by Lauren Gelman, posted on October 19, 2004 - 4:13pm
Plaintiffs, Wolf and Buckingham, officers of Integrated Capital Associates, Inc (ICA), were embroiled in commercial litigation in New York against defendants, Farey-Jones. During the discovery process, defendants and its attorney (Iryna Kwasny) subpoenaed ICA’S ISP, NetGate for “all copies of e-mails sent or received by anyone at the company”, without limitation as to time or subject matter, and as a result they were given access to339 of ICA’s e-mails, most of them unrelated to the litigation and many privileged and personal. In a separate action, the Court found that the subpoena was massively overbroad and unlawful and that defendants acted in bad faith and showed gross negligence in the crafting of the subpoena. The Court granted motion to squash the subpoena and “socked” defendants with over $9000 in sanctions to cover Wolf and Buckingham’s legal fees. Defendants did not appeal that award.
Video Game Maker Shuts Down Third-Party Server Program
by Lauren Gelman, posted on October 19, 2004 - 4:10pm
Blizzard Entertainment, maker of the popular computer games
Diablo, WarCraft, and StarCraft, won its case in the Eastern District of Missouri against three programmers who had developed an alternative implementation of its online multiplayer server software. The defendants reverse engineered the network protocol Blizzard games use to communicate with Battle.net. From the messages sent between the game and server program, the defendants created a server program called bnetd that mimicked Battle.net's operation, enabling users of Blizzard games to play each other over the Internet without using Blizzard's proprietary online multiplayer service.
Federal Court Holds Section of Patriot Act Unconstitutional
by Lauren Gelman, posted on October 19, 2004 - 4:06pm
An Internet Service Provider (“ISP”) received a national security letter (“NSL”) from the FBI pursuant to 18 U.S.C. §2709. This statute was originally enacted as part of Title II of the Electronic Communications Privacy Act of 1986 (“ECPA”) and was most recently by the USA Patriot Act of 2001. Section §2709 allows the FBI to issue a NSL that requires communications firms to produce subscriber information to an associate director of the FBI. The firm that receives the NSL is not allowed to disclose the receipt of the NSL to any other person. The ISP that received this NSL, with the ACLU, filed a complaint alleging that section 2709 is unconstitutional under the First, Fourth, and Fifth Amendments to the U.S. Constitution. The Plaintiffs argued that the statuteviolated the Fourth Amendment because it allowed the FBI access to private information of subscriber records without any judicial checks or balances and the non-disclosure section in the statute violated the First Amendment. The District Court granted summary judgment in favor of the plaintiffs agreeing the Fourth Amendment was violated because the statute “bars or substantially deters any judicial challenge” (2004 WL 2185571, 1 (S.D.N.Y.)) and the First Amendment was violated because the non-disclosure clause is an indefinite restriction of speech.
Minnesota Statute Regulating Wireless Contracts Reviewed by U.S. District Court
by Lauren Gelman, posted on October 19, 2004 - 4:01pm
The U.S. District Court in Minnesota considered whether a Minnesota statute that regulates customer notification of and agreement to changes to wireless telecommunication service contracts violates 47 U.S.C. Sec. 332(c)(3)(A), a Federal statute that prohibits states from regulating wireless rates. According to the Minnesota statute, if a wireless company would like to make a substantive change to the customer’s contract for wireless services, it must notify the customer 60 days before the modification is to take effect and obtain permission from the customer. If the customer is not notified or does not agree with the changes, the original contract terms will apply. Increases in taxes and government fees that are passed along to consumers are not considered “substantive” changes. A group of wireless companies sought an injunction against the Minnesota statute, arguing that it is a form of state rate regulation prohibited by 47 U.S.C. Sec. 332(c)(3)(A). The court first considered whether the injunction would succeed on the merits. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F. 2d 109, 113 (1981).
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Court Overturns “Internet Exception” in FEC Regulations
by Lauren Gelman, posted on October 19, 2004 - 3:59pm
Representatives Christopher Shays (R-Conn.) and Marty Meehan (D-Mass) filed suit against the Federal Elections Commission (FEC), challenging the regulations developed pursuant to the mandate of the Bipartisan Campaign Reform Act (BPCA) of 2002, an act intended to limit the use of “soft money” in political campaigns.The BCRA expanded the criteria used to determine whether political communication is “coordinated” with a political campaign, allowing “content-based” as well as “conduct-based” factors to be considered. Such “coordinated” political communication is treated as a de facto financial contribution to that political campaign, and thereby subject to relevant campaign finance rules.
Eleventh Circuit Dismisses ADA Suit Against Southwest Airlines for Its Website’s Inaccessibility to the Visually Impaired
by Lauren Gelman, posted on October 19, 2004 - 3:56pm
Access Now, Inc., a non-profit organization, and Robert Gumson, a visually impaired individual, appealed a federal district court’s dismissal of their claim against Southwest Airlines Company (“Southwest”) under Title III of the Americans with Disabilities Act (“ADA”). The case centers on the accessibility of Southwest’s website, Southwest.com, to visually impaired individuals who use the Internet through a software program called a “screen reader.” The “screen reader” converts graphics and textual information on the monitor into speech that an electronically synthesized voice reads out through computer speakers. Southwest.com’s use of unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a “skip navigation link” make it impossible for visually impaired individuals to access the services and features of Southwest.com.The district court dismissed with prejudice, finding that Southwest.com is not a place of public accommodation and therefore not covered under Title III. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp.2d 1312, 1322 (S.D. Fla. 2002). The district court held that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure.” Id. at 1318. All of the counts in the complaint focused entirely on the inaccessibility of the website as a place of public accommodations and made no connection between Southwest.com and any physical location.
First Circuit to rehear en banc appeals court decision that interception of electronic communication does not violate the Wireta
by Lauren Gelman, posted on October 19, 2004 - 3:54pm
Interloc, runs an online rare and out-of-print book listing service, and as part of its services provides certain book dealer customers with an electronic mail address. In its ordinary course, an e-mail message (“e-mail”) is transferred from one computer to another before it reaches the addressee. During the transmission route, an e-mail is handed to a Message Transfer Agent (MTA), which stores the message locally. The message is routed through the network from one MTA to another until it reaches the recipient’s mail server, which accepts it and stores it in a location accessible to the recipient, at which point the final delivery is deemed to be completed. The final delivery process places the message into storage in a message store area. Usually a separate Mail Delivery Agent (“MDA”) is required to retrieve the e-mail from the MTA in order to make final delivery. Interloc used a program known as “procmail” as its MDA, which operates by scanning and sorting out e-mail and an MTA computer program known as “sendmail”. Interlock employees were directed by the defendant to edit their version of procmail to intercept and copy all incoming communications from one of their competitors - Amazon.com. As a result, all incoming messages from Amazon.com were intercepted, copied and stored before they were delivered to the members’ e-mail. Each time the operation was performed, the messages existed in the RAM or on hard disks or both within Interloc’s computer systems. The issue before the 1st Circuit was whether there was an ‘intercept’ of a communication within the meaning of the Wiretap Act. The Electronic Communications Privacy Act (“ECPA”) is divided into Title I, referred to as the “Wiretap Act”, 18 U.S.C. §§ 2510 – 2522 and Title II, commonly known as the “Stored Communications Act”, 18 U.S.C. §§ 2701 - 2711.
by Lauren Gelman, posted on October 19, 2004 - 3:48pm
La Ligue Contre Le Racisme et L’Antisemitisme (LICRA) et al. brought suit against Yahoo! in France, resulting in a French court ruling that Yahoo! must block access to Nazi-related materials of any French user accessing its main website in the United States. Though the levying of damages is through a separate proceeding in France, the French court indicated that Yahoo! would potentially be required to pay fines upwards of $13,000 per day of noncompliance. Yahoo! did not fully comply with the French court order for First Amendment reasons, as it is technologically unable to block access of these materials to users with French Internet Protocol (IP) addresses while at the same time allowing Americans access. To protect itself against potentially large accruing fines, Yahoo! filed for declaratory judgment on the claim that First Amendment rights prevent enforcement of the French court order in the United States. The District Court for the Northern District of California denied LICRA’s motion to dismiss for lack of personal jurisdiction, and granted Yahoo! summary judgment. On August 23, 2004, the Ninth Circuit overruled the judgment for Yahoo!. The appellant, LICRA, appealed on three grounds: (1) declaratory judgment was not appropriate as the case was not ripe; (2) the District Court’s assertion of specific jurisdiction was invalid; (3) the District Court should have abstained from considering the case.The Ninth Circuit ruled in favor of appellant on the specific jurisdiction issue without addressing the other two issues. Yahoo! acknowledged that there was no basis for general jurisdiction due to a lack of systematic and continuous contact with California. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984). The Court applied its own three-pronged test for specific jurisdiction: (1) the purposeful availment of the privilege and benefits of conducting activities in the forum state; (2) the claim arises out of or relates to these activities; (3) the exercise of jurisdiction by a court is reasonable. Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). The issue to the Court was whether appellants met the purposeful availment prong by expressly aiming their conduct at California, as described in Calder v. Jones, 465 U.S. 783 (1984). Only if this prong is met would the other two prongs of the test need consideration.