The Cyberspace Lawyer's Blogger

Photos from 2010 WWM

2010-02-02T13:59:00.004-06:00

A few photos from the WWM just concluded at the University of Miami School of Business Administration. I hope those who attended enjoyed the meeting as much as I did!

If you have other photos you might want to share, email them to Michael and he will try to add them to this mix.

Winter Working Meeting in Santa Clara, California, January 2009

2009-02-14T09:42:00.024-06:00

I-WIN (ITech Law - Women's International Network) Networking Meeting in NYC

2008-08-06T14:59:00.002-05:00

Committee member Francoise Gilbert passes on a note about an event I thought many of our members would have an interest in:

If you are attending the Annual Meeting of the ABA, or if you will be in New York on August 8, 2008, please read on.

I-WIN ( ITech Law - Women's International Network) is part of the International Technology Law Association (ITech Law) (formerly Computer Law Association). I-WIN was created to help women who are Technology Lawyers network with each other, and share experience, knowledge, and resources. In the past 18 months, I-WIN has held meetings in London (UK), Las Vegas (USA) and Bangalore (India). Since thousands of women lawyers will be in New York for the annual meeting of the American Bar Association, we thought that this would be another great opportunity to meet and network with other women lawyers from the United States and other parts of the world.

There is no registration fee. Just come, and bring business cards
:-)

When: Friday August 8, 2008
Time: 2pm to 3pm
Place: Hilton Hotel - Hudson Room - 4th Floor
Address: 1335 Avenue of the Americas, New York NY.

This meeting is made possible by the Science & Technology Section of the American Bar Association, which is providing us with access to this meeting room.

P.S. Gentlemen are also welcome :-))

Cyberspace Committee Highlights at 2008 ABA Annual Meeting

2008-07-28T12:16:00.003-05:00

We look forward to seeing many of you at the ABA Annual Meeting in New York in a couple of weeks. Cyberspace Committee meetings begin Friday, August 8 in the afternoon and continue through the morning on Monday, August 11.

The Cyberspace meeting and program schedule is posted here in PDF format for your convenience. The summary notes meeting times and locations as well as a few co-sponsored events.

Please make every effort to attend our phenomenal programs.

The Internet- How it is Governed Today and How it may be Governed Tomorrow: A VIP Panel Discusses the Internet Governance Forum of the UN and the Global Debate about Control & the Future

Co-chairs: Henry L. (Hank) Judy & David E. Satola

Co-sponsors: International Business Law and International Coordinating Committees

Saturday, August 9, 10:30 a.m. - 12:30 p.m. - Juilliard & Uris Conference Level

Paul Twomey, President of the Internet Corporation for Assigned Names and Numbers (ICANN), Bill Graham of The Internet Society, Ambassador Richard Beaird, U.S. State Department, and Marcus Kummer, United Nations Internet Governance Forum, will discuss the international process convened under the auspices of the UN to consider the management and governance of critical Internet infrastructure. This is a rare opportunity to have leaders in the debate about the future of the Internet focus on the implications of Internet governance for businesses and their lawyers.

Anonymity on the Internet - Protecting Corporate Reputations & Consumer Privacy Against Cyber-Criminals & Other Bad Guys

Chair: Peter McLaughlin

Sunday, August 10, 2:30-4:30 p.m. - Juilliard & Uris, Conference Level

Recall the New Yorker cartoon "On the Internet, nobody knows you're a dog." When individuals and businesses are defending themselves, anonymity creates significant insurmountable barriers. Our panel of experts will explore both the policy and technology of anonymity on the Internet.

Cyberspace Committee Forum: Corporate Responses to National Security Letters - A Preview of an Upcoming Book to be published by the Cyberspace Committee - Chair: Sarah Jane Hughes

Saturday, August 9, 8:00 - 9:00 a.m. Juilliard & Uris, Conference Level

It's not easy to write a guide about matters cloaked with secrecy. A group of authors stepped up to the challenge and is now wrapping up a deskbook for business lawyers about National Security Letters. The material will be previewed at the Committee Forum.

The Cyberspace Committee is also co-sponsoring Saving Private Data- What You Don't Know About Information Security Could Kill Your Client's Business, a program presented by the Middle Market & Small Business Committee. Monday, August 11, 8:00 - 10:00 a.m., Empire State Ballroom D, Ballroom Level

The Cyberspace Committee will meet Saturday morning at 9:00 in the Juilliard & Uris rooms on the Conference Level. The meeting will feature a round-up of Committee projects and activities as well as formal transition of Committee leadership to Michael Fleming.

All of the Subcommittees will have interesting discussions of on-going projects. Several will also feature presentations by Committee members or outside speakers.

Electronic Financial Services Subcommittee, Friday, August 8, 1:00 p.m. - Park Avenue Room Mezzanine Level

Developments in managing credit card fraud

Privacy, Security & Data Management Subcommittee, Saturday, August 9, 12:30 - Regency Room, Mezzanine Level

Featuring Valerie Colagero, Privacy & Civil Liberties Officer of the FBI's Terrorist Screening Center will be discussing how The List is managed, how the Privacy office balances priorities, and other good stuff and the Hon. Mozelle Thompson, former Federal Trade Commissioner, speaking about the FTC's Online Behavioral Advertising rules and the implications for any company that markets on the web.

Consumer Financial Services, Internet Delivery & Electronic Banking, Sunday, August 10, 9:15 a.m. Empire State Ballroom B, Ballroom Level

Christina Kunz, co-chair of the Cyberspace Electronic Commerce Subcommittee, will participate in a discussion about electronic contracting.

Internet Governance Task Force, Sunday, August 10, 10:00 a.m. Royale Room, Conference Level

Speakers will discuss planning for the December 2008 meeting of the UN's Internet Governance Forum in Hyderabad, India.

Corporate Aspects of Information Technology Subcommittee, Monday, August 11, 10:00 a.m., Executive Boardroom 19, 14th Floor

Alan Wernick will discuss negotiating strategies for arbitration clauses in information technology and intellectual property agreements.

New Opportunity to Develop Model Contract

2008-07-28T12:13:00.002-05:00

Attendees at the Annual Meeting will have an opportunity to hear about an exciting new opportunity for our Committee that is just getting underway -- A model contract drafting project with potential to be as important to eCommerce as was our seminal work on EDI back in the early 1990's, as well as an opportunity to work with technology specialists from outside of the law to co-develop a new body of work much as we have already done with the Open Group. Professor Jane Winn and member Tom Smedinghoff have introduced us to some new friends, and we are actively recruiting Cyberspace members to take on this new project.

The Liberty Alliance Project is, in its own words, working to

enable a networked world based on open standards where consumers, citizens, businesses and governments can more easily conduct online transactions while protecting the privacy and security of identity information. This world, where devices and identities of all kinds are linked by federation and protected by universal strong authentication, is being built today with Liberty's open identity standards, business and deployment guidelines and best practices for managing privacy.

We will be looking for members to be involved in a project to develop model contracts that members of Liberty-based networks (known as 'federations') could use, as well as to jointly develop a white paper that could be used to explain the legal underpinnings to others. These sorts of projects are the bedrock of what our committee has done in the past to help in the development of eCommerce, and we're excited to be invited to participate in a new project.

Brett McDowell, Liberty's executive director, will be speaking for a few minutes during our main Committee meeting on Saturday morning during the Annual (from 9 until 10 in the Hyatt's Juilliard and Uris Conference room), and we will also have a short technical presentation in the same room immediately after the main meeting is over for those who want to learn a bit more. Since all of you are certainly planning to hold over until our Program on Internet Governance starts at 10:30 in the same room (RIGHT?), it should be easy for any of you who are interested to stick around!

US Dept of State will meet to discuss UNCITRAL IP Guide

2008-05-05T10:07:00.009-05:00

UNCITRAL (the United Nations Commission on International Trade Law) is doing some work on intellectual property issues as they relate to secured transactions -- the current work product is its Draft Legislative Guide on Secured Transactions and its treatment of security rights in intellectual property (IP). IP issues are difficult enough to work through in a purely USA-USA secured transaction, and the transformation to a global context makes it even more difficult. UNCITRAL is considering whether and how these systems may be harmonized to assist in cross-border IP transactions. The draft UNCITRAL Legislative Guide on Secured Transactions and relevant information can be obtained at http://www.uncitral.org/english/commission/sessions.

The Cyberspace Committee's Working Group on International Policy, headed by Hal Burman, has been monitoring developments in this area and is currently soliciting members to add to the committee's perspective and possible commentary.

In the meantime, the U.S. Department of State Advisory Committee on Private International Law Study Group will be holding a public meeting on the United Nations Commission on International Trade Law (UNCITRAL) Draft Legislative Guide on Secured Transactions and its treatment of security rights in intellectual property (IP).

Time: The public meeting will take place at the Department of State, Office of Private International Law, 2430 E Street, NW., Washington, DC on Wednesday May 7, 2008 from 10 a.m. EST to 2 p.m. EST.

Public Participation: Advisory Committee Study Group meetings are open to the public, subject to the capacity of the meeting room. Access to the meeting building is controlled; persons wishing to attend should contact Tricia Smeltzer or Niesha Toms of the Department of State’s Legal Adviser’s Office at SmeltzerTK@State.gov or TomsNN@State.gov and provide your name, e-mail address and mailing address to get admission into the meeting or to get directions to the office.

Additional meeting information can also be obtained from Rachel Wallace at WallaceRA@state.gov or telephone (202)647–2324.

Persons who cannot attend but who wish to comment on any of the proposals are welcome to do so by email to Michael Dennis at DennisMJ@state.gov.

If you are unable to attend the public meeting and you would like to participate by teleconferencing, please contact Tricia Smeltzer or Maya Garrett at 202–776–8420 to receive the conference call-in number and the relevant information.

Ticket Snatchers -- Beware of Minnesota!

2008-04-30T14:09:00.003-05:00

So, I'm fully aware of the political appeal of this new statute my home state has passed (after all, it was being sold to the public as the Hannah Montana bill after the spectacle of parents having to drop four-figure prices in order to get their little cherubs in to see their favorite TV star on stage). That's fine.

But, I'm really struggling to figure out what this bill means, and more to the point whether it could ever be enforced as written. What do you think? (Note that it's a criminal statute!)

(I think this is the version of the bill that was actually signed by our governor, but it's hard to figure that out for sure without paying somebody money to go figure it out. Call me cheap.)

S.F. No. 3139, 1st Engrossment - 85th Legislative Session (2007-2008)

A bill for an act relating to crime; establishing offense related to interfering with Internet ticket sales;proposing coding for new law in Minnesota Statutes, chapter 609.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1. [609.806] INTERFERING WITH INTERNET TICKET SALES.

(a) A person who intentionally uses software to circumvent on a ticket seller's Web site a security measure, an access control system, or a control or measure that is used to ensure an equitable ticket buying process, is guilty of a misdemeanor.

(b) For the purposes of this section, "software" means computer programs that are primarily designed or produced for the purpose of interfering with the operation of any person or entity that sells, over the Internet, tickets of admission to a sporting event, theater, musical performance, or place of public entertainment or amusement of any kind.

EFFECTIVE DATE.This section is effective August 1, 2008, and applies to offenses committed on or after that date.

Breath Machine Source Code Lawsuit in Minnesota

2008-03-11T10:24:00.004-05:00

I blogged a few months back about the running controversy about breath testing machines used by police in drinking/driving cases.

The state of Minnesota has recently filed suit against the manufacturer of its breath testing machines.

Apart from the obvious issues over whether a criminal defendant should have a right to see the source code in the machine used to convict him/her, the suit brings out a point I hadn't thought of yet. Apparently, the state is claiming that the source code is owned by the state of Minnesota based on a contract it wrote with this manufacturer some years ago -- And therefore the manufacturer's acts are alleged to be infringement of the state's copyrights! It certainly would not surprise me to find out the contract says exactly what is alleged in the complaint, given the way the typical government contract is drafted (and the typical process whereby the company, desperate to make the sale, goes along with what the state demands). (Editor's note: I have no personal knowledge or stake in this matter!) Thus, we may not only use this new case to develop a policy on disclosure of source code in crime-testing equipment, but also to show us what really happens when those onerous work-for-hire contract terms actually come out of the drawer and get reviewed a few years later!

And, I bet this won't be limited to breath testing machines. For example, most new cars have computers on board that are connected to GPS systems and other position-spotting equipment which can be used to prove where we were (or weren't) or how fast we might have been going, etc. The manufacturers of those computers may be facing this same issue in the near future. I'm sure anybody taking five minutes could come up with a list of many other future battles over the machines that are used to convict us of crimes. (If you're willing, take a shot in the comments below on what you think the next battlegrounds might be! This is not limited to cars and how we drive them by the way. How about the cell phone hanging off of your belt right now?)

Fasten your seat belts.

The Computer Made Me Do It

2008-02-17T17:14:00.003-06:00

Not entirely on point to the committee, but I couldn't help but share the story from our local paper about the guy who got ticketed for making a left turn notwithstanding an extremely well-marked 'No Left Turn' sign (and barriers, etc.). (Scroll down a bit for the story.) His excuse? Mapquest said it was OK. My favorite line in the story? "So while digital technologies are making it easier to find your way around, there's something less newfangled that you should always bring along: Your brain."

Actually -- Not bad advice for much of what we do with our toys here in Cyberspace.

Domaining Featured in the Gray Lady

2008-02-01T17:17:00.000-06:00

From the NYT...

Mr. Buck and other domainers profit when inexperienced Internet users type those names into their Web browsers, and once on the site click on related advertisements. In the longer term, they hope to resell their domain names for large profits to companies that want to build real businesses with those Web addresses.

Domainers have generally had a negative reputation. Domain-name trading takes little of the actual effort needed to build a business on the Web, instead relying on clicks from people who simply guess at a site’s name or are too lazy to use a search engine. In its early years, the field was dominated by offshore players and secretive, if not illegal, tactics.

Props to Trademark Blog for flagging this.

Bill, Don, and Alan Hard at Work

2008-01-26T11:46:00.000-06:00

Chris and Hassan

2008-01-26T10:44:00.000-06:00

Chris's husband joined us all for Dinner.

Winter Working Dinner

2008-01-26T10:41:00.000-06:00

We continued our exploration of the Twin Cities and visited Il Vesco Vino, a new restaurant in Saint Paul in a historic mansion.

William Mitchell Reception

2008-01-26T10:38:00.000-06:00

Chris Kunz, a professor at William Mitchell College of Law in Saint Paul, organized a reception with the Committee and students from William Mitchell. We all had a great time and convinced the students that Cyberlaw is still cool.

Kunz Avatar

2008-01-26T10:32:00.000-06:00

William Mitchell magazine recently wrote an article about Chris Kunz's work on the legal issues surrounding Second Life. They even created an Avatar for her.

Don Cohn at Work

2008-01-26T10:01:00.001-06:00

Long-time member Don Cohn develops ideas for the update of the book on Employee Use of the Internet

One Laptop Per Child

2008-01-25T11:32:00.000-06:00

John Gregory brought his new laptop from the One Laptop Per Child program.

I think we're all going to try to get our hands on it to experiment while he's here.

Updating "Employee Use of the Internet"

2008-01-25T11:10:00.000-06:00

Vince Polley and William Denny lead a discussion about updating Vince and David Doubillet's book from 2002 on Employee Use of the Internet. The book is still available for purchase here.

The group also discussed the planning for an upcoming seminar discussing the impact of newer Internet technologies on companies, including:

-Employee blogs in which employees divulge information about their employer
-Customer blogs that rant about or expose poor service or product defects
-Generation Y's use of MySpace and other social networking tools

Welcome to the WWM

2008-01-25T09:58:00.000-06:00

Candace kicks off the meeting.

Cyberspace Merchandise

2008-01-25T09:16:00.000-06:00

Chris Kunz's husband has designed some Cyberspace clothing for us to purchase. Contact Chris to place an order.

Dinner Saturday Night -- 3 Spots Left

2008-01-25T08:57:00.001-06:00

If you're interested in dinner on Saturday night, find Chris Kunz. She's made reservations for a small group of those staying over until Sunday for the warmer weather.

Thanks to the Sponsors

2008-01-25T08:51:00.001-06:00

Several local law firms and businesses stepped up to help sponsor the WWM and provide food, drinks, and other amenities. A special thanks to all of them:

Larkin Hoffman Daly & Lindgren, Michael Fleming
Gray Plant Mooty, Jennifer Debrow
William Mitchell College of Law, Chris Kunz
National Arbitration Forum, Kristine Dorrain
Oppenheimer, Wolff & Donnelly Law Firm, Bob Beattie

Putting "Winter" Back into the Winter Working Meeting

2008-01-25T08:47:00.001-06:00

As I always predicted, we'd have a good turnout if we hosted the Winter Working Meeting in a place that actually has winter weather. We've got a large group of new members who are attending. We're 35 strong for the kick off this morning.

Some of the new members include:

Alan Wernick
Chicago, IL

Karen King
Wilmington, DE

Jeff Aresty
Boston, MA

[I'll keep adding as I meet new folks]

Impromptu Thursday Night DInner at Fogo de Chao

2008-01-24T21:00:00.000-06:00

Several of us rode the train from the Mall of America to Downtown Minneapolis to enjoy a Meat Feast at Fogo de Chao.

Winter Working Meeting Overview

2008-01-24T08:47:00.000-06:00

Hello Cyberspacers!

I am really looking forward to welcoming all of you to Minnesota in just a very few days now -- Per the request of a number of you who decided that if you're going to Minnesota it might as well be REALLY cold, I've tried my best to get the big thermostat turned down. No guaranty, but it might actually be a cold-spell next Thursday, so bring a good coat. (And, remember that you'll have cars and busses for most everything you need to do, so don't be overly worried, OK?)

Here is our current draft of the meeting detail for the upcoming Winter Working Meeting here in Minneapolis. You'll note it's set up in the new format Lisa and I discussed with you a few weeks back -- Friday is "Project Day" and Saturday morning is reserved for more traditional subcommittees.

I need any of you who are shown here as being responsible for any of these meetings to get back to Lisa and I with any changes you want made to your project names or descriptions. (In a few cases there are no descriptions, so please help us to fill them in if you are in charge of such a project.)

For those of you who were looking to schedule a traditional subcommittee meeting on Saturday AM, look to see if we've accommodated you. If you did need to meet as a subcommittee (and we have not scheduled you), please let us know quickly. If we have set you up for a slot for your Saturday subcommittee meeting, look at whatever description we've provided and comment accordingly if changes are desired.

Finally -- Look at all of the things that are happening at the same time. We tried to guess how to avoid significant conflicts of projects happening at the same time which should be at two different times, but no doubt there are going to be concerns you can raise on that point. Let us know, and we'll see if we can figure out a fix.

There are still some open slots -- In particular, we have not scheduled the 'big' room at all for breakouts, so we've got more room here (i.e., 2 more project slots and one more subcommittee slot). Given the projected number of attendees (and our recollections of how the last few WWMs went), we're actually thinking that maxing out at about 4-5 slots at a concurrent time is the right number. Still, if a case can be made for expanding that we're all ears.

Finally, please understand as always that Lisa and I will be working our darndest to accommodate what we can, but there are still laws of physics and the like that must be obeyed. In other words, if we come to a conclusion that we're going to have to do something in some particular way, I'm hoping that we'll all live with it, learn how to do this better next time, and move on.

PLEASE PLEASE PLEASE -- Let us know of your requests for changes by end-of-business on Friday (a/k/a tomorrow!).

Cheers,

Michael

CAIT Agenda for Winter Working Meeting

2008-01-18T08:49:00.000-06:00

I look forward to seeing many of you at the Winter Working Meeting next week in Minneapolis. To whet your appetites, I would like to let you know some of the projects and ideas we are working on, and to invite you to submit additional ideas for topics.

We will be meeting on Friday (January 25), jointly with the Internet Law Subcommittee, to plan a program for the ABA Business Section Spring Meeting, currently entitled "Blurring the Line Between Work and Play: Updating the Rules for Employee Use of Internet and Web 2.0 Technologies". This program is our stepping stone to preparing a revised version of Vince Polley's book published by the ABA in 2002, entitled "Employee Use of the Internet and E-Mail, a Model Corporate Policy." We will be looking for volunteers to help develop a new model corporate policy and to draft commentary for the publication. That new policy will take into account issues that were barely visible in 2002, such as the rampant use by employees of blogs, instant messaging, social networking and free web applications both inside and outside of corporate firewalls. We are interested in collecting as many sample corporate policies as we can find, so if you have one or can get one that you can share, please send it to me or bring it along to the meeting.

Another ongoing CAIT project is the development of a comprehensive checklist, with commentary, of IT issues in mergers and acquisitions. Given the pivotal role that IT plays in the operation of any sizeable company, parties negotiating and structuring a corporate divestiture must consider the treatment to be given to its IT needs. We have an excellent early draft, focusing on categories such as negotiation of the purchase and sale agreement, transitioning from a highly leveraged IT infrastructure, assignment or allocation of third party IT rights, setting up a due diligence review of IT contract rights, and the post-closing relationship between the parties. We will welcome your input and assistance in moving this project to completion, and possibly designing a program to be presented at a future Business Section meeting. We will discuss this at our regular CAIT meeting on Saturday morning.

Other current or potential new projects that we will discuss on Saturday may include:

(1) development of form data transfer agreements for cross-border transactions;

(2) review of IT security issues arising out of the use by corporations of software under mass market licenses and consideration of whether questionable onerous clauses should be enforceable;

(3) preparation of articles or podcasts on discrete but related issues such as blogging guidelines for businesses, the corporate "cybersmear" and online reputation monitoring in the face of the rise of a new breed of search engines such as ZoomInfo, challenges to corporate record management policies in the face of new electronic communication practices, and safe harbors afforded by the Communications Decency Act; and

(4) issues relating to the outsourcing/offshoring of first level document review in an era of eDiscovery.

Looking beyond the Winter Working Meeting, if you have an idea for 15 minute presentation for the CAIT subcommittee meeting at the ABA Business Section Spring Meeting on April 10 in Dallas, please let me know as soon as possible. We have an opportunity to get information into the Spring Meeting program guide if we have the information by this Friday, January 18. Please also put on your thinking caps and send me other ideas for projects that would fit within CAIT's scope.

Best regards, and bundle up for Minneapolis.

Bill

Agenda for IP Subcommittee at the Winter Working Meeting

2008-01-18T08:41:00.000-06:00

The 2008 Winter Working Meeting is only a week away!

We wanted to follow up on our last e-mail from November to give you a brief glimpse of what will be happening in Minneapolis next week:

You should have received by now the November 2007 issue of The Business Lawyer, which contains the Annual Survey of Cyberspace Law. Both John and Kristine devoted a lot of time last year to preparing the Overview of 2006 Cyberspace IP-related cases. The Cyberspace Committee would like to make this an annual contribution, and we are looking for Subcommittee members who would like to see their names in print. Start collecting your nominations for 2007 Cyberspace IP cases now and either bring them with you to the meeting or e-mail them to us ahead of time. We will compile them and spend some time discussing them in Minneapolis as we have in past years at the Winter Working Meeting. This will serve both as a useful review of 2007 Cyberspace IP case law developments as well as getting more people involved in this project.

We will also spend some time discussing possible new projects, so bring any thoughts, suggestions or problems that need some work with you (or send them to us via e-mail ahead of time). Some thoughts include:

The advent of social networking and its implications on web development; including, how open source is being integrated into more development platforms to encourage community development efforts. If others are interested in delving more deeply into open source issues as related to social networking, we will discuss project and program possibilities;
Digitization of currently available works (for instance, the taking and display of digital photos of historically significant works) and whether or not these newly digitized works are mere copies of the underlying work, or are derivatives, or something else, and the implications on copyright term. We are interested to hear if anyone is currently addressing these sorts of issues in their practice, and how they are dealing with them;
Possible discussion or program or article on common errors, misconceptions, etc. in cease and desist letters. All you have to do is take a look at http://www.chillingeffects.org to see what we mean;

Inevitably, new topics will be proposed and discussed, either from our Subcommittee or as they are thrown out from other subcommittees.

CIPerati (the IP Subcommittee’s electronic newsletter) is always looking for content. Typical articles are reasonably short (1,000 – 2,000 words) preferably continuing useful, practical content on Internet intellectual property topics. Content can be recycled from law firm or other organization newsletters (with permission), or can be original submissions. If you have written or have seen something that you think fits and want to see it published, you can contact Raphael Guttierrez (rguttierrez manatt.com) or Craig Rutenberg (crutenberg manatt.com) of Manatt, Phelps & Phillips, LLP, the editors of CIPerati, or one of the co-chairs and we will pass that information on. Back issues can be viewed at http://www.abanet.org/buslaw/committees/CL320010/pub/newsletter/home.shtml.

We hope to see many of you in Minneapolis.

Kristine Dorrain and John Ottaviani, Co-Chairs
jottaviani eapdlaw.com
kdorrain adrforum.com

Source Code May Set Us Free

2007-12-11T16:19:00.000-06:00

Or, at least some folks who are putting up a battle against DWI charges in Minnesota. As reported by a local legal blog, a district court judge in Minneapolis is more or less foreshadowing that evidence from intoxilyzer results will be suppressed unless the manufacturer of the machine discloses its source code to the litigants. This has already been the rule for civil proceedings involving intoxilyzers, but this looks to be the first time the rule has impacted criminal proceedings in this state.

Of course, Minnesota is not the only state where this has been brought up in a defense motion to suppress. I understand that to date the manufacturer of this particular device has refused to grant access to the code, although I would welcome corrections to that understanding since I've only learned it through indirect sources.

Regardless of the facts or outcome of the particular battle between the DUI bar and the manufacturer (which in the end is not a battle we're well equipped to analyze other than as it deals with source code), the Cyberspace practitioner should already be well equipped to understand the fundamental pieces of this dispute. The manufacturer is undoubtedly claiming a right to maintain its source as a trade secret, and has so far only allowed its software to be distributed in object code (or lower) format that is not reviewable by human beings. That may well be its right under trade secret law (although we must leave open the possibility of arguments to be made on public policy grounds, or that somehow the manufacturer in this case waived its rights). Some, on the other hand, might argue that a business model based on proprietary code is not a wise one to follow where courts are more and more willing to demand openness. Could this manufacturer find its business model is ultimately a reason for a competitive manufacturer with a non-proprietary business model to step in and take business away? It all remains to be seen of course, and it's an interesting intersection between our world and another one.

DC Bar Pipes Up on Inadvertent Disclosure of Metadata

2007-12-08T11:06:00.000-06:00

The bar of the District of Columbia is the latest to issue a formal opinion on what lawyers need to do about metadata in documents being passed back and forth between adversaries.

The usual admonition to the lawyer doing the sending was there. Pay attention, learn what metadata is, and remove it if it might disclose privileged or otherwise confidential client data -- failure to so remove might itself be an ethical violation on the part of the sending lawyer. No controversy there.

The interesting part is that DC has joined the small chorus of states that have come out contrary (more or less) to the ABA's opinion on what the lawyer on the receiving end should do. Recall that the ABA's point is that the rules are essentially silent on taking advantage of metadata that an adversary should have removed from a document, although they do not go so far as to formally bless the practice. The abstract for Formal Opinion 06-442 (August 5, 2006) Review and Use of Metadata states, "The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." But, at least two other states have formally come out against this view, Alabama and New York. We summarized those positions here. Alabama, for example, strictly prohibits mining of an opponents metadata: "Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party."

The DC bar has struck a somewhat less harsh standard. "A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent." So, if the receiving lawyer is equally ignorant of how this inadvertent disclosure of metadata occurred, the receiving lawyer is free to use the data!

But, I am not sure how that plays out in practice, and even the opinion seems to acknowledge this. If you see data in the received document that is clearly unintentionally disclosed because it's obviously of a nature that the other side wouldn't want you to know, you're essentially deemed to have the actual knowledge cited in the rule.

Such actual knowledge may also exist where a receiving lawyer immediately notices upon review of the metadata that it is clear that protected information was unintentionally included. These situations will be fact-dependent, but can arise, for example, where the metadata includes a candid exchange between an adverse party and his lawyer such that it is “readily apparent on its face” that it was not intended to be disclosed.

(Citations ommitted.)

One might think that pretty much anything you might find in an adversary's inadvertent disclosure that you might find useful in your then-current dispute or negotiation or whatever is going on would fall in the category of stuff that the other side would have not wanted disclosed. Thus, the actual knowledge standard is probably only helpful to the extent meaningless or valueless information is inadvertently disclosed, which might avoid an ethics battle over trivial issues.

So, for the most part, DC lawyers are on notice that if they find meta-goodies in the other side's documents, they must immediately stop using it or examining it, and must "notify the sending party and abide by the instructions of the sending party regarding the return or destruction of the writing."

(I especially liked one aspect of this issuance, which was to clearly distinguish documents created by the other side for purposes of the inter-lawyer discussions versus documents being delivered under a discovery or other court order. In short, if it's evidence, you can't delete the metadata before you send it to the other side, since the metadata is itself part of the evidence. One would hope that this would evident without explanation, but with the ubiquitous use of metadata scrubbers coming into play now we should be careful to avoid unintentionally using them where inappropriate!)

It's also pretty late notice, but ALI-ABA, one of the educational arms of the American Bar Association, is giving a webinar entitled "Confidentiality and Ethics in a Wired World." Check it out soon, since it fires up on Tuesday December 11.

"To" vs. "BCC": An Oldie but Goodie Strikes Again

2007-10-27T15:45:00.001-05:00

For all of the talk amongst the cyberspace cognoscenti about high-technology security problems, it's good to be reminded that almost all of the 'oops' we've seen before today continue to haunt us.

I can't vouch for this story other than what we read here, but for what it's worth it's a good reminder to us all. There are reports out that an email was sent out by the US House Judiciary Committee to a group of people who had sent in anonymous notes to a whistle blower tip-box. The email was reminding all of how their identities were going to be kept secret.

Of course -- You guessed it -- The email was sent simultaneously to 150 anonymous tipsters by putting each of their email addresses into the "TO" field. Thus, everybody on the mailing list now knows the email addresses of the other 149. (Plus, all of the recipients were probably annoyed at having to scroll down through 7 inches of addresses before they got to the message!) The problem would have been mostly avoided by simply putting the recipients' addresses into the BCC field rather than the TO field. (Even then, the ISP that originally processes the email from the sender certainly has all of the BCC list on its logs, at least for some period of time, so it's not a totally safe maneuver.)

Without getting into the almost certain political fun that will follow, we can take this as a lesson. While we all work to stay up to date on the most cutting edge of exploits and security tactics, don't let the old ones fall out of sight and out of mind. The oldies but goodies are just as likely to bite you today as they were when they were new.

Electronic Contracting versus Laziness

2007-10-08T09:29:00.001-05:00

This author has seen a spate of cases lately that some have been citing as the death knell of electronic contracting. To the contrary, I see nothing more interesting than a demonstration of how lazy implementation leads to predictable results. Frankly, had each of the parties in these matters simply followed the practices discussed in our Committee's ongoing series of articles, I doubt any of these contracts would gone bad. But, in each case, the party setting up the contract took the lazy way towards setting up their system. Unlike just a few years ago, where judges were often unwilling to venture into these areas, the bench is now tackling the systems, and calling parties to task for their bad implementations.

In each of these matters, one party set up a system to implement something electronically, either through incorporation in one 'contract' of another set of terms posted on the Web, or through the use of a purported click-through system. But, the party who found himself on the enforcement side of those purported terms or contracts challenged their incorporation or enforcement. Let us take a quick look at two of these examples.

In Federal Trade Comm. v. Cleverlink Trading Ltd., 2007 WL 2875626 (USDC N.D.Ill. No. 05 C 2889), the FTC was doing battle over the remaining assets of the losing defendant in a CAN-SPAM enforcement action. At issue was whether a contract that Cleverlink's former credit-card service, Oceanic, claimed was in place would give the erstwhile Cleverlink's money to that provider or leave it for the FTC. Oceanic and its leader, a Mr. Sholes, admitted they had no signed copy of the contract. But, they did claim they sent an email to Cleverlink that contained a link to an application for the service. "Sholes contends that Cleverlink would have had to click an "Accept" box and then digitally sign the document. [Later], Sholes sent an email to his attorney containing lines of computer code. Sholes stated in the email that the lines of code show that an email was sent to Cleverlink on March 11, 2005 with information on the processing agreement.

One might then hope that Mr. Sholes would have put his computer folks on the stand, maybe to do so little as to authenticate the business records purportedly portrayed in that email, or even better to explain what the email might mean and why. But, I can only gather that he rested his case on nothing more than his email. As we might guess, that did not cut it.

Without explanation, this Court cannot understand the lines of computer code in Sholes' email. Although Sholes stated in his email that the code lines came from Oceanic's servers, he had no first-hand knowledge regarding how and from where the code was retrieved. Sholes also could not interpret the code lines and explain how they can be read to prove that an email was sent to Cleverlink with a link to the [agreement]. Relief Defendants have provided no affidavit or testimony from anyone with actual knowledge of how and from where the code lines were retrieved. Likewise, there is no affidavit deciphering the lines of computer code. Even if the lines of codes proved that an email was sent to Cleverlink, [the card provider] still would be several steps from establishing that Cleverlink accepted the [agreement] submitted to the Court. First, there is no evidence that Cleverlink responded to the email or otherwise visited Oceanic's Web site. Sholes testified that any such evidence was deleted from Oceanic's servers before the FTC served Oceanic. Second, there is no evidence that whatever document was linked in Sholes' email contained the increased chargeback fees [at issue in this matter]. In this regard, Sholes did not retain a copy of the [agreement] and has indicated uncertainty regarding its exact terms. In the end, [Oceanic has] no competent evidence that Cleverlink electronically accepted the terms of the MPPSA.

(Citations ommitted.)

So class, can you go through that last paragraph and put together a check-list for your next client who plans to proffer an electronically-solemnized agreement in court?

(Thanks to committee member Eric Goldman for pointing this one out to me.)

The other case in mind is Manasher v. NECC Telecom, USDC E.D. Mich., No. 06-10749, 9/18/07). Here, telephone company NECC attempted to incorporate terms in the parties' contract that NECC had posted on the web -- A technique our Cyberspace folks have viewed favorably, but only if the incorporation is clear and understandable, and is done in a manner where the other party is clearly shown to have taken an action to agree. Here, the telephone company did just about everything it could to do it incorrectly. It signed up the customers over the phone without mention of a contract, it started to provide the services without any need for the customer to indicate agreement with terms, and it tried to incorporate its web terms by burying a line deep inside of the mailed invoice:

After the phone service began, Plaintiffs received an invoice. The second page of the invoice has five boxes containing five statements. The titles of the five statements are: (1) Recurring Fee; (2) Referral Discount 5%; (3) Preferred Customer Plan 'PCP,' Standard Customer Plan 'SCP;' (4) Rates; and (5) Agreement (Disclosure and Liabilities). [Motion, Exhibit D and E]. The fifth box, containing the statement regarding the 'Disclosure and Liabilities' is at issue. The statement provides "NECC's Agreement 'Disclosure and Liabilities' can be found online at www.necc.us or you could request a copy by calling us at (800) 766 2642."

NECC argued that this was adequate to incorporate the text of 'Disclosures and Liabilities', which was in fact a set of purported contract terms including an arbitration clause that was at stake in this suit. The court did not agree.

The language does not betray a clear intent that the Disclosure and Liabilities Agreement be considered part of the contract between the parties. NILAC, supra. Nothing in the statement clearly indicates that the Disclosure and Liabilities Agreement applies to the service contract between the parties, that it forms any part of the agreement between the parties, or that it is intended to be incorporated into the agreement between the parties. The statement merely informs the reader of where to find "NECC's Agreement 'Disclosure and Liabilities.'" Further, the statement is the last of five statements, written in plain text, on the second page of the invoice. There are no allegations of any other references to the Disclosure and Liabilities Agreement either in writing, or in the verbal dealings with Defendant. Thus, the Disclosure and Liabilities Agreement is not incorporated by reference....

---------------

I believe that had each of the parties setting up the systems in the above cases simply followed, both in their legal analysis as well as in their implementation, the simple principles our group's authors have long espoused, none of this would have come to pass (for them at least...). If you haven't reviewed them recently, take a new look at the two seminal articles published by members of our Committee -- The original Click-Through article, and the later Browse-Wrap article. Professor Christina Kunz and her team of authors in each article have provided clear pathways towards successful implementation.

Of course, it's up to each of you lawyers advising your clients to ensure that these principles actually get followed on the ground in a meaningful manner. Our jobs do not end when we've written text of the agreements. We must be aware of the process used to get those contracts in front of others, and challenge those processes if they do not lead to clean and admissible evidence. Alternatively, if we allow our clients to take lazy ways through these processes, we are likely to be getting called out later when the contracts fail to be enforced because they were never entered into in the first place!

Innovation without Permission

2007-08-27T12:05:00.000-05:00

This article today in the New York Times about Serena Software's effort to create a Web 2.0 platform for company employees to create their own mashups caught my eye.

The company claims that in the current environment of severe cut-backs, company IT departments probably won't be able to satisfy a company's application development needs. The frustrated employees will need to turn elsewhere.

“The generation that is sitting in their dorm rooms building Facebook applications is going into the workplace in the next few years,” Mr. Burton said. “The whole mindset is innovation without permission.”

How should in-house lawyers respond to this trend and these tools? Sounds like a project for CAIT (Committe on Corporate Aspects of IT). What do you think Don?

Boing Boing claims Google Video robs customers of the videos they "own"

2007-08-12T09:38:00.000-05:00

Boing Boing has an interesting post this morning about a Google user who received a letter telling him that the video's he paid for on Google's Video service were no longer going to be available to him. In exchange, they're giving him a credit on the Google Checkout service that will last for only 60 days. Kind of takes the "own" out of Download to "Own" doesn't it.

Why not kick this one around at the meeting.

Committee Forum: Website Agreements -- I Didn't Agree to Those Terms, Did I?

2007-08-11T11:17:00.000-05:00

The Committee continued its long-standing leadership in the electronic contracting arena. After our groundbreaking articles on Click-Through Agreements and Browse-Wrap Agreements, it was time to revisit some new topics that we've seen bouncing around in recent years.

After spending some time in reviewing the prior scholarship, Chris Kunz, Kathy Porter and Juliet Moringiello went over recent cases involving modifications and amendments to contracts done via electronic means. The cases are still in flux, but we see trends that tell us that principals of 'notice' and basic fairness still apply. The biggest sit-up-and-take-notice moment was discussions of a growing trend in a number of states that find that terms in a contract that allow amendment by unilateral postings on a web site may not only be unenforceable on their own, but might even go so far as to cause the original underlying contract itself to be voided!

Eran Kahana and John Ottaviani spoke on the recent discussions (and very thin case law) regarding 'bots' and their abilities to enter into contracts. While it is pretty clear that 'bots' are recognizable players in a contracting situation, we still wait to see how far the courts are willing to let those things play out.

Putting the Winter Back into Winter Working Meeting!

2007-08-11T10:44:00.001-05:00

The Minnesota contingent of our committee is proud to invite all members to the 2008 Winter Working Meeting of the Committee to be held in the Twin Cities on January 25 and 26, 2008.

The event will be held at the Executive Conference Center at the Mall of America in Bloomington.

The world-famous mall is very near to the Minneapolis-St Paul Airport. We will have a block of rooms at a very reasonable price at the Embassy Suites Minneapolis Airport. Free shuttles from the airport and to the mall will be available. And, the MSP International Airport is a very easy airport to reach.

Along with the mall itself, those with families might consider the nearby Waterpark of America as a reason to bring some kids along.

We do promise to keep everybody warm!

More details to follow -- But, we want you all to hold the dates and plan to be with us for Winter Working Meeting 2008!

Program: Net Neutrality--The Great US and Global Debate--What it is About and Why Your Clients Should Care

2007-08-10T13:13:00.000-05:00

Hank Judy and Tom Laudise, co-chairs of the Internet Law Subcommittee, gathered a first-class panel of speakers for the Net Neutrality program held on Friday morning at the 2007 Annual Meeting. The program was sponsored by the Business Section Technology Committee, and co-sponsored by the Cyberspace Committee and the Section of Science and Technology.

Greg Luib from the FTC first gave a helpful overview of the debate, which does require some technological background to follow and he gave it the yeoman's effort to teach a bunch of lawyers how routers work. My own common sense suggests that trying to summarize that description is unwise, particularly since one of Greg's points was that

Then, the debate began. Examples on one side -- Imagine you placed a phone call to reach your local pizza joint, and the phone company suggests that instead of your choice of pizza it might be nicer if you tried their chosen pizza provider, but if you really want to talk to your original joint please hold for three minutes (while others are already placing their orders for hot juicy pizzas from the preferred pizza provider, or PPP). The stronger statements were along the lines of "Don't break the Internet." The argument is that by ensuring that even the smallest of new content provider can get access to the Internet consumer, we can have a chance to allow a garage company of today to become an important player, be it by financial success to become the next Google, or be it by having an ability to reach people it couldn't otherwise reach through traditional media or means of communication.

On the other side of the debate, it was suggested that it is over-reacting to enter into regulation prior to knowing if there is a harm to be resolved, as well as questioning if consumers are being harmed in any of the discussed scenarios. "Balancing the risks is a complex empirical question." Another primary argument is that the ability to add new networks, and create further competition, is a better way to resolve the problem rather than to regulate those networks that already exist. The economic arguments often followed a line that regulating today may lead to results we cannot anticipate. Quoting panelist Michael Katz from an article he recently published, "Public policy should intervene where anti-competitive actions can be identified and the cure will not be worse than the disease. Policymakers must tread carefully, however, because it can be difficult, if not impossible, to determine in advance whether a particular practice promotes or harms competition."

Many speakers cited to a recent report issued through the Federal Trade Commission, a copy of which is found here. In the end, the executive summary of the FTC's report followed the 'caution' model: "In evaluating whether new proscriptions are necessary, we advise proceeding with caution before enacting broad, ex ante restrictions in an unsettled, dynamic environment."

The committee thanks participants on the panel -- Michael Katz, professor of economics at the University of California at Berkeley, David Sohn from the Center for Democracy and Technology, Gail Levine from Verizon, and Markham Erickson representing a group of content providers through his firm Holch & Erickson.

Minneapolis Disaster

2007-08-02T08:31:00.000-05:00

Many of you in our committee have been calling around looking for news about fellow members and friends who live here in Minneapolis in light of the bridge disaster.

I've already heard from a number of members based here in the Twin Cities. I've heard nothing to this moment that suggests any of our members have been directly impacted by this event. Give me a ring or send an e-mail if you've got any particular questions or concerns.

--
Fleming

Lessig to Move On

2007-07-31T10:01:00.000-05:00

I missed this announcement that Lessig made last month. He's decided to shift his energy to battling "Corruption" in public policy. As many of you know, Lessig was the first recipient of the Cyberspace Law Excellence Award given out by the Cyberspace Law Committee. I'm personally sad to see him move on to other issues, but his reasons (as usual) are unassailable.

You can read his announcement, entitled "The Next Ten Years" is here.

Is Your Virus Checker Going to Get You Sanctioned?

2007-06-20T09:27:00.000-05:00

BNA's e-commerce reporter tells the tale this week of a defendant in a federal tax case, who found himself severely sanctioned for spoliation of evidence.

His crime? The court found that after he'd received a subpoena for "e-mail, computer print-outs, and any file, data, or information on a computer disk or hard drive," he nonetheless installed an anti-virus program which also included a feature that routinely 'wiped' the hard-drive of the computer.

The court rejected the defendant's contention that his activity fell within the purview of the e-discovery safe harbor for "good faith routine operations," as provided at Fed. R. Civ. P. 37(f). Wiping a hard drive is not a routine computer maintenance task, the court said, and here it was carefully calculated to deprive the government evidence.

I believe that in most cases the 'wiping' function only serves to completely clean a hard-drive of remanants of a file that has been "deleted" (very much in quotes) by Windows. As most of us know, "deleting" under native Windows does little more than removing the file from the hard drive's file system's directory records. There is no actual deletion of the file until the operating system happens to re-use the space the file had been previously stored in. Since that might take months or years to completely finish, a true deletion of the file requires extraordinary efforts -- Usually with the use of a non-native program known as a wiper. The wiper's principle is to do a true erasure of the former file, done by looking for the space that the files were stored in and over-writing random 1's and 0's over the now 'un-used' spaces on the hard drive to make sure the trash has really been sent out to the trash.

(There are even more obnoxious nooks and crannies within a Windows NTFS hard-drive, including the so-called 'slack' -- If we had to get into that depth I'd bore you to tears. Suffice it to say that "deleting" and Windows are not terribly compatible concepts.)

Wiping actually has little to do with virus-protection, and more to do with the idea that many of us would like to think that when we 'delete' something it actually gets deleted. Since many virus checking programs have since become more generalized suites of security programs, virus checking being just one part, it is entirely likely that many of our computers (and our clients computers) have these wipers installed today, and in many cases the wipers are set to automatically go out on the hard drive and do their jobs.

Therein lies the problem this gentleman had. Once he'd received the subpoena, he had an obligation to maintain the integrity of all of the evidence on his hard drives, which would include the retention of the bits on the hard drive that might have been evidence of files he'd "deleted" prior to the date of the subpoena.

If we give him the benefit of the doubt for a moment, and presume that he never deleted a single (relevant) file (prior to the subpoena or after), what the "wiper" did is wipe out the evidence that he could have used to his advantage to show that he never attempted to delete anything. If the wipe had not been done, a forensics person could have examined the drive and opined that there was no evidence that relevant files had been deleted. By taking away the primary piece of evidence that the forensics person could have used to show the defendant's lack of bad acting, the defendant suffered the sanction of a finding that he had deleted files, that the files would have been evidence of his underlying tax fraud, and the worst flowed from there.

On the other hand, if he had been deleting files that contained incriminating evidence, the sanctions led to the right result. The problem, of course, is that we'll never know. Was this an innocent person who killed his own defense, or was this a person who tried to hide evidence of a fraud and who got his just desserts? The evidence to prove which is forever lost to the wiper.

(That said -- The court did cite evidence of some files that had not been lost to the wiper, indicating a likely pattern of behavior that would not be consistent with the seemingly benign content that remained after the wiper had done its job. In other words, there was at least a significant amount of smoke there, and the court probably felt it was enough to conclude that there must have been a fire there before the wiper had done its job.)

(In this case, the wiper was not actually part of a virus program or suite, but was a separate program called GhostSurf that is designed to delete trails of what one might have visited on the Internet, so I'm not sure why the defendant even tried the argument that this was all part of his 'virus' regime. Likely, it has to do with how much of the public subsumes all 'bad stuff' on computers with the word 'virus.' Again, we should explore what our clients actually mean when they use buzz words like that, since often they are not accurate descriptions.)

The court's harsh assessment of wipers may be a bit over-stated, since wiping a hard drive is very much a routine computer maintenance task for those who are tasked to ensure that data security rules like GLBA, HIPAA and the EU Data Directive (which include obligations to ensure proper destruction of data that the holder is no longer entitled to hold). But, just like everything else, once the subpoena has arrived the rules immediately change. (And, if we find ourselves between the competing obligations of the subpoena and the data privacy rules, we must approach the court and seek relief, and not engage in our own rationalization of how to resolve that dilemma.)

All of which is to say that next time your client receives such a subpoena, particularly one where desktop PC hard drives are in play, be sure to add yet another question to your checklist -- Have you any automated 'wiper' programs in place on any of those systems, and if so have you turned off any automated functions of those programs?

The case is United States v. Krause, Bankr. D. Kan., No. 05-5775, 6/4/07.

(Sidebar: The court made note of how it came to its own understanding of this issue. "The Trustee’s experts presented to the Court a virtual 'live' tour of the imaged hard drives from Krause’s computers. This vastly simplified the Court's understanding of the technical aspects of the spoliation issues. Many of the exhibits referenced in this Order are computer screen shots from that virtual tour." Of course, one might argue that this sort of presentation could be so over-simplified that it could be overly leading regarding the conclusions that should be drawn. While it doesn't appear that this happened to this judge, I would always be very concerned about what an adversary might do in the guise of "helping" a judge understand arcane matters of computer operating systems.)

Gateway Having Trouble Proving Agreement to Arbitrate

2007-06-09T09:17:00.000-05:00

An interesting story surfaced on Slashdot today. A California man has sued Gateway in small claims court alleging he got a lemon. Gateway is trying to have the case kicked to private arbitration, per the arbitration agreement they claim he agreed to.

The customer claims that because the monitor on his Gateway computer was malfunctioning so badly right out of the box, he couldn't read the arbitration agreement, let alone "click" the I Agree button. He claims that during tech support calls, a technician had him bypass the screen altogether. He also claims there was no written documentation with the PC that set forth the arbitration agreement.

The original judge agreed with the customer, but Gateway has asked the court to reconsider its ruling.

This case demonstrates one of the weaknesses of what I call the "gatekeeper theory" of proving assent.

Read the story from the Sacramento Bee.

MINNESOTA LAWYER Blog: Who's your legal tech geek?

2007-05-14T19:40:00.000-05:00

MINNESOTA LAWYER Blog: Who's your legal tech geek? A local legal blog has posted a comment on how both businesses as well as law firms have not reached any kind of consensus on how to address the "intersection of law and technology."

The money quote for those of us who actually do understand that intersection: "Is it time for firms and corporations to develop positions that specialize full-time in legal technology? By assigning that beat on a catch-as-catch-can basis, it seems more likely that new developments in this area could be missed or misunderstood."

Maybe a few of us should visit that blog and post some thoughts, eh?

Metadata Disclosure - Alabama Follows New York, Not ABA

2007-05-09T11:00:00.000-05:00

The Alabama bar has issued a formal ethics opinion, in which it essentially adopts the New York position on a receiving attorney's use of inadvertently disclosed meta-data received from opposing counsel or party (i.e., Don't Do It).

This is in contrast to some of the recent trends. The ABA recently issued an opinion, Formal Opinion 06-442 (August 5, 2006)
Review and Use of Metadata. The abstract for that opinion states, "The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." (Order a full copy of the opinion here.) This is not a specific endorsement of the use of an opponent's metadata, since it merely says the (new) rules are silent on this point. But, remember that this new opinion withdrew a former opinion that specifically condemned the activity. Remember as well that the new ABA opinion arose from a logical result of the ABA's issuance of its new Model Rules, which had removed the specific rule cited in the withdrawn opinion to justify the old position. (I'm not up to speed on whether Alabama or New York have implemented the new Model Rules.)

Regardless, Alabama and New York both hold that the lawyer who has inadvertently received metadata has a duty to avoid use of the inadvertently disclosed information. Under Alabama's rule, "Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party."

They do note that the SENDING lawyer who sent the inadvertently disclosed metadata has independently violated the duty to maintain a client's confidences. On that point both the ABA and Alabama are in full agreement. So, again, if you have not yet installed good meta-data scrubbers on your own systems, do give consideration to that.

(And, of course, remember that meta-data that is embedded in a document that is itself evidence should not be scrubbed when transmitted to the other side in discovery, since the metadata is part of the evidence and to scrub the evidence would be tantamount to spoliation. This rule only applies to documents that are not themselves evidence.)

Zippo Zinged Without Reazon

2007-05-09T10:33:00.000-05:00

I don't know why this keeps happening, but yet another court has misstated the holding of the famous Zippo sliding-scale of interactivity case (Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F Supp 1119 (USDC WDPA 1997). (It isn't entirely clear to me if the confusion arose from the litigants, so I'll reserve my right to re-aim my ire.)

Once again, just so we can get this straight: Zippo is a SPECIFIC JURISDICTION holding. Its author went out of his way to say that the sliding-scale test had no application to GENERAL JURISDICTION.

In Howard v. Missouri Bone and Joint Center, Inc. 2007 ILRWeb (P&F) 1675 [Ill App Ct, 2007], the court went out of its way to reject the Zippo test, saying it had no application to the matter at bar (and that web sites, interactive or not, should be viewed as nothing different than advertising, essentially stating that interactivity is irrelevant to the question of jurisdiction). However, all of the parties were in agreement that the web site in question could only apply for jurisdictional purposes as a matter of GENERAL JURISDICTION. The Zippo rule has no application to claims of general jurisdiction.

There was no need for the court to reject Zippo. It need merely have pointed out to counsel that their cite to Zippo in support of their argument for general jurisdiction was clearly misplaced. Having said that, it does make sense to this author, when doing a general jurisdiction analysis, to view web sites as nothing more than another form of advertising. But, there is plenty to commend the interactivity sliding-scale test when looking for specific jurisdiction -- Jurisdiction arising out of a litigated matter that occurred via that particular interactive web site. (I'm not saying it's necessarily perfect... But, it's certainly better, when used in the right circumstances, than this court seems to allow it.)

Another Judge Questions Admissability of Electronic Evidence

2007-05-09T08:58:00.000-05:00

As further evidence that the judiciary is no longer willing to simply trust computers and everything they say to us, yet another court has undertaken to teach us what will be needed to have electronic evidence admitted. And, it looks to me like the skills that our cyberspace lawyers can bring to the table are well suited to that task.

In Lorraine v. Markel Am. Ins. Co. (USDC D. Md., No.06-1893, 5/4/07), Chief Magistrate Judge Paul W. Grimm laid out a near treatise-length standard on how he would analyze what he calls electronically stored information, or "ESI". And, he reserves his primary critiques not on the parties, or on the technologists, but rather on the lawyers seeking to have the ESI admitted.

Although he ended up discussing nearly every type of ESI that might come up as possible evidence in litigation, much of the opinion focused on e-mail. As noted in the opening paragraphs of the exposition:

[U]nauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.
...
Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self inflicted injury which can be avoided by thoughtful advance preparation.

Lawyers -- Just because it came from a computer does not excuse your forgetting the basic rules of evidence.

I could not possibly even begin to summarize the teachings of the opinion in a short blog entry. Go now and download your own copy here.

Lawyers, the days of simply printing out e-mails and hoping to get them into the court are soon to be behind us. And, cyberspace lawyers: Is this yet another opportunity for you to pose your own knowledge in these areas to the benefit of your litigation colleagues?

Dvorak's Stinging Indictment of the Profession

2007-05-04T16:20:00.000-05:00

Computer industry columnist John C. Dvorak has just published his take on the DVD decryption key case -- And he zooms his focus right on the lawyers who wrote the demand letters.

Because of the lawyers and the nasty letters, now everyone online knows how important this number must be. Boom! Now users get to work on it.

Heck of a job, lawyers.

Investors should be aware of the overall dangers the legal profession present to companies, and how its current and generalized naiveté can sink fortunes overnight. While I know of no corporation that has been bankrupted by this sort of fiasco, it will happen eventually if lawyers doesn't catch up with the times.

Or perhaps some executives should think for themselves.

Who knew that your law degree could be a weapon of mass destruction?

So, what do you think? Is Dvorak right to suggest that if not for naive but fee-hungry lawyers wielding their C&Ds with impunity that the executives never would have gone down this path? Or, would this have reached a head regardless of whether the legal profession was there to assist it? What alternative paths might have the attorneys taken? How do we factor in the role of Congress, which created the rules that the lawyers operate under?

It's your profession under fire folks. The Comment link is functional.

ADA Claims Against Web Site Operator -- Certified Class is Narrowly Defined

2007-05-02T10:00:00.000-05:00

One of our recent Hot Topics presentations at the Spring Business Law Section Meeting in D.C. concerned the question of whether, and to what extent, a Web site operator is subject to the rules of the Americans with Disabilities Act. A suit against Target Corporation alleged that its target.com Web site did not meet the ADA's requirements to make it accessible to blind persons, and sought class action status for all blind persons in the USA.

A few months back, the judge had already cut back on the breadth of the suit, saying that there was no ADA protection available where the claims were purely related to the Web site. She did allow that claims which could be construed as how the inaccessible Web site impeded a blind person from accessing a physical retail outlet might go forward.

In her most recent action on April 25, the judge noted that the class that would be certified for this suit would be "All legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores."

She then followed up with the real kicker -- Apparently the judge was quite concerned that none of the original declarants (the named plaintiffs who represent the class) would be eligible to join the class under this new narrower definition.

Judge Patel allowed that the plaintiffs might still be able to provide declarations to meet the test, or a different named representative, so the suit goes forward with the condition that the plaintiffs' lawyers must come up with at least one named plaintiff who can actually be a part of the class. Nat'l Fed'n of the Blind v. Target Corp., N.D.Cal., No. C 06-01802, 4/25/07)

For the moment, the ADA-specific concerns for Web operators are still rather remote. How site operators might operate in practice is of course a different topic, but for now one better left for those trained in ethics, mores and cost-benefit ratios. (Which is not to say that lawyers should be avoiding those topics in forming their advice.)

News Flash: The Internet Is Still Part of the Real World

2007-04-19T11:36:00.000-05:00

Vince Polley's MIRLN newsletter alerts us to a story out of Florida, where the Florida state bar authorities are on the verge of implementing new rules regarding lawyer advertising that are specifically concerned with advertising on the Internet. That's not so interesting as was a quote from the Orlando Sentinel story about this development. "If the Supreme Court approves the proposed rule, it would make Florida the first state to address lawyer advertisements via the Internet." That's just plain wrong, for one simple reason. Every state authority that regulates lawyers already addresses lawyer advertising -- And internet advertising is, in the end, just advertising. The laws and rules that already exist regarding lawyer advertising should be applicable to the Internet just as they are to newspapers, TV and the back cover of the Yellow Pages. (My guess is that the quote is the newspaper reporter's own characterization rather than by the bar authorities -- So, please forgive my using that as an opportunity for a rant, and no ill will is wished upon those same authorities.)

More to the point -- Why do we always feel a need to create special rules for what happens on the Internet? Where there are distinct differences there might be good cause for special carveouts, but more often than not the "Internet rules" are simply a restatement of what the rules are already in the real world, with the implicit thought that the real world rules didn't apply to the Internet unless we say so. The rules already apply -- The Internet is still a function of the real world, it still applies to how human beings communicate with each other just as pamphleteering, newspapering and broadcasting applied before it. We can apply the same rules to the 'Net in most cases just as well as we can to the other media. Let's get past the fallacy that just because it's the Internet all the rules are off the table, so that we can start to talk about real differences rather than perceived ones.

Authentication? We Don't Need No Stinking Authentication!

2007-04-18T09:09:00.000-05:00

Many lawyers in internet-related practices have become acquainted with some of the research tools out there for investigations. One of the more popular options is the Wayback Machine maintained by the Internet Archive organization. For the 3 persons left on the planet who haven't seen this tool in action yet, these folks have been crawling the Web for years and maintaining html copies of the pages they find -- More or less every site that hasn't made a request to be excluded from the crawl. (Whether the archive has a right to do that, and how all of this intersects with copyright, contract law and the like, is the subject of other threads of discussion.)

On a more mundane footing, when we as attorneys find these wonderful nuggets stored by the Wayback machine, and eagerly seek to get them admitted into a courtroom proceeding for the benefits of our clients, might we take a second to pause and consider the good old rules of evidence? That was the issue in [XXX[, where the plaintiff sought to admit pages printed from the Wayback Machine as part of his prima facie argument. The existence of the older Web pages was not the issue, but rather the admissibility of the information posted therein.

"Where postings from internet websites are not statements made by declarants testifying at trial and are offered to prove the truth of the matter asserted, such postings generally constitute hearsay under Fed. R. Evid. 801."

We all of course remember that there may be exceptions to the hearsay rule, but absent a showing of one of those exceptions hearsay gets kicked. In today's case, the court noted that the plaintiff

lacks the personal knowledge required to set forth with any certainty that the documents obtained via third-party websites are, in fact, what he proclaims them to be. This problem is even more acute in the case of documents procured through the Wayback Machine. Plaintiff states that the web pages archived within the Wayback Machine are based upon "data from third parties who compile the data by using software programs known as crawlers," who then "donate" such data to the Internet Archive, which "preserves and provides access to it." (Novak Decl. ¶4.) Based upon Novak's assertions, it is clear that the information posted on the Wayback Machine is only as valid as the third-party donating the page decides to make it—the authorized owners and managers of the archived websites play no role in ensuring that the material posted in the Wayback Machine accurately represents what was posted on their official websites at the relevant time. As Novak proffers neither testimony nor sworn statements attesting to the authenticity of the contested web page exhibits by any employee of the companies hosting the sites from which plaintiff printed the pages, such exhibits cannot be authenticated as required under the Rules of Evidence.

(emphasis added)

Without the necessary authentication, the evidence that Mr. Novak was seeking to admit was kicked.

Novak d/b/a Petswarehouse.com v. Tucows, Inc., 2007 WL 922306 (USDC EDNY No. 06-CV-1909 (JFB) (ARL), Mar. 26, 2007).

The lesson for us? Simply this -- Don't skip steps just because you got it from the Internet! All of the same rules continue to apply. And, in some cases, those rules may mean that your golden nugget will remain outside the courtroom unless and until you can find a way to authenticate it.

There was a second part of the same opinion which I found equally interesting on a totally different topic, but to maintain thread integrity (!) I shall hold that for another posting...

Open Source News

2007-03-28T13:13:00.000-05:00

From Slashdot:

The Free Software Foundation has announced publication of the third discussion draft of the GNU General Public License Version 3. Because quite a few changes have been made since the previous draft and important new issues have surfaced, the drafting process has been extended and revised to encourage more feedback. The most significant changes in this draft include refinements in the "tivoization" provisions to eliminate unwanted side effects, revision of the patent provisions to prevent end-runs around the license, and further steps toward compatibility with other free software licenses.

Get your copy here.

I guess it's not surprising how long this new version of the GPL is taking to work its way through their system. This third discussion draft is only being issued today -- The second discussion draft came out July a year ago. (Offhand I can't find when the first discussion draft came out, but I'm sure it was some months before the second.) The good folks at FSF are certainly finding out what happens when many folks with varied interests all get to participate in the crafting of a document that will have universal impact on almost all users of software -- Maybe we should get them to connect with the folks over at NCCUSL who were working on UCITA? Think of how much they all have in common now!

Payment Cards and Money Laundering -- Evidence of Reality?

2007-03-26T15:37:00.000-05:00

In our Spring Section Meeting earlier this month, we had an interesting presentation by government and industry folks regarding the potential fraudulent use of payment cards to bypass money laundering laws. While the two groups did not exactly come to agreement, it was this writer's thought that neither side felt that there was all that much evidence of widespread use of payment cards in other than small-time schemes.

Well...

Just recently Florida law enforcement is reporting that they have discovered that a number of the credit card accounts that were the subject of the recent T.J. Maxx hacking incident, where many thousands of credit card numbers were likely revealed, were eventually used to buy gift cards from Wal-Mart stores -- $18,000 and $24,000 worth in two different Florida stores. In turn the bad guys then used those cards at Sams Club locations to buy electronics. (Recall, of course, that Sams Clubs are part of the Wal-Mart empire, and therefore this seems to have been a scheme entirely within a retailer's own private card system, rather than one involving the credit-card branded cards processed through Visa, Mastercard and the like. Maybe the bad guys thought that the private card issuers would be less diligent than the card association issuers? Who knows...)

UPDATE: I've been reminded that the industry terms for those two kinds of cards are 'open loop' (the kind that is branded with VISA or MASTERCARD and is usable pretty much anyplace that can accept credit cards) versus 'closed loop' (the kind that is branded by one particular retailer, for example, and is usable only in that retailer's own stores).

Apparently somebody at Wal-Mart eventually took note of the large card purchases, and ultimately they were able to connect the cards to the T.J. Maxx hacking incident.

This isn't the cross-the-border sort of money laundering that we were discussing in Washington. Nonetheless, these guys certainly viewed the gift cards as another way to 'wash' their stolen credit cards, since the only time the stolen cards would have been used was when the gift cards were purchased rather than at the time the electronics were being purchased.

The good news is that the systems that might catch this seem to have worked (of course, we can say that only for the attempts we know about). The bad news is that maybe the 'hype' isn't quite as 'hypey' as we might have thought.

Electronic Commerce Subcommittee

2007-03-17T12:33:00.001-05:00

The Electronic Commerce Subcommittee continues to attract broad audiences for its cutting edge topics. In this Spring's meeting, we first heard a presentation from Jon Rubens regarding the soon-to-be released web site Safeselling.org. As of today the page is only open to people who are signed on with their ABA user IDs (or at least any of the links under it -- I can't test since I'm signed on), but members can certainly poke around and see it for now. The site is very nearly ready to release to the wild. We hope to have it opened up in a matter of weeks, and shortly thereafter joining in a cooperative effort with the ABA's own media relations group for purposes of really telling the whole world about this great effort.

Beyond that, the subcommittee continues to be interested in developing a body of law surrounding virtual reality gaming -- Both in terms of legal issues here in 'real space' as well as the burgeoning law within the virtual spaces. One thought is to publish an outline of legal issues that Christina Kunz has been developing since our Little Rock meeting -- Just in taking notes she has gathered over six pages of nothing but issues (no answers!). This looks like it has legs for a while...

CAIT Meeting

2007-03-17T10:41:00.000-05:00

Bill Denny, Co-Chair of the Subcommittee on Corporate Aspects of Information Technology, passed along his notes from their meeting on Thursday:

The CAIT subcommittee had a highly dynamic and well-attended meeting. Don Cohn and Bill Denny, the co-chairs, gave brief presentations on IT issues in M&A Transactions. Don focused on the challenges of addressing electronic records in the Purchase Agreement and then implementing the transfer of such records. CAIT is building a checklist and commentary of IT issues in M&A transactions, which it intends to publish as a supplement to the M&A checklist published by the Negotiated Acquisitions Committee and to present at a Program in Spring 2008. A number of people volunteered to help develop parts of this checklist.

Steve Hollman and Dino Tsibouris gave a fast-paced overview of their exciting project on blogs, wikis and social networking in business communications. This Project has proposed a program for the ABA 2007 Annual Meeting as well as possible podcasts, and will package the materials for use by a speakers bureau. It also intends to develop sample business blogging policies to supplement previous publications covering employer internet policies. There was lots of interaction by the participants about the record retention challenges of these new methods of electronic communication.

Ariane Siegel explained her CAIT project of developing short form and long form data transfer agreements for cross-border transactions. These agreements will cover the collection, use and disclosure of personal information. The participants discussed the challenge of facilitating the transfer of data and keeping focus on the process. Don Cohn addressed another CAIT project relating to cybersecurity. It focuses on security holes associated with software, as economics drive the software market to push products out to customers and deal with problems later. Customers can deal with this through warranties, specifications, acceptance testing or indemnities, and the project will come up with sample contract provisions and discussion of ways the clauses do and do not address risk.

CAIT participants came up with several exciting ideas for new projects. Liz Blumenfeld suggested dealing with how corporations are dealing with virtual worlds such as Second Life. There seemed to be significant energy around developing corporate-related issues in this context. Another interesting new project would be to examine mass market licenses and ask what standards should be placed on vendors regarding the terms in these adhesion contracts. Questionable clauses include audit clauses, confidentiality clauses and indemnity clauses requiring licensees to indemnify for licensor's negligence. The project ties in with work being done by the subcommittee on Electronic Contracting Practices. Chris Kunz said this topic related closely to a Loyola LA symposium on contracting out of mandatory rules in the UCC. She is writing a paper for that symposium on the ethics of invalid and iffy contract clauses.

Data Integrity: The Emerging Risk to SOX Reporting, E-Discovery and Information Protection

2007-03-17T10:04:00.000-05:00

The Privacy Subcommittee coordinated a broad expert panel of speakers who taught us something of the potential threats to businesses who depend on data and how reliable it is. A few photographs were used to demonstrate some visible data integrity concerns -- The manipulation of photographs. We took a quick glance at some famous photo manipulations found on the Wired News site. Then Ted Claypool showed us a few examples of his own manipulations, including the photo at top which shows him as a member of a recent space shuttle team. (He's the Canadian team member on the top right by the way. Not.)

Our moderator was Ted Claypoole of Womble Carlyle's Charlotte office. Panelists were Mary Ann Davidson, Chief Security Officer of Oracle Corporation; Francoise Gilbert of IT Law Group in Palo Alto; Paul Doyle of ProofSpace, Inc.; and John Tomaszewski, the Vice President of Policy and Compliance at TRUSTe, the online privacy advocacy and certification organization.

The photograph of the panel that I took early on in the session was pretty good, but somehow Lenny seems to have managed to get into the records and altered it. I am checking into the integrity concerns.

Skipping past the fun stuff, we moved on to discussing how these issues may impact real data. As we have learned in past discussions about data security, data integrity is often more a matter of tracking what has happened than it is preventing that which probably cannot be prevented.
Of course, the panel first tried to define what it was talking about when it spoke of data integrity, something we all want but don't necessarily know what it is. The panel did agree that access/security is not the same thing as integrity, and that helping integrity does not mean the data is any more useful (or not) as Garbage In/Garbage Out still applies. Consensus seems to be that integrity is more of a question of consistency and the ability to link the data's state to a particular point in time.

The lawyers on the panel were more in line with the idea that showing that access had not happened would subsequently be evidence of integrity (the thought being that if nobody was in the room nobody could have changed it). The technologists felt that proof of access (or lack thereof) would not be the point, since we need to focus on somehow comparing the facts at one point to the facts on hand today that we purport are the same as the ones put in the room.

The number of questions from the audience spoke well to the interest in the topic.

Hot Topics in Cyberspace Law

2007-03-17T08:05:00.000-05:00

The committee's always popular Hot Topics forum was held on Saturday morning (the first meeting day that finally broke without storm clouds overhead...).

The speakers (left to right in this picture) this Spring were David Satola from the World Bank, Marc Martin from K&L Gates, Holly Towle from K&L Gates, Juliet Moringiello from Widener University and Ben Beard from the University of Idaho.

Marc opened with a primer on the ongoing controversy known as Net Neutrality. He reminded us that this is both a new battle but also one that has a historical element going back over many years. The telecommunications industry has long had elements of 'how do we categorize' this form of communication, the reason often being that once we categorize the form of communication we have pre-determined the type of regulation. Marc ultimately left us with the idea that this is a battle with many goliaths on both sides of the concern, one that may be very politicized, and that it may take a while for any of us to have any answers about this.

David, who along with member and IP Subcommittee Chair Kristine Dorrain visited the recent Internet Governance Forum in Athens, Greece, presented a short discussion of what happened at that meeting and what may happen next. His presentation contained a summary of the presentation he moderated on legal issues, and you can see the slides in the linked document.

Holly reviewed the recent re-birth of claims by advocates for disabled persons that the Americans with Disabilities Act covered a retailer's web site as a 'place of accommodation' which needed to be set up with proper tools (such as text tags that are used by persons who need to use vocalizers because they cannot see). The case against Target Corporation, which alleges that Target's website did not allow blind people to use their text readers to navigate the site, has recently survived an early round of summary judgment. Holly concluded that the case was not so earth-shaking as first thought, since the plaintiffs' case only survived to the degree they could allege a strong connection between the defendant's physical stores and the site, and particularly how the ability to use the physical stores could be negatively impacted by an ability to use the website. The judge has clearly not allowed claims to go forward that allege only that the website is itself a 'place' for ADA purposes. While the outcome of this case is not certain, it does seem that the more narrow category of sites that have a close interaction with a physical place that is unquestionably covered by ADA should be paying attention to their sites' own usability.

Finally, Ben and Juliet discussed for those of us who are completely absorbed in the law the new phenomenon of virtual worlds and the legal issues arising from them. Ben noted that within the world itself we have a burgeoning economy, with the potential for intra-virtual-world disputes, as well as the odd twist of (in at least one instance) being able to move 'money' from the real-world to the virtual-world and back again. There are already people clamoring to note that these sorts of systems have the legal effect of turning the operators of these systems into banks (or at least one of their cousins in the financial services regulatory world). Juliet reviewed a recently file action by a Second Life member against the service operator. The member alleges that he more or less received property rights from Linden Labs, and that Linden has improperly 'converted' his property (he'd purchased 'land' in the Second Life world) when it chose to terminate his account.

We give our thanks to those who dragged themselves out at 8 AM on a Saturday, and especially to our great crew of speakers.

Kennedy Overlooks Jones Overlooking Nuara

2007-03-17T07:55:00.000-05:00

The picture of a young JFK, in the Presidents Sports Bar at the Renaissance Hotel, stands watch over Chair Candace Jones, who is ignoring Lenny Nuara's under-the-table BlackBerry habit.

UPDATE: Above entry fixed to reflect the correction to Fleming's faulty history, given that he thought it was Gerry Ford in the photograph and originally posted it that way. Thanks to Lenny for the assist -- You must have looked up at least once last night.

A Snowy Night at the Capital

2007-03-17T07:31:00.000-05:00

The weather was beautiful here in D.C. -- The night before we all arrived. Pretty much from that point forward, it rained almost continuously. This writer ultimately ventured into Chinatown to see if he could find the usually ubiquitous $5 umbrella, but none were left. The rain lasted all day on Friday, with no letup.

Actually, that's not true. At about 8 o'clock in the evening, walking home from dinner, there was something familiar to those of us from the North falling from the sky.

The snow really was quite pretty, and hopefully this photo will let you see a bit of that.

Subcommittee on Internet Law

2007-03-16T16:30:00.000-05:00

From Hank Judy, Co-Chair of the Subcommittee on Internet Law:

The meeting of the Subcommittee on Internet Law featured a presentation on the US SAFE WEB Act of 2006 (the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders Act of 2006") by Shaundra L. Watson who serves as a Counsel for International Consumer Protection in the Federal Trade Commission’s Office of International Affairs. The Act was enacted in December of 2006 and grants the FTC broader authority to pursue foreign spammers, phishers and other online fraudsters and scammers. Now the FTC has authorities similar to those granted the SEC, the Commodity Futures Trading Commission and federal banking agencies. Hank Judy, who chaired the meeting, noted that cross-border online fraud of all kinds is a rapidly expanding threat to business and consumers alike and that, while the Act was largely procedural in nature, it is a key protection for the online world and will become an even more important protection in the future. He said that this fact, plus the fact that the Act has not received the public notice that it deserves, are reasons why the Act was a topic of importance to the Internet Law Subcommittee.

Ms. Watson's presentation covered the Act's provisions dealing with pre- and post-judgment enforcement litigation in foreign courts, information sharing with foreign law enforcement agencies, investigative assistance to foreign law enforcement agencies, enforcement relationships, reporting requirements under the Act and the Act's sunset provision. She emphasized the extent to which the Act clarified existing authority rather than adding new authority. Here is a copy of Ms. Watson's excellent PowerPoint and a copy of the Act.

Pre-Paid Cards & Anti-Money Laundering: Hype or Reality

2007-03-15T13:40:00.000-05:00

Judie Rinearson, co-chair of the Electronic Financial Services Subcommittee, kicked off her group's presentation on payment cards and the risks inherent in offering such services and products. A stellar cast of panelists was on board, including representatives from industry and government. In fact, this was split up as two different panels -- The government panel and the industry panel. Judie promised that no rumble would ensue, and we crossed out fingers accordingly.

The initiation of a seemingly simple activity like issuing the electronic gift cards tends to open one up to a panoply of federal and state obligations. Fortunately, many of those obligations are limited to entities that are banks. But, many non-bank issuers are still going to follow the same rules, either because they volunteer to them OR because the banks they are using as a service provider insist on it. Thus, we do not avoid having to learn about this simply because we are not representing a bank. And, the trend is towards more regulation.

The government panel started first. Courtney Linn from the Justice Department opened (and, as always, noted that he speaks only for himself and not as a representative of the U.S. Government). He pointed out that the burgeoning cash card phenomenon has quickly been seen as a potential alternative method for carrying cash for contraband transactions. The recent Drug Trafficking Assessment stated as much, and offered evidence that this is not merely a hypothetical. Courtney related that many of the existing statutes involving banking, bank secrecy, money transmitting and the like are now being applied to stored value cards. However, there are some shortcomings in the current structure, particularly when looking at powers given to the federal regulators versus the states.

On the other hand, Donald Semesky, speaking on his own behalf and not his employer the DEA, noted that he had no hard evidence that the serious traffickers are actually used stored value cards. There is some anecdotal evidence of cards being used in street-level transactions. There is evidence of it being used in banking fraud cases (where the resulting cash is deposited into a stored value card). He notes that the methods used for cards to be used as a money laundering device tend to increase how much the drug trafficker is noticed. Cash is collected, and the traffickers want to keep it simple and simply move the cash around rather than transform it into the banking system (let alone pre-paid cards). Don noted that the cell phone industry is going to create the next real wave of money transfer, and that his group is probably more concerned about the cell phone money-transfer system than it is the pre-paid card system. That said -- He does believe there is ultimately motivation for the traffickers to want to move to a non-cash system, and that in time they may move towards the systems that so far are more hypothesis than reality.

The industry panel picked up the discussion and continued the theme -- Is there really a problem out there? Are there mechanisms in place in the existing system that should mitigate the chance of pre-paid cards becoming a serious source of contraband funds transfer? Retailers, representatives of national banks, and others more or less concluded that this is not a system that is ripe for use as a serious money laundering facility. While there are certainly going to be examples of small-time fraudulent use, the industry folks certainly did not believe that there was ever going to be a big problem here.

In all - There appeared to be some degree of agreement between the two factions, at least to the extent that the problem has actually appeared in the wild. The disagreement if there was one is more in the matter of how likely this is to happen tomorrow, and even there we didn't exactly here a sky is falling statement from anybody. Certainly, caution is called for by all, but this listener came to the conclusion that 'hype' is the answer (if we're asked to answer).

Query -- Our (exceedingly cutting edge) gang has already been pondering yet another twist -- Money laundering by way of virtual economies that allow one to transfer 'value' out of 'real' money, into virtual money, and back out to 'real' money. Will we see Second Life as a new form of banking?

UPDATE: Committee member Stephen Middlebrook's own blog emoolaw.blogspot.com has just been updated with yet more interesting information on the subject of payment cards and money laundering -- Take a glance.

Make a Difference in International Internal Policy

2007-03-14T22:05:00.000-05:00

Hal Burman and the Working Group on International Policy is a great forum for those of us who want to have input on the world stage of internet law -- He presents thoughts below on what the group will be discussing on Thursday:
-----------------------------------------

The WG on International Policy (Room 154A Level 1) meeting at 4:30 Thursday will take up issues directly relevant to several Cyberspace subcommittees, some of which also meet Thursday; hopefully some attending two of the other meetings can join the 4:30 so we assure coordination.

Consumer protection (which meets at 12:00): We are asked for views by mid-April on consumer rights and e-commerce to respond to two proposals at the Organization of American States to deal with that, in particular a proposal from Canada.

Transferability of electronic assets (which meets at 1:00): we have been asked to prepare for Uncitral at the UN a short description of our views on transferability in light of current developments. Cyberspace Committee input would be needed by the end of the month or at the latest early April. This is an opportunity to promote possible UN work in this area, beyond that related to maritime cargo, if we take the lead.

Electronic payments (which meets at the same time, so this will be challenging): we were asked whether we should support an informal proposal by IMF to reexamine the Uncitral Model Law on Electronic Funds Transfers, in light of current e-commerce and other developments, and experience of the payments industry (the Model Law, used as a litmus test for countries adopting laws or regulations on EFT, was designed to be compatible with the Brussels-based SWIFT system and UCC 4A).

E-signatures and authentication: we have already passed on the views developed at the Winter Working Meeting, but need to further consider our posture on that for a UN meeting in early July. Volunteers (self-funded) to attend a UN conference in Vienna in mid-July on private commercial law featuring e-commerce as one of its main topics will be welcomed this week or anytime after.

Privacy of data: this has been raised recently as a possible UN topic in several fora. Input on whether we should support further multilateral examination of topics related to privacy, or continue to duck it, would be most helpful.

A couple of room changes...

2007-03-14T10:53:00.000-05:00

Stephen Middlebrook let me know:

The "Hype or Reality" program scheduled for Thursday from 2:30-4:30 has been moved from room 141 to 144A.
The Electronic Payments Working Group meeting on Thursday from 4:30 to 5:30 has also been moved from room 141 to 144A.

Spring Meeting -- The final schedule is posted!

2007-03-13T18:55:00.000-05:00

I've just uploaded my final draft of the detailed progamming schedule for the Cyberspace Committee's activities in Washington this week. You can download your own copy here.

This promises to be a great meeting, with over 5 major programs either sponsored or co-sponsored by Cyberspace and many of our subcommittee and working group meetings featuring substantive 'mini-programs' in topics of relevance. I hope that we will see many of the readers of this blog at the meetings starting this coming Thursday.

Our usual blogging crew promises to be on hand, and we will try to post our usual mix of meeting reports, photographs, trivia and other fun content, so please try to check back often through the end of the meetings scheduled for Saturday afternoon.

Illinois Legislator Tries to Ban Social Networking Sites

2007-02-14T07:13:00.000-06:00

Here's a link to the full text of a bill introduced by an Illinois Legislator to require public libraries and schools to block access to social networking sites. Interestingly, the bill doesn't define what a social networking site is.

So, please don't leave a comment on this post, because I wouldn't want a library in Illinois to block access to our blog.

Source: Slashdot

Register NOW for the Committee Dinner!

2007-02-13T11:49:00.000-06:00

The Committee on Cyberspace Law will hold their Committee Dinner for the Section of Business Law Spring Meeting in Washington, DC on Thursday, March 15, 2007. Dinner officially starts at 8 PM that night. We will be at the Jaleo Restaurant in Crystal City, Virginia.

Your cost -- A mere $40.00 per person. And -- Complimentary transportation to Jaleo Restaurant will be provided to all persons registered for the dinner!

(As always, CLC has amongst the lowest (if not the lowest) pricing for its dinners amongst all of the Section of Business Law -- And, we would think that ours are also the coolest of all, but that's just our opinion...)

To learn more about Jaleo Restaurant click here.

To register for the dinner (note: you must first be registered for the Spring Meeting, or do the dinner reservation at the same time as you register for the meeting) please click here to visit the ABA's online meeting registration system. After logging in, please select the Cyberspace Law Committee dinner and follow the prompts to complete your registration.

For your convenience a printable copy of the registration form is available by clicking here.

The deadline to register for the Cyberspace Law Committee Dinner is Wednesday, February 28, 2007.

Done in a Gliffy...

2007-02-13T11:37:00.000-06:00

I've been pondering the growth of online 'collaboration' tools much of late (part of my work for other parts of the ABA than the CLC).

Most of the interesting stuff seems to come from outfits that get a good idea involving a little niche, which ultimately gets popular and forms a new industry in the world of the big boys. "Writely", the online word processor that allows multiple parties to play with the document online at the same time, is a great example of this. Although the writely tool is still a bit of a kludge, it's a significant move towards a viable collaborative environment (i.e., one that my boss would be willing to spend time in for doing real work, and not just the fault-tolerant techies like myself).

The new one I've just come across is Gliffy. This one allows you to start drawing up diagrams and other graphics, sharing and playing with it at the same time with many others, saving in popular file formats, etc. (Cool stuff...)

The only question left in my mind is when it will be that any one of the GYM companies (I'll leave it to you smart readers to figure out what that acronym might mean--it's three different companies who are each big in the online space...) will be either buying them and/or doing the same thing themselves.

If the FBI can't keep track of 'em...

2007-02-12T12:22:00.000-06:00

The AP is reporting that the inspector general with jurisdiction over the FBI is reporting that the Bureau's losses of laptops have been reduced significantly from a prior study (previously about 11 1/2 per month, now reduced to about 3 1/2 a month).

Still -- That's over 3 laptops a month, any one of which might contain crown jewel-level information. "'Perhaps most troubling, the FBI could not determine in many cases whether the lost or stolen laptop computers contained sensitive or classified information,' said the report."

This post is not here to bash the Bureau -- Rather, it's a wakeup call for the rest of us. If the FBI is having trouble doing this, can we expect organizations whose entire raison d'etre is not security to keep up? Not that we shouldn't be trying, but do have a realistic point of view on how much can be achieved (and, more important, presume that your best-laid-plans will fall victim to human beings' own issues).

MIRLN -- Misc. IT Related Legal News [20 January – 10 February 2007; v10.02]

2007-02-10T11:49:00.001-06:00

Vince Polley's periodic newsletter known as MIRLN (Misc. IT Related Legal News), a free product of the American Bar Association’s Cyberspace Law Committee and Dickinson Wright PLLC, is out with it's latest edition. You can read it in full here.

Highlights from this new issue include:

SIX WAYS TO PROTECT YOUR SYSTEMS IN A MERGER
TECH FIRMS, RIGHTS GROUPS TO FORM WEB CONDUCT CODE
GAMBLING SUBPOENAS ON WALL ST.
ITALIAN COURT RULES DOWNLOADING ISN’T A CRIME IF NOT FOR PROFIT
E-MAIL FROM THE GRAVE? MICROSOFT SEEKS PATENT ON ‘IMMORTAL COMPUTING’
PARENTS PREVAIL OVER BIG BROTHER IN FIGHT OVER KIDS’ IDENTITIES
ONLINE NORDIC BANKING THEFT STIRS TALK OF RUSSIAN HACKER
VIACOM TELLS YOUTUBE: HANDS OFF
EBAY BANS AUCTIONS OF VIRTUAL GOODS
CORPORATE BLOGGING PAYS FOR GM
EMPLOYERS WINNING BLOG SUITS -- SO FAR
VISTA’S LEGAL FINE PRINT RAISES RED FLAGS
COURTS TURN TO WIKIPEDIA, BUT SELECTIVELY
NAVIGATING SALES TAX LAWS
GOOGLE MOVES TO DISARM SEARCH ‘BOMBS’
APPEALS COURT ADJUSTS PRIVACY-AT-WORK RULING WORKERS HAVE RIGHT TO EXPECT SECURE PCS UNLESS GIVEN NOTICE
FIRST SALE DOCTRINE APPLIED TO AUDIOBOOKS

Members of the ABA Cyberspace Law Committee automatically receive MIRLN postings (about every third week); members can manage their subscriptions here (find the “Listserves” box; MIRLN comes through the CLCC-MEMS listserve).

Others who wish to be added to the MIRLN distribution list should send email to Vince Polley with the word “MIRLN” in the subject line, and similarly will be removed from the distribution list after sending email to Vince with the words “MIRLN REMOVAL” in the subject line. (Need to know Vince's e-mail address? Well, you'll have to go do some digging... You have enough info in this posting to go find the answer though!)

Recent MIRLN editions are archived at www.vip-law.com and blogged at http://mirln.blogspot.com/.

Photo Gallery

2007-01-31T09:56:00.000-06:00

Since I couldn't possibly post all of the wonderful photographs that people shared with me, including those from Roland and from Francoise, I've taken many of them and put them up in a separate gallery, which you can visit here.

From CLCC WWM 2007...

Please go enjoy! Someday when I have time I'll try to add captions... (Time -- What a concept.)

And, if you took some (reasonable number of...) photos you would like to share with the rest of us, please e-mail them to me and I will be glad to add them.

Floppies Are Dead

2007-01-31T00:07:00.000-06:00

The BBC is carrying a story that "Computing superstore PC World said it will no longer sell the storage devices, affectionately known as floppies, once existing stock runs out."

Cue the funeral dirge.

Anyone want to guess how many years it will take for the USB Thumbdrive to die?

USS Agin (NCC-2007)

2007-01-30T09:38:00.000-06:00

As a dedicated fan of this blog, Warren Agin took to heart our request that we have some Enterprise models made out of old diskette cases brought down to Little Rock. Not only did Warren follow through, he made his own improvement on the design by using some of the actual diskette as a new piece of cowling for the front of the ship.

Of course, after asking all of you do to the same thing, I'm unhappy to report that I rummaged through my home and could not find an old floppy. I must have taken housecleaning to too much of an extreme...

PREVIOUSLY: What it's Really All About...

Kudos for Our Writing Teams

2007-01-29T15:43:00.000-06:00

Eran Kahana and Elizabeth Bowles, co-authors of a recently published Business Law Today article on the famous incident regarding Sony-BMG and DRM software that ran amuk, have been receiving kudos from readers regarding their work. "Very well-written and helpful and, of all things, refreshingly clear," said one reader. I, of course, totally agree.

And, if that sort of thing does not suggest to you that writing for BLT is a good thing for you to get recognized in the national legal community, well -- I don't know what would! Remember -- If you think you should be the next one of the Committee's members who gets that sort of message, get in touch with Vince P, Juliet M, Candace J or myself and we shall set you on the path.

EFF's Internet Law Treatise

2007-01-29T10:56:00.000-06:00

We were joined at WWM this year by Lee Tien, Senior Staff Attorney at the Electronic Freedom Foundation. Lee sat in and added his own and his organization's point of view to many of our discussions, and we all look forward to more time with him in the future. You can pick up a bit of Lee's own bio by scrolling down on the EFF's staff page at http://www.eff.org/about/staff/.

Lee pointed out to me that the EFF is currently in the process of drafting its own wiki-based summary of Internet law, currently housed at http://ilt.eff.org/index.php/Table_of_Contents. The Internet Law Treatise is a project to maintain a treatise summarizing the law related to the Internet with the cooperation of a wide variety of attorneys, law students and others. It is apparently based on an earlier publication issued by the Perkins Coie firm from 2003, which has allowed EFF to run with this on the proviso that we all acknowledge that Perkins is not responsible for the results. (In a sense, this is quite similar to how Prof. Larry Lessig has issued a 2nd edition of his famous Code and Other Laws of Cyberspace, known as Codev2, which was largely developed by others working on top of the 1st edition through a wiki set up by Prof. Lessig.)

The EFF's project is not officially sanctioned by the Committee, nor do we participate in it as an ABA effort. But, we are happy to pass on Lee's request that we let our members know about this, since we are certainly not the only game in this town. If you are interested, contact Kurt Opsahl at the EFF for information on getting access to the wiki for participation. (And, let us know if you get involved!)

UPDATE: Kurt himself just contacted me to remind me to remind you that the current draft you see of the Internet Law Treatise is most definitely a beta, and should be read with that in mind -- Which demonstrates the need for good lawyers to come in and assist!

Taking EULAs to Task

2007-01-28T23:18:00.000-06:00

Boing Boing comes through yet again with a very interesting site dedicated to lampooning those horrible, one-sided EULAs. Claiming they are likely not enforceable, this site is dedicated to helping the little guy fight back.

Here's the text of their Anti-EULA:

READ CAREFULLY. By [accepting this material|accepting this payment|accepting this business-card|viewing this t-shirt|reading this sticker] you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

They even have t-shirts, bumper stickers, and stickers you can add to your stationery, the backs of your checks, etc. Here's a sample of the t-shirts:

At the wrap up from the Winter Working Meeting, Chris Kunz mentioned they were contemplating another article on the enforceability of online agreements. They've covered how to get a binding click, and whether click free can still constitute a contract or otherwise bind a party. The next article is to be about modifying online agreements. Perhaps we should invite these guys to participate in the process. It would certainly make for an interesting discussion.

They even have a link to submit examples of abusive EULAs. I bet we'll find some good examples during the drafting process for the third article. Here's the link.

Finally, the profits from the sale of a lot of the paraphernalia go to EFF.

ReasonableAgreement.org

Swedish Embassy in Second Life

2007-01-28T23:06:00.000-06:00

Proving yet again, that our meetings cover the most timely of topics, I read a news blurb on the world's best Blog, Boing Boing, that the Swedish Institute, an agency of the Swedish foreign ministry, will be establishing an embassy in Second Life. And we thought we were being avante garde by talking about the tax implications of gigs like Second Life.

Just think of the legal issues surrounding the establishment of an embassy: Passports, Visas, even requests for Asylum. Let's do a joint program with the Immigration Section of the ABA.

Here are links if you'd like to read more:

Boing Boing Post
Swedish News Article
The Swedish Insitute

Yag tale inte Svenska. (Which I think means, "I Love Sweden," but my Swedish is a bit rough.)

The Transferrable Records Guys

2007-01-27T10:52:00.000-06:00

Mattias, Mike, and David, asking, whether it's a payment intangible, a general intangible, a receivable, or something else. Why, Oh Why, can't we just create Article 3A?

Perusing History

2007-01-27T10:32:00.000-06:00

Michael Gordon, checking out the history walls in the Library.

Sitting in the Big Guy's Chair

2007-01-27T10:30:00.000-06:00

Elizabeth Bowles arranged for a tour and dinnner at the William J. Clinton Presidential Library. Several of us had the opportunity to sit in the President's chair at a replica of the Cabinet Room. I think John Gregory looks the most Presidential (which is odd, since Canada doesn't have a President, go figure!).

If anyone want's the image file for their picture, send me an email. I'm not posting my address here for obvious reasons. Candace or Michael Fleming have my gmail address if you don't.

Can you spot Clinton's laptop?

2007-01-26T22:17:00.000-06:00

From the Oval Office reproduction at the Clinton Library...

The President's laptop (and it isn't a Macintosh!) looks like a clunky IBM ThinkPad. But, it has a cool logo on the lid.

(the Macintoshes were downstairs)

Watching Presidential Comedy at the Clinton Library

2007-01-26T22:13:00.000-06:00

From Friday night's dinner at the Clinton Library, a crowd of Cyber-spacers entranced by President Clinton's videos.

CAIT "blog-policy" project

2007-01-26T10:42:00.000-06:00

The CAIT subcommittee discussed (09:00-11:00 today) the question of company-related blogs (both "official" and unofficial, including employee off-company blogs), and the related legal exposure issues. Steve Hollman prepared a good collection of related news and materials, and others (Will Suchan and Robt. McKew) sketched specific implications for speciality employers (i.e., the US Military, and outside law firms, respectively). Vince Polley referenced a 2002 ABA book on "Employee Use of the Internet & E-Mail (a model corporate policy)" which pre-dates blogs, wikis, podcasts, IMs, and VoIP exchanges; this book is ripe for an update.

The group determined to pursue a possible panel program at the ABA Annual Meeting in San Francisco this coming August on this subject, with an objective of producing material that can be integrated into an update of this ABA book. The program presentations (e.g., in PowerPoint) would be designed to be re-deliverable by audience members to other, downstream audiences (with detailed speakers notes, ancillary materials, and audio-recording of the August presentation).

As a first matter, the group will refine a list of possible legal issues (prepared by Steve Hollman), and begin to build a list of possible panel participants who would help build the internal program-application to Candace. If you're interested in participating, please contact Steve Hollman or Bill Denny.

Plenary Session Opens

2007-01-26T08:42:00.000-06:00

We are underway in Little Rock!

(And, many of us are actually awake!)

Committee Chair Candace Jones, overcoming her dislike of Mics (not Mikes though) had her famously short plenary session going -- And then, we're all off to work!

Little Rock Restaurants

2007-01-24T23:02:00.000-06:00

Elizabeth Bowles has provided us with a directory of restaurants (PDF - about 3 MB) from the local Convention and Visitors Bureau. Elizabeth has also added her own editorial commentary, complete with ratings (ranked by number of Aristotles -- You'll just have to look I guess...). Don't be stuck in the hotel restaurant all the time!

The Debate over Deep Linking Isn't Over

2007-01-23T21:35:00.000-06:00

A Texas Court ruled that deep links to an audio file posted on the Internet violate copyrights. Hmmm. I thought we'd figured this one out already--with the opposite result being the usual result.

It turns out the defendant was pro se. Maybe that had something to do with it.

Here's a link to the Judge's decision.

It's only 319 miles from Little Rock to Dallas. Maybe we should make a road trip from the Winter Working Meeting and see if we can file an amici in person?

What it's Really All About...

2007-01-21T17:31:00.000-06:00

So, despite all of the time we spend convincing our bosses and spouses that we're working on this cyberlaw stuff because it has deep and overarching meaning for the future of the world, we all know better, right?

It's because we get to hang out on the Web long enough to eventually find out how to turn metal parts out of old floppy disks into models of the Starship Enterprise.

I'll expect to see at least 50 of these when we meet in Little Rock. (Be careful -- Sharp edges! And, from the wiki -- "Warning: Do not attempt to place your new model into a floppy disk drive.")

[props to Lifehacker]

Schneier Revisits Vendor Liability as The Cure to Bad Software

2007-01-20T21:47:00.000-06:00

Bruce Schneier, long a favorite of many of us, has posted an essay on his blog that revisits his long-standing position that one reason software continues to be so bad is that vendors continue get away with walking away from responsibility for their actions. This time, he puts it in terms we may remember from freshman economics:

[W]hat the vendors do not look at is the total costs of insecure software; they only look at what insecure software costs them. And because of that, they miss a lot of the costs: all the money we, the software product buyers, are spending on security. In economics, this is known as an externality: the cost of a decision that is borne by people other than those taking the decision.

I was reminded yet again today of those externalities when I opened my (snail) mail to news from my bank that my debit card was about to be replaced (again for the 2nd time in a year!) because the cardholder association had alerted the bank that an un-named retailer had been hacked and our card was one of the victims. "Oh, and by the way, be sure to look carefully to see if you're card has any unusual charges on it."

Not only is the software vendor who put out junk that was so easily hackable going to get out of paying me for my own costs and added risks, but the retailer who chose to buy that junk is probably going to suffer little but a slap on the hand from the cardholder association. Our bank points out that it will not be informed which retailer managed to blow it this time because of confidentiality rules imposed by the cardholder association. My wife pointed out that if she knew which store had blown it this time she would be sure to take her business elsewhere -- Hit 'em where it hurts.

Business Section Spring Meeting -- Early Bird Registration Closes on Friday Jan 19!

2007-01-18T15:55:00.000-06:00

If you are planning to be at our Washington DC meetings this March, the Early Bird Registration deadline is Friday January 19. Go here to register!

(That's not the last date to register - Just to get the cheaper price! You'll still be welcome if you sign up after the 19th of course.)

Smokers Alert for Little Rock

2007-01-18T15:52:00.000-06:00

As have many other states, Arkansas has passed its own Clean Indoor Air Act. You'll need to be outside to smoke, or in a 'bar' -- Which doesn't include most restaurants. I'm sure you'll find details once on the ground, but you are hereby warned.

Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed

2007-01-16T06:56:00.000-06:00

In a rather interesting story, it turns out Eli Lilly, some lawyers, a wiki, and its contributors are having a bit of fun with freedom of the press and prior restraint. Apparently, some documents under seal were subpoenaed, found their way onto a few web sites and then onto a wiki. The Judge has issued a rather expansive order demanding that the distribution stop and that copies be pulled back in.

There's a showdown in federal court on this issue this week.

Here's a link to the web site of the lawyer who apparently managed to "free" the documents.

Here's a link to a story on the New York Times web site.

And finally, here's a link to a blog maintained by a law professor that refers to this issue. I borrowed the very imaginative title of this post from his site.

Whatever your thoughts about the merits of the underlying dispute, this case is a good lesson in how futile it may be in today's hyperconnected world to enforce protective orders, or at least to clean up after documents are released into the wild.

Business Blogging Article Published

2007-01-15T15:15:00.000-06:00

Our Committee's own John Ottaviani, Prof. John Bagby and Kristie Prinz have been published in the new issue of Business Law Today. Their article, entitled When a Business Begins a Blog--It's easy, but is it safe?, addresses the phenomenon of companies starting their own blogs for marketing purposes. ABA Business Section members can click on the preceding link and read away.

Given this and the Kahana/Bowles article published in the same issue of BLT, the Cyberspace Law Committee continues its run as one of the most-published entities within the Section of Business Law (if not the whole ABA!).

Congratulations, and a big thanks, to all of our newly published authors.

And, if you are in the committee and want to be the next one to gather kudos about this, be sure to get in touch with our committee's Publications Chair Prof. Juliet Moringiello -- She has all of the details, including word on the new short-format articles (600 or so words) that the magazine is constantly looking to receive.

Arrivals and Departures

2007-01-12T17:32:00.000-06:00

To help facilitate ride sharing, and the reconnection of old friends, I thought I'd post arrival and departure times that I'm aware of. If you have additional times, put them in a comment below, and I'll update the list (until I get overwhelmed and give up).

In deference to Roland, all times are given military style. Of course, all times here are local time in Little Rock (Central Standard Time).

ARRIVALS

Thursday

1200-1400

1400-1600

Michael Fleming
Michael McGuire (Yes, Believe it or not, I'm coming)
Chris Kunz
Eran Kahana
Lisa Lifshitz
John Ottaviani
Bill Denny
David Satola
Steve Middlebrook

1600-1800

Vince Polley

1800-2000

2000-2200

Kristine Dorrain
Candace Jones

2200-0000

Mattias Hallendorff
John Gregory

Friday

0600-0800

0800-1000

DEPARTURES

Saturday

1200-1400

1400-1600

Lisa Lifshitz
John Ottaviani
David Satola

1600-1800

Candace Jones
Bill Denny
Steve Middlebrook

1800-2000

Chris Kunz
Vince Polley

2000-0000

Sunday

0600-0800

Kristine Dorrain
Eran Kahana

0800-1000

1000-1200

1200-1500

Michael Fleming

1500-1800

John Gregory

Little Rock -- Transportation Concerns

2007-01-10T15:29:00.000-06:00

Some committee members have been asking if they should rent a car, depend on taxis, and so forth during the Little Rock meeting.

The Doubletree Inn is about 7 miles from the airport. The hotel's web site suggests you can get a cab for $14, but the hotel also has a courtesy shuttle between the airport and the hotel (and presumably back again!). If interested in the shuttle bus, call the hotel at 501-372-4371.

If you do choose to rent a car, the hotel has free parking for registered guests.

For transportation within the downtown environs, our host Elizabeth Bowles recommends use of the trolley system. It runs from about 11 AM until midnight (5 PM closing on Sunday), and costs 50 cents a trip. We will all be likely using the trolley when we are heading over to the Clinton Library on Friday night. It would seem likely that most of our group socializing over the weekend will be either walking distance from our hotel and/or trolley distance.

(Click on the map for a larger version.)

If your plans were to do any serious touring outside of the downtown area, a rental car is definitely called for.

Creative Commons Tool to Terminate Transfers of Copyright

2007-01-04T06:20:00.000-06:00

Here is an interesting post from the Creative Commons Weblog. They have created a tool to allow creators a way to exploit the 35 year limit in the Copyright Act on certain transfers of copyright.

Here's the introduction to the Blog posting:

Creative Commons is excited to launch a beta version of its “Returning Authors Rights: Termination of Transfer” tool. The tool has been included in ccLabs — CC’s platform for demoing new tech tools. It’s a beta demo so it doesn’t produce any useable results at this stage. We have launched it to get your feedback.

Briefly, the U.S. Copyright Act gives creators a mechanism by which they can reclaim rights that they sold or licensed away many years ago. Often artists sign away their rights at the start of their careers when they lack sophisticated negotiating experience, access to good legal advice or any knowledge of the true value of their work so they face an unequal bargaining situation. The “termination of transfer” provisions are intended to give artists a way to rebalance the bargain, giving them a “second bite of the apple.” By allowing artists to reclaim their rights, the U.S. Congress hoped that authors could renegotiate old deals or negotiate new deals on stronger footing (and hopefully with greater remuneration too!!). A longer explanation of the purpose of the “termination of transfer” provisions is set out in this FAQ.

And here's the link to a very well organized FAQ on the provision of the Copyright Act and the tool: http://labs.creativecommons.org/termination/faq.php

Sony Settles DRM Class Action in 40 States & DC

2007-01-03T09:31:00.000-06:00

Knowledgeable Cyberspace Law Committee members will recall that our own Eran Kahana presented a great 'Hot Topics' discussion at last Spring's Business Law Section Spring Meeting in Tampa, Florida regarding the Sony DRM fiasco. For Section members, you can grab a copy of the materials from that presentation here. Eran and his fellow member Elizabeth Bowles are now ~~slated for publication in a future~~ published in the current issue of the Section's monthly Business Law Today, discussing this matter with a bit more hindsight, and focusing on how businesses might avoid stepping into such public relations nightmares by being a bit less cavalier about use of electronic contracting but rather being a bit more willing to open up to the consumers who are being impacted.

But, what about the 'rest of the story' for Sony?

On December 21, 2006, forty states and the District of Columbia settled with Sony BMG Music Entertainment ("Sony") regarding the anti-copying software which was installed allegedly without consumer knowledge or agreement via music compact discs distributed in 2005. On December 21, Sony entered into an Assurance of Voluntary Compliance or Discontinuance and agreed to pay $4.25 million to the states, and also to pay up to $175 per consumer who incurred damage while trying to uninstall the software.

Sony has also agreed that it will not distribute music CDs with DRM software without first going through a series of corporate reforms, and that it will replace all of the affected CDs at no charge. I note that Sony has gone to great lengths to publish a 3rd party's audit report, which states the auditor's opinion that Sony never took advantage of any access it might have had to individual's personal information by way of the DRM software. (Personal identity information might have been the lurking issue underneath all of the discussions about people's computers getting trashed by the software that was getting the major press.)

Maybe this will mean a great deal for those of us who were ultimately concerned about the sanctity of our own computers, as well as the use of electronic contracting techniques to 'sneak' unexpected terms by unsuspecting consumers. In the end, those are the issues that should have mattered through this whole discussion.

But, one sitting above the fray might suspect that the public outcry was really less about computer sanctity and the majesty of knowing-contract, and really just another public protest against the whole concept of DRM. In that regard, the victory here is short-lived and rather meaningless. As I stare right now at my own iPod, of which about 25% is filled with tunes I downloaded off of Apple's store, I realize that the battle over copy protection is being waged (and likely won) through less obnoxious means than secretive software that takes over my computer's root functions. (And, before you ask—The other 75% are copies from my own purchased CDs—What do you take me for?)

(Fleming's aside: If you still believe regular folks were really up in arms over the 'sanctity of the computer' instead of just protesting copy-protection, I'd suggest that all of us tech-savvy readers, of which I suspect most of you reading this might be, go back and look carefully at your Uncle Alfred's vintage 1999 Windows ME machine, which he's just happy with using every day for e-mail and the occasional Web surf, particularly since he found all of those nice smiley-faced icons for his mouse that that one Web site was offering for free one day last year... Same goes for your 15 year old niece's machine that you get called about every few months because her home page keeps changing to some oddball search engine without warning instead of her boyfriend's mySpace page. You guys with me now? OK.)

Information on the Sony settlement is available here. For the time being I have posted a copy of the Assurance document here. (Given very limited space, I won't leave that document up for more than a couple of weeks, so get your copy soon!).

(Irony time: One of the 10 states that had not settled with Sony as of December 21 was my own home state of Minnesota—The company that is processing the consumer claims for the settlement is located in (you guessed it) Minnesota. What does that say about us? Anyway, I can't find any resource to find out which other states might have opted in since December 21.)

(UPDATE: I should have noted that California and Texas also entered into their own settlement with Sony apart from this 40 state thing. I have not had time to peruse whether the $175 to consumer part will apply to Californians and Texans as well. New York is apparently part of the 40 state thing, even though it had an earlier settlement with Sony from December, 2005.)

(Another aside: Is there any doubt that keyword advertising has come of age? Sony was obligated to publicize this settlement as follows:

SONY BMG shall continue, for at least 12 months from the date of this Assurance, its program of using “keyword buys” ” and “bannering” on capable CDs to give consumers notice of the known forms of security vulnerabilities to their computers and of information consumers can obtain regarding the protection of their property. The “keyword buys” and “bannering” shall also disclose to consumers any known loss of functionality that can occur following use of XCP or Media Max CDs, including, but not limited to, the disabling of a CD-ROM drive. SONY BMG shall consider in good faith any suggestions the States may offer concerning possible adjustments to the specific terms of the keyword buys program and the language displayed to consumers in connection with the relevant links and landing pages. SONY BMG shall adopt procedures to monitor and ensure that such keyword buys result in consumers receiving a Clear and Conspicuous link on the first page of returned results. The return result shall provide a warning of the security vulnerabilities and direct consumers to additional information on XCP and MediaMax patching and removal. SONY BMG shall adopt procedures to monitor and ensure that banner ads function properly and provide consumers with a Clear and Conspicuous warning of known forms of security vulnerabilities and the website address to obtain additional information on XCP and MediaMax patching and removal.

So, that means you now get this when you search for SONY DRM on Google (click to see a bit bigger):

Surely this is the coming of age for keyword advertising, no?

Last Chance for Hotel in Little Rock!

2006-12-30T21:42:00.000-06:00

Don't forget that the hotel block is officially out of reach after January 1 2007, so if you are reading this prior to that date, get on over to here!

(Note that I say "officially" -- Our members have a long history of sweet-talking hotels into extending the official time windows. However, your mileage may vary, no warranties express or implied, use at your own risk, and we'll leave the lights on (in case you get stuck at the Motel 6).)

(NOTE FROM THE OTHER SIDE OF TIME: It's now January 3. Anybody who gets a favorable response from the hotel regarding 'late' reservations, could you please file a comment below for all of us to see? Thanks!)

If you have not yet registered for the meeting, but sure to head now to the meeting's home page.

Access to Source Code Denied

2006-12-30T08:06:00.000-06:00

In a recent case in Talahassee, Florida, a local judge ruled that a candidate who lost by only 369 votes can't get access to the source code for the voting machines to test out her theory that flaws in the software resulted in underreporting of votes for her. According to the news report, the court held that the candidates conjecture regarding the supposed flaws was not sufficient to trump the trade secret rights of the company that provided the voting machines.

If I find a copy of the judge's actual opinion, I'll post it as a follow up.

Consider whether this type of thinking will prevail in a contract dispute where one party seeks access to "black box" components of a system that underlie a disputed online transaction.

Even Criminals Should be Careful about Authentication

2006-12-22T13:01:00.000-06:00

Here in Cyberspace-law-land, we've long been noting that lack of a true purely electronic method authentication is the big thing that prevents e-commerce from making the leap into the big time. (Yes, you can buy plenty of books online, but nobody has been willing to sell you a house on a transaction that is totally end-to-end online -- You still need to see somebody offline.) There is still some risk that the person you are dealing with is not who they claim to be. If one is vending a low-cost items like books, maybe the risk is sufferable. If one has backup from another independent system like a credit card system, maybe the risk is mitigated. But, if one is doing high-value transactions with a purely electronic communication, from start to finish, authentication is still a serious isue.

Well, it seems you can't even solicit somebody to do a crime without running into potential authentication problems. On an e-mail exchange posted on the site http://attrition.org/, a couple of guys apparently answered a widely disseminated request from somebody who was allegedly soliciting for someone to engage in potentially criminal enterprises (i.e., entering without authority into the systems of the solicitor's alma mater to change his Grade Point Average). The guys who took up the call were spoofing the solicitor -- let's just say that hilarity ensued. (It almost reminded me of the elaborate e-mail chains the infamous Nigerian spammers would start once they might have started to reel in a victim...)

To put it mildly, when you get to the part where the spoofers ask the solicitor for pictures of the pigeons on his college campus to prove that he's not an FBI agent, you will probably be spitting your lunch all over the table. (Aim away from the computer screen when you do that. Trust me on that one.)

Notes --

All people are innocent before the law until found guilty -- Even on this blog.
There is a background story on this that involves U.S. politics -- Many of you might have already gotten wind of this story because of that aspect. This blog has no dog in that hunt... We're all about the cyberspace part.
If you do go to the actual e-mail exchange posted at http://www.attrition.org/postal/z/033/0871.html, it contains a few choice words that most of us would not want to say out loud in front of our grandmothers. Press the link at your own risk. There's a less naughty-word laden report on the story here if you wish. And, props to Talking Point Memo for originally pointing out the story to me.

ANYWAY -- I hope each of you has a happy holiday season, and we look forward to seeing many of our readers at upcoming Cyberspace Law Committee events during 2007!

Ken Adams on Web Searching for Contracts

2006-12-14T11:15:00.000-06:00

Ken Adams, proprietor of the always interesting AdamsDrafting blog and author of the best-selling ABA book A Manual of Style for Contract Drafting, had a post this morning on his blog regarding the use of EDGAR as a research tool to look at old contracts that had been filed as part of SEC filings. The Cyberspace hook for us today is the commentary on how there is a proprietary Web-based service out there that will help one to index the old contracts and find ones that might be of interest. Ken's sense is that there are many other ways to use the Web to access the same information (for example, the use of Lexis and/or Westlaw to search EDGAR filings that are under Exhibit 10). Ken also notes his skepticism on the quality of the work one might find in SEC filings -- I'll let you go read the particular choice phrase he applied to the contracts on EDGAR (this is a family blog after all...).

My only other thing to add is that in my particular practice, involving a great deal of day-to-day contracting for technology licensing and purchasing, the times I've been able to find useful work on EDGAR is almost too small to count. The EDGAR system is potentially useful if one is interested in contracts that publicly-held companies might do that rise to a certain level of materiality--Software licenses rarely fall into that bucket for either the licensor or the licensee. I've no doubt that there are exceptions to that, but combined with the fact that I think any of us who read this blog are more than capable of running rings around what we might find on EDGAR, my suggestion is to stick to our own form libraries and use our own inherent skills rather than relying on some other person's randomly-selected work.

ASIDE: The other Cyberspace angle -- Ken Adams will be joining a panel of lawyers from this Committee at the ABA Business Section's Spring Meeting this March in Washington DC. The pre-meeting CLE programs put on for the Section's Young Lawyer Forum are fantastic, and that's not just because I will be speaking for one of them! We hope to see you there.

Remotely Eavesdropping on Cell Phone Microphones

2006-12-05T11:54:00.000-06:00

A cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone.

read more | digg story

FOLLOWUP THOUGHTS (Jan 4, 2007):

I can’t get paranoid about this one. It seems to me that if the bug is obtained through the auspices of a proper (4th Amendment compliant, probable cause, yadda yadda yadda) court order, it’s not all that different than any other form of bug. We can be paranoid about the cops and courts as a general rule (and should be…), but the means they use to exercise their court orders is not all that much more scary.

I couldn’t tell (and CNET obviously can’t from what I read) if the bug is one that directly transmits a signal to a receiver operated by the police, or if it transmits something via the cell network. Legally it should not be all that much different if there's been a proper court order, although you’d have to rope in the cell provider if the latter.

Technically it is interesting in that the only radio that should be in your typical cell phone is the radio that transmits to the cell network. (Blue tooth, found in an increasing number of handsets is, of course, a wild card in all of this – Let’s set that one aside for the moment though.) If we’ve got the bug set up as a purely software bug that infects the phone and has it transmitting what’s passing through the microphone over some sort of ‘radio’ then it must be going over the cell-transmission radio – And, that seems difficult to conceive other than something that would require the cooperation of the cell phone provider, since operating that radio without interacting with the cell network would be something I cannot believe would be an ‘off-the-shelf’ capability of the phone handset. If that’s the case then I’m less concerned again about non-legal hackers because it seems hard to believe that the cell networks would volunteer to allow a hacker to use the network! (It also suggests that this technique shouldn’t work against somebody sitting on an airplane, unless the FBI is suggesting that the FAA’s prohibition on cell phone use is not really a safety concern for all on the plane...)

If, as the BBC article mentioned in the CNET article linked above suggests, the cell network radio is hacked, via some kind of Malware that is sent electronically to the victim’s phone, to stay in transmit mode even where the phone seems to be turned off (or the radio has been turned off, as I can supposedly do with my BlackBerry), and even if ‘intelligence agencies’ can find ways of intercepting that signal and decode it, that would still require the spy to have physical proximity to the victim at all times (presuming the cell network isn't being used), and I find that all rather implausible as a useful source of data unless the spy is investing a LOT of money in this victim (and, if they have that much money to invest, they’d find some other way than this exploit to get what they want). We’re not going to see hackers using this tactic for random crap they might want to listen to while your talking to your best friend at the local coffee shop. (And, the cell providers would quickly come up with anti-spyware tactics for their phones if the exploit got out beyond this nefarious ‘intelligence community,’ so any win by a hacker would be short-lived at best.)

Apart from the radio that is used for purposes of the cell network, the only other ‘radio’ in a typical cell phone (off the shelf) is the Bluetooth. That might be an interesting hack (and the subject of multiple discussions already). Still, it seems hard to believe that there would be a hack that might alter the phone to NOT turn off the Bluetooth (and/or the phone itself) when I thought I’d turned it off – There would be a hell of a lot of software necessary to do that, and it would be so handset specific that, again, the investment for any one particular victim would prevent the odd private citizen hacker from taking advantage of it – We don’t have the single-source problem for cell phone operating software that we have for PCs. (I do work for that industry, and actually work on licenses for cell phone operating system software, so I speak from knowledge in that regard.) Also, since the off-the-shelf Bluetooth system in my phone does not use the microphone on the phone handset itself, but rather the microphone in my earset, it would require an even more incredible hack to get the handset to use the Bluetooth transmitter for such a non-standard function as to transmit the sounds on the microphone to a surreptitious Bluetooth listener, and to do so while also allowing the spy to circumvent whatever encryption is on the Bluetooth transmitter, and probably to do so as well while still allowing the Bluetooth transmitter to be used simultaneously for its intended purposes since otherwise one would tip off the victim of the bug. Finally, Bluetooth is even more susceptible to the need to be proximate to the victim -- That radio will reliably transmit only a few hundred feed through clean space. Again, it might be plausible for the 'intelligence community' to invest in human resources to follow somebody around who is a high-value target, but that target would be gotten one way or the other if somebody was really interested, that target would probably know well enough to take out the battery of his phone, and the rest of us are perfectly safe from the pimple-faced script kiddie.

Finally, if all that’s involved in the above is a physical bug snuck into the cell phone itself, then those paranoid executives who remove their batteries are missing the boat. And, pimple-faced kids sitting in coffee shops are still at a loss when it comes to physical invasions of people’s personal property (or I’m not all that worried about the few who would try such a thing). Regardless, the addition of using a cell phone (as opposed to slipping a bug into the back of my jacket collar) to the mix doesn’t change anything where you’ve got somebody who’s willing to commit a criminal breach of my personal effects in order to plant his bug.

In other words – I’m kind of skeptical about all of this.

But, it all leads to finding stuff on the BBC article cited by CNET, such as this actual living example of a Cone of Silence. Where’s Maxwell Smart when you need him? (If you read the BBC article, it really seems poorly thought out – For example, they find ‘experts’ who claim that a physical bug wouldn’t work since the battery would wear out, but who’s to say the bug wouldn’t be set up to use the cell phone’s own battery (duh…). And, I did check the dateline of the article – It’s not April 1, but maybe it should have been.)

Cyberspace Law: We're More than Just Website Advisors!

2006-11-27T13:09:00.000-06:00

From today's WSJ Law Blog, on the pending changes to the Federal Rules of Civil Procedure regarding electronic evidence:

Alvin Lindsay, a partner with Hogan & Hartson, laid out for the WSJ the implications of the new rules. “Lawyers will now have to know about their clients’ computer architecture: How do they store their data? How do their computer systems operate? This is not something they teach in law school.”

Full posting here.

Gosh -- Doesn't that sound like what the Cyberspace Committee has been teaching its members since, oh, let's see--ABOUT A DECADE?

Folks from this committee who are in private practice: If you have not already made your presence and depth of knowledge known to your own firm's litigators, you are missing a great opportunity. This is one of the better 'convergence' moments in our history, so go take advantage of it!

News News News

2006-11-08T15:58:00.000-06:00

November 8, 2006 -- A busy day in the news. Not that election thing silly -- In Cyberspace news!

I had a small start when reading a squib in the BNA eCommerce Reporter this morning, which discussed a New York federal trial court decision which proclaimed that a Web site is not interactive for personal jurisdiction purposes if the interactivity is merely through password-protected activity. Whoa! I thought, since that would be a major change to the Zippo standards if it were followed. However, careful reading of the squib (as opposed to just the headline...) reveals that the New York case was one regarding general jurisdiction. As any of us who walk these cyberlaw halls knows, Zippo was a specific jurisdiction case. The law as we knew it has not changed. Cite is to C.B.C. Wood Products Inc. v. LMD Integrated Logistics Serv. Inc., E.D.N.Y., No. 06-2673, 10/7/06. {Note: For those of you who aren't lawyers and have no idea what the difference is between specific versus general jurisdiction -- Well, not to be elitist on you, but that's one of those ones I couldn't begin to explain in a sentence, particularly since you need a good grounding on the concept of 'personal jurisdiction' in the first place. You can try this outline from a law school professor on the concept if you want, or this Wikipedia article. And, if you want a cyberspace law angle, read this article by another law professor.}

The Supreme Court of Kansas has taken a look at shrink-wrap licenses, and has dealt a blow against them. In Wachter Mgmt. Co. v. Dexter & Chaney Inc., Kan., No. 95,102, 10/27/06, the court looked at a software transaction that was initially done through a paper purchase order between the parties, and then was followed by the unwrapping of a shrink-wrap license by the software user. When the user ultimately decided to claim a problem, and brought a claim in his local court in Kansas, the software developer pointed to its shrink-wrap license and the venue clause therein. Most of us might have presumed that this would ultimately have favored the developer -- But, the Kansas court revived the thinking of Step-Saver Data Sys. v. Wyse Tech. Inc., 939 F. 2d 91 (3d Cir. 1991). In Step-Saver, the shrink-wrap was ignored on the basis of its being 'a proposal for additional terms' under the UCC, and hence rejectable by the other party. The court in Kansas felt that this was the case here, and refused to enforce the shrink-wrap license. (One should note that the case was a 4-3 decision, and the dissent was clearly bothered with the revival of Step-Saver.) All that said, and whether you agree with one side or the other, this leads to a PRACTICE NOTE: When counseling clients who are using the paper followed by shrink-wrap process, advise them to have an unequivocal statement in the paper that the transaction is subject to the shrink-wrap (or click-wrap, or whatever...) terms that will follow. The Kansas court seems to suggest that this would have avoided the problem, and there is no harm in adding such statements to one's paper contracts, particularly since most of our clients will still like to hold out the possibility of doing business in Kansas!

Finally, an idea that many have bounced around has been endorsed in a U.S. District Court -- Is the transfer of a domain name from one party to another an event that should be treated as a new 'registration' by the recipient? Recall that both the Anti-Cybersquatting Protection Act and the ICANN Uniform Domain Name Dispute Resolution Policy provide that the defendant's actions in registering the domain are important to the case. In many cases, the original registration of the domain was years in the past, and may have actually been done by somebody in good faith or the facts are hard to prove from that ancient time. But, one might have easy facts to show that the subsequent registrant took and uses the domain in bad faith. Some of us wondered if we could simply look to the most recent registrant for our analysis.

In Christensen Firm v. Chameleon Data Corp., W.D. Wash., No. C06-337Z, 11/1/06, the court agreed under the ACPA that each act of transfer was a new 'registration' for the purposes of ACPA analysis. Thus, one need not trace the progeny of a domain back through to the first party that registered it, but only to the most recent (i.e., the one the complaint is all about). Although this is an ACPA case, the logic would seem to apply equally to a UDRP analysis, and one might at least cite this as persuasive evidence on point.

[If anybody with more time than I have wants to find public links to any of those opinions, please let me know and I shall post them. The ones I have are through a password-protected site, so they are not of much use to the rest of the world. UPDATE: I found a free link to the Wachter Mgmt case out of Kansas. Still looking for the other two...]

Internet Governance Forum -- Our session

2006-11-01T09:37:00.000-06:00

David Satola reports that the session at the IGF entitled 'Legal Aspects' was a big success and well attended. Kristine Dorrain suggested that interest was high amongst the panel as well as the audience and felt it could have gone on easily for another hour. Theoretically the session was recorded (audio) and will be posted on-line, but I have not found a link to such yet.

David sent over a couple of photographs from the session -- Kristine also has some and will send them along when she can.