Facebook seeks to raise $5 Billion in its initial public stock offering, making it the largest Internet IPO on record.  It is believed that its stock offering will value the company $75 and $100 billion.  Mark Zuckerberg, however, will maintain his control over Facebook with voting power of almost 60 percent of total shares.  Meanwhile, Facebook is coming under a siege of patent lawsuits.  In 2011, Facebook was named as a defendant in 22 patent infringement suits.

Google announced its new privacy policy, which is set to become effective on March 1.  The new policy will allow it to track users’ activities across YouTube, Gmail, its search engine, and nearly all of its other sites.  Users will not be able to opt out, which may trigger more scrutiny from federal regulators.

On January 23, the Supreme Court held that attaching a GPS device to track a vehicle constitutes a search under the Fourth Amendment and requires a warrant.  The ruling is considered a victory for privacy rights in the age of advanced technology, but some argue it was too narrowly reasoned on the basis of the physical intrusion of attaching the device.

Congress indefinitely shelved the controversial antipiracy bills SOPA and PIPA after over 7,000 websites, including Wikipedia and Google protested the bills, handing a crushing blow to the traditional media industry.

Following the shutdown of file-sharing site Megaupload last month and arrest of 7 company employees, Federal prosecutors announced that Megaupload user data would be deleted as early as Thursday (Feb. 2).  However, a nonprofit group stepped in at the last minute, announcing on Wednesday that it would work with data-storage providers to create a website that will allow legitimate Megaupload users retrieve their data.

Over the past three years, students in Columbia Law School’s Lawyering in the Digital Age Clinic have teamed up with the judges at New York City’s Office of Administrative Trials and Hearings and the Legal Aid Society to create a website to help people who had their cars confiscated during an arrest get their cars back.

The NYC Police Department can seize a car during the course of an arrest for a variety of reasons, including driving while intoxicated, drug possession, and weapons possession.  What many car owners and drivers who have had their cars taken away do not know is that there is a process for asking to have the car returned in a civil proceeding even if there is a concurrent criminal trial for the arrest.

The process by which they can do this is called a Krimstock hearing, named after a plaintiff in a class action brought by the Legal Aid Society specifically to challenge the police department’s practice of seizing a car without providing a prompt hearing.

The website provides a comprehensive guide for people who wish to bring a Krimstock hearing case, whether or not they have a lawyer.  It describes car owners’ rights and guides them step-by-step through the entire hearing process, from requesting a hearing to recovering the car from the police impound.   It includes a detailed description of the process, what to prepare, how to settle during a pre-hearing conference if they want to, what to expect during the hearing, and what to do/how to re-schedule if they cannot make their hearing date. There are also videos on different pages of the site made by the OATH judges that serve as special guides through the site.

The Krimstock hearing site can be found at www.law.columbia.edu/krimstock.

About the Clinic

The Lawyering in the Digital Age clinic at Columbia Law School was created more than 10 years ago to explore the impact of technology on law practice and the legal profession. The clinic is taught by Professors Conrad Johnson and Mary Marsh Zulack along with Brian Donnelly, Director of Educational Technology.

The clinic represents an innovative approach to teaching students to engage in effective contemporary legal practice. Student fieldwork projects are done in partnership with public interest organizations and with judges. A common theme for all of the fieldwork is to improve access to justice. Clinic students have collaborated with several Legal Aid and Legal Services organizations to help lawyers integrate technology into their practice.

The clinic has also partnered with judges on all levels of the judiciary in New York.  The Krimstock project with OATH, showcased in this STLR post, is just one example of clinic students helping to make an adjudicative system more accessible and legal
information more available to under-served communities. The clinic students hope that this innovative effort will be a model for using technology to create other resources and tools to provide greater access to justice in other legal arenas.

To learn more about the Lawyering in the Digital Age Clinic, visit here.

The next status conference for AT&T’s embattled T-Mobile merger proposal has been postponed until December 9, due to a scheduling conflict. AT&T and Deutsche Telecom, parent company of T-Mobile, have withdrawn their FCC applications after FCC Chairman, Julius Genachowski, expressed strong doubts that the $39 billion deal would serve the public interest, citing instead the likelihood of job losses and stifled competition.

HTC’s purchase of S3 Graphics Co. may not be as fruitful as originally anticipated. HTC made the $300 acquisition in hopes that Apple would have to license graphics technology or risk patent litigation, but the U.S. International Trade Commission declared last week that Apple’s Macs and iPhones did not infringe on two S3 patents. S3 and HTC still have other outstanding patent disputes with Apple.

Onlookers are turning a critical eye on Zynga as the company gears up for its IPO. Reports have surfaced about the hard-nosed culture of the startup, which has grown to 2,200 employees since its inception in January 2007 and produced social gaming blockbusters such as FarmVille and Words with Friends. In the wake of Groupon’s falling share price, others are concerned about the strength of Zynga’s business model, which requires ongoing development and large marketing budgets to stave off the user boredom.

ShopCity, a website that helps local businesses sell products, has filed a complaint and added to Google’s antitrust worries. ShopCity alleges that the search giant favors its own competing service, Google Places, and pushes ShopCity listings onto later results pages that few web surfers ever check.

Opposition to the proposed Stop Online Piracy Act continues to grow, with more than one million emails and 87,000 phone calls flooding Congress to date. If passed, SOPA would enable the Department of Justice and private rights holders to block access to sites accused of hosting infringing content.

Witnesses in the United States may choose to exercise their right to “plead the Fifth,” or refuse to answer a question because the response could provide self incriminating evidence of an illegal act. But how strong is this right if a prosecutor is already aware of where a witness was, what they saw, what they heard, and in some ways even what they were thinking at any given time on any given day? I do not refer to torture, truth serums, or the recent accomplishment of Berkeley scientists in creating visual pictures from brain waves. Rather, I refer to smart phones and the growing field of “reality mining” or “mobile phone sensing.”

The Progression of Mobile Phone Technology

Mobile phones had a humble beginning in 1973. Unlike modern iterations, the first mobile phone was bulky, difficult to transport, and had but one function; it allowed you to make a phone call. Technology has rapidly progressed from 1973, and today’s smart phones come rich with functionality through the use of embedded sensors. For example, the Apple iPhone comes equipped with an accelerometer, gyroscope, GPS, digital compass, ambient light detection, and dual microphones and cameras. These sensors give the iPhone the ability to speak, listen, locate, give directions, detect movement etc…  The new iPhone4S also responds to natural language queries.

“Mobile phone sensing” makes use of these digital senses to enable smart phones to become even more dynamic. Dartmouth College’s Smartphone Sensing Group
describes it as “turning the everyday smart phone into a cognitive phone by pushing intelligence to the phone and the computing cloud to make inferences about people’s behavior, surroundings and their life patterns.” The practical applications of this field seem enormous:

• Researchers at Dartmouth college describe examples such as 1) using accelerometer data to automatically recognize different activities (e.g., running, walking, standing), 2) combining accelerometer data with location estimates from a phone’s GPS to recognize the mode of transportation such as walking, biking, driving, taking a bus or riding the subway and 3) continuously collecting audio from a phone’s microphone to “classify a diverse set of distinctive sounds associated with a particular context or activity in a person’s life, such as using an automated teller machine, being in a particular coffee shop, having a conversation, listening to music, making coffee, and driving.” Amongst a laundry list of other applications, this data can be translated into suggestions for how to avoid traffic, increase social networking, and for personal health care by tracking your physical activity or the number of times you’ve visited your doctor’s office.
• An Oregon based technology company, Digimarc, has developed an application that uses a mobile phone’s camera and microphone to “detect digital watermarks encoded into magazines, newspapers, packaging and other printed materials, as well as identify songs in music and read QR codes.” Mobile phones can then recognize what it is that a user is looking at or listening to and make personalized suggestions.
• Sandy Pentland (a leader in the field of mobile phone sensing and director of MIT’s Human Dynamics Laboratory) predicts that mobile phone sensing may be able to give clues to diagnosing depression by detecting changes in speech patterns, or using a phones motion sensors to reveal slight changes in gait, potentially acting as an early indicator of ailments such as Parkinson’s disease.

Smart Phone as a Witness

Yet these examples may not be the limit to what mobile phone sensing may be used for in the future. It seems possible that future criminal (or civil) trials may not need live witnesses so long as the sensor data from an accused individual’s smart phone was admissible as evidence. Before a word was said, it could be known where the individual was, who they were with, what they were looking at, listening to, talking about etc… Not just the day that a crime was committed, but days, weeks, or months in the past. These seem to be the personal experiences that individuals were traditionally allowed to protect to avoid self-incrimination.

Conclusion

The Fifth Amendment is concerned with what an individual must be witness to after a crime is committed, rather than before. Ex ante choices such as planning to commit a crime do not bar a person’s right to avoid self-incrimination. Thus a person who purchases a smart phone in order to utilize the advantages of mobile phone sensing (or for whatever other reason) should not diminish their rights under the Constitution. When we look ex post, the experiences that a phone interprets are the users, the senses that it has are digital extensions of the individuals. Those experiences and senses is what the Fifth Amendment is concerned with and should not be allowed as evidence of a person’s guilt.

What is cloud computing? The National Institute for Science and Technology defines cloud computing in richly technical NIST-speak. For reference: “a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” That’s all pretty inaccessible. What it reduces to, essentially, are the principles of “scaled economics” – that is, law firms outsourcing their data storage needs to avoid expensive hardware upgrades and skim a little from their IT budgets.  One such public warehouse is DropBox; more on Dropbox later.

There it is, then. Law firms have adopted this as a fit cost-cutting strategy and they have done so en masse. The purposes range from e-mail archiving and document management (NetDocuments) to, among other things, payroll processing (ADP). The snowball has been tossed and has already gained formidable velocity. So much for tradition and so much for excess preoccupation with ABA/federal rules; now it’s okay for all to play ball. In a certain respect, law firms are just doing as businesses do. They only think about security in the context of security breach – when a golden laptop goes conspicuously missing, when a staff attorney discovers a keystroke logger, when server data gets compromised and there’s glaring signs of data leakage.  Then, we talk security.

DropBox was highly, highly touted as recently as last year; folks with technical know-how said DropBox was safe for use by law firms handling sensitive legal data. A year ago, this lawyer gave thunderous support for integrating DropBox into legal work. As did this guy: Why DropBox Rocks for Legal Offices. And then, on June 19^th 2011, there was a security breach. For four hours on that fateful Sunday, anyone with a modem could access DropBox-hosted documents; the systems would accept any password. Let that digest for a moment.

A well-credentialed acquaintance of mine once approached me for idea leads on a talk he scheduled to do at a conference entitled “Security in the Cloud.” I was speechless. After having done a bit of diligence, here’s what I’ve got. There is no security—none. The 1s and 0s are tossed off haplessly along in cyberspace. And beyond security, there is additional concern:

• there is, first and foremost, the worst case scenario of the loss of client data, which in turn would damage a firm’s professional reputation and expose it to malpractice liability;
• the bare inability to see or touch documents on a piece of hardware you own;
• the mere fact of having to interface with a third party at all, which represents a barrier between attorneys and their IT department;
• the indirect (and often) limited control of available bandwidth;
• the risk of becoming inadvertently subject to the laws of a foreign jurisdiction, where document storage might be ultimately maintained;
• and finally, waiving the privilege.

What do YOU think? In the humble view of this post’s author: the same principles of “scaled economics” that compel firms to outsource administrative responsibilities are what compel further outsourcing (and cost-cutting) on behalf of these third parties, with little additional accountability. Institutional inertia is a two-way process, and I feel firms ought to be vigilant of ongoing trends in the realm of cloud security – and withhold. At a minimum, whatever auditing standards a firm applies to its policy in-house ought to be extended and applied out-of-house as
well.

In terms of understanding the cloud’s topology, cumulonimbus may just as well be cumulo-“nebulous.” And if DropBox repeats itself soon – you’ll pardon the forced pun – the size of the fallout will just as well be a computational disaster.

Murphy had installed a Greek satellite company’s decoder card in her pub’s satellite TV system, allowing her access to the Greek telecasts of EPL games. As a result, her pub could show live soccer games at three in the afternoon–something other pubs, subscribing to English broadcast rights-holders Sky Sports and ESPN, could not offer. Sky/ESPN are obligated by their license with the EPL to black out EPL games played from 3-5 PM, a practice aimed at keeping fans in the stadiums instead of the bar stools and sofas across England.[1]

In addition to depressing attendance at matches, the use of foreign decoder cards strikes at the very foundation of the EPL’s broadcast business model: using a foreign decoder allows pub owners to get access to their soccer content at a fraction of the cost of domestic decoder. A public display subscription to domestic service costs a pub about $747 per month, whereas a subscription to NOVA (the Greek satellite provider) costs a fraction of that amount, about $184 per month. The ability to charge English subscribers a premium for their own domestic content has allowed the EPL to sell its domestic broadcasting rights for about $1 billion a year.[2]

This week’s ECJ ruling cut to the core of this business model: they ruled that the national law that made the use of such foreign decoder cards illegal was “contrary to EU law” in that it hindered a “completion of the internal market” for goods or services. Publicans like Ms. Murphy can thus no longer be stopped from (or fined for) ordering and using foreign decoders in their satellite receivers. They furthermore ruled that the EPL cannot circumvent these rules by inserting terms into their license agreements which would prevent broadcasters from selling decoders outside of their licensed territory. The scheme by which the EPL and its partners were able to extract a premium from English subscribers, according to the court “cannot be regarded as forming part of the appropriate remuneration” that rights-holders are due. In yet another potential blow to the EPL (and sports leagues throughout Europe), the court said (in what is likely dictum) that the EPL “cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works” within EU copyright law. The ECJ said that only the anthem, on-screen logos, and other visual elements added by the EPL could constitute copyrightable works.

So what is the EPL to do? Its whole raison d’etre is to leverage the value of bundling the broadcast and sponsorship rights to top-flight English soccer and offer them to the highest bidders. The League took some comfort in the ECJ’s finding that the unique visual elements that the EPL tacks onto its broadcasts are subject to copyright protection. As a practical matter, this seems to be rather slight solace: once it is legal for the bartenders to buy and use these decoders in their pubs, preventing them from showing the part of the broadcasts that feature the League anthem or the League’s iconic logo seems like a chore indeed. As a legal matter, it would seem rather illogical for the EPL to be able to circumvent competition law by copyright protection what it cannot get through contract. As soccer commentators are apt to say in a close match, there is still “all to play for,” as the English court on remand might take a more favorable stance on the copyright issue and thus give the EPL the result they seek.

AT&T presented three main points designed to show that the cases by Sprint and
Cellular South should be dismissed. First AT&T argues that because Sprint and Cellular South are competitors—not consumers—in this market, both lack standing to bring an antitrust suit. The economic justification behind enjoining a horizontal merger among competitors, such as AT&T and T-Mobile, is based on the theory that the merger will lead to a more concentrated and less competitive market which will, in turn, lead to higher prices and reduced innovation. AT&T argues that even if the merger were to result in less competition and higher prices—a result AT&T says would not occur—any losses would be felt by consumers not competitors. AT&T goes on to argue that what Sprint and Cellular South are actually concerned about is increased competition from a more efficient unified AT&T/T-Mobile. AT&T argues that antitrust law does not provide any recourse for a competitor’s concern about losses resulting from a rival’s increased efficiency and competitiveness. AT&T also submitted a very powerful piece of evidence against Cellular South in this case. In their motion to dismiss the case, AT&T included an email it received from Hu Meena, CEO of Cellular South. Mr. Meena wrote that if the companies came to an agreement through which Cellular South would build a next generation LTE network in Mississippi which AT&T would use for roaming, and AT&T guaranteed reasonably priced access to its networks for Cellular South’s roaming needs for the next 10 years, Cellular South’s antitrust concerns would be alleviated. AT&T used the email to suggest that Cellular South was exploiting the lawsuit as a way of advancing its own strategic interests.

AT&T’s second point is a response to claims by Sprint and Cellular South that an AT&T/T-Mobile merger will reduce Sprint’s and Cellular South’s access to new wireless devices. Sprint and Cellular South argue that after the merger AT&T will be able to “coerce exclusionary handset deals” from device manufacturers effectively freezing competitors out of the market. AT&T responds that it is well recognized that exclusive handset deals are generally pro-competitive and encourage company differentiation. The only way that exclusive deals hurt competition is when they allow one party to unreasonably deprive another of access to goods. AT&T argues that such an outcome is extremely unlikely in this market as there are a great variety of handset manufacturers who produce many different handset models. Between 2006 and 2010 the number of handset manufacturers that distribute their products in the U.S. market increased from 8 to 21 and these manufacturers produced 302 different models. Therefore, AT&T contends that Sprint and Cellular South failed to provide any factual allegations which indicate they would be frozen out of the handset market.

AT&T’s final point was in response to claims by Sprint and Cellular South that the merger would have an effect on the market for roaming services. AT&T argues that Sprint fails to point to any effect on a market for roaming services in which Sprint is a participant. Sprint does not currently purchase roaming services from either AT&T or T-Mobile, nor would it be possible for them to do so. Sprint’s cell phone network uses CDMA technology which is incompatible with the GSM technology used by AT&T and T-Mobile. Cellular South uses GSM service for less than 3 percent of its customers and fails to show that it would be affected. AT&T goes on to argue that any claims by Sprint or Cellular South which state that the merger would increase the price they pay for Verizon roaming services lack any factual basis. AT&T argues that both Sprint and Cellular South are ignoring the fact that FCC regulations require all mobile wireless carriers to provide roaming on a just, reasonable and non-discriminatory basis.

Regardless of how one feels about the competitive effects of an AT&T/T-Mobile merger on the wireless industry, whether there is anything to gain by allowing Sprint and Cellular South to sue on the back of the DOJ is a separate question. The DOJ and the seven state attorneys general which have joined in the suit (New York, Washington, California, Illinois, Massachusetts, Ohio and Pennsylvania) seem well positioned to represent the welfare of wireless consumers and it is difficult to see what additional benefits would be provided by allowing wireless companies, primarily concerned with the merger’s effects on their own bottom lines, to sue as well. It is now up to Sprint and Cellular South to show why their suits should be allowed.  Oral arguments in the case are schedule for October 24^th.

E-book technology, as provided by Kindle or iBooks, presents particularly significant threats to reader privacy. As noted by the Electronic Frontier Foundation back in December 2009, e-readers have the potential to report back substantial information about their users’ reading habits, including what book you have read, what page you have searched for, how long you viewed it for, and what page you continued onto next. For example, Amazon’s Kindle License Agreement notes that Amazon will be provided with information on not only what books you have bought, but also “annotations, bookmarks, notes, highlights, or similar markings you make using your Kindle.” As such, there has been tremendous concern that such reading records are too easily tracked, and consequently vulnerable to exposure in legal proceedings. These concerns have been played out in recent times, with the North Carolina Department of Revenue demanding that Amazon turn over personally identifiable information linked to specific purchasing records for customers in North Carolina, and Colorado police attempting to subpoena information regarding all book orders ever placed by a suspect at a book store.

Facing these concerns, California recently passed S.B. 602, the Reader Privacy Act, which updates reader privacy laws by ensuring that privacy protections for book purchases are similar to long-established privacy laws for library records. The ACLU, a sponsor of the bill, noted the three prongs of protection to reader privacy associated with this Act:

-          Disclosure to Government: Government entities that seek disclosure of reading records must obtain a court order by showing a compelling interest, as well as an indication that they are using the least intrusive means to achieve this compelling interest. Furthermore, notice must be provided to the reader when the court order is executed, and prior notice must be given to the book seller and provider in order to provide the opportunity to appear and contest.

-          Disclosure to Third Parties: Third parties who seek disclosure in a civil or administrative action must similarly obtain a court order by showing a compelling interest, as well as an indication that they are using the least intrusive means to achieve this interest. For third party disclosures, both the book seller/provider and the reader must be given prior notice and the opportunity to appear and contest before disclosure.

-          Voluntary Disclosure: Reading records may be disclosed when the reader consents or exigent circumstances exist.

Some have questioned whether this law, although noble in intent, is necessary in practice. Mark Giangrande wondered exactly how many prosecutions had taken place where the person’s reading records were allowed into evidence. He noted that the current standard is that, in most cases, the government may not use a person’s reading habits, literary tastes, or political views as evidence against him, on the grounds that such evidence is prejudicial and not necessary to the charges.[1] He notes further that in cases where the reading habits are held relevant to the case, such habits are still considered inadmissible unless the defendant raises that issue.

While Giangrande’s arguments make sense, its retroactive perspective seems to miss the true benefits the law provides when analyzed from a prospective perspective. By establishing a bright line rule rather than a murky standard, California citizens are protected against not only increased litigation to prevent disclosure, but also against their data being released without notice. Businesses also benefit in two ways. First, the standards under which a business has to comply with a subpoena for customer information is clarified. Second, consumers will likely be more comfortable with using e-books, knowing that their personal reading history is protected. Even if the courts ultimately decide that reading habits cannot be admitted as evidence in criminal cases, this law is helpful because it expedites the litigation process.

Yet while the law is a good first step, there are certain limitations to the law. Of course, as a California law and not a federal law, the Reader Privacy Act’s protections are limited. Furthermore, the Act provides protection for the purchase and use of only e-books and books. With the rise of digital media, an increasing number of people acquire information through the internet and blogs. The Reader Privacy Act does not protect users against requests concerning their online history. Finally, the Act provides that “a provider shall not knowingly disclose to any government entity, or be compelled to disclose to any person, private entity, or government entity, any personal information of a user…,” where government entities refer only  to state or local agencies. For the law enforcement provisions, the protections extend only to requests by state law enforcement agencies. Joe Brockmeier notes that this merely means that California police cannot access your reading history, but there is no corresponding protection against federal agencies, even for users in California. As such, while California’s Reader Privacy Act should serve as a model for other states, California cannot afford to rest on its laurels. With technological advances providing increasing concerns regarding individuals’ privacy rights, legal protections must also evolve in a way that alleviates those concerns and mitigates the harmful impacts.

• Sprint is urging the FCC to quickly hold hearings to rule on whether the transfer of spectrum licenses from T-Mobile to AT&T serves the public interest. AT&T’s proposed $39 billion acquisition of T-Mobile is currently under review by the FCC after the US Justice Department sued to block the proposal.

• Senators Blumenthal (CT) and Franken (MN) introduced a bill on Tuesday that would prohibit wireless companies from having contract clauses that require consumers to use binding arbitration rather than suing in the case of a contract dispute.

• On Wednesday, members of the House reviewed the FTC’s recommendations to the Children’s Online Private Protection. The proposed changes would require greater permission from parents of children under the age of 13 before information could be collected from them on the Web.

• Also on Wednesday, Senator Coons (DE) and Kohl (WI) proposed amendments to the pending Currency Exchange Rate Oversight Reform Act of 2011. The amendments would allow private federal civil actions for trade secret infringement and would allow Customs & Border Patrol to share information on suspected counterfeiters with US rights holders.

• Samsung wants courts in France and Italy to prohibit Apple’s iPhone 4S, claiming that the iPhone infringed two of its patents. Samsung and Apple are currently in around 20 patent infringement legal disputes.

• AstraZeneca returned to court this week to defend its US patent on Crestor, a multibillion-dollar cholesterol drug, against generic drug makers who are appealing a decision from the US District Court in Delaware. In June 2010, the court ruled that generic firms failed to prove the patent was invalid because it was obvious.