Richmond Journal of Law and Technology

The first exclusively online law review.

Month: February 2014

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

3 Scott Mortize & Cliff Edwards, Verizon Victory on Net-Neutrality Rules Seen as Loss for Netflix, Bloomberg Law, Jan. 14, 2014, available at

4 Edward Wyatt, Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals, N.Y. Times, Jan. 14, 2014, available at 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

[2] See

[3] Id.

[4] Id.

[5] See

[6] See

[7] See

[8] See

Sedona Conference® to Use JOLT Article in Webinar



Sedona Conference® Webinar

ESI in the Criminal Justice System – From Initial Investigation through Trial


           The Sedona Conference® is hosting a two-part webinar on electronically stored information (ESI) as it relates to criminal justice system. The 90-minute webinars will address the issues dealing with the collection, disclosure, and use of “criminal electronically stored information” from criminal investigation through the trial. The dates of the two webinars are Feb. 19, 2014 and March 19, 2014.

           As part of the presentation, the Sedona Conference® will include material from the following JOLT article:

Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues – Justin P. Murphy & Adrian Fontecilla,


Click here for more information on the Webinar


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),


[2] “Downton Abbey” The London Season (TV Episode 2013) – Release Info, iMDB, (last visited Feb. 13, 2014).


[3] “Sherlock” Many Happy Returns (TV Episode 2013) – Release Info, iMDB, (last visited Feb. 13, 2014).


[4] S. 3804, 111th Cong. § 2 (2010).


[5] Support Public Television, PBS,  (last visited Feb. 13, 2014).


Symposium Series: What Is Information Governance?

     by Peter Sloan, Husch Blackwell LLP

February 5, 2014


If anything cries out for organizational governance today, surely it is information.   Data volumes are rising relentlessly; information is flowing in and out of organizations more pervasively than ever; and mobile computing, cloud services, big data analytics, and social networking are fundamentally transforming the organization’s relationship with information.  Meanwhile, the compliance environment grows yet more complicated, as organizations, regulators, and the courts wrestle with the repercussions of massive data breaches, the evolving scope of e-discovery, and allocation of responsibility for the retention and protection of information.  Shortcomings of the traditional practices used by organizations to deal with information are becoming clear, as is the need for a new, comprehensive approach.  And that fresh approach has been dubbed “Information Governance.”

But what exactly is Information Governance?  Despite widespread use of the term,[1] few definitions have been offered.  With due deference to Shakespeare’s Juliet,[2] and also to Justice Stewart,[3] names and definitions matter. They are particularly important when the subject, unlike roses and pornography, has not been with us for a very long time.  And Information Governance indeed is a new approach for addressing information issues.  To be more precise, Information Governance involves a new reconciliation of departmental interests (such as those of IT, Legal, Compliance, Records Management, and lines of business) and of traditional information disciplines (such as records & information management, privacy & data security, and litigation preservation & discovery)—in essence, connecting familiar building blocks in a new, different, and more effective way, to better serve the organization as a whole.  So, definitional clarity is essential here, precisely because Information Governance involves a fundamental change in established perspectives and practices.

What definitions have been proffered for Information Governance?  According to Gartner, the global information technology research and advisory company, Information Governance is “the specification of decision rights and an accountability framework to ensure appropriate behavior in the valuation, creation, storage, use, archiving and deletion of information.  It includes the processes, roles and policies, standards and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals.”[4]  ARMA International similarly defines Information Governance as “a strategic framework composed of standards, processes, roles and metrics that hold organizations and individuals accountable to create, organize, secure, maintain, use, and dispose of information in ways that align and contribute to the organization’s goals.”[5]

The Compliance, Governance, and Oversight Council (“CGOC”) has defined Information Governance as “the discipline of managing information according to its legal obligations and its business value, which enables defensible disposal of data and lowers the cost of legal compliance.”[6] 

Most recently, the Sedona Conference has defined Information Governance as “an organization’s coordinated, inter-disciplinary approach to satisfying information compliance requirements and managing information risks while optimizing information value.”[7] 

While each of these definitions has its strengths, here’s what I like about the Sedona Conference definition:[8] 

  • Success with Information Governance requires strategic commitment by the organization’s leadership, which is best accomplished when clear benefits accrue to the organization.  Embedding compliance, risk management, and value into the definition communicates a clear “why” for pursuing Information Governance.  These words articulate concrete, strategic benefits for the organization as a whole, and they also anchor the endeavor’s purpose. 
  • The terms “coordinated’ and “inter-disciplinary” succinctly capture the essence of Information Governance, addressing the strategic “what” that is being accomplished.  The most challenging aspect of adopting Information Governance is bridging across traditional information silos.  To be successful with Information Governance, the organization’s individual departments and functions such as Legal, IT, Records, Compliance, and lines of business must coordinate so that decisions about the organization’s information will reflect the needs of the organization as a whole, rather than parochial interests.  And success with Information Governance also requires inter-disciplinary assessment and decision-making, so that information decisions are not based solely on the limited perspectives of traditional disciplines such as records & information management, privacy & data security, and litigation preservation & discovery.  This is the essential feature of Information Governance, through which the organization expands its perspective to consider all aspects and angles of information compliance, risk, and value.

The Sedona definition does not prescribe the particulars of how Information Governance is implemented, referring instead to the organization’s “approach” to accomplishing this coordinated, inter-disciplinary effort, and leaving the specifics of the implementation “how” to supporting guidance.  I think that’s prudent, because there will be various approaches for implementing Information Governance, and the definition should not be too limiting.  Reality suggests that different organizations adopting the Information Governance approach will operate at different points on a maturity continuum.  Some, frankly, will begin by simply getting the right people together in the room to thoroughly explore all angles to information-related decisions at the organization before they are made.  Others will put in place elements of structure, direction, and resources to support Information Governance efforts, along with mechanisms for accountability.  Yet others will establish robust control systems for Information Governance, based upon applicable information-related standards[9] or modeled upon standards for internal control systems generally.[10] 

Years from now, perhaps most organizations will be well along the path of this maturity continuum, and hopefully so.  And yes, organizations certainly will need authoritative guidance on implementation frameworks, strategies, and options for building Information Governance programs. But my hunch is that, at least in the short term, different organizations will pursue Information Governance programming in a wide variety of ways.  While I may feel strongly about the importance of conducting Information Governance assessments and setting program objectives, followed by establishing structure, direction, resources, and accountability for an effective Information Governance program, these are specifics of implementation — the How, rather than the definitional What and Why.


[1]  A simple Google search for “Information Governance” on February 3, 2014 yielded 1,250,000 search results.

[2]  “What’s in a name?  That which we call a rose by any other name would smell as sweet ….”  Shakespeare, Romeo and Jul
, Act 2, Scene 2.

[3]  “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it, and the motion picture involved in this case is not that.”  Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

[4]  See Gartner IT Glossary, (last visited January 29, 2014).

[5]  See Glossary of Records and Information Management Terms, 4th Ed. (ARMA TR 22-2012). 

[6]    The CGOC’s definition of information governance is found Information Governance Benchmark Report in Global 1000 Companies, CGOC 1, 8 (2010).

[7]  The Sedona Conference, the Sedona Conference Commentary on Information Governance (Public Comment Version) (2013), Available at

[8]  Full disclosure — I am a Sedona Conference Working Group 1 participant and contributed to its Commentary on Information Governance.  I am also a member of ARMA International and have participated in the CGOC.  Obviously, my views are my own and are not attributable to these fine organizations.

[9]  Various standards provide organizations guidance on assessing information practices and providing structure, direction, resources, and accountability for information governance.  See International Standard ISO 15489‑1, Records Management; International Standard ISO 30301, Management Systems for Records; International Standard ISO/IEC 27001, Information Security Management Systems; and ISO/IEC 27001:2005(E).  See also The Generally Accepted Recordkeeping Principles, ARMA (Feb. 17, 2013).

[10] See COSO, Internal Control-Integrated Framework, Executive Summary (May 2012).  A COSO-based internal control system is the combination of five integrated components, including a control environment, risk assessment, control activities, information and communication, and monitoring activities.  Id. at 4-5.

Announcement: Symposium Registration Now Open

Registration for our yearly symposium, Information Governance: A Comprehensive Approach to e-Discovery, is now open


Please follow the above link for a speaker schedule, the registration form, and all other details.  We hope to have you.



Blog: With E-Cigarettes, FDA Regulation Likely to Rule the Day

By: Walton Milam, Associate Staff

Though the FDA banned Television advertisements for cigarettes over four decades ago, e-Cigarettes advertisements are not yet subject to these FDA regulations and have flooded the airwaves recently.[1]  E-cigarette advertisements will even make it on the air during the Superbowl in some locales.[2]  The FDA is closely monitoring this movement and is expected to release regulations regarding e-Cigarette advertising at some point this year.[3]

Though the FDA decided long ago to stifle the free market from freely advertising tobacco products to Americans, it remains to be seen how the FDA will handle this new product which does not contain Tobacco and supposedly has far less damaging health effects than traditional cigarettes.[4]  E-Cigarette sellers are certainly hoping the FDA won’t curtail their intense advertising blitz that must be paying off.  Though E-cigarette manufacturers only spent $1.1 million on advertising over the first nine months of 2012, they spent $15 million over the first nine months of last year.[5] 

In addition to health concerns regarding E-cigarettes themselves, some fear their resemblance to actual cigarettes is reason enough to ban their advertisement on television as young viewers believe the advertisements will depict individuals smoking tobacco cigarettes.[6]  E-cigarette manufacturers claim their market is adults who already smoke tobacco cigarettes and want a healthier alternative.[7]

Unfortunately, the FDA will almost assuredly inflict some sort of regulation on E-cigarettes and both those opposed to E-cigarette advertising and those in favor will spend millions of lobbying dollars hashing out the issue on capital hill.   The FDA’s whole existence is based on the idea that consumers themselves are incapable of making informed health decisions and that government regulation is needed to block dangerous products from getting in the hands of consumers.  Though the folks in the FDA no doubt have good intentions, their time and money might better be spent creating an advertisement of their own.  If advertisements are such an effective way to influence consumers, as the FDA no doubt believes they are, why not create an FDA television ad explaining the negative health affects of E-Cigarettes (or tobacco cigarettes for that matter, though the hatchet was long ago buried the tobacco industry.)  Why not empower consumers with information that allows them to make an informed choice as to whether or not they want to take on the risks of smoking E-cigarettes rather than preventing any information from reaching consumers, pro or con. 

Though the FDA will assuredly not create an advertisement arguing the negative effects of E-cigarettes, they are likely to come up with some sort of regulations for E-cigarettes in the near future.  Furthermore, though millions of dollars will be spent on lobbying, consumer will likely be left with no more information about E-cigarettes than they had at their disposal in the first place.


[2] Id.

[3] Id.




[7] Id.

Blog: Drones, the future of delivery?

by Emma Buck, Associate Staff


Futuristic movies, television shows, and books have introduced us to the idea of unmanned drones in our everyday lives. Imagine having your mail or packages delivered by something that resembles a mini-helicopter and is piloted by someone many miles away. Even a few years ago, this idea would be pure imagination or fantasy but with recent technological advances, that is no longer the case. Drones with impressive technological abilities are already available to be purchased by individuals.1 Amazon has recently announced their new drone project, Amazon Prime Air.2 This service would allow certain users the option of thirty-minute drone delivery for their online orders. Amazon, which has frequently been a leader in innovation, anticipates that Amazon Prime Air will be available by 2015.


The Federal Aviation Administration regulates the national airspace. In recognition of the inevitable presence of drones in daily life, the FAA has been charged with developing new policies to integrate drones into the national airspace by September 2015.3 These policies will shape how companies, individuals, and governments can use drones in the near future. Many states have implemented bans on the use of drones by governmental entities, preventing potential Fourth Amendment search and seizure concerns.4 While these Constitutional issues only apply to government actions, there are also common law principles such as privacy and trespassing that would also apply to private use of drone technology.


One danger of the easy availability of drones that have video cameras attached is the potential abuse of privacy rights. Imagine that you are sunbathing in your fenced in backyard when suddenly a drone flies over the fence, capturing images of you that you did not want anyone else to see. The claim that would apply in this situation is “intrusion upon seclusion” and could likely apply to use of drones because such conduct may be highly offensive to a reasonable person. 5 This cause of action could likely be used in cases where someone is using drone technology to gather information about another. However, this is an objective standard so it may open the pilot to unintended liability if the drone ends up flying into a private situation, regardless of the pilot’s intentions. As this technology is still developing, there is very little legal precedent that actually speaks directly to this issue so it is unsure how the courts will decided that drone activity fits within this established standard.


A second concern is property rights. Courts have applied trespass to aerial vehicles (planes, helicopters, etc..,) when they are driven into the airspace close enough to someone’s home that it would interfere with their use and enjoyment of the land.6 Usually this has been met when the vehicle causes some sort of excessive noise or vibrations, which a smaller vehicle like a drone is unlikely to do. Yet, this principle would still apply to drones that caused a disturbance and any drone that landed on the property directly.


Drone technology creates all sorts of new and exciting possibilities. Some states are being proactive and starting to preemptively create laws that would regulate the use of this technology. However, these efforts have been more focused on use by the government and not as much by individuals.7 Those that use drones should be aware that they may be opening themselves up to liability in an area with very little guiding legal precedent directly on point.









5 Restatement (Second) of Torts §652B (1977).


6 United States v. Causby, 328 U.S. 256, 264 (1946).




Blog: Google Glass Becoming Problematic for Legislators and Law Enforcement

by Kevin Conneran, Associate Technical & Public Relations Editor


Google Glass is the future of computers (if you believe Google). Google envisions a world where instead of purchasing your prescription glasses from eyewear stores, you simply provide your prescription to Google and they will outfit your computer with your prescription.[1] Lately, however Goggle’s Glass-centric lifestyle has not been embraced by state legislatures and government agencies.


Recently Wyoming joined a growing number of states that have started looking into banning drivers from using Google Glass.[2] Wyoming Democratic State Senator Floyd Esquibel crafted a bill directed at accomplishing this goal.[3] He stated,” Common sense would tell you that you really don’t need to be looking at a little computer while driving.” Similar measures have been proposed in Delaware, Illinois, Missouri, New Jersey, New York and West Virginia.[4]


Google Glass users have also had their fair share of hassles as society figures out how to handle this technological leap. In California, a woman received a ticket for operating a video display in front of the drivers head rest (Ca. Vehicle Code 27602).[5] She subsequently fought the ticket and ultimately won because there was not enough evidence to prove the device was on while the user was driving.[6]


In Ohio, a man was detained by Homeland Security officials for wearing Google Glass while in a movie theater.[7] Officials believed he was filming the movie through his Glass and interviewed him until they determined that he was not using the Glass for piracy.[8]


These are just some issues that have plagued Glass users, and Glass is still in its infancy. Once Glass is fully brought to market instances like this will only become more commonplace. States, government agencies, and businesses need to start planning now, so that they have established standards in place by the time Glass is as common as a Bluetooth.


[1]    See


[3]    Id.

[4]    Id.


[6]    Id.


[8]    Id.

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