Category: Cyberlaw


The Wikileaks Injunction Case

wikileaks.jpgSince it involves a blend of civil procedure, internet law, and copyright — i.e., my entire teaching package — I really have no excuse for not posting on the Wikileaks injunction matter. For those who have not been following it, a Swiss bank with a branch in the Cayman Islands, Bank Julius Baer (“BJB”), filed suit against the website in federal court in California and obtained a pair of emergency orders essentially shutting the domain name down. Wikileaks is a user-edited website, much like Wikipedia, but where the purpose is not to post encyclopedia entries, but rather leaked documents from governments and private entities. BJB argued as a basis for the orders that someone, allegedly a former employee, posted stolen documents revealing confidential aspects of BJB’s operations.

The orders require the domain name registrar, Dynadot, to point the domain name to an empty page. This doesn’t shut down the site, exactly, it just makes it harder to find. It’s like an order to a telephone company ordering a vanity 1-800 number like 1-800-BBOYDEN disconnected. Sure, you can still reach me on my cell and work numbers, but you’ll have to go look those up and most people won’t bother. (Note: I don’t actually have a 1-800 number — it’s a hypothetical.) The “Order Granting Permanent[!] Injunction” and “Amended TRO and Order to Show Cause re Preliminary Injunction,” both dated Feb. 15, are available online, as is the entire court docket, via Justia. (See Michael Froomkin’s discussion of why the relationship between the two orders is confusing.)

There’s lots of focus on the broader question of whether domain-name-disabling is a prior restraint barred by the First Amendment. I want to focus on several lesser but still interesting nuggets: the overlooked privacy interests at stake, the role of the DMCA, the breadth of TROs in the internet age, and “futility” arguments against anti-leak injunctions based on internet distribution.

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The Arcade Fire’s Choice: Free Culture or Fox Fight?

arcadefire3.jpgYesterday’s SuperBowl was a real reversal for me–the game was great, and the ads were about as bad as the Miller High Life Delivery Guy suggests. Admittedly, there was a rousing Arcade Fire song, No Cars Go, in an NFL on Fox ad. Amy Phillips notes:

[W]ould Win, Regine, and the gang really sell their music to Rupert Murdoch so that he could advertise his football television program? No, . . . they wouldn’t. Turns out Fox never even asked the band if they could use their song, and they certainly weren’t given permission to do so.

Looks like Fox is starting a pattern of “don’t ask, just sell.” Which raises interesting questions for TAF. They might just shrug off the potential copyright infringement suit, perhaps inspired by Cory Doctorow’s critique of permissions culture. But if they do so, they run the risk of appearing to endorse Fox’s appropriation of their work.

I don’t know how to resolve the dilemma, but it is good to see legal scholars working at the intersection of copyright and trademark law who are trying to untangle these types of rights. Greg Lastowka has written an interesting piece on rights to “digital attribution.” Perhaps a truly “free culture” also requires a right to annotation or disavowal–so that uberhip TAF needs neither to associate with Fox nor to send it a C&D letter. Borrowing from the trademark context, maybe Fox should be required to do some “corrective advertising” if TAF so demands.

Photo Credit: AJ, Arcade Fire Concert.

UPDATE: Here is a copy of the ad; here is a take on Fox’s potential “ephemeral recordings” defense.

Who Will Pay for the Content?

Mark Anderson has a concise overview of the big issues in search engine law up at the IEEE Spectrum. Here’s a taste:

[James] Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.

“The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.

My gut feeling is that we’re going to see a lot of settlements between Google and the big players here. (I wonder what the Predictocracy foresees?). On the other hand, another analyst (James V. DeLong) thinks it’s in Google’s interests to win its IP battles outright:

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Libertarian Dilemmas in the Corporate Surveillance State

stasi.jpgMy last post led me to an interesting partnership between government and corporations called “OnGuardOnline.” Devoted to stopping spam and phishing, that partnership sounds like a good idea to me. But when it comes to extending its influence from fraud-deterrence to IP enforcement and beyond, it raises some interesting questions for libertarians. I would think they want *both* to avoid an Orwellian surveillance state, and to promote corporations’ economic freedom. But what happens when the two things go hand-in-hand? Does surveillance by “private” corporations suddenly take on a sinister cast only when its been turned over to government?

For example, the ABA Journal reports that Microsoft is developing new software designed to help employers keep closer tabs on workers:

“Big Brother” software . . . will allow employers remotely to monitor their workers’ productivity, competence and physical well-being to a degree never before seen. Among other data, wireless sensors will provide employers with workers’ heart rates and stress level, and determine whether they are smiling or frowning, according to the London Times, which bases its article on a patent application filed by Microsoft.

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Phone Company False Consciousness

Law prof Tim Wu has already done a lot to improve communications policy. His law review articles are models of technical precision and patient persuasion. In the popular press he sometimes takes a different tack–arguing that untrammeled corporate power to remake the telco landscape does not merely harm the public interest, but also that of the shareholders of the companies themselves. Having dabbled in this type of argumentation before, I know how hard it can be to make the case that managers are not acting in a corporation’s best interests. But Wu does an excellent job of detailing the legal risks attendant on carriers’ increasing role in law enforcement.

Having long fought to maintain open access and fair competition on the internet, Wu is wary of carriers’ efforts to perfect control of networks. Those efforts may soon intensify:

Last week AT&T announced that it is seriously considering plans to examine all the traffic it carries for potential violations of U.S. intellectual property laws. The prospect of AT&T, already accused of spying on our telephone calls, now scanning every e-mail and download for outlawed content is way too totalitarian for my tastes. But the bizarre twist is that the proposal is such a bad idea that it would be not just a disservice to the public but probably a disaster for AT&T itself.


AT&T’s new strategy . . . exposes it to so much potential liability that adopting it would arguably violate AT&T’s fiduciary duty to its shareholders. Today, in its daily Internet operations, AT&T is shielded by a federal law that provides a powerful immunity to copyright infringement. . . . To maintain that immunity, AT&T must transmit data “without selection of the material by the service provider” and “without modification of its content.” Once AT&T gets in the business of picking and choosing what content travels over its network, while the law is not entirely clear, it runs a serious risk of losing its all-important immunity.

Wu’s argument attracted a rather impassioned response from a blogger at

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Can You Sue If a Computer Reads Your E-mail?

hal9000.jpgThanks Dan for the welcome, and I’m excited to be guest-blogging at Concurring Opinions again. I had intended my first post to be a continuation of the discussion Dan and I were having in the comments last week about heightened review for subpoenas to unmask anonymous actors on the internet, but events have overtaken me. Orin Kerr over at the Volokh Conspiracy has put up a post querying whether network-level filtering for copyright-infringing materials would violate the Wiretap Act; Orin appears to believe that it would, at least without consent from every potential sender of material that was scanned. This merges two of my areas of interest, copyright and electronic privacy law.

First of all, the report is a little sketchy, but it looks to me like the topic came up as possibly an off-the-cuff remark or an answer to a question at the CES conference in Las Vegas. It doesn’t appear that anyone is proposing implementing this right away. But the idea seems to be that network intermediaries — either ISPs serving individual subscribers, such as Comcast or Verizon, or perhaps ISPs closer to the Internet backbone, such as Level 3 or Sprint — may be able to use fingerprinting technologies to detect and block copyrighted content transiting the network as a way of preventing infringement.

There might be all sorts of practical problems with this. How would a filter distinguish between authorized and unauthorized downloads, for example? But that’s not what intrigues me right now. The question I want to focus on is, would this violate the Wiretap Act? It’s arguable, but I don’t think it would. I don’t believe an automated scan of communications, where no permanent copy is made, violates the Act.

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How Should Courts Handle Cultural Dissensus on Summary Judgment?

That’s the deep question unanswered by last year’s Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority’s view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court’s position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can’t be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

ronOur results showed exactly that. Dissenters to the Court’s view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield’s work on “status collectivities,” we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects’ reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger.” The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

New Picture.jpg

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron’s characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I’ll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Access to Drugs

After the fireworks of the Abigail Alliance controversy, access to drugs has been a simmering political and legal issue. I noticed two interesting posts on it today.

1) Eric Goldman comments on a crackdown on a cyberpharmacy:

Today’s case involves the criminal prosecution of Dr. Thomas Hanny, a Connecticut-licensed doctor who retired after 30 years as a surgeon. He then hopped on the dot-com bandwagon, writing Internet-mediated prescriptions first for Pharmacon and then, after Pharmacon was shut down by law enforcement, for Jive. Hanny initially had doubts about the propriety of this line of work and even went so far as to hire his own attorney (who also expressed doubts), but Hanny either felt the issue was colorable enough or decided to look the other way, going so far as to ignore a cease-and-desist letter from Missouri prosecutors. Collectively, these proved to be poor decisions that will cost Hanny 33 months of his liberty.

Anyone interested in the topic might want to take a look at Nic Terry’s excellent article Prescriptions sans frontières (or how I stopped worrying about Viagra on the Web but grew concerned about the future of healthcare delivery).

2) Reason magazine has interesting coverage of the controversy over OTC status for certain statin drugs. Here’s their bottom line:

Last January a Food and Drug Administration (FDA) advisory panel considered a proposal to put Mevacor within easier reach. As they had during previous hearings in 2000, members of the committee fretted that patients would muck up dosages, lose track of cholesterol levels, and make poor decisions about diet and exercise if popping a pill appeared to produce the same results as a healthy lifestyle. One of only three doctors who voted to put the drug over the counter–David Schade, a professor at the University of New Mexico Department of Internal Medicine–based his vote on lack of access for the uninsured.

Despite Schade’s opposition, the panel voted 20-3 to keep the drug’s prescription-only status. By keeping statins locked within the burdensome and, for some, inaccessible health care system, the decision dampened hopes that statins could find wider use among the millions of Americans who ought to be taking them. For the time being, access to these lifesaving drugs depends on the tiny percentage of the population legally empowered to dole them out.

Though I’ve been skeptical of a general “right to medical self-defense,” the Mevacor story really makes me think. Here’s one counterargument:

[A]nalysis of the Merck data shows that 21.5 percent of people deciding on their own to purchase Mevacor over the counter did not need the drug. “This large proportion of purchasers would therefore be exposed to the risks of Mevacor – such as liver damage, muscle damage and other adverse effects – without evidence of any benefit,” Wolfe testified.

I do not know how I would vote if I were on the joint meeting of the Nonprescription Drugs Advisory Committee and the Endocrinologic and Metabolic Drugs Advisory Committee considering this issue. UPDATE: It looks like the most recent vote was negative.

Should There Be a Red Flag Link?

redflags.jpgLinks are the lifeblood of the web. You can almost think of a link as a light shining on a page, illuminating territory that might otherwise be hidden in a cloud of information overload. As Ray Cha has explained, “Google ranks pages by the number of links other sites point to a page.” So whenever someone writing online links to a page, they increase its prominence relative to other pages.

But what if you want to comment on something you disagree with? Or find utterly inane? If you link to it, you just increase its salience. If the site tracks back to you, you might be able to alert readers to your critique. But if it doesn’t, you just end up promoting the site even as you try to fight or mock it. Cha notes that there are some proposals to change this situation:

There have been suggestions to create a newer kind of syntax and link taxonomy which would add to the current binary options of link or no link. The simplest system would be to have three choices, positive link, negative link and no link. This system would actually be very easy for users. All you need to do is add a tag to the link.

This led me to think about the red and yellow flags on Westlaw that come up when a case is no longer good authority, or has been contradicted. I often think about the tension between accuracy and usefulness in signals like these. Part of me wants more gradations of meaning–I have definitely seen some “yellow flagged” cases that were far more questionable than other “yellow flagged” ones. But if we went to some “rainbow scheme” of vitality of authority, the system would likely get unwieldly. Even discussion forums that permit negative or positive rep points (or karma) tend to keep things very simple.

However “tiered linking” might emerge, it’s important to note how vital search engines will be to the process. Even if a platform like Blogger or MoveableType puts in multiple flavors of links, they’ll do little to alter web discourse if search engines don’t recognize them. Given the “chicken and egg” problem here, it’s likely that tiered linking is going to remain the province of limited and proprietary databases for the time being.

Photo Credit: Jen Waller.

Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients.

Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women’s voices, Citron’s presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.