© 2010 Mudd Law Offices 1
Intellectual Property Counseling: From Start-Up to Initial Public Offering
Illinois State Bar Association
April 28, 2010
© 2010 Mudd Law Offices 2
Hot Topics in Internet IP and Privacy
• Anonymity Online and Unwanted Content
• Privacy
• Social Media
• Eavesdropping and Unauthorized Access
• Section 230 Immunity
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Anonymity Online
Anonymous Speech is Protected….
….and Protected online…..
…..by the Constitution
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Anonymity Online
But:
Defamation not protected
Privacy Violations not protected
Breach of Contract not protected
IP violations not protected
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Anonymity Online
Begin with policies…
What can employees do and
what can they not do?
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Anonymity Online
Policies to Consider
Non Compete
Non Disclosure
Employment Agreements
Computer Use Policies
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Anonymity Online
But, what if content found online by anonymous speakers
what to do…….
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Anonymity Online
Defamation -
Unless severe, best to avoid
Backlash
Difficult Standard
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Anonymity Online
Originally, the standards began very minimalist
Motion to DismissColumbia Ins. Co. v. Seescandy.com
185 F.R.D. 573, 578 (N.D. Cal.1999)
Elements quite straightforward….
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Anonymity Online
– Identify defendant with sufficient particularity
– Show previous efforts to locate the defendant
– Demonstrate Could Survive Motion to Dismiss
– Justify Request and Identify Those with Information
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Anonymity Online
Standards became more stringent
Dendrite Int’l, Inc. v. John Doe No. 3775 A.2d 756, 760-761 (N.J. App. 2001)
– Notification– Specify Exact Statements– Prima Facie Cause of Action– Produce Sufficient Evidence to Support Each Element– Balance Strength of Prima Facie Case against Necessity for
Disclosure
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Anonymity Online
Doe v. Cahill, 884 A.2d 451 (Del. 2005)
Notice
Summary Judgment
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Anonymity Online
Mobilisa, Inc. v. John Doe 1, et al.,
170 P.3d 712 (November 27, 2007)
Cahill plus Balancing
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Anonymity Online
Where more accepted…
Confidentiality
IP
Breach of Contract (be careful)
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Anonymity Online
Be careful
Be prepared to meet MSJ standard
Courts aware and savvy
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Privacy
Video Surveillance
Robbins v. Lower Merion School District(E.D. Pa.)(school uses laptop cameras)
Arlen Spector introduced legislationSurreptitious Video Surveillance Act of 2010
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Privacy (cont’d)
Changes privacy policies again
Information owned by Facebook
Call for Legislation
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Social Media Concerns
Guiding Employers on Monitoring Social Media
Proactive Approach Means Developing Policies and Being Reasonable
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Social Media Concerns (cont’d)
Why be concerned?
Hostile environment/harassment issues
Defamation Claims
Improper Disclosure
Child Pornography Reporting (Illinois)
FTC Guidelines on Product Affiliation
Malware and Security Issues
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Social Media Concerns (cont’d)
Developing Policies
Reflect Philosophy of Organization
Prohibit Clear Conduct
Be Reasonable and Practical
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Social Media Concerns (cont’d)
Be cautious of privacy
Intrusion Upon Seclusion
Eavesdropping Statutes
NLR Act
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Eavesdropping and Unauthorized Access
• Federal Statutes– Computer Fraud and Abuse Act– Electronic Communications Privacy Act– Stored Communications Act
• State Statutes
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Eavesdropping and Unauthorized Access
Computer Fraud and Abuse Act (CFAA)(18 U.S.C. § 1030)
Variety Contexts
- National Security- Financial Information- Information from Government- Protected Computer
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Eavesdropping and Unauthorized Access
CFAA (cont’d)
Protected Computer
Financial Institution or related
Interstate or Foreign Commerce
18 U.S.C. § 1030(e)(2)
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Eavesdropping and Unauthorized Access
(a)(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period
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Eavesdropping and Unauthorized Access
CFAA (cont’d)
Protected Computer and Causes Damage
Google Example
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Eavesdropping and Unauthorized Access
CFAA (cont’d)
Civil Remedy provision
18 U.S.C. § 1030(g)
Anyone harmed BUT….
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Eavesdropping and Unauthorized Access
One of five types of damage (18 U.S.C. § 1030(c)(4)(A)(i)
Most Common
(I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;
Also:
affecting medical examination, diagnosis, treatment, or carephysical injury to any person; a threat to public health or safety;damage affecting a computer used by or for an entity of US
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Eavesdropping and Unauthorized Access
Must be
Unauthorized Access
Exceeding Authorized Access
Key Question….
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Eavesdropping and Unauthorized Access
Snap-on Business Solutions Inc. v. O'Neil & Assocs., Inc.
(N.D. Ohio April 16, 2010)
(Examined Agreements, question of fact denied MSJ)
LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009)
(access not automatically unauthorized if disloyal)
International Airport Centers, LLC v. Citrin, 440 F.3d 418
(7th Cir. 2006)
(employee who violates duty of loyalty, no authorization)
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Eavesdropping and Unauthorized Access
CFAA (cont’d)
US v. Drew, (259 F.R.D. 449 (C.D. Cal. 2009)
(violation of TOS not enough)
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Eavesdropping and Unauthorized Access
Electronic Communications and Privacy Act18 U.S.C. § 2510, et seq.
Particularly § 2511, criminalizes
Intentional interception of oral, wire or electronic communication
Discloses
Uses
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Eavesdropping and Unauthorized Access
ECPA (cont’d)
Question: What is interception
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Eavesdropping and Unauthorized Access
ECPA (cont’d)
Civil Remedies
generally any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used
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Eavesdropping and Unauthorized Access
Relief
– Preliminary, declaratory and other equitable
– reasonable attorney’s fee and costs
– Damages, either (a) actual plus profits OR (b) statutory ($100/day or $10,000)
18 U.S.C. § 2520
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Eavesdropping and Unauthorized Access
ECPA (cont’d)
Question: What is electronic communication?
United States v. Councilman, 418 F.3d 67 (1st Cir. Mass. 2005)
United States v. Szymuszkiewicz, 2009 U.S. Dist. LEXIS 60755 (E.D. Wis. June 30, 2009)
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Eavesdropping and Unauthorized Access
Stored Communications Act (18 U.S.C. § 2701)
whoever--
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
AND…..
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Eavesdropping and Unauthorized Access
SCA (cont’d)
thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . .
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Eavesdropping and Unauthorized Access
SCA (cont’d)
Civil Remedy
Very similar to ECPA except minimum statutory of $1,000
Punitive if willful determination
18 U.S.C. § 2707
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Eavesdropping and Unauthorized Access
SCA (cont’d)
18 U.S.C. § 2702
Providers generally cannot disclose contents of communications except in certain instances
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Eavesdropping and Unauthorized Access
SCA (cont’d)
City of Ontario, California v. Quon, et al.
United States Supreme CourtApril 19, 2010 Oral Arguments
Quon v. Arch Wireless Operating Co., Inc.,
529 F.3d 892 (9th Cir. Cal. 2008)
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Eavesdropping and Unauthorized Access
SCA (cont’d)
Quon
Privacy rights of employees and texting
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Eavesdropping and Unauthorized Access
SCA (cont’d)
Quon SCA Question:
In storing texts, was Arch Wireless acting as a “remote computing service” or an “electronic communication service”?
If remote computing service, it could disclose, as subscriber was the City employer.
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Eavesdropping and Unauthorized Access
SCA (cont’d)
Quon SCA Question:
If electronic communication service, it could not disclose because the City was not an “originator or an addressee or intended recipient of such communication.”
This is what Ninth Circuit concluded.
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Eavesdropping and Unauthorized Access
SCA (cont’d)
Impact of Quon on Use of Employer Devices by Employees
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Eavesdropping and Unauthorized Access
Illinois Eavesdropping Statute
720 ILCS 5/14-1 et seq.
IP Section proposed legislation to include electronic communications
SB 2987
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CDA § 230
OSP Safe Harbor for Content
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
47 U.S.C. § 230(c)(1)
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CDA § 230 (cont’d)
OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2))
No provider or user of an interactive computer service shall be held liable on account of
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;
OR
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CDA § 230 (cont’d)
OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2))
No provider or user of an interactive computer service shall be held liable on account of
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
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CDA § 230 (cont’d)
§ 230 Does Not Affect:
Criminal Law
Intellectual Property (see DMCA)
ECPA
47 U.S.C. § 230(e)
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CDA § 230 (cont’d)
Additional Provisions:
State law can expand, but not be inconsistent (47 U.S.C. § 230(e)(3))
Requires Interactive Service Provider to provide notice of availability parental control devices
(47 U.S.C. § 230(d))
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CDA § 230 (cont’d)
As always, definitions critical:
Interactive Service Provider
Information Content Provider
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CDA § 230 (cont’d)
Interactive Computer Service
means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
47 U.S.C. § 230 (f)(3)
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CDA § 230 (cont’d)
Information Content Provider
means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
47 U.S.C. § 230 (f)(3)
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CDA § 230 (cont’d)
Craigslist
Chicago Lawyers Cmte. v. Craigslist,
519 F.3d 666 (7th Cir. 2008)
March 14, 2008
(no liability, did not cause to be posted)
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CDA § 230 (cont’d)
Roommates.com
Fair Hous. Council v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. Cal. 2008)
Liability - created discriminatory questions
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CDA § 230 (cont’d)
Recent Cases
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 591 F.3d 250 (4th Cir. Va. 2009)(No liability)
FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. Wyo. 2009)(liability - engaged in illegal conduct)
Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. Wash. 2009)(no liability)
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EFF’s 2010 Items
Attack on Cryptography
Will 2010 be the Print version of RIAA?
Global Internet Censorship
Hardware Hacking
Location Tracking
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EFF’s 2010 Items
Net Neutrality
Online Video (TV Everywhere, Selectable Output Control)
Congress (Patriot Act, Cybersecurity Act)
Social Networking Privacy
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Charles Lee Mudd Jr.
Mudd Law Offices
3114 West Irving Park RoadChicago, Illinois 60618
773.588.5410 Telephone773.588.5440 Facsimile