• The Copyright Office released its latest group of exceptions to the Digital Millenium Copyright Act’s anti-circumvention provision. Wired and cnet news report on the exception for jailbreaking mobile phones.

• Also in DMCA news, Ars Technica discusses the Fifth Circuit decision that bypassing technological protections to access software for a fair use does not violate the DMCA anti-circumvention provision.

• The Supreme Court ruled on patentable subject matter in Bilski v. Kappos. Cnet, The MTTLR Blog, and IP Watchdog give their takes on the decision.

• Patent Docs reports on the memo issued by the USPTO to its examiners in the wake of Bilski. In a similar vein, Patently-O takes a look at the first post-Bilski test cases.

• The case between Joel Tenenbaum and the RIAA has taken another turn as U.S. District Judge Nancy Gertner slashed the jury verdict by 90%, calling it “unconstitutionally excessive.” See the coverage from Wired and Eric Goldman.

• Holman’s Biotech IP Blog looked at the recent limits that the EU Court of Justice has placed on patent protection for gene sequences.

• IP Watchdog has some thoughts on the early stages of a multi-billion dollar lawsuit filed against PayPal by XPRT Ventures, Inc.

• Authorities in San Mateo, California, contemplate filing criminal charges in connection with the sale of an Apple prototype (of a new iPhone), lost by and possibly stolen from an Apple software engineer and bought for $5,000 by the website Gizmodo.com, the New York Times reports.

• From the San Francisco Chronicle: citing a desire to help fight censorship, Google has launched a tool that discloses requests the company receives from governments for content removal and user data.

• India’s new copyright proposals, which include both fines and jail time for offenders, are still not strict enough for the RIAA, MPAA, and other organizations that lobby for greater intellectual property enforcement, Ars Technica explains.

• From CNET, a summary of the recent Supreme Court decision declaring unconstitutional a law banning Internet videos of animal cruelty, while leaving open the possibility that a narrower law would be permissible.

• A new study funded by net neutrality opponents claims that the FCC’s proposed net neutrality rules would cost the telecommunications industry over 340,000 jobs in the next ten years, PC World reports.

• PatentlyO notes that the Supreme Court has decided to hear a case on international copyright exhaustion, and gives a summary of the case.

• Also from PatentlyO, links to videos of patent attorney Kevin Noonan defending genetic patents on 60 Minutes and the Colbert Report.

Smart document generation

If giving legal advice is one of the two core skills of legal practitioners, the other is drafting legal documents. No matter what area of the law you practice in, you will need to generate a brief, a lease, a will, a contract, a certificate of incorporation—you name it. It is no surprise therefore that ever since PCs were first introduced into law firms, lawyers have been looking for ways of using them to make generating documents faster and easier. Word processors helped, and precedent data banks did too, but the Holy Grail in this field is a system that can generate a complete, airtight first draft of the required legal document at the click of a mouse. The idea of software that can generate standardized legal documents is not new. Software packages that produce documents on the basis of certain specified inputs have been on the market for some time. They range from simple electronic forms or automated cut-and-paste to sophisticated software that can draw on internal definitions and even do a measure of logic checking.[1] Most law firms nowadays have in place systems of varying degrees of sophistication to avoid re-inventing the wheel each time a legal document is needed.

The Semantic Web promises to take the evolution of document generation further—much further. Advanced functionality such as checking the internal consistency of a document, or checking for compliance with a specified body of rules can be achieved by a non-semantic application built for that purpose. But where semantic applications will really break ahead of the pack is in their ability to draw on a web of structured online legal data and in their interoperability. Being able to access pre-existing taxonomies and rules will facilitate the task of developers, as much of the “logic” an application needs to process will already have been formalized and tested by a broad, collaborative community.

Furthermore, because the task of developing those taxonomies and applying them to data is an ongoing process, less effort will be needed by individual developers to keep applications up-to-date. Suppose a semantic application checks for consistency of the document with a certain body of rules. If a relevant statute is amended, or a court decision clarifies the interpretation of a given rule, there is no need for developers to update the code of the application to implement the amendments. Whatever authoritative online source of legal rules the application draws on can be updated, and all applications drawing on that source will stay abreast of the latest law, without needing to download an update. Another advantage of using smart data is that generating documents would involve more than just producing a human-readable document. The end product would not be a simple text file. Rather, as we have seen, the document could include metadata encoded in accordance with open, machine-readable standards, referencing online taxonomies and rules that give meaning to the data. This means that any other application, whether proprietary or otherwise, which uses those open standards, will be able to process that metadata, and understand the structure and content of the document. The Semantic Web guarantees interoperability by default, and avoids the problem of “smart” documents that are only smart to users who own a particular proprietary application.

Executable semantic contracts

If the content of the contract is machine-readable, parts of it may also be machine-executable: if applications can determine the rights and obligations of the parties to such a “semantic contract,” there is no reason why they could not also process payments, notify the parties when notice of renewal is due, renew the contract on specified conditions, etc. In addition to the efficiencies gained in generating the contracts on the lawyer’s side, semantic documents could yield huge gains on the client side. Rather than manually going through each agreement to determine who owes what to whom, when, and on what conditions, semantic contracts could be fed into software that will do this processing automatically.[2] With this technology, therefore, the law firm gets to cut the costs of production (and therefore, eventually, the cost of the service), while the client gets an enhanced product that enables it to cut its costs. Expect demand for semantic contracts and the applications that generate them.

Plain English vs. metadata

As we have seen, there are limits to the extent to which the plain-English meaning of legal propositions can be translated into formal rules. However, the considerations relating to these limitations are somewhat different in the case of contracts, because of their nature as private legislation between the parties. Here, rather than translating pre-existing laws, the parties are free to choose to draft their agreements using formalized terms and rules that lend themselves to automated analysis and processing. This raises the question of the relationship between the plain-English meaning of the contract (along with the plain-English laws that govern it) and the possibly divergent machine-readable meaning encoded in the metadata. Conceptually, a contract is an agreement between the parties, and the written contract is simply a memorandum or record of that agreement. The rules of contractual interpretation are concerned with ascertaining what rights and obligations the parties have consented to undertake. If I consent to be bound by a semantic contract, am I consenting to be bound by the plain-English terms only, or would the metadata, and the taxonomies the metadata refers to, also guide the interpretation of the agreement?

To put it another way, if I enter into a semantic contract, and the execution of the machine-executable parts of that contract is not what I expected on the basis of the plain English-wording of the contract, has the contract been breached? Suppose that there is no problem with the application that does the executing, but rather that the divergence is caused by differences between the logical implications of the semantic concepts used in the metadata on the one hand, and the positive laws as understood by lawyers and applied by judges on the other. The conservative answer is that the execution and the metadata that enables it are entirely distinct from the contract itself, and machine-execution is ultimately no different from a human agent performing the contract, properly or improperly. But the contrary viewpoint is that what semantic metadata does is to incorporate meaning by reference to definitions and rules external to the data itself. Is that so different from incorporation by reference in contract law, for example by referring to terms and conditions on the back of a parking ticket, or including Incoterms in international trade contracts? Why should the metadata not influence our interpretation of the contract?

Meaning vs. meaning

There are deeper questions at issue here, relating to the fundamental differences between machine-executable computer code and legal norms. The kind of “meaning” encoded using Semantic Web standards is deeply different from the kind of “meaning” you and I express when speaking about the law, or the kind expressed by law-makers in creating the law. I will leave these difficult questions hanging for now, but I will hazard to predict that, as machine-executable contracts gain currency and the idea of automated determination and processing of legal obligations becomes commonplace, those fundamental differences between code and law will begin to blur.

[2] See Siegel, p. 190.

What can you do with the Semantic Web that you can’t do without it?

The Semantic Web is a powerful way of structuring data and giving it a precise, machine-readable meaning. The most obvious and immediate benefit of semantic technologies is in organizing large quantities of information in a particular domain to make it easier to retrieve and analyze. This is reflected in the contexts in which these technologies have already been deployed, such as organizing large online databases of content (e.g. bbc.co.uk, see here); or facilitating the exchange and analysis of research data (e.g. drug research, see here). Given the problem of legal information expansion discussed in the first post in this series, using semantic taxonomies and rules to organize the vast universe of legal data is clearly a promising area.[1]

In this post I will go beyond merely identifying the benefits of better structured data. Rather, I want to consider what really distinguishes the Semantic Web from rival technologies by asking: what can you do with the Semantic Web that you can’t do without it? In attempting to answer this question, I will focus on two kinds of application of the Semantic Web which promise to deliver not just enhanced performance, but may even transform the nature of the legal service involved: semantic legal query systems and, in the next part, smart legal documents.

Lawyers as optimum retrieval intermediaries

One of the core tasks performed by lawyers is giving legal advice. Schematically, what lawyers do in carrying out this task is to:

1. identify rules in a vast corpus of laws that are relevant to a given legal query;
2. interpret their legal meaning, often by considering how different rules interact and how they have been interpreted in the past; and
3. consider how those rules apply to the specific query.

What distinguishes lawyers from the man on the street and what justifies both their holding a license to practice and their charging sizable fees for their services, is their (theoretically) superior ability to carry out each of these tasks. To quote the oft-repeated wisdom, the difference between a lawyer and a layman is not that the lawyer knows the law, but that he knows where to find it. I might add that the lawyer also knows whether there are legal rules for a given problem; how different rules interact (which rules preempt or modify other rules); how to check if a law is still in force or a precedent still good law; how to find an authoritative scholarly interpretation; and perhaps most importantly, the lawyer will have a wide experience through of different factual situations and contexts. In this sense, in the delivery of legal advice, a lawyer acts as an intermediary who ensures optimal retrieval of legal knowledge on behalf of his client.[2]

Semantic legal queries

We have seen how lawyers use search engines and commercial databases to deal with step 1 (identify) much more efficiently than was possible in the days of hard-copy statutes and law reports. However, even though researchers started working on expert legal systems as far back the 1970s (see here), in practice, steps 2 (interpretation) and 3 (applying the law to the query) are still largely carried out by the lawyer. This process is aided by technology only to the extent that the identification step 1 is repeated in sourcing secondary materials to guide interpretation and application of the rules. The smarter data generated on the Semantic Web will enable applications to dig deeper into steps 2 and 3.

Leveraging the higher degree of organization of legal data and the possibility of drawing inferences from the data, a semantic legal query system should be able to do more than merely retrieve information based on keywords selected by a human agent. In a world of perfect formalization, an application could carry out the interpretation and the application steps autonomously. But even in the absence of perfection, it is not unrealistic to suggest that within a few years, if enough smart legal data is available on the web, semantic legal query systems will be able to retrieve not just keyword-relevant documents but all or most of the information necessary to carry out steps 2 and 3. The application will know where to find the law (online); it will analyze the structure of the query and scour available data to determine whether there are applicable rules; it will determine what those rules are and suggest how they interact (perhaps retrieving the rules that govern the interaction); it will check whether the rules are up-to-date and retrieve any amendments or qualifications; and it will search for similar fact patterns, precedents and FAQ entries to clarify the application of the rules.

There are at least two major reasons semantic solutions have more potential than rival technologies to achieve these kinds of results. The first relates to the formal structure of Semantic Web standards: because the use of semantic metadata ensures that items of data have a precise meaning, semantic applications can make reliable inferences on the basis of the data. You need certainty to make inferences, because each step amplifies the uncertainty. Take this syllogism: Oracle is a Delaware Corporation; all Delaware Corporations are legal persons; therefore Oracle is a legal person. Now imagine each proposition in the syllogism is the result of a “best guess” data analysis process (e.g. through statistical analysis): There is a 90% percent chance that Oracle is a Delaware Corporation; there is a 90% chance that all Delaware Corporations are legal persons; therefore there is a 81% (90% of 90%) chance that Oracle is a legal person. This uncertainty compounds with each step, so beyond a few steps, any non-marginal uncertainty is fatal.

With the Semantic Web, if your query specifies a defined entity, the application will know precisely what you are referring to. In principle all instances of that object on the Semantic Web will refer to the same (online) definition, which specifies its properties and its relation to other entities. The second reason for the superiority of semantic applications relates to the openness of Semantic Web standards: the widespread adoption of standards for tagging and organizing legal data will ensure that more structured legal information is available than could possibly be achieved by a single provider of proprietary systems.

DIY and FAQs

An application that can deliver a page full of the kind of information described above will go a long way in assisting lawyers in carrying out steps 2 and 3 of legal advice delivery. In fact, if the application is good enough, it may even make the lawyer’s input redundant. How much additional specialist knowledge do you really need if all of the relevant information is right before you? Many consumers of legal services are happy to resort to “DIY” legal advice rather than incurring the costs of professional legal services. Online FAQs and other legal resources have proven popular as means of sourcing legal information without consulting a lawyer directly (often made available by legal professionals as a kind of loss leader to attract potential clients). Individual resources are inevitably limited in content, but in the aggregate the free World Wide Web (i.e. excluding subscription websites) is a fairly comprehensive source of legal information. The problem for the untrained is in finding relevant information and distinguishing the accurate and up-to-date sources from the incorrect and out-of-date. A semantic legal query application that enables laymen to access comprehensive, up-to-date legal information in response to their queries would satisfy much of the demand for simpler legal advice, reducing the demand for competing professional advice—if priced right. Even though these applications may not rival good lawyers in the quality of the service, not all consumers of legal services are concerned with getting the best quality. Good-enough might well do.

More than machines

Of course, many, if not all, lawyers would strongly resist being described as “optimum information retrieval” machines. Most would see their role as going well beyond merely delivering statements of what the law is to their clients. Rather, they are in the business of delivering solutions, offering advice on how to deal with certain situations, how to handle particular disputes, how to structure transactions, etc. Yet it is undeniable that lawyers, especially junior lawyers, spend much of their time searching for relevant information and assimilating it into bespoke legal advice. What the technological possibilities outlined in this post suggest is that simpler legal advice can likely be significantly automated, while for more complex queries, Semantic Web-based applications could considerably enhance fee-earner productivity in producing legal advice.

(Coming soon: Part 5 – Legal Documents.)

[2] See discussion of “optimum retrieval” in Part 1 of this series.

Not if the email has been “in electronic storage” for more than 180 days, under the 1986 Stored Communications Act (18 U.S.C. Section 2703). The Stored Communications Act (SCA) is Title II of the Electronic Communications Privacy Act (ECPA).  In contrast, that same Act states that a warrant is required for disclosures of emails that have been stored for 180 days or less.

A Recent Battle Over Email Through Webmail

How to apply the SCA to emails stored by webmail providers was the central issue in a court battle pitting several tech company heavyweights and privacy advocates against the U.S. Department of Justice.  In December of 2009, the DOJ requested and received an order from a magistrate judge that Yahoo turn over emails in specified accounts stored for less than 181 days—without a search warrant.  The DOJ’s rationale? The emails had already been read by the recipient, and thus did not count as being in “electronic storage” within the meaning of the SCA.

Yahoo refused to comply with the magistrate judge’s order. The DOJ filed a motion to compel the production of the emails in March (PDF). Yahoo’s response brief (PDF) contested the DOJ’s interpretation of “storage” and accused the DOJ of trying to overturn years of precedent in an effort to gut Fourth Amendment protections for emails.

Yahoo was not alone in its battle. Google and a coalition of digital privacy groups came to its defense, filing an amicus brief (PDF) arguing that the Fourth Amendment protects email just as much as private conversations and written papers, and supporting Yahoo’s interpretation of “electronic storage” within the meaning of the SCA.

The Government Backs Off… For Now

The fight was just coming to a head when it ended abruptly. The DOJ withdrew its motion to compel the production of the emails (PDF)—without, however, backing down from its interpretation of the law. This means that the argument may not be truly over, but may simply have been postponed. Although Yahoo briefly expressed its pleasure over the new development, the digital privacy groups (for instance, the Electronic Frontier Foundation) are less pleased because the withdrawal delayed resolution of a contentious issue. Adding to their consternation: they thought they were going to win.  Precedent indicates that the resolution the DOJ’s withdrawal delayed may have been favorable to email users and companies like Yahoo, and less than favorable to the DOJ. Although Yahoo won this short-term victory, the government’s withdrawal means that Yahoo and Google and their users will likely face similar issues very soon.

“Electronic Storage” and Cloud Computing

Yahoo, in its response to the DOJ’s motion to compel, relied on the 2003 9^th Circuit case Theofel v. Farey-Jones (PDF) which plainly stated that opened emails fell within the SCA’s definition of “electronic storage.” For the purposes of SCA § 2701(a)(1), a communication is in “electronic storage” if it is stored temporarily and incidentally to transmission or if it is stored “for purposes of backup protection” (SCA § 2510(17)). In Theofel, the 9^th Circuit did not decide the question of whether opened emails were stored incidentally to transmission, but held that regardless of that issue, opened emails were stored for purposes of backup protection. Accordingly they are in “electronic storage” within the plain meaning of the SCA. Yahoo argued that not only are the opened emails stored for purposes of backup protection, but that the court should also consider them to be stored incidentally to transmission. Relying on the plain meaning of the SCA provisions, Yahoo argued that whether an email was opened or not was irrelevant to its classification as “electronic storage” and consequent protection under the SCA.

The DOJ, by contrast, argued that Theofel was an erroneous decision and that the 9^th Circuit was disregarding the structure and legislative history of the SCA. In particular, the DOJ argued that the protection for backup storage only applied to copies made by a service provider in case of system failure. Since opened email does not fall into this category, it is not in “electronic storage” for the purposes of the SCA, but instead falls into the category of communications held by a “remote computing service”—in this case, Yahoo.  The SCA, passed in the days before common use of webmail, does not have warrant requirements for such communications (see section 2703(a), regarding communications in “electronic storage,” compared with section 2073(b), discussing communications held by a “remote computing service”).

The SCA’s distinction between “electronic storage” and storage by a “remote computing service” suggests that much of the information stored by web users will have very little statutory privacy protection in the era of cloud computing, as more and more personal data is stored remotely. That is probably why the amici brief by Google and various digital privacy groups, in addition to supporting Yahoo’s interpretation of the SCA, also argued that the emails were protected under the Fourth Amendment—regardless of whether the SCA’s protections extend to them or not.

Fourth Amendment and Email

Citing a line of cases beginning with Katz v. United States, a Supreme Court decision from 1967 holding that governmental eavesdropping on phone conversations is a Fourth Amendment violation, the amici brief argued that email users have a “reasonable expectation of privacy” (a prerequisite to Fourth Amendment claims) for the contents of emails stored with a webmail provider. The argument was supported by analogy to conversations in person and over the phone (which are intangible, yet constitutionally protected), sealed postal mail (private for Fourth Amendment purposes even though carried by a third party) and the contents of hotel rooms (private even though the room is owned by a third party).

Possible Future Developments

Despite all these fine-tuned legal arguments, all of these parties will have to wait for a final conclusion on whether opening an email makes it less protected and whether email is as constitutionally protected as a phone conversation. However, Google and the digital privacy organizations behind the amici brief—along with Microsoft, AT&T, AOL, Loopt, and others—have joined forces to advocate federal laws that would render moot all of this analysis by changing the SCA so that police will need a search warrant to access emails even if they are stored “in the cloud.” Describing the issue as one of “digital due process,” the coalition argues that the 1986 attitude to “remote computing services” has become obsolete and that privacy protections need updating in the current era.

The fact that most of this diverse coalition banded together to support Yahoo’s case so quickly after it was announced (it was announced on March 30^th and the amici brief was filed on April 13^th) suggests that the coalition may have regarded the Yahoo case as the initial test run for its legal strategy. The DOJ’s withdrawal can be taken as a sign of uncertainty in its position, or at least unwillingness to argue it unless strictly necessary. However, the DOJ’s lack of any concession on this issue shows that it has by no means given up the possibility of pursuing this battle in later cases, which means that we will likely see giants like Google, Microsoft, and AT&T clash with the federal government over email privacy in the future.

• Ephemeral Law takes a look at the court documents in Microsoft’s challenge to the Waledac botnet, which it describes as on the “cutting edge of legal efforts to shut down hacking operations.”

• The Wall Street Journal reports that the US Department of Justice is stepping up its antitrust investigation into technology firms’ “no-poach” policy and salary fixing.

• Eric Goldman reports on a decision of the California Court of Appeals rejecting an argument that a California statute prohibiting eavesdropping precluded admitting Yahoo! chat logs in evidence.

• Why the anti-commons aren’t so tragic, from Patent Docs.

• The MTTLR Blog writes about falsely-convicted victims of DNA forensics errors.

• Wired: a new malware scam threatens BitTorrent with copyright infringement suits.

• Spicy-IP blogs about BioPiracy – the practice of mining the traditional knowledge of indigenous communities for biological and medicinal patents – in Africa.

• Feature from The Register: the Russian Association of Electronic Communications promises to crack down on spam and cybercrime.

• British Election special: the mother of British hacker Gary McKinnon, who was at the heart of a recent UK-US extradition battle, has announced that she will run against Chancellor Jack Straw in the upcoming parliamentary elections, from bbc.co.uk.

The Case: FCC v. Comcast

The FCC based its legal argument on its 2005 “Internet Policy Statement” (PDF), which declared (among other things) that internet users had the right to freely access the internet content of their choice, subject to the requirements of “reasonable network management.” Comcast, the FCC argued, had violated the Internet Policy Statement by its traffic discrimination against BitTorrent, which did not fall within “reasonable network management.”

Comcast countered by arguing that the FCC had no right to regulate its network management in any way. The Internet Policy Statement was a set of guidelines, not rules, and the FCC admitted its unenforceability within the statement itself. Until the FCC makes the “Policy Statement” an active, binding policy, Comcast argued, the agency had no authority to enforce its rules.

The FCC, in response to sharp questions from the court about the source of its authority and asking which particular statute Comcast had violated, claimed that its “ancillary” power to implement its Congress-granted authority gave it the right to regulate Comcast. This ancillary power comes from Title I of the 1934 Communications Act, which gives the FCC to promulgate regulations “reasonably ancillary” to the agency’s specific duties outlined elsewhere in the Act.

The court did not buy this argument. In its opinion (PDF), the court stated that “ancillary” jurisdiction was not free-floating but had to be related to an explicit statutory grant of power. Finding no express Congressional permission for the FCC to regulate Comcast’s network management, the court threw out the FCC’s order.

The Larger Issue

The FCC’s fight for “net neutrality” is a part of its stated general agenda to make the internet easily accessible to every American. Through its proposed National Broadband Plan (NBP), submitted to Congress on March 16^th, 2010, it intends to make high-speed internet “the country’s dominant communication network.”

Aspects of the NBP include a subsidy for ISPs in rural parts of the country, auctioning broadband spectrum to wireless providers, a “digital literacy corps” to help Americans learn online skills, up to $16 billion for a public safety network to coordinate first responders to disasters and crises, a goal of having 100 million households with 100 megabit-per-second internet access (contrasted with the current average of three to four megabits-per-second) by 2020, and reduction of phone subsidies in favor of internet subsidies.

The FCC faces push-back from the television industry in particular, which is currently using parts of the over-the-air spectrum that, under the NBP, may be auctioned off for broadband use. The FCC already fought and won a similar battle with the enforced end of analog transmissions of TV signals—the spectrum used for over-the-air analog transmission was reclaimed (and all analog TV signals replaced with digital ones) and auctioned off.

What will likely happen next?

The FCC’s public reaction to the recent federal court decision has been unabashed and undismayed. In its release on April 8^th announcing its 2010 Broadband Action Agenda (PDF), an elaboration on the specifics of the NBP, the FCC Chairman Julius Genachowski declared, “The court decision earlier this week does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals. The court did not question the FCC’s goals; it merely invalidated one technical, legal mechanism for broadband policy chosen by prior Commissions.” The announcement then lists those goals and the steps the FCC proposes to implement them. Ars Technica explains some of the FCC’s plans here.

The FCC may also have another legal option available to protect net neutrality specifically, in addition to implementing the NBP. University of Michigan law professor Susan Crawford persuasively argues that the FCC can easily acquire the legal authority to enforce net neutrality.  In an op-ed column for the New York Times, Professor Crawford points out that the recent federal court decision rests upon the labeling of ISPs as “information services” rather than “telecommunications services.”  Until 2002, the internet was considered a telecommunications service. But under the George W. Bush administration the FCC re-labeled high-speed internet providers as providers of “information services” because they offered services other than internet connection (like e-mail and web-hosting).

Why does this re-labeling matter? Because the Communications Act gives the FCC the authority to regulate “common carriers,” which includes “telecommunications services” and does not include “information services.” Since the FCC is in charge of this labeling process (which is how it changed the label from “telecommunications services” to “information services” in the first place), it is legally empowered to reverse its own decision and simply change the label back to “telecommunications services”—provided that it can offer a good reason for doing so. Professor Crawford argues that the reason for reversing the reclassification is obvious, because people buy internet services based on speed and price, and not because of the extra services some high-speed providers offer (such as e-mail).

At this point the FCC has not declared any intention of undoing the Bush administration-era re-labeling of high-speed internet.  Its legal authority to do so, however, presents an intriguing possible twist in this ongoing battle.

To any aspiring Twitter-ers: signing up for Twitter is free and pretty easy.  You can read more about it on Wikipedia or on Twitter’s About page.

• The British Parliament has approved a law authorizing temporary suspension of internet access for those accused of repeated copyright infringement, reports the New York Times. Opponents of the law, such as the Open Rights Group, promise to turn this into an election issue in Great Britain.

• Canadian company Wi-Lan has filed suit in the Eastern District of Texas against 19 high-tech companies—including heavyweights Apple, Dell, Motorola, Acer, and others—for allegedly violating its Bluetooth patents, reports Business Week.

• From Wired: a U.S District Court judge has given a lawyer a 30-day sentence for contempt of court for encouraging people to flood the judge’s e-mail account, to persuade him to side with the lawyer’s client in a civil suit. The 7th Circuit Court of Appeals is now reviewing whether the judge had the authority to impose a contempt sentence for conduct outside the physical courtroom.

• The U.S. Court of Appeals for the District of Columbia overturned a 30 year computer ban for a sex offender, saying that the ban is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” reports Wired’s Threat Level.

• The Electronic Frontier Foundation applauds the 2nd Circuit’s decision in Tiffany vs. eBay, finding the online auction company not liable for contributory trademark infringement on the basis of users selling items in Tiffany’s signature blue boxes, but the digital rights organization worries about the lack of a statutory “put back” procedure in trademark law.

• The New York Times has a detailed article explaining China’s internet censorship methods.

• After a federal court held that the FCC cannot impose network neutrality on ISPs (as PC World discusses), the FCC declared its intention to pursue its National Broadband Plan nevertheless. CNET reports that the FCC considers the court’s ruling to have forbidden one technical mechanism for achieving the FCC’s goals, but not the goals themselves.

• From eWeek: an Arkansas woman faces misdemeanor charges for posting slanderous messages on her teenage son’s Facebook account.

• The US Court of Appeals for the Federal Circuit has found that Google’s AdWords program does not infringe the patent for a bidding system determining pricing for ads on search results, Ars Technica reports.

• Mexico may disconnect millions of people’s cell phones for failure to register their identities with the government via text message. This is part of an attempt to fight crime by regulating cell phone use, Reuters reports.

A machine-readable version of the law?

David Siegel, an entrepreneur and early blogger, recently published a book entitled Pull, The Power of the Semantic Web to Transform Your Business, the first “business” book about the Semantic Web. Siegel devotes one chapter to exploring the possible impact of the Semantic Web on the law and lawyers. An enthusiastic backer of the new technology, Siegel sees huge potential for the Semantic Web to transform the work of lawyers. He believes that work on legal taxonomies and formalized rules may result in “a set of semantic rules that can then serve as the machine-readable version of the law.”[1] This is the kind of structured legal data that would make the intelligent legal queries outlined above possible. It raises the question of the future utility of lawyers in a world where much of what they now do can be performed by computer applications. Why go to a lawyer if you can get an authoritative, complete and up-to-date statement of the law online? If the law can be fully specified as a formalized set of machine-readable rules, would we even need lawyers and judges, or could they be replaced with computers and Semantic engineers of the law?

A note of caution

I ought to sound a note of caution at this point. The idea of reformulating all of the rules of law as a formal system, with precise classifications of entities and rules governing their interactions, has been tried before. Most students of the law will, at some point in their studies, come across discussions of the German Civil Code (the BGB), which was drafted over a century ago with precisely that aim in mind. It failed. The law has proven too malleable, too changeable, and too subjective a system to codify with mathematical rigor. There is little reason to believe that the Semantic Web will succeed where others have failed, at least in the foreseeable future. Few fields of human activity are as centrally focused on interpretation of often conflicting texts, and as acutely concerned with the ambiguity of human language, as the law. Though the law may be a body of rules, those rules are not of the clear-cut variety that easily lend themselves to formalization.

How smart does “smart” need to be?

That does not mean, however, that the taxonomies and rules of the Semantic Web are useless when it comes to the law. Difficult exercises of interpretation may be required in deciding “hard cases” and creative thinking may be needed in handling more complex, high-level legal issues, but much of the daily practice of the law is far less complex or ambiguous. Is a high level of legal expertise really required in producing a first draft of simple terms and conditions or a memo setting out routine advice? The parameters of these kinds of tasks should be relatively easy to formalize. And even if the semantic formalization of the law were less than perfect, a system that understands the structure of legal queries and can achieve near-optimum retrieval could vastly increase the efficiency of legal researchers. [Unknown A1]

Again, taxonomies and rules need not be all-encompassing to be useful. The Semantic Web is not the latest incarnation of pie-in-the-sky artificial intelligence. At the heart of the SemanticWeb is the task of developing dictionaries of concepts and rules to make data smarter, and that is a task that can be done piecemeal. Making data smarter does not have to mean encoding all of the subtleties of human language into the data. If an area of legal practice is concerned with a reasonably small set of clearly defined rules, much of the relevant law may be susceptible to being translated into machine-readable standards. Consider an area of regulatory compliance such as food labeling, which involves rules prescribing particular information formats and content, lists of words that must, can, or cannot be used under certain conditions, and similarly well-defined rules. Translating most of these into a “machine readable version of the law” that could serve as the basis for automated compliance-checking systems hardly seems unrealistic. What about other, less straightforward areas of the law? Even where the area evades complete formalization, as will often be the case, semantic applications may significantly enhance the productivity of fee-earners by dealing with routine, low-skill work while leaving the subtler points of law to the flesh-and-blood professional. So, what kinds of application might achieve these efficiency gains?

(Coming soon: Part 4 – Smart documents and semantic contracts)