Wednesday, June 03, 2015

NIST Privacy RFC DRAFT Privacy Risk Management for Federal Information Systems

May 28, 2015

NIST IR 8062

DRAFT Privacy Risk Management for Federal Information Systems

NIST requests comments on the draft report NISTIR 8062, Privacy Risk Management for Federal Information Systems, which describes a privacy risk management framework for federal information systems. The framework provides the basis for establishing a common vocabulary to facilitate better understanding of - and communication about - privacy risks and the effective implementation of privacy principles in federal information systems.

Please send comments to privacyeng@nist.gov by July 13, 2015 at 5:00pm EDT using the comment matrix provided (link provided below).

Background:
Expanding opportunities in cloud computing, big data, and cyber-physical systems are bringing dramatic changes to how we use information technology. While these technologies bring advancements to U.S. national and economic security and our quality of life, they also pose risks to individuals' privacy.

Privacy Risk Management for Federal Information Systems (NISTIR 8062) introduces a privacy risk management framework for anticipating and addressing risks to individuals' privacy. In particular, it focuses on three privacy engineering objectives and a privacy risk model. To develop this document, NIST conducted significant public outreach and research. We are soliciting public comments on this draft to obtain further input on the proposed privacy risk management framework, and we expect to publish a final report based on this additional feedback.

Note to Reviewers:
To facilitate public review, we have compiled a number of topics of interest to which we would like reviewers to respond. Please keep in mind that it is not necessary to respond to all topics listed below, Reviewers should also feel free to suggest other areas of revision or enhancement to the document.

   • Privacy Risk Management Framework: Does the framework provide a process that will help organizations make more informed system development decisions with respect to privacy? Does the framework seem likely to help bridge the communication gap between technical and non-technical personnel? Are there any gaps in the framework?
   • Privacy Engineering Objectives: Do these objectives seem likely to assist system designers and engineers in building information systems that are capable of supporting agencies' privacy goals and requirements? Are there properties or capabilities that systems should have that these objectives do not cover?
   • Privacy Risk Model:
     o Does the equation seem likely to be effective in helping agencies to distinguish between cybersecurity and privacy risks?
     o Can data actions be evaluated as the document proposes? Is the approach of identifying and assessing problematic data actions usable and actionable?
     o Should context be a key input to the privacy risk model? If not, why not? If so, does this model incorporate context appropriately? Would more guidance on the consideration of context be helpful?
     o The NISTIR describes the difficulty of assessing the impact of problematic data actions on individuals alone, and incorporates organizational impact into the risk assessment. Is this appropriate or should impact be assessed for individuals alone? If so, what would be the factors in such an assessment

Draft NISTIR 8062
Comment Matrix Form for Draft NISTIR 8062

Sunday, April 26, 2015

Statement from FCC Ch Tom Wheeler on the Comcast / TWC Merger

STATEMENT FROM FCC CHAIRMAN TOM WHEELER ON THE COMCAST-TIME WARNER CABLE MERGER. FCC Chairman Tom Wheeler issued the following statement today after Comcast announced its decision to abandon its $45 billion dollar bid to acquire Time Warner Cable. STMT. OCHTW https://apps.fcc.gov/edocs_public/attachmatch/DOC-333175A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DOC-333175A1.pdf

FCC Chairman Tom Wheeler issued the following statement today after Comcast announced its decision to abandon its $45 billion dollar bid to acquire Time Warner Cable. Comcast's announcement comes after the Federal Communications Commission staff informed the companies of their serious concerns that the merger risks outweighed the benefits to the public interest.

"Comcast and Time Warner Cable’s decision to end Comcast’s proposed acquisition of Time Warner Cable is in the best interests of consumers. The proposed transaction would have created a company with the most broadband and video subscribers in the nation alongside the ownership of significant programming interests.

"Today, an online video market is emerging that offers new business models and greater consumer choice. The proposed merger would have posed an unacceptable risk to competition and innovation especially given the growing importance of high-speed broadband to online video and innovative new services.

I am proud of our close working relationship throughout the review process with the Antitrust Division of the Department of Justice. Our collaboration provided both agencies with a deeper understanding of the important issues of innovation and competition that the proposed transaction raised.”

Monday, April 20, 2015

John Oliver :: Patent Trolls

Panel Discussion: Government Surveillance & The Future of the Internet

You are invited to attend:

Government Surveillance & The Future of the Internet

Eventbrite Registration Required: http://internet-surveillance.eventbrite.com<http://isoc-dc.us2.list-manage.com/track/click?u=358411e27b5e6aa5e77bfc9f2&id=bc23781eb6&e=e27ba18ccd>

Monday, May 18, 2015 from 12:30 PM - 2:00 PM

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Governments have a special responsibility among stakeholders to make the Internet secure. However, the Snowden revelations revealed that many governments, including the US, use the Internet to monitor, spy on and attack other governments, organizations, individuals and businesses. In March, we also learned that China is using the Great Cannon, a new malware tool to censor information. These revelations have stimulated a global backlash against pervasive Government data collection, Internet surveillance, and government use of malware and netizens are increasingly worried about Internet stability and security.

On May 18, 12:30-2, The Institute for International Economic Policy at The George Washington University (IIEP) and the Greater Washington DC Chapter of the Internet Society (ISOC-DC) will jointly host a moderated discussion between Bruce Schneier, noted authority on cybersecurity and Chris Riley, Vice President and Head of Public Policy at Mozilla.

Our panel will discuss how increasing surveillance and use of malware could impact the future of the Internet, including:

* Increased pressure from law enforcement for backdoors to encryption;
* Increased calls for data localization (as in France);
* International pressure influencing the IANA transfer;
* Less legal emphasis/protections on privacy at national levels;
* Less trust in government policies and strategies to maintain Internet stability;
* The threat of Internet fragmentation.

Panelists:

Bruce Schneier, Security Technologist and Author

Bruce Schneier is an internationally renowned security technologist, called a "security guru" by The Economist He is the author of 12 books – including his latest best-seller Liars and Outliers: Enabling the Trust Society Needs to Survive – as well as hundreds of articles and essays, and many more academic papers. His influential newsletter "Crypto-Gram," and his blog "Schneier on Security," are read by over 250,000 people. He has testified before Congress, is a frequent guest on television and radio, served on several government technical committees, and is regularly quoted in the press.

Chris Riley, Senior Policy Engineer, Mozilla

M. Chris Riley is a Senior Policy Engineer at Mozilla, working to advance the open Internet and Web through public policy analysis and advocacy, strategic planning, coalition building, and community engagement. Prior to joining Mozilla, Chris worked as a program manager at the U.S. Department of State on Internet freedom, a policy counsel with the non-profit public interest organization Free Press, and an attorney-advisor at the Federal Communications Commission. Chris holds a Ph.D. in Computer Science from Johns Hopkins University and a J.D. from Yale Law School. He has published scholarship on topics including innovation policy, cognitive framing, graph drawing, and distributed load balancing.

This panel is organized by Dr. Susan Aaronson and Kyle Renner of IIEP and David Vyorst of the Greater Washington DC Chapter of the Internet Society and is part of a larger seminar series. We are grateful to an anonymous donor for their support of these seminars.

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Saturday, April 18, 2015

BITAG Announces Technical Review Focused on Prioritization and Differentiated Treatment of Internet Traffic

BITAG Announces Technical Review Focused on

Prioritization and Differentiated Treatment of Internet Traffic

Technical report will explore the technical aspects and uses of prioritization and differentiation

Denver, CO (April 14, 2015): The Broadband Internet Technical Advisory Group (BITAG) is pleased to announce a technical review focused on the topic of prioritization and differentiated treatment of Internet traffic. This topic was submitted to BITAG’s technical working group by DISH, a founding member of BITAG. The review will result in a report with an anticipated publication date in August 2015.

Differentiation of Internet network traffic on both wireline and wireless networks is a topic of continued interest among policymakers and the public alike. Significantly, the public discourse reflects a lack of clarity as to how traffic differentiation can be accomplished from both a technical perspective and as part of network management practices. To help inform the policy debate surrounding the technical aspects of prioritization and differentiation, BITAG’s technical working group will issue a report that describes the various methods and techniques used by network operators to differentiate Internet data traffic — as well as the impact these methods may have on different types of applications. The group will also explore the distinction between prioritized and differential treatment of traffic. Finally, the report will describe appropriate best practices as identified by the group.

Fred Baker, a Fellow at Cisco, and Ken Ko, Senior Staff Scientist at ADTRAN, will be the lead editors of the report on this topic. Douglas Sicker, Executive Director of BITAG, Chair of BITAG’s Technical Working Group, Department Head of Engineering and Public Policy and a professor of Computer Science at Carnegie Mellon University, will chair the review itself.

This will be BITAG’s eighth technical review and report. BITAG’s previous reports have focused on: Internet interconnection; VoIP impairment, failure, and restrictions; Real-time network management of Internet congestion; Port blocking; SNMP DDOS attack mitigation; Large scale network address translation; and IPv6 whitelisting. Copies of these technical reports can be on the BITAG website at www.bitag.org.

Microsoft withdraws Skype petition

PETITION OF SKYPE COMMUNICATIONS S.A.R.L. TO CONFIRM A CONSUMER'S RIGHT TO USE INTERNET COMMUNICATIONS SOFTWARE AND ATTACH DEVICES TO WIRELESS NETWORKS. Granted the request for withdrawal filed by Microsoft. Dismissed Skype's Petition for rulemaking without prejudice and terminated the docket for this proceeding. (Dkt No. RM-11361 ). Action by: Chief, Wireless Telecommunications Bureau. Adopted: 04/16/2015 by ORDER. (DA No. 15-471). WTB https://apps.fcc.gov/edocs_public/attachmatch/DA-15-471A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DA-15-471A1.pdf

Friday, December 19, 2014

Public Knowledge Hiring

Public Knowledge Job Opening: Policy Advocate

Position Summary: The Policy Advocate will play a key role in the development of Public Knowledge's approach to promoting innovation, consumer rights, and the free flow of information. The Policy Advocate position presents a rare opportunity for a hard-working, creative advocate to work in a cutting-edge issue area and to become a public figure in the field.

Position Status: Full-time

Location: Washington, D.C.

Reports to: Public Knowledge President and Vice President

Application Deadline: January 16th, 2015

Essential Duties:

Represent the organization before policy making bodies, such as Congress, the Federal Communications Commission, the Federal Trade Commission, and the Copyright Office
Prepare and/or assist with preparation of filings for submission in administrative proceedings and before courts
Write articles and blog posts about current communications and technology policy issues
Represent Public Knowledge before audiences at conferences, meetings and press events
Maintain contact with a diverse array of constituencies aligned with the goals of PK
Work with reporters, bloggers and other media outlets as needed

Qualifications:

Either a law degree and at least two years of experience in communications, technology or copyright law and/or policy OR a bachelor's degree and more substantial experience in communications, technology, or copyright law and policy
Experience with economics, antitrust and competition law, or other facets of technology law
Familiarity with Congress and the administrative rulemaking processes
Excellent verbal and written communication skills
Knowledge and interest in evolving technologies
Ability to meet deadlines
Ability to work independently
Ability to produce high‐quality results on tight deadlines and with little oversight

Compensation: Public Knowledge provides competitive compensation, excellent benefits and opportunities for professional growth.

To Apply: Send a resume including salary history; cover letter stating your interest in Public Knowledge, and two writing samples (max. 5 pages each) to: jobs@publicknowledge.org, with the subject line "Policy Advocate." Applications will be accepted on a rolling basis beginning December 4, 2014; open until filled.

Monday, December 08, 2014

Vacancy Announcement - Attorney Advisor (Technology Programs Law Division) - Closes: Thursday, 12/25/14

https://www.usajobs.gov/GetJob/ViewDetails/388510500

Job Title:Attorney Advisor

Department:Department Of Homeland Security

Agency:DHS Headquarters

Job Announcement Number:DHSHQ15-1261359-OGC

SALARY RANGE:	$106,263.00 to $138,136.00 / Per Year
OPEN PERIOD:	Friday, December 5, 2014 to Thursday, December 25, 2014
SERIES & GRADE:	GS-0905-14
POSITION INFORMATION:	Full Time - Excepted Service Permanent
PROMOTION POTENTIAL: 15
DUTY LOCATIONS:	1 vacancy in the following location: Washington DC, DC View Map
WHO MAY APPLY:	United States Citizens
SECURITY CLEARANCE:	Secret
SUPERVISORY STATUS:	No

JOB SUMMARY:

Do you desire to protect American interests and secure our Nation while building a meaningful and rewarding career? If so, the Department of Homeland Security (DHS) is calling. DHS components work collectively to prevent terrorism, secure borders, enforce and administer immigration laws, safeguard cyberspace and ensure resilience to disasters. The vitality and magnitude of this mission is achieved by a diverse workforce spanning hundreds of occupations. Make an impact; join DHS.

The primary purpose of this position is to serve the Office of the General Counsel as a legal advisor. The individual selected for this position will be responsible for providing legal advice for government contracts, inter-agency agreements, licensing agreements, and international agreements entered into by DHS's Science and Technology Directorate ("S&T") in the areas of research, development, test, and evaluation. S&T's contracts are issued in accordance with the Federal Acquisition Regulation ("FAR") or DHS's Other Transaction Agreement authority and relate to a broad portfolio of S&T programs, including cyber security and biosecurity. The individual selected for this position will also be responsible for providing legal advice for intellectual property issues related to S&T's programs, including intellectual property issues in government contracts, international agreements, and licenses.

S&T is the primary research, development, test, and evaluation component of the Department. The work carried out in S&T, in partnership with the private sector, national laboratories, universities, international partners, and other government agencies, helps push the innovation envelope and drives development and use of high technology in support of the Department's operational units.

This position is located in the Department of Homeland Security (DHS), Office of the General Counsel (OGC), Technology Programs Law Division.

This is a permanent appointment in the excepted service and will be filled on a full-time permanent basis. Employees hired under an Excepted Service appointment are required to serve a two (2) year trial period. Upon successful completion of the required trial period, this position will be permanent.

TRAVEL REQUIRED

Not Required

RELOCATION AUTHORIZED

KEY REQUIREMENTS

You must be a U.S. citizen to apply for this position.
You must be able to obtain/maintain a Secret security clearance.

DUTIES:

As an Attorney Advisor you will:

Provide legal advice to contracting officers, program managers, and senior officials concerning the laws applicable to all phases of the research and development contracting process, including solicitation and award, contract administration, and the resolution of disputes.
Provide legal advice for the full range of issues arising in the fields of research and development contracting, acquisition, and procurement, including intellectual property, technical data, claims, disputes, fiscal law, information security, protection of governmental rights and property, privacy, and other related areas which arise in furtherance of and in connection with the mission of S&T.
Research, render, and generate authoritative written and oral legal opinions; opinions involve complex and difficult legal problems resulting from the formation and management of government contracts, including related intellectual property law issues.
Research, render and generate authoritative written and oral legal opinions with respect to S&T's cybersecurity research and development portfolio.
Provide legal advice for intellectual property and technology transfer issues related to S&T's programs and laboratories, including: advising and assisting S&T and contractor employees on rights in inventions, technical data and computer software; and negotiating and preparing licenses, assignments, cooperative research and development agreements, commercial test agreements, nondisclosure agreements and other instrument for the transfer of S&T technology.

QUALIFICATIONS REQUIRED:

The Office of the General Counsel (OGC) will evaluate eligible candidates based on the following criteria:

OGC will rate qualified applicants by comparing each candidate's qualifications to those pertinent to the position. OGC will consider relevant skills and experience, education and training, performance, and awards. The skills and experience listed immediately below are of particular importance to the position, and applicants should provide specific detailed information in these areas, where applicable, as part of their application.

For this position, specialized experience is providing legal advice and support on matters related to government contracts and intellectual property law issues in the Federal Government.
At least three years of experience as a practicing attorney is desired.
Applicants with less than five years of practice experience must submit a law school transcript and grade point average or class ranking with the application materials.
Please visit OPM's web site at https://www.opm.gov/qualifications/SEC-II/s2-e4.htm#e4a for additional information on this topic.

Application of Veterans' Preference: There is no formal rating system for applying veterans' preference to attorney appointments in the excepted service; however, the Department of Homeland Security considers veterans' preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans' preference are encouraged to include that information in their cover letter or resume and attach supporting documentation (e.g., DD form 214 or other substantiating documents) to their submissions.

Saturday, December 06, 2014

Freedom on the Net 2014 (Video)

Freedom on the Net is Freedom House’s annual assessment of internet access, censorship, and internet user rights in 65 countries around the world. This year’s event will highlight the advances and setbacks in internet freedom over the past year, emerging threats to digital media, and the challenges these trends pose to U.S. foreign policy.

Thursday, November 13, 2014

Internet 2025: Can we keep it open and evolving? ISOC Video

Panelists:
Vinton Cerf, Vice President and Chief Internet Evangelist, Google, Marconi Fellow (1998);
Robert Kahn, Founder and CEO, Corporation for National Research Initiatives (CNRI), Marconi Fellow (1994);
Joseph Kakande, Alcatel-Lucent Bell Labs, Marconi Society Paul Baran Young Scholar (2011);
Leonard Kleinrock, Distinguished Professor, UCLA, Marconi Fellow (1986);
Dan Kaufman, Director, Information Innovation Office, DARPA. Moderator: Ali Velshi, Host, Al Jazeera America

d

Is a ccTLD Property? Not in the District of Columbia

This decision comes from an ongoing litigation where plaintiffs, in order to satisfy a debt, sought to attach as property the ccTLDs for Iran, Korea, and Syria. ICANN moved to quash, and the court agreed, holding that ccTLDs are not property subject to attachment. The court wrote

There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Court's discussion of these issues in Network Solutions Inc. v. Umbro Int'l, Inc., 529 SE2d 80 (VA. 2000) is helpful in illuminating the questions presented. There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was "inextricably bound" to the domain name services provided by the registry operator. Id. At 86. The court elaborated: "[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses." Id. The court further observed that allowing garnishment of a registry's services as part of garnishing a right to a domain name would mean that "practically any service would be garnishable." Id. At 86-87.

The Court finds this reasoning persuasive as applied to District of Columbia [where this suit was filed] attachment law as well. The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs' insertion into this arrangement. Cf. United States ex rel. Global Bldg. Supply, Inc. v. Harkins Builders, Inc., 45 F.3d 830, 833 (4^th Cir. 1995) (holding that "where the property is in the form of a contract right, the judgment creditor does not 'step into the shoes' of the judgment debtor and become a party to the contract, but merely has the right to hold the garnishee liable for the value of that contract right").

While interpretations of the DC Code are sparse, they tend to support this understanding of ccTLDs. The District of Columbia Court of Appeals has held that "money payable upon a contingency or condition is not subject to garnishment until the contingency has happened or the condition has been fulfilled." Cummings Gen. Tire Co. v. Volpe Constr. Co., 230 A.2d 712, 713 (DC 1967). Thus, payments under a contract that are conditioned upon completion of the work contracted for are not subject to garnishment because the "existence and amount" of the debt is "contingent and uncertain." Id. While this suit does not squarely fit within the rule articulated by the court in Cummings General Tire, that rule does illuminate the fact that courts may not, through garnishment proceedings, insert a judgment creditor into an ongoing contractual arrangement that necessarily requires continued work or service to have value. Here, the ccTLDs only have value because they are operated by ccTLD managers and because they are connected to computers around the world through the root zone. DC law does not allow their attachment.

Stern v. The Islamic Republic of Iran, Civil No. 00-2602 (DCDC Nov. 10, 2014). See also ICANN's legal filings.

Tuesday, November 11, 2014

Internet Regulation in 2020

The Duke Law Center for Innovation Policy (CIP) sponsored a conference on October 17, 2014 to discuss the future of internet regulation.

Vint Cerf Key Note

Paul de Sa, Sharon Gillett & William Lehr

Tim Berners-Lee, kc claffy, Henning Schulzrinne & Daniel Weitzner

Jonathan Sallet

Tuesday, October 14, 2014

TIA: Future of Video, Competition, and Open Internet Roundtable (Video)

Friday, October 03, 2014

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

Thursday, October 02, 2014

Ugh! No! Trademarking a Few Letters Does Not Mean Any Domain Name Using Those Letters is a Cybersquatter!

In Plaintiff's corner we have Deckers Outdoor Corporation which sells footwear under its UGG brand. In Defendant's corner we have Ozwear, an Australian company that sells sheepskin footwear, and has the domain names ozwearuggs.com and ozwearuggs.com.au. Plaintiff alleges, among other things, that Defendant is a cybersquatter.

Defendant has not responded and one of the things that is interesting about this case is that Plaintiff moves for default judgment. It is interesting because, even though Defendant did not appear, Plaintiff loses!

There are a couple of problems with Plaintiff's cybersquatter claim. As we know, in order to make out a cause of action for cybertsquatting, Plaintiff must

show that 1) Defendants have or had a "bad faith intent to profit from that mark" and 2) "registers, traffics in, or uses a domain name that" is identical or confusingly similar to a mark that was "distinctive" or "famous" at the time of registration of the domain name, or causes dilution of a mark that was famous at the time of the domain name's registration. 15 U.S.C. § 1125(d)(1)(A).

Plaintiff's trademark is three letters: "UGG." Defendant's domain name contains its own name "ozwear" plus those three letters "ugg" plus an "s."

And here's a problem. The term "uggs" is generic for sheepskin boots ~ while "UGG" itself is not generic but is Plaintiff's distinctive trademark.

So if I add an "s" to a distinctive trademark, is it no longer a trademark? Maybe. If adding an "s" turns a distinctive trademark into a generic term, then the trademark owner has a problem. For instance, notes the court, if "CHIP" is a distinctive trademark and you add "s" to make "chips" ~ then the trademark owner don't own every domain name that has "chips" in it.

Plus, notes the court, Defendant uses its own name in the domain name attached to "uggs" to make quite clear that the consumer is not going to Plaintiff's Decker's website but to Defendant Ozwear's website.

After reviewing Plaintiff's allegations, the Court finds that Plaintiff does not allege sufficient facts to show that Defendants' use of the term "uggs" in Defendants' domain names is "confusingly similar" to Plaintiff's UGG Trademark. Plaintiff also does not allege sufficient facts to show that the term "uggs" in Defendants' domain names dilutes Plaintiff's famous UGG mark.

Even in a default judgment case, Plaintiff loses. Tip O' The Hat to the Judge on this one.

Joseph v. Amazon.com, WDWA :: Dismissed per Sec. 230(c) :: Case Summary

Joseph v. Amazon. com, Inc., Dist. Court, WD Washington 2014 (granting Defendant's motion to dismiss based on 47 U.S.C. 230(c), Good Samaritan Provision of the Communications Decency Act).*

Dr. Rhawn Joseph, Ph.D., proceeding pro se, brings this action against Amazon.com, Inc. ("Amazon") and its CEO Jeff Bezos. … Dr. Joseph is an "author and science book publisher" who has sold his books online through Amazon`s website. He relies on "print on demand" ("POD") technology to print the books he sells.

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern District of California. …Plaintiff also alleges that Amazon regularly "publishes and copyrights defamatory and libelous statements about competitors including Plaintiff." He argues in his Complaint and briefing that Amazon is responsible for reviews that he believes to be defamatory, though the allegations are scattered and unclear.

D. Plaintiff's State-Law Defamation and Libel Claims are Barred by Section 230 of the CDA

As the Court understands the Complaint, Plaintiff alleges that Amazon unlawfully published defamatory anonymous reviews of Plaintiff`s books (and Plaintiff) on its website. Amazon argues in its opposition and cross-motion that Dr. Joseph`s claim fails as a matter of law because (i) Amazon is protected from liability under the Communications Decency Act of 1996, 47 U.S.C. § 230, for statements made by reviewers on its website; and (2) the alleged statements are all matters of opinion and are thus not actionable. Upon review, the Court agrees that Section 230 immunity bars Dr. Joseph`s claim against Defendants. Amazon and Mr. Bezos are entitled to judgment on the pleadings on this claim, or in the alternative, summary judgment.

Section 230 of the Communications Decency Act ("CDA") "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc); Carafano v. Metrosplash.com, 339 F.3d 1119, 1122 (9th Cir. 2003). The statute provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Ultimately, a defendant is entitled to § 230 protection as long as (1) it is a provider or user of an "interactive computer service," (2) the asserted claims "treat the defendant as a publisher or speaker of information," and (3) the challenged communication is "information provided by another content provider." Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003).

Amazon is entitled to § 230`s protection from Plaintiff`s defamation/libel/slander/trade libel claim. Amazon constitutes an "interactive service provider," which the CDA defines as a provider of an information service or system that "enables computer access by multiple users to a computer server." 47 U.S.C. § 230(f)(2); see Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1118 (W.D. Wash. 2004) (no dispute that Amazon is an interactive service provider for CDA purposes); Schneider v. Amazon, 108 Wn.App. 454, 463 (Wash. 2001) (finding Amazon to be an interactive service provider and entitled to immunity from claims based on defamatory reviews by third parties). Plaintiff`s Complaint alleges that Amazon operates a website that allows consumers to purchase items online, i.e., to access Amazon`s servers by placing orders and browsing its online store. (See Dkt. No. 1 at ¶ 5.) Second, Dr. Joseph`s claim, whether labeled as a defamation, libel, slander or trade libel cause of action, faults Amazon for acting as the publisher of the reviews. (See, e.g., Dkt. Nos. 1 at ¶ 60 ("Amazon published, copyrighted and claimed ownership" of the allegedly libelous statements); 43 at ¶ 85 ("The above are just a few examples of anonymous[,] defamatory, libelous reviews published by the Defendants."). The CDA`s express terms preclude him from treating Amazon as a publisher or speaker of the information at issue, which is necessary for his state-law claims to succeed. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (recognizing that "the cause of action most frequently associated with the cases on section 230 is defamation[,]" but explaining that the statute`s protection extends beyond defamation causes of action); Kimzey v. Yelp Inc., ___ F.Supp.2d ___, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel, and libel per se claims barred against website that allowed users to post reviews of businesses). Finally, the statements alleged were made by third-party reviewers commenting on Dr. Joseph`s books and videos, and Dr. Joseph himself. (See generally Dkt. Nos. 1 at ¶¶ 25-26, 60; 43 at ¶ 85.) They accordingly constitute "information provided by another content provider" under the CDA`s terms. See 47 U.S.C. § 230(f)(3) (defining "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."). In sum, Plaintiff`s claim against Amazon is barred under § 230 of the CDA.

Dr. Joseph counters this inevitable conclusion with a number of arguments. First, he alleges and argues that the CDA does not apply because Amazon makes "editorial" decisions about which product reviews to publish and which to delete. This argument is without merit. The Ninth Circuit has made clear that such editorial acts (even assuming they are true) are protected: "[S]o long as a third-party willingly provides the essential published content, the interactive services provider receives full immunity regardless of the specific editing or selection process." Carofano, 339 F.3d at 1124. Whether the website operator removes certain reviews, publishes others, or alters the content, it is still entitled to CDA immunity, since those activities constitute a publisher`s traditional editorial functions. Roommates.com, 521 F.3d at 1179-80 ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230."). It is no surprise then that Courts have repeatedly barred similar claims against websites that allow anonymous reviews or other allegedly defamatory content to be posted by third parties. See, e.g., id.; Black v. Google Inc., 457 Fed. Appx. 622 (9th Cir. 2011) (unpublished) (Google not liable for anonymous negative business reviews posted in its online business directory); Kimzey, 2014 WL 1805551, at *2-3 (Yelp! website entitled to CDA immunity from claims based on reviews posted on its site).

Dr. Joseph also argues that Amazon is the "owner" of statements because it "copyrights" them after they are posted. As Defendants' point out, this argument appears to be factually incorrect—Amazon`s standard Conditions of Use expressly state that customers posting reviews own the content and merely grant Amazon a license to use it—and in any event, is unpersuasive as a legal argument because Dr. Joseph still alleges nothing more than Amazon`s fault for publishing content first created and posted by third-parties. On a different note, Plaintiff argues that CDA cannot apply because the reviews make defamatory statements about him as a person rather than about his books. Such an argument is without merit. The essential elements of CDA immunity do not turn on the substance of the alleged statements, but rather, on the party who is allegedly liable for them and whether that party must be deemed a "publisher" to incur liability. See, e.g., Gavra v. Google Inc., Case No. C12-6547, 2013 WL 3788241, at *2-3 (N.D. Cal. July 17, 2013) (claims based on allegedly defamatory videos about other individuals posted on YouTube barred under § 230).

Finally, Dr. Joseph implies that the individuals who posted the allegedly defamatory and libelous statements about him online were "directly associated with the Defendants and may be an employee of Amazon." (Dkt. No. 1 at ¶ 71.C.) This argument fails for a number of reasons. First, Dr. Joseph`s Complaint itself contains insufficient allegations to support a conclusion that Amazon authored any content. Plaintiff relies on nothing more than "mere speculation" to allege that some unidentified Amazon employee might have authored the negative commentary about him without explaining why or how that might be the case. Such allegations are wholly insufficient to avoid § 230`s reach. See, e.g., Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews). Additionally, even if the Court accepted this conclusory allegation as sufficient, summary judgment against Plaintiff would be warranted because he provides absolutely no evidence to support his assertion that any Amazon employee posted the reviews at issue. On the other hand, Amazon has provided a sworn declaration clarifying that Amazon neither creates nor controls the content of any third-party reviews, except that it reserves the right to delete reviews that violate its published policies. That alone would be sufficient to justify summary judgment for Amazon.

In sum, the Court concludes that Amazon is entitled to § 230 immunity for Plaintiff`s "libel/defamation/slander/trade libel" claim.

* The case involved several causes of action. Cybertelecom focuses only on the federal internet causes of action.

Monday, August 11, 2014

FCC RFC :: Eligible Services List for Schools and Libraries USF

Released: 08/04/2014. WIRELINE COMPETITION BUREAU SEEKS COMMENT ON DRAFT ELIGIBLE SERVICES LIST FOR SCHOOLS AND LIBRAIRES UNIVERSAL SERVICE PROGRAM. (DA No. 14-1130). (Dkt No 02-6 09-51 13-184 ). Comments Due: 09/03/2014. Reply Comments Due: 09/18/2014. WCB . https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.pdf
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.txt

The Wireline Competition Bureau (Bureau) seeks comment on a draft eligible services list (ESL) for the schools and libraries universal support mechanism (also known as the E-rate program) for funding year 2015.^{^[1]} In the E-rate Modernization Order, among other things, the Commission restructures the ESL into category one and category two services, streamlines the list of eligible internal connections components to focus support on those services and components needed for broadband connectivity within schools and libraries, and eliminates other services and components beginning in funding year 2015.[2] The draft ESL we release with this public notice implements the changes required by the E-rate Modernization Order. We seek comment on the draft ESL for funding year 2015. Commenters should highlight whether the draft manifests the Commission’s decisions and intent in the E-rate Modernization Order, and to the extent that they find additional changes are necessary, we encourage commenters to be as detailed as possible with their recommendations. The following summarizes the changes we propose....

FCC RFC :: 10th Sec. 706 NOI

1.              Section 706 of the Telecommunications Act of 1996, as amended (1996 Act), requires the Commission to determine and report annually on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”[1] This Notice of Inquiry (Inquiry) initiates the Commission’s assessment of the “availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms).”[2] In conducting this Inquiry, the Commission must “determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” and, if the answer is negative, the Commission “shall take immediate action to accelerate deployment of such capability” through a variety of means.[3] In this Inquiry, we solicit data and information that will help the Commission make this determination.

2.              On August 21, 2012, the Commission released the Ninth Broadband Progress Notice of Inquiry.[4] We asked questions in the Ninth Broadband Progress Notice of Inquiry and have not issued a corresponding report.[5] To what extent do those questions remain relevant or need to be resolved? Since that last inquiry, there have been numerous noteworthy developments in the broadband market and the Commission has continued to take significant steps to accelerate the deployment of modern communications networks. For example, since the last report, the Commission has implemented a second round of Phase I of the Connect America Fund to promote the deployment of broadband-capable infrastructure and more than $438 million in funding has been disbursed, which will bring new broadband service to more than 1.6 million unserved Americans in the next several years.[6]

3.              With this Inquiry, we start anew by analyzing current data and seeking information that will enable the Commission to conduct an updated analysis for purposes of its next report. In particular, we seek comment on the benchmarks we should use to define “advanced telecommunications capability,” explore whether we should establish separate benchmarks for fixed and mobile services, which data we should rely on in measuring broadband, whether and how we should take into account differences in broadband deployment, particularly between urban areas versus non-urban and Tribal areas, and other issues. We seek comment on whether we should modify the 4 megabits per second (Mbps) download and 1 Mbps upload (4 Mbps/1 Mbps) speed benchmark we have relied on in the past reports. We also seek comment on whether we should consider latency and data usage allowances as additional core characteristics of advanced telecommunications capability.[7]
We seek comment on how to address mobile and satellite services data in our section 706 report and on ways to improve the evaluation of mobile and satellite services data. We also seek comment on whether we should establish separate benchmarks for fixed and mobile services, and under what circumstances mobile services may itself satisfy the definition of advanced telecommunications capability and therefore serve as a functional equivalent for fixed broadband that satisfies the definition. For areas where multiple providers have deployed service but none of the services, standing alone, satisfies the broadband benchmark, how (if at all) should we evaluate that deployment for our determination under section 706? Finally, we seek comment on how to improve our analysis concerning broadband availability at elementary and secondary schools. We encourage parties to provide any information that might be useful in our evaluation of broadband availability and welcome innovative ideas on how the Commission can best increase and accelerate broadband availability throughout the nation. We welcome input on all matters relevant to this Inquiry, and seek information on the specific issues set forth below.

Saturday, July 12, 2014

What does the SPEECH ACT have to do with Foreign Judgments and Sec. 230?

In a recent federal court decision in California, the defendant Automattic (aka Wordpress) raised the defense of the SPEECH Act, supporting its Sec. 230 defenses. So what is the SPEECH Act and what does it do?

First, the video tape. In JOUDE v. WORDPRESS FOUNDATION, Dist. Court, ND California 2014, according to the court, plaintiffs, citizens of France,

learned of a blog at the web address [] ("the Blog"). Id. ¶ 11. Titled "The Hoodwankers," the Blog is about Plaintiffs and other members of the Joude family and published anonymously. Id. ¶¶ 11, 13. From February 27, 2014 to March 8, 2014, an anonymous contributor posted a total of twelve separate entries. See McCoy Declaration, Ex. A, ECF No. 1-4, at 35-43. While some of the entries appear to state plain facts about Plaintiffs' family history, others contain negative remarks. Id.

Plaintiffs contacted defendants and asked that the blog be removed. Defendants responded "that they 'were in no position to arbitrate content disputes' but would remove any content 'found to be defamatory or illegal by a U.S. court of law' in a formal order from a United States court. Id." Plaintiffs obtained a French defamation Order and sought to enforce it. Defendant stated "um, I dont think so," citing the SPEECH Act. Plaintiff's did not oppose Defendant's Motion for I-Dont-Think-So and the cause of action was dismissed. With the cause of action dismissed, the court opined that it could not review the applicability of the SPEECH Act.

Okay, but what IS the SPEECH Act?

The CRS provides a nice summary: Emily C. Barbour, The SPEECH Act: The Federal Response to "Libel Tourism", Congressional Research Service Sept. 16, 2010

The SPEECH Act prohibits domestic courts from recognizing or enforcing foreign judgments for defamation in any one of three circumstances:

When the party opposing recognition or enforcement claims that the judgment is inconsistent with the First Amendment to the Constitution, until and unless the domestic court determines that the judgment is consistent with the First Amendment,

When the party opposing recognition or enforcement establishes that the exercise of personal jurisdiction by the foreign court failed to comport with the due process requirements imposed on domestic courts by the U.S. Constitution, or

When the foreign judgment is against the provider of an interactive computer service and the party opposing recognition or enforcement claims that the judgment is inconsistent with section 230 of the Communications Act of 1934 (47 U.S.C. § 230) regarding protection for private blocking and screening of offensive material, until and unless the domestic court determines that the judgment is consistent with those provisions. 74
N 74: Some commentators have noted that, in applying section 230 of the Communications Act of 1934 to foreign judgments, the SPEECH Act only extends protection to providers of interactive computer services even though section 230 protects providers and users of interactive computer services. E.g. , Eric Goldman, New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments , T ECH. & MARKETING L. BLOG (Aug. 11, 2010, 9:20 AM), http://blog.ericgoldman.org.

Moreover, in any of those three circumstances, a U.S. citizen opposing recognition or enforcement of the foreign judgment may bring an action in a federal district court for a declaratory judgment that the foreign judgment is repugnant to the Constitution. The SPEECH Act also permits any action brought in a state domestic court to be removed to federal court if there is diversity jurisdiction or one party is a U.S. citizen and the other is either a foreign state or citizen of a foreign state.

The SPEECH Act ensures that a party who appeared in a foreign court rendering a foreign judgment to which the act applies is not deprived of the right to oppose recognition or enforcement of that subsequent judgment. If the party opposing recognition or enforcement of the judgment prevails, the act allows the award of reasonable attorney fees under certain conditions.

Finally, the SPEECH Act appears to preempt state laws related to foreign judgments.

Now you know.

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