ACPA Part 8: Sixty Seven Cases

These posts review the first 11 years of AntiCybersquatting Consumer Protective Act (ACPA) dispositive federal caselaw. Decisions were found by searching Google Scholar for the term "cybersquatting," reviewing cases cited by uncovered cases and literature, and tracking new cases through the use of Google Scholar Alerts using the terms "cybersquatting" and "15 U.S.C. § 1125(d)."

Preliminary Results

Some preliminary results:

• Total number of cases reviewed: 67 
• Percentage of cases where Trademark Owner (TMO) prevailed: 66%
• Percentage of cases where Domain Name Owner (DNO) prevailed: 34%
• Total factors considered all cases: 364
• Average number of factors considered in a case: 5.4
• Total factors in favor of DNO: 93 (26%) 
• Total factors in favor of TMO: 261 (72%)
• The number of cases that considered 9 or more factors: 22
• Fewest factors considered in a TMO winning case: 1

When the ACPA was first enacting, there was a flurry of cases. Then, for the next eight years, generally the number of ACPA cases hovered at small numbers. The year 2010 saw a spike in cases, but 2011 (8 months into the year) does not appear to be sustaining that spike.

 

DNOs have won on average 34% of the cases. In the initial year of litigation, TMO won all of the cases. Over time DNOs have fared progressively better, winning the majority of cases two out of the last three full calendar years. 

 Next: Failed Conspiracies

2.10 :: Crippled :: In a Suspect Move :: Map For Places You Wont Go :: No Mere Tiffs :: The Scorecard :: Deceptive, Dishonest :: No Patent for You! ::

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CyberTelecom News
Federal Internet Law and Policy
============================================
Microsoft isn't evil, they just make really crappy operating systems.
-Linus Torvalds

Smart Government Fixes for Lifeline, FCC
These past few months have been especially proud ones for me at the
Federal Communications Commission for one very simple reason: I have
had the privilege of being part of a team that put the principles of
smart government to work. Yesterday, the Commission released a
bipartisan Order comprehensively reforming the Lifeline program, the
culmination of months of effort to clean-up and modernize this vital
program
http://www.fcc.gov/blog/smart-government-fixes-lifeline

Frontier Lays Off FiOS Install Staff - Continuing Their "Dedication"
to FiOS, DSLReports
Frontier just got done swearing to the heavens they were dedicated to
the FiOS TV customers they acquired from Verizon, after socking those
customers with huge price hikes and whopping new $500 installation
fees. The company can't afford to be in the TV business or expand
fiber to the home services, but couldn't acknowledge
http://www.dslreports.com/shownews/Frontier-Lays-Off-FiOS-Install-Staff-118272

GPS air traffic navigation system would be crippled by LightSquared
network, Congress is told, Ars Technica
Airline industry representatives and a US transportation official told
members of Congress yesterday that LightSquared's planned 4G LTE
network would interfere with a GPS-based navigation system that
government and industry has invested $8 billion in.
http://arstechnica.com/tech-policy/news/2012/02/nextgen-air-traffic-navigation-system-would-be-crippled-by-lightsquared-network-congress-is-told.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

LightSquared asks FCC for stricter GPS gear standards, CNET
LightSquared is asking the FCC to impose stricter standards on GPS
equipment to ensure that its network can coexist with these GPS
devices.
http://feedproxy.google.com/~r/cnet/tcoc/~3/wIngIRH-jxg/

In a suspect move, LightSquared calls for GPS design standards, Gigaom
In its ongoing fight to launch its nationwide LTE service,
LightSquared on Wednesday Tuesday asked the Federal Communications
Commission to impose the first-ever standards on GPS device design,
claiming such requirements would allow GPS and its 4G network to
co-exist peacefully in the satellite bands. While LightSquared would
appear to be taking the middle path, the proposal smacks of a
political stunt.
http://feedproxy.google.com/~r/OmMalik/~3/MIWDDRZ_wuc/

The FCC map of places your mobile data plan won't work, Gigaom
The Federal Communications Commission is spearheading a big effort to
get rural Americans online, and to help, later this year carriers can
apply for a $300 million fund to bring wireless broadband to the
heartlands. Only it's not the heartlands, as the nifty interactive map
shows. The largest areas without 3G coverage are in the Western U.S.
http://feedproxy.google.com/~r/OmMalik/~3/jVxHsth_eng/

Verizon, AT&T Lobby to Weaken FCC Spectrum Authority - Duopoly
Protection Language Buried in Jobs Bill, DSLReports
Since 1993 the FCC has had the authority to place restrictions on
auctions or conditions on spectrum (like requiring auction winners
offer wholesale access) -- depending on the bidders' market dominance
and/or current spectrum holdings. As their spectrum and market
positions attest, neither AT&T and Verizon have been harmed by the
requirements. Still,
http://www.dslreports.com/shownews/Verizon-ATT-Lobby-to-Weaken-FCC-Spectrum-Authority-118302

Auctions Should Be Open, Not Closed, AT&T
"Auctions should be open, not closed. Any qualified carrier,
including those on today's letter, should have a chance to bid on any
spectrum available in an auction. This group, however, wants the FCC
to stack the deck in its favor. Congress is right to resist this
notion. In fact, what this group proposes could not be called an
auction with a straight face. These companies should be prepared to
compete in a fair and open auction, and should stop seeking a rigged
spectrum auction that would harm consumers and cost the Treasury
billions."
http://attpublicpolicy.com/wireless/auctions-should-be-open-not-closed/

State of the Internet in Q3 2011: Observations on Attack Traffic, Akamai
To say that Web-based security attacks are on the rise would be an
understatement. Consider this: in just the past three years, we've
seen an eye-popping 2,000% increase in the number of DDoS attack
incidents investigated on behalf of our customers.
http://feedproxy.google.com/~r/TheAkamaiBlog/~3/9HFR0gwjPzE/state-of-the-internet-in-q3-2011-observations-on-attack-traffic.html

Cisco to Issue Updated Mobile Internet Traffic Forecast and Host Panel
on Global Policy Implications of Surging Bandwidth Demand, CISCO
On Tuesday, Feb. 14 at 10 a.m. (GMT) at the Royal Opera Housein
London, Cisco will announce the latest findings of the Cisco Visual
Networking Index (VNI) forecast for global mobile Internet traffic.
The event will also include a panel discussing the implications of
surging bandwidth demands on service provider networks, consumers,
business services and policies for the radio spectrum.
http://newsroom.cisco.com/press-release-content?type=webcontent&articleId=668203

ACPA Part 7: Safe Harbor (no mere tiffs allowed), Cybertelecom
At the end of the AntiCybersquatting Consumer Protection Act nine
factors is the Safe Harbor Provision, which acts as a failsafe and
reiterates Congressional intent: Bad faith intent described under
subparagraph (A) shall not be found in any case in which the court
determines that the person believed and had reasonable grounds to
believe that the use of the domain name was a fair use or
http://feedproxy.google.com/~r/CybertelecomBlog/~3/kPHRaFh4QyU/acpa-part-7-safe-harbor-not-mere-tiffs.html

ACPA Part 6: The Scorecard, Cybertelecom
The courts reject the notion that they mechanically churn through the
9 Bad Faith Factors, allotting points to the different parties, adding
up the score, and declaring victory for the party with the highest
score. But hat is exactly what the courts have done. They have created
a scorecard, they go down the factors and they score points for either
the Trademark Owner
http://feedproxy.google.com/~r/CybertelecomBlog/~3/4IpHcWWTyH8/acpa-part-6-scorecard.html

Trustwave Admits It Issued A Certificate To Allow Company To Run
Man-In-The-Middle Attacks, Techdirt
We've pointed out for years that the whole structure of SSL
certificate-based security is open to attack via man-in-the-middle
attacks... if you can somehow get a certificate authority to grant you
a fake certificate. Of course, the protection against that was
supposed to be that a certificate authority wouldn't do that. But what
if one
http://www.techdirt.com/articles/20120208/03043317695/trustwave-admits-it-issued-certificate-to-allow-company-to-run-man-in-the-middle-attacks.shtml

FBI reveals 1991 probe of Steve Jobs, CW
The FBI today made public a background probe of Steve Jobs conducted
in 1991, when he was being considered by the George H. W. Bush
administration for a spot on the President's Export Council.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/o-wAselUfQI/FBI_reveals_1991_probe_of_Steve_Jobs

FBI file paints Steve Jobs as deceptive, dishonest, Globe
Newly released FBI interviews conducted in 1991 were part of a
background check for an appointment to the President's Export Council
during George H.W. Bush's administration
http://feedproxy.google.com/~r/TheGlobeAndMail-Technology/~3/GLjuygAMDRU/

The FBI's Steve Jobs File: Computing 'Genius,' Lousy GPA, Forbes
Guest post written by Connie Guglielmo
http://www.forbes.com/sites/ericsavitz/2012/02/09/the-fbis-steve-jobs-file-computing-genius-lousy-gpa/

AT&T Responds to Throttling Complaints - Says That 2 GB is Not the
Magic Number for Everyone, DSLReports
Earlier this week we noted how AT&T's waging a quiet war on those
"unlimited" data users it had agreed to grandfather when it eliminated
unlimited data back in 2010. One, those that legally jailbreak and use
unofficial tethering options are automatically being moved to metered
service as punishment for refusing to pay AT&T a fee for doing
nothing. Two,
http://www.dslreports.com/shownews/ATT-Responds-to-Throttling-Complaints-118292

AT&T data throttling prompts outcry, FierceBroadband
AT&T (NYSE: T) is not winning friends with its efforts to throttle
service to alleged data hogs that are grandfathered in on its
unlimited plans.
http://www.fiercebroadbandwireless.com/story/att-data-throttling-prompts-outcry/2012-02-08?utm_medium=rss&utm_source=rss

Federal court expedites case on Google privacy policies, WAPO
A federal court said Thursday that it would accelerate a lawsuit that
aims to punish Google for alleged privacy violations.
http://feeds.washingtonpost.com/click.phdo?i=c4acd709f0aaae7b5daaab3dd248bd04

EPIC sues FTC over Google privacy plan, CW
The Electronic Privacy Information Center has filed a lawsuit against
the Federal Trade Commission to force the agency to take action
against Google over planned changes in collecting personal data.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/Z8w0cK2SWCo/EPIC_sues_FTC_over_Google_privacy_plan

Level 3: Cowen Ups Rating, Level 3
Cowen analyst Colby Synesael this morning raised his rating on the
telecom services provider Level 3 to Outperform from Neutral.
http://www.forbes.com/sites/ericsavitz/2012/02/09/level-3-cowen-ups-rating/

Xbox 360 Maintains Lead in U.S. Console Market in January, Ends 2011
as No. 1 Console Worldwide, Microsoft
Kicking off 2012, Xbox 360 continues to lead the console market,
turning in another month as the best-selling console in the U.S.
http://blogs.technet.com/b/microsoft_blog/archive/2012/02/09/xbox-360-maintains-lead-in-u-s-console-market-in-january-ends-2011-as-no-1-console-worldwide.aspx

comScore Releases January 2012 U.S. Search Engine Rankings, comscore
released its monthly comScore qSearch analysis of the U.S. search
marketplace. Google Sites led the explicit core search market in
January with 66.2 percent of search queries conducted.
http://feedproxy.google.com/~r/comscore/~3/wpSOezQ8Jz0/comScore_Releases_January_2012_U.S._Search_Engine_Rankings

Wolfram Alpha unveils Pro service, BBC
The data-crunching site unveils a premium service that allows users to
upload data, photos and sounds for analysis.
http://www.bbc.co.uk/go/rss/int/news/-/news/technology-16926868

Supreme Court rules ISPs not subject to broadcast regulations, Globe
Court says Internet service providers just a mode of transmission, not
subject to same rules and levies as content originators
http://feedproxy.google.com/~r/TheGlobeAndMail-Technology/~3/QBLLyqrOmoA/

Supreme Court of Canada Rules ISPs Are Not Broadcasters, Geist
The Supreme Court of Canada has ruled that Internet providers are not
broadcasters for the purposes of the Broadcasting Act when they simply
transmit content to subscribers. The court noted "when providing
access to the Internet, which is the only function of ISPs placed in
issue by the reference question, they take no part in
http://feedproxy.google.com/~r/MichaelGeistsBlog/~3/CDfNFNrHMAk/

Indonesia bans website for the International Gay and Lesbian Human
Rights Commission, APC
The website for the International Gay and Lesbian Human Rights
Commission is the latest victim of censorship in Indonesia. It joins a
number of other LGBT rights organisations which have been blocked by
pornography filters.
http://www.apc.org/en/news/indonesia-bans-website-international-gay-and-lesbi

RIAA Whines About The Public Standing Up to Them - Insists That
SOPA/PIPA Opponents Were Duped by Evil Wikipedia, DSLReports
RIAA boss Cary Sherman penned an editorial in the New York Times this
week that's effectively a very large pout against the recent backlash
to both SOPA and PIPA. According to Sherman, opponents of the
universally-considered-awful laws (including thousands of websites and
technical experts in numerous fields) were engaged in a campaign of
"misinformation" when they were pointing out how the law effectively
created a system of website censorship while potentially breaking key
components of the Internet:
http://www.dslreports.com/shownews/RIAA-Whines-About-The-Public-Standing-Up-to-Them-118288

What the RIAA Won't Tell You: Users Matter, EFF
We really have to wonder when the message is going to sink in. On
January 18, millions of Internet users spoke out together in one of
the most profound and effective uses of technology to organize
political opposition in U.S. history, sending a clear message to
Congress that voters will not tolerate crippling of the Internet. But
big content remains tone deaf to this chorus of Internet users.
https://www.eff.org/deeplinks/2012/02/what-riaa-won%E2%80%99t-tell-you-users-matter-0

Latvia Freezes ACTA Ratification, Germany Won't Sign For Now, Geist
Latvia has become the latest European country to freeze ratification
of the Anti-Counterfeiting Trade Agreement and Germany has said it
will await the European Parliament vote before deciding whether to
sign the agreement. The moves comes as the mainstream media takes
increasing notice of the ACTA protests (coverage from the Economist
here) and continent-wide protests are planned for Saturday.
http://feedproxy.google.com/~r/MichaelGeistsBlog/~3/lqpnJNIB32E/

Meet Richard Mack, Republican challenger to SOPA's author, CNET
Richard Mack, a retired sheriff and constitutional conservative, is
hoping to use Rep. Lamar Smith's authorship of SOPA and an Internet
surveillance bill to pry him out of office.
http://feedproxy.google.com/~r/cnet/tcoc/~3/ZCRv-1gOOkw/

Boxee to Consumers: More Service Calls for You, Cable Tech Talk
Boxee should be applauded for their creativity. For years, they have
proudly touted their service as the ultimate answer for consumers who
want to "cut the cord" and cancel their cable or satellite service.
We disagree with their premise, but it's a free country.
http://www.cabletechtalk.com/cord-cutting/2012/02/09/like-waiting-boxee-is-looking-out-for-you/

TV 'cord cutters' and 'cord nevers' increase, finds Nielsen study, Lost Remote
A new report by Nielsen reveals a rise in homes with over-the-air TV
and a broadband connection, but no cable, satellite or IPTV service.
It's still a small segment of the overall U.S. population (5% of
households), it's grown 22.8% over the last year. While this group
still watches much more traditional TV than broadband-delivered video,
it watches half as much TV and streams twice as much video as the
general population.
http://www.lostremote.com/2012/02/09/cord-cutters-and-cord-nevers-increase-finds-tv-study/

FBI Puts Cloud Providers on Notice Over Security Rules, Wired
The FBI is taking a tough line on cloud vendors looking to do business
with U.S. law enforcement agencies, saying Tuesday that there would be
no compromise in its new rule that all such services comply with the
agency's Criminal Justice Information Systems (CJIS) security
requirements.
http://www.wired.com/cloudline/2012/02/fbi-cloud-security/

NIST Cloud Computing Videos Available Online, NIST
Video recordings of the Nov. 2-4, 2011 Cloud Computing Forum ampamp
Workshop IV hosted by the National Institute of Standards and
Technology (NIST) are now available for on-line viewing.The three-day
November meeting featured, among
http://www.nist.gov/itl/ssd/cloud-020712.cfm

Jury strikes down Eolas' 'Interactive Web' patent, CNET
Patent-holding company claimed a host of Web giants owed it hundreds
of millions in royalties for their use of online video streaming,
search suggestions, and other "interactive" elements on pages.
http://feedproxy.google.com/~r/cnet/tcoc/~3/n_o01lo6_bM/

Tim Berners-Lee In Court To Try To Prevent Patent Troll Eolas From
Patenting Key Web Concepts, Techdirt
Remember Eolas? We've written about this infamous patent troll many
times, mostly focusing on its big patent fight with Microsoft over the
idea of browser plugins -- a case it eventually settled. In 2009,
however, Eolas came back and basically sued the web, claiming that all
sorts of very basic web technologies were, in fact, infringing on a
brand new,
http://www.techdirt.com/articles/20120209/05030017708/tim-berners-lee-court-to-try-to-prevent-patent-troll-eolas-patenting-key-web-concepts.shtml

Eolas loses in Web patents claim against Google and others, CW
A jury in Texas gave the verdict that two patents of Eolas
Technologies that enable Internet browsers to host embedded
interactive applications were invalid, in a protracted legal battle
which involved top Internet companies like Google and Amazon.com.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/mSNG82WyLSE/Eolas_loses_in_Web_patents_claim_against_Google_and_others

Good call: Path apologizes, erases all lifted address book data from
servers, Gigaom
Path, the mobile app for cataloging your daily activities and sharing
them with a relatively small circle of contacts, came under serious
fire on Tuesday when it was discovered that Path's iPhone app imports
all of its users' address book data onto Path's own servers without
notification or asking permission. Not surprisingly, many people saw
this as a major breach of user trust.
http://feedproxy.google.com/~r/OmMalik/~3/K4FhLZpL-ho/

Your Online Privacy Is Worth Less Than A Six Pack Of Marshmallow Fluff, Forbes
Privacy utopians have long dreamed of a day when we would be paid for
giving up our data, and would get a slice of the profits that
companies make from collecting, storing, aggregating, remixing,
sharing, and selling our personal information. Well, utopians, the day
has arrived! Google is going to pay Chrome users who are willing to
http://www.forbes.com/sites/kashmirhill/2012/02/09/your-online-privacy-is-worth-less-than-a-six-pack-of-marshmallow-fluff/

Senate Cybersecurity Bill Nukes Privacy Protections, TLF
My seen-it-all cool was shaken yesterday when I examined how a Senate
cybersecurity bill would scythe down legal protections for privacy.
Anyone participating in government "cybersecurity exchanges" would
have nearly total immunity from liability under any law. No Privacy
Act, no ECPA, no E-Government Act, no contract law, no privacy torts.
The scuttlebutt is that Senator Reid (D-NV) may push this especially
hard as payback to the Internet for the SOPA/PIPA debacle.
http://feedproxy.google.com/~r/techliberation/~3/K638H2Xanps/

Time to Act on Companies Selling Mass Spy Gear to Authoritarian Regimes, EFF
On Wednesday, EFF will give recommendations to the European Parliament
for how to combat one of the most troubling problems facing democracy
activists around the world: the fact that European and American
companies are providing key surveillance technology to authoritarian
governments that is then being used to aid repression.
https://www.eff.org/deeplinks/2012/02/time-act-companies-selling-mass-spy-gear-authoritarian-regimes

FCC Clarifies USF Reform/Intercarrier Compensation Order, Telecom Law Monitor
On Friday, February 3, 2012, the FCC's Wireline Competition Bureau and
Wireless Telecommunications Bureau jointly released an order revising
and clarifying certain aspects of the sweeping universal service and
intercarrier compensation reform order adopted last November. The
clarifications address the rates applicable to VoIP-PSTN traffic,
access stimulation and the CETC phase-down of high-cost support, among
other things.
http://feeds.lexblog.com/~r/TelecomLawMonitor/~3/nUbBUHddn-A/

VoIP Outage Reporting Obligations to be Adopted at February 15 FCC
Meeting, Telecom Law Monitor
VoIP providers, prepare to report outages to the FCC. Since early in
2010, the FCC has been on a path to impose new outage reporting
obligations on providers of interconnected VoIP services, despite
industry opposition to the new requirements. Today, the FCC released
its "Sunshine Notice" confirming that it will vote on an order to
adopt reporting
http://feeds.lexblog.com/~r/TelecomLawMonitor/~3/uTKXfxdj67Y/

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ACPA Part 7: Safe Harbor (no mere tiffs allowed)

At the end of the AntiCybersquatting Consumer Protection Act nine factors is the Safe Harbor Provision, which acts as a failsafe and reiterates Congressional intent:

Bad faith intent described under subparagraph (A) shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

15 U.S.C. § 1125(d)(1)(B)(ii). See also 15 U.S.C. § 1125(d)(1)(B)(i)(IV) (fair use).

This is designed as a bright line test. Unlike the nine factors, this consideration is not discretionary. This is not a factor placed down as guidance; Congress clearly states that bad faith shall not be found in cases where it is believed that the use is legal or fair use. For example, the safe harbor protects uses such as parody and commentary and use by persons ignorant of another’s superior right to the mark. Mattel, Inc. v. Barbie-Club. com, 310 F. 3d 293, 906-07 (2nd Cir 2002); 15 U.S.C. § 1114 (innocent infringement by publishers); 15 U.S.C. § 1115 (innocent infringement as a defense to right to use a mark). Congress is making clear that Congress is specifically targeting nefarious cybersquatters with the ACPA; the ACPA is not to be extended to other mere tiffs.

Next: 67 Cases

ACPA Part 6: The Scorecard

Photo by J McPherskesen

The courts reject the notion that they mechanically churn through the 9 Bad Faith Factors, allotting points to the different parties, adding up the score, and declaring victory for the party with the highest score. But hat is exactly what the courts have done. They have created a scorecard, they go down the factors and they score points for either the Trademark Owner (TMO) or the Domain Name Owner (DNO). The courts have misunderstood the factors handed down to them by Congress and are using the wrong scorecard.

The nine factors fall within two groups. Understanding the difference between the two groups is key to understanding how to correctly apply them. As stated by the legislative history, "The first four [factors] suggest circumstances that may tend to indicate an absence of bad-faith intent to profit from the goodwill of a mark, and the others suggest circumstances that may tend to indicate that such bad-faith intent exists." H.R.Rep. No. 106-412, 1999 WL 970519, at *10.  The Courts are in accord, stating "The first four factors have been seen as reasons why a defendant might in good faith have registered a domain name incorporating someone else's mark, and the other five are indicia of bad faith intent."  Coca Cola v. Purdy, 382 F3d 774, 783 (8th Cir. 2004).

All of the factors concern the behavior of the DNO and have nothing to do with the behavior of the TMO. 

Good Faith (Mitigating Circumstances)

The first four factors demonstrate whether the DNO had good faith; these are affirmative, mitigating factors. Either these factors substantiate good faith, or they do not. If the DNO is successful under one of these factors, the DNO has made a demonstration of good faith. The opposite is not true. If the DNO is not successful under one of these factors, this does not establish anything about bad faith, and it does not establish anything about the TMO. The fact that the domain name in question is not the DNO's legal name does not mean that the DNO is engaged in bad faith; it simply means that this mitigating defense is not available to the DNO. Either these factors favor the DNO, or they do not; they never disfavor the DNO and they never favor the TMO.

Bad Bad Faith Factors

Likewise, the bad faith factors are negative factors. Either they substantiate bad faith, or not. The failure to be successful under a bad faith factor does not establish good faith. Likewise, demonstrating bad faith under one of these factors demonstrates something about the DNO, and says nothing about the TMO. Either these factors disfavor the DNO, or they do not; they do not favor the DNO and they do not favor the TMO.

The Bad Faith Factors themselves fall into two sub-groups. In enacting the ACPA, Congress was addressing two situations: cybersquatters who redirected domain names for nefarious purposes (pornography, fraud, crime) (Factor 5), and cybersquatters who held the domain name for ransom, attempt to extort the TMO (Factor 6). Cybersquatting is, by definition, either Factor 5 or Factor 6, or both (with discretion available for situations of unique circumstances that do not squarely fall within either, but are nevertheless nefarious). If you don’t have Factor 5 or 6, you don’t have cybersquatting (you may have something else, but its not cybersquatting). These are the two lynch pin factors upon which bad faith rests.

Factors 7, 8, and 9 are aggravating circumstances. As noted by Congress, each one of them, in and of themselves, is not a problem, and do not necessitate a violation under the ACPA. The fact that one might have inaccurate information in my domain name registration may be the result of a bookkeeping error; it may be that I am a dissident trying to keep privacy. It does not mean that one is involved cybersquatting. Likewise, registering multiple domains is not itself problematic. Corporations will generally register multiple domains for every business plan and product line they have. Governments have warehouses of domain names. The aggravating circumstances factors amplify the problematic activity of Factors 5 and 6. When misinformation in the registration is tied to Factor 6 extortion, that is greater evidence of a problem and what the appropriate remedy ought be. When one competitor has registered 100 domain names, all like the other competitor's trademark, and is redirecting traffic, that is aggravating evidence of a problem. When the domain name in question is famous, it is also greater evidence of nefarious activity. Factors 7, 8, and 9 are not necessary to an ACPA cause of action. However, where they exist, they provide greater evidence concerning the degree of nefarious activity and what the appropriate remedy ought be.

The courts have been grinding through the nine factors, allotting points for one party or the other, making no differentiation between the Good Faith Factors and the Bad Faith Factors, and making no note of the lynch-pin factors #5 & #6, and the mitigating or aggravating factors. In the end, the courts tally up the points and the party with the highest score always wins (sometimes going through contortions in order to ensure that the “proper” party wins). The scorecard used by the courts generally looks like this:

Bad Faith Factor Scorecard	TMO	DNO
F1: Trademark of DNO in Domain Name	-	-
F2: Legal name of DNO as Domain Name	-	-
F3: Prior use by DNO of Domain Name	-	-
F4: Fair use by DNO of Domain Name	-	-
F5: Intent to Divert Traffic	-	-
F6: Internet to Profit Through Sale of Domain Name	-	-
F7: Misinformation in Registration	-	-
F8: Multiple Domain Name Registrations	-	-
F9: Famous Tradmark of TMO	-	-
Tally Score:	0	0

The scorecard should actually look more like this, with all points going either for or against the DNO, and no points going to the TMO:

Good Faith Factors (mitigating circumstances, optional)				Bad Faith Factors
				Cybersquatting (required)		Aggravating Circumstances (optional)
F1 DNO Trademark in Domain Name	F2 DNO Legal Name	F3 DNO Prior Use	F4 DNO Fair Use	F5 Intent to Divert	F6 Extortion	F7 Misleading Registration	F8 Multiple Domain Names	F9 Famous TMO Mark
If F5 or F6 is present, then the presence of F1 through F4 make a finding of bad faith less likely				At least one Cybersquatting Factor must be present*		If F5 or F6 is present, then the presence of F7 through F9 make a finding of bad faith more likely

What difference does it make? We will in coming posts observe a small collection of cases, at the fringe of the map, navigating turbulent waters with an unsure judge captaining the ship.  In these cases, using the right score cards means the difference between finding Davey Jones' Treasure, and battening down the hatches.

Next: 67 Cases

2.6 :: Recalculating :: Ex Honcho Slams :: #RescueDogsSuperBowlCommercials :: Whose Watch Those Who Watch Us? OH! Its Anonymous! ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================
We cross our bridges when we come to them and burn them behind us,
with nothing to show for our progress except a memory of the smell of
smoke, and a presumption that once our eyes watered. - Tom Stoppard

Understanding Maps at the Federal Communications Commission, FCC
Last October, the FCC quietly deployed a new section to fcc.gov. The
section, http://www.fcc.gov/maps, translates complex policy into
understandable stories for consumers. Our maps are a fresh approach
to internet mapping and help to advance our goal of open government.
Here's a little insight to the why and how are doing this...
http://www.fcc.gov/blog/understanding-maps-federal-communications-commission

Is Google asking the FCC to allow gigabit Wi-Fi for its gigabit network?, Gigaom
Google's Fiber organization is asking the FCC for the ability to test
a residential gateway that has Wi-Fi and Bluetooth. It's likely Google
is asking the FCC for an experimental licence to test upcoming
802.11ac gigabit Wi-Fi technology inside residential gateways.
http://feedproxy.google.com/~r/OmMalik/~3/QNe512GTI-E/

Ex-FCC honcho Hundt slams House spectrum bill, FierceBroadband
Former Federal Communications Commission Chairman Reed Hundt last week
voiced strong opposition of spectrum legislation circulating in the
U.S. House of Representatives. Network World has an insightful
interview Hundt that delves further into his position. He clearly
outlines his reasons for opposing the legislation, discusses why a
Senate bill might do a better job of addressing the situation
and-we're pretty sure on this
http://www.fiercebroadbandwireless.com/story/ex-fcc-honcho-hundt-slams-house-spectrum-bill/2012-02-05?utm_medium=rss&utm_source=rss

AT&T Response to Former FCC Chair's Remarks on Spectrum Auctions, AT&T
Jim Cicconi, AT&T Senior Executive Vice President of External &
Legislative Affairs, responds to comments made by former FCC Chairman
Reed Hundt regarding spectrum auctions:
http://attpublicpolicy.com/wireless/att-response-to-former-fcc-chairs-remarks-on-spectrum-auctions/

Cracks in the Armor?: The Future of the Communications Decency Act and
Potential Challenges to the Protections of Section 230 to Gossip Web
Sites by Michael Burke, BU J Sci & Tech
Juicy Campus was founded on August 1, 2007.2 The website claimed to
have "the simple mission of enabling online anonymous free speech on
college campuses."3 College student Jane Smith, whose name has been
changed to
http://www.bu.edu/law/central/jd/organizations/journals/scitech/volume172/documents/Burke_Web.pdf

comScore Reports $50 Billion in Q4 2011 U.S. Retail E-Commerce
Spending, Up 14 Percent vs. Year Ago, comScore
Q4 2011 U.S. retail e-commerce sales estimates, which showed that
online retail spending reached $49.7 billion for the quarter, up 14
percent versus year ago. This growth rate represented the ninth
consecutive quarter of positive year-over-year growth and fifth
consecutive quarter of double-digit growth rates. For the entire 2011
year, U.S.
http://feedproxy.google.com/~r/comscore/~3/03Zr_jaFIz8/comScore_Reports_Q4_2011_U.S._Retail_E-Commerce_Spending

VeriSign Hit Repeatedly By Hackers...In 2010, Forbes
The company responsible for delivering people safely to more than half
the world's websites turns out to have some pretty glaring security
holes itself. VeriSign has been hacked repeatedly by hackers who made
off with data that the internet infrastructure company has not
disclosed.
http://www.forbes.com/sites/erikkain/2012/02/02/verisign-hit-repeatedly-by-hackers-in-2010/

Verisign Statement on 2010 Security Breach, Verisign
As disclosed in an SEC filing in October 2011, parts of Verisign's
non-production corporate network were penetrated. After a thorough
analysis of the attacks, Verisign stated in 2011, and reaffirms, that
we do not believe that the operational integrity of the Domain Name
System (DNS) was compromised.
https://press.verisign.com/easyir/customrel.do?easyirid=AFC0FF0DB5C560D3&version=live&prid=847869&releasejsp=custom_97

FCC Chairman: Digital Textbooks to All Students in Five Years, FCC
Wednesday, at the first-ever Digital Learning Day Town Hall in
Washington, DC, FCC Chairman Genachowski and Secretary of Education
Duncan challenged states and the education and technology industries
to get digital textbooks into the hands of all students in five years.
Barriers to
http://www.fcc.gov/blog/fcc-chairman-digital-textbooks-all-students-five-years

A New Question of Internet Freedom, NYT
European activists are hoping to stop the international
Anti-Counterfeiting Trade Agreement, which they say will erode
Internet freedom and stifle innovation.
http://feeds.nytimes.com/click.phdo?i=34ee140bb3d0fd8c4b253da881c1441e

Feds seize illegal sports-streaming sites, CNET
Just in time for Super Bowl Sunday, the federal agents announce they
have seized and shuttered 307 Web sites that either live-streamed
sports or sold fake NFL paraphernalia.
http://feedproxy.google.com/~r/cnet/tcoc/~3/MX18e9ugZUo/

ACTA Protests Escalate Throughout Europe, Geist
AccessNow is maintaining an excellent map of the protests planned
across the continent on February 11th, which has been designated an
international day of action against ACTA. The issue has attracted
mainstream media attention (eg. New York Times) and questions emerge
about the likelihood the treaty will receive the necessary approvals
for ratification.
http://feedproxy.google.com/~r/MichaelGeistsBlog/~3/bx3qnL7ZpIY/

From Manning To Madonna: NBC's Super Bowl XLVI Blasts Social TV Record
[Infographics], Forbes
Bluefin Labs, which tracks social buzz for television, has just sent
over the data collected from last night's Super Bowl on NBC. One word
will suffice: Giant.
http://www.forbes.com/sites/michaelhumphrey/2012/02/06/from-manning-to-madonna-nbcs-super-bowl-xlvi-blasts-social-tv-record-infographics/

Verizon, Redbox Plan Online Video Service, WSJ
Telecom company Verizon Communications and Redbox video-kiosk owner
Coinstar said Monday they will launch an online service in the second
half of the year featuring streaming videos and downloads.
http://online.wsj.com/article/SB10001424052970204369404577206851008245274.html?mod=rss_Technology

Tom Brady: I watched last year's Super Bowl on illegal site, CNET
In a news conference, the New England quarterback mentions that while
rehabbing last year in Costa Rica, he watched the big game on an
illegal site. Is this the final validation for piracy?
http://feedproxy.google.com/~r/cnet/tcoc/~3/w5BH3qYJpdM/

Towards a Brighter Fourth Amendment: Privacy and Technological Change
by Joshua S. Levy, VA JL&Tech
This Article seeks to solve the problem of technological change
eroding privacy by developing a framework of bright-line Fourth
Amendment rules. As technologies such as the Internet become
increasingly important in our daily lives, we come to expect less
privacy. The Fourth Amendment, which protects
http://www.vjolt.net/vol16/issue4/v16i4_499-Levy.pdf

Why most Facebook users get more than they give, Pew
The effect of Facebook 'power users' on everybody else
http://pewinternet.org/Press-Releases/2012/Facebook-users.aspx

Panel Approves Cybersecurity Act, Daily Dashboard
A House panel approved legislation this week that would require "the
most privately operated national critical infrastructure to adopt
information security standards to safeguard their IT systems and
networks," BankInfoSecurity reports. The Promoting and Enhancing
Cybersecurity and Information Sharing Effectiveness, or "Precise" Act,
would authorize the Department of Homeland Security to coordinate
security efforts across
https://www.privacyassociation.org/publications/2012_02_03_panel_approves_cybersecurity_act/#When:16:50:05Z

Anonymous pokes fate bear, leaks FBI conference call about Anonymous,
Ars Technica
Anonymous has begun taunting its police pursuers in ever-more
aggressive ways, upping the ante today by releasing an internal FBI
conference call in which agents from across the country and police in
the UK share status updates on their investigations of the group—and
reveal that major new action is coming soon.
http://arstechnica.com/tech-policy/news/2012/02/pokes.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

Update on Kelihos Botnet and New Related Malware, Microsoft
There have been some recent confusing reports regarding whether the
Kelihos botnet, which Microsoft partnered with Kyrus Tech Inc. and
Kaspersky Lab to take down in September 2011, has been resurrected.
http://blogs.technet.com/b/microsoft_blog/archive/2012/02/03/update-on-kelihos-botnet-and-new-related-malware.aspx

F.B.I. Admits Hacker Group's Eavesdropping, NYT
The group known as Anonymous listened in on a call between the bureau,
Scotland Yard and other foreign police agencies about their joint
investigation of the group and its allies.
http://feeds.nytimes.com/click.phdo?i=e9f76d508a487aeb221b10ed1ecd6058

Communications & Technology Subcommittee Outlines Key Legislative
Priorities, House Commerce Committee
The Energy and Commerce Agenda: Supporting Job Creation, Standing Up
for Taxpayers, Protecting Families and Communities
http://republicans.energycommerce.house.gov/News/PRArticle.aspx?NewsID=9269

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Website :: www.cybertelecom.org
Blog :: cybertelecom.blogspot.com
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Twitter & Facebook :: Cybertelecom
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Cybertelecom is Off-the-Record. Otherwise play nicely.

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

2112 :: Sorry :: Brink of Collapse :: Barbarians at the Gate :: Film v POTS :: Piracy is the New Radio :: Privacy is Twitter ::

============================================
CyberTelecom News
Federal Internet Law and Policy
============================================
sed quis custodiet ipsos custodes? - Juvenal AD c.60 - c.130

FCC apologizes to Sen. Grassley for 'McCarthyism' remark, The Hill
Zachary Katz, the new chief of staff for the Federal Communications
Commission (FCC), apologized to Sen. Chuck Grassley (R-Iowa) on
Tuesday after an agency official compared the senator to the
anti-communist former Sen. Joseph McCarthy.
http://thehill.com/blogs/hillicon-valley/technology/207771-fcc-apologizes-to-sen-grassley-for-mccarthy-comment

LightSquared: a stalled FCC approval process puts LTE network, Sprint
partnership on brink of collapse, The Verge
t turns out 30 extra days wasn't enough: despite the extension Sprint
granted LightSquared earlier this month, LightSquared remains
embroiled in a lengthy FCC approval process for its proposed wholesale
LTE network. Yet as it turns
http://www.theverge.com/2012/1/31/2762119/lightsquared-wholesale-lte-gps-interference-fcc-sprint

FCC Asks If You and GPS Should Be Protected from Interference, GPS World
"We invite comment on LightSquared's petition, and establish a
pleading cycle." Thus spake the Federal Communications Commission
(FCC), groping for a way forward in the ongoing LightSquared/GPS
conflict. The FCC has opened an Internet docket for public comment on
the LightSquared position that GPS users and receivers "do not merit
legal protection from interference"
http://www.gpsworld.com/GNSS%20System/news/fcc-asks-if-you-and-gps-should-be-protected-interference-12553

Presentation to FGCS on LightSquared Interference Testing
, GPS.gov
NOAA presentation on LightSquared testing
http://www.gps.gov/multimedia/presentations/2012/01/FGCS/

AT&T's Randall & Stankey: Wireless Data Growth Half The FCC
Prediction, CircleID
40%, not 92%-120%. "Data consumption right now is growing 40% a year,"
John Stankey of AT&T told investors and his CEO Randall Stephenson
confirmed on the investor call. That's far less than the 92% predicted
by Cisco's VNI model or the FCC's 120% to 2012 and 90% to 2013 figure
in the "spectrum crunch" analysis. AT&T is easily a third of the U.S.
mobile Internet and growing market share; there's
http://www.circleid.com/posts/20120131_att_randall_stankey_wireless_data_growth_half_the_fcc_prediction/

15 Years of Stopping the Barbarians at the Gate (Communications
Decency Act) #CDA15, Cybertelecom
Sen. James Exon Sixteen years ago today, Senator James Exon introduced
the Communications Decency Act. Also, during that same year, the
National Science Foundation completed the privitization of the NSFNET,
giving birth to the public Internet as we know it. Senator Exon stood
on the floor of the Senate, with a folder filled with assorted
undesirable content, and declared that we must
http://feedproxy.google.com/~r/CybertelecomBlog/~3/YE0zZkoouuM/15-years-of-stopping-barbarians-at-gate.html

Internet Traffic Continues to Skyrocket, USTelecom
Whether for work, learning, or play, the Internet has quickly become a
central part of our daily lives.
http://www.ustelecom.org/blog/internet-traffic-continues-skyrocket

OPEN DATA: THE INFRASTRUCTURE THAT CAN MAKE INNOVATION HAPPEN!,
European Network Foundation
Public sector information (PSI) is the single largest source of
information in Europe. It is produced and collected by public bodies
and includes digital maps, meteorological, legal, traffic, financial,
economic and cultural data. In a very short timeframe, the re-use of
Public Sector Information (PSI) - also known as ?open data? - has
become a high priority policy and economic issue in EU. It has become
essential to the information economy. The number of applications based
on the use of PSI is growing rapidly and the
http://www.eifonline.org/en/fiches/news/2012/12-01-24-open-data.cfm

AOL's fourth quarter lofts over profit forecast, CNET
The Internet company had better net income and revenue than analysts
expected. Ad revenue is up, but revenue overall declined.
http://feedproxy.google.com/~r/cnet/tcoc/~3/mdAhdPknCwc/

Internet Essentials Progress Report, Comcast
Almost six months ago, Comcast launched an ambitious broadband
adoption program, Internet Essentials, with a focus on closing the
digital divide and getting more low-income Americans connected to the
Internet. Today we are releasing a launch progress report that
highlights our successes and achievements and shares some of the
lessons we have learned and the new enhancements we will be making to
the program in the year ahead. You can find a copy of that report
here.
http://blog.comcast.com/2012/01/internet-essentials-progress-report.html

Google Responds to Privacy Questions from Congress, Forbes
Today I received an email from Jason Freidenfelds from Google's
Global Communications & Public Affairs department, directing my
attention to a letter sent to eight members of Congress who inquired
about Google's privacy policy changes. You can read it here.
http://www.forbes.com/sites/daviddisalvo/2012/01/31/google-responds-to-privacy-questions-from-congress/

Film vs POTS: A Kodak Moment, Level3
Kodak's bankruptcy got me thinking: In these final years of
circuit-switched telephone service, are there some lessons we can
learn from the world of film? What lessons can the world of
photography hold for telephony?
http://feedproxy.google.com/~r/BeyondBandwidth/~3/F-fsg63ra4c/

Washington CAN Get it When it Comes to the Internet - Here's How, Verizon
In "Why Doesn't Washington Understand the Internet?" (Washington Post,
Sunday, January 22, 2012), Rebecca MacKinnon documents how often
legislation fails to effectively address problems involving or
supposedly caused by the Internet and how often Congress considers or
enacts policy solutions that are rapidly outmoded by the continuing
innovation that is at the heart of the Internet's success.
http://policyblog.verizon.com/BlogPost/845/WashingtonCANGetitWhenitComestotheInternet-HeresHow.aspx

Verizon to cybersquatters: Get off our Verizon-like domains, CNET
Verizon is taking legal action against what it calls "serial
cybersquatters" exploiting Verizon-like domain names.
http://feedproxy.google.com/~r/cnet/tcoc/~3/DKVvGydPVYs/

OECD Insights: The Internet of Things, OECD
OECD Insights blog: The Internet of Things
http://www.oecd.org/topic/0,3699,en_2649_37441_1_1_1_1_37441,00.html?rssChId=37441#49515271

Censoring Twitter?, VOA
Twitter's New Policy And Debate About Online Speech
http://blogs.voanews.com/digital-frontiers/2012/01/31/censoring-twitter/

Neil Young is right — piracy is the new radio, Gigaom
As an artist who probably makes a substantial income from licensing
his music, you might think Neil Young would frown on piracy and
file-sharing, but that appears not to be the case, according to an
interview he gave at the Dive Into Media conference in Los Angeles.
Instead of railing against file-sharers, Young called piracy "the new
radio" because it's "how music gets around." The musician's comment
puts a lot of the hysteria about copyright infringement into
perspective — as we've pointed out before, file-sharing and
http://feedproxy.google.com/~r/OmMalik/~3/e2ZRy4CxpZ4/

Megaupload's hosting company teams up with EFF to identify legal
files, Ars Technica
Carpathia Hosting, the Virginia company that owns more than 600
servers previously leased by Megaupload, today joined forces with the
EFF to collect the stories of legitimate users who want access to
their now-inaccessible files stored with the defunct file-locker.
http://arstechnica.com/tech-policy/news/2012/01/megauploads-hosting-company-teams-up-with-eff-to-identify-legal-files.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

Amazon Sold, Uh, A Whole Bunch Of Kindles In Q4, Forbes
Aside from the weaker-than-expected Q4 revenues Amazon.com posted in
the fourth quarter, the company once again frustrated the Street with
its refusal to disclose certain key metrics
http://www.forbes.com/sites/ericsavitz/2012/01/31/amazon-sold-uh-a-whole-bunch-of-kindles-in-q4/

NIST Issues Finalized Guidelines for Managing Security & Privacy in
Public Cloud Computing, Info Law Group
Say what you will about the federal government, the Nat'l Institute of
Standards & Technology ("NIST"), part of the Department of Commerce,
has certainly been busy over the past year releasing numerous special
drafts and reports addressing cloud computing recommendations,
security and issues. [Full disclosure: I'm a member of several NIST
working groups, including one currently working on the NIST draft of
Challenging Security Requirements for US Government Cloud Computing
Adoption.]
http://feeds.lexblog.com/~r/InfoLawGroup/~3/UMxBAo8Gaeg/

Prof. Dave Farber on Where the Internet is Headed, CircleID
"Internet protocols simply aren't adequate for the changes in hardware
and network use that will come up in a decade or so," says Professor
Dave Farber who was recently interviewed by Andy Oram.
http://www.circleid.com/posts/20120131_prof_dave_farber_on_where_the_internet_is_headed/

Bert-Jaap Koops, Forgetting Footprints, Shunning Shadows: A Critical
Analysis of the 'Right to Be Forgotten' in Big Data Practice, SSRN
The so-called 'right to be forgotten' has been put firmly on the
agenda, both of academia and of policy. Although the idea is intuitive
and appealing, the legal form and practical implications of a right to
be forgotten have hardly been analyzed so far. This contribution aims
to critically assess what a right to be forgotten could or should
entail in practice. It outlines the current socio-
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1986719

Peter Swire, Social Networks, Privacy, and Freedom of Association:
Data Empowerment vs. Data Protection, SSRN
This article examines the tension between social networks as enablers
of political mobilization (sharing information is good) and as threats
to privacy (sharing information is bad). A central theme is that
social networks are platforms to create associations. Linguistically,
"networks" and "associations" are close synonyms; they both depend on
"links" and "relationships." This article introduces the idea that
limits on such networks can deeply implicate the freedom of
association.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1989516

On the radio: Mobile devices and the Fourth Amendment, Internet Cases
We talked about the Fourth Amendment and, more specifically, the
exceptions to the warrant requirement for searches made incident to
lawful arrests. Some courts have given special treatment to mobile
devices when considering whether the information contained on them may
be searched without a warrant, because of the vast amounts of personal
information that is present.
http://blog.internetcases.com/2012/01/31/fourth-amendment-privacy-cell-phone-mobile-device-digital-camera/

What The FBI Wants In A Social Media Monitoring App, NPR
The FBI raised eyebrows last week with a document that details plans
for a map-based app that would help the agency gather intelligence
from sources like Facebook and Twitter. Translating tweets and
developing "a dictionary of 'tweet' lingo" are among the app's desired
functionalities.
http://www.npr.org/blogs/alltechconsidered/2012/01/30/146090425/what-the-fbi-wants-in-a-social-media-monitoring-app?ft=1&f=1019

Tech Companies Combat Email Scams, USTelecom
A group of companies are developing a new system that may put a huge
dent into email scams, otherwise known as 'Phishing."
http://www.ustelecom.org/blog/tech-companies-combat-email-scams

NATOA Sends Letter Opposing GA Senate Bill 313 - Broadband Investment
Equity Act, NATOA
On January 31st, NATOA sent a letter to all members of the Georgia
Senate Regulated Industries and Utilities Committee opposing Senate
Bill 313, the Broadband Investment Equity Act. The legislation, if
enacted, would severely hamper the efforts of local governments...
http://feedproxy.google.com/~r/natoa-news/~3/HOyHqZ-DKFI/natoa-sends-letter-opposing-ga.html

FCC Approves Changes to Phone-Subsidy Program, WSJ
The FCC approved changes to a federal phone subsidy program for
low-income Americans to help them afford broadband service.
http://online.wsj.com/article/SB10001424052970204740904577195224260128092.html?mod=rss_Technology

FCC overhauls telephone subsidy for the poor, adding broadband, CW
The U.S. Federal Communications Commission has approved an overhaul to
its Lifeline program, which subsidizes telephone service for poor
people, with the goals of saving money and allowing the subsidy to go
toward broadband service.
http://rss.computerworld.com/~r/computerworld/news/feed/~3/ToYZX_MsxbU/FCC_overhauls_telephone_subsidy_for_the_poor_adding_broadband

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

15 Years of Stopping the Barbarians at the Gate (Communications Decency Act) #CDA15

Sen. James Exon

Sixteen years ago today, Senator James Exon introduced the Communications Decency Act. Also, during that same year, the National Science Foundation completed the privitization of the NSFNET, giving birth to the public Internet as we know it.

Senator Exon stood on the floor of the Senate, with a folder filled with assorted undesirable content, and declared that we must stop the barbarians at the gate. At that time, most members of Congress had never been online, didnt know what the World Wide Web was, and could not spell "Internet" (of course, there were a few who did understand the potential of the Internet and championed it). For Congress, the equation was simple: whatever this Internet thing was, no Member of Congress was going to be seen as soft on pornography.

The Communications Decency Act was passed in 1996 as an amendment to the Telecommunications Act (the only reference to the Internet in that historic legislation).  It was quickly challenged by the ACLU, struck down by a trial court, and (thanks to expedited review), quickly struck down by a unanimous Supreme Court. 

It's been 15 years since the CDA was passed. What has transpired?  Today, Cybertelecom will recount that 15 year history in a series of tweets - it will take most of the day.  Below is an unabridged version of those tweets:

• 1995: Sen. Exon introduces the Communications Decency Act (CDA): "The information superhighway should not become a red light district."
• 1996: CDA passed as amendment to the Telecom Act, along with the Family Empowerment Act (Sec. 230) ("the greatest Internet law ever")
• 1997: CDA @ SCOTUS: unconstitutional "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
• 1997: COPA: Not to be outdone by a unanimous SCOTUS, Sen. Dan Coats introduces the Son-of-CDA, the Children's Online Protection Act
• 1998: COPA is enacted into law, challenged by the ACLU, and declared unconstitutional by Fed. District Court: term "indecency" is vague bc you cant determine *local* community standards on global Internet
• 1998: Child Protection & Sexual Predator Punishment Act: requires ISPs to report child pornography to NCMEC
• 1998: Child Online Privacy Protection Act (COPPA not COPA): born out of abusive sites that give kids 5 points if they play game, 500 points if they give mommy & daddy's name, address, and salaries
• 2000: Children's Internet Protection Act (CIPA) conditions receipt of erate funding for tech in schools & libraries on having an Internet Safety policy in place 
• 2000: COPA Commission Report:  Concludes best responses to concern over children's exposure to offensive content is family education and involvement (not law nor technology).
• 2002: Dot Kids Implementation and Efficiency Act: creates sparsely used .kids.us  domain name space
• 2002: National Academies Report: Youth, Pornography & Internet: Concludes we can put locks and chains around swimming pools; or we can teach children how to swim.
• 2002: COPA @ SCOTUS, rejects lower court finding that you cant determine local community standards online - "sure you can" says SCOTUS, but neglects to provide guidance on how. 
• 2003: Truth in Domain Name Act prohibits use of deceitful domain names for purpose of attracting surfers to pornographic websites
• 2003: COPA @ Appellate Court, declares COPA unconsti for 2nd time: parental use of filtering technology is the least restrictive means of achieving government interests
• 2003: CIPA @ SCOTUS affirmed: "When Government appropriates public funds to establish a program, it is entitled to broadly define that program's limits." 
• 2003: CIPA Report: "currently available parental control technology measures have the capacity to meet most, if not all, of online safety needs and concerns."
• 2004: COPA @ SCOTUS affirms Appellate Court conclusion that filtering technology is likely the least restrictive means of protecting children; remands to trial court for fact finding.
• 2005: Pub.Law. 108-447 requires Inventory of Federally Funded Internet Safety Programs for youth and to describe each program's purpose and scope
• 2006: Adam Walsh Act - made it illegal to knowingly embed words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity or, for minors, material harmful to minors - and created state public online databases of sex offenders
• 2007: COPA @ trail Court: finally holds trail on facts, concludes COPA is not least restrictive means (parental control technology is better) and COPA is vague.
• 2007: Child Safe Viewing Act: proposes using closed captioning to mute offensive words on TV and Internet - requires report from FCC
• 2008 KIDS Act Required convicted sex offenders to register online identifiers
• 2008: COPA @ Appellate Court: Declares COPA Unconti for 3rd time: "It is apparent that COPA, like the CDA before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,'... and thus is overbroad. For this reason, COPA violates the First Amendment."
• 2008: Sen. McCain SAFE ACT old requirement for ISPs to report child pornography replaced with new requirement that ISPs report child pornography
• 2008: Broadband Improvement Act - promotes OnGuard Online - creates the Online Safety and Technology Working Group - requires CIPA online safety education
• 2008: UK Safer Children in a Digital World Report by Tanya Byron, who keeps saying that we are raising our children in captivity
  
• 2009: COPA @ SCOTUS, cert. denied - after 10+ years painful & expensive litigation, draining resources that could have helped kids be safe online, COPA is dead.
• 2010: Online Safety and Technology Working Group Report (OSTWG) - recommends digital media literacy education 
• 2010: FCC Broadband Plan recommends "The federal government should create an interagency working group to coordinate child online safety and literacy work, facilitate information sharing, ensure consistent messaging and outreach and evaluate the effectiveness of governmental efforts."

15 years, most of it tangled in COPA litigation, what have we learned? In some ways, we keep revisited the lessons offered in the very first court case - but which seem to keep eluding us:

It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. -- ACLU v. Reno , 929 F.Supp. 825 (ED.Pa. 1996), aff'd, 521 U.S. 844 (1997).

 As the National Academies of Science stated

There is no single or simple answer to controlling the access of minors to inappropriate material on the Web. To date, most of the efforts to protect children from inappropriate sexually explicit material on the Internet have focused on technology-based tools such as filters and legal prohibitions or regulation. But the committee believes that neither technology nor policy can provide a complete - or even a nearly complete - solution. While both technology and public policy have important roles to play, social and education strategies to develop in minors an ethic of responsible choice and the skills to effectuate these choices and to cope with exposure are foundational to protecting children from negative effect that may result from exposure to inappropriate material or experiences in the Internet.

Every day presents a teaching moment. If we get it right, we can empower our children with strong online skills and digital literacy.