In Which We Learn the Cost of Letting a Domain Name Expire During a Litigation

Lesson of the day: Just because you have won a court case does not mean you get to collect valuable prizes. It can be easier to win the case than to collect damages. Many losing parties when confronted with a piece of paper that says fork over property or cash, will respond with that legal defense, "yeah, you and what army?!?!?"

Today's case is one of those situations. Skydive Arizona, Inc. v Cary Quattrocchi, (D Arizona July 28, 2010). This is an Anti Cybersquatter Consumer Protect Act (ACPA) case where plaintiff had prevailed against defendant regarding six different domain names. The original Court ordered defendant to transfer the domain names in question to Plaintiff. The Defendant transferred five of the six domains to Plaintiff, but a funny thing happened on the way to compliance; apparently the sixth domain name expired before defendant could transfer it.

"Bummer," said Defendant. "Since I am no longer the domain name owner, and as the domain name is now held by someone else, it is quite impossible for me to comply."

According to the Court, the facts are like these: while the litigation was pending, the domain expired. It was picked by a domain registrar. When the court went to the website associated with the domain name (intelligently the court never actually names the domain name in question), the court saw a page indicating that the domain name was available for purchase (go look at cybertelecom.com as an example of one of these).

Before the Court was Plaintiff's Motion to Require Defendants to Perform Renewal Requirements to Effectuate Transfer of the Domain Name. In response to defendant's argument was that this would be impossible, the Court' said "too bad."

[] Defendants had an obligation to maintain the status quo with respect to their ownership of [The Domain Name that Must Not be Named] during the pendency of this action…Were it otherwise, litigation and arbitration decisions concerning proper ownership of domain names could easily be thwarted by defendants who allowed their domain name registrations to expire, then claimed they did so by mistake. Additionally, prior to the entry of the permanent injunction, Defendants had every opportunity to inform this Court that their ownership of [The Domain Name that Must Not be Named] had lapsed, but failed to do so. Consequently, the Court has little sympathy for the predicament in which Defendants now find themselves; in non-compliance with the permanent injunction.

Pursuant to Federal Rule of Civil Procedure 70, "'a district court may direct a party to complete a specific act where the district court previously directed the same party to perform the same act in its final judgment and that party has failed to comply.' Additionally, Rule 70 allows courts to hold the disobedient party in contempt." While impossibility may be a legitimate defense to compliance, it's not a legitimate defense, says the court, where the impossibility is your own dumb fault for letting the domain name expire in the first place.

In the end, the Court gives defendant two choices. Behind Door Number One: Defendant will reacquire the [The Domain Name that Must Not be Named] and effectuate the transfer; or behind Door Number Two: Defendant will be sanctioned $10k for failure to comply with the injunction.

[Disclaimer]

[RFC] FCC re National Broadband Plan Recommendation To Create A Cybersecurity Roadmap

"By this Public Notice, the Federal Communications Commission's (FCC or Commission) Public Safety and Homeland Security Bureau (PSHSB) seeks public comment on the creation of a Cybersecurity Roadmap to identify vulnerabilities to communications networks or end-users and to develop countermeasures and solutions in preparation for, and response to, cyber threats and attacks in coordination with federal partners. The FCC's Cybersecurity Roadmap was recommended as an initial step forward in the area of cybersecurity as part of the Commission's National Broadband Plan (NBP). Specifically, the NBP recommended that the FCC issue, in coordination with the Executive Branch, a plan to address cybersecurity. The NBP further stated that the roadmap should identify the five most critical cybersecurity threats to the communications infrastructure and its end users and establish a two-year plan, including milestones, for the FCC to address these threats. In making this recommendation, the NBP stated that "[t]he country needs a clear strategy for securing the vital communications networks upon which critical infrastructure and public safety communications rely."

"The Cybersecurity Roadmap will establish a plan for the FCC to address vulnerabilities to core Internet protocols and technologies and threats to end-users, including consumers, business enterprises, including small businesses, public safety and all levels of government. Cybersecurity is a vital topic for the Commission because end-user lack of trust in online experiences will quell demand for broadband services, and unchecked vulnerabilities in the communications infrastructure could threaten life, safety and privacy. The NBP originally called for completion of the Cybersecurity Roadmap within 180 days (e.g., September 13, 2010). In order to ensure a complete and robust record in response to this Public Notice, we anticipate completion of the Cybersecurity Roadmap by November 2010.

"We welcome public input on these matters and the overall roadmap from interested parties. For example, commenters could offer responses to: What are the most vital cybersecurity vulnerabilities for communications networks or users? How can these vulnerabilities be addressed? What role should the Commission play in addressing them? What steps should the Commission take, if any, to remediate them? If the FCC does not play a role in addressing these vulnerabilities and problems, what agency or entity would fulfill that role? How should the Commission coordinate its efforts with other agencies of government?

. . . . .

8/9/10 FCC Seeks Public Comment on National Broadband Plan Recommendation to Create a Cybersecurity Roadmap.
Public Notice: Word | Acrobat

PS Docket No. 10-146

GN Docket No. 09-51

Comments Due: September 23, 2010

[RFC] FCC Seeks Public Input for Next Broadband Deployment Report

1. In this Notice of Inquiry (Inquiry), we solicit data and information that will help the Commission complete its annual task under section 706 of the Telecommunications Act of 1996, as amended, of determining whether broadband is being deployed to all Americans in a reasonable and timely fashion.  Specifically, section 706 requires the Commission annually to "initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms)."  In conducting this Inquiry, the Commission must "determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion."  Section 706 also requires the Commission to provide "demographic information for unserved areas" and complete an international comparison of broadband service capability.  The Commission also must conduct a consumer survey to evaluate "the national characteristics of the use of broadband" and make the results of the survey public at least once per year.  If the Commission finds that broadband is not being deployed to all Americans in a reasonable and timely fashion, then the Commission "shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." 

2. The purpose of this Inquiry then is to initiate the process that will allow the Commission to fulfill these statutory responsibilities.  We encourage companies, policy institutes, governmental entities, analysts, consumer groups, individual broadband consumers, individuals who live or work in unserved areas, and others to provide whatever objective, empirical data and evidence might be useful to help us complete the tasks identified above.  To facilitate the process, we ask a number of questions related to interpreting section 706 and measuring the availability and deployment of broadband.  We also encourage commenters to bring new issues to our attention, and to submit data and evidence to the extent reasonably related to the scope of section 706. 

3. Ensuring universal broadband availability is the great infrastructure challenge of our time.  The ultimate purpose of this Inquiry is to inform ourselves about the state of broadband deployment and its progress so that we can consider what additional actions, if any, should or should not be taken by the Commission to bring broadband to all Americans to ensure that "every American has a meaningful opportunity to benefit from the broadband communications era."

. . . . . 

8/6/10 FCC Seeks Public Input for Next Broadband Deployment Report
Order:Word | Acrobat
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-148A1.pdf

Genachowski Statement: Word | Acrobat
McDowell Statement: Word | Acrobat

Comment Date:           September 7, 2010

Reply Comment Date:   October 5, 2010

[RFC] DOC NOI Cybersecurity, Innovation and the Internet Economy

Federal Register Notice: Cybersecurity, Innovation and the Internet Economy: The Department of Commerce’s Internet Policy Task Force is conducting a comprehensive review of the nexus between cybersecurity challenges in the commercial sector and innovation in the Internet economy. The Department seeks comments on measures to improve cybersecurity while sustaining innovation. The Department intends to issue a report that will contribute to the Administration’s domestic and international policies and activities in advancing both cybersecurity and the Internet economy. (455 KB PDF file)
Posted July 26, 2010

[Event] Internet Governance Forum

http://www.igf-usa.us/page/agenda-1

AGENDA

When: Wednesday, July 21, 2010

Where: Georgetown Law Center

600 New Jersey Ave., N.W., Washington, DC

The IGF-USA is a multi-stakeholder national event to bring together
business, civil society, government, technologists/researchers, and
academia in discussions about topics that are being deliberated at a
global level regarding governance of the Internet, including
management of critical Internet resources, privacy, cyber-security,
access, openness/freedom of expression, child online safety, capacity
building and development. The IGF USA will also provide a report into
the global IGF, being held in Vilnius, Lithuania, in September.

8:15 Registration and Continental Breakfast

9:00 –9:45 Welcome and Introduction of Programme

Plenary Speakers:

Markus Kummer, Executive Coordinator, Internet Governance Forum

Ambassador Phillip Verveer, US State Department

10:15 –11:45 Workshops and Scenario Stories:

1) Cyber Security 2)
Internet Islands

3) Global governance of the Internet 4) Users Reign

11:45- 1:00 Networking Lunch is provided.

1:15—3:00 Concurrent Workshops:

5) Cloud Computing
6) Critical Internet Resources

7) e-Crime and Malicious Conduct in the DNS 8) Best Practice Forum:
Child Safety in an always switched on world

3:00-3:15 Break

3:15 –5:15 Afternoon Plenary Session

3:15 Speaker: Andrew McLaughlin, Deputy Chief Technology
Officer, Internet Policy, White House

3:45 Outcomes of Scenario Stories – Implications for the
Internet Governance Debate and for the IGF

Presentations of Scenarios and Observations for Internet Governance:

"Internet Islands"; "Global Governance for the Internet"; "Users Reign"

Panel of Respondents and Audience Participation

5 -5:20 Closing Session

Markus Kummer, Executive Secretariat, IGF

Remarks: Larry Strickling, Assistant Secretary for Communications and
Information and Administrator, National Telecommunications and
Information Administration (NTIA, U.S. Department of Commerce)

Invitation - IGF 2010 in Vilnius, Lithuania

Invitation - Brian Cute, ISOC DC Chapter

5:30-7:00 Reception for participants and invited guests

For more information visit http://igf-usa.ning.com or send email to
igfusa@hotmail.com

WHOIS Dat who say WHOIS Dat when I say WHOIS Dat?

What if someone sets up a website and messes with you. How do you find out who they are so that you can mess with them?

Well, first and obvious, many websites have "Contact Us" links that tell you exactly who they are and how to contact them. That would be a good place to start.

But maybe they aren’t so kind. Maybe they haven’t been considerate enough to make your life easy by leaving a calling card. Well, a website involves accounts. Two accounts to look into are (1) the domain name registration and (2) the web hosting account.

The information behind a domain name registration can be gained through WHOIS. The domain name system is a database that can be queried with the domain name. Ask for the information associated with a domain name, and you can get the registrant's name, address, phone number, email address, and IP number for the site. However, and here's the trick, for DNS to work, only the IP number of the site need be accurate. The rest of the information can be – and frequently is – bunkum (the problem of the accuracy of WHOIS has been a source of great consternation for law enforcement and Internet governance – see the "Fraudulent Online Identity Sanctions Act" which "amends the Trademark Act of 1946 and Federal copyright law to make it a violation of trademark and copyright law if a person knowingly provided, or caused to be provided, materially false contact information in making, maintaining, or renewing the registration of a domain name used in connection with the violation."). If the information in WHOIS is accurate, you've made your man. If not, then it's off to door number three.

The individual setting up the messing-with-you site probably set up an account with the host service to host the site. After all, the host site generally likes to be paid, and to be paid they need to know where to send the bill. That means the host probably has decent records about how to accurately extract money from the messing-with-you individual, and that in turn can be used to find out who that individual is.

Which brings us to today's story. In the case Zynga Game Network, Inc. v Williams et al, Case No. CV-10:01022JF(PVTx) (ND CA May 20, 2010), Plaintiff thought that Defendants were messing with it, but was unable to locate Defendants. Plaintiff wanted to issue subpoenas to GoDaddy, Microsoft Office Live, and to PayPal in order to identify and locate Defendants. According to the Court, Plaintiff sought to issue a subpoena in order to obtain

"all billing and account records (including all Internet domain names), server logs, website content, contact information, transaction histories and correspondence for the persons or entities that have purchased services from" the two hosts in question and from PayPal.

Wow! Really?!?! Plaintiff needs all of the server logs and the transactional records in order to know how to contact Defendants? The Court clarifies that the subpoena is a part of limited discovery, and limited means limited. Fed. R. Civ. Pro. 26(b). The expressed purpose of this limited discovery is to "obtain the true identities and locations of Defendants." Fine, says the Court. Then you wont be needing all that other information which would give you information about "'any person[] or entit[y] that ha[s] purchased services from' one of the above listed web hosting sites." You don’t need server logs, website content, or other information that is linked to the sites. The Court permits but discovery, but only to "determine Defendants' true identities and locations." Fed. R. Civ. Pro. 4; Fed. R. Civ. Pro. 45.

It is worth noting that in justifying Plaintiff's need for the subpoena, Plaintiff specifically states Plaintiff had engaged in due diligence, and had attempted to locate Defendants using the information from WHOIS.

Let's see what today's lesson is: "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]: "Don’t Mess With A Company That Makes a Product Called Mafia Wars!"

[Disclaimer]

Job Opening FTC

http://jobview.usajobs.gov/GetJob.aspx?JobID=88463430&aid=77417094-8610&WT.mc_n=125

Job Title: General Attorney (Trade Regulation)
Agency: Federal Trade Commission
Sub Agency: Federal Trade Commission
Job Announcement Number: BCP-2010-0006

SALARY RANGE:
74,872.00 - 155,550.00 USD /year
OPEN PERIOD:
Wednesday, June 02, 2010 to Wednesday, June 16, 2010
SERIES & GRADE:
GS-0905-12/15
POSITION INFORMATION:
Full-timePermanent - Excepted Service
PROMOTION POTENTIAL:
15
DUTY LOCATIONS:
many vacancies - Washington DC Metro Area, DC
WHO MAY BE CONSIDERED:
All Qualified Candidates

JOB SUMMARY:
OUR MISSION: The Federal Trade Commission (FTC) enforces a variety of
Federal antitrust and consumer protection laws. The FTC seeks to
ensure that the nation's markets function competitively and are
vigorous, efficient, and free of undue restrictions. The FTC also
works to enhance the smooth operation of the marketplace by
eliminating marketing acts or practices that are unfair or deceptive.
The FTC conducts economic analyses to support its law enforcement
efforts and to contribute to the policy deliberations of the Agency,
the Congress, the Executive Branch, and other organizations.

The Bureau of Consumer Protection's divisions each have their own
areas of expertise:

Advertising Practices protects consumers by enforcing the nation's
truth-in-advertising laws, with particular emphasis on claims for
food, over-the counter drugs, dietary supplements, alcohol, tobacco
and on conduct related to high-tech products and the Internet, such as
the dissemination of spyware.

Enforcement litigates civil contempt and civil penalty actions to
enforce all FTC federal court injunctions and administrative orders
that address consumer protection issues, including advertising and
financial practices, data security, high-tech fraud, and telemarketing
and other scams. The Division also coordinates FTC actions with
criminal law enforcement agencies through its Criminal Liaison Unit;
litigates civil actions against those who defraud consumers; and
develops, reviews, and enforces a variety of consumer protection
rules.

Financial Practices protects consumers from deceptive and unfair
practices in the financial services industry, including protecting
consumers from predatory or discriminatory lending practices, as well
as deceptive or unfair loan servicing, debt collection, and credit
counseling or other debt assistance practices.

Marketing Practices leads the Commission's response to Internet,
telecommunications, and direct-mail fraud; deceptive spam; fraudulent
business, investment, and work-at-home schemes; and violations of the
Do Not Call provisions of the Telemarketing Sales Rule.

Privacy and Identity Protection safeguards consumers' financial
privacy; investigates breaches of data security; works to prevent
identity theft and aids consumers whose identities have been stolen;
and implements laws and regulations for the credit reporting industry,
including the Fair Credit Reporting Act.

The Bureau enforces consumer protection laws through aggressive
litigation in a fast-paced environment. Attorneys get real courtroom
experience, the opportunity to lead cases, and take on primary
responsibility for all aspects of the litigation.

The Bureau's actions include individual company and industry-wide
investigations, administrative and federal court litigation,
rulemaking proceedings, and consumer and business education. The
Bureau also contributes to the Commission's efforts to advise Congress
and other government agencies about the impact of proposed actions on
consumers and industries.

Attorneys tackle high profile policy issues, especially in areas where
emerging technologies pose threats to consumers and business.

The Bureau is primarily seeking attorneys for positions in the
Divisions of Enforcement, Marketing Practices, and Privacy and
Identity Protection, but may also have openings for positions in the
Divisions of Advertising Practices and Financial Practices. Experience
in or strong interest in investigation, litigation, public policy, or
regulatory analysis is desirable. Excellent academic credentials and
references required.

KEY REQUIREMENTS:

* Possess a JD or LL.B. degree from an accredited Law School.
* Member in good standing of the Bar of a state or territory - US, PR, DC.
* Applicants must provided cover letter and writing sample
* Relocation expenses will not be paid

ReTweet ReLawsuit? Novins v. Cannon, Civ. No. 09-5354 (DNJ April 27, 2010)

I am grateful for the new Web 3.0 era of Facebook and Twitter. I am grateful because my email inbox is no longer filled with stupid crap that my friends were constantly forwarding. I think that's why so many old folk like Facebook and Twitter – it is the institutionalization of forwarding crap. All those old jokes and hoaxes and puppies needing adoption and cancer patients in England who wish to be sent letters – that has all migrated to Facebook posts and Tweets. And instead of getting forwarded half of a billion times, now it gets retweeted. And now my email inbox is merely filled with offers of money making opportunities.

Which brings us to today's question: What happens when I retweet (forward, repost, whatever) a post which is defamatory? Sec. 230, the Good Samaritan Act, protects internet hosts which host content written by someone else that is defamatory. The internet host does not become a publisher of the content just by merit of hosting it (much in the same way that the telephone network does not become a publisher by transmitting defamatory statements, or the postal service does not become a publisher merely by delivering a defamatory message). What happens when I receive a message, written by someone else, that might be defamatory (regardless of whether I know it or not), and I forward it, retweet it, or repost it. And what if, hypothetically speaking, my last name is Cannon. Today's story involves just such a saga.

As always, in our review, the names have been changed – largely 'cause we never like to hear about anyone named "Cannon" being a defendant – and the story has been reformatted to fit your screen.

The facts of this case are relatively simple. Defendant Gilligan allegedly wrote a post that allegedly stated that Plaintiff Thurston Howell hires drug addicts, his clients suffer identity thefts, and that Plaintiff is mentally ill. Gilligan sent this message to Mary Ann, Ginger, and Skipper, who forwarded on to three friends (and so on and so on). Thurston Howell took his coconut satellite phone that the Professor had made for him, and used it to immediately call his attorney who was on retainer. The attorney sued everyone in sight for publication of a defamatory message about Thurston. The cause of action for defamation falls not only on those who voice the defamatory utterances, but also those who might then dare to "publish" those utterances.

Before the District Court in New Jersey (yes, somehow although our castaways are stranded in an island in the south Pacific, their case is heard in Jersey – makes sense doesn’t it?) is a motion to dismiss by defendants. In a Rule 12(b)(6) Motion to Dismiss, defendants argue that taken the alleged facts in light most favorable to Plaintiff, Plaintiff still has stated nothing that adds up to a legal cause of action.

The Court made quick work of this. Normally Sec. 230 protection is discussed in the context of the protection of a web host, such as a review site where a third party has posted a negative comment about a plaintiff. This case does not involve a host but instead "users of an interactive service." As Sec. 230(c)(1) states, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The Court affirms the well established principle that potential liability for third party content falls upon the third party, and not on others on the Internet.

Plaintiffs' allegations in this case—as against all of the defendants other than Gilligan —are very similar to the situation where a person operates a website that displays other people's comments. Defendants are alleged to have republished a defamatory web posting or email originally authored by Gilligan. As multiple courts have accepted, there is no relevant distinction between a user who knowingly allows content to be posted to a website he or she controls and a user who takes affirmative steps to republish another person's content; CDA immunity applies to both. As the Ninth Circuit aptly noted in Batzel v. Smith, "The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance." Similarly, it does not matter how Defendants republished the alleged defamatory statements—whether by email, website post, or some other method. The point is that all the Defendants in this case—with the exception of Gilligan—acted as re-publishers of another person's information, and as such they are protected by the CDA.

Retweet, repost, forward – it's all the same. According to this Court, you are not a publisher and therefore not liable for third party content. The cause of action as against everyone – but Gilligan the author – gets the boot.

Let's see what today's lesson is: "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]: Skipper's real name was Jonas Grumby! That might explain why they got ship wrecked.

[Disclaimer]

[Event] Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum June 3

PK is announcing the following:

Toward a Sustainable Spectrum Policy: Rethinking Federal Spectrum
A conference hosted by Public Knowledge (Click to RSVP)
June 3, 2010

The Washington Court Hotel on Capitol Hill
525 New Jersey Ave., NW
Washington DC, 20001

Panel 1: Federal Secondary Markets

Panelists will address the Public Knowledge white paper, "Federal Spectrum Secondary Markets: A Third Way Forward for Federal Spectrum Reform," released for the event.

Panel 2: Improving Federal Spectrum Management

This panel will focus on the second white paper released by Public Knowledge, also writted by Harold Feld and Gregory Rose: "Transparency, Efficiency, Access: How To Reform Federal Spectrum Management."

Agenda:

8:00 a.m. Coffee and Registration

8:45 a.m. Welcome (Gigi B. Sohn)

9:00 a.m. Overview Presentation: Averting The “Spectrum Crisis”

9:30 a.m. Panel 1: Federal Secondary Markets

Panelists:
Coleman Bazelon, Principal, The Brattle Group
Kathy Brown, Senior Vice President, Public Policy
Development, Verizon (invited)
Chris Duffus, Senior Vice President, Spectrum Bridge
Rick Whitt, Washington Telecom Counsel, Google (invited)
Jim Kohlenberger, Chief of Staff, Office of Science &

Technology Programs (invited)

Respondents:
Harold Feld. Legal Director, Public Knowledge
Gregory Rose, Principal, Econometric Consulting

10:45 a.m. Networking Break

11:00 a.m. Panel 2: Increasing Transparency and Efficiency for Federal Spectrum

Moderator:
TBA

Panelists:
Kathleen Ham, Vice President for Federal Regulatory

Affairs, T-Mobile
Janice Obuchowski, President, Freedom

Technologies (invited)
Jessica Rosenworcel, Senior Counsel, Senate Commerce

Committee (invited)
Karl Nebbia, Deputy Associate Administrator, NTIA

Respondents:
Harold Feld
Gregory Rose

12:15 p.m. Adjourn*

This is a widely attended event.

[EVENT] Future of Music Coalition: DC Policy Day 2010

New America and Future of Music are announcing:

"An event hosted by the New America Foundation

"This year has already seen a host of policy developments that will affect the entire music ecosystem - from the FCC’s authority to regulate the internet to international copyright concerns to the impact of health care reform on the music community.

Event Time and Location

Tuesday, May 25, 2010 - 11:00am - 6:00pm

New America Foundation

1899 L Street NW Suite 400

Washington, DC, 20036

"D.C. Policy Day 2010 will bring these issues into focus through informed presentations and panel discussions. A live webcast, available on this page, will bring the conversation to a global audience of artists, academics, industry professionals, journalists, music fans and more.

"Topics to be covered include the hotly debated Anti-Counterfeiting Trade Agreement (ACTA), the recent Live Nation/Ticketmaster merger, efforts to preserve an open internet, and the health insurance landscape for musicians following the passage of historic health care legislation. Policy Day 2010 will also examine how the creative industries are faring under current Washington leadership as we head into a new election cycle.

"Join us for this FREE event in Washington, DC hosted by the New America Foundation. Can’t make it to the District? Be sure to tune in to our interactive live webcast, which can be found on this page the day of the event.

"For more information please visit the Future of Music Coalition's website at http://futureofmusic.org/events/dc-policy-day-201.

[EVENT] June 11 Online Censorship – Implications of Content Filtering for Content Access At Home and Abroad

Forum 1: Online Censorship – Implications of Content Filtering for Content Access At Home and Abroad

Date: Friday, June 11, 2010, 9:30am – 2:00pm.
Location: Dickstein Shapiro Conference Center
1825 Eye Street, Northwest, Washington D.C.

Description: "Internet content and applications providers face a large and growing number of challenges from governmental filtering and censorship in countries around the globe. Companies such as Google and Facebook have developed a range of responses to practices adopted by governments in China, Turkey, Australia, and elsewhere. The filtering practices themselves, and content providers’ responses to them, have domestic ramifications and relevance for policy debates in the U.S. about privacy, freedom of expression, and access to online content. In the first event of its 2010 forum series, MAP will lead a dialogue between experts on filtering and representatives from affected providers to discuss the consequences of control over access and speech in the domestic and international contexts."

[Event] Federal Communications Oversight and Authority: Who Is in Charge? May 11

NetCaucus AC Briefing on Net Neutrality (5-11-2010)

Federal Communications Oversight and Authority: Who Is in Charge?
Tuesday, May 11, 2010 - 12:00 am – 1:30 pm
Luncheon Panel Discussion U.S. Capitol Visitors Center, Room SVC 209/208
(Located on the North or right-hand side of the lower level)
Please RSVP to rsvp@netcaucus.org or via phone to 202-638-4370.

On Thursday, FCC Chairman Julius Genachowski and General Counsel Austin Schlick announced a new plan to ensure the FCC's oversight and regulatory authority over broadband Internet access services. This new proposal and its outlook will be discussed at length by our panelists on May 11. We look forward to seeing you there!

Panelists:

• Markham Erickson, Holch & Erickson LLP and Executive Director, Open Internet Coalition [bio]
• Jonathan E. Nuechterlein, Partner, WilmerHale [bio]
• Gigi Sohn, Public Knowledge [bio]
• Christopher Yoo, University of Pennsylvania Law School [bio]

What: Luncheon Panel Discussion (Lunch will be served; this is a widely attended event.)
Where: U.S. Capitol Visitors Center, Room SVC 209/208
When: Tuesday, May 11, 2010 12:00 pm – 1:30 pm
RSVP: Please send RSVPs to rsvp@netcaucus.org or via phone to 202-638-4370.

This widely attended educational briefing is hosted by the Congressional Internet Caucus Advisory Committee (ICAC), part of a 501 (c)(3) charitable organization. Congressional staff and members of the press welcome. The ICAC is a private sector organization comprised of public interest groups, trade associations, non-profits, and corporations. More information on the ICAC is available at www.netcaucus.org.

Advisory Committee to the Congressional Internet Caucus
1634 I Street NW - Washington, DC 20006
www.NetCaucus.org
Find us on Facebook!

[Event] THE FCC'S AUTHORITY OVER BROADBAND ACCESS

THE FCC'S AUTHORITY OVER BROADBAND ACCESS
Co-hosted by the Berkman Center for Internet & Society at Harvard
University, and the Wharton School, University of Pennsylvania

Thursday, May 27, 2010, 9:00am-12:30pm
National Press Club -- 529 14th Street, NW, Washington DC

Attendance is free, but space is limited. To register, RSVP at the
link above, or email Amar Ashar with your name and affiliation.

* * *
On what basis, if any, does the FCC exercise jurisdiction over
broadband access in pursuit of national goals? FCC Chairman
Genachowski announced on May 6 that he intended to pursue a "Third
Way" between the current "ancillary authority" approach and full
imposition of Title II "telecommunications service" obligations on
Internet providers. Just what does this approach mean for the future
of broadband competition, Internet-based innovation, and the National
Broadband Plan? At this non-partisan event, legal experts and former
senior policy-makers will analyze how the U.S. arrived at this point,
and what steps the FCC and other branches of government should take
now.

Session 1: The History and Context of the Debate
- Moderator Kevin Werbach (The Wharton School, Univ. of Pennsylvania)
- John Nakahata (Partner, Wiltshire & Grannis; former Chief of Staff, FCC)
- Jessica Rosenworcel (Sr. Counsel, Senate Commerce Committee)
- John Windhausen (Telopoly; former Sr. Counsel, Senate Commerce Committee)

Session 2: The Third Way - What Happens Next?
- Moderator Kevin Werbach (The Wharton School, Univ. of Pennsylvania)
- Yochai Benkler (Harvard Law School)
- Susan Crawford (Univ. of Michigan Law School)
- James Speta (Northwestern University Law School)

A complimentary continental breakfast will be served.

Please direct all questions to Amar Ashar at ashar@cyber.law.harvard.edu.

A Hack. A Scrape. A Crash. A Lawsuit. Snap-On Business Solutions, Inc., v O'Neil Associates, Inc., 5:09-CV-1547 (ND Ohio April 16, 2010)

In today's story, we hear a tale of a business deal gone sour, the alleged hacking and crashing of a computer system, data that are free except when it's not, and words that don’t always mean what they appear to mean. And while the characters in our story managed to have at least six disputes, we once again only focus on the federal causes of action, ignoring the other stuff.

The facts of this case involve an old favorite – a relationship breakup. And as always, in our story the names have been changed to protect the innocent (and to be totally Dragnet-like, I have acquired one of those really square haircuts). The story has been reformatted to fit your screen.

In this case, Third Party Thurston hired Plaintiff Penelope to make a database of Third Thurston's products for sale. Plaintiff's databases include pictures, links, and searchability. Plaintiff hosted the database on its servers and provided host network security. Third Thurston was responsible for authorization security (issuing and maintaining user names and passwords). The parties further agreed that all the work that went into creating the database was the property of Plaintiff – but that the data in the database constituted Third Thurston's trade secrets. Thurston provided Plaintiff with all the data and information about Thurston's products in order to make the database.

After a while Third Thurston decided he wanted to go with Defendant Daffy to make the database. When Thurston asked Plaintiff Penelope for the data, Plaintiff said, "Nope." Third Thurston then asked Defendant Daffy to "scrape" Plaintiff's database for the data. This scraping took place over several months and allegedly caused spikes in traffic loads on Plaintiff's servers. Plaintiff Penelope took offense at this scraping, blocked Defendant Daffy's IP Addresses, and sued Defendant Daffy (not Third Thurston). Defendant and Plaintiff are, of course, in the same line of business.

In this decision, the Court had before it a motion for Summary Judgment. In a motion for summary judgment, the moving party argues that no facts are in dispute and that the case can be resolved on paper, without a trial. If relevant facts are in dispute, then a motion for summary judgment fails. There are two federal causes of action: (1) Computer Fraud and Abuse Act and (2) Copyright Infringement.

Computer Fraud and Abuse Act: This is another example of the CFAA being used for a civil remedy – normally we hear about the CFAA in the context of criminal convictions. The question at hand is whether Defendant Daffy's access of Plaintiff Penelope's computers was authorized. This not a case, the Court points out, where a contract has been dissolved – and one party attempts access after termination of the contract having lost authorization. The contract between Plaintiff and Third Thurston was still in place, and Third Thurston was in charge of access authorization. Doesn’t that mean that Third Thurston gets to say who gets access and who does not? Third Thurston gave Defendant authorization to access the database. It seems like the access is authorized.

But the Court is not convinced that Third Thurston had the ability to authorized access to just anyone. There is some factual ambiguity as to the full scope of Thurston's authority. A part of the contract between the parties indicates that Thurston could only authorize access by Dealers, and the Dealers could use the database only "for its intended purpose" (how's that for vague!). On the one hand its plaintiff's servers, on the other hand Thurston got to hand out authorizations, but on the other hand it was just suppose to be "for the intended purpose." Where does that leave us, asks the Court. That creates a factual dispute (what is the scope of Thurston's authority) – and therefore the motion for summary judgment is denied.

Copyright Infringement: The second cause of action is for copyright infringement. This cause of action, as they say in legal jargon, "steps in the doo-doo." First, some basics. Ideas and facts are not copyrightable. It's original creative intellectual work that is copyrightable. The fact that the Earth is the center of the universal and that the Sun revolves around the Earth – is not copyrightable. Ptolemy's treaty explaining the whole Earth-is-the-center-of-the-universe thing is copyrightable. Now if I take a whole bunch of facts, and arrange them in a database – the database is not copyrightable. But if I add original structure or navigation or content to the database in order to improve the user experience, those creative enhancements are copyrightable. And it is on this legal boundary that a long list of legal battles have been pounded out – when does data which is not protected by copyright become protected by copyright when placed in a database?

Plaintiff argues that when defendant scraped the database, it copied the improvements and the creative aspects of Plaintiff's work. Defendant argues in its motion for summary judgment, "Nut uh. Plaintiff's 'database does not possess the minimal degree of creativity required for copyright protection because its structure is obvious.'" The Court points out that when Defendant scraped the database, it took the link structure and navigation information – along with a bunch of other stuff. Defendant reiterated its argument – "yeah, but you're Honor.The structure of the data, I mean it was obvious."

"Oh yeah??" exclaimed the Court (in A Few Brave Men like moment). "If the structure of the data in the database is obvious, how come you marketing pitch to Thurston was that that you would provide a better database by altering the arrangement of the data."

Whoops. Guess you cant argue that the arrangement of the data in the database you scraped was obvious, when your whole business plan rests on the fact that there are different ways of arranging the data – and your way is better. Score one for the Judge. Since Plaintiff's enhancements to the database could arguably be protected by copyright, defendant's motion for summary judgment once again fails.

Okay class, now here is your extra credit question. In Round Two of this case, assume ultimately hypothetically that it is found that the database is the property of Third Thurston, and that it was properly within the scope of Thurston's authority to grant access authorization to the database to Daffy. Plaintiff blocked Daffy's access by blocking Daffy's IP numbers. Does Thurston have a cause of action against Plaintiff for blocking an authorized user – and if so, what would that cause of action be?

Technology & Marketing Law Blog has an excellent review of this case, going over all of the causes of action. Technology & Marketing Law Blog make a number of astute observations – including the obvious – if you contract with someone to do data work for you, include a provision that says the data and database is yours - and if you say gimme gimme, you gettie gettie.

[Disclaimer]

[RFC] FCC Commences Inquiry On Survivability Of America’s Broadband Infrastructure

News Release: "The Federal Communications Commission (FCC) today launched an inquiry on the ability of existing broadband networks to withstand significant damage or severe overloads as a result of natural disasters, terrorist attacks, pandemics or other major public emergencies, as recommended in the National Broadband Plan.

"As Americans increasingly rely on broadband services for so many aspects of their lives, including public safety and national security, it is critical for the FCC to gain a better understanding of the survivability of existing networks and explore potential measures to reduce network vulnerability to failures in network equipment or severe overload conditions in emergencies.

"Although core broadband networks are generally presumed to be quite resilient, there may be weaknesses closer to the network edge. Accordingly, today’s Notice of Inquiry (NOI) seeks comment, analysis and information on the present state of the resiliency and redundancy of broadband networks to withstand physical damage and severe network overload. This is a vitally important first step in ensuring that the FCC can take all necessary actions to ensure ongoing broadband communications in times of disaster or crisis.

"The NOI includes the following questions related to the resiliency of broadband networks:

• What are the major single points of failure in broadband architectures?
• What measures do communications providers already take to minimize the potential for single points of failure?
• What provisions are made by communications providers to ensure the survivability of cell sites relied on by first responders?
• What are the most effective and widely deployed physical security best practices?
• Should traffic to and from critical emergency response agencies and for critical services be prioritized on the networks during emergencies?
• What steps have been taken to ensure redundancy and diversity of physical network links to hardware?
• Is the capacity of residential access networks sufficient to handle sudden surges or overloads in traffic during, for example, a pandemic emergency?
• What network management practices are in place to handle overloads during emergencies?

"The FCC looks forward to reviewing the record and exploring how best to further improve and secure America’s broadband infrastructure into the future. The deadline for comments on the issues presented by the NOI will be 45 days and reply comments 75 days after publication in the Federal Register.

Action by the Commission, April 21, 2010, by Notice of Inquiry (FCC 10-62). Chairman Genachowski, and Commissioners Copps, McDowell, Clyburn and Baker. Separate Statements issued by Chairman Genachowski, and Commissioners Copps, McDowell, Clyburn and Baker. PS Docket No. 10-92.

Public Safety and Homeland Security Bureau (PSHSB) contact is Jeff Goldthorp, Chief of the Communications Systems Analysis Division, at (202) 418-1096.

4/21/10 FCC Commences Inquiry on Survivability of America's Broadband Infrastructure. News Release: NOI:

[RFC] FCC Launches Inquiry On Proposed Cyber Security Certification Program For Communications Service Providers

Press Release: "The Federal Communications Commission (FCC) today adopted a Notice of Inquiry (NOI) that seeks public comment on the proposed creation of a new voluntary cyber security certification program that would encourage communications service providers to implement a full range of cyber security best practices. This National broadband Plan recommendation serves as a first step to implementing a comprehensive roadmap to help counter cyber attacks and better protect America’s communications infrastructure.

"Enhancing the cyber security of the nation’s infrastructure is critical to the proper functioning of communications networks serving America’s financial institutions, national energy grid, medical institutions, educational system, and public safety. Yet, broadband communications networks are susceptible to malicious attack. Despite the increasing threat of cyber attacks, many communications end-users do not consider cyber security a priority. In 2008, a Data Breach Investigations report concluded that 87-percent of cyber breaches could have been avoided if reasonable security controls had been in place.

"The goals of a voluntary cyber security certification program would be to:

• Increase the security of the nation’s communications infrastructure;
• Promote a culture of more vigilant cyber security among participants in the market for communications services; and
• Offer consumers (or end-users) more complete information about their communication providers’ cyber security practices and ability to better protect their personal computer hardware and online activity from cyber attacks.

"The NOI seeks comment on a voluntary certification program under which private sector auditors or the FCC would conduct security assessments of participating communications service providers’ networks, including their compliance with stringent cyber security practices developed by a broad-based public-private partnership. Providers whose networks successfully completed this assessment would then be able to market their networks as complying with these FCC network security requirements.

"Further, the NOI includes the following questions regarding the proposal:

• The benefits and costs of such a program.
• Whether such a program will create a significant incentive for providers to increase the security of their systems and improve their cyber security practices.
• Whether public knowledge of providers’ cyber security practices would contribute to broader implementation by industry.
• Whether the scope of the certification program should be open to all communications service providers or should be limited to certain types of providers. If the latter, how should this be limited?
• What the overall framework should be for the certification criteria.
• The composition of a certification authority and whether it should be open to all segments of the potentially affected industries.
• The operating procedures of a certification authority.
• Who should be responsible for establishing the requirements that auditors must meet to be accredited to conduct cyber security assessments under the proposed program?
• What should be the appropriate certification criteria, accreditation procedures, and requirements to maintain certification once obtained?
• Whether the network security criteria should be definitive and objectively measurable or established on a case-by-case basis.
• The development and application of assessment standards.
• The form and duration of the security certificate, the renewal process, and permissible uses by providers of the security certificate.
• How appeals of certification issues should be handled.
• Whether any Commission enforcement process should be implemented for this program.

The NOI seeks comment on other actions, including voluntary incentives the Commission can take to improve cyber security and asks about actions the Commission can take to better educate consumers, businesses and government agencies about cyber security.

Action by the Commission, April 21, 2010, by Notice of Inquiry (FCC 10-63). Chairman Genachowski, and Commissioners Copps, McDowell, Clyburn and Baker. Separate Statements issued by Chairman Genachowski, and Commissioners Copps, McDowell, Clyburn and Baker. PS Docket No. 10-93.

Public Safety and Homeland Security Bureau (PSHSB) contact is Jeff Goldthorp, Chief of the Communications Systems Analysis Division, at (202) 418-1096.

4/21/10 FCC Launches Inquiry on Proposed Cyber Security Certification Program for Communications Service Providers. News Release : NOI

[RFC] FCC Kicks Off Universal Service Reform

Press Release: "The Federal Communications Commission today took its first step toward a once-in-a-generation transformation of the Universal Service Fund from supporting networks providing plain old telephone service into an effective and efficient tool for making affordable, high-quality broadband communications service available to all Americans.

"The National Broadband Plan that the Commission sent to Congress last month identified the need for comprehensive universal service reform that does not unnecessarily burden consumers. Today’s Notice of Inquiry (NOI) and Notice of Proposed Rulemaking (NPRM) begin the hard work of implementing the Plan’s recommendations, which include cutting inefficiencies in existing support of voice services and creating a Connect America Fund (CAF) that directly supports broadband without increasing the size of the Universal Service Fund over the current baseline projection.

"The NOI asks for public comment on the use of an economic model to precisely target support for areas where there is no private-sector business case for carriers to provide broadband and voice services. The economic model developed in the Plan estimates the gap between the cost of deploying broadband services to Americans living in unserved areas and the potential additional revenue generated from the broadband investment. The NOI seeks comment on how that model could be adapted to determine efficient levels of universal service support to provide all Americans with broadband access.

"The NOI also seeks comment on how to quickly provide consumers in unserved areas with broadband access while the Commission is considering final rules to implement fully the new CAF funding mechanism.

"The NPRM seeks comments on a number of proposals to cut legacy universal service spending in high-cost areas and to shift support to broadband communications. These proposals include capping the overall size of the high-cost program at 2010 levels; re-examining the current regulatory framework for smaller carriers in light of competition and growth in unregulated revenues; and phasing out support for multiple competitors in areas where the market cannot support even one provider.

"Action by the Commission April 21 by Notice of Inquiry and Notice of Proposed Rulemaking (FCC 10-58). Chairman Genachowski, Commissioners Copps, McDowell, Clyburn, and Baker. Separate statements issued by Chairman Genachowski, Copps, McDowell, Clyburn, and Baker. Docket 10-90

4/21/10 FCC Kicks Off Universal Service Reform. News Release: NOI & NPRM:

New Book: Winning the Silicon Sweepstakes: Can the United States Compete in Global Telecommunications.

Prof Rob Frieden is announcing a new book publication:

I am pleased to report that the Yale University Press has published my latest book entitled Winning the Silicon Sweepstakes: Can the United States Compete in Global Telecommunications. See Book Overview.

With comprehensive documentation, I challenge the conventional wisdom and sponsored research that claims the U.S. has best in class telecommunications infrastructure and services produced by an optimal, competitive marketplace. I demonstrate that the glide path of deregulation has handicapped the nation’s competitive advantage, and has contributed to a comparatively mediocre standing of the U.S. in both broadband and wireless markets.

I assert the need for smarter, better calibrated, light-handed regulation coupled with efforts to promote greater consumer digital literacy. Rather than rely almost exclusively on marketplace self-regulation portions of the telecommunications marketplace need a government referee able to resolve disputes and safeguard consumers.

The book asks and answers such questions as:

• How can the United States demonstrate global best practices in some information and communications technology markets, such as software and computing, but woefully lag in others, such as in wireless and broadband services?

• If the information revolution was supposed to “change everything” how did over $1 trillion in investment largely evaporate in three years?

• How can incumbent telephone companies successfully argue the need for governments to create incentives for investment in next generation networks while at the same time claiming the existence of robust competition eliminates the need for any other sort of government involvement?

• Why has the U.S. largely failed to bridge the Digital Divide despite having created subsidy mechanisms that invest billions annually in never achieved solutions?

• If the telecommunications marketplace has become so robustly competitive, where are the usual consumer benefits of lower prices, diverse choices, and responsive customer service?

• Why does it appear that incumbent ventures can belatedly embrace new technologies yet eventually extend their market power by acquiring or extinguishing most competitive threats through mergers and acquisitions? and

• Why does it appear that the next generation Internet will become less open, neutral and accessible possibly tipping the competitive playing field in favor of “walled gardens” of content and services offered by incumbents keen on disadvantaging newcomers offering the “next best thing”?

[RFC] NTIA Information Privacy and Innovation in the Internet Economy

Press Release "U.S. Commerce Secretary Gary Locke today announced the launch of an initiative designed to gather public input and review the nexus between privacy policy and innovation in the Internet economy. In addition, Locke also announced the formation of a Department of Commerce-wide Internet Policy Task Force to identify leading public policy and operational issues impacting the U.S. private sector's ability to realize the potential for economic growth and job creation through the Internet.

"Because of the vital role the Internet plays in driving innovation throughout the economy, the Department has made it a top priority to ensure that the Internet remains open for innovation while promoting an environment respectful of individual privacy expectations," Locke said. "In these difficult economic times, nothing is more important to American prosperity than jumpstarting our engine of innovation."

Through a Notice of Inquiry (NOI) published in the Federal Register, the Commerce Department is seeking public comment from all Internet stakeholders – commercial, academic and civil society sectors and citizens – on the impact of current privacy laws in the United States and around the world on the pace of innovation in the information economy. [Comments Due 45 Days After Fed Reg Publication]The Department seeks to understand whether current privacy laws serve consumer interests and fundamental democratic values.

The Internet Policy Task Force is exploring current privacy frameworks, and ways to address the challenges of the new Internet economy and society in a manner that preserves and enhances personal privacy protection.

The Task Force is comprised of staff members from the National Telecommunications and Information Administration (NTIA), the International Trade Administration (ITA), the National Institute of Standards and Technology (NIST) and the Patent and Trademark Office (PTO), and will be coordinated through the Commerce Department's Office of Policy and Strategic Planning, which reports to the Secretary.

In addition to privacy and innovation, the Internet Policy Task Force will examine cyber security, online copyright protection and international barriers to moving data around the globe, and the ability of entrepreneurs, and small- and medium-sized businesses to expand their operations via the Internet.

On May 7, 2010, the Department will hold a public meeting to discuss stakeholder views and to further facilitate public discussion on privacy policy in the United States. After analyzing public comments in response to this NOI, the Department will issue a report contributing to the administration’s domestic policy and international engagement on privacy.

A copy of the NOI is available at www.ntia.doc.gov.

[EVENT] FTC to Host Public Roundtable to Review Whether Technology Changes Warrant Changes to the Children's Online Privacy Protection Rule

Press Release: "In light of rapidly changing technology such as the increased use of smartphones and other devices to access the Internet, the Federal Trade Commission will host a public roundtable, “Protecting Kids' Privacy Online: Reviewing the COPPA Rule,” on June 2, 2010 to explore whether to update the Children's Online Privacy Protection Rule. The Rule was enacted in 2000 and requires Web site operators to obtain parental consent before collecting, using, or disclosing personal information from children under 13. Roundtable topics will include:

• Whether the Rule should be applied to emerging media such as mobile devices, interactive television, and interactive gaming;
• Potential expansion of the Rule to cover more items of information that might be collected from children; and,
• A review of the parental verification methods used by Web site operators.

"For a more detailed list of topics, see the Commission's March 24, 2010 request for public comment on the COPPA Rule, at http://www.ftc.gov/opa/2010/03/coppa.shtm .

"The roundtable will be held at the FTC Conference Center at 601 New Jersey Avenue N.W. in Washington, DC. It is free and open to the public. Pre-registration is not required. Members of the public and press who wish to participate but who cannot attend can view a live webcast at ftc.gov.

"Individuals and organizations may submit requests to participate as panelists and may recommend topics for inclusion in the agenda. The requests and recommendations should be submitted electronically to childrensprivacyroundtable@ftc.gov . Prospective panelists should submit a statement detailing their expertise on the issues to be addressed and contact information no later than May 5, 2010. Panelists will be selected based on expertise and the need to include a broad range of views.

. . . . .

MEDIA CONTACT: Office of Public Affairs
202-326-2180

STAFF CONTACT:
Phyllis Marcus or Mamie Kresses
Bureau of Consumer Protection
202-326-2854 or 202-326-2070