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From the idea of product design, who wouldn’t want to protect more of their products? A producer should be able to profit off the sweat of labor, and creativity that they have mustered to bring the product.  Yet, if a design brings utility, then the individual that comes up with it may have a monopoly over the most effective design, which hampers competition. These are the issues that the United States Supreme Court recently considered in Star Athletica v. Varsity, as Justice Sotomayor phrased as “killing knockoffs” with copyright protection.  The case involved two parties, Star Athletica and Varsity, both producers of cheerleading uniforms.  Varsity sued Star Athletica for copyright infringement of protected designs over a dress. Still, there were various issues to be resolved. What is useful? What is protected by copyright laws?  Would it matter if even after the creative elements were removed, there was nothing useful about the article at all?

Star Athletica

In this case, the main issue was effectively based in the idea of useful articles.  In copyright, there is a thinner protection for “useful” things, protecting only what is creative rather than the useful parts of it.  In essence, it had to be “separable” either conceptually or physically. This generally meant to be “truly” separable, it would have to be both. Relating to the cheerleading uniforms, it presented a unique issue. The major question however, was if the designs on the dress (i.e., the chevrons, colors, general look) were protectable. Presumably, either the designs on the dress were protectable, as they could be reproduced and placed on some other object, like a lunchbox, or they were unprotectable, as they were intertwined with the functionality of a cheerleader’s uniform.

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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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This article discusses the remedies for unauthorized access to email in the State of California. Now, email is an essential part of our lives and has been granted extensive protections in the state and federal spheres. Beyond that, it can occur in a variety of ways such as: (i) leaving an unlocked device on your desk; (ii) lending someone your email password; (iii) getting hacked by someone; or (iv) simply failing to properly update security on your device. Yet, what laws are in place to punish those who would unlawfully access an email account? What are the consequences? How might this help business owners protect their confidential information and intellectual properties?

California Laws

In California, there are statutes for computer crimes, which would prohibit individuals from unlawfully accessing another person’s email accounts.  For example, Penal Code 502 prohibits access without permission of computers, networks, internet websites, electronic mail, and similar things. Although, it should be noted that Penal Code 502 lists other criminal acts, such as knowing misuse of domain names, introductions of contaminants, and deletion of data.

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There are few things that you consider when forming a cybersecurity framework. Naturally, chief among them are the perpetrators such as hackers who engage in mysterious online threats by constantly adapting to new technology. These hackers might seem indomitable, clever, and always working to break down security.  Yet, this is not necessarily the case. What if the nature of the threat was different? What if anyone could become a top-level hacker without sufficient knowledge of computer programming? How might a business address this issue and anticipate a different threat?

What is the nature of the threat?

On the issue of hackers, while there are certainly those who have the skills to access systems, but they are not the only threat.  There are three kinds of hackers: First: “white-hat” hackers, who will hack to expose security flaws for a company. Second, “black-hat” hackers who hack to cause harm or gain profit. Third, “script kiddies” who are an offshoot of black-hat hackers. These script kiddies tend not to have the technical skills of a black-hat hacker. Instead, they rely on pre-existing tools that black-hat hackers disseminate. This allows a script kiddie to engage in a more advanced attack and cause harm. One particularly notorious instance occurred on February 7, 2000, where a 15-year old launched a massive DDoS attack using a slightly modified tool that was downloaded online.

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In our last blog post, we mentioned eBay, Inc. v. Bidder’s Edge, Inc. While the case wasn’t related directly to ransomware, it creates an important precedent for tort liability. Specifically, it supports the idea that common law torts can be carried out and applied in the digital world.  So, what does eBay give us as a legal theory? How might it get applied to ransomware in a hypothetical case? What is the likelihood of succeeding on such a case?

Case Analysis: eBay, Inc. v. Bidder’s Edge, Inc.

In this case, eBay sued Bidder’s Edge for the use of a type of program known as a “spider” or “bot.” These programs would automatically go to eBay, search for information, and repost it on Bidder’s Edge. The purpose of this was to allow others to get better ideas of what to bid on items by searching multiple auction sites. While there were negotiations to allow Bidder’s Edge to access eBay, however, the negotiations broke down, and ultimately prompted the lawsuit.

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Now, we know what ransomware is and a little on how to fight against it.  So, what are the applicable statutes and how can you recover? Naturally, after a person pays the ransom, or loses their data, they have been harmed by a violation. This could be potentially devastating to a small business or an individual.  Yet, there’s no explicit way to recover the funds or recover from the harm except through a lawsuit. While, there is a statute specific to ransomware in California, individuals do have other avenues and claims.  What is this new statute? What can someone recover in a lawsuit? Are there any difficulties for ransomware lawsuits?

Ransomware Statutes

In September 2016, California passed a ransomware statute under SB 1137, which in essence amended Penal Code § 523.  This was prompted by an uptick of the attacks on hospitals.  In the statute, the use of ransomware is punishable by 2-4 years in prison. This is in line with treating ransomware like extortion crimes.  Furthermore, it defines ransomware in the statute as a “computer contaminant or lock placed or introduced without authorization into a computer . . . which the person responsible for the placement or introduction of the ransomware demands payment . . . to remove the computer contaminant . . .”

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A business’s computer network, which may comprise of network and database servers, is the operation’s lifeline.  A successful business should require its computer network to be secure and protected.  There are many ways that these measures can go wrong.  Yes, sometimes hackers can get in and access sensitive information (e.g., trade secrets, intellectual property) without authority.  There are countless ways for a hacker to obtain unauthorized access to a private network.  However, what happens when the hacker has gained unauthorized access? In the hacker’s tool belt is a special kind of malware known as “ransomware.” What can ransomware accomplish? How can you spot it? How dangerous can it be to your business?

What is Ransomware?

As the name might suggest, ransomware is a program that holds (or claims to hold) data hostage.  It then encrypts data, and renders it inaccessible until the data owner pays off the hacker.  Generally, the hacker will place the malware on the host computer through an email attachment, special program, unverified email, or malware that accesses a computer through pivoting, and then releasing the “payload” which consists of the malware.  After ransomware is activated, it sends an alert on the electronic device, usually demanding payment to an account, in the form of cryptocurrency (e.g., Bitcoin) or credit card payment.

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In the last article, we ended our comments with anonymous online speech and the related complications.  However, unmentioned before is an act that’s generally prohibited on websites, and indeed, it will probably be prohibited pursuant to state, federal, or international laws.  This is “doxing” which is a practice of taking another individual’s personal information – e.g., name, address, telephone, photographs or other confidential information and publishing it online without authorization.  So, how do doxers do it? How can you protect yourself? What are the remedies, if any?

What is doxing?

Doxing (a/k/a “doxxing”) is a common aspect of activism and vigilantism that occurs online.  Frighteningly, this action does not require an individual to necessarily perform an illegal act to “dox” a person. Rather, it relies on perseverance and the type of information is available to the general public.

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