Archive for November 2011

Samsung’s Potential Preemptive Strike to Avoid iPad Infringement

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Apple’s litigious business strategy has been the source of discussion in the past, and the company seems to be continuing that trend in the iPad context. Android-based devices appear to be the biggest threat to Apple’s market share dominance, and new competitors are coming to market at increasing rates. The multiple suits against Samsung, Apple’s single biggest tablet competitor, are particularly interesting for framing a discussion about the implications of these cases.

Apple has sued Samsung abroad, with mixed results. In Germany, the court found in favor of Apple, while in the Netherlands, Apple did not succeed on its design patent claim. As a result, Samsung recently released a newly designed Galaxy for the German market, likely because of the adverse judgment in Germany and attempts to avoid the points of infringement found in that case. The U.S analogue, Apple Inc. v. Samsung Electronics Co., Ltd., 11-CV-01846-LHK, 2011 WL 1938154 (N.D. Cal. May 18, 2011), is currently pending. Apple has been granted discovery, which includes access to Samsung’s forthcoming designs. It will be interesting to see whether Samsung also plans to release the redesigned tablets slated for Germany here and whether they sufficiently avoid infringement.

Here are links to both the U.S. design patent and the European Community design patent. Since prior art is often at issue, it is also important to consider the state of the tablet market pre-iPad. Take a look at this article from January 2010, which includes images of tablets set to be released before Steve Jobs announced the iPadHP’s model in particular looks strikingly similar to the iPad in terms of its design. As manufacturers simultaneously respond to consumer demands for thinner, more accessible, computer-like devices, it seems counter-intuitive to give one of those companies a design patent for something as simple and streamlined as a tablet, especially where the same company holds a substantial majority market share.

Assuming the case proceeds, how should the judge rule on the claim of design patent infringement? In the U.S., courts apply an ordinary observer test to determine whether a plaintiff has proven design patent infringement. Although the Federal Circuit noted that “a test that asks how an ordinary observer with knowledge of the prior art designs would view the differences between the claimed and accused designs is likely to produce results more in line with the purposes of design patent protection,” Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 677 (Fed. Cir. 2008), prior art is an affirmative defense. This may prove problematic for Samsung, as the court recently denied Samsung’s motion to “compel Apple to produce, as reciprocal expedited discovery, samples of Apple’s next generation iPhone and iPad and the associated packaging and inserts.” Apple Inc. v. Samsung Electronics Co., Ltd., 768 F. Supp. 2d 1040, 1043-44 (N.D. Cal. 2011).

Apple is also bringing trade dress infringement claims. These claims seem to be more appropriate, but both analyses require the court to take into account the realities of the market and the likelihood of consumer deception or confusion. Within this framework, the court should not find infringement under either theory. First, confusion is unlikely because of Apple’s overwhelming brand power (recently ranked number 1 of the most valuable brands) and market realities. Consumers are able to tell the difference between an Apple tablet and a Samsung tablet, based first and foremost on their respective logos and brand names that appear on the devices themselves.  The differences in the operating systems, packaging, and in store displays further reduces any likelihood of confusion. Next, these devices are not impulse products; instead, as is the case with laptops and other electronics, consumers are likely to research the product that they want before encountering it at the store, taking into account a variety of factors and comparing different brands in sufficient detail to avoid confusion.

There are also policy concerns that should be taken into account here. For instance, enforcing the patent would prevent price competition, stifle further innovation, and reduce the speed at which producers can bring new technology to market. Apple in particular has created a patent litigation business strategy in order to foster monopolization and maintain price inflation, which is something intellectual property law should not promote.

The fact that Apple has already had some success enforcing its iPad design patent makes the outcome of this case something to keep an eye on and illustrates a few reasons why the current patent system is likely in need of reform. (See Eric B. Cheng, Alternatives to District Court Patent Litigation: Reform by Enhancing the Existing Administrative Options, 83 S. Cal. L. Rev. 1135 (2010) for one recent attempt at crystallizing why reform would be valuable). It also presents an opportunity for rethinking what the proper allocation of intellectual property rights should be, as well as in what forum and to what extent we should be willing to give them legal force. But at the end of the day, I think the best question to ask is simply, do we really need patent law here?

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November 27th, 2011 at 12:10 am

Will Improvements in Electronic Medical Records Lead to Worse Treatment for Some Patients?

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While the vast majority of the country currently is debating the Supreme Court’s decision to grant cert on the individual mandate provision of the Patient Protection and Affordable Care Act (PPACA), other acts passed by Congress are expected to have major consequences on our country’s ability to ensure affordable access to health care for all Americans as well.  One such act is the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was signed into law in early 2009 as part of the American Recovery and Reinvestment Act.  The main purpose (see p. 2) of the HITECH Act is to encourage physicians and hospitals to make the transition to electronic health records (EHRs) by 2015 in order to lower costs by cutting the waste of paper records while improving the quality of medical record keeping, which in turn will reduce preventable medical errors.

Making the transition to EHRs is not an easy or inexpensive task.  Most notable among the obstacles for physicians and hospitals making the transition is compliance with the Health Insurance Portability and Accountability Act (HIPAA), which sets out patient privacy requirements for medical records.  Compliance with HITECH and HIPAA privacy requirements require the purchase of expensive software, while use of EHR and noncompliance with HITECH and HIPAA privacy requirements runs the risk of heavy fines. Congress, realizing the large financial disincentive that this posed to the implementation of EHRs, included two components to the HITECH Act to encourage the transition. First, Congress developed an EHR Incentive Program for eligible physicians that demonstrate meaningful use of certified EHR technology (a discussion of who qualifies as “eligible physicians”, what “meaningful use” means, and what counts as “certified EHR technology” is beyond the scope of this post).  Compliant physicians are eligible for up to $44,000 over five years for participation in the Medicare EHR Incentive Program and up to $63,750 over six years for participation in the Medicaid EHR Incentive Program. Compliant hospitals receive a $2 million award under both programs.  The second component to induce compliance with the HITECH Act is essentially a disincentive program in which non-compliant physicians and hospitals will have their Medicare reimbursements cut if they haven’t made the transition to EHRs by 2015. This disincentive program will be the focus of the remainder of this post.

There is little debate that on paper the HITECH Act’s goal of transitioning to EHRs will be beneficial both financially and with respect to overall patient treatment quality; however, the disincentive program may in fact lead to an overall decrease in the amount and quality of care given to Medicare patients. As indicated by the main heading of Title I of the PPACA, “Quality, Affordable Health Care for All Americans,” an overarching goal of the Obama administration’s revision to our health care system is to provide care to all Americans. Implicit in this goal is to provide Americans with needed health care who otherwise would be unable to afford it. Among those patients are Medicare and Medicaid patients.

Reimbursement rates to physicians and hospitals for treating Medicare and Medicaid patients are already low, and some physicians even lose money each time they treat a Medicare patient. While a hospital may not refuse treatment to a patient that arrives at their Emergency Room under the Emergency Medical Treatment and Active Labor Act (EMTALA), there are no restrictions to the ability of private physicians or non-Emergency Room hospital physicians to refuse to treat Medicare patients. The current inability of physicians to financially afford to treat Medicare patients given the inadequate reimbursement rates results in less affordable quality care to those Medicare patients. Coupling the already inadequate reimbursement rates with a further reimbursement rate cut for those physicians and hospitals that don’t make the transition to EHRs by 2015 will only exacerbate the problem. Additionally, studies indicate that smaller physician groups (which account for nearly 60% of all physicians and 65% of all patient visits) and more rural hospitals are less likely to adopt EHRs. Therefore, these physicians and hospitals will be disproportionately affected by the Medicare reimbursement cuts from the HITECH Act and are likely to disproportionately cut or refuse treatment to Medicare patients. (Note: These studies don’t even take into account the expected difficulty that older physicians, who aren’t as likely to be familiar with new technology and who have grown accustomed to more traditional health recordkeeping, will have in making the transition to EHRs.) Further compounding the issue is the general lack of providers in rural areas. For Medicare patients in rural areas, not only will there be a general lack of physicians and hospitals to provide medical care for them, but the few providers that do exist are more likely to reject them because the providers can’t financially afford to treat Medicare patients with the HITECH Act disincentive.

It is imperative that our nation increase the usage of EHRs in order to decrease costs and increase the quality of care, but the HITECH Act’s disincentive to treat Medicare patients may not be the most effective means to go about it. The HITECH Act’s one size fits all approach to EHR implementation doesn’t take into account the realities of the health care system. By placing the treatment of Medicare patients at risk, the HITECH Act is not in keeping with the Obama administration’s goal of making affordable quality health care available to all Americans. While most will be preoccupied by the constitutional debate on the individual mandate, we can’t ignore seemingly more innocuous health care legislation like the HITECH Act.

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November 27th, 2011 at 12:06 am

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Cybersquatting: Lady Gaga and the UDRP

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In August, Stefani Joanne Angelina Germanotta – professionally known as Lady Gaga – looked toward the National Arbitration Forum (NAF) to obtain control of the domain name <>.  The domain name had been registered in June 2008 by “oranges arecool XD”, owner of over 2,000 domain names including <> and <even>.  While Ms. Germanotta not only has common law rights to the mark, but also owns three federal LADY GAGA trademarks, the Panel concluded that Ms. Germanotta was not entitled to the <> domain.

You might find this decision shocking, but it is not particularly surprising – at least to those familiar with current cybersquatting policies.  For those unfamiliar with the term, cybersquatting refers to the registration of a domain name, with bad faith, to profit from the goodwill of another’s trademark.  A cybersquatter registers a domain name with the intent of either (1) collecting income by placing advertisements on the website linked to that domain name or (2) selling that domain at an inflated place to the actual owner of the trademark contained within that domain name.  Cybersquatting may take one of a number of different forms.  In typosquatting, for example, cybersquatters rely on typographical errors made by Internet users when inputting a website address into a web browser.  This may include a common misspelling of the intended site (i.e. <> instead of <>), a differently phrased domain name (i.e. <>), or as in the case of Germanotta v. oranges arecool XD, a different top-level domain (i.e. <>).

A victim of cybersquatting has two primary recourses: the victim can sue under the provisions of the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §1125(d)(1), or turn towards the Uniform Dispute Resolution Policy (UDRP), a policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN).  Ms. Germanotta brought her case under the latter of the two – the UDRP – likely because this resolution process is a much faster and less-expensive system of arbitration.  Nevertheless, she proved unsuccessful because she failed to prove the following three elements required under paragraph 4(a) of the Policy: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.  While the Panel concluded that the first element was met, the Panel also found that oranges arecool XD’s use of the disputed domain name in conjunction with a fan website was a legitimate noncommercial or fair use of the policy.  It thus did not even consider whether Respondent registered and used the disputed domain name in bad faith and concluded that relief should be denied.

Because the avoidance of confusion is such a fundamental tenet of trademark law, I fail to understand why a finding of fair use in this instance should trump a finding of likelihood of confusion.  By all means, I am a strong proponent of fair use and thoroughly appreciate its constitutional foundation, and I certainly wouldn’t hesitate to say that oranges arecool XD should be free to own a domain name such as <>.  Nevertheless, I have no doubt that a fan would consider Lady Gaga the owner and licensor of the domain name <> and thus that the Respondent’s ownership of the domain name would deceive the public and serve as a source of confusion.  Although oranges arecool XD does title the website “Lady Gaga’s (Unofficial) Fansite,” its inclusion of the term “unofficial” is hardly noticeable and fails to clearly disclaim that the website is in no way affiliated with Ms. Germanotta herself.  For these reasons, the Panel’s decision seems particularly unsatisfying.  Had the Panel instead weighed the UDRP’s three elements, I believe a much more appropriate outcome would have been reached.

I find the Panel’s decision all the more troubling in light of ICANN’s forthcoming introduction of new generic top-level domains (gTLDs) (.com, .net, .org etc.).  As more top-level domains open up, Lady Gaga and other trademark holders will have to litigate additional domain names in the Internet sphere that are likewise confusing.  With the endless possibility of new top-level domains, they will certainly have their work cut out for them.  But as the UDRP stands, I see a lot of failure in their futures.  What do you think?  Do you agree with the Panel’s ruling? Do you think that the three elements should be weighed under the UDRP?

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November 17th, 2011 at 9:56 pm

Bearing Printed Arms

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For a good understanding of 3D printing, it’s probably easiest to watch a video demonstration.  For those of you short on time, however, it’s what those in the biz refer to as additive manufacturing technology.  A machine uses a schematic from a computer to lay down material, layer upon layer, and “print” a product – from the bottom up.  Until recently the costs have been prohibitively expensive, but as they fall the market for personal use is developing.  So why is this of legal interest?  Two reasons.  First, we have the First Amendment.  Second, we have the Second Amendment.  Not only do Americans have the right to own guns, they have the right to possess and distribute the schematics required to build them.  Add the internet and 3D printing and we have the potential for weapons you can print from home.

However, what seems a startling revelation is not without its reservations.  Immediately, one wonders: Would the gun even function?  Is it legal to build your own gun?  Just how accessible is this technology, and how big of a nerd do I need to be to use it?  Maybe after some thought, the astute among you realize that perhaps this is not truly a novel problem.

The first question is easily addressed.  Does it work?  Yes.  That’s an AR-15, by the way – essentially a civilian version of the US Army M-16.  A caveat is necessary, here, as the entire gun is not printed – just one part, the receiver.  This is of little relevance, however, as it is that piece which is legally considered a “firearm” and subject to the regulations on firearms (e.g., purchasing restrictions).  For all other parts, you can buy a kit on the internet.  Additionally, yes, you have the right to build your own gun (subject to certain restrictions).

It’s also necessary to discuss cost.  For example, the printer used in the video above (printing a wrench, of all things) is allegedly priced between thirty and forty thousand dollars.  Gulp.  That’s obviously not accessible to your average American, and certainly not going in my living room.  However, there are less costly versions available.  One is rumored to retail at under $1,000 and the other at around $4,000.  Shockingly, some Americans can afford that – they may not want to print parts for a gun on it, but it proves a point.  Prices are dropping, and as technology improves, so will quality.  This isn’t a realistic concern today, but it will be someday.

How big of a nerd do you have to be to use a 3D printer?  Not very.  It must be admitted that 3D modeling on a computer is not for the faint of heart, and in theory would preclude a large portion of the population from taking advantage of 3D printers.  There are two responses.  First, it seems inevitable that companies will include certain schematics with the sale of these printers.  Probably not guns, but that’s my second point – we have the internet.  I can’t explain to you why, but people love to put a lot of hard work into something and share it for free on there (here?).  The schematic necessary to print a receiver for an AR-15 is already available online.

Lastly, perhaps this is not as novel of a legal issue as it seems.  Indeed, the video linked above demonstrating the use of an AR-15 with a plastic receiver was in no way related to 3D printing technology.  Further, there are existing federal regulations governing the personal manufacturing of firearms.  To view this idea in such a fashion is insufficient, to say the least.  The problem doesn’t truly lie with the personal manufacture of weapons, but with the ease and accessibility of doing so coupled with the difficulty of enforcement.  The advent of 3D printing makes it easier to obtain the regulated pieces in what may one day be a widely available fashion.  The current laws seem to create (from an admittedly quick review) a system which relies entirely on self-reporting.  Ultimately, as the number of individuals producing weapons cheaply, quickly, and, in a sense, anonymously rises, the number of people who do not self-report will naturally also rise.

Currently, this isn’t a problem, but it may be one day.  There are of course a variety of solutions which may or may not work in this scenario, such as requiring 3D printers to refuse gun schematics, much like Photoshop does with U.S. currency.  More interesting, however, are the variety of other issues which may arise with 3D printing.

Which can you think of?

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November 17th, 2011 at 9:54 pm

Are the FCC’s Indecency Regulations Constitutional?

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Five nonprofit groups recently filed an amicus brief (PDF) in FCC v. Fox urging the Supreme Court to strike down the FCC’s policy of fining broadcast television stations for airing indecent content. The groups argue that the FCC’s policy violates the First Amendment’s free speech protections.

During two Fox broadcasts of the Billboard Music Awards in 2002 and 2003, presenters used fleeting expletives. Following the broadcasts, the FCC prohibited “single uses of vulgar words” and issued notices of liability to Fox. Prior to this broadcast, the FCC had taken the position that fleeting and isolated expletives did not violate its indecency policy.

In 2009, the Supreme Court ruled that the FCC’s rule change was not arbitrary or capricious, but sent the case back to a lower court to decide the policy’s constitutionality.

In 2010, the Second Circuit held that the FCC’s indecency policy was impermissibly vague in violation of free speech. The Second Circuit reasoned that the First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague. The FCC’s guidelines, however, were unclear, depended too much on context, and therefore promoted wide self-censorship by networks.

Although the Second Circuit overturned the FCC’s policy, it refused to reach a critical issue—whether the FCC may place greater restrictions on broadcast radio and television than on other forms of media. This distinction was first articulated in Pacifica.

In Pacifica, decided in 1978, the Supreme Court noted that radio and television broadcasts occupy a “uniquely pervasive presence in the lives of all Americans.” The court held that broadcast media is so pervasive and accessible to children that restrictions against it will be subject to less scrutiny.

Over the summer, the Supreme Court agreed to rehear F.C.C. v. Fox to decide whether the FCC’s indecency-enforcement regime is constitutional.

The recently-filed amicus brief argues that the Supreme Court should reverse its 1978 Pacifica decision. When Pacifica was decided, neither the internet nor cable television were widely available. Today, cable television and the internet are almost as pervasive as broadcast television. As the Second Circuit noted, “we face a media landscape that would have been almost unrecognizable in 1978.” Over three-quarters of Americans use the internet and 87% of households subscribe to cable or satellite. Broadcast television should receive the same First Amendment protections as newspapers, cable television, and the Internet.

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November 17th, 2011 at 6:50 pm

FTC and Facebook Close to Privacy Settlement

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The Wall Street Journal, which first reported  the impending settlement, is reporting that Facebook and the Federal Trade Commission are close to a settlement over alleged deceptive practices with respect to several Facebook features, including its privacy settings.  Under the settlement agreement, Facebook will be required to make all future privacy changes “opt-in,” requiring Facebook to obtain its users’ express consent before making information that’s already on the site available to a wider audience than previously intended.  The settlement wont explicitly dictate how Facebook must obtain user consent for new features in the future, but it will require Facebook to agree to independent privacy audits for the next 20 years.

This settlement is by no means unprecedented territory.  In March 2011, the FTC imposed similar conditions in a settlement with Google over Google’s rollout of its “Buzz” Social Network.  In June 2010, the FTC also imposed similar conditions for privacy issues on Twitter.  Jeff Chester, executive director of the Center for Digital Democracy, says that this is all part of a balancing act Facebook must do in order to settle the privacy complaints before its IPO.  The people briefed on the settlement, who spoke on condition of anonymity because the FTC commissioners have not yet approved the settlement, said that although a settlement is close, it was unclear how long it would take to complete the deal.

Despite Facebook’s popularity, with more than 800 million active users, the company’s privacy woes go back several years.  The settlement addresses issues raised in several complaints the FTC has received, including from groups like the Electronic Privacy Information Center (EPIC) and Electronic Frontier Foundation (EFF).  The settlement also focuses directly on privacy changes that Facebook made in December of 2009.  In December, critics argued that Facebook, under the guise of simplifying privacy settings and increasing awareness of Facebook’s privacy setting controls, exposed information that could previously be made private by its users, including profile photos, gender, friend lists and current city. Facebook also removed the ability to opt out of some features.  The problem that many users and privacy advocates had with Facebook’s changes was the fact that some of Facebook’s recommended changes urged users “to share everything with everyone—pretty much the polar opposite of what most people would want to do.”  After the public outcry prompted by the company’s December 2009 privacy changes, Facebook in May 2010 decided to limit the amount of information users were required to make public, and restored the ability to opt out of certain tools.

There are some that argue that privacy and social networks are inherently incompatible, that social networks are designed to share information with others.  So before you post that comment about how much you hate your job or how obnoxious your boss is, perhaps you should think about who that message might be shared with.  And then there are others who argue that the settlement, although a step forward for the privacy rights of Facebook’s users, does not do enough to secure the long term privacy rights of the company’s users.  As for Mark Zuckerberg, the Facebook co-creator and CEO is banking on society’s propensity to willingly share information online about every aspect of our lives.  In fact, during Zuckerberg’s 2011 keynote speech at Facebook’s yearly conference, F8, Zuckerberg introduced several new features planned for Facebook, such as Timeline, meant to facilitate the exponential expansion of shared information.  One user, in response to the new features, tweeted the following message to the tune of “Every Breath You Take” from the Police:  “Every single day Every word you say Every game you play Every night you stay I’ll be watching you.”

So, where do you stand?

Supreme Court Hears Argument on Police Use of GPS Technology

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The Supreme Court heard oral arguments on Tuesday in U.S. v. Jones, where the Court considered whether tracking a vehicle on public streets with an affixed GPS device and without a warrant violates the vehicle owner’s Fourth Amendment rights. This question has received considerable academic attention, and a very thorough legal analysis of the briefing is offered by Orin Kerr on SCOTUSblog.

A fascinating part of Tuesday’s arguments was how the Justices seemed less interested in precedent and more interested in the capacity for technology like GPS to allow law enforcement to erase the distinction between the public and the private. Chief Justice Roberts first signaled the Court’s mood when he questioned whether the 1983 Supreme Court case U.S. v. Knotts is still good precedent in light of changes in technology. That case held that police tracking with a beeper inside of a portable container is not a Fourth Amendment violation. Justice Roberts noted that “the technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.” Although it is a settled proposition that surveillance via police car on public roads is acceptable, the Justices seemed to find the ability to track a car’s every movement with very little effort disturbing, with Chief Justice Roberts commenting that GPS tracking is “dramatically different” than traditional surveillance. Justice Alito shared a similar concern, specifically that computers have decreased the expectation of privacy that comes with limited police resources. And Justice Breyer captured the worries of the Court in musing that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States . . . what happened in the past is memories are fallible, computers aren’t . . . so, if you win, you suddenly produce what sounds like 1984.” Orin Kerr on The Volokh Conspiracy summarized the Court’s feeling succintly: “the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984.” Yet from the questioning, it is unclear how the case will come out, with the Court seemingly unsatisfied after oral arguments that a constitutional rule to quell their Orwellian fears had been identified.

The Court also considered whether legal limits on utilizing new technology by law enforcement should come from the courts or from legislatures. It seems that regulating the use of new technology is distinctly amenable to legislative action, with legislatures able to quickly respond to ever-changing technology. However, in a world where privacy is increasingly devalued (as evidenced by the popularity of geo-tagging and “checking-in” on social media sites), it is by no means certain that the political will exists to meaningfully protect privacy. Whether the Fourth Amendment provides this protection is a question the Supreme Court will answer next year.

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November 13th, 2011 at 8:24 pm

New study finds parents ignore age-restrictions on social media sites

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Most everyone you know has an account with social media sites such as Facebook. This includes your friends, your employer, the people sitting near you at Starbucks, and, even, your 10-year-old cousin. But unlike the rest, your cousin isn’t supposed to, according to Facebook’s Terms of Service.

In response to the Children’s Online Privacy Protection Act (COPPA), enacted in 1998, many companies with online services, particularly social media, have denied access to their site to individuals under the age of 13. This approach allows companies to avoid COPPA limitations on data that can be collected on children under 13 without parental consent. COPPA and other similar children’s privacy laws were passed to protect the privacy of children online, to guard against online predators, and to aid parents in maintaining control over their children’s online exposure. However, a new study published last week in the online journal First Monday found that parents often sacrifice the protections provided by COPPA and, in fact, often help their children lie about their age to gain access to sites such as Facebook.

The study authors asked 1,007 parents with at least one child between the ages of 10 and 14 to answer a series of questions about whether their children have a Facebook account, at what age the account was created and whether with parental help. Participants were also asked about their knowledge of the age minimum and their motivations for allowing their children to join the site even if underage. It was found that for those children who were underage, a large percentage still had a Facebook account (19% of ten year olds; 32% of eleven year olds; and 55% of twelve year olds). The data also found that many parents were unaware of either the age restriction at all, what was the cutoff age, or that the restriction was a requirement and not a recommendation. Seventy-eight percent of parents also believed that there are situations where they would let their children join a social media account despite being under that age requirement. In addition to asking about their children’s online activity, parents were also questioned about their attitudes on government regulation. Ninety-three percent of parents answered that parents should have the final say about whether or not a child should have access to use web sites.

The authors concluded that parents understood the age restriction on Facebook as a maturity restriction, similar to requirements for drinking age or movie ratings. Although the drinking age is also a legal requirement, its enforcement can be lax and is often ignored. Furthermore, parents did not want to have to make the choice between protection and access, a choice that was forced upon them by companies’ responses to COPPA. Therefore, even though COPPA was meant to aid parents in controlling their children’s online activities and exposure, it was ineffectual in that goal and either shut children offline altogether or exposed them online without restrictions.

The question is, can COPPA be reformed in a manner that would allow greater parental control without altering social media sites to a point of non-recognition? Can social media survive as a profitable enterprise if companies are restricted from advertising to a portion of its users? It will be something to watch in the future as parents try to regain control over the vast online community that has become such a integral part of our daily lives.

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November 7th, 2011 at 1:39 pm

Supreme Court Will Not Review Public School’s Punishment for Student’s Off-Campus Blog Post

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On Monday, October 31, 2011, the Supreme Court denied the first of three petitions this Term – Doninger v. Niehoff, et al (11-113) – requesting the court to rule on the whether public school officials may discipline students for online comments or postings made on their personal computers, off school grounds. The other two petitions (Kowalski v. Berkeley County Schools (11-461) and Blue Mountain School District v. J.S. (11-502)) come from the 3rd Circuit, and conflict with this 2nd Circuit decision. While the 2nd Circuit permitted the school officials’ regulatory action, the 3rd Circuit held that the school officials exceeded their authority in disciplining students for off-campus speech. Read this for more on the circuit split.

The Second Circuit, in 2008, refused to enforce a preliminary injunction against the public high school’s principal and superintendent of the district for disciplinary actions taken against Avery Doninger, affirming the district court’s finding that Doninger had failed to show a sufficient likelihood of success on the merits. Doninger v. Niehoff, 527 F. 3d 41 (2d Cir. 2008).

Avery Doninger’s First Amendment fight began in 2007. She was the Junior Class Secretary at Lewis S. Mills High School in Burlington, Connecticut and, as a member of the Student Council, was heavily involved in the planning of an event called “Jamfest,” an annual “battle-of-the-bands” concert. However, due to a number of scheduling conflicts, the Student Council members feared they would not be able to hold the event that year. Avery and three of her fellow Council members took action by meeting at the school’s computer lab and sending a mass-email, requesting that recipients contact Paula Schwartz, the district superintendent, to “urge that Jamfest be held as scheduled, as well as to forward the email ‘to as many people as you can.’”

Both Schwartz and Karissa Niehoff, the school’s principal, received an influx of calls and emails from concerned parents.

Later that night, Avery was evidently still upset about the Jamfest fiasco, and resorted to posting a message on her publicly accessible blog (unaffiliated with LMHS). The now-infamous blog post began:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appreciate it. however, she got pissed off and decided to just cancel the whole thing all together.

The post continued:

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.-

Avery testified that by writing “im down,” she “meant that she approved of the idea of others contacting Schwartz to ‘piss her off more.’” Eventually, even though the Student Council and administration were able to work together to reschedule Jamfest, when it came time for class elections, Niehoff presented Avery with a printed copy of her blog post and effectively prohibited Avery from running for Senior Class Secretary. Niehoff explained her decision was based on:

(1) Avery’s failure to accept her counsel “regarding the proper means of expressing disagreement with the administration policy and seeking to resolve those disagreements”;

(2) the vulgar language and inaccurate information included in the post; and

(3) its encouragement of others to contact the central office “to piss [Schwartz] off more,” which Niehoff did not consider appropriate behavior for a class officer.

Avery’s name was not allowed to appear on the ballot, and she was not allowed to give a campaign speech. Despite that, Avery still won the election as a write-in candidate. She was not allowed to take office, however, and the second-place candidate became Senior Class Secretary.

Avery’s mother, Lauren Doninger, filed a complaint in state court alleging, among other things, a violation of her daughter’s First Amendment rights. After Schwartz and Niehoff removed the action to the District Court of Connecticut, Doninger filed a motion for a preliminary injunction, requesting that school officials hold new class secretary elections. The district court refused to grant the preliminary injunction. On appeal, the Second Circuit analyzed whether conduct, which occurs off of school grounds, may be regulated by a public school.

Though the Second Circuit acknowledged (and perhaps urged) that the Supreme Court “has yet to speak on the scope of a school’s authority to regulate expression that, like Avery’s, does not occur on school grounds or at a school-sponsored event,” the court went on to elaborate on its own standard for such conduct.

The Supreme Court has held that, although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506-13 (1969). The Second Circuit applied the Tinker standard to off-campus conduct, when an eighth grader created a crude icon that “depict[ed] and call[ed] for the killing of his teacher” and transmitted that icon to some fifteen friends. Wisniewski v. Board of Education, 494 F. 3d 34, 40 (2d Cir. 2007). In Wisniewski, the Second Circuit established that off-campus conduct is regulable, “when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus.”

Applying this standard to Avery’s blog post, the Second Circuit held that the “record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school property.” Further, the “record also supports the conclusion that Avery’s posting ‘foreseeably create[d] a risk of substantial disruption within the school environment.’”

In spite of the Second Circuit’s invitation to the Supreme Court to speak to this issue of off-campus conduct, the Supreme Court denied cert. There is some speculation that the High Court is more likely to hear Blue Mountain School District v. J.S. (11-502).

Although the discipline taken against Avery seems a bit extreme in this case, perhaps the precedent set – permitting schools to regulate off-campus conduct – is a good thing, in light of recent Internet bullying tragedies that, in extreme incidents, have led to suicide.

The BART Cell Phone Shutdown: Are Mobile Phones A Necessary Part of Free Speech?

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Back in August, the Bay Area Rapid Transit (BART) garnered national attention when it shut down cell phone service to limit a political protest over the shooting death of a homeless man by BART police. BART released a statement the following day stating that “a civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions.” It stated that the service was purposefully interrupted after reports from protest organizers that they would use mobile phones to coordinate their protest and communicate about BART police.

BART justified its actions by stating that cell phone service was available outside of every station, and courtesy phones were available for customers requiring assistance. Despite protests to the contrary, BART insisted that it was still accommodating demonstrations under the First Amendment, and that its actions fell in line with previous restrictions of demonstrators to certain areas of the stations.

The resulting public outcry was so great, with comparisons made to similar actions in the UK, Egypt, and, perhaps most ominously, Iran, that BART officials have since backed down and recently released their proposed new cell phone policy. The new policy recognizes the importance of mobile service to passengers, and states that “[it] should be interrupted only in the most extraordinary circumstances that threaten the safety of District passengers, employees, and other members of the public,” and that BART will impose temporary service interruptions when there is strong evidence of imminent unlawful activity. In a troubling move, however, BART defines extraordinary circumstances to include instances in which there are attempts to “substantially disrupt public transit services,” which sounds eerily similar to its justification for its earlier actions. After pressure from the Electronic Frontier Foundation (EFF), the general manager of BART explicitly stated that the new policy would not authorize a cell phone shutdown for scenarios similar to the August protest.

The BART protest may have marked the first time in the United States where government shut off a communication system to stop a perceived threat. However, events like these emphasize the increased importance of determining whether the government has the right to limit access to mobile service in public stations, and whether limiting such access violates free speech. It’s important to note that no entity, whether a coffee shop, transit system, or hotel, is required to offer wireless access. But once such access is granted, does it become a right? Groups like the ACLU and the EFF argue that wireless services are a necessary part of free speech, and the FCC is now evaluating BART’s actions to see whether it violated federal telecommunications rules. Even if the FCC finds that BART did not, the California Supreme Court previously held that a city cannot prohibit nondisruptive political activity inside of a railroad station. With wireless access becoming commonplace in public places, expect to see this issue pop up again in the future.

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November 3rd, 2011 at 10:07 pm