Vol. 3, No. 2

Second Circuit Rules that Government Cannot Obtain Real-Time Cell Site Information Without Showing Probable Cause
by Lauren Gelman, posted on November 9, 2005 - 3:40pm

Upon the Government’s Motion for Reconsideration of the court’s earlier order on the subject, Judge Orenstein of the Eastern District of New York again denied the government permission to obtain real-time cell site information as part of an ongoing criminal investigation without first showing probable cause. Cell site data is information which is used by the service provider to locate and identify the phone for communication purposes. This information is entirely distinct from voice communication transmission, and is broadcast automatically every seven seconds on a separate channel whether or not the user makes or receives a call. Using this information, the government would be able to make a rough estimate of a person’s location or, if it had access to multiple cell sites simultaneously, to fix a person’s location exactly by triangulation. The government sought access to the cell site information through the “Stored Communications Act” (SCA) 18 U.S.C. § 2703, which requires a lower standard for authorization than probable cause: namely a showing of “specific and articulable facts” to demonstrate that the data will be “relevant and material to an ongoing criminal investigation.” Drawing heavily on a recent decision in a similar case in Texas, In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 2005 WL 2656621 (S.D. Tex. Oct. 14, 2005) (“Cell Site”), the court presented three main arguments for why the SCA did not authorize the government’s request in this case.First, the court relied on Cell Site’s analysis of the distinctions between the SCA and other surveillance laws under the Electronic Communications Privacy Act (ECPA). As the court demonstrated, the SCA is different from other titles of the ECPA because it relates to records in storage, is inherently retrospective, makes no provisions for sealing court records, and does not provide for periodic reporting. The Cell Site court argued that Congress would have incorporated these features into the SCA if it had intended its authority to apply to the prospective gathering of information.

California’s Financial Information Privacy Act Preempted by Federal Law
by Lauren Gelman, posted on November 9, 2005 - 3:38pm

Through the Financial Information Privacy Act (“SB1”), the California Legislature was seeking to offer the citizens of California more stringent privacy protections than those afforded under federal law (namely the Fair Credit Reporting Act (“FCRA”), as amended by the Fair and Accurate Credit Transactions Act of 2003, Title V of the Gramm Leach Bliley Act) (see 15 U.S.C. § 1681 et seq.).The American Bankers Association sued the Attorney General of California and other California state officials to challenge SB1’s affiliate sharing provisions on the ground that they are preempted by federal law. The District Court granted their motion for summary judgment. On appeal, the Ninth Circuit held that SB1’s affiliate sharing provision was preempted, but only to the extent that it applies to information covered by the FCRA (i.e. information shared between affiliates concerning consumers’ “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living that is used, expected to be used, or collected for the purpose of establishing eligibility for credit or insurance, employment, or other authorized purposes.”) (see Am. Bankers Ass'n v. Gould, 412 F.3d 1081, 1087).

First Amendment Prevents Enforcement of French Judgment Against US Website
by Lauren Gelman, posted on November 9, 2005 - 3:36pm

Sarl Louis Feraud International and S.A. Pierre Balmain, French corporations that design and market high-fashion clothing, sought to enforce a default judgement issued by the Tribunal de Grande Instance de Paris against Viewfinder Inc., an American company that maintains websites on which it posts photographs from fashion shows and other information about fashion events, for copyright infringement. In May 2001 the French court awarded damages to plaintiffs, along with a coercive fine (“astreinte”) of 50,000 francs per day for each day that Viewfinder failed to comply with the judgment. Plaintiffs brought this action seeking to enforce the French ruling.The first issue the Court considered was the finality of the French judgment and whether the astreinte needed to be reduced to a fixed amount to be enforceable. The Court held that it was final, but that the issue of prospective relief had no bearing on that of compensation for past violations and it would only consider the merits of the damages award at this time.

Packets Archive: Packets, Vol. 3, No. 2
elf-Published Authors' Effort to Squelch Criticism on Amazon.com Dismissed
by Lauren Gelman, posted on November 9, 2005 - 3:31pm

Pro se plaintiff Jeffrey Hammer brought an action in the United States District Court for the Eastern District of New York against defendant Amazon.com (“Amazon”). Non-party Anthony Trendl (“Trendl”) posted negative reviews of plaintiff’s books on Amazon’s website, Amazon.com, and plaintiff wanted them removed from Amazon’s website. After Trendl was sued by plaintiff, Amazon.com provided Trendl with counsel. Moreover, after numerous complaints from plaintiff about Trendl’s reviews, Amazon removed plaintiff’s books from its website under the terms of the contract with plaintiff. After these actions, plaintiff sued Amazon, alleging myriad of claims, from defamation to conversion. The Court dismissed all of plaintiff’s claims with prejudice and enjoined plaintiff from initiating any future actions in federal court regarding reviews of his books posted on Amazon or Amazon’s refusal to do business with him.Among notable claims were those for defamation, and violation of copyright law and the first amendment. The defamation claims were dismissed because they were predicated only on opinion. The court reasoned that the “average person understands that such reviews are the reviewer’s interpretation and not ‘objectively verifiable’ false statements of fact.” Additionally, the copyright claims were dismissed because there was no allegation that anyone copied plaintiff’s work. The Court noted that Amazon’s use of the cover art of plaintiff’s books was authorized in the contract to sell the books. Moreover, the first amendment claims were dismissed because the first amendment does not regulate the conduct of private parties; absent a “state actor,” there was no first amendment violation.

Third Circuit Adopts Two-Step Test in Nominative Fair Use Cases
by Lauren Gelman, posted on November 9, 2005 - 3:29pm

Defendant LendingTree, Inc. (“LendingTree”) operates a web-based real estate referral service whereby consumers can input their location and receive information about real estate brokers in their community. LendingTree’s referral network consists of more than 2,500 real estate offices operated by approximately 650 broker member companies, about 40 percent of which operate a Century 21, Coldwell Banker or ERA franchise. In January 2003, counsel for these three companies (the plaintiffs) sent a letter to LendingTree demanding that it stop using their trademarks on its website. LendingTree then modified its website, but the plaintiffs were not satisfied with the changes and sued for trademark infringement. The companies alleged that LendingTree violated their trademarks by including on its website such items as a Coldwell Banker for-sale sign that was partially obscured by the word “sold,” and a statement that LendingTree gives consumers “access to a national network of brokers representing the country’s leading real estate companies, including Coldwell Banker, ERA and Century 21.”Despite additional changes to defendant’s website, the district court rejected LendingTree’s nominative fair use defense and entered a preliminary injunction prohibiting LendingTree from certain uses of the plaintiffs’ trademarks. On appeal, the Third Circuit created a new burden-shifting two-step approach to nominative fair use cases: first, the plaintiff must prove that the defendant’s use of its trademark creates a likelihood of confusion, and then the defendant bears the burden of showing the affirmative defense of fair use, based upon a three-prong test.

Georgia Voting Photo Id Requirement Found to be an Undue Burden and a Poll Tax
by Lauren Gelman, posted on November 9, 2005 - 3:27pm

The U.S. District Court for the Northern District of Georgia granted a preliminary injunction to prevent Georgia election officials from enforcing a new law requiring in-person voters to present a government issued photo id or passport (“Photo ID requirement”). The Georgia legislature had passed the Photo ID requirement in 2005 as an amendment to a law which had previously allowed eight other forms of identification such as birth certificate, social security card, a copy of a current utility bill, or a payroll check. Although the amendment claimed to reduce opportunities for voter fraud, it did not address the more common problems of fraudulent voter registration and absentee voting. In fact, the bill loosened restrictions on absentee voting. Plaintiffs Clara Williams, Common Cause/Georgia, League of Women Voters of Georgia, and several other groups devoted to voters’ rights brought suit against the Secretary of State of Georgia and the Superintendents of Elections for the Board of Elections for Georgia counties claiming that the Photo ID requirement imposed an undue burden on the right to vote in violation of the First and Fourteenth Amendments, constituted a poll tax in violation of the Twenty-Fourth Amendment, violated the Georgia Constitution, and violated the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The court applied the standard four part test for preliminary injunction and found that the Plaintiffs had a substantial likelihood of success on the merits of the first two claims, that the disenfranchisement likely to result from the Photo ID requirement would be irreparable harm, that the fundamental right to vote was so important as to outweigh the burden on the state, and that protecting the right to vote was in the public interest.Substantial Likelihood of Success on the Merits:

Tenth Circuit relies on website disclaimer to dispel inference that it operated in forum
by Lauren Gelman, posted on November 9, 2005 - 3:25pm

In an unpublished opinion on personal jurisdiction, the 10th Circuit Court of Appeals rejected plaintiff Angela Tomlinson’s claim that defendant H&R Block, at least in part through its website, had maintained the necessary “continuous and systematic contact” with the state of Oklahoma to confer personal jurisdiction under the state’s long arm statute. Tomlinson filed a class action lawsuit against H&R block for failing to protect personal information according to the company’s published privacy policy. She claimed that H&R Block used her social security number in educational seminars and tax preparation training courses in their “2002 Student Work book.” The district court granted H&R Block a motion to dismiss for lack of personal jurisdiction and Tomlinson appealed.H&R Block claimed that they were solely a holding company and did not conduct business or maintain a physical presence in Oklahoma. They argued that Oklahoma courts had no general or specific jurisdiction over them because the company had neither substantial, systematic and continuous contacts, nor minimum contacts with the state.

Ninth Circuit affirms ruling allowing “box-wrap” licensing to restrict consumers’ ability to refill print cartridges

by Lauren Gelman, posted on November 9, 2005 - 3:15pm

ACRA sued Lexmark alleging violations of California Business and Professions Code §17500 (unlawful to disseminate untrue or misleading statements) and §17200 (prohibiting unfair business practices). Section 17500 allows causes of action without proof of actual deception and requires only proof that consumers are likely to be misled. A false advertising violation of §17500 gives rise to a §17200 unfair business practices violation. ARCA claimed that Lexmark violated these statutes by falsely advertising to consumers that purchasers of Lexmark Prebate printer cartridges had a legal obligation to honor the terms of the Prebate program. ARCA alleged further false advertising in Lexmark’s claim that Prebate cartridges were cheaper than normal cartridges; ARCA claimed that Lexmark could not guarantee prices set by wholesalers selling the Prebate cartridges to consumers. ARCA’s final allegation of unfair business practices was Lexmark’s use of a lock-out chip to prevent other companies from remanufacturing Lexmark’s printer cartridges.The district court granted summary judgment to Lexmark. The district court concluded that Lexmark created an enforceable agreement regarding post-sale usage of its cartridges and that its advertising program was not deceptively false. The court also found that ARCA did not establish that the lock-out chip was an unfair business practice. The Ninth affirmed.