Internet Law - Fall 2007

The nature of change....

INTERNET CRIME IS SPREADING LIKE A PLAGUE ON THE WORLD
"HiTech Crime is the new Big Business - But who will stop it?"

International reports have just come out showing that internet crime is now a world-wide, professional, multi-billion dollar a year industry. It extends from underground auction site to buy and sell international personal and sensitive material hacked from "internet storage databases" to "do-it-yourself" kits for the 15 year old hoodlum wanting to cause mayhem from home. The major shift noted is that internet crime is shifting from heists of large corporations and banks, to small businesses and personal info located on local terminals.

This probably comes to no surprise to anyone. More and more people are spending time on the internet and developing their own internet identity. With this shift of time allocation, comes the merge of personal, sensitive data to be strewn to the four corners of the globe. It is no leap of imagination that where the people and businesses go, so does the money, and therefore the criminals (who always seem to be a step ahead) to grab up as much of that electronic goodie-bag as they can.

In class, we have discussed a lot about the evolution of legal concepts and standards as they are applied to the internet. Many shutter in fear at over regulation of "cyberspace" and globalization threats leading to infringement of our rights. This article brings up a huge illustration on the need for compromise from the two camps and at least a coming together to protect victims from internet crime. I cannot realistically imagine the crackdown of this global criminal industry without some set global standard of jurisdictional power and right asserted. Even if that jurisdiction is a newly defined one. There is no self-governing aspect of the internet that I can envision to solve a mass assault of the innocent through the internet. But where is the fine line between self-protection and self-imprisonment to find that protection?

Also, this was a good article that reminded me of the early days of class if any of you are interested. It was in August (so I couldn't use it as an assignment article) but I like the point of view and theory lightly discussed as the internet becoming a "place" for people to have "multiple-lives" or realms of existence.
VIRTUAL WORLDS

Taxes on Internet Access Amounts to Turning the Information Superhighway Into a High-Priced Toll Road

The title of this post is a direct quote from Monica McGuire of the National Association of Manufacturers regarding the likely cost of allowing the moratorium on e-commerce taxation, established by the Internet Tax Freedom Act of 1998 and extended twice thus far, to lapse this coming November.   This article is interesting because it focuses more on the cost that e-taxation will inflict on users and the internet itself than on the logistical nightmare that duplicative taxes may create for online businesses. Karen Kerrigan discusses a ban on e-taxation as a necessary element for the internal and external development of internet. Internally, subjecting email and connectivity to taxation curtails the freedom of speech and assembly for which the internet (through cyberspace metaphors) has become so popular. Externally, e-taxation would slow the development of technologies which support the internet, such as broadband infrastructure. If development of the internet is impeded on too many levels than it is possible that the internet of five years from now could look much more like the internet of today than we would like. If you think that isn’t so bad, imagine how useful the internet today would be if it was all of a sudden the internet of ten years ago. I doubt most of us would be interested in a class on internet law.


http://www.foxnews.com/story/0,2933,296601,00.html

Google Proposes Global Privacy Standard

Google Proposes Global Privacy Standard

http://www.nytimes.com/cnet/

CNET

_2100-1030_3-6207927.html

Google is leading a move to create a global privacy standard for how companies protect consumer data, and is recommending that remedies focus on whether a person was actually harmed by having the information exposed.  Google’s proposed global privacy framework is designed to promote a practical approach to enable accountability in the flow of data, while preventing impediments to trade.  The nine principles of the framework are: preventing harm; integrity of personal information; notice; security safeguards; collection limitations; access and correction; uses of personal information; accountability; and choice.

Google’s proposed framework has faced criticism from several outlets.   A privacy advocate has dismissed the move as an attempt by Google to appear sensitive to privacy issues amid government scrutiny of its proposed $3.1 billion acquisition of online-ad firm DoubleClick.  Marc Rotenberg, executive director of the Electronic Privacy Information Center, called the move “the weakest international framework for privacy protection, far below what the Europeans require or what is allowed for trans-Atlantic transfers between Europe and the U.S.," particularly because it focuses on the need to show harm to the consumer.

This article relates to our class discussion of Jack Goldsmith and Timothy Wu’s “Digital Borders” essay.  Google’s recommendation to focus on whether a person was actually harmed by having the information exposed will be particularly difficult since people in different places disagree about what types of information they deem harmful.  These differences are reflected in different national laws, values, governments and cultures.  As mentioned in Goldsmith and Wu’s essay, an Internet that accommodates these differences is a more effective and useful communication tool than one that does not.  Google’s statement that it “believes we need to work together to create minimum global standards, partly by law and partly by self-regulation,” demonstrates that it may not anticipate the difficulty in accommodating the national differences discussed by Goldsmith and Wu.

http://www.nytimes.com/cnet/CNET_2100-1032_3-6208242.html?_r=1&oref=slogin

This article from the New York Times reminded me of Professor Hunter's article that we read in which he emphasized the idea that we think of cyberspace as a place, as though its in the actual, physical world.

Michael Boskin - who was the chairman of the U.S. Council of Economic Advisors, is currently a Hoover Institution senior fellow and a Stanford University economics professor, and has served as an adviser to presidents and prime ministers, finance ministries, and central banks around the world, from the United States to China - has accepted the position as chairman of the Council of Economic Advisors for Gaia Online...a teen-oriented virtual world.

The article discusses how the economies of virtual worlds have become more and more complicated while attracting media attention - not to mention seeing plenty of revenue (the article mentions that the economy of Second Life sees more than $1 million each day in user-to-user transactions). So, with these new economic developments in the virtual world it seems both confusing and inevitable that a seasoned economist with an impressive resume would want to step in and  take an important role in a virtual world for teen-agers. But, as Boskin put it: "Economy is an economy, regardless of whether the participants are teens in a virtual world or captains of industry in the physical world". When I read this quote, I felt the boundaries between the virtual world(s) and our physical world quickly blurring. At least regarding economics, a world-class economist barely sees the difference.

Are you reading my instant messages?

http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1188550950520

This article focuses on the unique concerns created by prosecutors wanting to search, read through, and use instant messages as evidence. This brings up fourth amendment concerns of search and seizure and probable cause. The author argues that " The probable cause and particularity requirements [of the fourth amendment] have been interpreted to prevent "roving commissions" to seize conversations overheard through listening devices, and today ought to apply to messages captured through e-mail or IM."

The article goes on to articulate the particular concerns created by instant messages, as opposed to other methods of communication such as text messages. Many prosecutors have argued that, because instant messages occur over the internet and are exposed to third parties, including the ISP providers and any other destinatinos that intercept the messages, and therefore the participants in the conversations have waived their privacy rights. The Court of Appeals for the 6th circuit rejected this argument in Warshak v. United States. There, the government subpoenad several emails. The court held that the government had not proved that the ISP provider routinely had access to the emails or were ever aware of any of the content in any emails sent using its service. Therefore, the privacy of the participants in the email conversations was paramount.

This is relevant to our discussion about whether the internet is a "place." Because these conversations occur over the internet, which as we have discussed, has no physical or geographical boundaries, how do we apply the physical boundaries to the virtual world and thus figure out which communications are "private" and which are not? Certainly one can make the argument that no communications over the internet are "private," as we cannot, at least with 100% certainty, control who has access to the content of of those communications.

TD Ameritrade crackerhacked

http://www.reportonbusiness.com/servlet/story/RTGAM.20070914.wtdameritrade0914/BNStory/robNews/?page=rss&id=RTGAM.20070914.wtdameritrade0914

TD Ameritrade Database Hacked

Here's the summary: TD Ameritrade, a US based company with 40% of it owned by a Canadian bank, is allegedly responsible for leaking their customers personal identification information.  A class-action lawsuit has been brought against TD Ameritrade in a California District Court.  Customers have complained of receiving SPAM pertaining to investing in penny-stocks and other junk funds. 

You ask how this connects to the class?  The first question to be asked in any litigation battle is... does this court have jurisdiction over me?  Well, where exactly did this 'crime' take place?  The leaking of information - conversion perhaps? - took place in CYBERSPACE.  Where exactly can TD Ameritrade be hailed into court?  I'm not up to snuff on Ameritrade's office locations, but I know they do a majority of thier business (principle place of business) on

Wall St

.  As I mentioned previously, the law suit is being brought in

California

.  Applying the ALS Scan test, it's not hard to imagine Ameritrade "directing electronic activity" into

Cal.

, with the "intent of engaging in business," along with a consequent cause of action arising from these 'e-activities.'  In my opinion, Ameritrade will be spending some serious cash in settling – if only they were able to store their servers on Sealand!

 

YouTube, Nazis, Privacy?

http://www.wired.com/print/entertainment/hollywood/news/2007/09/vw_parody_ad

Volkswagen filed a subpoena seeking the identity of a YouTube user who posted a Nazi-themed parody of a recent VW commercial.  VW alleges that the video violates its copyrights. The video was taken down and is no longer available. 

How it has generally worked so far with online video sites like YouTube, is that the company bringing a copyright suit will sue YouTube itself , rather than seeking out the user who posted the infringing video.  This seems to be changing and companies are following the path of the music industry, which has used subpoenas for years to learn the identities of alleged copyright infringers. 

The issue that the article is concerned with is notice (to the user).  YouTube said it generally notifies users when it receives civil subpoenas seeking their identities.  This notice gives the user the opportunity to challenge the subpoena and attempt to keep his identity secret.  If subpoenas go unchallenged, they are complied with, and identities are disclosed.  There are no laws that mandate the giving of notice, and such a law was defeated in California in 2004.  Even if passed, the law would not have reached federal copyrights.

The story here has implications of numerous topics discussed in class.  For one, it is borne out of Nazi controversy.  But seriously, it provokes questions of anonymity/invincibility or perceived anonymity/invincibility on the internet, as well as issues of notice.  The notice issues are not simply what is discussed above: notice of a civil subpoena for ones identity, but maybe more importantly, notice that one is actually breaking the law.

____________________________________________________

Some of you GAMERS might also want to read this one...

http://www.cnn.com/2007/TECH/09/17/internet.death.ap/index.html

Global Privacy Laws???

http://publications.mediapost.com/index.cfm?fuseaction=Articles.showArticleHomePage&art_aid=67478

Google recently acquired DoubleClick for $3.1 billion and they are currently being investigated by the Federal Trade Commission from an "anti-competitive standpoint."  With this acquisition, Google will truly be a global leader. Being a global leader, Google will have to impose limitations on their own site as to not offend certain laws in certain countries.  An example from the article is that Google’s Street View map feature may violate Canadian privacy laws.

Google is calling for a set of global standards.  It may seem like they are showing some leadership here, but are they just trying to “look good” for the Federal Trade Commission? 

The problem here is how are we going to come up with these global standards? Can the world really agree on one set standard?  Should they have to agree to one set standard?  If Google can afford to buy DoubleClick for $3.1 billion, shouldn’t they be able to customize their sites and make them country specific? 

Does every country get a say in what their standard on privacy is? Are some countries more important than others?  I can imagine some countries that spend more money on the Google advertising might get some special treatment.

There are just too many questions right now that Google needs to address.  Just stating that there needs to be a global standard is not enough.  They are the new global leader.  They should take the initiative.

Internet Law and Evidence

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1189760567397
    In discussing how technology changes the procurement of evidence is legislation the author's of the article hit upon metadata, bulletin boards/chat rooms and instant messaging. It is easy to see how someone with a little tech knowledge can tamper with metadata, making it inaccurate or even disappear to hide potentially damaging evidence. This can hinder discovery in that the paper copies--if any exist--must then be located and produced, potentially taking significantly longer to obtain the needed information.
    The author's also rely on Delta Financial to suggest that electronic evidence be "Bates-stamped," meaning that documents would be "mark[ed] and identif[ied] with copyrights by putting a company name, logo and/or legal copyright on them. This process provides identification, protection, and auto-increment numbering of the images of all documents in native format with metadata from the outset of the proceedings. This would have allowed the documents to be searched through electronic means."
    Instant messaging is a medium that is becoming increasingly more common as a  multitude of programs and companies are devising their own instant messaging systems with many workplaces monitoring, recording and saving employee's instant message communications. The problem with this kind of communication in evidence is its verification. The courts seem to still be grappling with how to solve this problem and I can only assume that courts will be split in their decisions.

http://www.nytimes.com/2007/03/23/us/23porn.html?ex=1332302400&en=a822cf7544e19c00&ei=5088&partner=rssnyt&emc=rss

This article tells the story of the Child Protection Act, which Congress enacted in 1998 in an attempt to federally regulate the internet. The act would have made it illegal for web sites to allow minors access to content deemed "harmful" by "contemporary community standards."

A federal judge in Philadelphia struck down the act and ruled that, despite his own personal beliefs that there is indeed material on the internet that should not be available to minors, to make it a crime for web sites to allow access to this material would essentially be forcing them not to include "harmful" material at all, for fear of prosecution if any material somehow made it into the wrong hands. The Judge stated that although this was an important concern, the Act went too far in chipping away more first amendment rights of freedom of speech.

This decision resembles the American Libraries case discussed in class, with the judge even stating that the Act was "ineffective and overly broad," the same concerns expressed by the court in the American Libraries case.

A similar act, the Communications Decency Act, was struck down in 1996, two years before this Act was devised. The trend of cases such as this show the court's unwillingness to abridge free speech rights in general, and particulary when they arise in the source of internet communications.