Category Archives: Law: Internet Law

A Very Cute Respose to Employer Demands for Facebook Passwords

Posted on April 6, 2012 by Michael Froomkin

I hereby (fictionally) resign is a great, if alas so far fictional, account of blowback from an employer’s demand for Facebook passwords.

Spotted via Emergent Chaos, Chaos Emerges from Demanding Facebook Passwords.

Posted in Law: Everything Else, Law: Internet Law | Comments Off on A Very Cute Respose to Employer Demands for Facebook Passwords

Harold Feld’s Insanely Long Field Guide To The Verizon/SpectrumCo/Cox Deal

Posted on March 22, 2012 by Michael Froomkin

Do you want to think of yourself as a well-informed citizen when it comes to technology issues? If so, you probably need to read Harold Feld’s explanation of the Verizon/SpectrumCo/Cox Deal.

In reading this, please keep in mind that in the many years I have been acquainted with Harold Feld, I have never seen anything that would tend to brand him as an alarmist.

A choice bit:

And before you could say “dangerous levels of spectrum concentration,” the former mortal enemies had become total BFFs — just like Stephen Colbert and Jimmy Fallon, but in reverse. In fact, Verizon Wireless and cable multisystem operators (“MSOs” as we say in telecom) are so into each other now that they simultaneously entered into agreements to become exclusive resellers of each other’s products and to jointly develop a whole bunch of new technologies together. The companies insist these three side agreements are totally, completely and utterly unrelated to the spectrum sale and that unrelated side agreements are just the natural love child of freaky four-way spectrum hook ups.

A few weeks later, Verizon graciously offered to buy out Cox’s AWS spectrum so that Cox could get out of the wireless business. And, in what can only be an amazing coincidence for utterly independent agreements that should in no way make anyone think that the major cable players are colluding with their Telco/Wireless chief rival, Verizon and Spectrumco offered to let Cox in on the same three agreements to become exclusive resllers and become a member of the “Joint Operating Entity” (JOE) to develop all these cool new technologies.

So you see, it’s all totally innocent, and does not in the least look like a cartel agreeing not to compete, dividing up markets, and setting up a Joint Operating Entity so they can continue to meet and discuss their business plans on an ongoing basis while developing a patent portfolio to use against competitors like DISH and T-Mobile. In fact, these three side agreements are so harmless and so completely independent of the spectrum sale that Verizon and the MSOs initially refused to give them to the FCC. When they finally did agree to put them in the record under protest, they cut a whole bunch of stuff out. Because really, as Verizon and the cable MSOs said in their response, what one mega-corp says to four of its largest competitors is really no one’s business.

…

Verizon will actually resell the cable MSO video services they used to (and in theory still do) compete against, while the MSOs will resell Verizon’s mobile wireless service. On top of that, they will get together as part of the “JOE” to discuss each other’s business, facilitating further cooperation. Finally, the technology developed by these one-time-rivals will be used to disadvantage competitors, much the same way Comcast is currently using its TV Everywhere certification to keep HBO On The Go off devices that facilitate ‘cord-cutting’, like Roku.

But there’s so much more…the really wonky stuff starts like this:

We can divide the substantive issues into three main categories: (a) Spectrum concentration issues that come from pumping up one of the top two wireless carriers with even more primo spectrum; (b) whether the side deals represent an illegal division of relevant markets between competing firms or, even worse, the formation of an actual cartel (a term I do not use lightly); and, (c) all kind of angsty, big picture stuff about whether the whole theory of the Telecom Act of 1996 really works and we can have facilities based competition, or whether Susan Crawford is right and we are doomed to a dystopian future where a cable monopoly controls our broadband and thus our digital future — except for the mobile part which will be controlled by an AT&T/Verizon Duopoly. But since they will be part of the new Communication Cartel, that won’t really matter.

And it does go on. Yes, it is insanely long. But he’s got me believing it’s a Big Deal.

For example,

The parties agree to form a “Joint Marketing Entity” (JOE) “for the development of technology to better integrate wireline and wireless products and services” (to quote the official press release). To translate: the largest residential broadband providers, who also happen to be among the largest residential video, and the largest mobile services provider, will sit down to jointly develop technologies on how to better integrate their supposedly competing services. You know how Google, Apple, Microsoft, and RIM are all involved in this “mobile patent war?” Imagine if, instead of each of them trying to develop competing wireless operating systems and technologies, they said: “Hey, we’re the four biggest developers of mobile operating systems. Instead of competing, lets pool all our patents together and not let anyone else license them from us except on terms we all agree to use. We’ll meet in a back room every month, talk about all our future development plans, and make sure that we develop patented technologies and proprietary standards for where we plan to take the industry going forward.” Why would that possibly raise any concerns?

I could go on, but then this would become an insanely long summary.

Read it.

Posted in Law: Internet Law | Comments Off on Harold Feld’s Insanely Long Field Guide To The Verizon/SpectrumCo/Cox Deal

11th Circuit Rules that Full Immunity Is Required for Compelled Decryption

Posted on February 24, 2012 by Michael Froomkin

The 11th Circuit just decided In re Grand Jury Subpoena Duces Tecum March 25, 2011, USA v. John Doe.

Doe was ordered to decrypt his hard drive, and given limited immunity (use immunity) regarding the act of production of the unencrypted contents. He refused, claiming that the immunity was insufficient, and also that he was not in fact able to decrypt the hard drives.

We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought,because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

It’s a well-argued opinion and could be influential.

Posted in Cryptography, Law: Criminal Law, Law: Internet Law | 1 Comment

The Name-Your-Own-Price Pricing Model Applied to Casebooks, A Field Report

Posted on February 15, 2012 by Michael Froomkin

What if you let law students choose what they would pay for their (digital) casebook? Would you make any money?

That’s the gamble behind the Semaphore Press, the publishers of James Grimmelmann‘s, Internet Law: Cases and Problems, which is the book I am using in my Internet Law class this semester.

Semaphore Press’s name-your-own-price publishing model was publicized by Radiohead (although not invented by them). It is very different from the traditional law school casebook publishers who now charge well upwards of $100 per book. The Press suggests students pay $30 for this casebook, but allows them to pay as little as a penny:

What do you have to pay?
Each publication has a suggested price. We price full casebooks based on our belief that it is fair to ask a student pay about $1 for the reading material for each one-hour class session. Different schools use different calendars and credit hours, so we’ve settled on a suggested price for most of our casebooks of $30. We ask that you pay the suggested price either with a credit card (by clicking the appropriate link on our page), or by sending us a check, and then download a digital copy of the casebook. Note that if your professor has assigned, e.g., only 10 class sessions of material from a Semaphore Press book, then we suggest that you pay $10.

We have expenses that we need to cover. Our authors hope, and deserve, to receive some royalty revenue from the works that they’ve created. But we also recognize that law school is expensive. We’ve heard stories of students not buying the required books because they just can’t afford them. These students – who want to learn just as much as those who can afford the books – borrow a classmate’s book some days, read the copy that is on reserve in the library other days, and some days simply can’t do the reading. We think that is not the best way to go about obtaining, or offering, an excellent legal education. Download the required reading and pay what you can, or what you think is fair.

The risk of freeriders
We know that the biggest risk to our business model is freeriders. If too many students pay little or nothing for the materials they download, Semaphore Press won’t be able to pay its bills over the long run, and we won’t be able to attract authors to publish their casebooks with us. Put simply, we need a critical mass of students to pay for the materials they download. Be a part of the solution to $130 casebooks, by fostering the creation of $30 casebooks: Please pay the suggested price. If you can’t pay it, please at least pay something to help Semaphore Press succeed.

In my introductory note to my students, I repeated to the language Semaphore requests faculty use:

This book has a suggested price of $30. I urge you to pay the suggested retail price in order to keep high-quality legal educational material available at reasonable prices. You might want to read the Semaphore Press FAQ before you buy the book.

I was curious: What did law students, a notoriously hard-bitten bunch, actually pay? So I asked them. Every student in my class was asked to write on a piece of paper, without their names, how much they paid, their age, gender, and what year of law school they were in. The tallied results are interesting.

Average price paid in entire class: $21.19 N=26

Average male payment: $20.63 N=16
Average female payment: $22.10 N=10
Average 2L payment: $23.40
Average 3L payment: $17.00
1 LLM @ $30

Paid zero: 5 (3M 3L, 1F 3L, 1M 2L)
Paid $.01: 1 (1M 3L)
Paid $.02-$29.99: 3 (3F: $5, $15, $20)
Paid $30.00 :1 7 (11M 6F)
Paid over $30: none

Age range was 23-29, no particular correlations seemed visible.

We might also conclude from this small sample that the Semaphore Press model may have a future. This is consistent with the Radiohead experience, by the way: as Ed Felton noted in 2007, Radiohead’s Low Price Might Mean Higher Profit. Casebooks are perhaps even less highly substitutable than songs, and the demand is likely less elastic, so the parallel is far from exact. Even so, I think it’s an interesting result.

(We might also conclude from this small sample that male 3Ls are cheap.)

Meanwhile, however, even though name-your-own-price seems to have worked out well for Radiohead, for their latest album Radiohead have gone back to fixed prices.

Posted in Law: Copyright and DMCA, Law: Internet Law | Comments Off on The Name-Your-Own-Price Pricing Model Applied to Casebooks, A Field Report

Wikileaks to Sealand? I’m Dubious.

Posted on January 31, 2012 by Michael Froomkin

Sealand
The claim from this not-utterly-reliable source is that WikiLeaks to move servers offshore, maybe to Sealand.

I’m prepared to believe they are scouting for new locations, including maybe something ocean-based (although how you get adequate connectivity, I have to wonder), but I am quite dubious about the claim that they might go to “Sealand” the oil-derrick-based would-be micronation, since HavenCo I hear is basically collapsed. It would be interesting if it happened, though. For a good account of Sealand, see James Grimmelmann, Sealand , HavenCo, and the Rule of Law.

Meanwhile, count me in with the debunkers at Slashdot.

Posted in Law: International Law, Law: Internet Law | Comments Off on Wikileaks to Sealand? I’m Dubious.

SOPA, PIPA, and Internet Blackout Day

Posted on January 18, 2012 by Michael Froomkin

I have somewhat mixed feelings about Internet Blackout Day. Much as I sympathize with the motives, I have never much liked campaigns that try to take the oppressor’s symbols (pink triangles, yellow stars, what have you) and turn them around into pride symbols. The origins stick.

Similarly, I get the idea of fighting censorship with quiet. See what censorship will get you? But I still don’t like it. So I’ve run a compromise, with an overlay on this site that you can click through.

The cause is serious. Congress is contemplating two very dangerous Internet blacklist bills: SOPA (in the House) and PIPA (in the Senate). SOPA has been shelved, perhaps only temporarily, but PIPA is still alive and kicking.

EFF’s summary of the issues is right on target:

The “Stop Online Piracy Act”/”E-PARASITE Act” (SOPA) and “The PROTECT IP Act” (PIPA) are the latest in a series of bills which would create a procedure for creating (and censoring) a blacklist of websites. These bills are updated versions of the “Combating Online Infringements and Counterfeits Act” (COICA), which was previously blocked in the Senate. Although the bills are ostensibly aimed at reaching foreign websites dedicated to providing illegal content, their provisions would allow for removal of enormous amounts of non-infringing content including political and other speech from the Web.

The various bills define different techniques for blocking “blacklisted” sites. Each would interfere with the Internet’s domain name system (DNS), which translates names like “www.eff.org” or “www.nytimes.com” into the IP addresses that computers use to communicate. SOPA would also allow rightsholders to force payment processors to cut off payments and advertising networks to cut ties with a site simply by sending a notice.

These bills are targeted at “rogue” websites that allow indiscriminate piracy, but use vague definitions that could include hosting websites such as Dropbox, MediaFire, and Rapidshare; sites that discuss piracy such as pirate-party.us, p2pnet, Torrent Freak, torproject.org, and ZeroPaid; as well as a broad range of sites for user-generated content, such as SoundCloud, Etsy, and Deviant Art. Had these bills been passed five or ten years ago, even YouTube might not exist today — in other words, the collateral damage from this legislation would be enormous.

There are already laws and procedures in place for taking down sites that violate the law. These acts would allow the Attorney General, and even individuals, to create a blacklist to censor sites when no court has found that they have infringed copyright or any other law.

See also EFF’s blacklist site. PIPA is scheduled for a vote in the Senate next Tuesday, so if you are a US citizen this is a good time to call your Senators and tell them to oppose the bills.

Posted in Civil Liberties, Communications, Law: Free Speech, Law: Internet Law | 2 Comments