Trademarks – Decision Entered in Geico v. Google dispute

The U.S. District Court for the Eastern District of Virginia, held that Google’s sale of the trademark “Geico” as a search term does not broadly violate Geico’s trademark interest. However, Google’s use of the trademark “Geico” in the sponsored ads (i.e. “get rates cheaper than Geico by clicking here”) does. While its difficult to extrapolate the meaning of this decision beyond the search engine sector, it does provide some breaching room to other Internet companies who face frequent claims of third party trademark infringement based on content that they either transmit or host.

SPAM – CAN-SPAM does not Pre-empt Private SPAM Policies / “Server Load” Arguments Questioned

In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit held that the University of Texas’ SPAM policy was not pre-empted by CAN-SPAM. CAN-SPAM specifically allows ISPs to create SPAM policies that are more restrictive than those set out in CAN-SPAM – but pre-empts certain state laws that attempt to do so. An important factor in the decision was the finding that UT was an Internet Access Provider allowing it to create SPAM policies that are more restrictive than CAN-SPAM. This finding is important since a number of Internet Access Providers may be functioning as state or local utilities, or providing services on their behalf, and may have SPAM policies that are different than those set out in CAN-SPAM.

The court also determined that UT’s SPAM policy was not undue state regulation of commercial speech, which would violate the First Amendment. In making this determination, the Court spent a significant amount of time questioning UT’s argument that SPAM created technical and economic problems by burdening UT servers. The Court stated that this specific argument is often made in technology litigation, and very rarely questioned by courts, or supported by evidence. It noted that methods exist to minimize the effect SPAM has on server load, and that this type of argument may, in the future, be unpersuasive. I expect to see this statement cited more and more often in court decisions as courts become increasingly familiar with technology matters, and less inclined to accept blanket assertions that acts, such as SPAM, should be banned simply because they increase server load.

5th Circuit Decision

Subpoenas – Subscriber Has No Expectation of Privacy in Data Submitted to ISP

AOL was sued by a subscriber for erroneously supplying personal information to the police without a subpoena or warrant. The personal information disclosed included the subscriber’s name, address, phone numbers, and screen name. He claimed that AOL had a duty to determine whether the law enforcement request was valid, and if not, he had a reasonable expectation that his personal information would remain private. A Federal court held that (a) the information was given by the subscriber to AOL voluntarily so their was no reasonable expectation of privacy; (b) AOL’s Terms of Service allowed AOL to disclose this information in cases, such as this, where it was informed that a threat of physical violence had been made; and (c) the Electronic Communications Privacy Act allows this information to be disclosed by electronic communications providers if there is a threat of physical violence. This case provides some breathing room for Internet businesses who often face requests from law enforcement for personal information, since some prior cases had held these companies liable for erroneously disclosing their customer’s personal information. Case: Freedman v. America Online

Content – U.S. Will Respect WTO Gambling Ruling

The WTO ruled that U.S. restrictions on on-line gaming violated its trade obligations to the island nation of Antigua and Barbuda. The U.S. appealed this ruling. While the initial ruling was technically reversed, the holding – that U.S. laws restricting gambling are covered by its WTO obligations – was upheld. The key issue, for Internet businesses, will be whether the Federal government will modify its long held position that anti-gambling laws prohibit even “doing business” with gambling sites. This position has led to decisions by businesses like Google to stop accepting paid advertising from foreign based gaming sites. Some clarification on this issue should be expected soon.

AFP Article

WTO Appellate Decision

Regulation – FCC Requires VOIP Providers to Comply with CALEA

The FCC recently released a regulation requiring pure VOIP providers, such as Vonage, to meet the technical wiretapping standards set out in CALEA. CALEA, long a staple of telecom compliance efforts, sets out very detailed and precise standards which must be incorporated into telecom equipment to allow law enforcement to collect information through wiretaps. CALEA contains an exception for “information services.” This exception was thought to apply to VOIP providers. The FCC’s decision is troubling for Internet companies since the distinction between traditional telephony and information service providers is made in a number of other federal statutes, including the Communications Decency Act (CDA), which provides significant protection for information service providers.

Wired Article

FCC press release

Discussion of the CDA

Content – Connecticut Regulators Attempt to Shut Down On-line Native American Gaming Site

The Mashantucket Pequot tribe operates a wildly successful casino in Connecticut. The tribe reconfigured its website to allow people who bought Keno tickets – for drawings in the future – to check winning numbers using games that resembled slot machines and similar games of chance. Connecticut’s division or revenue claims that the games violate federal bans on on-line gaming. This is an interesting enforcement issue, since state agencies typically do not enforce Federal regulations. However it shows the highly controversial nature of on-line gaming. This issue is important to Internet companies since it highlights the Federal prohibition on on-line gaming. This ban is quite broad and prohibits U.S. companies from even facilitating on-line gaming operations.

Newsday Article

Additional information

WiFi - Florida Residents Arrested for "Stealing" WiFi from Unprotected Network

A Florida court has fined two residents $874 for logging into an unprotected residential wireless network. The criminal prosecution was brought on the basis of a Florida statute that prohibits unauthorized access to a computer or network. While its hard to imagine that this crime is going to become a high priority enforcement target for local law enforcement officials, it illustrates two things. First that the idea that someone has stolen something has great power in the U.S. legal system, even if the concept of theft isn't as clearly defined in the on-line world. Second, that laws exist, even if they are not directly on point, for individuals and entities operating on-line to enforce what they perceive to be their ownership rights. Computerworld Article

Law Enforcement and Subpoenas - Indymedia, Rackspace Subpoena released

As many may remember, Rackspace basically shut down the Indymedia webspace by turning over servers Rackspace believed had been subpoenaed. The subpoena underlying Rackspace's actions has been disclosed - albeit in redacted form. It turns out that the subpoena only asked for certain log files. Rackspace's actions are a striking example of the need for Internet companies to develop plans to respond to subpoenas and warrants, and be able to parse law enforcement "lingo" to determine what is actually being requested. As I've noted in prior posts, and will be discussed in my upcoming column in The Web Host Industry Review Magazine, there have been at least two cases in which a hosting provider has been successfully sued for turning over customer data when it was not legally required to do so. It is important to remember that in most cases the data on your servers is your customers and not yours. Thanks to Dev Chanchani at INetU for bringing this to my attention.

Indymedia Site

CNet Article

Redacted Subpoena

CAN-SPAM / Private Anti-SPAM Regulations Not Pre-empted by CAN-SPAM

The 5th Circuit Court of Appeals has held that University of Texas anti-spam regulations are not pre-empted by CAN-SPAM. While CAN-SPAM expressly allows stricter state regulation of SPAM, it does not contain a similar express provision for private regulation. This case is important since it reinforces the "private contract" nature of internet access, dissemination and regulation.

Ecommerce Times Article

Wireless - Spectrum: Boston's Logan Airport Challenges Continental

The operator of the Boston Airport has ordered Continental Airlines to turn off its wireless network. The airport initially claimed that the network, offered free as a perk to members of its airport lounge, violated the airline's lease. The complaint was subsequently broadened to allege that the network posed security concerns. The airport offered to allow Continental to use the airport's wireless vendor who had been granted an exclusive right to broadcast wireless signals in the airport, with, of course, the airport getting a cut of the revenue. Continental has filed a complaint with the FCC alleging that the airport's actions violate an FCC rule prohibiting landlords from controlling telecommunications access. This matter is important since it signals a coming battle between landlords and other entities who may seek to control, and profit from, the wireless telecommunications services entering their facilities - since the battle over wired services has already been decided.

Information Week Article Background and Commentary on the FCC Rule

Internet Taxes / Pornography - Proposal to Tax Internet Porn to Finance a Trust Fund to Protect Children and Impose "Age Verification" Standards

Sen. Mary Landrieu introduced a bill to impose a 25% tax on internet porn to finance a program to protect children from on-line pornography. Individuals and entities who are paid for pornographic content would be responsible for collecting the tax. However, it is unclear from the text whether service providers would be within this definition. Beyond creating an internet tax "wedge," the bill creates a cascading list of priorities that would receive funds from the tax. The first priority is enforcement and "development of technology that would facilitate enforcement of this Act." As can be expected, this aspect of the bill has again raised to prospect of content filtering. The bill would also require operators of adult sites to create positive measures that would verify age - rather than rely on self verification, as some sites do now, and require the FTC, in conjunction with the Department of Justice, to maintain a list of sites that do not require positive verification. Washington Post Article Bill text

Telecommunications - More About Brand X

For those who can't get enough about the never ending debate about Brand X, the podcast below is an interesting academic discussion of the Supreme Court decision. At base, the professors conclude that the Brand X decision gives the FCC broad discretion to regulate the Internet using based not only on its regulatory mandate (i.e. information service v. telecommunication service), but also based on perceived social needs. Podcast

Obscenity / Pornography - Panel Upholds Communications Decency Act Prohibition on Sending Obscene Materials Interstate

The Communications Decency Act - CDA - prohibits individuals and entities from sending obscene materials interstate. As many know, the term "obscene" is defined based on community standards - meaning that what may be obscene in your community may not be obscene in another. This decision is important for two reasons: first it shows the continued vitality of the CDA, a law that has been found unconstitutional on most grounds; second it underscores the need to respond to complaints about obscene materials, and make their customers aware of the complaints. Information Week Article Opinion