Thursday, December 18, 2008

In Which We (Once Again) Consider: Is It Legal to Link to a Website? "Voldemort" v. Blockshopper

Really? This is still an issue? The commodity, open to the public, Internet is almost 20 years old. The World Wide Web, an application fundamentally based on the premise of linking, was unleashed by Sir Tim Berners-Lee some 17 years ago. We have a waste can full of federal cases supporting the conclusion that it is, in fact, legal to link. And we still have to ponder the dilemma, It It Legal to Link?!?

Well, according to the Northern District Federal Court of Illinois, we do.


Ok, breath. Patience. Some people still are learning that the CD drive in the computer is not a cup holder. Breath.

Let's take it from the top. In today's case, we have, in one corner,, defendant, accused of infringing and diluting the trademark of plaintiff, in the other corner. Plaintiff v Blockshopper LLC, Case No. 08 CV 4572 (ND ILL). The Court recently had before it defendants' Motion to Dismiss, which it denied. And if the Court had any difficulty understanding the law in this area, the Court also had before it a Motion by the Electronic Frontier Foundation, Public Citizen, Public Knowledge, and Citizen Media Law Project to file Amici Curiae brief, which it also denied.

Now before we start, a few safety precautions. Plaintiff seems to be of the persuasion that merely uttering its name could result in trademark confusion or infringement (making information gathering, new reporting, and blogging rather difficult). Therefore, since we dont want to offend or be sued, in this post, Plaintiff will be a name that must not be uttered. In its place, we will have to use some other name. Let's see, what would be a good substitute for he-who-must-not-be-named. Oh, I know! Voldemort! In this post, we will use "Voldemort" in place of Plaintiff's name (and for you humor-impaired attorneys out there - this is called "parody" - say it with me, "p - a - r - o - d - y").

In addition, since Voldemort is of the persuasion that merely linking to its website gives rise to a cause of action, we will avoid doing so like a hound dog avoids taking a bath.

Back to the case. The Illinois Court describes defendant shortly as

"Defendant Blockshopper LLC is a Missouri limited liability corporation, having its place of business in Chicago. Defendants [John] and [Doe] are members of Blockshopper and co-founded, registered and own the internet website located at the domain Blockshopper is in the business of gathering and publishing details of private real estate transactions."

In Defendant's own words, " is a residential real estate news service for... eureka.. actual residents themselves." Reminds me of my local newspaper which does a lot of the same reporting.

Compare and contrast this to how the Illinois Court describes the plaintiff - and then, without even reading the decision, vote on who you think won this round:

"[Voldemort] is a large, international general partnership law farm with an office in Chicago, among other cities. [Voldemort] is the owner of two United States Service Mark Registrations, Numbers 2,316,539 and 2,212,877, for the mark [Voldemort] in connection with "Legal Services." As a result of the high quality of legal services it has provided to its clients and its reputation as one of the premier law firms in the United States and the world, [Voldemort]'s name and service marks have become very valuable assets and are famous. [Voldemort] has spent millions of dollars marketing its services using the [Voldemort] Marks; and as a direct result of the time and effort promoting the [Voldemort] Marks, [Voldemort]'s clients, its competitors and the general public have come to associate high quality legal services provided by [Voldemort] by its use of the name and service mark [Voldemort] in both word and stylized form." Court Opinion at 2.

Ladies and gentleman, in one corner, weighing in at 100 pounds of pure heavenly sainthood, is Saint Mother Teresa who has fed the hungry, clothed the poor, and given homes to the homeless. And in the other corner, some out-of-state schmuck doing one of those Internet Web 2.0 things.

Not good.

Okay, ah, maybe it's not as bad as it seems. What exactly did the out-of-state schmuck do to which plaintiff took offense.

"One at least two occasions, Defendants have used the [Voldemort] Service Marks on the website and have linked articles on the website to the [Voldemort] website. Exhibited D of the Complaint pertains to reports appearing on the of facts of residential real estate transactions made by two [Voldemort] associate lawyers, [Saruman the White] and [Merlin]. The report states the facts of real estate transactions of the [Voldemort] associates, displaying their pictures, and states that the associates work for [Voldemort]. In addition, the report includes links to information about these associates appearing within [Voldemort]'s website." Court Opinion.

If I am getting this correctly, Blockshopper linked to Voldemort's website in real estate articles discussing purchases of attorneys who worked at Voldemort. And this is a problem legally speaking why?

"[Voldemort] contends Defendants' use of the [Voldemort] Marks, the links to the [Voldemort] website, and the use of proprietary information from the [Voldemort] website create the false impression that [Voldemort] is affiliated with and/or approves, sponsors or endorses Defendants' business, which it does not.

"Arising from these facts, [Voldemort] alleges five claims for relief against Blockshopper and [John] and [Doe]:

(1) service mark infringement pursuant to 11 USC s 1114 and 1125(a)

(2) federal false designation of origin pursuant to 15 usc s 1125(a)

(3) federal service mark dilution pursuant to 15 USC s 1125(c)

(4) unfair business practices under the Illinois Uniform Deceptive Trade Practices Act; and

(5) infringement and unfair competition under Illinois common law."

Okay, ah, I didnt really know this was necessary - that someone reading a website providing information about third parties and stuff might confuse the information website with that third party - particularly when that third party is famous - but let's just be clear, shall we? Plaintiff is not affiliated with this website. I have never asked for Plaintiff's approval. Plaintiff has never, to my knowledge, endorsed Cybertelecom. Is it safe to discuss the case further??

Blockshopper filed a 12(b)(6) motion to dismiss Voldemort's complaint. Under Rule 12(b)(6), you assume the facts plead in the light most favorable to Voldemort. The Court then says, assuming all this to be true, is there an actual cause of action? Courts are at liberty to construe motions to dismiss as motions for summary judgment just to help sort things out (the two are pretty close - the difference would be with summary judgment, there is cause of action articulated, but on the facts assumed, there aint enuf and plaintiff still loses).

Finally, before diving into whether it is Legal to Link - Cybertelecom is focused on federal law - so I will just craftily wave away Count 4 and 5 of Voldemort's complaint which are based on state law.

The scene of the crimes can be found in exhibit D in Voldemort's complaint (the pages appear to be no longer available on the Blockshopper website). Exhibit D is of a webpage from the Blockshopper website. The top left corner is the Blockshopper domain name. The top right corner is the Blockshopper URL. The header is a Chicago Blockshopper Logo. Then comes the body text about the Voldemort attorney. Finally the footer states "Copyright 2006-07 Blockshopper..." The body text takes the form of a news article.

The webpage is an article about the purchase, has a picture of the attorney, a picture of the place he bought, and a map showing where it was purchased. The attorney's name is hyperlinked to the Voldemort website A second Blockshopper webpage is attached in Exhibit D for the second Voldemort attorney, with essentially the same format.

Nothing on the webpage indicates that Voldemort is affiliated with and/or approves, sponsors or endorses Defendants' business. The page takes the format of a news article with a title, date, byline, and article text. A quick glance at the Blockshopper homepage reveals that it is reporting on several such sales each day on a wide variety of real estate transactions involving a wide variety of individuals who may be associated with a wide variety of organizations.

So now I am confused. How do you get a cause of action based on these facts?

Voldemort's objection is "On at least two occasions, Defendants have used the Voldemort Service Marks and linked "articles" on the Web Site to the Voldemort web site. See Exhibit D." Complaint para 25. So the facts that are basis of the cause of action are:

Count II of Voldemort's complaint claims trademark dilution. According to trademark law:

"The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

(A) any fair use, including a nominative or descriptive fair use, or facilitation of such use, or a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with (i) advertising or promotion that permits consumers to compare goods or services; or (ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

(B) All forms of news reporting or news commentary.

(C) Any noncommercial use of a mark.

15 USC s 1125(c)(3). This would seem to be clear that no cause of action for dilution can lie based on Voldemort's facts; this would fall under "all forms of news reporting" . Seems like this would go for Counts 1 & 2 as well, but we shovel on.

Counts 1 (infringement) and 2 (false designation of origin) are both based on of 15 USC s 1125(a). Well, what has almost two decades of caselaw said about linking to someone else's website?

So I'm back to confused. Looking at well established caselaw and the statute itself, where is Voldemort's cause of action? Plaintiff's alleged facts are (1) linking to plaintiff's website and (2) use of plaintiff's name Voldemort in news articles as a descriptive term. I know I keep repeating that - but I am struggling to comprehend how these facts can predicate a cause of action. The caselaw and statutory law are well settled that there is no federal trademark cause of action based on linking.

Either the law relevant to this case is well settled and the case should have been dismissed - or in the face of well settled jurisprudence, we have novel factors that complicate the analysis and may establish important new precedent in this area - in which case the input of expert organizations would be well appreciated and those organizations motion to file amici curiae briefs should have been granted. Surely a famous law firm such as Voldemort would not feel threatened or imposed upon by the appearance of such groups that could bring clarity to such a novel situation.

This decision has established that the mere mention of a famous trademark on your website in a fashion such as this - reporting on or discussing news and developments - much like so many blogs and websites do - can make you suffer the slings and arrows of expensive litigation. Plaintiffs may in the end lose their case - fine - but this case should never been allowed off square one. The motion to dismiss should have been granted. Since it was not, the fear of litigation - even litigation defendant is likely to win - is enough to chill speech and is contrary to the fair use provisions of the law.

According to Google, there are 594,000 webpages with the name "Voldemort" on it. I dont know, I guess plaintiff would like those 594,000 webpages not to link to it - but that might actually do more harm to plaintiff than good. It might jeopardize plaintiff's "famous" status as plaintiff would magically disappear from search engine results.

Well, even though the Defendant is getting soaked with pointless litigation expenses, at least bloggers have something to buzz about. I'm just thinking out loud here - what tarnishes a trademark more - having people link to your website in an article which increases your exposure and improves your ranking on search results - or filing a lawsuit that receives wide attention and condemnation?

Tuesday, December 09, 2008

Committee Releases Staff Report on Findings of FCC Investigation

For immediate release:  Tuesday, December 9, 2008  Contact:  Jodi Seth/Dingell, 202-225-5735  //  Nick Choate/Stupak, 202-225-4735

Committee Releases Staff Report on Findings of FCC Investigation

Washington, DC – Reps. John D. Dingell (D-MI), Chairman of the Committee on Energy and Commerce, and Bart Stupak (D-MI), Chairman of the Subcommittee on Oversight and Investigations, today released a Committee on Energy and Commerce Majority Staff report detailing the findings of the Committee's bipartisan investigation relating to the Federal Communications Commission (FCC).

"Our investigation confirmed a number of troubling allegations raised by individuals in and outside the FCC," Stupak said.  "The Committee staff report details some of the most egregious abuses of power, suppression of information and manipulation of data under Chairman Martin's leadership.  It is my hope that this report will serve as a roadmap for a fair, open and efficient FCC under new leadership in the next administration."

"Any of these findings, individually, are cause for concern," said Dingell. "Together, the findings suggest that, in recent years, the FCC has operated in a dysfunctional manner and Commission business has suffered as a result. It is my hope that the new FCC Chairman will find this report instructive and that it will prove useful in helping the Commission avoid making the same mistakes."

The report, titled "Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin," is the culmination of a bipartisan investigation into the FCC's regulatory processes and management practices that was formally launched on January 8, 2008.

Read the Report (pdf)

Tuesday, December 02, 2008

Commerce’s NTIA Applauds EDUCAUSE’s Move to IPv6 in .EDU Top Level Domain

Press Release: Commerce’s NTIA Applauds EDUCAUSE’s Move to IPv6 in .EDU Top Level Domain

For Immediate Release: December 2, 2008
Contact: Bart Forbes, (202) 482-7002 or

WASHINGTON -- The Commerce Department’s National Telecommunications and Information Administration (NTIA) today applauded EDUCAUSE’s actions to introduce Internet Protocol version 6 (IPv6) in the .EDU top-level domain. EDUCAUSE is responsible for the management of .EDU through a cooperative agreement with the Department of Commerce.

“This action taken by EDUCAUSE for the .EDU domain will significantly advance the imperative of IPv6 adoption and deployment,” said Meredith Baker, acting NTIA Administrator. “The sooner the evolution to IPv6 occurs, the more confidence we can have that further diffusion of the Internet, at home and throughout the world, is sustainable.”

EDUCAUSE Vice President Mark Luker said, “EDUCAUSE is very pleased to offer native IPv6 Domain Name System capabilities for the .EDU domain. All agree that the transition to IPv6 is an important step on the path to the Internet of the future.”

Internet Protocol (IP) defines how computers and other devices communicate over a network, enabling data and other traffic to traverse the Internet and to arrive at the desired destination. IP not only provides a standardized “envelope” for the information that is sent; it also contains “headers” that provide addressing, routing, and message-handling information that enables a message to be directed to its final destination over the various media that compose the Internet. IP version 4 (IPv4), the currently prevalent version, supports just over four billion unique IP addresses, which are not enough to last indefinitely. There is a growing shortage of IPv4 addresses, which are needed by all new machines added to the Internet. IPv6 is a replacement for IPv4, offering more IP addresses and enhanced security features.

NTIA is responsible for the development of the domestic and international telecommunications policy of the Executive Branch.

EDUCAUSE is a non-profit membership association created to support those who lead, manage, and use information technology to benefit higher education.

# # #

Saturday, November 22, 2008

NTIA Seeks Nominations to Serve on the Online Safety and Technology Working Group

Fed. Reg. Notice Friday November 21, 2008


National Telecommunications and Information Administration

Notice: Call for Nominations, Online Safety and Technology Working Group

AGENCY: National Telecommunications and Information Administration

ACTION: Notice and Request for Nominations of Representatives to Serve on Working Group

SUMMARY: The National Telecommunications and Information Administration (NTIA) is seeking nominations of individuals to represent the business community, public interest groups, and other appropriate groups interested in serving on the NTIA Online Safety and Technology Working Group (OSTWG) for a single fifteen (15) month term to commence in January 2009. At the conclusion of the working group’s term, the OSTWG will provide a report to the Assistant Secretary for Communications and Information and NTIA Administrator and to Congress on ways to promote and to preserve a safe environment for children using the Internet.

DATES: Nominations must be postmarked or electronically transmitted on or before December 12, 2008.

ADDRESSES: An organization wishing to submit a nomination of an individual to represent that organization’s interests relevant to the work of the OSTWG should send the individual’s resume or curriculum vita and a biographical statement summarizing the individual’s interest in serving on the working group and relevant qualifications to the attention of Tim Sloan by mail to Office of the Assistant Secretary, National Telecommunications and Information Administration, 1401 Constitution Avenue N.W., Room 4725, Washington, DC 20230; by facsimile transmission to (202) 482–6173; or by electronic mail to Individuals may also self-nominate by submitting the same information listed above, as well as an indication of support from the organization or group that the individual will represent.

FOR FURTHER INFORMATION CONTACT: Eric Stark at (202) 482–1880 or; or Tim Sloan at (202) 482–1899 or

SUPPLEMENTARY INFORMATION: On October 10, 2008, the President signed into law the ‘‘Broadband Data Improvement Act’’ (the Act), Pub. L. No. 110–385. Section 214 of that Act directs NTIA to establish the OSTWG to review and evaluate:

• The status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children;

• The status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography, including any obstacles to such reporting;

• The practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children; and

• The development of technologies to help parents shield their children from inappropriate material on the Internet.

The OSTWG must report its findings and recommendations to the Assistant Secretary and to Congress within one (1) year after its first meeting.

MORE . . . . .

Tuesday, November 18, 2008

"Wont Someone Please Think of the Children Webcasters!"

With all the elections, and ClusterF@#K to the Poor House, and figuring out which are the real Americans and which are the fake Americans - the 110th Congress sure found time to get busy with a lot of new legislation this fall.

This story begins with a fish - a CARP more precisely. Now given the nature of the past election, one would have thought that any discussion of fish would necessarily either involve Alaskan Salmon, or putting lipstick on a pig. Turns out - in the words of VPWannaBe Sarah Palin, PresWannaBe Barack Obama, and PresWannaBe John McCain - "You Can Put Lipstick on a Bad Music Royalty Deal, But It's Still a Pig."

The Copyright Arbitration Royalty Panel (CARP) had apparently agreed to a music royalty rate agreement for webcasters that was a pig, and would have put webcasters in the Poor House. Therefore, in the spirit of massive bailouts, Rep. Jay Inslee introduced the Webcaster Settlement Act which overrides the CARP decision, and allows the webcasters and the copyright owners to negotiate a new deal.

Tis the season for industry bailouts - and this one had the support of both sides of the negotiating table - the webcasters and SoundExchange, which represents the copyright owners. But in a democracy, every piece of legislation has to be opposed by somebody, so the National Association of Broadcasters volunteered to oppose it. But after a few smoke filled, back room deals to appease the opposition, the NAB relented and the legislation went through unanimously. It was sent to Still-President Bush and was signed into law on October 16.

Now everyone is happy (more or less):

  • Inslee Internet Radio Bill Passes Senate Press Release : October 1, 2008 “It's a true delight to pass a bill which will allow for the survival of webcasting. Internet radio is an integral part of many of my constituents' daily lives and this bill will keep it that way."

  • DiMA Thanks Congress for Passing Webcasters Settlement Act . “On behalf of DiMA and our Internet radio members, I want to thank Congress for acting quickly to pass the Webcaster Settlement Act. This legislation will enable DiMA and our member companies, and all Internet radio services, to continue negotiating royalty rates with SoundExchange for the years 2005-2015." "We express great thanks to Senators Wyden and Brownback, and Representatives Inslee and Manzullo for sponsoring the Webcaster Settlement Act and also being great leaders of the Internet Radio Equality Act.

  • Press Release SoundExchange Welcomes Senate Passage of Webcaster Settlement Act , (Oct. 1, 2008) "The bill was needed to give the parties more time to negotiate while Congress is out of session and allow any agreements to take effect. Though there has been progress in the talks, SoundExchange expressed a note of caution because there is no deal yet with large webcasters although an agreement in principle with National Public Radio had already been announced. “We are hopeful, but we've been close at other times during the past 18 months,” said John Simson, Executive Director of SoundExchange. “Certainly, Congressman Howard Berman's role as facilitator has helped tremendously in moving the ball forward. My hope is that we can quickly get back to the table and capitalize on the momentum."
  • Nab Statement On Senate Passage Of Webcaster Settlement Act , (Oct. 1, 2008) "NAB looks forward to sitting down quickly with SoundExchange to craft equitable streaming rates that enhance the online music experience and expose more artists to our listeners."

The law itself is relatively simple. According to the Congressional Reports Summary:

“Webcaster Settlement Act of 2008 - Allows a receiving agent (designated by the Librarian of Congress to collect royalties that ultimately are disbursed to sound recording copyright owners and performers) to enter into agreements with webcasters that establish royalty terms for the performance of sound recordings over the Internet. Provides that such agreements, which may be effective for a period of up to 11 years following January 1, 2005, are to be binding on all copyright owners of sound recordings and other persons entitled to payment, in lieu of any determination of compulsory license rates by the Copyright Royalty Judges.

Terminates the authority to negotiate settlement agreements under this Act on February 15, 2009.

Declares that nothing in this Act (or any agreement entered into under this Act) shall be taken into account by the U.S. Court of Appeals for the District of Columbia Circuit in its review of the May 1, 2007 determination of royalty rates by the Copyright Royalty Judges.”

Text of the legislation:

2d Session
H. R. 7084|

To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Webcaster Settlement Act of 2008'.


Section 114(f)(5) of title 17, United States Code, is amended--

(1) in subparagraph (A)--

(A) by striking `small commercial' each place it appears and inserting `commercial';

(B) by striking `during the period beginning on October 28, 1998, and ending on December 31, 2004' and inserting `for a period of not more than 11 years beginning on January 1, 2005';

(C) by striking `a copyright arbitration royalty panel or decision by the Librarian of Congress' and inserting `the Copyright Royalty Judges'; and

(D) in the second sentence, by striking `webcasters shall include' and inserting `webcasters may include';

(2) in subparagraph (B), by striking `small commercial' and inserting `commercial';

(3) in subparagraph (C)--

(A) by striking `Librarian of Congress' and inserting `Copyright Royalty Judges';

(B) by striking `small webcasters' and inserting `webcasters'; and

(C) by adding at the end the following: `This subparagraph shall not apply to the extent that the receiving agent and a webcaster that is party to an agreement entered into pursuant to subparagraph (A) expressly authorize the submission of the agreement in a proceeding under this subsection.';

(4) in subparagraph (D)--

(A) by striking `the Small Webcasters Settlement Act of 2002' and inserting `the Webcaster Settlement Act of 2008' ; and

(B) by striking `Librarian of Congress of July 8, 2002' and inserting `Copyright Royalty Judges of May 1, 2007'; and

(5) in subparagraph (F), by striking `December 15, 2002' and all that follows through `2003' and inserting `February 15, 2009'.

Passed the House of Representatives September 27, 2008.




2d Session

H. R. 7084


To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.


Title: To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.
Sponsor: Rep Inslee, Jay [WA-1] (introduced 9/25/2008) Cosponsors (4)
Related Bills: S.3649
Latest Major Action: Became Public Law No: 110-435 [GPO: Text , PDF ]

Wednesday, November 12, 2008

Agencies Issue Final Rule to Implement Unlawful Internet Gambling Enforcement Act

Press Release November 12, 2008 HP-1266

Agencies Issue Final Rule to Implement Unlawful
Internet Gambling Enforcement Act

Washington - The Department of the Treasury and the Federal Reserve Board today announced the release of a joint final rule to implement the Unlawful Internet Gambling Enforcement Act of 2006. The Act prohibits gambling businesses from knowingly accepting payments in connection with unlawful Internet gambling, including payments made through credit cards, electronic funds transfers, and checks.

The Board and the Treasury are required by the Act to develop a joint rule in consultation with the Department of Justice. The final rule requires U.S. financial firms that participate in designated payment systems to establish and implement policies and procedures that are reasonably designed to prevent payments to gambling businesses in connection with unlawful Internet gambling. The rule provides non-exclusive examples of such policies and procedures and sets out the regulatory enforcement framework. For purposes of the rule, unlawful Internet gambling generally would cover the making of a bet or wager that involves use of the Internet and that is unlawful under any applicable federal or state law in the jurisdiction where the bet or wager is initiated, received, or otherwise made.

Compliance with the rule is required by December 1, 2009.

The Federal Register notice is attached.



Monday, November 10, 2008

Keeping the Internet Devoid of Sexual Predators Act (KIDS Act)

The Adam Walsh Child Safety and Protection Act was passed in 2006 and, among other things, created state public online databases of sex offenders and the Dru Sjodin National Sex Offender Public Website through which all of the state databases could be accessed. Leveraging information technology, the Department of Justice has now put within everyone's reach information about sex offenders in their neighborhood. Visit the site, punch in your zip code, and get a graphical map displaying who lives in your neighborhood, their name, where they live, and what they were charged with.

It's easy to use and the results can be, unfortunately, surprising.

The Dru Sjodin National Sex Offender Public Website provides information about who is near you in the real world – but what about in the virtual world. What about on social networking sites. How do you know whether a person near you online is a sex offender? Your child may be discussing with a “new friend” how yesterday some one-hit-wonder-pop band is, or how good it is that Jagr left the Rangers and went back to Russia to play hockey. That “new friend” could be anyone.

Sen. Chuck Schumer attempted to address this problem with the recently enacted Keeping the Internet Devoid of Sexual Predators Act (KIDS Act). This new law would require sexual offenders to register their email addresses and another other online identifiers that they use. The Department of Justice will house this information in a secure database and permit certified social networking sites to securely contrast their subscriber lists against the sex offender database. The statute calls for this comparison to be secure such that the DOJ Database Operator cannot see the social networking site's list – and the social networking site cannot see the database – except for those records that match records on the social networking site's list (this security is possible using cryptographic measures).

Use of the service by social networks is voluntary, they must be certified, and they may not abuse the information they come to acquire from the database.

Registration of email addresses and internet identifiers is not voluntary for the convicted sex offenders; failure to comply may subject violators to up to ten years' imprisonment.

Upon passage, sponsor Sen. Schumer stated
“Millions of teenagers log on to websites like MySpace and they, and their parents, shouldn't have to worry about running in to these predators online,” Schumer said. “Sex offenders have no business joining social networking communities - especially those with teenage users - and our legislation will help keep them out. We know that many predators are using the Internet to find victims. This legislation will take a big step toward keeping sexual predators out of the online neighborhoods our kids frequent.”
The KIDS Act was also co-sponsored by Senators Barack Obama (D-IL) and John McCain (R-AZ).

Thursday, November 06, 2008


Call for presentations, tutorials, and workshops

From CFPWiki
Jump to: navigation, search

The 19th annual Computers, Freedom, and Privacy conference is now accepting proposals for panels, workshop sessions, and other events.

CFP is the leading policy conference exploring the impact of the Internet, computers and communications technologies on society. It will be taking place in June 2009, just months into a brand new U.S. administration -- an exciting moment in history, as we look into the future and ask, "Where do we go from here?" For more than a decade, CFP has anticipated policy trends and issues and has shaped the public debate on the future of privacy and freedom in an ever more technology-filled world. CFP focuses on topics such as freedom of speech, privacy, intellectual property, cybersecurity, telecommunications, electronic democracy, digital rights and responsibilities, and the future of technologies and their implications.

We are requesting proposals and ideas for panels, plenaries, debates, keynote speakers, and other sessions that will address these and related topics and how we can shape public policy and the public debate on these topics as we create the future.

We especially encourage proposals that:

* Take advantage of our Washington, DC location
* Shed light on what we can expect from the new administration
* Incorporate a global and international perspective
* Focus on the future and what we can expect in the years to come in technology and policy
* Include debates or otherwise present challenging points of view
* Inform attendees about cutting-edge technologies and issues

However, we encourage proposals in all areas. The more complete and fleshed out a proposal, the more likely it will be accepted -- but we welcome the submission of all good ideas.

Open participation is invited for proposals on panels, tutorials, speaker suggestions, and birds of a feather sessions through the CFP 2009 submission page. Please read the submission guidelines.

The deadlines are coming up: tutorial and plenary proposals must be received by December 19, 2008.
Suggested topics

This is a list of suggested topics, but we you have a good idea for a topic that's not in this list, please feel free to send it along.

* Information Privacy
* Anonymity Online
* Government Transparency
* Voting Technology
* Online Campaigning
* Social Networks
* Citizen Journalism
* Cybercrime & Cyberterrorism
* Digital Education
* Copyright and Fair Use
* Patent Reform
* Open Access
* P2P Networks
* Information Policy and Free Trade
* Media Concentration
* Genes & Bioethics
* Electronic Medical Records
* Web Accessibility
* Open Standards
* Network Neutrality
* High-Speed Internet Access Policy
* Freedom of Information
* Technology Policy Administration

Submission Deadlines

* Panel, Tutorial, and Speaker proposals: December 19, 2008

Tuesday, November 04, 2008

Broadband Data Improvement Act Title II: Protecting Children in the 21st Century Act

Congress spent a good part of Pre-Election and Post-Poor House September “ thinking about the children .”

As has already been blogged about, with the encouragement of Obama-Suppporter-Oprah , Congress passed Sen. Joe VP-Wannabe Biden's PROTECT Our Children Act – which sought to bolster law enforcement and forensics efforts, and put up a few hundred million to this end. Amended to Biden's legislation was Sen. Prez-Wannabe McCain's SAFE Act – which requires Internet services to report known content that exploits children to the National Center for Missing and Exploited Children – a requirement which has already been on the books for 10 years .

Now comes word that Congress was also thinking of the children when it passed S.1492 Broadband Data Improvement Act , sponsored by Sen. Inouye. Amended to Sen. Inouye's legislation was the Protecting Children in the 21st Century Act , originally introduced by Sen. Inouye's friend and fellow non-continental senator, Sen. Stevens ( S. 49 ).

Steven's Protecting Children in the 21st Century Act is Title II of Inouye's Broadband Data Improvement Act . Originally the Protecting Children in the 21st Century Act received a lot of negative reviews . In its current form, the legislative does a few specific, sometimes useful, sometimes confusing, things.

Sec. 212 calls on the Federal Trade Commission to engage in a public awareness campaign “to promote the safe use of the Internet by children.” The FTC already has such a campaign known as OnGuard Online (“ provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information.”). It's not really clear what Sec. 212 is adding to what the FTC already does. Thus, confusion.

Sec. 213 calls on the FTC to file a Report with Congress. I think the legislation meant for the report to address the FTC's activities in Sec. 212. Unfortunately the language calls on the FTC to file a report with regard to its activities pursuant to Sec. 103. Unfortunately, Sec. 103 of this Act deals with the Federal Communication Commission's obligations to determine whether broadband is being deployed to all Americans in a reasonable and timely manner. So I am just confused. [ REPORT COUNT : 1]

Sec. 214 calls on the Department of Commerce to establish the Online Safety and Technology Working Group, which would basically be a federal advisory group (but not under the federal advisory committee act (FACA) rules – a lot of these committees have been established recently with language to weasel out of FACA). This working group would look at industry efforts to promote online safety, and submit a report to congress within one year [ REPORT COUNT : 2].

Interestingly, the working group will look at internet services obligation to report online child exploitation pursuant to the 10 year old law, 42 USC 13032 but not Sen. McCain's new parallel obligation to report online child exploitation pursuant to the new PROTECT Our Children Act – I have previously groused over the intelligence of enacting two similar-but-not-the-same laws, leaving it to industry to pay attorneys lots of money to figure out the ambiguities of complying with both. Finally, the new task force will look at one of the Attorney General's long desire items, record retention by internet services – but wait! The new McCain Act in fact has a record retention provision in it (so not only was the McCain SAFE Act not harmonized with preexisting law, but it would appear that the McCain SAFE Act was not harmonized with the Steven's Protecting Children in the 21st Century Act. Or maybe just more confusion).

Sec. 215 imposes a new requirement on the FCC's Erate program . Currently, to receive federal subsidies to support Internet access in schools and libraries, those schools and libraries must certify that they have an Internet Safety Policy in place . Sec. 215 revises that obligation to specify that the Internet Safety Policy must include “educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.” The State of Virginia has already implemented such an educational program – making Internet safety a required part of the educational curriculum. Many other schools systems have done likewise. But now it's federally required.

Sec. 216 adds yet another statutory definition of the Internet. I may make fun of this in a separate post. What is bizarre is that we have so many different definitions of the Internet, and the definitions are different depending on what crime is involved or what law you have to comply with.

Finally Sec. 221 (yes, the Act jumps from Sec. 216 to 221 – attorneys can't add or I guess count) amends FCC authority so that the FCC has authority to punish “certain activities relating to material involving the sexual exploitation of minors” – in other words, child pornography. Sec. 2252 deals with such things as transportation, distribution, or shipment of this stuff.

Here is the statute as amended – the text in brackets is added so you can see what is going on - the text in bold is the new amended text.

(1) Any person who is determined by the Commission, in accordance with paragraph (3) or (4) of this subsection, to have—
(A) willfully or repeatedly failed to comply substantially with the terms and conditions of any license, permit, certificate, or other instrument or authorization issued by the Commission;

(B) willfully or repeatedly failed to comply with any of the provisions of this chapter or of any rule, regulation, or order issued by the Commission under this chapter or under any treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States;

(C) violated any provision of section 317 (c) [ Acquiring information from station employees ] or 509 (a) [ Influencing, prearranging, or predetermining outcome (of broadcast contests) ] of this title; or

(D) violated any provision of section 1304 [Broadcasting Lottery Information] , 1343 [Fraud by wire, radio, or television] , or 1464 1464 [Broadcasting Obscene Language], or 2252 [Certain activities relating to material involving the sexual exploitation of minors] of title 18 ;

shall be liable to the United States for a forfeiture penalty.
This statute previously dealt with enforcement issues related to broadcast. The new amendment adds a reference to 18 USC 2252 which deals with the transportation, distribution, or possession of child pornography, not in the context of broadcast. Note that child pornography is already illegal to broadcast under FCC authority. 47 C.F.R. §§ 73.4165, 73.3999, 73.4170.

The FCC is an agency of limited resources with an enforcement staff geared towards its regulatory mission. If someone violated 18 USC 2252, for instance by stepping across a state border with a flash drive filled with bad content, this is not usually something that is the FCC's concern. Furthermore, if there is a violation of 18 USC 2252, it is usually DOJ and local police who are best situated to prosecute.

So, in sum, more confusion. I would love to hear from those with enlightenment on these issues.

For those keeping track, we now have six new reports to congress due that deal with online safety for children in one way or another.




November 3, 2008


The issues of Intercarrier Compensation and Universal Service reform have been in front of the Commission for years. Last summer I publicly indicated my intention to put forward concrete and comprehensive proposals to reform the inefficient and outmoded Intercarrier compensation and Universal Service programs. Those proposals have been with my colleagues for several weeks now. I am disappointed that we will miss the opportunity for comprehensive reform. Instead my colleagues have requested that we once again seek public comment on several proposals. As a result such a notice would make little progress and ask for comment again on the most basic and broad questions about reforming the two programs. For example, the Commission would again ask should broadband be supported by the Universal Service Fund and should we move to one uniform rate for all traffic or should that rate vary by the type of company?


I would like to be encouraged by my colleagues' commitment that they will truly be ready to complete this much needed reform on December 18. The nature of the questions they would like to include makes me doubt they will have found their answers with an additional seven weeks. I believe the far more likely outcome is that, in December, the other Commissioners will merely want another Further Notice and another round of comment on the most difficult questions. I do not believe they will be prepared to address the most challenging issues and that the Commission will be negotiating over what further questions to ask in December.


Additionally, I have instructed the Bureau to draft a narrow order to address the Court's remand. However, I remain skeptical that such an order which retains artificial and unsupported distinctions between types of Internet traffic will be seen any more favorably by the Court than the Commission's two previous attempts.


I recognize that few other issues before the Commission are as technically complex and involved, with as many competing interests, as are reforming the Intercarrier Compensation and Universal Service programs. But neither of those two realities are an excuse for inaction.  They will be true in one month, in one year or as we have now seen at the Commission, in ten years. I too remain committed to tackling the most difficult issues, providing answers to the toughest questions, fixing broken and outdated government programs and providing broadband to all Americans including those living in rural areas. I look forward to completing these long overdue and much needed reforms as soon as possible.


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