Archive for September 2010

Obama Administration Addresses IPv6

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The National Telecommunications and Information Administration held a workshop Wednesday to address the ongoing (slow) transition to IPv6. Guests included executives from VeriSign, Comcast, Akamai, Verizon, and Google. This is the first time the Obama administration has addressed the problem and represents a growing awareness in the political community of its importance.

IPv6 is designed to replace the current IP address standard, IPv4. Right now IP addresses take the form A.B.C.D, where each letter is an 8 bit integer. This blog, for instance, has the IP address Each web site has its own unique IP, and although 2^32 addresses is a lot of options (about 4.29 billion), the Internet is running out. IPv6 solves the problem in the most obvious way: bigger numbers. The new standard has an address space of 2^128. Yes, that’s vastly more IP addresses than we’ll likely ever need, but the extra space gives more room for structuring each address, making routing more efficient.

Surprisingly, or perhaps not considering the milder economic climate, the Bush administration did quite a bit more to promote the adoption of the new standard. What’s interesting is that private industry hasn’t taken up the ball. Comcast, at least, has started IPv6 trials, but it’s unclear when its networks will be ready. Trends indicate we’ve got at least a few more years of growth in IPv4, so there’s still time.

The current administration’s workshop comes in at least a few years before the storm. From the attendees, it looks like the information industry is willing to consider a government solution. Since IPv4 and IPv6 are not directly compatible, some degree of coordination is clearly necessary to make the transition. There are, at least in theory, mechanisms to deal with the period when some hosts support only IPv6 and some services are IPv4 only, but the various ISP’s will still have to communicate effectively to make sure they’re in place. We don’t know what the long term results of the workshop will be, but if it results in even a little more communication in the industry, I think we can call it a success.

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September 30th, 2010 at 11:59 pm

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Social Media and the Law

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The recently published Malcolm Gladwell article dismissing those who claim social media is both a technological and social revolution, “Small Change,” has been generating buzz all across the Internet. Gladwell’s main contention:

The kind of activism associated with social media isn’t like this at all. The platforms of social media are built around weak ties. Twitter is a way of following (or being followed by) people you may never have met. Facebook is a tool for efficiently managing your acquaintances, for keeping up with the people you would not otherwise be able to stay in touch with. That’s why you can have a thousand “friends” on Facebook, as you never could in real life.

This is in many ways a wonderful thing. There is strength in weak ties, as the sociologist Mark Granovetter has observed. Our acquaintances—not our friends—are our greatest source of new ideas and information. The Internet lets us exploit the power of these kinds of distant connections with marvelous efficiency. It’s terrific at the diffusion of innovation, interdisciplinary collaboration, seamlessly matching up buyers and sellers, and the logistical functions of the dating world. But weak ties seldom lead to high-risk activism.

While it may seem that Gladwell set up an unfair comparison to the Civil Rights Movement, it can’t be forgotten that many social media evangelists got that ball rolling. “Twitter Revolutions,” mass uprising coordinated through Twitter, are a fiction created by the Western media evangelists, as Gladwell takes the time to point out, while thoroughly eviscerating social media’s actual role in social activism in Moldova and Iran.

But what if we  take a more comprehensive look at what Twitter and other social media has done? It may not lead to the social and legal revolutions of the Civil Rights Movement, but might it be leading some other legal revolution or just law breaking under the guise of social revolution?

When civil disobedience was employed during the Civil Rights Movement, it was used to end segregationist and racist legal regimes. Activists had to actively place themselves in danger to do so. Is social media’s Woolworth’s going to be online music piracy? Anil Dash, a self-proclaimed social evangelist, cites this as one of the strongest examples of social media activism. But are current copyright regimes really comparable to Jim Crow Laws? Why do these same “activists” not commit acts of civil disobedience by taking physical copies of the same music, books and other media they are so quick to accumulate digitally?

It may come back to the strength of the ties which were a staple of the Civil Rights Movement but have failed to form online. Digital hackers and internet pirates are almost completely anonymous — ties so weak to anything they almost do not exist — and tend to use this anonymity as an excuse for law-breaking in the name of revolution.

Many of the positive benefits of social media aren’t actually inherent in social media. There are examples of Twitter leading to the arrest of those threatening violence or perverts on trains. Unfortunately Twitter gives a platform to the violent and introduces an unnecessary intermediate step toward catching the pervert. The same went for two girls who used Facebook to call for help rather than actually call for help. And the student who tweeted his way out of jail. Traditional phone calls, text messages, or other communication could have achieved the same results.

As long as anonymity is allowed to reign supreme in the digital world, it will remain easier for those with social harm in mind to meet and prosper online than in real life. The weak ties promulgate a sense that no one is really watching. As Gladwell points out, the opposite continues to be true about social activists of the more positive variety, but thankfully the Civil Rights Movement has had a much greater lasting effect than anything social media appears ready to offer up.

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September 30th, 2010 at 11:58 pm

A Time for Pigs, Not Pork

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The horrifying natural gas explosion in San Bruno, California on September 9th ripped across headlines the nation over.  As of September 29th, eight people had died from injuries sustained directly from the explosion.  According to a San Francisco Chronicle report of the explosion, 53 homes were destroyed and 120 homes were damaged as the gas pipeline explosion sent up a “geyser of fire” creating a “central ball of fire, fed by the Pacific Gas and Electric Co. gas line, [that] raged past nightfall before abating.”

Pretty terrifying, eh?  And the most terrifying part of it is that, according to the US Energy Information Administration, 65 million households in 2008 were consumers of natural gas delivered by similar infrastructure to that used by PG&E in San Bruno.  If the threat of a pipeline explosion was not specific to San Bruno but endemic among all natural gas pipelines in the country, then it would seem that we are potentially facing not so much of a “not in my backyard” issue as a “please, please, say it isn’t in my backyard!” issue.

The threat of a natural gas pipeline explosion grows more alarming the more you look into the matter.  According to reporter Alex Johnson, the best technology available for inspecting natural gas pipelines is a device called a “pig.”  Pigs are sensors that ride through pipelines, making important safety measurements.  However, as Johnson reports, 63% of natural gas pipelines in the US cannot be inspected with pigs because either the pipes themselves are too old or because the pipelines are too circuitous for the pig to run through the line.

Assuming that the kinds of line problems that prevent pigs from being used apply equally to every served household in the US,  the natural gas pipelines serving 40.95 million households cannot be inspected by pigs.  While there are other methods of inspecting natural gas pipelines, there seems to be an agreement that pigs are the best technology.  This conclusion is reflected by the fact that on September 22nd, California Senators Diane Feinstein and Barbra Boxer introduced the Strengthening Pipeline Safety and Enforcement Act to the Senate.  The bill would require that all natural gas pipelines be inspected with pigs once every five years.

However, according to an LA Times report on the bill, retrofitting pipelines that currently cannot be inspected with pigs is very expensive.  State budgets are already in dire situations; California is in such bad fiscal shape that on Tuesday the University of California – Berkeley, the state’s flagship university, announced that it was cutting its men’s baseball, women’s lacrosse, and men and women’s gymnastics programs.  As discussed in the LA Times article, some of the safety measures included in the Strengthening Pipeline Safety and Enforcement Act are mandated only where “technically and economically feasible.”

So we have a common problem given new urgency by a fatal tragedy.  The technology exists to ensure that natural gas pipelines are safe, yet because of the high level of capital investment needed to implement the technology and the lack of immediate benefit to be gained by the implementation of the technology, we may just end up with a series of unfunded mandates.  There is a possibility, however, to avoid that all-too-common outcome: if states do not have the money to improve their infrastructure, perhaps the federal government should step in.  The Obama Administration has pledged $50 billion for infrastructure improvements in a new round of stimulus-like spending.  Upgrading our natural gas pipeline infrastructure is perfectly suited to such an effort: the risk is there, the images of the San Bruno explosion are present in constituents’ minds, the project is far-reaching and expensive, and big energy would stand to benefit as well.  So far, Rahm Emmanuel’s most memorable, G-rated quote as Chief of Staff is “Never let a serious crisis go to waste.”  Here is the crisis, Mr. Emmanuel.  It’s time to spend money on pigs — just don’t let anyone call it pork.

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September 30th, 2010 at 11:58 pm

Amicus Brief Charges Expansion of Double Patenting Doctrine With Disincentivizing New Biotech Discoveries

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In an amicus brief filed on Wednesday, September 8th, 2010 in support of Eli Lilly & Company’s (“Lilly”) petition for an en banc hearing of Sun Pharm. Indus., Ltd. v. Eli Lilly & Co., trade organization Biotechnology Industry Organization (“BIO”) alleged that failure to clarify the law surrounding patent specifications as grounds for nonstatutory double-patenting rejection may disincentivize research of new uses for various biotechnological discoveries.

In Sun Pharm., a Federal Circuit affirmed a lower court’s finding that claims from Lilly’s U.S. Patent No. 5,464,826 (“the ‘826 patent”) were invalid for obviousness-type double patenting over U.S. Patent No. 4,808,614 (“the ‘614 patent”).  Lilly’s ‘614 patent was a continuation-in-part (“CIP”) of the earlier Lilly U.S. Application No. 06/473,883 (“the ‘833 patent), which claimed anti-viral activities of the nucleoside gemcitabine. Although the ‘614 application was intended to expand upon the ‘833 patent by disclosing methods for use of gemcitabine as an antiviral therapy, the specification also included a brief statement asserting that “certain compounds of the present invention have also demonstrated excellent oncolytic activity in standard cancer screens.”  The same day that Lilly filed the application for the ‘614 patent, it also filed an application for the ‘826 patent, claiming methods of using gemcitabine for treating cancer. The ‘826 patent was set to expire November 12, 2012 (approximate two and a half years following the expiration of the ‘833 patent) and could have severely limited Lilly’s period of market exclusivity.  In rendering the ‘826 patent invalid, the circuit and district courts relied on decisions from Geneva Pharm., Inc. v. GlaxoSmithKline PLC, and Pfizer, Inc. v. Teva Pharm. USA, Inc.

Rejecting the validity of a patent for nonstatutory obviousness-type double patenting is appropriate where two conflicting claims are not identical, but at least one application clam is not “patently distinct” from the reference claim because the application claim is either anticipated by or rendered obvious by the application claim. Explaining the policy rationale behind such rejections, the court in Pfizer and Geneva concluded that “[i]t would shock one’s sense of justice if an inventor could receive a patent upon a composition of matter, setting out at length in the specification the useful purposes of such composition, . . . and then prevent the public from making any beneficial use of such product by securing patent upon each of the uses to which it may be adapted.”  Pfizer, 518 F.3d at 1368 n.8; Geneva Pharm., 349 F.3d at 1386.

BIO asserts that these same cases illustrate the notion that a court cannot use a patents specification in deciding whether a subsequent claim should be invalid for being indistinct from a previous claim, unless the utility of that previous patented invention can only be ascertained via that compound’s specification. BIO argues that the ‘833 patent’s utility was obvious on its face, as its claims of explicitly discussed methods of use in treating the Herpes virus. BIO therefore contends that the courts inquiry into the later filed ‘614 patent specification sets new precedent: allowing courts to compare new patent claims to the specifications of a previously issued patent. This is a departure from standard jurisprudence, which traditionally compares the “essential utility” of the compound’s claims to the newly requested patent.

In its brief, BIO argues that any expansion of the law should be supported by public policy rationale. Regarding patents, the court should apply the law in a way such that inventors are incentivized to not only create new inventions but also continue to research potential new uses of prior inventions. By erring on the side of disclosure in its CIP specification, Lilly essentially “invalidated legitimate patent rights otherwise in full compliance with patent statutes.” As a result of this new shift in jurisprudence, biotechnology companies must now be on notice that any uses described in subsequent patent specifications could inhibit their ability to successfully obtain a patent for that use. BIO maintains that the uncertainty produced by the court’s expansion of the obvious-type double patenting doctrine will likely make biotechnology companies reluctant to further research granted patents to determine additional uses. In the interests of public policy, BIO argues, Eli Lilly’s petition for en banc hearing of Sun Pharma v. Lilly should be granted and the jurisprudence surrounding the double-patenting doctrine clarified.

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September 30th, 2010 at 12:51 am

Momentum Builds for Reform of Electronic Communications Privacy Act

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Business, legal, and academic leaders urged reform of the Electronic Communications Privacy Act (ECPA) during hearings last week before the Senate Judiciary Committee and a Subcommittee of the House Committee on the Judiciary. Enacted in 1986, the ECPA regulates government access to citizens’ electronic communications while seeking a balance between the demands of law enforcement and privacy protection. A broad coalition of interests, spearheaded by the group Digital Due Process, has been advocating ECPA reform because of the staggering changes in electronic communication since 1986, including the growth of email and cloud computing.


Senator Patrick Leahy (D-VT) highlighted in his opening statement that “a single e-mail could be subject to as many as four different levels of privacy protections under ECPA.” Brad Smith, General Counsel for Microsoft, eviscerated the arbitrary legal standards in a serious of rhetorical questions during the Senate Judiciary Committee hearing:

“Why should email in someone’s inbox be treated different from something in someone’s sent folder?” asked Smith. “Why is something unread in my junk folder subjected to greater privacy than something read in my inbox? Why does an email I sent in April have fewer privacy protections than one I sent in September?”

Cloud Computing

Internet users are increasingly storing important photos, documents, emails, and more online in the “cloud.” Businesses are also looking at the cloud as a cost-effective storage system. Edward Felten, Professor of Computer Science and Public Affairs at Princeton University, described the cloud in his testimony before the House committee as “rather than keeping the only copy of your data on your own computer, you rent computing resources from a service provider, and that provider keeps the primary copy of the your data.”

But the ECPA could never have predicted the growth of online storage in 1986. Michael Hintze, Associate General Counsel for Microsoft, summarized the problem for the House Subcommittee:

“When law enforcement officials seek data or files stored in the cloud, such as Web-based email applications or online word processing services, the privacy standard that is applied is often lower than the standard that applies when law enforcement officials seek the same data stored on an individual’s hard drive in his or her home or office.”

A Potential Solution

Digital Due Process has proposed that electronic communication such as email be disclosed “only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their storage, or the provider’s access to or use of the communications in its normal business operations.”

While no one expects Congress to reform the ECPA in the very near future or as precisely as Digital Due Process would hope, there is growing consensus among academics, businesses, legal advocates, and political leaders that the status quo is unacceptable.

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September 27th, 2010 at 11:34 pm

Proposed Bill Attempts to Take the Wind Out of the Sails of Internet Piracy

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A bi-partisan group of members of the Senate Judiciary Committee, led by the Chairman Patrick Leahy, recently introduced a bill that would increase the government’s power to battle online violators of copyright laws. The bill, officially dubbed The Combating Online Infringement and Counterfeits Act (COICA), would give the Department of Justice (DOJ) the power to shut out infringing sites both domestically and abroad.

Domestically the COICA would allow the DOJ to stop internet pirates at the source. Domain operators of illegal sites would simply be served with an injunction forcing them to shut down and lock the entire infringing domain.

The more important effects of the bill would put an end to the government’s impotence against international internet pirates. Internet service providers (ISP’s) have the ability to block user access to any site, but have little, if any, obligation to get involved in the fray. The passivity on the part of ISP’s has historically allowed for foreign pirating sites to relax safely out of the reach of US jurisdiction. While the bill would not enable the DOJ to reach pirates abroad, it would give them the ability to force ISP’s to disallow US user access to infringing domains.

Critics of the COICA argue that it violates First Amendment rights and sends the wrong message. The argument is directed at the bill’s allowance for the DOJ to shut down entire domains rather than only the infringing part. By allowing this, the critics argue, vast amounts of legitimate, protected speech will be swallowed up by government censure. The argument continues that by allowing this censorship of the internet the US will join the ranks of the non-democratic, totalitarian regimes of the world that already engage in the practice.

Thus far, attempts to stop internet copyright infringement have been thoroughly thwarted. The Recording Industry Association of America’s (RIAA) success in dismantling Napster was answered by pirates with new types of file sharing programs that continue to elude the grasp of the law. More recent lawsuits have limited US access infringing material, but many of those victories are now on appeal and fail to stop users from illegally accessing copyrighted material provided to them by overseas domains.

Given the unyielding perseverance and ingenuity of internet pirates, passage of the COICA is unlikely to be a cure-all. If the DOJ is granted the ability to stop ISP’s from providing access to illegal overseas-based websites it may, however, have a decided advantage in the fight.

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September 27th, 2010 at 12:34 am

Lawsuits Filed Over “Zombie” Cookies

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About a year ago, a study by University of California Berkeley researchers found that many websites were using so-called “zombie” cookies that re-spawn even when a user tries to delete them. This issue is not unique to computer based browsers; similar zombie cookies are found on mobile browsers, i.e., internet browsers on iPhones and iPads. These zombie cookies take advantage of HTML5 code that allows more storage directly on the user’s computer. In other words, websites can store more information directly on your computer, which can be beneficial in many ways. However, these zombie cookies raise significant privacy concerns because a user cannot effectively clear out his cookies and prevent advertising companies from tracking his online activities.

Thus, in response to these cookies, two potential class-action lawsuits have recently been filed in California against companies that use these zombie cookies. One was filed against companies that use zombie cookies on computer browsers, the other was filed against companies that use zombie cookies on mobile browsers. Both lawsuits claim, among other things, that the defendants violated 18 U.S.C. § 1030, the Computer Fraud and Abuse Act (“CFAA”), by accessing computers without authorization or in excess of that authorization.

One potential hurdle to recovery under the CFAA is that subsection (g) allows a civil lawsuit only if the defendant’s actions that violated the CFAA and  the actions caused: (1) loss to at least one person aggregating to at least $5000, (2) potential or actual modification or impairment of a medical examination, (3) physical injury to any person, (4) a threat to public health or safety, or (5) damage affecting a computer used by the US government for national security, national defense, or in the furtherance of justice. Class certification might make showing that there was a loss of over $5000 easier. Nevertheless, it will likely be difficult to demonstrate how these zombie cookies caused more than $5000 in damages to the plaintiffs in these lawsuits.

Regardless of whether these lawsuits are eventually successful, these zombie cookies give internet users less control over what information they send out via the internet. Someone dedicated to deleting cookies and thereby preventing advertising companies from tracking his internet browsing will be frustrated by these zombie cookies. Furthermore, it is common for internet users to delete their cookies every once in a while to protect their privacy, and this will be much more difficult to do with cookies that re-spawn after they are deleted. While cookies are not inherently bad, internet users need to be cognizant of the information that they are sharing over the internet, and zombie cookies makes it harder to track the information you send out over the internet.

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September 21st, 2010 at 2:51 pm

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