© 2010 Mudd Law Offices1 Intellectual Property Counseling: From Start-Up to Initial Public Offering Illinois State Bar Association April 28, 2010.

© 2010 Mudd Law Offices 1

Intellectual Property Counseling: From Start-Up to Initial Public Offering

Illinois State Bar Association

April 28, 2010


Hot Topics in Internet IP and Privacy

• Anonymity Online and Unwanted Content

• Privacy

• Social Media

• Eavesdropping and Unauthorized Access

• Section 230 Immunity


Anonymity Online

Anonymous Speech is Protected….

….and Protected online…..

…..by the Constitution


Anonymity Online

But:

Defamation not protected

Privacy Violations not protected

Breach of Contract not protected

IP violations not protected


Anonymity Online

Begin with policies…

What can employees do and

what can they not do?


Anonymity Online

Policies to Consider

Non Compete

Non Disclosure

Employment Agreements

Computer Use Policies


Anonymity Online

By policies,

proactive defense


Anonymity Online

But, what if content found online by anonymous speakers

what to do…….


Anonymity Online

Defamation -

Unless severe, best to avoid

Backlash

Difficult Standard


Anonymity Online

Originally, the standards began very minimalist

Motion to DismissColumbia Ins. Co. v. Seescandy.com

185 F.R.D. 573, 578 (N.D. Cal.1999)

Elements quite straightforward….


Anonymity Online

– Identify defendant with sufficient particularity

– Show previous efforts to locate the defendant

– Demonstrate Could Survive Motion to Dismiss

– Justify Request and Identify Those with Information


Anonymity Online

Standards became more stringent

Dendrite Int’l, Inc. v. John Doe No. 3775 A.2d 756, 760-761 (N.J. App. 2001)

– Notification– Specify Exact Statements– Prima Facie Cause of Action– Produce Sufficient Evidence to Support Each Element– Balance Strength of Prima Facie Case against Necessity for

Disclosure


Anonymity Online

Doe v. Cahill, 884 A.2d 451 (Del. 2005)

Notice

Summary Judgment


Anonymity Online

Mobilisa, Inc. v. John Doe 1, et al.,

170 P.3d 712 (November 27, 2007)

Cahill plus Balancing


Anonymity Online

For Employers,

the game is up

defamation no more…


Anonymity Online

Where more accepted…

Confidentiality

IP

Breach of Contract (be careful)


Anonymity Online

Be careful

Be prepared to meet MSJ standard

Courts aware and savvy


Privacy

Video Surveillance

Robbins v. Lower Merion School District(E.D. Pa.)(school uses laptop cameras)

Arlen Spector introduced legislationSurreptitious Video Surveillance Act of 2010


Privacy

Cloud Computing


Privacy (cont’d)

Facebook

Changes privacy policies again

Information owned by Facebook

Call for Legislation


Social Media Concerns

Guiding Employers on Monitoring Social Media

Proactive Approach Means Developing Policies and Being Reasonable


Social Media Concerns (cont’d)

Why be concerned?

Hostile environment/harassment issues

Defamation Claims

Improper Disclosure

Child Pornography Reporting (Illinois)

FTC Guidelines on Product Affiliation

Malware and Security Issues



Developing Policies

Reflect Philosophy of Organization

Prohibit Clear Conduct

Be Reasonable and Practical



Be cautious of privacy

Intrusion Upon Seclusion

Eavesdropping Statutes

NLR Act


Eavesdropping and Unauthorized Access

• Federal Statutes– Computer Fraud and Abuse Act– Electronic Communications Privacy Act– Stored Communications Act

• State Statutes



Computer Fraud and Abuse Act (CFAA)(18 U.S.C. § 1030)

Variety Contexts

- National Security- Financial Information- Information from Government- Protected Computer



CFAA (cont’d)

Protected Computer

Financial Institution or related

Interstate or Foreign Commerce

18 U.S.C. § 1030(e)(2)



(a)(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period



CFAA (cont’d)

Protected Computer and Causes Damage

Google Example



CFAA (cont’d)

Civil Remedy provision

18 U.S.C. § 1030(g)

Anyone harmed BUT….



One of five types of damage (18 U.S.C. § 1030(c)(4)(A)(i)

Most Common

(I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;

Also:

affecting medical examination, diagnosis, treatment, or carephysical injury to any person; a threat to public health or safety;damage affecting a computer used by or for an entity of US



Must be

Unauthorized Access

Exceeding Authorized Access

Key Question….



Snap-on Business Solutions Inc. v. O'Neil & Assocs., Inc.

(N.D. Ohio April 16, 2010)

(Examined Agreements, question of fact denied MSJ)

LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009)

(access not automatically unauthorized if disloyal)

International Airport Centers, LLC v. Citrin, 440 F.3d 418

(7th Cir. 2006)

(employee who violates duty of loyalty, no authorization)



CFAA (cont’d)

US v. Drew, (259 F.R.D. 449 (C.D. Cal. 2009)

(violation of TOS not enough)



Electronic Communications and Privacy Act18 U.S.C. § 2510, et seq.

Particularly § 2511, criminalizes

Intentional interception of oral, wire or electronic communication

Discloses

Uses



ECPA (cont’d)

Question: What is interception



ECPA (cont’d)

Civil Remedies

generally any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used



Relief

– Preliminary, declaratory and other equitable

– reasonable attorney’s fee and costs

– Damages, either (a) actual plus profits OR (b) statutory ($100/day or $10,000)

18 U.S.C. § 2520



ECPA (cont’d)

Question: What is electronic communication?

United States v. Councilman, 418 F.3d 67 (1st Cir. Mass. 2005)

United States v. Szymuszkiewicz, 2009 U.S. Dist. LEXIS 60755 (E.D. Wis. June 30, 2009)



Stored Communications Act (18 U.S.C. § 2701)

whoever--

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

AND…..



SCA (cont’d)

thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished . . .



SCA (cont’d)

Civil Remedy

Very similar to ECPA except minimum statutory of $1,000

Punitive if willful determination

18 U.S.C. § 2707



SCA (cont’d)

18 U.S.C. § 2702

Providers generally cannot disclose contents of communications except in certain instances



SCA (cont’d)

City of Ontario, California v. Quon, et al.

United States Supreme CourtApril 19, 2010 Oral Arguments

Quon v. Arch Wireless Operating Co., Inc.,

529 F.3d 892 (9th Cir. Cal. 2008)



SCA (cont’d)

Quon

Privacy rights of employees and texting



SCA (cont’d)

Quon SCA Question:

In storing texts, was Arch Wireless acting as a “remote computing service” or an “electronic communication service”?

If remote computing service, it could disclose, as subscriber was the City employer.



SCA (cont’d)

Quon SCA Question:

If electronic communication service, it could not disclose because the City was not an “originator or an addressee or intended recipient of such communication.”

This is what Ninth Circuit concluded.



SCA (cont’d)

Impact of Quon on Use of Employer Devices by Employees



Illinois Eavesdropping Statute

720 ILCS 5/14-1 et seq.

IP Section proposed legislation to include electronic communications

SB 2987


CDA § 230

OSP Safe Harbor for Content

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. § 230(c)(1)


CDA § 230 (cont’d)

OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2))

No provider or user of an interactive computer service shall be held liable on account of

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

OR



OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2))

No provider or user of an interactive computer service shall be held liable on account of

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).



§ 230 Does Not Affect:

Criminal Law

Intellectual Property (see DMCA)

ECPA

47 U.S.C. § 230(e)



Additional Provisions:

State law can expand, but not be inconsistent (47 U.S.C. § 230(e)(3))

Requires Interactive Service Provider to provide notice of availability parental control devices

(47 U.S.C. § 230(d))



As always, definitions critical:

Interactive Service Provider

Information Content Provider



Interactive Computer Service

means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

47 U.S.C. § 230 (f)(3)



Information Content Provider

means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

47 U.S.C. § 230 (f)(3)



Broad Protection

Past Cases

Craigslist

Roommates.com



Craigslist

Chicago Lawyers Cmte. v. Craigslist,

519 F.3d 666 (7th Cir. 2008)

March 14, 2008

(no liability, did not cause to be posted)



Roommates.com

Fair Hous. Council v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. Cal. 2008)

Liability - created discriminatory questions



Recent Cases

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 591 F.3d 250 (4th Cir. Va. 2009)(No liability)

FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. Wyo. 2009)(liability - engaged in illegal conduct)

Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. Wash. 2009)(no liability)


Jurisdiction in Cyberspace

7th Circuit

Tamburo v. Dworkin, et al.


EFF’s 2010 Items

Attack on Cryptography

Will 2010 be the Print version of RIAA?

Global Internet Censorship

Hardware Hacking

Location Tracking


EFF’s 2010 Items

Net Neutrality

Online Video (TV Everywhere, Selectable Output Control)

Congress (Patriot Act, Cybersecurity Act)

Social Networking Privacy


EFF’s 2010 Items

Fair Use of Trademarks

Web Browser Privacy


Charles Lee Mudd Jr.

Mudd Law Offices

3114 West Irving Park RoadChicago, Illinois 60618

773.588.5410 Telephone773.588.5440 Facsimile

[email protected]

© 2010 Mudd Law Offices1 Intellectual Property Counseling: From Start-Up to Initial Public Offering Illinois State Bar Association April 28, 2010.

Documents

anonymity online policies

anonymity online defamation

anonymity online doe

disclosure slide

careful slide

information slide

anonymity online standards

privacy anonymity