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 AT&T and Deutsche Telecom, parent company of T-Mobile, have withdrawn their FCC applications after FCC Chairman, Julius Genachowski, expressed strong doubts that the $39 billion deal would serve the public interest, citing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.

But, what can one really do if, for example, your top search results include an out of date, hopelessly inaccurate and embarrassing article from your hometown newspaper? As much guff as Facebook gets for its poor record on privacy protection, an average Facebook user has a relatively powerful set of tools at his or her disposal: you can delete or untag yourself from embarrassing photos, limit who can view your profile, and even delete your profile completely. But, is there anything you can do about embarrassing search results?

In 2010, Hugo Guidotti Russo, a Spanish plastic surgeon, filed a legal complaint with Spain’s privacy regulator, the Agency for Data Protection, asking them to order Google to remove a 1991 article about a malpractice complaint from his top search results. Russo insisted that because he was cleared of wrongdoing and the article did not mention this, it was within his right to privacy to have the search results removed. The agency agreed. Google is fighting the ruling which was recently referred to the European Court of Justice in Luxembourg on the issue of whether the ruling clashed with EU freedom of expression laws.

The case of the Mr. Russo is connected to the larger issue of whether governments should—or could—guarantee individuals a so-called “right to be forgotten.” Though, like most newly recognized rights, the contours are hazy and the terms ambiguous, the right to be forgotten is catching on. In 2009, the French secretary of state launched a campaign for le Doit a l’Oubli (the right to oblivion, though no English translation is quite adequate) that culminated in the adoption of so-called “codes of good practice” by several trade associations, social networks and search engines.  The provisions are themselves broad but somewhat vague: adoptees are obligated to give notice to users about how to exercise their privacy rights, respect an individual’s right to consent to data processing, to receive prior notice of procession and to object to the use of their data. The European Union is currently tossing around some proposed legislation which would give people the right, any time to have all personal information online deleted—though it’s hard to see how this would work in practice. Even in the United States, where courts have been much less willing to allow individuals to assert a general right of privacy against search engines and social networks, the FTC has issued a working paper called “Safeguarding Consumer Privacy in an Era of Fast Transform” which recommends, among other things, that individuals have the right to have inaccurate information about themselves removed from databases.

Critics of the “right to privacy” argue that, in its extreme form, it’s tantamount to suppression of speech—censorship. Most facts and opinions worth writing about–and reading about– are facts and opinions about people.  Individuals have always been able to fight others who publish false information using libel and defamation law, but falsity is not a requirement for a privacy claim. If individuals are empowered to suppress true or arguably true information written about them by third parties under the guise of privacy, the argument goes, our freedom of expression is significantly burdened.  In one infamous case, Wikipedia was sued by two German murderers  demanding that their names be removed from an article about their victim. German law allows criminals’ names to be withheld from association with their crimes after their sentences are over.  The case of German murderers points to another criticism of the right to privacy: practicability. If a German court orders the removal of the names from the article, does it only apply to the German language version of Wikipedia or with a .de web url? Does it apply to any article accessible from Germany? Or only if the servers which host the article are located in Germany? Moreover, does Wikipedia, which can be edited by anyone, have an ongoing obligation to ensure that the ex-con’s names are kept of the site? For a website like Wikipedia, which relies heavily on user donations, and which relies on a relatively small number of editors to maintain their pages, an ongoing obligation to monitor for information about individuals is a heavy burden.

From the perspective of someone with a rare name—say for example, the author of this post (but three out of the first four results are not me!)—the right to delete whatever search results I wanted from Google would certainly be a blessing. That being said, there is a thin and hazy line between what information is truly private—which should be protected—and what information is merely embarrassing or inconvenient, but a legitimate part of the public discourse.

According to a Bundle.com study, Americans spend an average of 72 minutes a day behind the wheel. Imagine the increased productivity and general welfare if that time could be spent on other tasks, such as doing work, checking email, making calls, or even sleeping. Having to spend less time keeping one’s eyes on the road and hands on a steering wheel will free up time for life’s greater pleasures.

That day may not be far away. Google has recently test-driven seven artificial intelligence-powered cars over more than 140,000 miles on California roads, including highways and Lombard Street, which is famous for its turns and steepness. For the testing, Google had two people aboard: one technician and one person in the driver’s seat ready to take over the controls if necessary. So far, the only accident occurred when another vehicle rear-ended a Google car at a red light.

It is not difficult to picture the enormous impact that self-driving cars will have on society. When the technology fully develops, it will revolutionize the way we live in the same way that television, the Internet, and cell phones have. As Google engineers have pointed out, robots react faster than humans, have 360-degree perception, and do not suffer from problems affecting human drivers that frequently result in accidents, such as distraction, drowsiness, and intoxication. On Google’s official blog, engineer Sebastian Thrun estimates that the technology can reduce traffic-related fatalities in half, a figure that I believe to be very modest when we think about the cars’ true potential.

The Route

As Kenneth Anderson notes, the real potential of autonomous cars will only be realized if we outlaw all manual driving and every car on the road drives itself. Cars would then be able to travel safely with less distance between them, which, according to Markoff’s New York Times article, would double road capacity. If a system of artificial intelligence-powered cars makes accidents a thing of the past, we will be able to use lighter materials in car manufacturing, both cutting resource consumption in the car manufacturing process, as well as increasing fuel efficiency.

Such a scenario will not be feasible if there are even a small number of human-driven cars left on the road, or even if autonomous cars include the ability to manually take over the controls. An autonomous car will still be at the mercy of its physical limitations and the constraints of the road system, and will have difficulty avoiding accidents if it shares a congested road with reckless drivers. Another problem is that computerized cars will likely employ very passive driving systems designed to avoid accidents under all circumstances. Aggressive human drivers would be able to take advantage of passive computer drivers all day.

How feasible is a system of exclusively self-driven cars? The technology will not likely be the problem. We already have cars that can parallel park with limited input from the driver, as well as cars that brake on their own if a crash is imminent. Additionally, driving can be fairly easily broken down into various algorithms and functions, as the main variables involved are predictable: lanes of standard widths and traffic lights that change in predictable intervals. Currently, the only truly unpredictable element is the behavior of other drivers which would be much more foreseeable once computers take control.

The greatest barriers to such a system might very well be legal in nature. One such barrier is liability. In a system of robot-driven cars where people are free to do other things while their cars transport them from place to place, such as checking email or napping, who should bear accident liability? Since the benefit of such technology is to allow drivers to perform other tasks while in the car, placing accident liability on them would be counterproductive. Putting liability on the technology companies might discourage the innovation needed to fully develop the technology in the first place. On the other hand, if the technology works like it is supposed to, crashes should become a rare occurrence, reducing such a burden. Another possibility is that insurance companies will bear liability.

A second issue that comes up is whether the government should be able to outlaw something as fundamental to our society as driving cars. Americans have loved their cars for decades. Many of us know people who beam with joy after a car purchase and enjoy the freedom associated with taking a car for a spin on an open road. There will undoubtedly be drivers with squeaky-clean driving records who will claim that their driving poses no threat to everyone else. There will also be people who will distrust having a computer take over their driving, especially since the consequences of a malfunction might include serious injury and death. Some may even claim that their driving is a form of expression, and that a ban violates their First Amendment rights.

However, I think the government will ultimately prevail. Congress can look to the Commerce Clause for a Constitutional source of authority in passing legislation requiring use of self-driving cars on roads. Is there a countervailing fundamental right being infringed? Ever since The Passenger Cases, the Supreme Court has recognized a basic right to interstate travel and laws prohibiting or burdening interstate travel must meet strict scrutiny. Nevertheless, it does not appear that mandating use of self-driving cars would substantially burden this right. Airplanes, trains, and perhaps even self-driving buses will still be available as modes of transportation. Furthermore, since self-driving cars will ostensibly be safer, they can be built in such a way as to accommodate the much lower likelihood of accidents, driving car prices down. This lower likelihood of accidents would drive insurance premiums down as well. Moreover, better fuel efficiency means less spending at the pump.

The Destination

Judging from Google’s promising test runs, it appears that it is not a matter of if but when a self-driving car will become available to consumers. When that day comes, we should be ready to hurdle the legal issues that pose the greatest barrier to a system of autonomous cars. Once we implement such a system, the benefits will be nothing short of extraordinary.

Google and ITA merger: for better or worse?
On the heels of AdMob was Google’s merger with ITA Software in July of this year. ITA Software is the innovator of the QPX technology, travel search giants such as Kayak, Orbitz, and Expedia all utilize integrated QPX platforms in their air travel search and pricing services.  ITA’s dominance in GDS, or global distribution systems, which serve to link ticket bookers such as airline passengers and travel agencies to the booking systems of travel suppliers such as airlines, will prove to be a valuable asset as Google decides how it will use the software to develop and implement its own flight search tools, which is exactly what has travel search giants and not-so-giants alike up in arms.

While some industry analysts are applauding Google’s entrée into the market, anticipating that it will stimulate the otherwise stagnating field of travel search technology, many more are skeptical, and increasingly alarmed, about the impending deterioration in competition and the threat it poses to other GDS’s.  Robert Birge, chief marketing officer of Kayak, commented: “There are legitimate concerns…about what that deal could mean to competition in the market and how it could affect consumer choice.”  He echoes the sentiments of a growing number of travel site competitors and consumers, and it seems that the U.S. Department of Justice is picking up on the concerns.

The DOJ steps in
Google is alleged to be in violation of the Sherman and Clayton Acts, which make many monopolies or attempts to monopolize a market illegal. The essential premise of the allegations is that Google is attempting to monopolize varying related markets- by acquiring ITA’s specialized technology, it has the potential to use its dominance in web search to become dominant in travel search.

Google announced in late August that they had received a “second request” for information from the DOJ as part of the regulatory review of the acquisition.

The DOJ’s process of review for deals such as the acquisition in question consists of a preliminary “waiting period” review, lasting approximately a month.  During this time the DOJ can ask for voluntary divulgence of information and hold discussions with the companies. At the conclusion of this phase, the DOJ decides whether to give the deal the green light or look into it further during a “second request” stage.

Violating vertical boundaries
So what’s the big deal?  Should we be concerned that Google is leveraging its cutting edge engineering capabilities to enter different but related markets?  That might depend on how you define separate markets. If you contemplate that video-sharing technology, digitized book-scanning and indexing, and travel data aggregation to be related enough to online search, then Google is arguably just doing variations on a theme of its specialty.  But, if you’re beginning to think that Google is getting into a lot of things it doesn’t normally do, you might think it is merging with complements; that is, it’s not buying up competitors so much as it’s absorbing entities further upstream or downstream in the supply chain.

Whereas Google currently scans and indexes travel search information that it acquires from Kayak or Orbitz and display it as a one-box result, with the new ITA software Google can feasibly create its own travel data aggregation platform and be able to offer the same services as Kayak or Orbitz but as a Google product.  This can be a troubling prospect to say, a small travel search site which sees this deal as Google invading and dominating their niche industry.  But proponents of Google, and certain lines of antitrust theories, contend that Google shouldn’t be punished for its well-earned successes—if not for its technological savvy leading to the creation of such services as Google Books, we may not have the many sophisticated products Google offers (mostly free of charge) and continues to create.

What does this mean for consumers?
The purpose of antitrust law is not to impede competitive efficiency, which typically benefits consumers by producing better products and lower prices.  Having previously worked in-house at a technology company, I observe a certain cognitive dissonance: when a company does too well or becomes dominant in its field, we are quick to suspect that bad intentions and certain misconduct are the culprits for such success.  But in my personal experience, it’s common, if not the norm, that companies which fare well do so because they are giving users better choices, higher quality, and lower prices.  It’s difficult for a private company to convince consumers that it has their welfare and best interests in mind—but that is exactly how a company gains respect and earns loyalty from discriminating customers.  Why is it exactly that we use Gmail, Chrome, and Scholar?  Because they’re useful and easy to use.  If Google can develop a better way to aggregate and disseminate travel data, that would be useful, too.  So why should we stop them?

• 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.

• 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.

• The Southern District of New York‘s decision in Association for Molecular Pathology and ACLU v. USPTO and Myriad (the “gene patents case”) handed down last Monday, has generated a lot of commentary this week. Here’s a selection: reports from Wired and On the Edges of Science and Law; IP Watchdog describes the ruling as “inane”; Patent Docs gives more detail on the patents at issue; Patently O thinks the Federal Circuit is likely to reverse the decision; and Holman’s Biotech IP Blog takes the investor’s perspective.

• British science writer Simon Singh (of Fermat’s Last Theorem, The Code Book and Big Bang fame) wins libel case brought against him by the British Chiropractic Association, from The Guardian.

• Jonathan Zittrain’s The Future of the Internet and How to Stop It comments on the iPhone developer license agreement, disclosed through a Freedom of Information Act request.

• From OutLaw, Google, Microsoft, eBay et al call for U.S. privacy law update.

• Salt Lake City jury rejects “copyright troll’s” claim to Unix - Wired reports.

• The European and FCC antitrust complaints against Google are not about Microsoft, opines The Register.

• US criticizes Australian internet filtering plan, from E-Commerce Times.

• The working text of the Anti-Counterfeiting Trade Agreement has been released. See Wired and The Register coverage of the story, and our post on the draft treaty here.

• The Federal Circuit rules on patent dispute Applera Corp v. Illumina, Inc. on the basis of Californian employment law, writes Patent Docs.

• Holman’s Biotech IP Blog discusses the patent law implications of the Federal Circuit’s ruling in Ariad v. Eli Lilly.

• Less than two months after hacker Max Vision was sentenced to thirteen years, the sentencing record is broken again as TJX hacker gets twenty years, from Wired.

• Ephemerallaw asks whether it is worth chasing cybercrooks (see our recent post on cybercrime here).

• The European Court of Justice rules in favor of Google in a challenge to its practice of selling trademarked keywords for its adwords paid results service to competitors. The Stanford Center for Internet and Society and the E-Commerce Times report.

• The Register reports that a twenty-five-year-old Frenchman has been arrested on suspicion of hacking President Obama’s Twitter account.

• Early in 2009, a settlement between Ireland’s leading internet service provider and four record companies looked set to put in place the world’s first three-strikes-you’re-out copyright violation rule. Tech law blogger TJ McIntyre reports on the latest.

• Spicy IP discusses proposed amendments to the Copyright Act and digital rights managements in India.

Among the companies targeted for criticism are Google, Amazon, McAfee, Yahoo, eBay, Microsoft, Apple and Verizon. These hearings may mark the beginnings of legal changes that could require information and communications technology companies to protect users’ rights overseas. The potential legal ramifications of these changes are unclear at present, though they are the subject of heated debates, as we will see below.

The Senate Hearings

U.S. Senator Dick Durbin of Illinois chaired a hearing before the Judiciary Subcommittee on Human Rights and the Law on Tuesday March 2^nd to review the practices of information technology companies in countries that restrict free access to the internet.

Senator Durbin sent letters to thirty companies requesting information on their business practices in China and other countries that censor the internet. The senator also encouraged companies to join the Global Network Initiative (GNI), a group of corporations, academics, human rights groups, investors and others committed to protecting internet users’ rights to freedom and privacy according to a specific code of conduct. (As of now, only the original three member corporations have joined the GNI, which is discussed further in the section below. ) The GNI submitted a written statement for the hearing, available here, which stresses the need for more communication between companies in the information and communications technology sector in order to identify important human rights issues. The GNI also affirmed its view that there is a strong need for more corporations to join the GNI and commit to its principles.

Testifying at the hearing were Michael Posner (Assistant Secretary of Human Rights, Democracy and Labor at the State Department), Daniel Weitzner (with the National Telecommunications and Information Administration of the Department of Commerce), Nicole Wong (Google’s Vice President and Deputy General Counsel), Rebecca MacKinnon (Visiting Fellow at Princeton University’s Center for Information Technology Policy and a drafter of the Global Network Initiative), and Omid Memarian (an Iranian blogger living in the U.S. since his release from detention by the Iranian security services in 2004).

Mr. Memarian testified about how his website was shut down—not by the Iranian government, but by his American domain and host provider, because of restrictions on transactions with Iran. He discussed how such restrictions and sanctions prevent Iranian dissidents from downloading software (including, for example, Google Chrome) and publishing their opinions. He also made several suggestions about how the U.S. government and American corporations could provide technologies that would help promote internet freedom in Iran, and further argued that a freer Iran would greatly help the security of the region.

Nicole Wong’s testimony reviewed Google’s recent problems with China and affirmed Google’s unwillingness to keep censoring search results for Chinese users. She stated that Google would “reconsider [their] approach” in China if the situation worsened after more monitoring. Beyond restating Google’s decision to stop censoring search results in China, she did not commit to any concrete action. However, she discussed various strategies that governments could use to combat censorship. She also analyzed the issue from an economic perspective, elaborating on the damaging effects of internet restrictions on both the “host” country and on foreign companies.

Rebecca MacKinnon testified about authoritarian regimes’ exploitation of the internet to cement their power and suppress dissent. Ms. MacKinnon discussed and countered the view, popular in the 1990s, that the internet by its nature would elude and eventually defeat authoritarianism. It was then widely believed that no government could truly stop the spread of information over the internet. The internet, the theory went, would be an invaluable and unstoppable weapon in the hands of dissidents.

Contrary to predictions, as China and Iran in particular have demonstrated, authoritarian governments have adapted to and co-opted the internet. Filtering, deletion of content by internet companies, cyber-attacks, politically motivated law enforcement, and device-level controls are the major techniques a government may use to control the spread of potentially threatening information over the internet.

Mr. Posner and Mr. Weitzner made general comments in support of internet users’ liberties and of using business regulation to promote free exchange.

The Corporations’ Response

The point of the hearings, as suggested by Senator Durbin’s letters to the various companies, was to highlight the role corporations can play in either reinforcing or undermining government surveillance and control of the internet. Senator Durbin’s opening remarks discussed how pressure from U.S. companies and the government influenced the Chinese government to back down from its decision to require all computers sold in China to include filtering and information-gathering software. Ms. Mackinnon also discussed ways in which corporations could fight internet censorship, from locating servers outside the territories of authoritarian countries to refusing to comply with informal demands from governments to creating surveillance-circumvention technologies.

However, only three corporations in the sector have committed to the GNI code of conduct: Google, Microsoft, and Yahoo. Whether these companies will adhere to the code of conduct is uncertain, as the New York Times points out.

Additionally, AT&T, Skype, and McAfee have committed to discuss joining GNI.  Facebook and Twitter were invited to send representatives to the hearings but declined. Senator Durbin expressed his disappointment in this unenthusiastic but probably inevitable response.  Without legal pressure, it is unlikely that corporations will take actions against their own self-interest by defying laws in countries where they do business.

Possible Legal Consequences

At this time, enactment of any new legislation is far off. The bulk of lawmakers’ attention is focused on exhorting companies to voluntarily comply with GNI standards.

However, many have made legislative proposals and suggestions. For instance, Rebecca MacKinnon has argued for legal changes allowing targets of state repression to sue U.S. companies who turned over information on them. Additionally, Senator Durbin is working on legislation to compel companies to either defy censorship overseas or face civil or criminal penalties at home, the St. Louis Post-Dispatch and PC Magazine report. He has not stated what actions would trigger these penalties under the hypothetical bill. However, this is not a new idea: some activists have been proposing the Global Online Freedom Act (GOFA) for years, as the Guardian reports, which would make it illegal for a U.S. company to provide information or technology aiding restriction of internet services. Brendan Ballou, who blogs on Harvard Law Professor Jonathan Zittrain’s website, analyzes some aspects and limitations of the GOFA here.

Criminal or civil penalties in the U.S. may simply present U.S. companies with the following calculation: will defying the U.S. law cost them more or less than circumventing internet restrictions in China or Iran? The efficacy of such a bill is questionable. It may present some companies with a difficult choice: they must either violate the law at home, or abroad. Furthermore, many of the technologies that make internet-restriction possible were developed in U.S. and European countries at the behest of their governments, to aid in lawful surveillance in those countries. Nokia Siemens made this point in response to a European Parliament resolution condemning its technological aid to the Iranian government and calling for a ban on surveillance technology exports to certain countries, as Ars Technica reports.  This suggests that the scope of the bill will have to be very clearly defined if it is to differentiate between surveillance carried out in the most repressive countries and surveillance in western democracies.