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April 1, 2014

ICANN Reader: IANA Transition Away from U.S. Draws Widespread Concern

Three things can happen when you pass the football, and two of them are bad. A roundup of reaction to the news that the U.S. Department of Commerce will be transferring its oversight role for key functions in the domain name system to an as-yet-undetermined entity chosen by the community of Internet stakeholders.

February 6, 2014

Cyberlaw Review 2014: Electronic Surveillance, Emerging Payment Technologies

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for electronic surveillance and emerging payment technologies.

February 6, 2014

Cyberlaw Review 2014: Social Media, Software Patents, Telecom Regulation

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for social media, software patents and telecommunications regulation.

February 6, 2014

Cyberlaw Review 2014: ICANN's New Top-Level Domains

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for ICANN's new top-level domains.

February 6, 2014

Cyberlaw Review 2014: Internet of Things, Online Contracts

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for the Internet of Things and online contracts.

February 6, 2014

Cyberlaw Review 2014: Internet Governance

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for internet governance.

February 6, 2014

Cyberlaw Review 2014: Cloud Computing, Consumer Protection, Computer Crime, Data Breaches

Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for cloud computing, consumer protection, computer crime and data breaches.

February 6, 2014

Cyberlaw Review 2014: Digital Copyright, Digital Divide, Domain Name Disputes, Trademarks, Entrepreneurship, Intermediary Liability, and Internet Freedom

 Legal experts and policy officials comment on significant developments, and likely 2014 hotspots, for digital copyright, digital divide, domain name disputes, trademarks, entrepreneurship, intermediary liability and Internet freedom.  

October 31, 2013

Muzzled Attorney Is No Cure for 'Wired Juror' Problem

An appellate court in California explores the First Amendment implications of a trial court order directing the plaintiff's attorney to remove several pages from her website during a jury trial. The trial court was concerned that it would prejudice the jury to learn that the plaintiff's attorney had obtained large verdicts in similar cases, a fact that was publicized on the attorney's website. Law bloggers definitely dodged a bullet here.

October 31, 2013

The FCC's New TCPA Regulations: Less Efficiency May Save Money

On Nov. 13, Bloomberg BNA will hold a webinar on compliance and litigation avoidance issues raised by the Federal Communications Commission's new Telephone Consumer Protection Act regulations for automated calls and text messages to mobile phones. TCPA exposure can rise quickly into the six-figure range because statutory damages are available for each unlawful call. Among the compliance strategies likely to be discussed is the advantage of using human beings instead of machines to make calls and send texts to mobile phones.

October 10, 2013

Passenger's Twitter Griping May Have Put Airline Agent in False Light

In Tennessee, an appellate court holds that an airline passenger's publication on Twitter and Facebook of very unflattering -- and allegedly false -- statements about her experience with a particular airline employee could be actionable as false light invasion of privacy. The ruling underscores the fact that social media are important avenues for communication, that online reputations matter, and that courts are taking social media seriously. The court affirmed dismissal of a related defamation claim, however.

September 27, 2013

Federal Agencies Give New Advice on Proper Collection and Use of Mobile Numbers

Big changes are coming in the way the businesses collect and use mobile phone numbers. In its recent settlement with a debt collector that used text messages to chase down debtors, the Federal Trade Commission signaled its belief that businesses must work harder to provide lawful disclosures on small-screen devices. The FTC also indicated agreement with the Federal Communications Commission's demanding new definition of "express prior consent" to receive text messages on a mobile device.

September 25, 2013

Are Carrots Dead?

Notwithstanding the immense popularity of broccoli, carrots can still be found in the produce department of every grocery store and nearly every pot of chicken soup. So too with the press release, a traditional means of communication that, while lately taking a back seat to social media, still remains a useful component of a law firm's marketing communications strategy.

September 11, 2013

Political Marketer Says 'Paid For By ...' Disclaimers Should Be Scrapped for Mobile Ads

Revolution Messaging, a political marketer, is asking the Federal Elections Commission, to exempt political messages to mobile devices from the election law requirement that such messages disclose the identity of the sponsor. Mobile phones are too small to legibly convey that information, they say.

September 11, 2013

Wine Trade Groups Want .Wine, .Vin Domains Crushed

Senior legal editor Amy E. Bivins reports on the efforts of wine industry trade associations to block applications with ICANN to add .wine and .vin top-level domains to the Internet. It's a multi-layered story with strong notes of market disruption, opportunism, international trademark law, threatened litigation, and GAC lobbying. Reads well now, should gain further complexity through 2014.

September 9, 2013

It's Not a Real Cloud

A federal trial court turns a cold shoulder on one attorney's contention that the Computer Fraud and Abuse Act applies only to computers and not to clouds.

September 5, 2013

A Pair of Dangerous Legal Arguments

A legal dispute between two sports betting information services is the setting for two dangerous legal claims. The first is that the mention of trademarked terms on a message board can amount to trademark infringement. The second is that a website policy that does not explicitly forbid the submission of  unlawful content might make the website operator a culpable developer of unlawful user submissions. The court turns back the trademark claim, but appears to embrace the contention that the website operator is not entitled to CDA Section 230 immunity on the facts alleged here.

July 25, 2013

California Voters May Get Chance to Create Privacy Protections

Last week former California state senator Steve Peace launched a ballot initiative to add new privacy protections to the California Constitution: opt-in privacy, a broad definition of personal information, a presumption of harm from unauthorized information transfers or loss -- the proposal is a nightmare for online marketers. Assuming it gets on the ballot and the voters eventually approve it, constitutional problems and few friends at the federal level seem destined to consign the effort to "California dreamin" status.

July 23, 2013

ICANN Legal Rights Objections: What's Past Is Prologue

As of today, panelists at the World Intellectual Property Organization's Arbitration and Mediation Center have decided 12 trademark-based legal rights objections to a proposed top-level domain -- rejecting every one of them. With 53 legal rights objections remaining to be decided, the only surprise the future might hold is the faint prospect that a WIPO panelist might actually rule in favor of a trademark owner.

July 18, 2013

Wyndham Case Threatens to Put FTC Out of Data Security Business

The Federal Trade Commission has a critical piece of litigation on its hands in a New Jersey federal court. A case that could be decided any day. After filing, and settling, over a dozen enforcement actions asserting that lax data security measures were an "unfair" trade practice, one FTC target had the nerve to fight back: Wyndham Hotels. The hotel chain claims that the FTC lacks legal authority to, in effect, legislate data security standards for U.S. businesses via its existing authority under Section 5 of the FTC Act.

July 17, 2013

Fourth Circuit: E-Sign Act Permits Electronic Copyright Transfers

The Fourth Circuit held today that the Copyright Act's requirement, at 17 U.S.C. 204(a), that transfers of copyright interests be "in writing and signed by the owner of the rights conveyed," can be satisfied by electronic means.

May 9, 2013

Ninth Circuit Vacates Fair Use Finding in Righthaven Case

The Ninth Circuit likely placed the last nail in Righthaven's coffin today. Along the way, however, the court vacated the portion of the lower court's opinion that held the the copying of the entirety of a newspaper article and posting it to an online discussion board was a protected fair use.

May 8, 2013

The Nation's First Privacy Goalie

Hockey goalies tend to receive too much credit for the wins and too much blame for the losses. I have a feeling it's going to be that way for Nicole S. Wong, the Twitter and former Google lawyer whom President Obama will reportedly soon nominate for the White House's chief privacy officer.

March 4, 2013

Georgia Bill Would Regulate Online Self-Help Publishers

The Georgia Senate is considering Senate Bill 209, a curious piece of legislation that appears to mandate a disclosure on all self-help publications indicating that such publications "are not a substitute for the advice of a professional in the relevant industry." There is a lot of self-help material on the internet.

January 17, 2013

Race Toward New gTLDs Finish Line Sparks Debate on ICANN's Policy Methods

Within the community that supports domain name policymaking at the Internet Corporation for Assigned Names and Numbers, the question of whether a particular matter is "policy" or "implementation" is an important one. "Policy" at ICANN must be the product of a consensus-driven process that involves all relevant members of the ICANN community. "Implementation" matters, on the other hand, might be adopted by the ICANN board of directors without involving ICANN's various constituencies to any great extent. ICANN is currently studying the "policy vs. implementation" question, and is looking to develop guidance to help it decide which matters should be referred to the entire ICANN community for policy work and which matters are mere implementation details that can be hendled on an expedited basis.

January 14, 2013

Cyberlaw Predictions: Competition, Trademarks, Online Contracts

Several key competition issues are percolating to the surface as the world transitions from the public switched telephone networks to all-IP voice and data networks, from physical storefronts to websites, from paper-based to electronic media, from broadcasting to sharing: competition among the dwindling number of internet service providers, competition among electronic content distributors, competition for scarce IP addresses and domain names, and competition among online advertising platforms. Also in this space: the persistent "digital divide" and the free speech rights internet service providers and their customers.The sixteenth and final entry in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 14, 2013

Cyberlaw Predictions: Technology and Society, Free Speech, Consumer Protection

Lawyers who make their living at the intersection of law and technology are among the most engaged, optimistic, and passionate attorneys I've had the pleasure to meet. We received dozens of comments offering insights about where technology is taking society. Also collected here: free speech online and consumer protection. The fifteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 11, 2013

Cyberlaw Predictions: Big Data

The year 2012 saw law enforcement officials, businesses, and even candidates for political office embrace "big data" technologies. Many contributors remarked that, in 2013, "big data" will test an already creaky information privacy regime in the United States. The fourteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 11, 2013

Cyberlaw Predictions: Data Security, Cloud Computing, and Identity Management

Most observers see Congress again picking up cybersecurity as a policy priority in 2013. If Congress doesn't act, President Obama may very well impose his own cybersecurity program. Increasing levels of identity theft and other cybercrimes may lead courts, or the Federal Trade Commission, to fashion new data security standards of care for net-connected businesses. The thirteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 9, 2013

Cyberlaw Predictions: Copyright in Congress and the Courts

As Chico Escuela might have said, "Copyright lawyers been berry, berry good to me." Copyright law was again in 2012 a prolific source of cyberlaw policy issues to write about. Everyone is expecting more the same in 2013. The twelfth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 9, 2013

Cyberlaw Predictions: Privacy Reforms in the European Union and Elsewhere

While lawmakers in the United States continued their painstaking examination of the need for online privacy regulation, the European Commission released a proposal for Europe's second set of privacy rules, the proposed General Data Protection Regulation. It's a doozy by American standards. The eleventh in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 8, 2013

Cyberlaw Predictions: The Privacy Policy Debate in the United States

Information privacy is a legal issue that continues to command attention in Washington. As it has for the past 20 years. Will 2013 be any different? The tenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 7, 2013

Cyberlaw Predictions: International Pressure on Internet Governance

Most folks in the internet community are passionate about keeping the government role in internet policymaking to an absolute minimum. They've held their own for the past few decades, but now that the internet has become such a great economic and social force, fending off pressure from governments to control how and where the internet works is a constant battle in the online industry. The ninth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 7, 2013

Cyberlaw Predictions: Unfinished Legal Business on Social Media

The one-two punch of content-sharing social networks and always-connected, location-aware cell phones has transformed the way we communicate with each other. Expressive and artistic speech, political speech, commercial speech, speech about the workplace, even speech about cute furry animals, have all moved into the social media space. Lawmakers and law enforcers are not far behind. The eighth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 4, 2013

Cyberlaw Predictions: Protecting Trademark Interests in the New Domains

According to trademark attorneys, the time for complaining about ICANN's new top-level domains initiative is over and the time for vigilance is at hand. The sixth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 4, 2013

Cyberlaw Predictions: High Court Dismissal of WEC Carolina Energy Solutions Petition Will Sting

Employer-side attorneys hope that 2013 will be the year they get the green light to use the Computer Fraud and Abuse Act against employees who take valuable digital information with them when they depart for another employer. The seventh in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 3, 2013

Cyberlaw Predictions: ICANN's Brand New Day

The Internet Corporation for Assigned Names and Numbers, after a very long, messy, seemingly ad hoc, and at-times troubled gestation period, is about to midwife a large number of new top-level internet domains. Trademark owners will have their say in the next post. Today we hear from those who, for the most part, see positive change coming to the internet. The fifth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 3, 2013

Cyberlaw Predictions: Crucial Time at the Federal Trade Commission

Gridlock in Congress on privacy policy, a big case in Arizona testing the Federal Trade Commission's authority to create de facto national data security standards via Section 5 enforcement actions, and changes in key FTC leadership positions all suggest a busy 2013 for privacy at the agency. The fourth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 3, 2013

Cyberlaw Predictions: The Software Patent Scene

To what extent are software patents throttling innovation in the online economy, and how will last year's policy changes in the patent system play out in 2013? The third in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 2, 2013

Cyberlaw Predictions: Privacy Litigation in the United States

What is the outlook for privacy-related litigation in the Unites States? The second in a series collecting short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 2, 2013

Cyberlaw Predictions: Aftermath of SOPA/PIPA

What does the failure of the SOPA and PIPA copyright enforcement measures mean for lawmaking in this area in 2013? The first in a series collecting short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.

January 2, 2013

Cyberlaw Predictions for 2013

This year we farmed out our annual cyberlaw predictions story to as many experts as we could identify, drawing from our subscriber lists, our advisory board, and our most-frequently consulted legal experts. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints about any topic that fell under the general heading of cyberlaw.

November 28, 2012

Issa: Stop Us Before We Legislate Again

U.S. Rep. Darrell Issa (R-Calif.) floated this week a draft law to prevent Congress from legislating on internet-related matters for a period of two years. Issa's unworkable, semi-serious and DOA proposal has all kinds of bad consequences, both intended and unintended.

November 15, 2012

Today is Conflict of Interest Day at ICANN

The Internet Corporation for Assigned Names and Numbers shot itself in the foot today over conflict-of-interest problems high up in the organization. Twice.  

October 24, 2012

U.S. Libraries Working to Shore Up Right to Lend Electronic Books

Libraries in the United States are at odds with publishers over the extent to which the copyright law's first sale doctrine protects their right to lend electronic books.

October 22, 2012

What One ICANN Journalist Thinks

I had the opportunity to participate on the What the Journalists Think panel at last week's Internet Corporation for Assigned Names and Numbers meeting in Toronto. The panel moderator didn't ask many of the questions he said he would ask. So now I have several pages of "unused" notes. Unused until now.

October 10, 2012

Stored Communications Act Doesn't Reach Opened Webmails

Maybe the South Carolina Supreme Court got it right today when it held that the 1986 Stored Communications Act does not protect opened email messages on a Yahoo! webmail account. Or maybe the court erred. Nobody knows for sure, and that's a problem.

October 5, 2012

ICANN's Oct. 9 Call on Registry Proposal for Trademark Clearinghouse

Next week, on Oct. 9, Several leading registry operators will hold an open discussion on their proposed alternative to ICANN's trademark clearinghouse plan for the new top-level domains.

September 11, 2012

ITU's Toure: WCIT Talks Are Not About Internet Governance

An editor on our staff, David McAuley, was fortunate to obtain an interview last week with International Telecommunication Union Secretary-General Dr. Hamadoun I. Touré. The U.S. government has hammered away at Touré and the ITU all this year, accusing the international telecom body of  using the upcoming World Conference on International Telecommunications (WCIT-12) talks in Dubai as a forum to wrest key internet governance functions away from the private sector (and the U.S. government). The accusations clearly rankled Touré, who spoke at length about what WCIT is and is not about.

September 7, 2012

The Shrinking Relevance of Shrinkwrap Decisions

The Second Circuit released today a very important opinion on the application of contract law to online contracting practices. The opinion contained a mini-treatise on contract law pertaining to online contract formation as well as an interesting discussion of the relevance of shrinkwrap license rulings to current online contracting practices.

August 9, 2012

Court Says Facebook 'Fans' Don't Translate Into Protected Expectation of Business

A federal court in Michigan has ruled that the wrongful takedown of a Facebook page with 19,000 fans will not support an action for tortious interference with a business expectancy. The court reasoned that the relationship between Facebook "fans" an actual business as a result of social media interest is too tenuous to support a tort claim. Unlike!

July 27, 2012

Fourth Circuit: Computer Use Policies Don't Create CFAA Liability

Employer-side attorneys got a bitter pill yesterday when the Fourth Circuit held, emphatically, that it is not permissible to build a Computer Fraud and Abuse Act case against departing employees based on violations of company computer use policies. The court's opinion comes just in time for the government to add it to a possible petition for certiorari in United States v. Nosal. The petition is due at the Supreme Court on August 8.

July 23, 2012

Professional Hockey's TCPA (And Other) Privacy Problems

When it comes to privacy policies, the experts say "one size doesn't fit all." For the National Hockey League, one size -- one lawful, properly written and displayed privacy policy -- would be an improvement over what I found.

June 28, 2012

Judo Official Makes Wrong Move in Wrong Court With Wrong Judge

Wherein I wonder if a Hungarian judo official had the misfortune of urging a very speculative interpretation of the Anticybersquatting Consumer Protection Act before a federal judge who actually had a hand in writing the statute.

June 22, 2012

A Case of Reaping Where They Have Not Sown

ICANN's new top-level domains may produce a close approximation of a global trademark. Dave Winer, one of the founding fathers of the blogging movement, is not happy at the prospect that somebody is soon going to acquire exclusive rights to .blog and all the goodwill that goes with it.

June 20, 2012

ICANN's New Top-Level Domain Initiative: An Appreciation

The Internet Corporation for Assigned Names and Numbers' plan to add thousands of new top-level domains to the internet, whether we need them or not, is a natural consequence of the government's policy to allow the free market to operate in this space. There will be excesses and rip-offs, there will be failures, there will be preposterous claims and stunning chutzpah, but it's going to be all right.

June 18, 2012

Regarding Maryland's Law to Protect Social Network Accounts

When the Maryland law to protect social network usernames and passwords was first introduced I wrote it off as typical front-running by political officials, and did not read it closely. DLA Piper's lawyers did and so, after I read their article, did I. What a mess.

May 18, 2012

ICANN's gTLD Expansion: The Applications Are (Almost All) In – Now What?

The Internet Corporation for Assigned Names and Numbers' unprecedented expansion of the Internet root creates an entirely new realm of challenges and opportunities for trademark holders.

May 16, 2012

U.S. Businesses Advised to Wake Up to Impact of Canada's Anti-Spam Law

Canadian law firm Fasken Martineau finds that few businesses in the United States appreciate the liability risks created by Canada's recently passed anti-spam legislation. That could be an expensive oversight, they say.

May 7, 2012

ICANN: If ... Concerned ... Could Well ... Consider

The Internet Corporation for Assigned Names and Numbers, an organization that is frequently the target of complaints of self-dealing and indifference to the public welfare, is missing a huge opportunity to repair its reputation.

April 13, 2012

House Reportedly Looking to Undo Nosal Ruling

The Ninth Circuit ruled last week that the government couldn't premise a criminal prosecution for computer fraud based on violations of a computer use agreement. Some folks on Capitol Hill are looking to "overrule" that ruling.

April 10, 2012

Nosal Ruling: Terms of Use Can't Define CFAA Authorization

An en banc panel of the Ninth Circuit speaks clearly on the interplay between computer use policies and liability under Computer Fraud and Abuse Act for unauthorized access of protected networks.

March 28, 2012

Nothing for Brand Owners in New .Com Agreement

The .com top-level domain is one of only three generic domains that still have a lightweight, “thin” WHOIS database of domain registrant contact information. Yesterday’s publication of a proposed Registry Agreement for .com, which will run until 2022, means that trademark owners can scratch that agreement off the list of possible sources for WHOIS improvements.

February 28, 2012

Top-Level Domain Tasting

In comments filed with the Internet Corporation for Assigned Names and Numbers, both Microsoft and Yahoo! urged the domain name administrator to consider permitting brand owners who file purely “defensive” applications for the top-level domain corresponding to their mark to receive a refund of most of their $185,000 application fee in the event their mark is not applied for by a third-party.

February 28, 2012

ACTA Debate Begins at the European Parliament

The European Parliament begins its examination of the Anti-Counterfeiting Trade Agreement (ACTA) this week. The EP's International Trade Committee is scheduled to discuss ACTA on Feb. 29, followed by an educational workshop on March 1. Both sessions will be webcast live.

February 27, 2012

Very Early Warning

The world's governments don't have to respect the consensus-driven, multi-stakeholder, private-sector-led approach to domain name administration embodied by the Internet Corporation for Assigned Names and Numbers. They can do as they please. The example of the European Banking Authority, which recently called on ICANN to halt any efforts to create a .bank top-level domain, could be a harbinger of things to come.

February 27, 2012

Will Mere Uncertainty Drive Brand Owners to Participate in ICANN's New gTLDS Effort?

Uncertainty—rather than specific aspects of the Internet Corporation for Assigned Names and Numbers new top-level domains initiative—appears to be fueling most brand owners' concerns about defensive registrations in the new gTLDs.

February 13, 2012

ACTA Now an Issue in French Presidential Election

Amid widespread protests in Europe, the Anti-Counterfeiting Trade Agreement is injected into the upcoming French presidential election by Socialist party candidate Francois Hollande.

February 8, 2012

A Privacy Gap as Wide as the Atlantic Ocean

When the forthcoming Department of Commerce's privacy white paper and the European Commission's proposed data privacy regulation are laid side-by-side, they will reveal a gap in views on privacy as wide as the Atlantic Ocean. It will be interesting to see if common ground can be found between one party that sees privacy as a human right and another that sees privacy as a tax on information-intensive businesses.

November 3, 2011

Nosal Rehearing Could be the Start of Something Big

Last week's decision by the Ninth Circuit’s decision to grant rehearing in United States v. Nosal, 642 F.3d 781 (9th Cir. 2011), is shaping up to be the best available opportunity to sharpen the definition of an important phrase in the Computer Fraud and Abuse Act. Namely, the meaning of “exceeds authorized access,” a key CFAA term that can narrow the reach of the statute to outside hackers only or expand its reach to potentially anyone who violates a website terms of use agreement.

November 2, 2011

Registry Makes Millions on .XXX Domains by Selling to Folks Who Don't Want .XXX Domains

ICM Registry Inc., the registry operator for the .xxx top-level domain, announced Nov. 1 that it sold nearly 80,000 domain registrations in the just-concluded Sunrise A and Sunrise B registration periods.These registrations cost nearly $300 per domain, representing a massive expenditure of cash mostly by folks who want to be kept out of .xxx's adult content neighborhood.

October 3, 2011

Ninth Circuit Says ECPA Protects Foreign Citizens

Provisions of the Electronic Communications Privacy Act that forbid internet service providers from disclosing the contents of electronic communications protect e-mail accounts belonging to foreign citizens, the U.S. Court of Appeals for the Ninth Circuit held Oct. 3 in a case of first impression at the federal appellate level. The court affirmed a lower court's refusal to force Microsoft Corp. to turn over to a civil litigant e-mail messages belonging to an India-based user of Microsoft's Hotmail e-mail service.

July 29, 2011

A Pair of Googlers

In yesterday's ruling in Trafficschool.com Inc. v. Edriver Inc., No. 08-56518 (9th Cir., July 28, 2011), Chief Judge Alex Kozinski used the term "googler" to describe a person searching the internet via the Google search engine. He was writing about allegedly deceptive sponsored links that would "take the googler to DMV.org."

May 2, 2011

Cyberlaw Links for Monday, May 2, 2011

Here are some interesting articles I ran across last week, followed by my two cents. Topics: the unfortunate intrusion of the federal junk fax statute into interactive media, how the unresolved orphan works issue is muting our musical heritage, one court's belief that owners of wireless routers owe a duty of care to protect the pornography industry, and how clean brands can do business in .xxx.

May 2, 2011

Congressional Attention Turns to Internet Issues

By my count, there are five congressional hearings on internet law issues scheduled to take place in the next week or so -- and two more promised by Senate and House committee leaders. That's a lot of legislative attention, especially when you consider that federal legislators would rather drink the Potomac River than grapple with privacy, antitrust, and net neutrality issues.Online privacy policy has been avoided for nearly two decades. Knotty internet governance questions have been dodged and booted over to the Department of Commerce (who in turn passed it to the Internet Corporation for Assigned Names and Numbers in 1998). Same story with net neutrality, which Congress dithered over for years until the Federal Communications Commission finally acted -- feebly and possibly unlawfully -- in 2010.