, on the question of whether violation of contractual terms vitiates consent for purposes of a criminal unauthorized use statute. In true Internet law fashion, they look to the nearest litigated real-world analogues, in this case rental car agreements.

The student emailed a hand-picked group of 391 faculty members (roughly eight percent of the total at M.S.U.), asking them to speak up about a proposal by the school administration to change the calendar.  What is truly mind-boggling about the decision to discipline that student is that the administration had itself solicited comments on the change from the faculty; the email was designed to encourage the faculty to take advantage of that offer.

At least this violation of a network’s terms of use policy wasn’t found criminal.

In the MySpace case, United States v. Morris (No. 08-2329), the defendant attempted to contact a minor through the minor’s MySpace page.  The minor’s mother responded by creating her own MySpace page, in which she posed as a 15 year old, and began a series of communications with the defendant.  After the mom agreed to have sex with him, Morris mailed a bus ticket to her so that they could meet.  The mom reported Morris to the FBI, resulting in his arrest and prosecution.  After his conviction for attempting to transport a minor across state lines to engage in illegal sexual conduct, Morris raised a single issue on appeal: that the person he intended to transport across state lines was neither a minor nor a law enforcement officer posing as a minor, but a private citizen conducting her own sting operation.  However, it is well established in such cases that the defendant has no defense if his intended victim is really an undercover law enforcement officer, and the Seventh Circuit (per Judge Posner) found no basis for distinguishing undercover private citizens: in either situation, the criminal justice system appropriately punishes the defendant for his demonstrated dangerousness. 

The court did recognize, however,

a legitimate concern with vigilantism — with private citizens conducting stings without the knowledge or authorization of the authorities.  The vigilantes’ aim might be to blackmail any offender whom they detect . . . . Or they might botch their investigation, alerting the offender in time for him to elude justice.

The court also observed that the Internet has enabled private stings in new ways, and (citing the group “Perverted Justice”) suggested that they may become more common.  The court concluded, however, that any concerns regarding vigilante abuses should not be addressed by giving their targets defenses, but by imposing criminal liability on the overreaching vigilantes themselves (e.g., through solicitation laws).

In United States v. Hagerman (Nos. 07-3874 & 07-3875), the court decided a novel, if obscure, question of law: what happens if a corporate criminal defendant fires its lawyer after an appeal has been fully briefed and fails to hire a new one?  This is a problem because corporations are not permitted to litigate pro se in federal court.  The Seventh Circuit (per Judge Posner) ruled that the court may, but is not required to, dismiss the appeal under such circumstances.  in this case, since the appeal was already fully briefed and the issues clear, the court chose not to dismiss the appeal, but to decide the case (against the defendants) on the merits.

In United States v. Prieto (Nos. 07-3484 & 07-3485), the court (per Judge Manion) rejected a grab-bag of evidentiary objections made by the defendant meth traffickers.

In United States v. Hearn (No. 07-1613), the court (per Judge Ripple) responded to petitions for rehearing in a case that it decided last summer, denying the defendant’s petition and granting the government’s.  Hearn, convicted of possession of crack with intent to distribute, sought a rehearing as to the use of a prior conviction as evidence against him at trial.  As I observed in a recent post, prior convictions issues have been presented in several recent Seventh Circuit cases, resulting in a series of decisions that are neither entirely satisfactory nor entirely consistent with one another.  In general, though, it seems in the recent cases as if the Seventh Circuit will affirm the use of prior drug trafficking convictions in a new drug trafficking trial as long as there is any plausible basis for concluding that intent was at issue in the new trial.  Thus, in denying Hearn’s petition for rehearing, the court relied mainly on the fact that Hearn’s counsel had “questioned the Government’s proof on the issue of intent on a number of occasions in his opening and closing statements.”  Defense lawyers take note: beware of saying the word “intent” at trial if you hope to keep your client’s criminal history out of the evidence!

In granting the government’s petition for rehearing, the Hearn panel determined that it had incorrectly remanded the case for resentencing the first time around.  As a crack defendant, Hearn sought to take advantage of the Supreme Court’s 2007 decision in Kimbrough v. United States, which held that the crack sentencing guidelines are not binding even in routine cases.  Although the Seventh Circuit has been granting Kimbrough remands as a matter of course in cases in which the issue was properly preserved, the government objected in Hearn’s case because he was sentenced under the career offender guideline, which may trump the crack guideline where it is applicable.  Other Seventh Circuit decisions have denied Kimbrough remands to career offenders, and the Hearn panel, on rehearing, agreed that crack defendants sentenced as career offenders do not generally qualify for resentencing.

Finally, in United States v. Wayland (No. 08-2194), the court addressed another provision of the federal sentencing guidelines, the “sophisticated means” enhancement.  Wayland defrauded Medicaid of a little more than $100,000 through false claims for payment for services purportedly provided to his disabled mother by one Cyril Sturm.  Sturm was actually deceased.  Wayland set up a bank account in Sturm’s name and collected the money paid to Sturm by Medicaid.  At Wayland’s sentencing, the court increased his prison time based on his use of “sophisticated means” to perpetrate the fraud.  Specifically, he set up a bank account and post office box, and then filed tax returns in the dead man’s name so that the IRS would not get suspicious.

To me, it seems a bit of a stretch to characterize this as sophisticated means, defined in the guidelines’ application notes as “especially complex or especially intricate offense conduct.”  This was not Enron — not even close.  Millions of Americans have opened bank accounts, rented post office boxes, and filed tax returns — in contrast to setting up corporate shells and offshore financial accounts (two examples of sophisticated means mentioned in the application notes).  At the least, I am puzzled that the district court judge seemed to treat this as a no-brainer: “If this wasn’t a sophisticated means of perpetrating a fraud, I don’t know what is.”  Once that conclusion was reached, however, reversal in the Seventh Circuit was unlikely, because the determination of sophisticated means is a finding of fact that is reviewed under the deferential clear error standard.  And, indeed, the Seventh Circuit did affirm.