Articles Posted in Internet Law

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Net Neutrality is the principle that Internet Service Providers (ISP) and the government should treat all web-related traffic equally regardless of the source. If there was no net neutrality, companies would have the ability to purchase priority access to the ISP customers. Larger and wealthier companies (e.g., Google) would be able to pay the ISPs to provide customers more reliable access to their websites instead of to competitors’ websites. This would negatively impact any new start-up service that would not be able to purchase a priority access.

On February 26, 2015, the Federal Communications Commission (FCC) voted to enact the “strongest net neutrality rules in history.”  Millions of Americans contacted the FCC, called their Congress members, and wrote to the White House to express their support.  Although, this decision was a bold move in favor of net neutrality, but more changes may be coming soon. This 2015 Rule meant that ISPs cannot block access to any websites and they cannot interfere with website loading speeds. This rule also banned paid prioritization, which means that ISPs are not able to give preferential treatment to websites that pay an additional fee.

On January 23, 2017, President Trump selected Ajit Pai to lead the FCC as the new Chairman. This Chairman has a record of previously promising to undo the 2015 landmark decision. Then on May 18, 2017, the FCC, led by Chairman Ajit Pai, voted to propose a review of the 2015 rules.  Mr. Pai holds the opinion that the 2015 FCC rules are a “bureaucratic straitjacket” on the ISPs.  The new FCC proposal, which is called “Restoring Internet Freedom” contemplates whether to undo the legal approach that enforced those rules and whether there was anything that warranted the rules in the first place.

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Identity theft is an epidemic impacting people across America. During 2016, an estimated 15.4 million consumers experienced some kind of identity theft. This is an increase from 13.1 million in 2015. Another staggering statistic is that 1 in every 16 adults in the United States is a victim of identity theft.

This increase in identity theft notwithstanding the fact that 2016 was the first year that retailers were forced to accept EMV chip cards. The belief was that by switching to these EMV chip cards it would almost entirely eliminate card cloning, which is a major type of identity theft.  Instead of lessening the amount of credit card fraud this switch has made criminals move away from card cloning and into different types of fraud. More criminals are starting to make online purchases where swiping or inserting a physical card is no longer necessary.

Over the past few years, we have seen numerous data breaches. Data breaches have been hitting financial, health, commercial, government, and education institutions. These breaches have ranged from password management services like LastPass, the OneLogin security breach, and Target security breach.  All of these different breaches compromise our data and our identity. The above companies are just a few that have been hit by a security breach.

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OneLogin recently suffered from a major security breach. This breach has compromised private and confidential information, which is managed by its datacenter. OneLogin provides a service that is used by organizations to secure their data. It is basically a password manager for corporations. It allows employees, customers, and partners to gain secure access to the company’s cloud and applications on any device.  It allows its customers to integrate other websites and services like Microsoft Office 365, Slack, Amazon Web Services, Cisco, Webex, LinkedIn, and Google Analytics. The OneLogin website says that it currently has over 2,000 enterprise customers across 44 different countries. This includes well-known companies like Indeed, Pinterest, Midas, and Yelp.

How did this breach occur?

The breach occurred because the intruders were able gain unauthorized access to the OneLogin datacenter. Alvaro Hoyos, who leads the company’s risk management, security, and compliance efforts posted a blog about the risks. He wrote that a threat actor used one of our AWS keys to gain access to the AWS platform via API from an intermediate host with another, smaller service provider in the United States.  He said his company’s staff was able to detect and stop the intrusion very quickly.

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President Donald Trump has signed an executive order on cybersecurity as a response to the WannaCry ransomware attack. This executive order is entitled as “Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure.”  The executive order contains three main sections and a fourth category that includes some definitions of terms that are contained in the order.

The first section of the executive order is regarding Cybersecurity of Federal Networks. This section states that the United States Information Technology (IT) should have the data secured responsibly by the United States Government. The President said that he will also be holding the heads of executive departments and agencies accountable for managing cybersecurity risk to their enterprises. One of the findings included in this first section is that the executive branch has been too accepting of IT in that it is antiquated and difficult to defend. To manage these risks, the first section includes a risk management section, which includes ideas of how to reduce future cybersecurity risk.  For example, the head of each agency must provide a risk report to the Secretary of Homeland Security and Director of Office of Management and Budget.

The second section of the executive order is regarding Cybersecurity of Critical Infrastructure. This section states that support must be provided to the critical infrastructure that faces the greatest risk. It also describes how the Secretary of Commerce and Secretary of Homeland Security will both go through an open process to try and improve how resilient the internet is, so they can reduce threats of automated attacks.

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On May 12, 2017, what is believed to be the largest ransomware attack in history occurred on the internet.

A global search is heating up trying to locate those who are responsible for the attack.

While this search is occurring, there is also a question of how much blame for the attack should be placed on Microsoft. This is because the WannaCry attack took advantage of a weakness that was already existing in the Microsoft operating systems.

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For example, you have a lawsuit against another party for infringing on your personal rights of privacy. The other party takes a photograph they had taken of you, and then licenses it to other individuals without your consent.  Those individuals use it as a basis for a character in another work, making a large amount of profit.  Naturally, this wouldn’t sound fair to the subject of the lawsuit. Yet, making matters worse is, given a current case, it’s suggested that the action would effectively have no remedy. This is due to the doctrine of preemption. So, what is the preemption doctrine? How does it apply to an individual in a case? How might preemption be avoided by the careful litigant?

Copyright Preemption

Before going into the relevant case, copyright preemption is a doctrine in copyright law, with Section 301 dictating that in cases where a personal right and copyrights may clash, the Copyright Act will take precedence, and other rights will be preempted by the copyright.  Included in a “copyright” are rights against reproduction, as well as a right to control distribution, derivative works, and publication of works, in addition to others. This would also mean that preemption would cover far more than what is protected by copyright. This has the effect of removing the basis for a lawsuit as the plaintiff may not have a right in the copyrighted work.

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In theory, a moderator is a sound idea for any individual running a website that allows user interaction. Presumably, moderators can filter out comments and content that is disreputable, disrespectful, and patently offensive. The moderator can keep discourse civil and help foster insightful positions. Perhaps the website can even rely on volunteer moderators who are bound by the website’s rules and regulations. However, the moderator’s very existence risks making a website’s owner subject to liability for copyright infringement. These questions were recently addressed in a case involving LiveJournal. What is this case about? Why could a volunteer moderator trigger legal liability? Are there any guidelines to determine risks?

Mavrix Photographers, LLC v. LiveJournal, Inc.

This case is one arising out of the United States Court of Appeals, For The Ninth Circuit, regarding the potential liability of LiveJournal over an alleged infringement of twenty different photographs. LiveJournal is a social media website, which sets up various forums for different communities. The communities can post and comment on a theme and are allowed to create their own rules in addition to LiveJournal’s rules and regulations. The photographs were then published to a sub-forum on the website, focusing on celebrity news. The photographs were watermarked, and subject to copyright by the photographer. However, one issue was how LiveJournal used its moderators.

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After this month’s discussion on the statutes that prohibit the unauthorized access of email accounts and digital assets, one might wonder how these statutes may apply in a case. However, in the lengthy saga of Facebook v. Power Ventures, the Ninth Circuit issued a determination giving a bright line example of what would not be permissible under the law. So, how did Power Ventures violate these unlawful access laws? How did they attempt to move around the laws? What was Facebook’s argument, that has thus-far prevailed in the courts?

Case History

This case focuses on Power’s use of Facebook through the actions of other users.  Power, a type of social media aggregator, would allow users to “link” Facebook, Twitter, and other social media accounts to permit control from a single website.  From there, Power would “scrape” data under the permission of the Facebook users.  However, this was against Facebook’s terms and conditions.  Power would also invite users to invite others in spam-like messages, as well as deploying bots.  This ultimately resulted in an IP-based ban against Power. Yet, Power evaded those bans and defied a cease and desist letter, prompting Facebook to sue based on CAN-SPAM, Penal Code 502, and CFAA.

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What happens to a person’s digital assets when he or she passes away? They still have email, social media, and bank accounts.  This could be an uncomfortable topic.  However, any unauthorized access to a person’s online account that is password protected will constitute a violation of state or federal law.  For example, checking on a deceased relative’s emails or wrapping up any lingering business is forbidden as it can violate Section 2511 (unlawful interception) or Section 2701 (unlawful access).  Yet, California, in hopes to give an acceptable bit of leeway to the federal law has passed a new statute.  So, what is this statute? How might it allow you to take care of the lingering communications of decedents? What can a person do?

Revised Uniform Fiduciary Access To Digital Assets Act

The Act allows an individual to use either an online tool to give access to online data or digital assets, including, but not limited to, electronic communications. In the absence of a tool, a trustee, personal representative, or other fiduciary, could be named via a will or other instrument.  While this doesn’t impair the terms-of-use, it does allow a custodian (a/k/a “service provider”) to grant the fiduciary either full access to an account, sufficient access to complete the necessary task, or access to physical copies of digital assets.  Naturally, a service provider can charge for this task and does not need to disclose deleted assets.

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In addition to California’s precautions against unauthorized email access, there are additional Federal measures to protect privacy. Compared to state measures, this gives another way for an individual to seek legal remedies in a federal court. This is broken up into three different statutes, as part of the Electronic Communications Privacy Act, first regarding wiretapping, unlawful access, and pen registers.  Yet, to a business only the first two have real consequence, with the final one applying in a narrower scope.  So, what is the difference between anti-wiretapping and unlawful access laws? Why might someone choose to sue under the wiretapping statute, but not unlawful access? Can either provision provide an individual the ability to recover for lost or misappropriated sensitive information from electronic mail?

Federal Laws

Federal wiretapping laws are outlined in 18 U.S.C. 2511, which focuses on prohibiting the intentional interceptions of electronic communication unless it is for valid government purposes. Yet, while it is called a wiretapping statute, it’s far more expansive. An unlawful interception would result in a fine and, at most, five years of imprisonment.  However, the civil remedies for a violation come from Section 2520, which allows equitable relief (e.g., injunction), punitive damages, and attorney’s fees.  The computation of damages is limited to the greater between the actual damages or statutory damages of $100/day for each day of violation or $10,000.

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