Another Reason to Secure Your Wireless Network February 8, 2010
Somehow this story slipped past us last week. A Federal District Court in Oregon held that a man had no reasonable expectation of privacy in files that was easily viewable over his unsecured wireless network.M
The man had an unsecured network which a neighbor was using. The man was allegedly using Limewire to download child pornography, and had Limewire and iTunes set-up to automatically share the downloaded files through iTunes’ built in sharing.
The neighbor was browsing the man’s shared files and stumbled across the child porn.
So, count this as reasons:
(1) Not to have an unsecured network
(2) Not to use Limewire, which is full of malware, and
(3) To check your sharing settings on all your apps that have a default.
Posted in: Links by Ben Snitkoff. Tags: Fourth Amendment, Privacy
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Episode 35: Not about the iPad February 1, 2010
Are file extensions trademarks, Google Street View suit reinstated, and Amazon pulls Macmillian books.
Please download the podcast, or subscribe to the feed. Feel free to e-mail us with questions, suggestions or comments.
Are file extensions trademarks?
File extensions cannot be trademarks
Street View Suit Reinstated
Google Street View: Appeals court revives Pa. couple’s lawsuit
The opinion
Amazon pulls Macmillan Books
Amazon Pulls Macmillan Books Over E-Book Price Disagreement
Amazon conceded to Macmillan hours after we finished recording.
Posted in: Podcast by Ben Snitkoff. Tags: Amazon, Apple, eBooks, Google, iPad, Privacy Torts, Trademark, Trespass
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RIAA Offers Thomas-Rasset Settlement, T-R Rejects January 27, 2010
The RIAA offered to settle Jammie Thomas-Rasset’s case for $25,000 this afternoon. An offer which Thomas-Rasset quickly rejected. From her lawyers:
[A]s our response makes clear, Jammie is standing on principle here, and will not accede to payment demands that the RIAA is making thru an unconstitutional statutory scheme (that they lobbied for the creation of) and we will ride this train to it’s appellate end no matter how many future remittiturs are rejected.
At this point, any amount that the RIAA is likely to collect, through the actual amount imposed, or through bankruptcy proceedings of Thomas-Rasset (at the end of all the litigation and appeals), is going to be far less than they’ve paid their lawyers for the endless motions and two trials. There’s no question in my mind that this litigation was a money loser for the RIAA. Removing DRM from MP3s probably converted more people to music buyers than the threat of litigation.
Posted in: Commentary by Ben Snitkoff. Tags: Copyright, Jammie Thomas, RIAA
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Podcast 34: Some Relation January 25, 2010
FBI Spying, Jammie Thomas gets a Break, and Joel Tenenbaum Tries to Reduce his Verdict.
Please download the podcast or subscribe to the feed. Feel free to e-mail us with questions, comments, or suggestions.
FBI Takes Phone Records
FBI broke law for years in phone record searches
The statute
Jammie Thomas-Rasset Gets a Break
Joel Tenenbaum Asks for a Break
UPDATE: We’ve switched to a new recording system that results in a better quality, but for some reason, lower volume podcast. We’re aware of this, and looking in to it. In the meantime, if you have iTunes, turn the volume adjust on the mp3 to 100%, or download it directly from the website. Either of these seem to help solve the problem.
Posted in: Podcast by Ben Snitkoff. Tags: Copyright, Due Process, FBI, Jammie Thomas, Joel Tenenbaum, RIAA, Statutory Damages
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We didn’t consider that January 25, 2010
In Podcast 34 (to be released later tonight), we talked about the order lowering damages in the Jammie Thomas-Rasset case. As you will hear, we discussed whether the RIAA would challenge the order. What we failed to talk about is whether Jammie Thomas-Rasset would challenge the order. The judge’s ruling, which reduced the amount Jammie Thomas-Rasset owed to 1/36th the original verdict is still too high in the view of her lawyer. The main issue seems to be that the judge didn’t squarely decide whether or not statutory damages here are unconstitutional. A topic we address on this week’s podcast.
Posted in: Commentary by Ben Snitkoff. Tags: Copyright, Jammie Thomas, RIAA
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Damages Reduced for Jammie Thomas-Rasset January 22, 2010
The judge in the Jammie Thomas-Rasset case just reduced the damages owed from $1.92 million to $54,000. The RIAA can now choose to accept the lower damages, or schedule a new trial on the issue of damages.
We will certainly discuss this more, either in a post or podcast, but we wanted to get this up now.
The 4th Amendment, Privacy, and it’s Application to Technology January 19, 2010
Attorney, blogger and law professor, Eric Goldman, posted an excellent writeup today on several recent cases concerning the 4th Amendment “right to privacy” in state supreme court cases.
While some laws have been easily applied our new technology-laden world, others either provide complications or simply have not yet been applied–making the legal significance of a piece technology unknown. In his post, Goldman points out several recent decisions concerning the application (or potential application) of 4th Amendment privacy rights to technology in both civil and criminal litigation, including: cell phone and text message privacy; expectations of privacy in documents or data held by a third party; and GPS tracking devices and a right to privacy. Read his post for the full recap.
You might not think the particularities of search and seizure law matter much to you (I don’t commit crimes anyways! Why should I care what the police can search?!). However, you may find the fundamental concepts which support these laws today might influence future policies that affects our electronic data and online activity privacy rights–especially when it comes to how online service providers can handle our private information, whether it’s demographics, physical mailing address, phone numbers, e-mail, social security numbers, and the list goes on. It’s very much a subject worth following as it develops.
Basic Background of the 4th Amendment “Right to Privacy”
If you are not already a lawyer, law student, or US constitutional aficionado, you probably recall the 4th Amendment from your high school (or college) civics classes. Embodied as part of the Bill of Rights, the 4thAmendment affords a right to the “people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.” Additionally, the text provides a method for authorities to conduct what would be otherwise “unreasonable searches and seizures” if they obtain a warrant, “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “ Side note: the 4th Amendment applies to the States through the 14th Amendment, hence why we see _state_ courts grappling with the application of the U.S. Constitution to local matters. (See Mapp v. Ohio, 367 U.S. 643 (1960)).
You’ll notice there is no mention of the word “privacy” within this Amendment, but we’ve all come to know this section of the Constitution to afford a general right to privacy. In fact, the modern notion of a “right to privacy” was articulated into both criminal and civil law through judicial decisions interpreting the meaning of the textual language of the 4th Amendment.
The 4th Amendment is commonly invoked in criminal matters. Even if you’re not especially familiar with criminal law, you probably know that a police office can’t just walk into your home and seize a piece of evidence. Absent certain exigent circumstances, an officer would need to have a warrant to conduct such a search for contraband or evidence. Similarly, if you are stopped on the street by an officer, absent probable cause, if that you have not committed a crime witnessed by the officer, you cannot be arrested nor have your purse or backpack searched without a warrant. Note here that the concept of “seizure” also extends to a person– if you are arrested, you are effectively seized–in addition to search of belongings. In the law, this prohibition on search and seizure was articulated into a test which is still applied today in Katz v. United States, 389 U.S. 347 (1967). The right extends to tangible and intangible property where a person has an ” reasonable expectation of privacy”– the expectation must be one that is generally accepted by society, not subjectively by an individual. E.g., just because I consider the open trunk area of my SUV which is visible to to the public to be a private area, doesn’t automatically deem it so.
The effect of the 4th Amendment is profound in criminal proceedings. Importantly, a rule known as the “exclusionary rule” prohibits the introduction of unconstitutionally obtained evidence into the record on trial (a jury should never see it). Thus if that “expectation of privacy” was violated when an officer searched an individual, in most circumstances it will not be permitted into evidence at trial. Of course, like with almost everything in the law, there are a number of exceptions and the law is incredibly nuanced.
Beyond criminal proceedings, the notion of an “right to privacy” is a subject in civil law too. A number of torts recognized in the U.S. legal system which have evolved from the “expectation of privacy” concept. In other words, should a person find themselves the victim of a civil privacy injury, they can sue another person (or legal entity) for damages and sometimes equitable relief (e.g., an injunction). The most universally recognized throughout the 50 states are: “intrusion on solitude” (e.g., physical intrusions on private areas); “false light” (e.g., wrongly portraying someone in a news report on purpose, or defaming someone); “public disclosure of private facts” (e.g., publishing or disseminating certain private facts about a person); and, “misappropriate on likeness” (e.g., using a person’s picture in a commercial advertisement without permission). A number of other laws governing privacy rights have also been legislated, including the handling of electronic data (see Electronic Communications Privacy Act and the Stored Communications Act) and certain protections on sensitive health care information (HIPAA).
Both from the Constitutional and civil standpoints, these laws regulate the everyday privacy we enjoy and sometimes take for granted. As societal norms evolve, it’s important to ensure the law properly reflects what we think of as privacy.
Posted in: Commentary by David O'Brien. Tags: Fourth Amendment, Privacy, Privacy Torts
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Podcast 33: Bounty Hunters January 18, 2010
RIAA antitrust suit revived, Valleywag puts bounty on iSlate Rumors, Apple Patent and prior art.
You can download the podcast, or subscribe to the feed. Feel free to e-mail us with suggestions, question, or comments.
2nd Circuit Revives Antitrust Suit
U.S. court revives antitrust suit on music downloads
The Opinion
Valleyway’s Bounty on iSlate Rumors
Valleywag’s $100,000 Bounty For Apple Tablet Leaks May Face Legal Repercussions
Apple C&Ds Gawker over bounty on tablet info
Apple Patent and Priority
Apple tries for ‘adding a contact to a home screen’ patent, but Android beat them to the punch
ADDING A CONTACT TO A HOME SCREEN (The patent)
Posted in: Podcast by Ben Snitkoff.
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Illegal Wiretapping on Boston’s Streets January 16, 2010
Boing Boing reported about an epidemic of wiretapping on the streets of Boston.
Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.
The police arrested Glik for violating G. L. c. 272, s. 99, the Massachusetts wiretap act. It’s not the first arrest of its kind.
The act generally prohibits secret interception of oral communication by means of an electronic device. In plain english, you can’t record a conversation without the other party knowing that you’re recording. You don’t need their explicit permission, but they can also choose to stop talking to you once you tell them you’re recording. The act has a lot of exceptions, but there is no exception for recording police officers.
There is a silver lining here, in order to violate the law, the recording has to be secret. There is nothing secret about filming a police officer with a camcorder. And based on this case, the officer had a pretty good idea that the cellphone was recording both video and sound. The police officer saw Attorney Glik recording, clearing understood that he was capturing the incident on his phone, and asked if the phone could record sound. It’s a tough argument to make that this record was in any way secret. So, in the end, it boils down to police trying to stop people from filming alleged police misconduct through bullying.
Posted in: Analysis by Ben Snitkoff. Tags: Boston, Massachusetts, Wiretap
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Psystar Appeals January 15, 2010
Psystar has appealed the summary judgment for Apple and permanent injunction. It will be a while before we have briefs, and the case won’t be heard, until much later in the year. We’ll follow it, as we have since the beginning.
