FTC Seeks Comments on Revised COPPA Rules

We've never really agreed to much Internet privacy legislation... except in one area.  That involves children.  One of the oldest laws related to the Internet is the Child Online Privacy Protection Act (COPPA), passed in the late 1990s when ecommerce sites would let kids win stuff on their websites.  Play a game on the site; win a few points.  Tell the site your mom and dad's name, address, and salary - and win 100 points. 

COPPA has been the guiding privacy regulations for children's sites for over a decade, and now the Federal Trade Commission is in the process of updating its COPPA rules.  Public comments are due by Nov. 28.

For Release: 9/15/2011

FTC Seeks Comment on Proposed Revisions to Children’s Online Privacy Protection Rule
Changes in Technology Drive Proposed Updates

The Federal Trade Commission is seeking public comment on proposed amendments to the Children’s Online Privacy Protection Rule, which gives parents control over what personal information websites may collect from children under 13. The FTC proposes these amendments to ensure that the Rule continues to protect children’s privacy, as mandated by Congress, as online technologies evolve. The Commission proposes modifications to the Rule in five areas: definitions, including the definitions of “personal information” and “collection,” parental notice, parental consent mechanisms, confidentiality and security of children’s personal information, and the role of self-regulatory “safe harbor” programs.
“In this era of rapid technological change, kids are often tech savvy but judgment poor. We want to ensure that the COPPA Rule is effective in helping parents protect their children online, without unnecessarily burdening online businesses,” said FTC Chairman Jon Leibowitz. “We look forward to the continuing thoughtful input from industry, children’s advocates, and other stakeholders as we work to update the Rule.”
The Children’s Online Privacy Protection Act (COPPA) requires that operators of websites or online services directed to children under 13, or those that have actual knowledge that they are collecting personal information from children under 13, obtain verifiable consent from parents before collecting, using, or disclosing such information from children. The FTC’s Rule implementing the COPPA statute became effective in 2000.
The FTC previously reviewed the COPPA Rule in 2005 and retained it without change. In light of rapidly evolving technology and changes in the way children use and access the Internet, in 2010 the FTC initiated another review of the Rule on an accelerated schedule. On April 5, 2010, the FTC sought public comment on every aspect of the COPPA Rule, posing numerous questions for the public’s consideration. In addition, the FTC held a public roundtable and reviewed 70 comments received from industry representatives, advocacy groups, academics, technologists, and individual members of the public.
A brief summary of some of the major changes is below.
Definitions
The COPPA Rule requires covered operators to obtain parental consent before collecting personal information from children. The FTC proposes updating the definition of “personal information” to include geolocation information and certain types of persistent identifiers used for functions other than the website’s internal operations, such as tracking cookies used for behavioral advertising. In addition, the Commission proposes modifying the definition of “collection” so operators may allow children to participate in interactive communities, without parental consent, so long as the operators take reasonable measures to delete all or virtually all children’s personal information before it is made public.
Parental Notice
The proposed amendments also seek to streamline and clarify the direct notice that operators must give parents prior to collecting children’s personal information. The proposed revisions are intended to ensure that key information will be presented to parents in a succinct “just-in-time” notice, and not just in a privacy policy.
Parental Consent Mechanisms
The FTC also proposes adding new methods to obtain verifiable parental consent, including electronic scans of signed parental consent forms, video-conferencing, and use of government-issued identification checked against a database, provided that the parent’s ID is deleted promptly after verification is done. These supplement the nonexclusive list of methods already set forth in the Rule.
The FTC proposes eliminating the less-reliable method of parental consent, known as “e-mail plus,” which is available to operators that collect personal information only for internal use. This method currently allows operators to obtain consent through an email to the parent, coupled with another step, such as sending a delayed email confirmation to the parent after receiving consent.
To encourage the development of new consent methods, the Commission proposes establishing a voluntary 180-day notice and comment process whereby parties may seek Commission approval of a particular consent mechanism. In addition, the Commission proposes permitting operators participating in a Commission approved safe-harbor program to use a method permitted by that program.
Confidentiality and Security Requirements
To better protect children’s personal information, the Commission proposes strengthening the Rule’s current confidentiality and security requirements. Specifically, the Commission proposes adding a requirement that operators ensure that any service providers or third-parties to whom they disclose a child’s personal information have in place reasonable procedures to protect it, that operators retain the information for only as long as is reasonably necessary, and that they properly delete that information by taking reasonable measures to protect against unauthorized access to, or use in connection with, its disposal.
Safe Harbor
Finally, the FTC proposes to strengthen its oversight of self-regulatory “safe harbor programs” by requiring them to audit their members at least annually and report periodically to the Commission the results of those audits.
The Commission vote to issue the Federal Register notice was 5-0.

Written comments must be received on or before November 28, 2011.

Write “COPPA Rule Review, 16 CFR Part 312, Project No. P-104503” on comments, and file your comment online at https://ftcpublic.commentworks.com/ftc/2011copparulereview by following the instructions on the web-based form. To file comments on paper, mail or deliver comments to: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex E) 600 Pennsylvania Avenue, N.W., Washington, DC 20580.
. . . . .

MEDIA CONTACT:

Claudia Bourne Farrell,
Office of Public Affairs
202-326-2181

STAFF CONTACT:

Phyllis Marcus,
Bureau of Consumer Protection
202-326-2854

Mamie Kresses,
Bureau of Consumer Protection
202-326-2070

9.16 :: TPRC Next Weekend!! :: Fink :: Freedom not Fear:: About a Penny Per Month :: More Testing :: Time for the Lawsuits :: Because I'm the Tax Man ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================
"If only there were evil people somewhere insidiously committing evil
deeds and it were necessary only to separate them from the rest of us
and destroy them. But the line dividing good and evil cuts through the
heart of every human being. And who is willing to destroy a piece of
his own heart?" -Alexander Solzhenitsyn

NTIA: Small Agency, Big Impact, NTIA
In the 21st century global economy, America's competitiveness requires
a modern communications infrastructure, a technology-savvy workforce,
and public policies that preserve the Internet as an engine for job
creation, innovation, and economic growth. NTIA's activities–at a
cost of about a penny per month for each American–represent a modest
yet critical investment in our economic future, one that can pay
dividends for decades.
http://www.ntia.doc.gov/blog/2011/ntia-small-agency-big-impact
More Info: http://www.cybertelecom.org/broadband/

GOP Lawmaker Calls for LightSquared Inquiry, WSJ
A key House Republican on Thursday called for an investigation into
whether White House officials helped LightSquared, a start-up wireless
company, with its proposal for a new national wireless network.
http://online.wsj.com/article/SB10001424053111903927204576573231491375462.html?mod=googlenews_wsj
More Info: http://www.cybertelecom.org/broadband/gps.htm

FCC calls for more LightSquared testing as complaints continue about
GPS interference, WAPO
The Federal Communications Commission said Tuesday that satellite
venture LightSquared needs to do further testing of its proposed
terrestrial mobile broadband network, amid a firestorm of criticism by
aviation, defense and agricultural agencies and industries about
interference with global positioning systems.
http://feeds.washingtonpost.com/click.phdo?i=ab93b9405b4d72cdf770e7acfa31387a
More Info: http://www.cybertelecom.org/broadband/gps.htm

FCC Announces Public Testing of First Television White Spaces Database, FCC
White spaces are unused spectrum between TV stations and are
considered prime real estate because signals in this band travel well,
making the band ideally suited for mobile wireless devices. Unlocking
this valuable spectrum will open the doors for new industries to
arise, create American jobs, and spurr new investment and innovation.
http://www.fcc.gov/blog/fcc-announces-public-testing-first-television-white-spaces-database
More Info: http://www.cybertelecom.org/broadband/white.htm

AT&T to activate faster 4G network on Sunday, CNN
AT&T Mobility is saddling up for the initial launch of its faster
fourth-generation data services.
http://rss.cnn.com/~r/rss/cnn_tech/~3/KxTKo_GUfkU/index.html
More Info: http://www.cybertelecom.org/broadband/wireless.htm

Revision to the Manual of Regulations and Procedures for Federal Radio
Frequency Management, NTIA
The National Telecommunications and Information Administration (NTIA)
hereby makes certain changes to its regulations, which relate to the
public availability of the Manual of Regulations and Procedures for
Federal Radio Frequency Management (NTIA Manual). Specifically, NTIA
updates the version of the Manual of Regulations and Procedures for
Federal Radio Frequency Management with which federal agencies must
comply when requesting use of the radio frequency spectrum.
http://www.ntia.doc.gov/federal-register-notice/2011/revision-manual-regulations-and-procedures-federal-radio-frequency-mana
More Info: http://www.cybertelecom.org/broadband/wireless.htm

New Survey from FOSI on Parental Controls, Filtering Facts
Today in Washington, D.C., the Family Online Safety Institute (FOSI),
with support from Microsoft and other companies, released the findings
of a new survey on the use of parental controls that found that 53
http://davidburt.us/2011/09/14/new-survey-from-fosi-on-parental-controls/
More Info: http://www.cybertelecom.org/cda/child.htm

Fink v. Time Warner Cable, SD New York 2011
In P2P Class Action Case Filed Against TW Cable, Pltf Motion to Strike
granted; Def's Motion to Dismiss Computer Fraud and Abuse Act claims
denied; Def's Motion to Dismiss other claims granted; Pltf's Motion to
Amend Complaint granted
http://scholar.google.com/scholar_case?case=1872011354890345364
More Info: http://www.cybertelecom.org/ci/neutralnot.htm

Wiretap Law Online: A Second Look at Paxfire, Tech Liberation Front
A few days ago, Ars Technica asked me to comment on a class action
lawsuit against Paxfire, a company that partners with Internet Service
Providers for the purpose of "monetizing Address Bar Search and DNS
Error traffic." The second half of that basically means fixing URL
typos, so when you accidentally tell your ISP you want the webpage for
"catoo.org," they figure out you probably mean Cato. The more
controversial
http://feedproxy.google.com/~r/techliberation/~3/w-ZJngq6xGQ/
More Info: http://www.cybertelecom.org/ci/neutralnot.htm

FCC's net neutrality rules to trigger legal, Hill challenge, WAPO
As the Federal Communications Commission's so-called net neutrality
rules move closer to becoming official, expect lawsuits and a
challenge by lawmakers to overturn the rules, experts say.
http://feeds.washingtonpost.com/click.phdo?i=c5a1e672cb95f42366e043076546cb18
More Info: http://www.cybertelecom.org/ci/neutralnot.htm

Paxfire: our search query intercepts are not wiretapping, Ars Technica
Last month we covered the controversy over Paxfire, a firm that
researchers have accused of "hijacking" search results by placing a
proxy server between users and major search engines and modifying some
responses. Paxfire and one of its customers, RCN, was soon hit with a
class-action lawsuit claiming that the use of search hijacking
violated the Wiretap Act, consumer protection laws, and RCN's
contractual obligations.
http://arstechnica.com/tech-policy/news/2011/09/paxfire-our-search-query-intercepts-are-not-wiretapping.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss
More Info: http://www.cybertelecom.org/ci/neutralnot.htm

ISP's alleged throttling of BitTorrent and Skype violates Computer
Fraud and Abuse Act, Internet Cases
Fink v. Time Warner Cable, 2011 WL 3962607 (S.D.N.Y. September 7, 2011)
http://blog.internetcases.com/2011/09/14/isps-alleged-throttling-of-bittorrent-and-skype-violates-computer-fraud-and-abuse-act/
More Info: http://www.cybertelecom.org/ci/neutralnot.htm#p2p

comScore Releases August 2011 U.S. Search Engine Rankings, comScore
comScore, Inc. (NASDAQ: SCOR), a leader in measuring the digital
world, today released its monthly comScore qSearch analysis of the
U.S. search marketplace. Google Sites led the explicit core search
market in August with 64.8 percent of search queries conducted.
http://feedproxy.google.com/~r/comscore/~3/OhAQRFIDMcs/comScore_Releases_August_2011_U.S._Search_Engine_Rankings
More Info: http://www.cybertelecom.org/data/

gTLD WHOIS Privacy and Proxy Relay and Reveal Survey Now Live, ICANN
As part of a broader examination of gTLD WHOIS, ICANN's Generic Names
Supporting Organization (GNSO) Council is seeking to gain further
insight into the origination and handling of "relay" and "reveal"
requests. A relay request is a request to forward a message to the
registrant of a domain registered using a privacy service. A reveal
request is a request to reveal the identity of the licensee of a
domain registered using a proxy service.
http://blog.icann.org/2011/09/gtld-whois-privacy-and-proxy-relay-and-reveal-survey-now-live/
More Info: http://www.cybertelecom.org/dns/whois.htm

California – 1, Amazon.com – 0: California to Collect Internet-Based
Sales Tax in 2012, JOLT Blog
Late last Friday, September 10, 2011, marked the end of one of many
battles Amazon.com and other similarly situated online retailers have
been fighting in an effort to stop or halt the enactment of state laws
that mandate the collection of state sales tax for internet-based
orders. Currently, there is no federal law requiring online retailers
to collect taxes in states that the retailer does not maintain
sufficient contacts – such
http://www.ncjolt.org/blog/2011/09/12/california-%E2%80%93-1-amazoncom-%E2%80%93-0-california-collect-internet-based-sales-tax-2012
More Info: http://www.cybertelecom.org/ecom/tax.htm

Federal courts jack up fees for online access by 25 percent, Ars Technica
The federal courts announced on Tuesday that they would be increasing
fees for accessing public court records by 25 percent, from 8¢ per
page to 10¢ per page. Most Americans have never heard of PACER, the
website the federal courts use to distribute judicial records. But for
thousands of journalists, academics, and practicing attorneys, news of
the fee hike produced a collective groan.
http://arstechnica.com/tech-policy/news/2011/09/federal-courts-jack-up-fees-for-online-access-by-25-percent.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss
More Info: http://www.cybertelecom.org/egov/

Law School for Digital Journalists – Online Registration Closes
September 16!, Citizens Media Law Project
Next Thursday, September 22, 2011, the Citizen Media Law Project at
Harvard's Berkman Center for Internet & Society, together with the
Online News Association and the UNC Center for Media Law and Policy
will present "Law School for Digital Journalists," a Pre-Conference
day for the ONA's 2011 Conference in Boston.
http://feedproxy.google.com/~r/CitizenMediaLawProject/~3/aLTPcf29Nwc/law-school-digital-journalists-%E2%80%93-online-registration-closes-september-16
More Info: http://www.cybertelecom.org/media/news.htm

Freedom of the press applies to everyone — yes, even bloggers, Gigaom
If there's one thing that events such as the recent riots in Britain
and protests in California have shown, it's that mobile devices and
social tools like Twitter and YouTube have effectively made everyone
into a journalist, something we have argued in favor of at GigaOM. But
not everyone likes this trend, and we're not talking just about
professional journalists — police forces across the U.S. have been
arresting and prosecuting
http://feedproxy.google.com/~r/OmMalik/~3/-MljMSRuA5U/
More Info: http://www.cybertelecom.org/media/news.htm

NIST Details Federal Cloud Standards Roadmap, Suggested Cloud Architecture, CRN
The National Institute of Standards and Technology, the U.S.
government's lead technical agency, this week launched a cloud
computing standards roadmap and a cloud reference architecture to help
guide federal agencies to cloud computing technologies
http://www.crn.com/news/cloud/231601457/nist-details-federal-cloud-standards-roadmap-suggested-cloud-architecture.htm
More Info: http://www.cybertelecom.org/notes/cloud.htm

Amazon Flies FISMA Flag, Achieves Federal Cloud Certification, CRN
Amazon Web Services (AWS) has earned Federal Information Security
Management Act (FISMA) Moderate Authorization and Accreditation, which
illustrates that AWS and its cloud plays are suitable for federal,
state and local governments.
http://www.crn.com/news/cloud/231601527/amazon-flies-fisma-flag-achieves-federal-cloud-certification.htm;jsessionid=fOk81cqj-6NlNmQmHllR8Q**.ecappj01
More Info: http://www.cybertelecom.org/notes/cloud.htm

Two New Publications Provide a Cloud Computing Standards Roadmap and
Reference Architecture, NIST
The National Institute of Standards and Technology (NIST) has
published two new documents on cloud computing: the first edition of a
cloud computing standards roadmap and a cloud computing reference
architecture and taxonomy. Together, the documents provide guidance to
help understand cloud computing standards and categories of cloud
services that can be used government-wide.
http://www.nist.gov/itl/csd/cloud-091311.cfm
More Info: http://www.cybertelecom.org/notes/cloud.htm

Apple pulls 'Jewish or Not Jewish' app from French store, WAPO
Apple has pulled an app that enabled French users to look through a
database of celebrities and public figures and identify whether or not
they are Jewish.
http://feeds.washingtonpost.com/click.phdo?i=db49b735d56370ca2cbbf575bafbda15
More Info: http://www.cybertelecom.org/privacy/

EPIC Warns Congress of Cybersecurity Risks to Consumers, EPIC
EPIC Executive Director Marc Rotenberg testified today before the
House Subcommittee on Financial Institutions and Consumer Credit. EPIC
highlighted several recent high-profile data breaches, including those
involving the digital security certificates used to authenticate
websites, that have compromised the private data of thousands of
consumers. Citing reports from the Privacy Rights Clearinghouse,
EPIC's Rotenberg said
http://epic.org/2011/09/epic-warns-congress-of-cyberse.html
More Info: http://www.cybertelecom.org/privacy/

Freedom Not Fear: Ending A Decade Long Legacy of International Privacy
Erosion, EFF
This Saturday, September 17th, concerned European citizens with the
Freedom not Fear movement have decided to take their protest to the
capital of the European Union, Brussels. Their slogan: Stop the
surveillance mania! For five years in a row, Freedom Not Fear has
taken to the streets in several cities in Europe and beyond to demand
an end to suspicion-less surveillance measures. These include
mandatory data
http://www.eff.org/deeplinks/2011/09/freedom-not-fear-ending-decade-long-legacy-privacy-erosion
More Info: http://www.cybertelecom.org/privacy/

FTC eyes updates to online child privacy rules, CNET
Looking to strengthen the rules, the Federal Trade Commission is
proposing revisions that include adding geolocation information to the
definition of "personal information."
http://feedproxy.google.com/~r/cnet/tcoc/~3/1D9OSQPBqTA/
More Info: http://www.cybertelecom.org/privacy/coppa.htm

Rockefeller Says COPPA Rule Update is Vital to Kids Safety, Senate Commerce
Chairman John D. (Jay) Rockefeller IV issued the following statement
today after an announcement by the Federal Trade Commission (FTC) that
they are seeking public comment on proposed revisions to the
Children's Online Privacy Protection (COPPA) Rule to account for
changing online technologies and practices.
http://commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=a20ee545-cd14-4e68-9635-53ea3fcd8c98
More Info: http://www.cybertelecom.org/privacy/coppa.htm

FTC Seeks Comment on Proposed Revisions to Children's Online Privacy
Protection Rule, FTC
The Federal Trade Commission is seeking public comment on proposed
amendments to the Children's Online Privacy Protection Rule, which
gives parents control over what personal information websites may
collect from children under 13. The FTC proposes these amendments to
ensure that the Rule continues to protect children's privacy, as
mandated by Congress, as online
http://www.ftc.gov/opa/2011/09/coppa.shtm
More Info: http://www.cybertelecom.org/privacy/copparef.htm#pro

65% of online adults use social networking sites, Pew
Two-thirds of adult internet users (65%) now say they use a social
networking site like MySpace, Facebook or LinkedIn, up from 61% one
year ago. That's more than double the percentage that reported social
networking site usage in 2008 (29%). And
http://pewinternet.org/Reports/2011/Social-Networking-Sites/Overview.aspx
More Info: http://www.cybertelecom.org/privacy/socialnetworks.htm

28% of American adults use mobile and social location-based services, Pew
More than a quarter of all American adults use mobile or social
location-based services. Smartphone owners, younger users, and
minorities are most likely to use location services.
http://pewinternet.org/Press-Releases/2011/Location.aspx
More Info: http://www.cybertelecom.org/privacy/socialnetworks.htm#sta

U.S. needs to be on-guard for a big cyberattack, CW
A destructive attack from cyberspace "is coming, in my opinion. It is
a question of time. What we don't know is how far out it is," and
whether it will target commercial infrastructure, government networks
or mobile platforms Army Gen. Keith Alexander told attendees of the
"Maneuvering in Cyberspace" symposium this week.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/0K0i2NOLwTU/U.S._needs_to_be_on_guard_for_a_big_cyberattack
More Info: http://www.cybertelecom.org/security/

MOBILE MARK, INC. v. PAKOSZ, ND Illinois 2011
Def Motion to Dismiss CFAA Claim Denied; Def argument that Plaintiff
must set for CFAA claim with particularity fails; Def argument that
Plaintiff must allege files are involved in interstate commerce fails;
Pltf's allegation of $5000 loss based on forensic investigation and
def's improper use of data is sufficient to meet threshold
requirement.
http://scholar.google.com/scholar_case?case=698947362918064016
More Info: http://www.cybertelecom.org/security/crime.htm#cas

GENERAL SCIENTIFIC CORP. v. SHEERVISION, INC., ED Michigan 2011
Def Motion to Dismiss CFAA Claim Granted; "A mere belief in purported
future damages is insufficient to survive a Rule 12(b)(6) motion
because a complaint "requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do." Plaintiff has not alleged specific facts suggesting that it
incurred at least $5,000 in losses as a result of Defendants' alleged
activity."
http://scholar.google.com/scholar_case?case=14405830833646358662
More Info: http://www.cybertelecom.org/security/crime.htm#cas

Man stole data from U.S. service members via P2P, CW
A California man who dug up sensitive information belonging to U.S.
service members on peer-to-peer networks, and then used it to order
iPods, cameras, and even washing machines from an online store, was
sentenced to 75 months in federal prison Thursday.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/uVl7YlaRqsU/Man_stole_data_from_U.S._service_members_via_P2P
More Info: http://www.cybertelecom.org/security/idtheft.htm

USF Contribution Factor Again Tops 15%, Telecom Law Monitor
Today the FCC announced the proposed universal service contribution
factor for the fourth quarter of 2011. Based in large part on
recently revised projections showing an increase in low income demand
(largely due to prepaid wireless phones), the proposed contribution
factor will rise nearly 1%, to 15.3%.
http://feeds.lexblog.com/~r/TelecomLawMonitor/~3/JhN-fKH4168/
More Info: http://www.cybertelecom.org/usf/

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Computer Fraud and Abuse Act claim alleged with sufficient particularity

MOBILE MARK, INC. v. PAKOSZ, Dist. Court, ND Illinois 2011

Procedure: Defendant's Motion to Dismiss Plaintiff's Computer Fraud and Abuse Claim is denied

Background: Plaintiff, a designer and seller of commercial antenna products, sued one of its former engineers, Defendants, for violation of the federal Computer Fraud and Abuse Act ("CFAA") and other statutes (this blog focuses on federal internet law).In brief, the amended complaint alleges that, before leaving Plaintiff to work for Hascall-Denke, Pakosz accessed Plaintiff's computer system and copied proprietary information to a laptop that Plaintiff had loaned him. Pakosz allegedly transferred the proprietary data to a number of external storage devices, and then installed and repeatedly ran a "Window Washer" program on the laptop to delete files and other data in order to conceal his activities. According to Plaintiff, Pakosz turned its trade secrets over to Hascall-Denke, which used the information to manufacture knock-off versions of Plaintiff's antennas.

Rule: "To state a civil claim for violation of the CFAA, a plaintiff must allege: 1) dama ge or loss; 2) caused by; 3) a violation of one of the substantive provisions set forth in § 1030(a); and 4) conduct involving one of the factors in § 1030(c)(4)(A)(i)(I)-(V)." Cassetica Software, Inc. v. Computer Sciences Corp., No. 09 C 0003, 2009 WL 1703015, at *3 (N.D. Ill. June 18, 2009)

Analysis:

 

First, defendants object that "Mobile Mark has not alleged any particular file or document that Pakosz allegedly accessed without authorization." They also argue that Mobile Mark has failed to allege that Pakosz lacked permission to copy or transfer files to his Mobile-Mark laptop Defendants are incorrect in assuming that Plaintiff's CFAA claim must be set forth with such particularity. The complaint provides defendants with ample notice of the basis for Mobile Mark's CFAA claim.
 

Defendants also argue that Count II must be dismissed because Mobile Mark has failed to allege that the files on which the claim is based "involved interstate commerce."  The portion of the CFAA on which Plaintiff relies simply does not require any showing that the files at issue had anything to do with interstate commerce
 

Finally, Defendant argues that Plaintiffs fails to allege that it suffered any loss in connection with Pakosz's alleged activity.  Plaintiff asserts that it was forced to perform a forensic computer analysis in order to investigate Pakosz's alleged wrongdoing, and that it lost more than $5,000 due to Pakosz's improper use of its data. Further, Plaintiff alleges that, as a result of defendants' actions, it has suffered a loss of "customers, goodwill, sales, and business opportunities." In short, the allegations in Mobile Mark's complaint are not deficient in any of the respects asserted by defendants.

Speculative Future Losses Insufficient for CFAA Claim

GENERAL SCIENTIFIC CORP. v. SHEERVISION, INC., Dist. Court, ED Michigan 2011

Procedure:  Defendant's Motion to Dismiss Computer Fraud and Abuse Act Claim

Background:"General Scientific Corp. and SheerVision, Inc. both participate in the highly competitive market for surgical loupe products, which includes telemicroscopes, lights, video cameras, and related accessories used by surgeons, dentists, and dental technicians. In 2007, believing that SheerVision had engaged in importation and sale of goods infringing on Plaintiff's patents, Plaintiff initiated an action before the International Trade Commission ("ITC"). The ITC action settled: Plaintiff covenanted not to sue, and SheerVision promised to cease importation and sale of the allegedly infringing goods.

"Since early 2010, however, SheerVision has allegedly undertaken to poach members of Plaintiff's sales staff and use their knowledge of Plaintiff's business contacts and practices to compete against Plaintiff in the market for surgical loupe devices, some of which allegedly violate Plaintiff's patents. According to Plaintiff, SheerVision has hired five of Plaintiff's past employees, including Caouette. In particular, Plaintiff alleges that SheerVision and Caouette used a computer issued by Plaintiff and Caouette's access to Plaintiff's email servers to gather sales contacts, customer lists, pricing information, and copyrighted marketing material for use in SheerVision's commercial pursuits.

"Plaintiff filed suit against Defendants on October 6, 2010. Before the Court is a motion by Defendants to dismiss Counts I through V of Plaintiff's complaint or, in the alternative, for a more definite statement as to those same Counts"

Analysis: "Defendants move to dismiss Count III of Plaintiff's complaint, an alleged violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, on the ground that Plaintiff failed to sufficiently plead the damages required by the CFAA: namely, "loss . . . aggregating at least $5,000 in value." 18 USC § 1030(c)(4)(A)(i)(I)

"The CFAA defines "loss" as "any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service." 18 U.S.C. § 1030(e)(11) (emphasis added). Moreover, to be "plausible" under Twombly, Plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Count III of Plaintiff's CFAA claim fails under both the statutory definition of "loss" and Twombly.

"First, Plaintiff has failed to allege specific facts suggesting the plausibility of damages required under the CFAA. Plaintiff merely "believes that it will incur" costs exceeding $5,000. (Pl.'s First Am. Compl. ¶ 19.) A mere belief in purported future damages is insufficient to survive a Rule 12(b)(6) motion because a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65. Plaintiff has not alleged specific facts suggesting that it incurred at least $5,000 in losses as a result of Defendants' alleged activity.

"Second, to the extent Plaintiff has attempted to bolster its pleading through its Response to Defendants' Motion to Dismiss and the affidavit of Gregory S. Smith, Plaintiff demonstrates a misinterpretation of the "loss" standard under the CFAA, further undermining its claim. The crux of Plaintiff's response rests on the contention that Defendants' conduct has caused at least $5,000 in losses through usurped sales opportunities. (Pl.'s Resp. to Mot. to Dismiss 6-7.) Lost sales and profits per se are not the measure of loss under the CFAA, however. As the statutory language makes clear, "losses" under the CFAA are limited to costs incurred and profits lost as a direct result of interrupted computer service. 18 U.S.C. § 1030(e)(11) (listing applicable types of loss incurred "because of interruption of service"). The CFAA's damage requirement is not concerned with sales lost through the use of the information accessed. See, e.g., Nexans Wires S.A. v. Sark-USA, Inc., 166 Fed. App'x. 559, 562-63 (2d Cir. 2006) ("the plain language of the statute treats lost revenue as a different concept from incurred costs, and permits recovery of the former only where connected to an `interruption in service'"). The CFAA only covers lost revenue if the loss occurred as a result of interrupted service. Id. 

9.13 :: Degrading :: Speedy :: Worried :: Unprotected :: Truthful :: Obedient :: Massive :: Transitional :: Sticking :: Dead :: Epic ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================
"Very few people chose war. They chose selfishness and the result was
war. Each of us, individually and nationally, must choose: total
love, or total war." ---David Dellinger

LightSquared May Degrade Hurricane Tracking, Agencies Say, Bloomberg
Philip Falcone's LightSquared wireless service needs more testing
because it may degrade precision services that track hurricanes, guide
farmers and help build flood defenses, U.S. agencies are to tell
Congress today.
http://www.bloomberg.com/news/2011-09-07/falcone-s-lightsquared-needs-more-testing-u-s-board-will-tell-lawmakers.html
More Info: http://www.cybertelecom.org/broadband/gps.htm

LightSquared Pressed by U.S. for Speedy GPS Testing, WSJ
LightSquared needs to resolve concerns over GPS interference
http://online.wsj.com/article/BT-CO-20110912-713431.html
More Info: http://www.cybertelecom.org/broadband/gps.htm

New LightSquared Plan Fails To Ease GPS Interference Worries, Space News
A recent proposal by LightSquared to modify its plans to deploy a U.S.
broadband network in a way that would decrease its interference with
GPS receivers has done little to
http://www.spacenews.com/satellite_telecom/110909-lightsquared-interference-worries.html
More Info: http://www.cybertelecom.org/broadband/gps.htm

Farm Bureau calls for FCC review of LightSquared, High Plains
It is important to farmers and ranchers that the Federal Communication
Commission's review possible interference with the Global Positioning
Systems that could be created
http://www.hpj.com/archives/2011/sep11/sep12/0810FarmBureauCallsforLight.cfm?title=Farm%20Bureau%20calls%20for%20FCC%20review%20of%20LightSquared
More Info: http://www.cybertelecom.org/broadband/gps.htm

Duncan Stark, Broadcasting Expectations: An Unprotected Wireless
Network Takes on Constitutional Dimensions, 7 Wash. J.L. Tech. & Arts
1
In January 2010, the U.S. District Court for the District of Oregon
decided U.S. v. Ahrndt, the first case regarding the reasonable
expectation of privacy in a home wireless internet network. The court
found that the defendant had no reasonable expectation of privacy in
his unsecured home wireless network because he had openly shared
information on a system freely accessible by his neighbors.
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1048/7WJLTA001.pdf?sequence=1
More Info: http://www.cybertelecom.org/broadband/wifisecurity.htm

$60,000 Ruling Against Truthful Blogger Tests Limits of the First
Amendment, Citizens Media Law Project
One of the first things I learned as a journalist, and later again as
a media lawyer, was that under the First Amendment the "truth" could
not be subject to a viable defamation claim. True statements are
simply constitutionally immune and plaintiffs cannot sidestep all of
the common law and
http://feedproxy.google.com/~r/CitizenMediaLawProject/~3/AGiA4SMi_7k/60000-ruling-against-truthful-blogger-tests-limits-first-amendment
More Info: http://www.cybertelecom.org/cda/firsta.htm

Connor Moran, Injunction Relief: Must Nonparty Websites Obey Court
Orders to Remove User Content?, 7 Wash. J.L. Tech. & Arts 47
Websites are normally immune to suits arising from illegal user-posted
content due to 42 USC § 230. Victims of illegal postings must
therefore bring suit, if at all, against the original posters.
However, when websites refuse to take down illegal content, a suit
against an original poster might not provide relief. In the recent
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1051/7WJLTA047.pdf?sequence=1
More Info: http://www.cybertelecom.org/cda/samaritan.htm

Net neutrality rules move closer to implementation, CNET
White House's Office of Management and Budget signs off on FCC rules,
which means that, barring legal challenges, they could go into effect
in two to three months' time.
http://feedproxy.google.com/~r/cnet/tcoc/~3/79EnxFs0wxU/
More Info: http://www.cybertelecom.org/ci/neutralnprm.htm

Massive Facebook Cybersquatting Lawsuit Fails to Stop Bidding on
Facebopok.com, Cybersquatting & Domain Disputes
Cybersquatting lawsuit not enough to protect typo domain: Despite
Facebook's cybersquatting lawsuit effort, the typo domain
Facebopok.com sold for $1,999 on SnapNames.com, according to
TheDomains.com. Facebopok.com forwards to f-questionnaire.com, which
is clearly a counterfeit site using the same colors, font...
http://feedproxy.google.com/~r/typepad/traverselegal/domainnamedispute/~3/-wmADMIuEHc/massive-facebook-cybersquatting-lawsuit-fails-to-stop-bidding-on-facebopokcom-1.html
More Info: http://www.cybertelecom.org/dns/acpa.htm

IPv6 Transitional Uncertainties, CircleID
The telecommunications industry has been around for quite some time.
Whether you take it as a starting date the first efforts with the
wired telegraph in the 1830's, or the telephone in the 1870's, this
industry has been around for quite a long time. During this periods it
has made huge
http://www.circleid.com/posts/ipv6_transitional_uncertainties/
More Info: http://www.cybertelecom.org/dns/ipv6.htm

AT&T Sticking to T-Mobile Claims Nobody Believed Last Time - Still
Insists Deal Creates Jobs, Creates Adorable Puppies, DSLReports
Aside from the wide variety of organizations who take AT&T cash in
exchange for parroting their lobbyist's talking points, AT&T has had a
hell of a time getting anyone to believe their claimed benefits of the
$39 billion T-Mobile acquisition. That's in large part because few if
any of the supposed benefits -- be they job creation or network
expansion related -- are true. However, despite this skepticism and
now DOJ opposition
http://www.dslreports.com/shownews/ATT-Sticking-to-TMobile-Claims-Nobody-Believed-Last-Time-116091
More Info: http://www.cybertelecom.org/industry/att.htm

AT&T Brings Out Its Dead -- T-Mobile, PK
Well, of course AT&T is pissed. Wouldn't you be?
http://feeds.publicknowledge.org/~r/publicknowledge-main/~3/YFQXrtRfKmo/att-brings-out-its-dead-t-mobile
More Info: http://www.cybertelecom.org/industry/att.htm

AT&T responds to DoJ lawsuit: T-Mobile deal a boon to consumers, Ars Technica
As promised, AT&T—jointly with T-Mobile and Deutsche Telekom—has filed
its response to last week's lawsuit blocking its proposed merger with
T-Mobile. The Department of Justice laid out its
http://arstechnica.com/tech-policy/news/2011/09/att-files-predictable-response-to-t-mobile-merger-lawsuit.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss
More Info: http://www.cybertelecom.org/industry/att.htm

Epic Chart of Mobile Patent Suing, Givememind
Reuters has posted this infographic on the patent related suits
between mobile device component manufacturers. As you can see Apple is
or was involved in a a lot of lawsuits. Oh Apple…
http://www.givememind.com/epic-chart-of-mobile-patent-suing-infographic/
More Info: http://www.cybertelecom.org/ip/

JSTOR Freely Releases Public Domain Papers That Greg Maxwell Already
Freed, Techdirt
You may recall that following the indictment of Aaron Swartz for
downloading some JSTOR papers, a guy named Greg Maxwell decided to
upload 33GBs of public domain papers from JSTOR and make them
available via The Pirate Bay. He had the papers for a while, but was
afraid that he'd get legally harassed for distributing them. However,
it appears the opposite has happened. Copycense points us to the news
that
http://www.techdirt.com/articles/20110912/10132515906/jstor-freely-releases-public-domain-papers-that-greg-maxwell-already-freed.shtml
More Info: http://www.cybertelecom.org/ip/copyright.htm

Alicia Hoffer, A Matter of Access: How Bypassing DRM Does Not Always
Violate the DMCA, 7 Wash. J.L. Tech. & Arts 13
In the last decade, several federal circuit courts have applied the
anti-circumvention provisions of the Digital Millennium Copyright Act
(DMCA) to determine what forms of unauthorized access to copyrighted
work are prohibited. Courts have considered Digital Rights Management
(DRM) disputes concerning access to both copyrighted digital-media and
manufactured products.
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1049/7WJLTA013.pdf?sequence=1
More Info: http://www.cybertelecom.org/ip/dmca.htm

Tracking the Trackers: Self-Help Tools, Center for Internet and Society
A number of technologies have been touted to offer consumers control
over third-party web tracking. This post reviews the tools that are
available and presents empirical evidence on their effectiveness. Here
are the key takeaways:
http://cyberlaw.stanford.edu/node/6730
More Info: http://www.cybertelecom.org/privacy/

Court Rules that Warrant Is Required for Stored Cell Site Location
Information, CDT
A Federal District Court in New York ruled on August 22, 2011 that a
warrant is required for law enforcement access to stored cell site
location information generated by the operation of a cellular phone.
Judge Nicholas G. Garaufis rejected the government's application for
an order under
http://cdt.org/blogs/greg-nojeim/129court-rules-warrant-required-stored-cell-site-location-information
More Info: http://www.cybertelecom.org/security/bigbrother.htm

Two FCC Commissioners Signal Support for Extension of Outage Reporting
to VoIP, Telecom Law Monitor
Yesterday, the FCC held its "Workshop/Webinar" on the pending proposal
to extend the outage reporting requirements to interconnected VoIP and
to broadband service providers. We've noted several times that the
FCC staff appears to be in favor of extending these rules. At
yesterday's workshop, two FCC Commissioners made statements that also
signal their support.
http://feeds.lexblog.com/~r/TelecomLawMonitor/~3/JaDMiGpNdFA/
More Info: http://www.cybertelecom.org/voip/fcc.htm

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Website :: www.cybertelecom.org
Blog :: cybertelecom.blogspot.com
Delicious :: http://del.icio.us/rcannon100/zxc
Twitter & Facebook :: Cybertelecom
Google Group :: cybertelecom-l

AUP :: www.cybertelecom.org/cybert.htm#aup
Cybertelecom is Off-the-Record. Otherwise play nicely.

Link to us! www.cybertelecom.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

9.9 :: Decries :: More Testing :: Getting to Yes :: Moral Panic Police :: Voodoo Economics :: It was a dumb idea :: Apple Police ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================
Good friends we had Oh good friends we've lost
Along the way hey.
In this great future,
You can't forget your past so dry your tears I say
- Bob Marley, No Woman No Cry

GOP decries FCC's conditional approval of LightSquared wireless plan, WAPO
Republicans questioned Thurs­day why the Federal Communications
Commission fast-tracked an initial approval for a company —
well-connected among Democrats — to provide cellphone service through
satellites, a technology that other agencies say disrupts Global
Positioning System devices, hurricane-tracking systems, and military
and commercial airlines.
http://www.washingtonpost.com/business/technology/gop-decries-fccs-conditional-approval-of-lightsquared-wireless-plan/2011/09/08/gIQA3W5SDK_story.html
More Info: http://www.cybertelecom.org/broadband/gps.htm

Lawmakers call for more testing for LightSquared, The Hill
Government officials and lawmakers at a House Science Committee
hearing Thursday said more testing is needed of LightSquared's
proposed wireless network because it could interfere with Global
Positioning System devices, including those used to track hurricanes
and other weather patterns.
http://thehill.com/blogs/hillicon-valley/technology/180389-lawmakers-calls-for-more-testing-for-lightsquared
More Info: http://www.cybertelecom.org/broadband/gps.htm

Getting to Yes: Finding a Fix to ICC-USF, Verizon
Broken policy requires level-headed reforms that advance a greater
good. As we have all painfully seen this year in Washington, this is
easier said than done.
http://policyblog.verizon.com/BlogPost/826/GettingtoYesFindingaFixtoICC-USF.aspx
More Info: http://www.cybertelecom.org/broadband/rcomp.htm

Sex, Drugs... And Facebook? Moral Panic Police Blaming Social Networks
For Kids Being Kids, Techdirt
Ah, the moral panic police are out in force yet again. A recent report
from the "National Center on Addiction and Substance Abuse" is getting
some attention for a study which claims that teens who spend more time
on social networking sites like Facebook are five times more likely to
drink, smoke and take drugs. The study also found that kids who watch
reality shows are also more likely to take drugs as well. And, of
course, they seem to automatically assume the causal relationship is
in that direction:
http://www.techdirt.com/articles/20110901/10004815766/sex-drugs-facebook-moral-panic-police-blaming-social-networks-kids-being-kids.shtml
More Info: http://www.cybertelecom.org/cda/child.htm

Paxfire Sues The Lawyers And Individual Who Filed A Class Action
Lawsuit Over Its Search Redirects, Techdirt
Well, well. Following a research paper that claimed that a company
named Paxfire was teaming up with some ISPs to hijack search terms and
take people directly to certain websites, a class action lawsuit was
quickly filed. Paxfire wasted little time in responding angrily that
the basis of the lawsuit was completely wrong, and saying that it
would seek sanctions against the lawyers for filing it in the first
place. Now the company has
http://www.techdirt.com/articles/20110906/03371515808/paxfire-sues-lawyers-individual-who-filed-class-action-lawsuit-over-its-search-redirects.shtml
More Info: http://www.cybertelecom.org/ci/neutralnot.htm

Apps for Communities- Reminder to submit entries, FCC
It's the final days of summer and the Apps for Communities entry
deadline's been extended until October 3, 2011. Thanks for all those
who've already submitted; our judges are looking forward to reviewing
your apps. To enter, apply via the Challenge.gov portal and add a link
to your team's fully functioning app or demonstration and the source
code.
http://www.fcc.gov/blog/apps-communities-reminder-submit-entries
More Info: http://www.cybertelecom.org/ci/neutralnprm.htm

Cole C. Hardy, Twitter's Trademark Problems: Is the Anticybersquatting
Consumer Protection Act Outdated?, JMLS Rev IP Law
Under the Lanham Act there is no remedy for individuals when imposters
register user names with corresponding post-domain paths containing
protected trademarks on social network websites. While Twitter
temporarily experimented with its own verification
http://www.jmripl.com/issues/article/253
More Info: http://www.cybertelecom.org/dns/acpa.htm

Gregg M Barbakoff, NO SHOES, NO SERVICE? WHY CYBERSQUATTING HAS
OUTGROWN THE INTERNATIONAL SHOE FRAMEWORK FOR PERSONAL JURISDICTION,
AND THE NEED FOR LEGISLATIVE REFORM, 7th Cir. Rev.
At a time when "email" was simply a misspelled word, Chief Justice
Warren's opinion in Hanson v. Denckla warned that advancements in
communication and travel must not be read as signaling "the eventual
demise of all restrictions on . . . personal jurisdiction."
http://www.kentlaw.edu/7cr/v6-2/barbakoff.pdf
More Info: http://www.cybertelecom.org/dns/acpa.htm

"Do not complicate routing security with Voodoo Economics", IGP
That was the eye-catching subject line in a recent note from Randy
Bush to the North American Network Operators Group (NANOG) about
secure Border Gateway Protocol (S-BGP). His note critiqued a paper,
Let the Market Drive Deployment: A Strategy for Transitioning to BGP
Security, which was presented recently at SIGCOMM and NANOG meetings.
The paper argued that under certain conditions, the transition to
http://feedproxy.google.com/~r/IGPBlog/~3/2yQ7GVd2p-A/4894404.html
More Info: http://www.cybertelecom.org/dns/bgp.htm

House Panel Demands WikiLeaks-Proof Pentagon, Wired
The Pentagon has labored for months to lock down its data from
WikiLeaks. Now Congress is stepping in to demand it finish the job --
in about, oh, a year and a half. A small section of the 2012 defense
bill, under consideration Wednesday by the House Armed Services
Committee, requires the Defense Department to put ...
http://feeds.wired.com/~r/wired/politics/~3/MxEp00N-2jE/house-panel-demands-a-wikileak-proof-pentagon
More Info: http://www.cybertelecom.org/egov/

Yahoo fires chief executive Bartz, BBC
Yahoo's chief executive Carol Bartz is fired by the internet company
after two-and-a-half years in the top job.
http://www.bbc.co.uk/go/rss/int/news/-/news/business-14816077
More Info: http://www.cybertelecom.org/industry/yahoo.htm

The PROTECT-IP ACT: circumventing free speech in the name of old
revenue streams, JMLS Rev IP Law
My Chinese friends would look side to side before speaking, perhaps
ensuring that a Party member was not within earshot, and wistfully
call it "leaping the wall." They were speaking of circumventing the
Great Chinese Firewall, usually through VPN encryption. However, I
called it a royal pain. In the first week of my two month stay in
http://www.jmripl.com.php5-10.dfw1-2.websitetestlink.com/blog/post/10
More Info: http://www.cybertelecom.org/ip/copyright.htm

"It was a dumb idea": newspaper chain fires copyright troll
Righthaven, Ars Technica
The new chief executive of MediaNews Group, publisher of the Denver
Post and 50 other newspapers, said it was "a dumb idea" for the
nation's second-largest newspaper chain to sign up with copyright
troll Righthaven.
http://arstechnica.com/tech-policy/news/2011/09/it-was-a-dumb-idea-newspaper-chain-fires-copyright-troll-righthaven.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss
More Info: http://www.cybertelecom.org/ip/copyright.htm

Ian Rubenstuunk, The Throw Down Over Takedowns: An Analysis of the
Lenz Interpretation of 17 U.S.C. § 512(f), JMLS Rev IP Law
Recently, a YouTube user and mother of two, Stephanie Lenz, filed a
lawsuit against Universal Music Corporation which had the potential
for broad impact on the internet. Everyone from politicians, to
teachers, to musical artists could have gained more
http://www.jmripl.com/issues/article/254
More Info: http://www.cybertelecom.org/ip/dmca.htm

Yochai Benkler, A Free Irresponsible Press: Wikileaks and the Battle
over the Soul of the Networked Fourth Estate, Harvard CLLR
[I]t is very necessary that we should not flinch from seeing what is
vile and debasing. There is filth on the floor, and it must be scraped
up with the muckrake; and there are times and places where this
service is the most needed of all
http://harvardcrcl.org/wp-content/uploads/2011/08/Benkler.pdf
More Info: http://www.cybertelecom.org/media/news.htm

Google's Green Computing: Efficiency at Scale Sept 2011, Google
It's common to hear about new data centers being built, and it may
seem as if the energy used by "the cloud" is a growing problem.
However, services provided by the cloud can be remarkably efficient.
In many cases, data centers hosting cloud services are more efficient
than the in-house office servers they replace. These efficiency gains
come from maximizing server
http://static.googleusercontent.com/external_content/untrusted_dlcp/www.google.com/en/us/green/pdfs/google-green-computing.pdf
More Info: http://www.cybertelecom.org/notes/cloud.htm

How cloud-based Gmail is energy efficient, Gigaom
Google says switching to Gmail can be close to 80 times more
energy-efficient for an organization than in-house email, particularly
for smaller companies. On Wednesday, the search engine giant unveiled
a report looking into just how much energy can be saved by
organizations using Google's cloud-based Gmail compared to companies'
own locally hosted email.
http://feedproxy.google.com/~r/OmMalik/~3/rwb5RX_JeZM/
More Info: http://www.cybertelecom.org/notes/cloud.htm

Tracy A. Steindel, A Path Toward User Control of Online Profiling, MTTLR
Online profiling is "the practice of tracking information about
consumers' interests by monitoring their movements online."1 A primary
purpose of online profiling is to "deliver advertising tailored to the
individual's interests," a practice known as online behavioral
advertising (OBA)
http://www.mttlr.org/volseventeen/steindel.pdf
More Info: http://www.cybertelecom.org/privacy/

Police investigating accusations in bizarre lost iPhone 5 case, Ars Technica
Apple and possibly some San Francisco police officers may have
overstepped legal bounds in attempting to retrieve yet another missing
iPhone prototype that was reportedly left behind at a San Francisco
bar. The SFPD has now begun an internal investigation into allegations
that officers were involved in a late July search of a San Francisco
home where Apple had apparently tracked the missing device.
http://arstechnica.com/apple/news/2011/09/sfpd-investigating-involvement-in-bizarre-case-of-lost-iphone-prototype.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss
More Info: http://www.cybertelecom.org/security/bigbrother.htm

SF police launch probe into iPhone search, CNET
The San Francisco Police Department is looking into how officers
assisted Apple in searching for an iPhone prototype.
http://feedproxy.google.com/~r/cnet/tcoc/~3/ykBMC0G7Cn8/
More Info: http://www.cybertelecom.org/security/bigbrother.htm

Toward a Standard Benchmark for Computer Security Research, CMU
Unlike benchmarks that focus on performance or reliability
evaluations, a benchmark for computer security must necessarily
include sensitive code and data. Because these artifacts could damage
systems or reveal personally identifiable information
http://www.ece.cmu.edu/~tdumitra/public_documents/dumitras11wine.pdf
More Info: http://www.cybertelecom.org/security/crime.htm

Zen and the Constitutionality of Twitter 'Cyberstalking', Citizens
Media Law Project
If you thought a spat between Buddhists couldn't devolve into a
federal cyberstalking case of dubious constitutionality, consider the
following.
http://feedproxy.google.com/~r/CitizenMediaLawProject/~3/ZtvLzJ7csZE/zen-and-constitutionality-twitter-cyberstalking
More Info: http://www.cybertelecom.org/security/stalking.htm

VoIP Confusion, AT&T
Reactions to the submission of the ABC Plan and the announcement of
the unprecedented joint framework for reform have been overwhelmingly
positive. I think it's fair to say that virtually everyone agrees with
the premises that we must transform universal service into a program
focused on broadband, not POTS (plain old telephone service), and we
must, at the same time, reform intercarrier compensation in a
http://attpublicpolicy.com/fcc/voip-confusion/
More Info: http://www.cybertelecom.org/voip/fcc.htm

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Website :: www.cybertelecom.org
Blog :: cybertelecom.blogspot.com
Delicious :: http://del.icio.us/rcannon100/zxc
Twitter & Facebook :: Cybertelecom
Google Group :: cybertelecom-l

AUP :: www.cybertelecom.org/cybert.htm#aup
Cybertelecom is Off-the-Record. Otherwise play nicely.

Link to us! www.cybertelecom.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

FCC Extds Deadline for Nominations for Open Internet Advisory Committee

The FCC has extended the deadline for nominations to the Open Internet Advisory Committee until October 1.  Here is the notice: 

On June 30, 2011, the Federal Communications Commission (FCC or Commission) issued a public notice seeking nominations for membership on the Open Internet Advisory Committee (OIAC), which is discussed in the Commission’s Order on Preserving the Open Internet (Order). The original deadline for nominations was September 1, 2011.3 By this Public Notice, the Commission extends the deadline to submit nominations through October 1, 2011. The Commission should receive nominations no later than this date. There is no change in the procedures for submitting nominations, but the procedures are again set forth below for convenience.

The OIAC will be a Federal Advisory Committee that will assist the Commission “in tracking developments with respect to the freedom and openness of the Internet, in particular with respect to technical standards and issues relating to mobile broadband and specialized services.” The OIAC is to be comprised of “consumer advocates; Internet engineering experts; content, application, and service providers; network equipment and end-user device manufacturers and suppliers; investors; broadband service providers;” and others, as described below.

OIAC MISSION

The OIAC will aid in tracking and evaluating the effects of the Commission’s Open Internet rules. Specifically, it is anticipated that “[t]he Committee will observe market developments regarding the freedom and openness of the Internet and will focus in particular on issues addressed in the FCC’s Open Internet rules, such as  transparency, reasonable network management practices, differences in treatment of fixed and mobile broadband services, specialized services, technical standards, and the state of competition.”

MEMBERSHIP
 
The Commission seeks nominations for membership on the OIAC from the following types of groups and individuals:

•  Consumers, consumer advocates, and/or organizations representing consumer interests;
• Internet engineering experts;
• Providers and developers of online content, applications, or services;
• Network equipment providers, developers, manufacturers, and suppliers;
• End-user device developers, manufacturers, and suppliers;
• Investors in Internet-related technologies, services, and products, including investors in broadband providers and/or online content, application, and services providers;
• Broadband Internet access service providers; and
• Other individuals with appropriate expertise.

In addition, all applicants are advised that the Commission adheres to the President’s policy, as announced in his memorandum of June 18, 2010, “Lobbyists on Agency Boards and Commissions,” prohibiting federally registered lobbyists from serving on federal agencies’ advisory boards and committees. Registered lobbyists are thus ineligible to serve as members or representatives of members of the OIAC. Subject to this limitation, the Chairman of the Commission will appoint the members of the OIAC to serve on the Committee for a minimum period of two years. The Chairman also will appoint a member of the Commission’s staff to serve as the Designated Federal Officer for the OIAC, who will moderate and direct its work, including approving the creation of subcommittees, as appropriate. 

NOMINATIONS AND DEADLINE

Nominations for OIAC membership should not exceed two pages, and should include the nominee’s name, title, and organization, if appropriate, as well as the nominee’s postal address, e-mail address, and telephone number. The person or entity submitting the nomination should also include a statement of the nominee’s specific expertise relevant to the OIAC, the specific issues among those listed above that are of interest to the entity submitting the nomination or to the nominee individually, and a description of the nominee’s qualifications to serve on the OIAC. Individuals may self-nominate; be nominated by an advocacy organization, employer, trade association, or other entity to serve on such entity’s behalf; or be nominated by a third party. Nominations should indicate whether the nominee would be appointed for his or her own expertise and individual views, or whether the nominee would be serving in a representative capacity on behalf of an entity. If self-nominating, the nominee should include a statement indicating a willingness to serve on the Committee for a two-year term of service, and a commitment to attend approximately two (2) one-day meetings per year in Washington, D.C. A sample nomination form is attached and may be used, but is not required. Nominations submitted by a third party should include as much of the above information as possible. Nominations may be sent via e-mail to OIAC@fcc.gov or via U.S. mail to the Federal Communications Commission, Consumer and Governmental Affairs Bureau, Attn: Deborah Broderson, 445 12th Street, S.W., Washington, D.C. 20554. We strongly encourage submission by e-mail, in part because, due to the extensive security screening of incoming mail since September 11, 2001, delivery of mail sent to the Commission may be delayed. FCC staff will send an email acknowledging receipt of any nomination received by e-mail.

Please note that this Notice is not intended to be the exclusive method by which the Commission will solicit nominations and expressions of interest to identify qualified candidates. However, all candidates for membership on the OIAC will be subject to the same evaluation criteria.

APPOINTMENTS 

The Commission will publish a notice in the Federal Register announcing the appointment of OIAC members and the first meeting of the Committee.

FOR FURTHER INFORMATION CONTACT: Deborah Broderson, Consumer and Governmental Affairs Bureau, FCC, Deborah.Broderson@fcc.gov, 202-418-0652.

Released:  08/31/2011.  FCC EXTENDS DEADLINE FOR MEMBERSHIP NOMINATIONS
FOR OPEN INTERNET ADVISORY COMMITTEE BY THIRTY DAYS. (DA No.  11-1485).
(Dkt No 09-191 07-52 )  Extended deadline for submitting nominations for the Open Internet Advisory Committee from Sept. 1, 2011 to Oct. 1, 2011. GEN . Contact:  Deborah Broderson at (202) 418-0652, email: Deborah.Broderson@fcc.gov
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1485A1.doc
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1485A1.pdf
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1485A1.txt

9.6 :: What Happened :: Slapped :: Fake :: Compromised :: Fiasco :: Suspended :: Strangled :: Unfounded and Ridiculous :: Warned ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================

Genechowski: Expand broadband to create jobs, Internet2
no description
http://www.usatoday.com/news/opinion/forum/story/2011-08-24/FCC-chairman-Expand-broadband-to-create-jobs/50121002/1
More Info: http://www.cybertelecom.org/broadband/

In My Humble Opinion: Broadband Developments in 12-18 Months, USTelecom
With Steve Jobs stepping down at Apple and Google acquiring Motorola
Mobility, It's very difficult to guess what is going to happen with
our broadband experiences in the next 12 to 18 months…. Or is it? In
some cases, it's very easy to envision several developments by the
positioning of several prominent names in the broadband industry. Yes,
we already have smartphones and tablet devices that are threatening
the
http://www.ustelecom.org/Video_Blogs/Blog/index.php/2011/09/01/in-my-humble-opinion-broadband-developments-in-12-18-months/
More Info: http://www.cybertelecom.org/broadband/

Cable Operators Deliver the Fastest Broadband Speeds, Cable Tech Talk
Via a new PC Magazine study, cable has once again shown to deliver the
fastest broadband speeds to the most homes across the US. Cox,
Comcast and Charter take the first three spots, with other cable
operators not far behind. As we've noted previously, cable broadband
is available to 93% of U.S. households, offering speeds of 5 Mbps or
faster to more than 90% of U.S. households
http://www.cabletechtalk.com/cable-companies/comcast/2011/09/02/cable-operators-deliver-the-fastest-broadband-speeds/
More Info: http://www.cybertelecom.org/broadband/cable.htm

Man Facing 75 Years In Jail For Recording The Police; Illinois
Assistant AG Says No Right To Record Police, Techdirt
Following on the news of a court in Massachusetts stating, clearly,
that arresting someone for recording the police is a 1st Amendment
violation, you'd hope that we'd start hearing fewer such stories. And
yet, as Nick Burns alerts us (followed by a few more of you), over in
Illinois, a guy named Michael Allison appears to be facing 75 years in
prison for recording the police. Similar to other cases, the police
charged him with
http://www.techdirt.com/articles/20110902/04163415790/man-facing-75-years-jail-recording-police-illinois-assistant-ag-says-no-right-to-record-police.shtml
More Info: http://www.cybertelecom.org/cda/firsta.htm

Internet Adds More Than Five Million Domain Names in Second Quarter, Verisign
More than five million domain names were added to the Internet in the
second quarter of 2011, bringing the total number of registered domain
names to more than 215 million worldwide across all domains, according
to the latest Domain Name Industry Brief, published by VeriSign, Inc.
(NASDAQ: VRSN), the trusted provider of Internet infrastructure
services for the networked world.
https://press.verisign.com/easyir/customrel.do?easyirid=AFC0FF0DB5C560D3&version=live&prid=793586&releasejsp=custom_97
More Info: http://www.cybertelecom.org/dns/

Domain Name Registrations Reach 215 Million, 5 Million Added in Q2, CircleID
The latest Domain Name Industry Brief published by Verisign reports
more than 5 million domain names were added to the Internet in the
second quarter of 2011, bringing the total number of registered domain
names to more than 215 million worldwide across all domains. The
increase of 5.2 million domain names marks a growth rate of 2.5
percent over the first quarter. Registrations have grown by more than
16.9 million, or 8.6 percent, since the second quarter of 2010.
http://www.circleid.com/posts/domain_name_registrations_reach_215_million_5_million_added_in_q2/
More Info: http://www.cybertelecom.org/dns/

It's all about open government, Crawford
I meant it when I said I'm focused on a new project these days. I'm
spending all my non-teaching and non-book-revising time learning about
open government efforts around the world. The DOJ announcement
yesterday was just such a big moment – really, the first big positive
telecom competition policy moment since, I don't know, the 1996 Act
[don't shoot me] – that I couldn't resist writing about it.
http://scrawford.net/blog/its-all-about-open-government/1505/
More Info: http://www.cybertelecom.org/egov/

Another front opens in Cisco's war for survival, Gigaom
Cisco's ongoing retrenchment in its core markets looks like it may
need a boost when it comes to enterprise telephony systems. The
communications giant has lost market share in the IP telephone market
to Avaya in the last few quarters, much like Aruba is eating Cisco's
lunch in the Wi-Fi equipment market.
http://feedproxy.google.com/~r/OmMalik/~3/rs7gZ7SC8Fo/
More Info: http://www.cybertelecom.org/industry/

AT&T to Woo and Fight Justice Department on Antitrust Lawsuit, NYT
AT&T has vowed to do battle with the Justice Department in court while
it tries to cozy up to antitrust regulators by agreeing to shed assets
and submit to monitoring.
http://feeds.nytimes.com/click.phdo?i=677a7a70675aeb702abf5c5433f21b2f
More Info: http://www.cybertelecom.org/industry/att.htm

AT&T Statement on Department of Justice Action, AT&T
AT&T August 31, 2011 statement on Department of Justice Action
http://feedproxy.google.com/~r/AttCorporateRssFeeds/~3/jBkHxchyF64/press-room
More Info: http://www.cybertelecom.org/industry/att.htm

Harold and Gigi on AT&T and T-Mobile: What Happened and What Happens Next, PK
Public Knowledge President Gigi Sohn and Public Knowledge Legal
Director Harold Feld discuss why the Department of Justice decided to
challenge the AT&T/T-Mobile merger and what happens now.
http://feeds.publicknowledge.org/~r/publicknowledge-main/~3/4BLaBvj4qTo/harold-and-gigi-att-and-t-mobile-what-happend-and-
More Info: http://www.cybertelecom.org/industry/att.htm

What's At Stake in United Stated v. AT&T, Inc.? The Future of
Antitrust. (Part I), Tales From the Sausage Factory
The Department of Justice (DoJ) Antitrust Division challenge to the
AT&T/T-Mo deal, United States v. AT&T, Inc., in addition to being a
huge deal for us in the telecom world, is probably the single most
important merger review case…
http://tales-of-the-sausage-factory.wetmachine.com/content/whats-at-stake-in-united-stated-v-att-inc-the-future-of-antitrust-part-i
More Info: http://www.cybertelecom.org/industry/att.htm

Comcast Gets Wrist Slapped For Misleading Ads - Can't Claim It's
Faster Than FiOS With Better HD Quality, DSLReports
The National Advertising Division of the Better Business Bureau is
effectively a self-regulatory agency that tries to settle disputes
over misleading ads before handing them off to the FTC for action (or
inaction as the case often is). The agency has been very busy of late
cracking down on misleading advertising by both cable and phone
companies suggesting that core fiber is the same as last mile fiber.
This week the
http://www.dslreports.com/shownews/Comcast-Gets-Wrist-Slapped-For-Misleading-Ads-115977
More Info: http://www.cybertelecom.org/industry/comcast.htm

Fake certificate risk to Iranians, BBC
Fresh evidence has emerged that stolen web security certificates were
being used to spy on people in Iran.
http://www.bbc.co.uk/go/rss/int/news/-/news/technology-14789763
More Info: http://www.cybertelecom.org/intl/iran.htm

Nearly 300,000 Iranian IP addresses likely compromised, CW
Close to 300,000 unique IP addresses from Iran requested access to
google.com using a rogue certificate issued by Dutch digital
certificate authority DigiNotar, according to an interim report by
security firm, Fox-IT, released on Monday.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/nzHVhldoEXg/Nearly_300_000_Iranian_IP_addresses_likely_compromised
More Info: http://www.cybertelecom.org/intl/iran.htm

Resetting the Righthaven Fiasco (July-August 2011 Quick Links, Part
1), Tech & Marketing Law Blog
The Righthaven empire is in tatters. It hasn't expanded its inventory
of cases for months (no new...
http://blog.ericgoldman.org/archives/2011/09/resetting_the_r.htm
More Info: http://www.cybertelecom.org/ip/copyright.htm

Twitter Keeps Suspending Accounts Based On Highly Questionable DMCA
Claims, Techdirt
Last year, we wrote about how Twitter was receiving a ton of DMCA
takedown notices. That seemed pretty strange to us, because with such
short messages, there's little that could be covered by copyright. For
the most part, such notices seemed like an abuse of the DMCA,
literally claiming that a link to a URL was infringing itself, which
is a pretty big stretch. A link by itself hardly passes the inducement
test. Twitter, as we
http://www.techdirt.com/articles/20110825/03485715680/twitter-keeps-suspending-accounts-based-highly-questionable-dmca-claims.shtml
More Info: http://www.cybertelecom.org/ip/dmca.htm

Online video finally chipping away at broadcast TV, Gigaom
A quarter of people in countries with access to high-speed broadband
are streaming video to their TV, although more than 80 percent still
watch broadcast television as well. But that's slowly beginning to
change: According to survey data from Ericsson, there's been a slight
decrease from 2010 to 2011 in the percentage of folks watching
broadcast TV, while Internet-
http://feedproxy.google.com/~r/OmMalik/~3/PMxzrHHwViM/
More Info: http://www.cybertelecom.org/media/video.htm

The FCC Is Watching You . . . or At Least Your Website, CommLawBlog
Media Bureau staff continues to check station websites for compliance
http://feeds.lexblog.com/~r/CommLawBlog/~3/R-qqwIYUPKg/
More Info: http://www.cybertelecom.org/media/video.htm

Starz, Netflix And How Industry Jealousies Strangle A Golden Goose, Techdirt
In a somewhat surprising move, Starz has decided to not renew its
contract with Netflix. Many other TV channels and movie studios are
sure to follow as their current contracts end. Even though Netflix is
somewhat braced for this, Starz was one of the few providers willing
to supply newer titles, thanks to its deals with Disney and Sony
Pictures. Not only that, but Netflix's licensing deal with Starz was
somewhat of a coup with its
http://www.techdirt.com/articles/20110901/20203315773/starz-netflix-how-industry-jealousies-strangle-golden-goose.shtml
More Info: http://www.cybertelecom.org/media/video.htm

How Cloud Computing is Revolutionizing Education, CISCO
no description
http://newsroom.cisco.com/press-release-content?type=webcontent&articleId=460910
More Info: http://www.cybertelecom.org/notes/cloud.htm

Kundra: Cloud Concerns re: Privacy "Unfounded and Ridiculous", Daily Dashboard
Former U.S. Chief Information Officer Vivek Kundra is sounding off on
governments' reluctance to adopt cloud computing due to privacy and
information security concerns, noting the U.S. government's
outsourcing of more than 4,700 systems "and yet when it comes to cloud
for some reason these fears are raised," reports The Australian. In
The New York Times, Kundra writes that "governments around the world
are wasting
https://www.privacyassociation.org/publications/2011_09_01_kundra_cloud_concerns_unfounded_and_ridiculous/#When:16:16:20Z
More Info: http://www.cybertelecom.org/notes/cloud.htm

Canadian ISP Sued for Handing Over Data to Thai Government, Geist
A U.S. citizen has filed a lawsuit against a Canadian ISP that shared
his personal information with the Thai government. Anthony Chai
posted anonymous comments criticizing the royal family and now faces
up to 15 years in prison for the comments.
http://feedproxy.google.com/~r/MichaelGeistsBlog/~3/sduFjbq6vTc/
More Info: http://www.cybertelecom.org/privacy/

EFF-Supported Bill Requiring Warrant for Cell Phone Searches Passes CA
Legislature, Goes to Gov. Brown, EFF
In May, we asked EFF members to write their California legislators and
urge them to support SB 914, a bill that requires the police to obtain
a search warrant before searching a recent arrestee's cell phone.
http://www.eff.org/deeplinks/2011/09/eff-supported-bill-requiring-warrant-cell-phone
More Info: http://www.cybertelecom.org/security/bigbrother.htm

Lost sales were not "loss" under the Computer Fraud and Abuse Act,
Internet Cases
Plaintiff and defendant had discussed a licensing arrangement whereby
defendant would provide certain of plaintiff's materials online. The
parties never entered into that agreement. But plaintiff claimed that
defendant went ahead and accessed the materials stored on plaintiff's
computer system, and thereby caused plaintiff to miss out on certain
sales in the business to business marketplace for the materials.
http://blog.internetcases.com/2011/09/05/lost-sales-were-not-loss-under-the-computer-fraud-and-abuse-act/
More Info: http://www.cybertelecom.org/security/crime.htm

DHS warns of planned Anonymous attacks, CW
The U.S. Department of Homeland Security today issued a somewhat
unusual bulletin warning the security community about the planned
activities of hacking collective Anonymous over the next few months.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/GNZzv-DedKY/DHS_warns_of_planned_Anonymous_attacks
More Info: http://www.cybertelecom.org/security/dhs.htm

Rockefeller and Hutchison to FCC: Take Necessary Steps to Secure
Communications Infrastructure During Emergencies, Senate Commerce
As the East Coast braced for the impending landfall of Hurricane
Irene, Chairman John D. (Jay) Rockefeller IV and Ranking Member Kay
Bailey Hutchison asked that the Federal Communications Commission
(FCC) work to make sure the nation's communications infrastructure is
secure during emergencies. In the letter sent Friday to FCC Chairman
Julius Genachowski, Rockefeller and
http://commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=b30092da-003c-48c3-8ec0-b50e7a17e9f3
More Info: http://www.cybertelecom.org/security/emergency.htm

FTC Testifies on Children's Identity Theft, FTC
The Federal Trade Commission today told the House Committee on Ways
and Means Committee Subcommittee on Social Security that, "Protecting
consumers – especially vulnerable consumers such as children – against
identity theft and its consequences is a critical component of the
Commission's consumer protection mission."
http://www.ftc.gov/opa/2011/09/childtheft.shtm
More Info: http://www.cybertelecom.org/security/idtheft.htm

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus
- e360 v. Spamhaus, CircleID
The lawsuit between e360 and Spamhaus was a long-running, tortured
affair, and it looks like it finally came to a close. With e360 being
awarded a whopping $3 in damages against Spamhaus. (Here's a link to
Ars Technica's recap of the oral argument, where Judge Posner blasted
e360's counsel: "This is just totally irresponsible litigation ... You
can't just come into a court with a fly-by-night, nothing company and
say 'I've lost $130 million.'")
http://www.circleid.com/posts/20110902_seventh_circuit_awards_e360_whopping_3_in_damages_against_spamhaus/
More Info: http://www.cybertelecom.org/spam/enforce.htm

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