J.R.McHale

Megaupload: A Lot Less Guilty Than You Think?

Google Privacy Policy

Google Terms of Service

From the EFF: “What Actually Changed in Google’s Privacy Policy”

Google’s January 30, 2012 letter to Congress explaining, in part, the recent changes in their privacy policy.

At TechPresident.com, Yochai Benkler proposes a post-SOPA/PIPA legislative agenda: “Seven Lessons from SOPA/PIPA/Megauplaod and Four Proposals on Where We Go From Here”

Can the Government Force You to Decrypt your Electronic Device or Hand over Your Password?

Hopefully, at some point, the Supreme Court will weigh in on the question, as lower court decisions conflict on the answer. The result might differ depending on the context (at the U.S. border as a result of a customs search or as a result of a police stop or search which took place within the U.S.), whether the government already knows the laptop contains incriminating evidence, and, perhaps, whether the government requests the password or seeks an order for the owner to decrypt the device (without revealing the password). In the latest case, a federal judge in Colorado, ordered a laptop owner to release the contents of her computer’s encrypted hard drive. The court’s order.

The Verge: ”Decrypting Laptop Doesn’t Count as Self-Incrimination, US Federal Judge Rules”

The Electronic Frontier Foundation: ”Disappointing Ruling in Compelled Laptop Decryption Case”

The EFF’s amicus brief in the case.

Orin Kerr at The Volokh Conspiracy – ”Encryption and the Fifth Amendment Right Against Self-Incrimination:”
“The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a ‘foregone conclusion’ that dissipated the Fifth Amendment privilege. If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a ‘foregone conclusion’ and the Fifth Amendment privilege cannot block the government’s application.”

photo © 2012 j.r.mchale

The U.S. Supreme Court for the first time pondered the constitutionality of location tracking technology in the case of U.S. v. Jones. The Court decided yesterday that the government’s attachment of a GPS device to a vehicle (followed by the government’s use of that device to monitor the vehicle’s movements on a long term basis) constitute a search under the 4th Amendment. The emphasis in the majority opinion on the physical placing of the monitoring device on the vehicle and the existence of separate concurring opinions raise questions as to how far this decision really extends – important questions given the increasing prevalence of geolocation tracking.

The Supreme Court decision in U.S. v. Jones:
http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

”Supreme Court Holds Warrantless GPS Tracking Unconstitutional” at ArsTechnica’s Law & Disorder

”Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant” at TechDirt.com

“Reactions to Jones v. United States: The government fared much better than everyone realizes” by Tom Goldstein at SCOTUSblog.com.

”Why the Jones Supreme Court Ruling on GPS Tracking is Worse than it Sounds” by Rebecca J. Rosen at The Atlantic.

”U.S. Supreme Court Unanimously Rule that GPS Installation and Tracking of a Vehicle Constitutes a Search, But The Justices Disagree on Rationale – Are Lines Being Drawn on Privacy Rights and New Technology?” at Proskauer’s New Media & Technology Law Blog.

A series of posts at The Volokh Conspiracy by law professor, Orin Kerr, an expert on computer crime and related areas:

”The New Doctrine of What is A Fourth Amendment Search”

”What Jones Does Not Hold”

”What’s the Status of the Mosaic Theory After Jones?”

”Three Questions Raised By The Trespass Test in United States v. Jones”

”Why Did Justice Sotomayor Join Scalia’s Majority Opinion in Jones?”

That’s right, slowly but surely, Congress is sucking the tech industry into their world, making us play by their rules. We have to pay them off, literally with cash, or we get slaughtered … . Well, we’re now playing by big government rules. Congress can set up a fight pit with Hollywood in one corner and Silicon Valley in the other. Who cares what happens. The money will just roll right in. This is how criminal organizations run protection rackets. Congress is doing just that, only it’s completely legal.

“‘Least restrictive means’? One way that SOPA could die in court” by Matthew Lasar at ArsTechnica’s Law & Disorder. Lasar ponders whether SOPA/PIPA could meet the same legal challenges and fate as legislation such as the Child Online Protection Act (COPA), which was found not to be the “least restrictive means” of addressing the issue of access to online materials by minors. Is SOPA/PIPA the least restrictive means of addressing online privacy or, rather, as the Supreme Court declared in the COPA matter: “If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.”

“Why Canadians Should Participate in the SOPA/PIPA Protest” by Michael Geist, law professor at the University of Ottawa. Professor Geist summarizes the reasons why SOPA/PIPA, including its extra-territorial effects, should concern individuals and businesses outside the U.S.

“The Google Anti-Stop-Online-Piracy-Act Statement, Corporate Speech, and the First Amendment” by UCLA law professor, Eugene Volokh, asking how those who oppose 1st Amendment rights for entities such as corporations square those beliefs with support of yesterday’s anti-SOPA protest actions by prominent technology companies.

“SOPA and Censorship Spillovers” by University of Chicago Law Professor, Randal C. Picker. Professor Picker (a former classmate of mine in law school at the University of Chicago) examines claims regarding how foreign governments that desire to engage in censorship will respond to U.S. efforts to implement DNS filtering to address copyright infringement.

“Why SOPA is Dangerous” a close look at the bill itself at Mashable.com, and “An Updated Analysis: Why SOPA & PIPA Are A Bad Idea, Dangerous & Unnecessary” a more general effort to summarize the ill effects of the bills at TechDirt.com.

“Forget SOPA, Hollywood Already Had a Field Day with the Justice System” by Fenwick & West attorney, Alan P. Bridges, arguing at PandoDaily.com that content owners already have a good deal under current law given the oversized nature of current statutory copyright penalties that may be applicable even if there is no commensurate actual economic damage to any particular content owner.

Clay Shirky: Why SOPA is a Bad Idea

The Khan Academy weighs in on SOPA/PIPA.

Will Round Two of Cariou v Prince Change Art Law Forever?


[T]his ‘anticorporate’ agenda of ramping up regulation is actually pro-corporate. Stringent regulations tend to protect incumbent firms from their greatest fear — innovative start-ups that could drive them out of business … [N]ursing firms tenderly is only one way to spur firms to invest. A better way is to threaten them. Not with antitrust actions or NLRB rulings, though — instead, by making them face their strongest and most feared competitors in open combat … [R]egulations are a moat that surrounds corporate America and protects its profits … Unleashing entrepreneurs will force rich and powerful incumbents to spend money on inventing new products and processes that will help them maintain their edge. Lounging timidly on a mountain of cash will no longer be an option when new firms show up to compete and siphon away hefty profits.

How to Fix Copyright: a three part series of posts by William Patry at The Volokh Conspiracy on the heels of the release, earlier this month, by Oxford University Press of Patry’s new book with the same title. Patry, currently Senior Copyright Counsel at Google, served as a copyright counsel to the U.S. House of Representatives in the early 1990s and is the author of a seven volume treatise on U.S. copyright law.

Part 1
Part 2
Part 3

When Paintings are Easily Reproduced: Hrag Vartanian writing at hyperallergic.com on the issues about to be unleashed in the art world by affordable, high quality 3D printers:

“So far, the debate about artistic copyright has been safely in the realm of design and photography … . but how will that conversation change when anything can be easily reproduced and presented without proof of origin or even the original artist’s touch? … . A copyright lawyer by day, Steiner bought a glob-erific clown painting by Allison Schulnk … He then proceeded to have a replica of the work fabricated on a ZPrinter 650 3D printer. The result is a quite good monochromatic reproduction of the painting that is full of the brushstrokes and textures that until recently we thought we couldn’t so easily reproduce. Looking at the potential in this art work, I realized it was only a matter of time (months?) before paintings with their grooves and quirks could be churned out at will.”

photo of artwork at Palm Springs Art Museum © 2012 j.r.mchale

newyorker:

Has James Joyce Been Set Free?

On New Year’s Eve, the Twitter feed of UbuWeb, an online archive of the avant garde, posted a link to an article in The Irish Times about the expiry of European copyright on the work of James Joyce. The link was accompanied by a curt message to Joyce’s grandson and sole living descendent: “Fuck you Stephen Joyce. EU copyright on James Joyce’s works ends at midnight.” While the language may have been unusually confrontational, the sentiment it expressed is widespread. The passage into public domain of Joyce’s major works has been talked up in certain quarters as though it were a bookish version of the destruction of the Death Star, with Stephen Joyce cast as a highbrow Darth Vader suddenly no longer in a position to breathe heavily down the necks of rebel Joyceans.

–Mark O’Connell on what the post-Stephen will bring: http://nyr.kr/xj2D9F

See also at TechDirt.com:

”Why Johnny Can’t Read Any New Public Domain Books in the US: Because Nothing New Entered the Public Domain”

“Jazz Pioneer ‘Jelly Roll’ Morton’s Music Finally Free For Re-use In Europe — A Hundred Years Too Late”.

“The copyright wars are just the beta version of a long coming war on computation … There will be programs that run on general-purpose computers, and peripherals, that will freak even me out. So I can believe that people who advocate for limiting general-purpose computers will find a receptive audience. But just as we saw with the copyright wars, banning certain instructions, protocols or messages will be wholly ineffective as a means of prevention and remedy. As we saw in the copyright wars, all attempts at controlling PCs will converge on rootkits, and all attempts at controlling the Internet will converge on surveillance and censorship. This stuff matters because we’ve spent the last decade sending our best players out to fight what we thought was the final boss at the end of the game, but it turns out it’s just been an end-level guardian. The stakes are only going to get higher.”

From “Lockdown: The Coming War on General-Purpose Computing” by Cory Doctorow at boingboing.net (based on his keynote speech to the Chaos Computer Congress in Berlin, December 2011; youtube video of the full speech).

Internet Access is not a Human Right

The practical effect of SOPA will be to create an architecture for censorship—both legal and technological—that will radically alter the costs of engaging in future censorship unrelated to piracy or counterfeiting … . [T]he portion of the bill laying out the specific types of criminal conduct that trigger this Rube Goldberg censorship machine occupy just a couple of paragraphs. With the legal framework in place, expanding it to cover other conduct—obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups —would be a matter of adding a few words to those paragraphs … . Any sane network operator is just going to build a filter that reads off the current list of banned domains from a government feed and automatically stops resolving them … . Once the up-front costs of implementing that filter mechanism are paid, the marginal cost of additional censorship is effectively zero for the providers.

Facebook Settles FTC Charges

“Antitrust and Social Networking” by Spencer Weber Waller, Loyola University Chicago School of Law forthcoming in the North Carolina Law Review (2012).

“Search Neutrality as an Antitrust Principle” by Daniel A. Crane, University of Michigan Law School.

“Cyber Attacks and the Laws of War” by Michael Gervais, Yale Law School.

“The Future of Cybertravel: Legal Implications of the Evasion of Geolocation” by Marketa Trimble, University of Nevada, Las Vegas, William S. Boyd School of Law, Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, 2012.

“Six Provocations for Big Data” by Kate Crawford, University of New South Wales, and Danah Boyd, Microsoft Research, New York University, University of New South Wales, and Harvard University (Berkman Center for Internet & Society).