MIRLN --- 13 November 2011 – 3 December (v14.16)

MIRLN --- 13 November 2011 - 3 December (v14.16) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: http://twitter.com/vpolley #mirln)

COMMENTS | NEWS | PODCASTS | LOOKING BACK | NOTES

ANNOUNCEMENT

(for ABA members)

On 24 October 2011, Dan Schwartz sent the following blast to an audience of ABA technology leaders. If you should have been on that list, consider yourself added. The more the merrier: “ Dear Fellow ABA Member—We all get a lot of ABA related e-mail. But, as members of the Standing Committee on Technology and Information Systems (SCOTIS), we ask for your indulgence for one more to introduce something, we believe, will offer great value to all of us and the ABA: an ABA Technology Stakeholders Community. What would YOU like to see the ABA do with technology? Join our forum. It’s easy and it’s free. (No lifetime commitment necessary, either). Use the following, easy-to-remember link and become engaged in the discussion: http://ambar.org/techatstake and feel free to share it with other ABA members via e-mail, Twitter, Facebook, LinkedIn, Google+ or whatever other tool you like to use. We are reaching out to you because we have identified you as a technology stakeholder within the ABA. Whether through your position, your section, or just interest, we are trying to build a new community within the ABA—one that isn’t based on Section, but rather a love for and an interest in technology. Through a new technology forum (and eventually, some new-fangled way to communicate) we hope to reach out to various groups, to solicit input and discussion on important subjects, and share useful information. Ultimately, we hope that this forum will provide meaningful input to the ABA and its members, and be a place where ABA members can share information and discuss solutions to the technology issues the ABA faces.

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COMMENTS

re “ Employers Demanding the Right to Remotely Wipe Employees’ Phones “ from MIRLN 14.05, a reader comments: Last summer [XYZ Co] changed its policy, and so will pay phone charges (including data), and the carrier will give you a “free phone”, however if you want a smartphone to read email, then the employee is supposed to by the phone, but XYZ has a similar sting: “(1) I agree to allow XYZ to install or uninstall software as necessary to remotely manage and secure my PDA or mobile device; (2) I agree not to uninstall or disable XYZ installed software; (3) XYZ accepts no liability for loss of data or functionality on my PDA or mobile device; and (4) Upon ceasing to work for XYZ I accept that ALL data may be wiped from my PDA or mobile device.” My 3.5yr XYZ owned smartphone died on Wednesday, so I’m a little hesitant about giving XYZ the rights to control my equipment, or even make the device stop functioning at my expense.

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NEWS

Utah Mayor Used Alias To Write Upbeat News Stories (NPR, 11 Nov 2011) - Disguising himself with an alias, the mayor of Utah’s second-largest city has been writing upbeat freelance articles about his town for area news outlets because he claimed the media spent too much time on crime coverage. He unapologetically revealed himself this week, insisting the balance was needed. “I thought about all the people just reading about crime in our city and nothing better,” West Valley City Mayor Mike Winder said Friday. “I’m trying to stand up for us because we do get the short end of the stick negative stories.” Winder had been writing under the name Richard Burwash, an alias he actually swiped from a real man, a one-time professional tennis player from California that he found on the Internet. He said getting stories published by the Deseret News, KSL-TV’s website and a community weekly was as easy as setting up a Gmail account and Facebook page. He communicated with editors by email and phone, never showing his face. As an unpaid writer for several months earlier this year, the so-called Burwash even quoted himself as mayor in some stories. In one published piece, he wrote about the opening of a Buddhist Temple in his Salt Lake City suburb, quoting himself as saying, “We applaud any time a group builds a place to celebrate peace and to encourage people to live better lives.” [Editor: See also “ Google+ Launches Guide for Politicians and Candidates “ (Mashable, 28 Nov 2011)]

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Stanford Law Review Online Launched - Offers Timely Legal Analysis (Stanford, 11 Nov 2011) - The Stanford Law Review (SLR) launched a new website today, the Stanford Law Review Online offering timely, short-format, law-review-quality legal analysis. The site hosts perspectives , where multiple scholars weigh in on legal issues in the news (similar to newspaper op-eds for readers with a legal background). The new site also provides a forum to respond to law review articles published in the journal edition of SLR . The goal of the website is to provide a more flexible outlet to publish short, original legal scholarship and commentary on a faster time-frame with the same editorial quality that is the hallmark of the Stanford Law Review . The first perspective, California’s De Facto Sentencing Commissions , by Stanford Law Professor Robert Weisberg is available online today.

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Site to Resell Music Files Has Critics (NYT, 14 Nov 2011) - Music fans looking to clear out some clutter can always try to sell their old CDs. But can someone resell an old digital music file of “Thriller” that’s languishing on a computer? A legitimate secondhand marketplace for digital music has never been tried successfully, in part because few people think of reselling anything that is not physical. But last month a new company, ReDigi, opened a system that it calls a legal and secure way for people to get rid of unwanted music files and buy others at a discount. The service has already drawn concern from music executives and legal scholars, who say it is operating in a gray area of the law. Last Thursday the Recording Industry Association of America, which represents the major record companies, sent ReDigi a cease-and-desist letter, accusing it of copyright infringement. John Ossenmacher, ReDigi’s chief executive, contends that the service complies with copyright law, and that its technology offers safeguards to allay the industry’s concerns that people might profit from pirated music. “ReDigi is a marketplace that gives users tools to be in compliance with copyright law,” he said. “Before I put a file up for sale ReDigi says you will need to delete them, and if not it won’t take them.” When a user wants to upload a song for sale, ReDigi analyzes its metadata - a kind of digital fingerprint - to verify that it came from an official store like iTunes or Amazon. (It does not accept files ripped from a CD, or others whose provenance it considers suspect.) A desktop program then deletes any copies left on a user’s computer, and can detect if that user tries to add copies later. Songs on the service, which is based in Cambridge, Mass., cost 79 cents, as much as 50 cents less than the price of new tracks at iTunes. ReDigi users also get coupons worth 20 cents for each song upload for sale, effectively reducing the cost of a track to 59 cents. ReDigi’s fee ranges from 5 to 15 percent, a spokeswoman said. The company also plans to open a similar market for e-books, Mr. Ossenmacher said. ReDigi says it is legal under the first-sale doctrine, the idea that once someone buys a copyrighted item like a CD or book, that buyer is free to resell it. But legal scholars say that the law is unclear when it comes to digital goods because transferring a digital file from one party to another usually involves making a copy of it, something generally not allowed under copyright law. “The real challenge for the first-sale doctrine in the digital environment,” said Mark A. Lemley, a professor at Stanford Law School, “is that courts have generally said that if you’ve gone beyond using your copy, and made a new copy, then you’re outside the scope of the doctrine.” Jason M. Schultz, an assistant professor of law at the University of California, Berkeley, said there were aspects to the first-sale law that may apply to digital goods, but have been largely untested in the courts. The recording industry association’s letter to ReDigi, a copy of which was obtained by The New York Times, says that the company violates copyright by making copies of files, and by providing 30-second samples of songs without licenses. A spokeswoman for ReDigi said on Friday that the company had not received the letter.

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Authors Guild: Kindle Owners’ Lending Library Is “Nonsense” (PaidContent.org, 15 Nov 2011) - The Authors Guild is taking a stand against the Kindle Owners’ Lending Library, Amazon’s new initiative allowing Kindle-owning Prime members to borrow free e-books. Amazon (NSDQ: AMZN) is “boldly breaching its contracts” with publishers, the Guild contends, in “an exercise of brute economic power.” The Kindle Owners’ Lending Library contains over 5,000 titles, many of which are being included without publisher permission. In those cases, Amazon is simply buying a copy of the book at the wholesale price any time a Prime member borrows it (hence no “big six” publishers’ titles are in the program, since they set their own e-book prices). When the program first launched, many publishers did not even know that their books were included. The Association of Author Representatives and others have raised questions over how authors whose books are included will be paid. The Authors Guild contends that the publishers who willingly included their books in the lending library (and were paid a hefty sum by Amazon to do so) are in the wrong: “While these publishers generally have the right to license e-book uses for many of their authors’ titles (just as most trade publishers do), our reading of the standard terms of these contracts is that they do not have the right to do so without the prior approval of the books’ authors.”

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Cambridge University Press to Try Renting Academic Articles (ArsTechnica, 30 Nov 2011) - Ars’ science articles link to the academic papers that are being discussed, and based on reader comments, people have a clear interest in looking over the publications. Unfortunately, that interest often runs into a significant hurdle, one that can be summarized as “they expect me to pay $30 to read that?” Now, one academic publisher is experimenting with a system that might get a few more people reading its products: it’s offering to rent access to the articles. The publisher, Cambridge University Press, isn’t a major force in the world of academic journals; many of its offerings, such as the Journal of Helminthology and the American Journal of Alternative Agriculture, appeal to very niche audiences. But it appears to be a reasonable attempt to find a balance somewhere between strict article purchasing and an open access model. Under the plan, users would pay a moderate fee for one-time access (£3.99/$5.99/€4.49) to a PDF of the article. They won’t be able to save, print, or copy any of the text-just display it in their browser. Cambridge University Press plans on adding support for mobile browsers shortly. The prices still seem a bit high for a casual reader, but it’s certainly a significant step down from the typical prices (for the journals in question, it represents an 86 percent discount). On its own, Cambridge University Press doesn’t publish enough material that this will significantly change academic publishing. The best hope for this effort to have a larger impact would be if it inspired a larger publisher to perform a similar experiment.

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Title Firm Sues Bank Over $207k Cyberheist (KrebsOnSecurity, 14 Nov 2011) - A title insurance firm in Virginia is suing its bank after an eight-day cyber heist involving more than $2 million in thefts and more than $200,000 in losses last year. In an unusual twist, at least some of the Eastern European thieves involved in the attack have already been convicted and imprisoned for their roles in the crime. Sometime before June 2010, crooks infected computers of Vienna, Va. based Global Title Services with the ZeuS Trojan, giving them direct access to the company’s network and online banking passwords at then-Chevy Chase Bank (now Capital One). On June 1, 2010, the thieves made their move, and began sending a series of unauthorized wire transfers to money mules, individuals who were hired to help launder the funds and relay them to crooks overseas. The first three wires totaled more than $200,000. When Global Title’s owner Priya Aurora went to log in to her company’s accounts 15 minutes prior to the first fraudulent transfers went out, she found the account was locked: The site said the account was overdue for security updates. When Aurora visited the bank local Chase branch to get assistance, she was told she needed to deal with the bank’s back office customer service. Between June 2 and June 8, the thieves would send out 15 more wires totaling nearly $1.8 million. The bank ultimately was able to reverse all but the first three fraudulent wires on June 1. Global Title is suing Capital One, alleging the bank failed to act in good faith and failed to implement commercially reasonable security procedures for its online banking clients. The lawsuit notes that at the time of the breach, Capital One’s online banking system used single-factor authentication; it allowed commercial clients to log in and to transfer millions of dollars using nothing more than a username and password.

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Pentagon: Offensive Cyber Attacks Fair Game (Washington Post, 15 Nov 2011) - The Pentagon has laid out its most explicit cyberwarfare policy to date, stating that if directed by the president, it will launch “offensive cyber operations” in response to hostile acts. Those hostile acts may include “significant cyber attacks directed against the U.S. economy, government or military,” Defense Department officials stated in a long-overdue report to Congress released late Monday. But the report is still silent on a number of important issues, such as rules of engagement outside designated battle zones - a sign of how challenging the policy debate is in the newest and most complex realm of warfare. The statements are consistent with preexisting policy, but have never before been stated quite so explicitly, even in the Pentagon’s recently released cyberspace strategy . That strategy focused on the importance of deterring attacks by building defenses that would “deny” adversaries the benefits of success. In the latest report, the Pentagon states that adversaries threatening a crippling cyber attack against the United States “would be taking a grave risk.”

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Righthaven Case Ends in Victory for Fair Use (EFF, 18 Nov 2011) - In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC. The case began when the online political forum Democratic Underground—represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers—was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper’s website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.

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Fair Use In European Law (Media Law Prof Blog, 21 Nov 2011) - P. B. Hugenholtz and Martin Senftleben, University of Amsterdam, have published Fair Use in Europe: In Search of Flexibilities. Here is the abstract: “There appear to be good reasons and ample opportunity to (re)introduce a measure of flexibility in the national copyright systems of Europe. The need for more openness in copyright law is almost self-evident in this information society of highly dynamic and unpredictable change. A historic perspective also suggests that copyright law, particularly in the civil law jurisdictions of Europe, has lost much of its flexibility in the course of the past century. By contrast, with the accelerating pace of technological change in the 21st Century, and in view of the complex process of law making in the EU, the need for flexible copyright norms both at the EU and the national level is now greater than ever. Against this background, the authors argue that the EU copyright acquis leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. A Member State desiring to take full advantage of all policy space available under the Information Society Directive, might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. Less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, can explore the policy space left by distinct exception prototypes. In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for example, fair transformative uses in the context of producing and disseminating user-generated content.” The paper is here .

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Can A Copyright Be Assigned By Email? (Eric Goldman’s blog, 21 Nov 2011) - Can a copyright be assigned by an exchange of emails? Section 204(a) of the Copyright Act provides that a transfer of copyright ownership is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or by such owner’s duly authorized agent. The 11th Circuit has recently affirmed a lower court’s decision that an exchange of emails was sufficient to constitute a contract to assign a copyright. The court’s decision, however, does not seem to adequately address whether the email exchange satisfies the “writing” requirement in Section 204. Vergara Hermosilla v. The Coca Cola Company, No. 11-11317 (11th Cir. Nov. 3, 2011).

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New Version of NC SaaS Ethics Opinion (VirtualLawPractice, 22 Nov 2011) - The NC Bar has published the revised version of it proposed ethics opinion entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property”, 2011 FEO 6 on the website. It will also be published in the next issue of the NC State Bar Journal . You can read some of the history of this opinion in this post . After a year or more of subcommittee review and revision, this latest version will hopefully be the final one that the Ethics Committee recommends for adoption by the Council at their January meeting. The subcommittee removed the list of minimum requirements for the selection of a technology vendor. Many of the items on the list had raised concern as detailed here by myself and others. The new version of the opinion sticks with the “reasonable care” standard requiring the attorney to do his or her due diligence in researching the technology and any third-party provider. The proposed opinion states: “…a law firm may use SaaS if reasonable care is taken to minimize the risks of inadvertent disclosure of confidential information and to protect the security of client information and client files. A lawyer must fulfill the duties to protect confidential client information and to safeguard client files by applying the same diligence and competency to manage the risks of SaaS that the lawyer is required to apply when representing clients.” The opinion then goes on to state that because technology and security risks change so rapidly, the opinion will not include minimum requirements that might quickly become outdated and create a false sense of security for practitioners. Instead, they suggest that in order to conduct due diligence the attorney can 1) look for confidentiality provisions in the vendor’s user agreement or SLA, 2) review the SLA and any security policies, 3) evaluate how the vendor has stored secures the data and 4) review how the vendor backs up the data.

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Findlaw Legal Pulse as Launched - Aggregates Topical News and Social Media (BeSpacific, 22 Nov 2011) - News release : “FindLaw.com is introducing FindLaw Legal Pulse , a new content area that offers continuously updated legal headlines from around the world, along with news, photo feeds and analysis from such sources as Reuters, the Associated Press, New York Times and Washington Post. The content covers a broad range of law-related topics—everything from Supreme Court decisions to legislative updates, everyday legal issues and even sports and celebrity news. FindLaw Legal Pulse offers tangible user benefits—the news is up-to-date, comes from a rich variety of sources, and is tailored to audiences with legal interests.” [Editor: so far, I’m not impressed - the above-the-fold stories (styled “Editor’s Picks") haven’t changed in a week.]

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Panel Admonishes Criminal Defense Attorney For Blog Naming Clients, Omitting Disclaimer (BNA, 23 Nov 2011) - A criminal defense attorney who blogs about criminal proceedings, including his clients’ cases, violated Virginia lawyer conduct rules by including clients’ names in blog posts without their consent, a Virginia State Bar disciplinary committee determined in an order released Nov. 8 (In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907, 11/8/11). The panel also found that the attorney’s blog, This Week in Richmond Criminal Defense, hosted on his law firm’s website, constitutes advertising and therefore should have included a disclaimer required by rules governing lawyer advertising. The panel’s order publicly admonishes the attorney, Horace F. Hunter, and warns that further ethics violations will result in more serious sanctions. “Respondent’s website discusses information regarding his clients’ cases, the disclosure of which would be embarrassing or be likely to be detrimental to the client,” the committee’s opinion states. “Respondent did not receive consent from any of the clients listed in the postings on the respondent’s web page prior to disseminating such case information.”

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EU Privacy Law is No Excuse for Spoliation of Evidence (Steptoe, 23 Nov 2011) - European Union requirements to delete personal data once it is “no longer necessary” for business purposes do not excuse a company from U.S. law regarding spoliation of evidence. A decision last month by the U.S. District Court for the Northern District of California in IO Group Inc., et al. v. GLBT Ltd., et al., rejected a British website operator’s argument that its intentional destruction of emails relevant to copyright infringement litigation could not be considered spoliation of evidence because it was done per the requirements of the U.K. Data Protection Act 1998. This decision highlights the fact that U.S. courts often will not excuse noncompliance with U.S. law on grounds that complying would result in a violation of foreign law - a conundrum that is increasingly faced by companies that have data stored abroad but are subject to U.S. jurisdiction.

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Digital Downloads Sub for Weighty Scores (NYT, 24 Nov 2011) - Digital gadgetry has increasingly been making its mark on classical music performance. It hit a milestone this week at the New York Philharmonic. Jeffrey Kahane, the pianist and conductor who is making a guest appearance at the orchestra, used an iPad on Tuesday instead of a score to lead the orchestra in a Mozart symphony. It was a first for the orchestra, the Philharmonic said. Mr. Kahane said it was also his debut with the device in such a major setting. Mr. Kahane conducted from a harpsichord, improvising an accompanying part, or continuo, to the symphony. The sight of a computer tablet sitting atop a quintessentially nonelectronic instrument made of wood, strings and plectrums for plucking them was incongruous. Musicians more and more are using iPads and laptops instead of traditional paper scores, especially pianists. The Borromeo String Quartet makes it a regular practice. Wireless foot pedals or a quick screen tap make it easier to turn pages. Downloading scores for study or performance saves about 30 or 40 pounds of luggage while on the road, said Mr. Kahane, who is music director of the Los Angeles Chamber Orchestra. Mr. Kahane said the iPad would be impractical for a Mahler symphony, say, with its much larger scoring, and there is the danger of equipment malfunction. But tapping also eliminates the possibility of turning two pages at once, tearing out a leaf or pulling the whole score off the stand, as can happen, he said. He uses a stylus or other program features to mark the scores, many of which he downloads from open-source sites. Mr. Kahane said he had about 100 scores on his iPad, including Mozart’s Symphony No. 33, the work played on Tuesday and scheduled for performances on Friday, Saturday and Tuesday.

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Web Poster’s Anonymity Preserved By Appellate Decision (Chicago Tribune, 26 Nov 2011) - The name of an anonymous Web poster who ridiculed a former Buffalo Grove trustee’s 15-year-old son does not have to be revealed, an appellate court has ruled in a case closely watched for its implications for Internet anonymity. “Encouraging those easily offended by online commentary to sue to find the name of their ‘tormentors’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously” on newspaper websites, the Illinois First District Appellate Court ruled. Putting publishers and website hosts in the position of “cyber-nanny” is “a noxious concept that offends our country’s long history of protecting anonymous speech,” Justice Terrence Lavin wrote.

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French IT Company Declares The Email Dead (Business Insider, 28 Nov 2011) - The CEO of one of Europe’s largest IT companies has told his staff they are to stop emailing each other stating that it is no longer an “appropriate” communication tool. The Telegraph reports that Thierry Breton, CEO of Atos, wants to abandon email all together within 18 months. Instead, he wants to promote instant messaging and the good old fashioned spoke word. The Wall Street Journal reports that Breton hasn’t sent a work email for three years. Now, France’s former finance minister is hoping to pass his ethos on to his employees stating to the Telegraph: “It is not normal that some of our fellow employees spend hours in the evening dealing with their emails.” “The email is no longer the appropriate (communication) tool.” The newspaper also reported that only 11 percent of French 11 to 19-year-olds utilize email as a communication method. [Editor: Atos was part of Schlumberger, where I worked for 2 decades. They aren’t (usually) crazy; maybe this story is incomplete. See also the story below under “ LOOKING BACK ”]

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Cablegate One Year Later: How WikiLeaks Has Influenced Foreign Policy, Journalism, and the First Amendment (EFF, 28 Nov 2011) - One year ago today, WikiLeaks started publishing a trove of over 250,000 leaked U.S. State Department cables, which have since formed the basis of reporting for newspapers around the globe. The publication has given the public a window into the inner workings of government at an unprecedented scale, and in the process, has transformed journalism in the digital age. In recognition, WikiLeaks founder Julian Assange was just awarded Australia’s version of the Pulitzer Prize, in addition to the Martha Gellhorn journalism prize he won in the United Kingdom earlier this year. As Salon’s Glenn Greenwald observed, “WikiLeaks easily produced more newsworthy scoops over the last year than every other media outlet combined.” Yet at the same time, the Justice Department has been investigating WikiLeaks for criminal violations for doing what other media organizations have been doing in the U.S. for centuries-publishing truthful information in the public interest. Here is a look at Cablegate’s impact on journalism surrounding six countries central to U.S. foreign policy, and why it is vital for the media to stand up for WikiLeaks’ First Amendment right to publish classified information.

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D.C. Courts Fight the Future in New Rule Limiting Electronic-Device Use in Courthouse (Berkman CMLP, 28 Nov 2011) - The Blog of the Legal Times reports that the Superior Court of the District of Columbia - the local trial court for the nation’s capital - has issued a new administrative order regarding use of electronic devices in the courthouse. And like other courts, the new rules impose a class system of “haves” and “have nots” - favored types of the people can have and use the devices, while everyone else can not. The rules also contain an archaic view of electronic devices that effectively means that even when the rules allow them to be used, they cannot be used for any modern, web-based functions. Unlike most other “state” courts , the D.C. Superior Court maintains an almost complete ban on photography in court. See D.C. Super. Ct. R. Crim. Proc. 53(b); D.C. Super. Ct. R. Civil Proc. 203(b); D.C. Super. Ct., Juv. Proceed. R. 53(b), and D.C. Super. Ct. Dom. Rels. R. 203(b). The Radio Television Digital News Association points out a limited exception to the ban: the juvenile and criminal court rules permit photography “in any office or other room of the courthouse” with the consent of the person in charge of the office or room and the person or people being photographed. In practice, this means that all such devices must be left outside the courthouse, or checked with court officers at the entrances. The new order , Admin. Order 11-17 (D.C. Super. Nov. 9, 2011) continues this policy, by generally requiring that “before entering any courtroom, everyone shall turn off all electronic devices in his or her possession. Pocket-sized electronic devices shall be turned off and stowed so that they are not visible.” The order’s definition of “electronic device” is expansive, and includes all types of cameras (whether film or digital), cell phones, computers, analog or digital recorders, MP3 players, “and any other device that is capable of receiving, transmitting, or recording messages, images, sounds, data, or other information by electronic means”. The order specifically mentions that it covers “all members of the media and students, who may take notes manually,” but the order also provides that “[m]embers of the media may be given permission by the presiding judicial officer to use electronic devices in the courtroom for official business.” While the order says that this requirement applies to “everyone,” it does not really apply to every person in the courthouse. The order goes on to state that “[t]his prohibition does not include a litigant representing himself or herself and to whom the court has given permission to use an electronic device or any person appearing before a judicial officer in the well of the courtroom if authorized by the presiding judicial officer to use an electronic device in the courtroom.” The order also exempts “[m]embers of the Bar or other individuals who are authorized to sit in designated rows of the courtroom (such as pretrial service officers, probation officers, supervision officers, or social workers in court on official business).”

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Complaint: Medical “Copyright Over Your Comments” Contracts Are Illegal (ArsTechnica, 29 Nov 2011) - When our own Timothy B. Lee stepped into a Philadelphia dentist’s office earlier this year, he had an unpleasant experience : the dentist required him to sign over control of all copyright in future online commentary related to that dentist. Here’s how Tim described the visit: “When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a “mutual privacy agreement” that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka’s office manager that ended in me refusing to sign and her showing me the door.” The contract in question came from Medical Justice , which claims to be “relentlessly protecting physicians from frivolous lawsuits.” Over the last few years, the company has pioneered a strange niche in the medical business: providing contractual templates that first barred patients from commenting about their doctors online and later gave doctors the power to veto negative reviews. Is this legal? The Center for Democracy & Technology (CDT) filed a complaint today with the Federal Trade Commission (FTC) arguing that Medical Justice was itself engaging in “deceptive and unfair business practices” through the sale of these contracts. The complaint argues that Medical Justice is “engaging in a deceptive business practice by selling contracts which are themselves deceptive to doctors and patients as to whether they are legally enforceable.” CDT asks that Medical Justice be barred from selling these kinds of contracts to doctors, that it alert doctors who have already purchased them that the contracts are “likely unenforceable and illegal,” and that it give up all money earned from the sale of the contracts.

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Medical Justice Capitulates by “Retiring” Its Anti-Patient Review Contracts (Eric Goldman, 1 Dec 2011) - It’s been a rough week for Medical Justice, the company that tries to help doctors suppress patient reviews. First, the Center for Democracy and Technology filed an FTC complaint alleging three main points: (1) Medical Justice deceives doctors by selling them contracts that don’t work as promised, (2) the effort to suppress patient reviews is unfair under Sec. 5 of the FTC Act, and (3) Medical Justice violates the endorsement/testimonial guidelines through efforts that appear to create fake reviews for doctors. See the CDT announcement . Second, Public Citizen filed a declaratory judgment action against a dentist who tried to use Medical Justice’s contract to suppress a patient’s review. The dentist didn’t actually sue the patient, but he did send over a draft complaint. The DJ complaint touches on a number of interesting issues, including contract unconscionability and dentist ethics, but the copyright angles are perhaps the most interesting. See the Public Citizen announcement . Both CDT and Public Citizen acknowledge the DoctoredReviews website , which Jason Schultz, two Berkeley students and I launched a half-year ago as a way of calling attention to the problems being created by Medical Justice’s contracts. Although I’m delighted that the website was helpful to them, I’m even more grateful that they took the website’s advocacy and turned it into action. While the FTC complaint and lawsuit work their way through the system, they have already been effective: after going through multiple iterations of its review-suppression contracts, Medical Justice apparently threw in the towel and admitted it is dropping the contracts altogether. Timothy B. Lee at Ars Technica reports: “While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007,” MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.”

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MyShingle Comments on Proposed Model Rule 5.3 [by] ABA Commission on Ethics 20/20 (Carolyn Elefant, 30 Nov 2011) - Below is my final set of comments on the ABA Commission on Ethics 20/20′s proposals. My comments address the Commission’s proposal to subject lawyers to the same level of supervisory oversight for passive cloud services as for human, non-legal service providers. For reasons discussed in this post , I strongly oppose any additional requirements which pose additional burdens on lawyers who seek to use the cloud. Moreover, I just don’t see the need to extend the oversight and supervisory obligations of Model Rule 5.3 to passive services, except if the point is backlash against the cloud . Think about it - lawyers have long been permitted to rely on services like banking, phones and computerized legal research without the need for an express directive to oversee and instruct these vendors. As my comments discuss, lawyers must act prudently in selecting any service - that’s not just an ethical mandate, but simple common business sense. We can’t run effective profitable practices if we employ phone service that goes down every two days or legal research tools that produce inaccurate results. Do we really need more ethics rules governing selection of passive services? In addition, as my comments point out, it may well be impossible for lawyers - and particularly solos to meet the active oversight and instruction requirements proposed in Model Rule 5.3. Solos lack the bargaining power to force vendors to modify their services to our liking. So why impose a requirement that can’t be enforced? You can read my full comments at the end of this post, and my earlier comments here .

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A Note to Our Readers About Comments (NYT Managing Editor, 30 Nov 2011) - Today we are introducing enhancements to our comment system to improve the community experience across NYTimes.com. The first thing you’ll probably notice is an entirely new design, which for the first time brings our readers’ comments onto the same page as the article or blog post. This improves the old system, which relegated them to a separate page. We are also adding new functions. Comments are now threaded, giving readers the ability to respond to one another. In addition, we’ve added tie-ins to social media: comments, both yours and others’, can now be shared to Twitter and Facebook. And finally, we are introducing a program for “trusted” commenters—those who have maintained a history of posting outstanding comments on the site. Submissions from these members of our community will not be moderated in advance. Trusted commenter status is offered by invitation only. ( Read more about this program .) We look forward to hearing from you. Please leave your reactions and questions about the new system in the thread below. We’ll do our best to respond to as many as possible.

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Carrier IQ Tracking Scandal Spirals Out of Control (Mashable, 1 Dec 2011) - Carrier IQ, a diagnostic tool installed in millions of smartphones all over the world, is gathering a lot of info about your activity - possibly even recording keystrokes, content of SMS messages and more - and sending it to a third party. It’s present on nearly all Android devices, but not Galaxy Nexus, Google Nexus One, Nexus S, or the Motorola Xoom. It’s also present on iOS devices, but it seems to be active only when the device is in diagnostic mode. This is the short version of what is quickly becoming a very complicated story with huge implications for user privacy. Carrier IQ is a tool whose primary purpose is recording various info which helps carriers improve the quality of service for their customers. In October, researcher Trevor Eckhart discovered that Carrier IQ is recording, among other things, your every keystroke and possibly sending it back to Carrier IQ’s servers. Carrier IQ responded by sending Ekchart a cease & desist letter and publishing a media alert, in which it claims the company is “not recording keystrokes or providing tracking tools.” Fast forward to this week, when Eckhart posted video evidence (below) suggesting that Carrier IQ is recording keystrokes and reading incoming SMS messages on Android, more precisely on an HTC EVO 3D. Worse, the app cannot be stopped or removed by the user. While this doesn’t prove that Carrier IQ is actually sending the data back to Carrier IQ’s servers, it’s definitely disconcerting to see all this done by an app which is completely out of users’ control. Many questions are still left unanswered. We don’t know what Carrier IQ does with the data it collects, or whether it sends keystrokes, SMS messages or other info back to Carrier IQ’s servers. We don’t know the nature of the deal between Carrier IQ and - seemingly - most of the world’s carriers, since almost every device which is sold together with a carrier contract has the app installed. We’ll keep you updated as the story unfolds.

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France Still In Search Of Perfect Cookie (Steptoe, 1 Dec 2011) - France’s data protection agency, the Commission National de l’Informatique et des Libertés, has released yet more guidance on acceptable practices for implementing amendments to EU privacy law that requires website operators to obtain user consent prior to the installation of cookies. The latest set of guidelines reiterates the data regulator’s intent to strictly apply active consent requirements in enforcing France’s laws implementing the EU e-Privacy Directive, once again reminding website operators that browser settings alone are not sufficient to fulfill EU privacy obligations. This statement goes further than the agency’s September guidance in clarifying what measures are necessary to comply with EU requirements by providing examples of adequate and inadequate website consent mechanisms. Even the loquacious Proust didn’t need this many words to describe his wondrous madeleine in In Search of Lost Time.

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U.S. Publishes Final Rules on Student Privacy Law (InsideHigherEd, 2 Dec 2011) - The U.S. Education Department today published final rules to update the Family Educational Rights and Privacy Act, making relatively few substantive changes from proposed regulations that drew significant comment and quite a bit of criticism from some college groups. The rules give colleges and universities more latitude to share student-level information with state agencies and others, without student consent.

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NOTED PODCASTS

World of Lawcraft (Berkman Center, 4 Nov 2011; 32 minutes) - Video games aren’t just, well, fun and games. When you pop open a video game - be it Farmville on Facebook for your smartphone or World of Warcraft on your $10,000 immersive gaming setup - you are entering into any number of different terms and conditions agreements about behavior and property that govern your playtime. But questions have started to arise as more and more games build the concept of virtual property into their play. New powers, levels, avatars, privileges - who do those things belong to, and under what jurisdiction do they fall? Greg Lastowka is a professor of law at Rutgers University and author of the book Virtual Justice: The New Laws of Online Worlds . Lastowka has given a great deal of thought to the virtual worlds of video games, and documented some of the cases where the laws of the game and the laws of real life clash, sometimes violently. [Editor: Interesting discussion, but I was surprised that he didn’t touch on money-laundering issues in MMORPG environments. On that subject, Neal Stephenson’s new book, REAMDE , is a pretty interesting read.]

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Michael Nielsen on Doing Science in the Open (Berkman Center, 25 Oct 2011; 72 minutes) - Consider the Polymath Project, an ongoing experiment in “massively collaborative” mathematical problem solving. The idea is to use online tools like blogs and wikis to collaboratively attack difficult mathematical problems. Michael Nielsen - author of the book Reinventing Discovery and an advocate of open science - discusses how online tools like the Polymath Project can be used to transform the way we humans work together to make scientific discoveries, and how the normally conservative scientific culture can become more open. [Editor: The podcast implicates knowledge-production (if not management) in the distributed academic sphere, with crowdsourcing, Communities of Practice, and cultural enablers/barriers. There’s an interesting post by Nick Milton parsing some of the implications for knowledge management - “ It’s Not Always Experts Who Have the Answers ."]

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LOOKING BACK

SHORT MESSAGING MAKES A DENT IN E-MAIL USE E-mail use has fallen by 5% this year in the U.K., due to the popularity of short text messaging via mobile phones. According to a report for Barclays bank, the drop was even more dramatic—10%—among 18- to 24-year-olds. “Young people aren’t giving up on the Internet,” says Barclays e-commerce chief Simon Newman. “They take what they want out of it and move on to other high-tech media for convenience and leisure.” (Ananova 30 Mar 2001) http://www.ananova.com/news/story/sm_259919.html

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POORER COUNTRIES GET FREE E-ACCESS TO MEDICAL JOURNALS (Washington Post 9 Jul 2001)—Mirroring the drug industry’s newfound commitment to make medicines for AIDS, malaria and tuberculosis more widely available to Third World countries, six publishing houses recently announced they will provide free electronic access to about 1,000 medical journals to medical schools, research laboratories and government health departments in poorer countries. Institutions in countries in which the per-capita gross national product (GNP) is less than US$1,000 a year will receive the journals free. In countries where the per-capita GNP is US$1,000 to US$3,000, there would be a minimal charge. http://www.washingtonpost.com/wp-dyn/articles/A33714-2001Jul8.html

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