Richmond Journal of Law and Technology

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Category: Blog Posts (Page 16 of 19)

Blog: Trapping "Trappy"; the FAA's Attempt to Regulate Model Aircrafts

by Laura Bedson, Associate Symposium and Survey Editor

 

Say it isn’t so!  The days of unregulated model airplane flying may well be behind us, particularly if the Federal Aviation Administration (FAA) has anything to say about it.  As the use of Unmanned Aircraft Systems (UAS) or drones, as they are more commonly known, has literally skyrocketed in recent years, the FAA has gone to work crafting laws geared towards regulating the use of these devices.

The potential loopholes in these new regulations were pointed out in a recent case that came out of Charlottesville, Virginia.  Back in October of 2011, Raphael Pirker piloted a $130 foam glider above the University of Virginia’s Medical Center in the hopes of capturing aerial footage of the school for advertisements.[1]  Despite this seemingly innocent motive, the FAA came down hard on Mr.Pirker for operating a UAS or drone without obtaining prior authorization from the FAA.  As a result, the FAA imposed a $10,000 civil penalty on Mr.Pirker for operating this commercial drone.  The FAA’s complaint alleged that Mr.Pirker had carelessly operated the drone in a manner that potentially endangered life and property.

To someone such as myself, Mr.Pirker seems like an innocent, model airplane enthusiast who got mixed up in this emerging area of law.  That is not the case.  After doing some research, I learned that Mr.Pirker, aka “Trappy” is a 29-year-old “aerial anarchist”[2] who has been on the FAA’s list of least favorite people for a few years now.  He has taken videos of the Statue of Liberty, French Alps, and Costa Concordia using the small model aircrafts.[3]  It wasn’t until he arrived on UVA’s campus to take videos of the MedicalSchool however, that the FAA was able to get its hands on him. 

Leaping at the opportunity to make an example of “Tappy” and push through model aircraft regulation, the FAA pursued the case by arguing that model aircrafts were covered under its regulations, and even suggested that  model airplanes should be classified as drones.  Currently, the FAA defines a UAS as the device flown by a pilot “via a ground control system, or autonomously through use of an on-board computer”.[4]  Based on this basic definition, Mr.Priker could have been considered to have been operating a UAS and thus in violation of not obtaining prior authorization per FAA rules.

            Despite the FAA’s arguments that Mr.Priker was recklessly operating this commercial drone in a manner that endangered human life and property, a National Transportation and Safety Board (NTSB) administrative judge was not convinced.  In the first case of its kind, the judge dismissed the FAA’s case against Mr.Priker.[5]  The Judge held that Mr. Pirker was not operating a drone, or what the FAA traditionally considers to be a drone, but instead, merely a model airplane, which is a device that is not subject to FAA regulation and enforcement.[6] 

            This decision and the arguments from both parties will likely prove to be more monumental than we may think, particularly because the holding perfectly coincides with newly publicized FAA restrictions regarding the commercial use of drones.  The FAA, for some time (since 2007), has banned the commercial use of model aircrafts and this decision ultimately makes that policy unenforceable.[7]  Unsurprisingly the FAA has appealed the ruling, which means that the case will now be brought before the full NTSB board for a ruling.  While there is no guarantee as to how the full board will rule, there is no question that drones are here to stay and cases such as this are just the beginning of a long race to regulate these aircrafts.


[1] Mike M. Ahlers, Pilot wins case against FAA over commercial drone flight, CNN U.S. (Mar. 6, 2014, 10:07 PM), http://www.cnn.com/2014/03/06/us/drone-pilot-case-faa/.

[2] Jason Koebler, Drones Could Be Coming to American Skies Sooner Than You Think, Politico Magazine (Jan. 28, 2014), http://www.politico.com/magazine/story/2014/01/drones-faa-lawsuit-coming-to-american-skies-102754.html#.UyHwwvldWSo.

[3] Id.

[4] Unmanned Aircraft (UAS) Questions and Answers, Federal Aviation Administration (July 26, 2013, 12:29 PM),  http://www.faa.gov/about/initiatives/uas/uas_faq/#Qn1.

[5] Ahlers, supra note 1.

[6] Ahlers, supra note 1. 

[7] Ahlers, supra note 1.

Blog: Will “Smart Guns” be Accepted as a Trailblazing Technology or Lead to Constitutional Issues?

by Taylor Linkous, Associate Technology and Public Relations Editor

            Gun control is one of the most controversial and divisive issues in America and with a slew of mass shootings in recent years, the debate seems to have only intensified.  To make things more interesting, over the past few years, personalized guns or “smart guns” have also entered the conversation.  While at one point, smart guns seemed to be out-of-reach concepts used in movies like Skyfall, the Oak Tree Gun Club in California recently became the first store in the nation to put a smart gun on sale.[1]

            Smart guns were created with the aim of reducing the misuse of guns and accidents caused by guns by using radio-frequency identification (“RFID”) chips, fingerprint recognition, or magnetic rings which would allow only authorized persons to use the weapon.[2]  The thought is that this technology could prevent accidental shootings by children or even prevent violent gun crimes by barring anyone but an authorized user to fire the gun.[3]   

            As noted above, just recently, Oak Tree Gun Club, one of the largest gun stores in California, became the first in the nation to sell a smart gun.[4]  Oak Tree Gun Club is selling the Armatix iP1, which requires the user to be wearing a black waterproof watch in order to fire.[5]  The gun and the watch both contain electronic chips and when the watch is within reach of the gun, a light on the grip of the gun turns green and the user is able to fire.[6]

             Proponents of smart guns insist this technology is revolutionary and a momentous step in the right direction when it comes to controlling the use of guns and reducing gun violence.[7]  However, opponents of the new technology are mostly gun rights advocates who worry about its reliability and that the government will trample on their Second Amendment rights by eventually requiring all guns to have this technology.[8] 

Other opponents include the Violence Policy Center, a strong advocate of reducing gun violence, who argues smart guns won’t reduce gun violence because most gun homicides happen between people who know each other and the new technology would not prevent such crimes.[9]  Moreover, the Violence Policy Center argues smart guns could increase the number of people purchasing guns because those who were once opposed to owning guns may change their minds if they think this technology makes guns safer.[10]

Some of the concerns about Oak Tree Gun Club’s sale of smart guns come from a New Jersey law passed in 2002 which requires all handguns in the state to be personalized within three years of a smart gun being sold anywhere in the U.S.[11]  With the store selling the first smart gun in the country, arguably the clock on the New Jersey law has started running, putting many opponents of the technology in a panic.  The backlash against Oak Tree Gun Store has been so strong that the store has actually denied ever selling the gun, despite photos of the gun for sale at the facility.[12]

Just recently, Senator Edward Markey, a Democrat from Massachusetts has revealed a gun control bill requiring all new guns to be personalized so they can only be fired by their owners.[13]  While the benefits of such a technology seem obvious, smart guns have already gained some strong enemies and it unlikely Congress will pass such a bold law with so much controversy and debate already surrounding it.

                                                 


[1] http://www.washingtonpost.com/local/california-smart-gun-store-prompts-furious-backlash/2014/03/06/43432058-a544-11e3-a5fa-55f0c77bf39c_story.html

[2] http://en.wikipedia.org/wiki/Personalized_gun#Prototypes

[3] http://www.usatoday.com/story/opinion/2014/02/21/gun-control-smart-technology-personalized-column/5645119/

[4] http://www.washingtonpost.com/local/we-need-the-iphone-of-guns-will-smart-guns-transform-the-gun-industry/2014/02/17/6ebe76da-8f58-11e3-b227-12a45d109e03_story.html

[5] Id.

[6] Id.

[7] Id.

[8] http://www.washingtonpost.com/local/california-smart-gun-store-prompts-furious-backlash/2014/03/06/43432058-a544-11e3-a5fa-55f0c77bf39c_story.html

[9]  http://www.washingtonpost.com/local/we-need-the-iphone-of-guns-will-smart-guns-transform-the-gun-industry/2014/02/17/6ebe76da-8f58-11e3-b227-12a45d109e03_story.html

[10] Id.

[11] http://www.usatoday.com/story/opinion/2014/02/20/smart-guns-new-jersey-california-washington-post-column/5610543/

[12] http://www.washingtonpost.com/local/california-smart-gun-store-prompts-furious-backlash/2014/03/06/43432058-a544-11e3-a5fa-55f0c77bf39c_story.html

[13] http://www.foxnews.com/politics/2014/02/20/dem-bill-would-require-all-new-guns-be-personalized/

Blog: The Overbroad Computer Fraud and Abuse Act: Its Implications and Why Its Scope Should be Narrowed

by Barry Gabay, Associate Staff

If you are at work and you are reading this, you may be subject to federal criminal sanctions.

The Computer Fraud and Abuse Act, the federal government’s key anti-hacking law, was originally enacted in 1986 to deter hackers from wrongfully obtaining confidential governmental and financial information, or inflicting “federal interest” computers with harmful viruses.  In passing the act, Congress sought to regulate only those computer crimes that were interstate in nature, particularly those involving large financial institutions and governmental organizations.[1]  However, the statute was amended several times to ultimately broaden the CFAA’s reach.  In the mid-90s, for example, Congress placed criminal misdemeanor liability upon individuals who acted merely “recklessly” in their computer use,[2] and later placed liability upon individuals who obtained and read “any information of any kind so long as the conduct involved an interstate or foreign communication.”[3]  But Congress went even further in 2008 when it most recently amended the CFAA.  For starters, Congress eliminated the $5,000 misappropriation threshold for CFAA liability.  But further, while previously a defendant must have stolen information through interstate commerce or foreign communication to be prosecuted under the CFAA, the statute was amended to now encompass all information obtained “from any protected computer.”[4]  

Today, liability under the CFAA can be proven by showing that a defendant (1) intentionally accessed a computer (2) without authorization or exceeding authorized access, and thereby (3) obtained information from a protected computer.[5]  The pertinent definition of “protected computer” is any computer “which is used in or affecting interstate or foreign commerce or communication.”[6]  Courts have found that the Internet is “an instrumentality and channel of interstate commerce,” thus within the realm of Congressional regulation, and for purposes of CFAA violations, the defining characteristic of a “protected computer.”[7]  To put it in perspective, this criminal statute was broadened from pertaining only to computers with direct “federal interest” to now any computer connected to the Internet.

Nevertheless, the main litigable issue has proven to be determining when an individual is “authorized” to use a computer.  Under the CFAA the phrase “exceeds authorized access” is “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.”[8]  Whereas an employee who uses a computer “without authorization” has “no rights, limited or otherwise, to access the computer in question,” an employee who “exceeds authorized access” had initial authorization to use the computer “for certain purposes but goes beyond those limitations.”[9]  However, the phrase, “without authorization” is not defined in the CFAA, and a circuit split has thus developed over the interpretation of the phrase.  

The majority broad view, adopted by the First, Fifth, Seventh and Eleventh Circuits, holds that an employee’s computer authorization is terminated the moment that an employee acts contrary to his employer’s interest.[10]  These circuits hold that any time an employee uses a company computer in a way not in direct benefit to his employer the Department of Justice has jurisdiction to prosecute.  As Justice Floyd noted in the summer of 2012, “[s]uch a rule would mean that any employee who checked the latest Facebook posting or sporting event scores in contravention of his employer’s use policy would be subject to the instantaneous cessation of his agency and, as a result, would be left without any authorization to access his employer’s computer systems.”[11]

However, in the two most recent federal appellate cases on the issue, the Fourth and Ninth Circuits both adopted a narrow interpretation of the statute.  Those circuits held that an employee is “authorized” to use a company computer when the employer gives that employee permission to use it.  An employee’s subsequent misuse of an employer’s computer would not be subject to federal sanctions, as that employee was “authorized” to use that computer under the CFAA. [12]

While a broad interpretation of the CFAA may deter some individuals from using computers in ways not intended by their employers, that deterrence derives from ludicrous sentencing for comparatively innocuous criminal actions.  Aaron Swartz, the well-documented Internet activist who allegedly downloaded millions of articles from MIT’s online library, faced a maximum sentence of 35 years incarceration before the 26-year-old took his own life. [13]  In comparison, the maximum federal sentence for a first-time felon guilty of attempted murder who left the victim with life-threatening bodily injury is 24 years.  A first-time child pornographer who distributes images of a child under the age of 12 engaged in explicit sexual acts would receive a maximum federal sentence of 30 years imprisonment.  If an employee merely getting fired by her employer is not enough deterrence for misusing a company computer, then state criminal statutes and tort and contract law surely provide adequate deterrence.  Thus, in practice, the broad interpretation of the CFAA merely serves to make ordinary working individuals, who, while perhaps distracted during the workday possess no real criminal intent whatsoever, into federal criminals. 

In the wake of Aaron Swartz’s suicide, the Justice Department and members of Congress have recently expressed their willingness to narrow the scope of the Computer Fraud and Abuse Act.[14]  The bipartisan Aaron’s Law was introduced in the House of Representatives to limit the scope of the CFAA.  That limitation is long overdue.  It is a well-established canon of statutory construction that courts must construe criminal statutes narrowly, so as to avoid over-criminalization.  But courts, obviously unable to define a crime, are relegated merely to the text, and hinge liability on the terms “without authorization” and “exceeding authorized access.”  With the firmly entrenched circuit split now in place, the Supreme Court may in the not too distant future weigh in on the issue if Congress does not first amend this overbroad statute.


[1] See Sarah A. Constant, The Computer Fraud and Abuse Act: A Prosecutor’s Dream and a Ha
cker’s Worst Nightmare—The Case Against Aaron Swartz and the Need to Reform the CFAA
, 16 Tul. J. Tech. & Intell. Prop. 231, 233 (2013).  

[2] Computer Abuse Amendments Act, Pub. L. No. 103-322, tit. XXIX, 108 Stat. 2097 (1994).

[3] Economic Espionage Act, Pub. L. No. 104-294, tit. II, 110 Stat. 3488, 3491 (1996). 

[4] 18 U.S.C. §1030(a)(2)(C) (2008).

[5] Id.

[6] 18 U.S.C. § 1030(e)(2)(B). 

[7] United States v. Trotter, 478 F.3d 918, 920-21 (8th Cir. 2007) (internal citations omitted). 

[8] 18 U.S.C. § 1030(e)(6). 

[9] LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 33 (9th Cir. 2009). 

[10] See See E.F. Cultural Travel BV v. Explorica, 274 F.3d 577 (1st Cir. 2001); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006); United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010).

[11] WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012).

[12] Brekka, supra note 10, at 1133.

[13] See generally David Amsden, The Brilliant Life and Tragic Death of Aaron Swartz, Rolling Stone (2013), available at http://www.rollingstone.com/culture/news/the-brilliant-life-and-tragic-death-of-aaron-swartz-20130215.

[14] Brian Fung, The Justice Department Used This Law to Pursue Aaron Swartz. Now It’s Open to Reforming It. Wash. Post. (Feb. 7, 2014 at 4:03 PM), http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/07/the-justice-department-used-this-law-to-pursue-aaron-swartz-now-its-open-to-reforming-it/.

Blog: How Will the Government Deal with Bitcoin?

By: Associate Technology and Public Relations Editor, Taylor Linkous

 

            As bitcoin continues to rise in popularity and value and steadily establishes itself in the mainstream economy, it has simultaneously revealed its flaws and weaknesses.  Will bitcoin successfully establish itself as a revolutionary technology that is here to stay or will its faults cause it to eventually fade out?  Moreover, if it is here to stay, what should the government do with it?

            First of all, bitcoin is a virtual form of currency that was created in 2009 by an anonymous programmer who goes by the code name, “Satoshi Nakamoto.”[1]  Bitcoin is not backed by any government or banks and actually exists only online.[2]  What makes it attractive yet dicey is that transactions are made directly between users with no middle men and buyers and sellers remain anonymous.[3]  Bitcoins are created through “mining.”  Explained in those most basic terms, “mining” is when people solve very complex math puzzles on computers and are rewarded with bitcoins.[4]  Many businesses have already decided to accept bitcoins including a Subway sandwich shop in Pennsylvania, CheapAir.com, and even some law firms.[5]

Bitcoin’s rise in popularity and value is evidenced by the steep increase in its value.  As of December 2013, bitcoins were worth $1,100 each.[6]  Further, the first Bitcoin ATM was installed in a coffee shop in Vancouver, Canada and had 81 transactions on its first day.[7]  In fact, just recently, the first Bitcoin ATMs offering Bitcoins for cash in the United States opened up in Boston and Albuquerque and the first Bitcoin ATM Machine to dispense cash for Bitcoins is set to open in a bar in downtown Austin this week.[8]  These Bitcoin ATMs are predicted to encourage people to use the virtual currency in their everyday lives, bringing it out of the deep, complex tech world and into the “real world.”[9]

However, despite bitcoin becoming increasingly recognized as legitimate, it is still unregulated and there are remaining concerns about its prevalent use for criminal activities because of the anonymity.  Bitcoin was the currency used for Silk Road, a website that was shut down by the FBI last year for facilitating the purchase and sale of drugs and other illegal items such as guns and child pornography.[10]  Silk Road 2.0 was launched after the original website’s shutdown; however, a glitch in the website allowed hackers to steal $2.7 million from the customers who had their money in Silk Road’s accounts.[11]  Thus, not only are there concerns about bitcoin use for criminal activity, this incident with Silk Road 2.0 has called into question bitcoin’s credibility and hurt its chances of becoming more mainstream.[12]

Regardless, the growing popularity and value did spark a conversation in the Senate Committee on Homeland Security and Government Affairs this past November.[13]  At the hearing, law enforcement officials expressed concerns about anonymity and their need for help in catching people who are using bitcoin for criminal activity.[14]  On the other side, bitcoin users and The Bitcoin Foundation stated the government should leave the virtual currency unregulated and allow it to continue to grow and thrive on its own.[15]

Currently, even though users of bitcoin are not regulated, businesses acting as “money transmitters” are covered under current law.  Other existing statutes, such as mail and wire fraud, could be used to prosecute some misuse of bitcoin.[16]  Other than that, regulators are having a hard time deciding how to deal with it.  It is unclear whether bitcoin should even be treated as a legitimate currency.[17]  For example, Canada has taken the position that bitcoin is not considered currency and they will not regulate it.[18]  Germany is treating bitcoin like a foreign currency and Brazil passed a law in October 2013 specifically dealing with electronic currencies, such as bitcoin.[19] 

It will be interesting to see whether the introduction of the Bitcoin ATM’s will help bitcoin secure its spot as a legitimate currency or whether the Silk Road 2.0 incident will stunt bitcoin’s otherwise rising popularity.  Even more importantly, if bitcoin is here to stay, will the government allow it to remain unregulated or recognize it as currency and step in to create a regulation?


[1]  http://money.cnn.com/infographic/technology/what-is-bitcoin/

[2]  http://blogs.wsj.com/moneybeat/2014/02/17/bitcoins-crisis-is-turning-point-for-currency/

[3]  http://money.cnn.com/infographic/technology/what-is-bitcoin/

[4]  See id.

[5]  http://money.cnn.com/gallery/technology/2013/11/25/buy-with-bitcoin/7.html

[6]  http://blogs.wsj.com/moneybeat/2014/02/17/bitcoins-crisis-is-turning-point-for-currency/

[7]  http://www.forbes.com/sites/kashmirhill/2013/10/31/why-are-people-so-excited-about-a-bitcoin-atm/

[8]  http://www.usatoday.com/story/money/business/2014/02/19/bitcoin-atm-austin/5623387/

[9]  http://www.forbes.com/sites/kashmirhill/2013/10/31/why-are-people-so-excited-about-a-bitcoin-atm/

[10] http://www.usatoday.com/story/news/nation/2013/10/21/fbi-cracks-silk-road/2984921/

[11] http://money.cnn.com/2014/02/14/t
echnology/security/silk-road-bitcoin/

[12]  See id.

[13]  http://money.cnn.com/2013/11/18/technology/bitcoin-regulation/index.html

[14]  See id.

[15] See id.

[16] http://www.abajournal.com/news/article/should_virtual_currencies_be_subjected_to_real-life_regulation/

[17] See id.

[18] http://www.forbes.com/sites/kashmirhill/2014/01/31/bitcoins-legality-around-the-world/

[19] See id.

Blog: Snapchat – Defeating an Authenticity Objection in Court

by Danielle Bringard, Associate Survey and Symposium Editor       

             We’ve all done it.  We’ve all taken the “selfie.”  Facebook, Twitter, Tinder, Instagram, and Snapchat are just a few of these social media applications that allow users to transmit photos and videos to each other from various electronic devices.  However, unlike most social media sites, Snapchat has a unique feature.  Unless a user takes a “screenshot” of the photo or video while it is being received, than the photo or video is deleted after up to 10 seconds.[1] 

            The only information you can obtain from Snapchat about a user is: the user’s email, the user’s phone number, the username, a log of the last 200 snaps that have been sent and received, and the date the user created the account.[2]  The exception being if either the sender or the recipient downloaded the message, kept it saved, and was able to be retrieved from the actual device rather than from the Snapchat application.  The Richmond Journal of Law and Technology has recently published an article which explores the dangers of Snapchat and sexting,[3] but what about the admissibility of a Snapchat history in a court of law?

            While there have been no cases specifically dealing with Snapchat, there have evolved two competing theories regarding the authenticity of social media evidence in general.[4]  First, in the Griffin case, the court requires: the testimony of the creator, documentation from the creator’s computer, or information obtained directly from the social media site which would tend to show that the evidence seeking to be admitted was not falsified or created by another person.[5]  Under the Griffin Test, Snapchat could be authenticated with the report from Snapchat Legal which gives the user’s email, phone number and username provided the party seeking admission could show a match with the purported author.  Second, in the Tienda case, the court will admit social media evidence on a ruling from the judge that a jury could reasonably find that the proffered evidence is authentic.[6]  Under this ruling authenticity could also easily be established with a report from Snapchat Legal.

            While the Griffin test appears to be more stringent that the Tienda test, both courts examined the content and the context of the social media page seeking admission in making its ruling.  Given that requesting the proper authenticating information from Snapchat Legal is no series of hoops to jump through, it is likely that most courts will overrule any objection to the authenticity of a user’s history report from Snapchat Legal.

             


[1] Snapchat Law Enforcement Guide 3 (last updated Dec. 1, 2012) available at http://www.mrcac.org/content/uploads/2013/02/Snapchat_Law_Enforcement_Guide_12112.pdf.

[2] Id. at 4.

[3] Nicole A. Poltash, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials, 19 Rich. J. L. & Tech. 4 (2013) available at http://jolt.richmond.edu/v19i4/article14.pdf.

[4] Tienda v. Texas, 358 S.W.3d 633 (Ct. Crim. App. Tex. 2012); Griffin v. Maryland, 19 A.3d 415 (Ct. App. Md. 2011).

[5] Griffin, 19 A.3d at 427-428.

[6] Tienda, 358 S.W.3d at 638.

Blog: Banned from the Web: Is the Internet Really a Human Right?

by Catherine M. Gray, Associate Manuscripts Editor

 

Just before Valentine’s Day, a Racine County Circuit Court judge banned a Wisconsin resident from using the Internet for thirty months.1 Jason Willis, a thirty-one year old resident of Waterford, created a Craigslist ad requesting “nude male suitors” using his neighbor’s picture and address.2 As one might imagine, Willis’ neighbor “Dawn” was shocked when several men arrived at her door, one wearing only a trench coat.3 In banning Willis from the Internet, Judge Allen Torhost declared, “[i]f you want to drive drunk, you’re not allowed to drive. To me, a public availability of the internet [sic]—to use it the way he did—is unconscionable.”4

But did Judge Torhost’s violate Willis’ human rights? A 2011 United Nations report declared “that disconnecting people from the internet [sic] is a human rights violation and against international law.”5 While the report focused on the United Kingdom and France’s efforts to block individuals accused of illegal file sharing and countries who would block Internet access to “quell political unrest,” it calls into question whether Judge Torhost’s decision in some way violated Willis’ fundamental rights in modern society.6 In the United States, higher courts than Judge Torhost’s have declared banning an individual from the Internet is an appropriate remedy.7 Nevertheless, there is a question of whether, in a society and work industry so intrinsically linked to the Internet, banning an individual from being online constitutes a human rights violation. Will the individual be able to secure and maintain employment? Does the answer to that question really matter?

Despite the United Nations’ assertion that the Internet is a human right, I’m inclined to agree with Judge Torhost and the Eleventh Circuit here. Recently, Miranda Barbour admitted to killing more than twenty individuals across the United States, lured to their deaths through Craigslist.8 The use of the Internet for the purposes of harassment, child pornography, and even murder does much to counter the U.N.’s argument for a human right to the World Wide Web. In these cases, I see little wrong with banning convicted offenders from using the Internet, even permanently. Part of being a productive, contributing member of society is acting responsibly, and Judge Torhost got it right when he likened use of the Internet to driving. The Internet, like the driving, is a privilege, not a right, and abuse of a privilege means it’s revoked.

 

 

1 Cody Holyoke, Judge: Waterford man ‘banned from Internet, Today’s TMJ4 (Feb. 11, 2014), http://www.jrn.com/tmj4/news/Judge-Waterford-man-banned-from-Internet-245097211.html.

2 Taylor Berman, Man Banned From the Internet for Sending Naked Men to Neighbor’s Home, Gawker (Feb. 13, 2014, 10:08 AM), http://gawker.com/man-banned-from-the-internet-for-sending-naked-men-to-1522072855.

3 Id.

4 Id. 

5 David Kravets, U.N. Report Declares Internet Access a Human Right, Wired (June 2, 2011, 2:47 PM), http://www.wired.com/threatlevel/2011/06/internet-a-human-right/.

6 Id., see also Greg Sandoval, U.K. embraces ‘three strikes’ for illegal file sharing, CNET (Apr. 8, 2010, 8:35 AM), http://news.cnet.com/8301-31001_3-20002018-261.html.

7 United States v. Dove, 343 F. App’x 428, 430 (11th Cir. 2009) (upholding the defendant’s lifetime ban from the Internet as a condition of supervised release following a conviction for “traveling in interstate commerce with intent to engage in illicit conduct with a person under the age of 18 years, in violation of 18 U.S.C. § 2423(b), (f)”); see also David Kravets, U.S. Courts Split on Internet Bans, Wired (Jan. 12, 2010, 5:11 PM), http://www.wired.com/threatlevel/2010/01/courts-split-on-internet-bans/. 

8 John Bacon, Accused Craigslist killer claims more slayings, USA Today (Feb. 17, 2014, 12:32 PM), http://www.usatoday.com/story/news/nation/2014/02/16/pa-barbour-craigslist-murders-interview/5526113/.

 

 

Blog: Facebook’s Continuing Privacy Policy Battle: Parents Concerned Over the Use of Children’s Information in Advertisements

By: Jasmine McKinney, Associate Manuscripts Editor   

By now, most of us probably know that Facebook is no stranger to lawsuits.  Just a mere two years ago, Facebook was involved in a class-action lawsuit where the social networking giant was found to have used members’ images without their permission in advertisements commonly called “sponsored stories”.[1]  Facebook users involved in the suit reported that Facebook had used their personal images shared on the website for various commercial activities.[2]  Though at the time users had no choice to opt out of being featured in sponsored stories, they could configure their privacy settings to share information with only certain people.[3]  The suit that was settled in 2012 cost Facebook a whopping $10 million.[4]

 

Fast-forward to today and throngs of people are still up in arms over Facebook’s lackadaisical privacy policies.  The settlement has yet to take effect due to the large number of appeals making their way through court.  However, under the settlement, Facebook agreed to change its privacy policies so that Facebook users between the ages of thirteen and eighteen could indication whether their parents were also Facebook users and give the parents control over the use of their children’s ‘likes’ and comments for advertising purposes.[5]  For children whose parents were not Facebook users, the site promised to opt their children out of social advertising until age eighteen.[6]  Still many are unsatisfied.

 

Now, a group of parents as well as child advocacy and privacy groups are asking a federal appeals court to throw out the 2012 settlement with Facebook over the website’s use of children’s images in these advertisements or sponsored stories.[7]  The plaintiffs and other public interest groups claim that despite the 2012 action, Facebook still uses children’s images without the proper authorization.[8]  Though parents have the ability to ask Facebook, to remove an image used in advertisements on the site, many still believe Facebook should ask for permission first.[9]  Plaintiffs in the case claim that Facebook’s practices continue to violate laws prohibiting the use of a minor’s image without parental permission in several states, including: California, Florida, New York, Oklahoma, Tennessee, Virginia, and Wisconsin.[10]

 

Scott Michelman, a lawyer for the nonprofit group Public Citizen argues that Facebook is currently exercising a backwards approach to privacy concerning it’s younger users.  “The default should be that a minor’s image should not be used for advertising unless the parent opts in.  Putting the burden on the parent to opt the child out gets it exactly backward.”[11]  Another group known as the Campaign for Commercial-Free Childhood has also concluded that the previous settlement offers little protection to children and has taken the same stance as Public Citizen on the issue.[12]

 

Over the years, Facebook has continued to emphasize that its takes the privacy of its users seriously, but many may question how this can be true given the company’s history of frequently making changes to its privacy policy (some of which have not always been the best in terms of privacy).[13]  The safety of minors online is undoubtedly an important issue and the result of this new suit is bound to show Facebook’s true stance on protecting the privacy of its younger users.


[1] Cecilia Kang, Parents Resume Privacy Fight vs. Facebook Over Use of Children’s Images in Ads, Washington Post (Feb. 13, 2014) http://www.washingtonpost.com/business/technology/parents-resume-privacy-fight-vs-facebook-over-use-of-childrens-images-in-ads/2014/02/12/5ceb9f82-9430-11e3-b46a-5a3d0d2130da_story.html

[2] Hayley Tsukayama, Facebook Settles Sponsored Stories Suit for $10 Million, Washington Post (June 18, 2012) http://www.washingtonpost.com/business/technology/facebook-settles-sponsored-stories-suit-for-10-million/2012/06/18/gJQATcmklV_story.html

[3] Id.

[4] Id.

[5] Vindu Goel, More Pressure on Facebook to Change Its Policy of Using Users’ Images and ‘Likes’ in Ads, The Economic Times (Feb. 13, 2014) http://economictimes.indiatimes.com/tech/internet/more-pressure-on-facebook-to-change-its-policy-of-using-users-images-and-likes-in-ads/articleshow/30324124.cms

[6] Id.

[7] Kang, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Goel, supra note 5.

[12] Id.

[13] See http://newsroom.fb.com/News/735/Reminder-Finishing-the-Removal-of-an-Old-Search-Setting (explaining Facebook’s decision to remove the “Who can look up your Timeline by Name? setting)

Blog: Net Neutrality

By Jessica Ertel, Associate Articles Editor


The D.C. Court of Appeals recently turned down federal net neutrality legislation, thus allowing Internet service providers to charge Internet companies fees for faster delivery of Internet content.

Net neutrality legislation requires that broadband providers treat all Internet traffic equally. The Federal Communications Commission also calls this “Internet openness.” The FCC supports an open Internet because without net neutrality legislation, broadband providers might prevent their subscribers from accessing certain websites altogether or degrade the quality of these sites in order to direct Internet traffic towards their own competing services, or to collect fees from these websites.1 The Commission’s purpose in the net neutrality legislation was to prevent broadband providers from blocking or discriminating against certain Internet site providers.

By throwing out net neutrality legislation, the decision opens the door for Internet Services providers to charge fees to companies who want their Internet content to be delivered to consumers more quickly. Internet services providers, such as petitioner Verizon, applaud the ruling, because it means that they can make money off of Internet companies who want the information from their sites delivered “first class.” The Internet companies who deliver streaming content are the ones most distressed by the U.S. Court of Appeals’ decision. Netflix is one such company. The CEO of Netflix, Reed Hastings, responded to the outcome of the case: “Were this draconian scenario to unfold with some [Internet Service Provider], we would vigorously protest and encourage our members to demand the open Internet they are paying their ISP to deliver.”2

Big companies such as Netflix would be the ones most hurt by this ruling, and the company estimates that it would potentially be forced to pay as much as 10 percent of its annual revenue to broadband providers.3 This could in turn be pushed onto the consumers in the form of higher prices to access sites like Netflix. Yet such a price increase is unlikely to happen soon, and further, Internet service providers have expressed their commitment to their consumers’ ability to freely access Internet sites.4

In spite of this roadblock for the FCC, it has promised to find other ways to pursue Internet openness. The Appeals Court did find that the FCC had the authority to regulate broadband providers’ treatment of Internet traffic.5 The FCC appears ready for the challenge to find other ways to promote Internet openness.

 

1Verizon v. F.C.C., 11-1355, 2014 WL 113946, at *2 (D.C. Cir. Jan. 14, 2014). 

2 Steven Russolillo, Netflix CEO on Net Neutrality: We Will ‘Vigorously Protest’ a “Draconian Scenario,Wall St. J. (Jan. 22, 2014), available at http://blogs.wsj.com/moneybeat/2014/01/22/netflix-ceo-on-net-neutrality-we-will-vigorously-protest-a-draconian-scenario/?mod=e2tw.

3 Scott Mortize & Cliff Edwards, Verizon Victory on Net-Neutrality Rules Seen as Loss for Netflix, Bloomberg Law, Jan. 14, 2014, available at http://about.bloomberglaw.com/legal-news/verizon-victory-on-net-neutrality-rules-seen-as-loss-for-netflix.

4 Edward Wyatt, Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals, N.Y. Times, Jan. 14, 2014, available at http://www.nytimes.com/2014/01/15/technology/appeals-court-rejects-fcc-rules-on-internet-service-providers.html?_r=0(Comcast vice president expressing the company’s commitment to deliver an open Internet to its customers). 

5Verizon v. F.C.C., 11-1355, 2014 WL 113946, at *1 (D.C. Cir. Jan. 14, 2014). 

Blog: Snapchat May Not Be Just for Friends – How About Insider Trading?

by Dylan Denslow, Associate Technology and Public Relations Editor

 

          Since its launch in September 2011, Snapchat has amassed some 26 million users who together send an average 400 million “snaps” each day.[1]  To say the app is popular is an understatement.  However, Snapchat’s reputation has been primarily as an outlet for teenagers and college students to send scandalous or embarrassing photos of themselves.  Recently however, a new app named Confide has taken the idea behind Snapchat, the notion of a disappearing message, and brought it to Wall Street.[2]  

 

            Confide is a “new ‘off-the-record’ messaging app” that has raised $1.9 million in seed funding, and was initially referred to as “Snapchat for business”.[3]  Business people commonly run into a situation where they do not want to create a paper trail of emails discussing a particular subject – instead they prefer to talk over the phone where their discussions aren’t recorded and may not bring about as many legal consequences.  Confide is meant to alleviate this situation where phone tag is frequent and an unnecessary impediment to transacting business.[4] 

 

            On its face, this seems like a great idea that could cure business problems faced on a daily basis.  However, the app is ripe for abuse and potentially provides a mechanism by which employees may be able to skirt or break state and federal laws.  Insider trading immediately comes to mind.  For example, an executive with a stock tip could send a message through Confide to an investor knowing that the record of that message would soon disappear.[5]  The messages sent on Confide are not stored on servers, and the company has put in place protections to avoid users taking screenshots of the messages themselves.[6]  This seems like a perfect mechanism to help exec’s and employees send messages without worrying about later consequences of their statements.

           

            Although geared towards the business world, it is also likely that the app will eventually fall into other hands as well.  This in itself creates a number of potential legal issues.  For example, imagine a drug dealer with use of the app.  No longer is there a record of his texts to buyers, instead his messages are deleted immediately, making it more difficult for law enforcement to connect him with his past activities.  Although this violates the terms of Confide’s user agreement, it is unlikely that such an agreement would deter someone already involved with such criminal activity.[7]

 

            Snapchat has certainly brought value to its users, primarily through its ability to allow them to share fun experiences.  However, there have already been allegations that Snapchat is being used for insider trading, even when its reputation typically involves a drunken “selfie” at a bar or college party.[8]  Now, Confide brings a similar product to market specifically geared at the business community.  A user agreement prohibiting illegal activity will not be enough to deter law breaking.  As this technology moves into the business arena, messages will have more serious financial effects than the seemingly harmless Snapchats.  Lawmakers should be poised to monitor and regulate use of this technology in order to avoid any potentially serious legal issues that may arise.

 


[1] See http://expandedramblings.com/index.php/snapchat-statistics/#.UvLdyGiPAc4.

[2] See http://www.forbes.com/sites/jeffbercovici/2014/02/04/snapchat-for-business-its-called-confide-and-it-exists-now/.

[3] Id.

[4] Id.

[5] See http://www.thedailybeast.com/articles/2014/01/17/confide-is-the-best-way-to-keep-your-dastardly-deeds-hidden-for-now.html.

[6] See http://www.forbes.com/sites/jeffbercovici/2014/02/04/snapchat-for-business-its-called-confide-and-it-exists-now/.

[7] See http://www.forbes.com/sites/jeffbercovici/2014/02/04/snapchat-for-business-its-called-confide-and-it-exists-now/.

[8] See http://www.cnbc.com/id/100924846.

Streaming Downton Abbey: When Will the Law Catch Up to Global Television?

       by Cate Gray, Associate Manuscripts Editor

 

     On January 5, 2014, PBS premiered season four of critically acclaimed period drama Downton Abbey to record-breaking ratings in the United States.[1]  The problem for diehard fans truly committed to knowing the trials and tribulations of the Crawley family?  In the United Kingdom, the season four finale already aired on December 25, 2013.[2]  Fans of BBC One’s Sherlock can sympathize; season three premiered nearly a month later here in the US than in the UK.[3]

            So, devoted US fans, why not utilize one of the many websites devoted to allowing viewers to stream these shows and stay up to date with our neighbors across the pond?  Simply put, it’s illegal.  In an effort to combat copyright infringement online, Congress defined all such websites as “dedicated to infringing activities” and therefore in violation of title 17 of the United States Code.[4]  But should it be? 

PBS, the Public Broadcasting Service, is available to any viewer with a digital antenna, so watching programming on the network doesn’t require a paid cable or satellite subscription.  The network itself is funded largely through private donations.[5]  Therefore, because the public does not pay for the ability to watch the channel, there is a question as to whether there is actual harm done to PBS.  Does streaming content from the United Kingdom that is not yet available to those of us in the United States truly harm PBS?

The more important question, however, is when will the law, and technology, catch up to an increasingly global society?   Television shows no longer have fans based solely in one country, and for those of us behind in broadcasts due to our geographic location, the Internet is a minefield of countless spoilers for episodes yet to air on our local networks.  The delay in airing shows in other counties with large fan bases creates a market for online streaming, and all but encourages fans to engage in a technically illegal activity in order to stay up to date with viewers in other locales.  Such a result places both the U.S. law and television networks in a difficult situation, and only time will tell whether they take steps to decrease the time between premiers in different regions, thereby reducing the need for online streaming.


[1] ‘Downton Abbey’ Season 4 Premiere Breaks PBS Ratings Record, Huffington Post (Jan. 6, 2014, 6:19 PM), http://www.huffingtonpost.com/2014/01/06/downton-abbey-premiere-ratings_n_4551161.html.

 

[2] “Downton Abbey” The London Season (TV Episode 2013) – Release Info, iMDB, http://www.imdb.com/title/tt2819840/releaseinfo?ref_=tt_dt_dt (last visited Feb. 13, 2014).

 

[3] “Sherlock” Many Happy Returns (TV Episode 2013) – Release Info, iMDB, http://www.imdb.com/title/tt3381878/releaseinfo?ref_=tt_dt_dt (last visited Feb. 13, 2014).

 

[4] S. 3804, 111th Cong. § 2 (2010).

 

[5] Support Public Television, PBS, http://www.pbs.org/aboutpbs/aboutpbs_support.html  (last visited Feb. 13, 2014).

 

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