11.12.10 :: Washington Has Its Head Up Its Rear End :: Cybersquatting Bad! :: But Google Maps Said We Could Invade :: Carriage ::

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CyberTelecom News
Federal Internet Law and Policy
http://cybertelecomclips.blogspot.com/
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Most folks are as happy as they make up their minds to be. – Abraham Lincoln

Secure a PC, Website From Firesheep Session Hijacking, CW
A couple of weeks ago, a tricky new Firefox plug-in called Firesheep
made hijacking someone's Web browsing session point-and-click simple.
You should take extra precautions to ensure that nobody hacks into
your online accounts when you surf on public Wi-Fi networks.
http://www.computerworld.com/s/article/9195618/Secure_a_PC_Website_From_Firesheep_Session_Hijacking?source=rss_news
More Info: http://www.cybertelecom.org/broadband/wifisecurity.htm

Ad Networks Can't Get 47 USC 230 Defense on Motion to Dismiss--Swift
v. Zynga, Tech Marketing Law
Swift v. Zynga Game Network, Inc., 2010 U.S. Dist. LEXIS 117355 (N.D.
Cal. Nov. 3, 2010). Wendy...
http://blog.ericgoldman.org/archives/2010/11/ad_networks_can.htm
More Info: http://www.cybertelecom.org/cda/samaritan.htm

The "Neutrality" of Things, GC
In an article titled, 'Will Netflix Doom Net Neutrality?' a very
interesting argument is being made - along the lines of "to stay
neutral or not". It's not an easy topic to find oneself solidly on
one side or the other as both arguments have merit, At the same time,
it's a highly volitile subject. One that can make peace-loving geeks
turn rabid and start throwing their office chairs.
http://blogs.globalcrossing.com/?q=content/net-neutrality-things
More Info: http://www.cybertelecom.org/ci/neutral.htm

Sorry, Net Neutrality Simply Was Not An Important Issue In This Year's
Election, Techdirt
This one is just amusing. Scott Cleland, who works for the big
broadband companies as a professional propagandist, and has a long
history of making absolutely ridiculous claims in order to support
their positions, apparently got a bit of traction from the
non-thinking press, after he started pushing the message that all of
the Democrats who signed a "pledge" to support
http://www.techdirt.com/articles/20101105/02472511738/sorry-net-neutrality-simply-was-not-an-important-issue-in-this-year-s-election.shtml
More Info: http://www.cybertelecom.org/ci/neutral.htm

Did You Know This Election Turned On Network Neutrality? Why
Washington Has Its Head Up Its Rear End., Tales from the Sausage
Factory
Apparently, the election results last Tuesday were a "national
referendum" on network neutrality. I'm not sure how I missed this, but
the constant repetition of this idea in the blogosphere and on Twitter
has now utterly convinced me and everyone…
http://tales-of-the-sausage-factory.wetmachine.com/content/did-you-know-this-election-turned-on-network-neutrality-why-washington-has-its-head-up-its-rear-end
More Info: http://www.cybertelecom.org/ci/neutral.htm

US Broadband Speed Jumps to 16th Worldwide, bandwidth reports
The US has improved its broadband speed rankings from 22nd to 16th
worldwide, according to an Akamai broadband survey. Delaware enjoys
the fastest connections in the US, and California continues to
dominate the top US cities for fast broadband. We also show the
slowest countries and US states.
http://www.websiteoptimization.com/bw/1010/
More Info: http://www.cybertelecom.org/data/broadband.htm

Cowboys fire coach, forget to renew Web domain, CNET
When the Dallas Cowboys fired their coach, Wade Phillips,
DallasCowboys.com was full of no news at all. The team had forgotten
to renew the domain name and site showed a picture of two kids playing
soccer.
http://news.cnet.com/8301-17852_3-20022316-71.html?part=rss&subj=news&tag=2547-1_3-0-20
More Info: http://www.cybertelecom.org/dns/

Cybersquatting Bad!, Cybertelecom
This is the first of a series of posts on the Anti-Cybersquatting
Consumer Protection Act (ACPA). This first post reviews the ACPA's
legislative history.On-line extortion in any form is unacceptable and
outrageous. Whether it's people extorting companies by registering
company names, misdirecting Internet users to inappropriate sites, or
otherwise attempting to damage a trademark that a
http://cybertelecom.blogspot.com/2010/11/cybersquatting-bad.html
More Info: http://www.cybertelecom.org/dns/acpa.htm

Surprising Cybersquatting Domain Name Dispute in the Ninth Circuit,
Infl Law Group
A panel of the Ninth Circuit last week released an opinion in DSPT
Int'l, Inc. v. Nahum, 2010 WL 4227883, (CV-06-00308-ODW)(Oct. 27,
2010), opinion here, that's worth a brief review for its various
holdings in a "cybersquatting" trademark and domain name dispute.
What's interesting about this case? For starters the result the Court
reached under the
http://feeds.lexblog.com/~r/InfoLawGroup/~3/C-57WUArLB8/
More Info: http://www.cybertelecom.org/dns/acpa.htm

Vint Cerf urges ISPs to deploy IPv6 - Inquirer, Inquirer
INTERNET PIONEER Vinton Cerf raised the spectre of Internet islands in
urging businesses to move towards IP version 6 (IPv6).
http://www.theinquirer.net/inquirer/news/1895850/vint-cerf-urges-isps-deploy-ipv6
More Info: http://www.cybertelecom.org/dns/ipv6.htm

AfriNIC gets 105/8, IPv4 Depletion
Today AfriNIC got the 105/8 block allocated from IANA. This is
surprisingly early, I was expecting AfriNIC to request more space in
April of next year. This is moving the IANA depletion date much
earlier (February of next year instead of April).
http://www.ipv4depletion.com/?p=497
More Info: http://www.cybertelecom.org/dns/ipv6.htm

FCC looks at Google's Street View data grab, Globe and Mail
Google faces multiple probes over Street View cars while U.S.
government prepares plans to address Internet privacy
http://feedproxy.google.com/~r/TheGlobeAndMail-Technology/~3/lmF5xVeRro0/
More Info: http://www.cybertelecom.org/industry/google.htm

Troops Move To Latin American Border. Google Maps Cited As The Reason., NPR
Nicaraguan troops have landed on an Island that Costa Rica claims as
its territory. A long disputed area, Nicaraguan forces point to Google
Maps saying it is their land. Google says, oops, our bad.
http://www.npr.org/blogs/thetwo-way/2010/11/08/131161323/troops-move-to-latin-american-border-google-maps-cited-as-the-reason?ft=1&f=1019
More Info: http://www.cybertelecom.org/intl/

Photographer Sues State Of Texas For Using Image From His Photograph
On Auto Inspection Stickers, Techdirt
Jon Snow points us to the story of a photographer who discovered that
a photograph he took of a cowboy hoisting a saddle is being used as
the background image on approximately 4.5 million inspection stickers
http://www.techdirt.com/articles/20101102/10500211691/photographer-sues-state-of-texas-for-using-image-from-his-photograph-on-auto-inspection-stickers.shtml
More Info: http://www.cybertelecom.org/ip/copyright.htm

Court Blocks Furniture Seller From Sending More DMCA Takedowns To eBay
Over Competitor's Furniture, Techdirt
It's no secret that the DMCA can be used as a form of censorship and
anti-competitive practices. Thankfully, at least some judges are
catching on. Evan Brown has the story of how Zen Path, a company that
sells furniture online, had been sending DMCA takedowns to eBay, after
noticing competitor Design Furnishings selling very similar wicker
furniture on eBay. I
http://www.techdirt.com/articles/20101110/18594111801/court-blocks-furniture-seller-from-sending-more-dmca-takedowns-to-ebay-over-competitor-s-furniture.shtml
More Info: http://www.cybertelecom.org/ip/dmca.htm

Did Jammie Thomas case backfire on file sharers?, CNET
Jammie Thomas-Rasset was supposed to become the Joan of Arc of file
sharing. Instead, copyright owners appear to be the ones benefiting
most from her legal challenge.
http://news.cnet.com/8301-31001_3-20021947-261.html?part=rss&subj=news&tag=2547-1_3-0-20
More Info: http://www.cybertelecom.org/ip/p2p.htm

Internet TV battles come to a head at FCC, WAPO
Changes in the television marketplace have been fast and furious in
recent months, and soon more tumult may come by way of the Federal
Communications Commission.
http://feeds.washingtonpost.com/click.phdo?i=5b66495daa51810744f63c279830a983
More Info: http://www.cybertelecom.org/media/video.htm

Fox now blocking Google TV, Lost Remote
Fox has joined ABC, CBS and NBC in blocking Google TV viewers from
watching video, reports GTVHub.com. Google TV allows you to punch up a
web browser on your TV set, but when you visit Fox.com and click to
watch a clip, a message says, "This content is not compatible with
your device." When we visited NBC.com a few days ago, it gave a
similar error message (right).
http://www.lostremote.com/2010/11/11/fox-now-blocking-google-tv/
More Info: http://www.cybertelecom.org/media/video.htm

Cable Subscribers Flee, But Is Internet To Blame?, NPR
TV subscribers are ditching their cable companies at an ever faster
rate in the past few months. It could be a sign that Internet services
such as Netflix and Hulu are finally starting to entice people to
cancel cable, though company executives cite the weak economy.
http://www.npr.org/templates/story/story.php?storyId=131096343&ft=1&f=1019
More Info: http://www.cybertelecom.org/media/video.htm

Carriage, Crawford
As I left a hotel recently, I walked towards the first cab on the cab
stand. The driver had a phone to his ear. "I'm on a call," he said.
"Go to the next cab."
http://scrawford.net/blog/carriage/1413/
More Info: http://www.cybertelecom.org/notes/common_carrier.htm

F.C.C. Investigates Google Street View, NYT
Google's acquisition of passwords, e-mails and other personal data
from unsuspecting people may have violated the Communications Act.
http://feeds.nytimes.com/click.phdo?i=2ff62da6e060af5a3049f6aef94accc3
More Info: http://www.cybertelecom.org/privacy/fcc.htm

The Role of Internet Services Providers in Botnet Mitigation, OECD
Botnets – networks of computers infected by malware – are critical
security threats. Based on the analysis of 109 billion spam messages,
this report considers whether ISPs can be critical control points for
botnet mitigation, how the number of infected machines varies across
ISPs and why.
http://www.oecd.org/topic/0,3373,en_2649_37441_1_1_1_1_37441,00.html?rssChId=37441#46397080
More Info: http://www.cybertelecom.org/security/

Report: Exploring the Digital Nation: Home Broadband Internet Adoption
in the United States, NTIA
A Report Prepared by the Economics and Statistics Administration and
the National Telecommunications and Information Administration in the
U.S. Department of Commerce. The report analyzes data collected
through an Internet Usage Survey of 54,000 households conducted by the
U.S. Census Bureau in October 2009.
http://www.ntia.doc.gov/reports.html
More Info: http://www.cybertelecom.org/usf/dd.htm

HP TO PAY $16.25 MILLION TO SETTLE DOJ-FCC E-RATE FRAUD INVESTIGATION., FCC
News Release. News Media Contact: Mark Wigfield
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-302764A1.pdf
More Info: http://www.cybertelecom.org/usf/erate.htm

VoIP Providers must now pay USF funds, WISPA
From Phone+ article Nomadic VoIP providers such as Vonage Holdings
Corp. and 8×8 Inc. now must pay into states' Universal Service funds.
Late last week, the FCC ruled that states may require the likes of
Vonage and 8×8 to contribute to their individual USF subsidies from
here on out; the decision was expected. VoIP operators
http://www.wispa.org/?p=3359
More Info: http://www.cybertelecom.org/usf/voip.htm

Report: Obama Readying 'Stepped-Up' Internet Policing, NPR
The Commerce Department is working on a plan, for release in the next
several weeks, that would call for "new laws and the creation of a new
position to oversee the effort," The Wall Street Journal reports.
http://www.npr.org/blogs/thetwo-way/2010/11/12/131265621/report-obama-readying-stepped-up-internet-policing?ft=1&f=1019
More Info: http://www.cybertelecom.org/

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[REPORT] New Commerce Dept Report Shows Broadband Adoption Rises While Cap Persists

Note: This follows a long line of reports during the Clinton/Gore administration on the Digital Divide. Under Clinton/Gore, NTIA set up a website dedicated to this at digitaldivide.gov. When the Bush/Cheney administration came in, one of the first things they did was pull down digitaldivide.gov explaining how it was not part of their policy. NTIA under Bush/Cheney did continue to issue these reports, but the message changed to a more positive, everything's fine conclusion.

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NEW COMMERCE DEPARTMENT REPORT SHOWS BROADBAND ADOPTION RISES WHILE 'GAP' PERSISTS

Data Show Digital Divide Not Simply Due to Socio-Economic Status

FOR IMMEDIATE RELEASE
Monday, November 8, 2010
News Media Contacts:
Jane Callen, ESA, (202) 482-2235 jcallen@doc.gov
Moira Vahey, NTIA (202) 482-0147 mvahey@ntia.gov

WASHINGTON – The Department of Commerce's Economics and Statistics Administration (ESA) and National Telecommunications and Information Administration (NTIA) today released a new report, “Digital Nation II,” that analyzes broadband Internet access and adoption across the United States. The study – the most comprehensive of its kind -- finds that socio-economic factors such as income and education levels, although strongly associated with broadband Internet use, are not the sole determinants of use; even after accounting for socioeconomic differences, significant gaps persist along racial, ethnic, and geographic lines. The report analyzes data collected through an Internet Usage Survey of 54,000 households conducted by the U.S. Census Bureau in October 2009. Earlier this year, NTIA released initial findings from the survey, showing that while virtually all demographic groups have experienced rising broadband Internet adoption at home, and 64 percent of households overall have broadband at home, historic disparities among demographic groups have persisted over time.

"In order to narrow the digital divide and help more Americans compete in the 21st century economy, we need to better understand the causes of the broadband gap,” said Under Secretary for Economic Affairs Rebecca Blank. “Today's report identifies various factors that drive and inhibit broadband adoption. It is the most comprehensive, data-driven analysis of broadband adoption that has been conducted. The bedrock of sound policymaking is statistical measurement and analysis of the data and underlying issues.”

"Americans who lack broadband Internet access are cut off from many educational and employment opportunities," said Assistant Secretary for Communications and Information and NTIA Administrator Lawrence E. Strickling. "The learning from today's report is that there is no simple ‘one size fits all’ solution to closing the digital divide. A combination of approaches makes sense, including targeted outreach programs to rural and minority populations emphasizing the benefits of broadband. NTIA's Broadband Technology Opportunities Program is helping to address this challenge, but we are hopeful today's report will be useful to the larger community working to close the gap."

The principal findings of the report are:

Overall

• Seven out of ten American households used the Internet in 2009. The majority of these households used broadband to access the Internet at home. Almost one-fourth of all households, however, did not have an Internet user.

Determinants of Household Broadband Adoption

• Income and education are strongly associated with broadband Internet use at home but are not the sole determinants.
  

• Broadband Internet adoption was higher among White households than among Black and Hispanic households. Differences in socio-economic attributes do not explain the entire gap associated with race and ethnicity.

• A similar pattern holds for urban and rural locations. Urban residents were more likely than their rural counterparts to adopt broadband Internet, even after accounting for socio-economic differences.

• In contrast, differences in socio-economic and geographic characteristics do explain a substantial portion of the broadband adoption lag among people with disabilities.
• Broadband adoption also varies with age, with the elderly population much less likely than their younger counterparts to use home broadband Internet services.

• Lack of need or interest, lack of affordability, lack of an adequate computer, and lack of availability were all stated as the main reasons for not having home broadband Internet access. The significance of these factors, however, varied across non-users, with affordability and demand generally dominating.
  

• Internet non-users reported lack of need or interest as their primary reason for not having broadband at home. This group accounted for two-thirds of those who don't have broadband at home. In contrast, households that did not use the Internet specifically at home but did use the Internet elsewhere ranked affordability as the primary deterrent to home broadband adoption. This group represented almost one-fourth of those who don't have broadband at home.

• Households that use dial-up service cited affordability as the main reason for not adopting broadband at home. For rural residents using dial-up service, lack of broadband availability was reported as a significant factor.

Long-term trends in broadband Internet use

• Between 2001 and 2009, broadband Internet use among households rose sevenfold, from 9 percent to 64 percent of American households.
  

• Some of the demographic groups that had lower-than-average adoption rates in 2001 have since shown impressive gains, but sizable gaps remain among demographic groups defined by income, education, race, and ethnicity. Similarly, despite gains in adoption rates within geographic areas, significant gaps in adoption still persist among the states, some regions, and between urban and rural locations.

NTIA and the Department of Agriculture’s Rural Utilities Service are administering a nearly $7 billion Recovery Act initiative to expand access to and adoption of broadband services. NTIA is utilizing approximately $4 billion of that funding for the Broadband Technology Opportunities Program (BTOP), which provided grants to support the deployment of broadband infrastructure, enhance and expand public computer centers, and encourage sustainable adoption of broadband service.

The full report is available at http://www.esa.doc.gov/DN/

Cybersquatting Bad!

This is the first of a series of posts on the Anti-Cybersquatting Consumer Protection Act (ACPA). This first post reviews the ACPA's legislative history.

On-line extortion in any form is unacceptable and outrageous. Whether it's people extorting companies by registering company names, misdirecting Internet users to inappropriate sites, or otherwise attempting to damage a trademark that a business has spent decades building into a recognizable brand, anyone engaging in cyber-squatting activity should be held accountable for their actions. --Sen. Abraham, Sponsor of the ACPA

"Cybersquatting is the Internet version of an unlawful land grab. Cybersquatters register well-known brand names as Internet domain names in order to force the rightful owners of the marks to come forward and pay for the right to engage in electronic commerce under their own name." Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 946 (9th Cir. 2002) .

In the late 1990s, in the cacophony of disagreement over domain names and Internet governance, there was one issue over which there was rough consensus: cybersquatters bad! Back in the late 1990s, the White House singled out cybersquatting as bad in a DNS White Paper; Federal Courts have had a disdain for Cybersquatters; and the 106th Congress, a Congress which was gridlocked, found rough consensus to pass the AntiCybersquatting Consumer Protection Act (ACPA).

Purpose: "The purpose of the bill is to protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for trademark owners by prohibiting the bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks-a practice commonly referred to as ''cybersquatting.'" [Senate Report Leg His]

Discussion Derived From: The AntiCybersquatting Consumer Protection Act, Report 106-140, 106 th Cong., 1 st Sess. (Aug. 5, 1999) (Legislative History):

Trademark owners are facing a new form of piracy on the Internet caused by acts of ''cybersquatting,'' which refers to the deliberate, bad-faith, and abusive registration of Internet domain names in violation of the rights of trademark owners. For example, when Mobil and Exxon announced their proposed merger in December, 1998, a speculator registered every variation of the possible resulting domain name, i.e., mobil-exxon.com, exxon-mobil.com, mobilexxon.com, etc., ad infinitum. In another example of bad-faith abuses of the domain name registration system, Network Solutions- the domain name registry that administers the Internet's ''.com,'' ''.net,'' ''.org,'' and ''.edu'' top level domains-pulled on a London computer club in May, 1999, that had registered over 75,000 domain names using an automated computer program.1 Their aim was to lock up all available four letter domains by systematically reserving every possible combination of letters, starting with aaaa.com, then aaab.com, aaac.com, up to zzzz.com, until every available combination had been reserved.

The practice of cybersquatting harms consumers, electronic commerce, and the goodwill equity of valuable U.S. brand names, upon which consumers increasingly rely to locate the true source of genuine goods and services on the Internet. Online consumers have a difficult time distinguishing a genuine site from a pirate site, given that often the only indications of source and authenticity of the site, or the goods and services made available thereon, are the graphical interface on the site itself and the Internet address at which it resides. As a result, consumers have come to rely heavily on familiar brand names when engaging in online commerce. But if someone is operating a web site under another brand owner's trademark, such as a site called ''cocacola.com'' or ''levis.com,'' consumers bear a significant risk of being deceived and defrauded, or at a minimum, confused. The costs associated with these risks are increasingly burdensome as more people begin selling pharmaceuticals, financial services, and even groceries over the Internet. Regardless of what is being sold, the result of online brand name abuse, as with other forms of trademark violations, is the erosion of consumer confidence in brand name identifiers and in electronic commerce generally.

Cybersquatters target distinctive marks for a variety of reasons. Some register well-known brand names as Internet domain names in order to extract payment from the rightful owners of the marks, who find their trademarks ''locked up'' and are forced to pay for the right to engage in electronic commerce under their own brand name. For example, several years ago a small Canadian company with a single shareholder and a couple of dozen domain names demanded that Umbro International, Inc., which markets and distributes soccer equipment, pay $50,000 to its sole shareholder, $50,000 to an Internet charity, and provide a free lifetime supply of soccer equipment in order for it to relinquish the ''umbro.com'' name. The Committee also heard testimony that Warner Bros. was reportedly asked to pay $350,000 for the rights to the names ''warnerrecords. com'', ''warner-bros-records.com'', ''warner-pictures.com'', ''warner-bros-pictures'', and ''warnerpictures.com''.

Others register well-known marks as domain names and warehouse those marks with the hope of selling them to the highest bidder, whether it be the trademark owner or someone else. For example, the Committee heard testimony regarding an Australian company operating on the Internet under the name ''The Best Domains,'' which was offering such domain names as ''911porsche.com,'' at asking prices of up to $60,911, with a caption that reads ''PORSCHE: DO I NEED TO SAY ANYTHING?'' The Committee also heard testimony regarding a similarly enterprising cybersquatter whose partial inventory of domain names-the listing of which was limited by the fact that Network Solutions will only display the first 50 records of a given registrant-includes names such as Coca-Cola, Pepsi, Burger King, KFC, McDonalds, Subway, Taco Bell, Wendy's, BMW, Chrysler, Dodge, General Motors, Honda, Hyundai, Jaguar, Mazda, Mercedes, Nissan, Porsche, Rolls-Royce, Saab, Saturn, Toyota, and Volvo, all of which are available to the highest bidder through an online offer sheet.

In addition, cybersquatters often register well-known marks to prey on consumer confusion by misusing the domain name to divert customers from the mark owner's site to the cybersquatter's own site, many of which are pornography sites that derive advertising revenue based on the number of visits, or ''hits,'' the site receives. For example, the Committee was informed of a parent whose child mistakenly typed in the domain name for ''dosney.com,'' expecting to access the family-oriented content of the Walt Disney home page, only to end up staring at a screen of hardcore pornography because a cybersquatter had registered that domain name in anticipation that consumers would make that exact mistake. Other instances of diverting unsuspecting consumers to pornographic web sites involve malicious attempts to tarnish a trademark owner's mark or to extort money from the trademark owner, such as the case where a cybersquatter placed pornographic images of celebrities on a site under the name ''pentium3.com'' and announced that it would sell the domain name to the highest bidder. Others attempt to divert unsuspecting consumers to their sites in order to engage in unfair competition. For example, the business operating under the domain name ''disneytransportation.com'' greets online consumers at its site with a picture of Mickey Mouse and offers shuttle services in the Orlando area and reservations at Disney hotels, although the company is in no way affiliated with the Walt Disney Company and such fact is not clearly indicated on the site. Similarly, the domain name address ''wwwcarpoint.com,'' without a period following ''www'', was used by a cybersquatter to offer a competing service to Microsoft's popular Carpoint car buying service.

Finally, and most importantly, cybersquatters target distinctive marks to defraud consumers, including to engage in counterfeiting activities. For example, the Committee heard testimony regarding a cybersquatter who registered the domain names ''attphonecard.com'' and ''attcallingcard.com'' and used those names to establish sites purporting to sell calling cards and soliciting personally identifying information, including credit card numbers. We also heard the account of a cybersquatter purporting to sell Dell Computer products under the name ''dellspares.com'', when in fact Dell does not authorize online resellers to market its products, and a similar account of someone using the name ''levis501warehouse.com'' to sell Levis jeans despite the fact that Levis is the only authorized online reseller of its jeans.8 Of even greater concern was the example of an online drug store selling pharmaceuticals under the name ''propeciasales.com'' without any way for online consumers to tell whether what they are buying is a legitimate product, a placebo, or a dangerous counterfeit.

Congress viewed the legal remedies available for trademark owners before the passage of the ACPA as "expensive and uncertain." The ACPA was designed to thwart cybersquatters "who register numerous domain names containing American trademarks or tradenames only to hold them ransom in exchange for money." [Virtual Works Sec. II.A.1 ("The ACPA was enacted in 1999 in response to concerns over the proliferation of cybersquatting-the Internet version of a land grab.")]

Next Post: The Elements of an ACPA cause of action.

FTC Names Edward W. Felten as Agency's Chief Technologist; Eileen Harrington as Executive Director

FTC Names Edward W. Felten as Agency's Chief Technologist; Eileen
Harrington as Executive Director

http://www.ftc.gov/opa/2010/11/cted.shtm

Federal Trade Commission Chairman Jon Leibowitz today announced the
appointment of Edward W. Felten as the agency's first Chief
Technologist. In his new position, Dr. Felten will advise the agency
on evolving technology and policy issues.

Dr. Felten is a professor of computer science and public affairs and
founding director of the Center for Information Technology Policy at
Princeton University. He has served as a consultant to federal
agencies, including the FTC, and departments of Justice and Defense,
and has testified before Congress on a range of technology, computer
security, and privacy issues. He is a fellow of the Association of
Computing Machinery and recipient of the Scientific American 50 Award.
Felten holds a Ph.D. in computer science and engineering from the
University of Washington.

Dr. Felten's research has focused on areas including computer security
and privacy, especially relating to consumer products; technology law
and policy; Internet software; intellectual property policy; and using
technology to improve government.

"Ed is extraordinarily respected in the technology community, and his
background and knowledge make him an outstanding choice to serve as
the agency's first Chief Technologist," Leibowitz said. "He's going to
add unparalleled expertise on high-technology markets and computer
security. And he also will provide invaluable input into the
recommendations we'll be making soon for online privacy, as well as
the enforcement actions we'll soon bring to protect consumer privacy.
We're thrilled to have him on board."

Dr. Felten currently is a part-time consultant for the FTC. He will
start full time as Chief Technologist in January.

Chairman Leibowitz also announced that Eileen Harrington has been
named the agency's Executive Director. Harrington comes to the FTC
from a 15-month stint as Chief Operating Officer at the U.S. Small
Business Administration. Previously, she served for 25 years at the
FTC, starting as a staff attorney and assuming a variety of senior
management positions in the Bureau of Consumer Protection, including
Associate Director for Marketing Practices, Deputy Director, and
Acting Director. Harrington has a long list of accomplishments from
her tenure at the FTC. Perhaps most notably, she received the
prestigious Service to America Medal for leading the team that created
the National Do Not Call Registry.

"This is a very happy homecoming," said Leibowitz. "Eileen has made an
invaluable contribution to the FTC in the past, and her strong
management skills, enthusiasm, and creativity will once again be put
to use for the betterment of the agency and for American consumers. We
are delighted to have her back."

The Federal Trade Commission works for consumers to prevent
fraudulent, deceptive, and unfair business practices and to provide
information to help spot, stop, and avoid them. To file a complaint in
English or Spanish, visit the FTC's online Complaint Assistant or call
1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into
Consumer Sentinel, a secure, online database available to more than
1,800 civil and criminal law enforcement agencies in the U.S. and
abroad. The FTC's website provides free information on a variety of
consumer topics.

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

--

In Which We Learn That an Email Stored on a Laptop is not in "Electronic Storage"

What is it about former-boyfriends or girlfriends and hacking into the ex's email account? There is a growing litany of caselaw developing in this area (would make a good law review article somebody!).

Today we review Thompson v. Kaczmarek, No. 2:10-cv-479 (Sept. 30, 2010). In the words of the court, the relationship between the Plaintiff and the Defendant "deteriorated." Defendant got her hands on Plaintiff's laptop and "became intent on embarrassing [Plaintiff] in revenge." Defendant allegedly turned over the alleged laptop to nefarious dudes with the skill to hack into the hard drive and retrieve allegedly embarrassing emails. Plaintiff sued them all.

As per normal, we are particularly interested in the causes of action based on federal law; in this case Plaintiff claimed that Defendants violated the Stored Communications Act (SCA).

I always struggle with the SCA and ECPA –doesn’t the SCA apply to email somehow magically in transit – and once you have downloaded the email to your own machine, whatever happens to that email is of no concern of ECPA/SCA? If accessing stuff on the Plaintiff's machine caused some type of consternation, wouldn’t that be more of a Computer Fraud and Abuse Act claim?

Let's go to the video tape and find out.

Before the Court is Defendant's Rule 12(b)(6) Motion to Dismiss for failure to state an SCA claim upon which relief can be granted. "[T]he question before the Court is whether the unauthorized access of previously received electronic mail messages ("e-mail") that had been downloaded by the recipient and saved to the hard drive of his personal laptop computer violates the Stored Communications Act." For purposes of this motion, Defendants assume "that Plaintiff did not provide them with authority to access the data saved to the laptop hard drive." The problem, Defendants argue, is that even if the access were unauthorized, this is not a situation covered by the SCA.

The relevant portion of the SCA 18 U.S.C. § 2701 states

whoever—

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

Once an email has been downloaded and saved to a person's laptop, the electronic communication (the email) is no longer in electronic storage at the electronic communications service.

Okay, a few definitions.

"The SCA defines electronic storage as either a) 'any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof', and b) 'any storage of such communication by an electronic communications service for purposes of backup protection of such communication.' 18 U.S.C. § 2510(17); see also 18 U.S.C. § 2711(1) (providing that terms defined in § 2510 apply to Title II of ECPA)." The SCA is anticipating the brief, temporary, temporal storage that is involved in electronic, store-and-forward communications. It is when the email is stored on the email server. It is when the email is stored in transit. It is not after it has been received, read, and saved. It is not when the email is on Plaintiff's laptop.

Next, “'electronic communications system' means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications." 18 U.S.C. § 2510(14). In other word, this is a service in the business of communications – not an end user. Even if Plaintiff wants to claim that the act of backing up his email makes him a "facility," it does not, concludes the court, make him an "electronic communications service."

Defendants' Motion to Dismiss Plaintiff's SCA Cause of Action is granted.

This time the allegedly hacking romantic ex-partner wins. See Global Policy Partners, Inc. v. Yessin, (EDVa Nov. 24, 2009) where the hacking-ex-partner loses. Plaintiff did not apparently raise a Computer Fraud and Abuse Act cause of action. Would the outcome have been different under the CFAA?

[Disclaimer]

Senate Considers Banning Dial Phones

This came to light from a recent Techdirt blog post.....  Now if they
would only ban Cell Phones while Driving.....

June 25, 1930
Senate Considers Banning Dial Phones
http://www.senate.gov/artandhistory/history/minute/Senate_Considers_Banning_Dial_Phones.htm

Senator Carter Glass of Virginia
Carter Glass (D-VA)

In the spring of 1930, the Senate considered the following resolution:

    Whereas dial telephones are more difficult to operate than are
manual telephones; and Whereas Senators are required, since the
installation of dial phones in the Capitol, to perform the duties of
telephone operators in order to enjoy the benefits of telephone
service; and Whereas dial telephones have failed to expedite telephone
service; Therefore be it resolved that the Sergeant at Arms of the
Senate is authorized and directed to order the Chesapeake and Potomac
Telephone Co. to replace with manual phones within 30 days after the
adoption of this resolution, all dial telephones in the Senate wing of
the United States Capitol and in the Senate office building.

Sponsored by Virginia's Carter Glass, the resolution passed without
objection when first considered on May 22, 1930. Arizona's Henry
Ashurst praised its sponsor for his restrained language. The
Congressional Record would not be mailable, he said, "if it contained
in print what Senators think of the dial telephone system." When
Washington Senator Clarence Dill asked why the resolution did not also
ban the dial system from the District of Columbia, Glass said he hoped
the phone company would take the hint.

One day before the scheduled removal of all dial phones, Maryland
Senator Millard Tydings offered a resolution to give senators a
choice. It appeared that some of the younger senators actually
preferred the dial phones. This angered the anti-dial senators, who
immediately blocked the measure's consideration.

Finally, technology offered a solution. Although the telephone company
had pressed for the installation of an all-dial system, it
acknowledged that it could provide the Senate with phones that worked
both ways. But Senator Dill was not ready to give up. In his
experience, the dial phone "could not be more awkward than it is. One
has to use both hands to dial; he must be in a position where there is
good light, day or night, in order to see the number; and if he
happens to turn the dial not quite far enough, then he gets a wrong
connection."

Senator Glass, the original sponsor, had the last word before the
Senate agreed to the compromise plan. "Mr. President, so long as I am
not pestered with the dial and may have the manual telephone, while
those who want to be pestered with [the dial] may have it, all right."

--
=~=~=
Cybertelecom :: Federal Internet Law & Policy :: www.cybertelecom.org

bobArlington :: Bunkum Blog from bArlington :: http://barlington.blogspot.com

Twitter & Facebook: rcannon100
=~=~=

Telecommunications Policy Research Conference Oct 1 - 3 in Arlington VA

http://www.tprcweb.com/

TPRC, one of the very best academic telecom policy conferences out there, will be the upcoming weekend of Oct 1 - 3 in Arlington VA

By way of sampling, below is Saturday's agenda

8:00 am Registration and Continental Breakfast
9:00 am Sessions
Network Management and Innovation
Broadband Investment 1
Media Policy
Privacy Policy
Spectrum Control
10:40 am Coffee Break
11:10 am Sessions
Regulatory Design 1
Residential Broadband
Policymaking Processes
Universal Access Policy
Spectrum Auctions
12:50 pm Lunch
Student Awards

2:00 pm Sessions
Comparative Network Neutrality
Broadband Investment 2
Regulatory Lessons from Virtual Space
Privacy Policy 2
Comparative Telecom Evolutions
3:40 pm Coffee Break
4:10 pm Sessions
Network Neutrality Regulation
Broadband in Europe
OSP Liability
Privacy Policy 3
Public Safety and Emergency
6:00 pm Reception
7:00 pm DinnerPanel: The Rise of the Wireless Industry

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
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[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.