FTC versus FCC: Regulation of the Internet

Posted By: Emily Weiss

22495460709_9f99309cf9_oIn late March of 2017, the Senate voted to prevent a set of privacy rules from the Federal Communications Commission from going into effect. Privacy and Internet enthusiasts criticized the vote, and one Virtual Private Network service provider ran a full-page advertisement in the New York Times that named the 50 senators that “voted to monitor your Internet activity for financial gain.

All of this might seem like the death of Internet privacy. The effect of the Senate vote appeared just turned certain regulatory authority over to the Federal Trade Commission (FTC) from the Federal Communications Commission (FCC). Internet service providers and other industry players welcomed the rule repeal, and have argued for consistency between the FTC and FCC privacy rules. Under the FTC rules, ISPs now have far more latitude to sell browsing data from its users to advertisers in order to provide more targeted advertising, just like online service providers, like Google, already can.

With this in mind, is the end of the FCC’s rule the beginning of the end for Internet privacy, and to an extent, net neutrality?

Continue reading


Wearable Technology Increases Need for Data Protection Reform

Posted by: Kyle Sol Johnson

April 18, 2015

wearablesWearable technology such as the new Apple Watch, Google Glass, and exercise tools like FitBit appear to be the next frontier in personal consumer tech. The $14 billion dollar industry is projected to quintuple over the next decade. The primary sector in this industry is the healthcare sector, and indeed, products that monitor everything from heart rate to weight to frequency and intensity of exercise stand to revolutionize the medical (and medical insurance) industries. However the same informatics which allow the technologies to be used for near-constant health monitoring comes at the expense of consumers’ privacy.

Many of the free apps and wearables that allow users to monitor health data also transmit said data, much of it personally identifiable and in many cases with no encryption whatsoever. This opens users up to a host of potential risks, included identity theft, minority profiling, stalking, and employer misuse. Moreover, the vast majority of free apps sell the user-generated information to interested third parties like healthcare providers, insurance companies, marketing firms, and even employers. Most apps claim that they won’t share personal information without consent, however they still sell the data, just with the names of users stripped from the rest of the information. Continue reading

When Trademarks and Domain Names Collide

Posted by Angelica J. Simpson

April 6, 2015

Trademark-Symbol_32Branding your product has long been a protected area of American legal practice. However, in the fast changing age of the Internet, the ability for those to monitor and protect their trademark has become increasingly difficult. With multiple parties requesting the use of limited domain names, the legal rights to who controls these names becomes an issue. As the access to the Internet expands, along with the domain names available, the international community requests authority and structure to level the playing field of all countries involved.

The Madrid Protocol, adopted in 1989, and in operation since 2004, sought to address the original issue of international trademarks. The system provides a way to register trade marks internationally, by way of one application. With 91 members, including the United States, trademark holders with an existing trademark, can seek application to register their mark with thy system. This grants the trademark the protection afforded by the international registration in more than one jurisdiction. It is important to note that a valid trade mark in the United States, might not enjoy the same status abroad, and with the every changing law and technology things become more difficult to understand. Continue reading

BITCOIN Hidden Market?

Posted by:  Forencia Todaro


bitcoin2Bitcoin is the P2P electronic money and payment network, which offers the “advantage” of no controls; but does really work like that?
The online currency is enjoying a record on her value; it recently reached the price of gold. The benefits for illegal markets started to be in discussion.  The latest cases exposed how the currency is used for ´dark market´, and consequently FBI intervened. The FBI intervention added to the debate concerning individual privacy. Continue reading

The Google Book Settlement Decision & Opt-In/Opt-Out Models of IP Protection in Cyberspace

The District Court has rendered its decision rejecting the Amended Settlement Agreement (ASA) in The Authors Guild v. Google, Inc., the Google Books copyright infringement case for digitalizing books from University libraries and other sources. The decision actually nicely highlights the incompatibility between traditional copyright and other intellectual property models and the fast moving pace of the internet and related technologies. Basic copyright, patent, and related intellectual property laws rely primarily on opt-in models for the use of covered intellectual property. One needs to negotiate a license before using the material, i.e. a rights holder needs to opt-in to the use of their material on the internet or otherwise. If they refuse to opt-in or simply cannot be located or otherwise identified, traditional intellectual property regimes restrict the use of the material until they have opted-in. Thus, orphan works remain restricted until their parentage can be identified an consulted.

By contrast, valuable property in cyberspace has been developed primarily on an opt-out model — material can be used until the rights hold comes forward and objects. The opt-out model casts the onus of policing and rights protection on the rights holder, leaving the cyber entrepreneur to use potentially protected material unless and until the rights holder objects. Continue reading

Did the Librarian forget the iPod Touch and the iPad?

Posted By: Ronald Rasmussen

The Librarian of Congress on July 26, 2010, announced six classes of works that are now exempt from the prohibitions against circumvention of technological measures controlling access to copyrighted works. This meant that persons making noninfringing uses of works in those six classes are not subject to the portions of the Digital Millennium Copyright Act (DMCA) found at 17 U.S.C. §1201(a)(1) prohibiting circumventing technological access controls to works subject to copyright. This exemption lasts until the conclusion of the next rulemaking.
The second class of works announced was defined as follows:
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
This ruling came about in part because of the dispute between Apple Computer Inc, and iPhone users over “jailbreaking,” the practice of circumventing the access controls in order to load and operate other, non-Apple-provided, software on the device. Apple has maintained that jailbreaking is a violation of copyright law, and of course that it voids the warranty. The Electronic Frontier Foundation, or EFF, has argued that it is a “fair use,” and therefore legal. EFF based this claim on three specific arguments. First, EFF claimed that in some situations, jailbreaking could be done within the scope of the Apple software license agreement. Second, EFF argued that an iPhone owner also owns the copy of the phone’s firmware, and therefore under 17 U.S.C. §117(a), the owner can adapt the copy to add new capabilities, as long as the changes made by the owner do not “harm the interests of the copyright proprietor.” This was the “adaptation as essential step to usage” argument. Third, the EFF contended that jailbreaking was a purely noncommercial, private use of the computer software that operates the phone, so the user was altering the firmware for their own use only, without any change in market.
The Apple iPod Touch and the Apple iPad uses the same or similar firmware as the Apple iPhone, and has been subject to the same jailbreaking practices. The Touch and iPad use many of the same apps as the iPhone. Apple has traditionally locked the Touch and iPad down in the same way as the iPhone, with applications only available through Apple. However, the Touch and iPad do not appear to be covered as phones, as they have no capability to make or receive calls, and the exemption covers only “wireless telephone handsets.” This omission appears to leave the iPad and Touch untouched by this “jailbreaking is legal” ruling. Continue reading

The Worldwide Leader in Sports in Murky Anti Trust Waters

Posted By: Cason Schmit

My Brother and his wife are Northwestern Alums and love their football. Three weeks ago, the Northwestern Wildcats were in the middle of their upset win over the then 13th ranked Iowa Hawkeyes. Unfortunately, the game was not broadcast in their area, so their only hope to see it live was on the Internet. Naturally they went to ESPN.com, “the Worldwide Leader in Sports,” to view the game. Although, ESPN streams games of all kinds from its website for free, not everyone can view them. As it turns out, ESPN does not permit viewers to watch games if they are not using an approved internet service provider (ISP). ESPN’s notice states: “In order to access ESPN3.com, you must receive your Internet Service from one of the providers in the list below or connect through a network on a U.S. college campus or military base.  Your current network falls outside of these categories.” http://espn.go.com/espn3/index. To my brother and his wife’s frustration, their ISP is not one of the preferred ISPs, so they were unable to view the game.
Why might ESPN have this strange requirement? It could be that the preferred ISPs have a special agreement with ESPN such that ESPN benefits from the use of these particular ISPs. And this appears to be the case. ESPN provides a special notice to users with Time Warner as an ISP: “Attention Time Warner Cable Customers: In order to watch ESPN3.com, you must receive ESPN as part of your television service.” http://espn.go.com/espn3/index. This requirement shows that ESPN is trying to leverage its market power in online broadcasting to further boost its revenue in cable broadcasting where its market power is much weaker.
This practice could very well have antitrust implications. The Sherman Anti Trust Act forbids certain types of tying arrangements. A tying arrangement occurs when the seller with dominant market power conditions the sale of a product on the purchase of another product that the buyer might not necessarily buy otherwise, thereby impeding competition in the tied product market. Allen-Myland, Inc., V. IBM, 33 F.3d 194 (1994).
Based on ESPN’s terms of service, it could be seen that ESPN is tying the availability of a streaming sporting event (tying product) to the use of particular ISPs (tied product). This kind of “tying arrangement” can be in violation of the Sherman Anti Trust Act but is not necessarily so. The court in Allen-Myland v. IBM held that in order for a tying arrangement to rise to the level of an antitrust violation two things must be shown: 1) the seller has sufficient market power over the tying product, and 2) the arrangement affects a “substantial amount of interstate commerce.” 33 F.3d at 200-201.
Before addressing the first question, it is important to define the market for the tying product. ESPN would likely wish the market to be defined as sport broadcasting, in which case, its market power would be low due to the presence of the television broadcasters and other internet broadcasters. However, a Real Madrid fan doesn’t care about the NFL and a Northwestern Football fan doesn’t care about a Duke Basketball game. In essence, different sporting events are not interchangeable within the market. Furthermore because of team loyalties, a Northwestern Football game might not be interchangeable with a Florida State Football game and vice versa. In other words, fan loyalty prevents one game from being a suitable substitute for another. Because of interchangeability problems between different sporting events and that viewers have specific preferences that define their demand, the relevant market should seemingly be defined as the broadcast of a specific sporting event. Because my brother and his wife are outside the local broadcast area for Northwestern games, the relevant market from them is defined as Internet broadcasts of Northwestern Football games. In this market, ESPN’s power is absolute due to exclusive broadcasting agreements.
The second inquiry in determining the legality of tying arrangements is whether the tying arrangement is affecting a substantial portion of interstate commerce. A few things are clear, 1) ESPN is attempting to leverage its online broadcasting monopoly to favor specific ISPs over others and to encourage purchase of cable television services from firms that purchase its sercvers; 2) by denying access to the broadcast, ESPN is restricting the supply of its broadcast to the demand of individuals using disfavored ISPs; 3) internet users unwilling to change to a preferred ISP are completely barred from access to this market; 4) ESPN’s restrictions limit the reach of advertisers who purchased time during the given broadcast; and 5) there is variability in the cost of using different ISPs for consumers. However, the question remains as to whether these factors, in fact, affect a substantial amount of interstate commerce, which would no doubt require a significant market inquiry.
The weight of that question most certainly will be left to the courts to decide. However, it is apparent that ESPN’s tying practice raises interesting questions under the Sherman Anti Trust Act.


Posted By: Joseph Duerst

In an episode of the television show Seinfeld, when George is caught with large prints of semi-nude photos of himself taken for a photo shop woman he was trying to impress, Jerry Seinfeld calls it, “the timeless art of seduction.” The episode made light of the lengths that people will go in the pursuit of romantic relationships, but when it aired in the mid-1990s, nobody knew the technological advances that would occur in the following years. In the year 2010, rather than making prints of those photos, George would have likely just sent an email or a photo message to the woman’s cell phone, and that such activity could create legal liability for George should the photos end up in the wrong hands. While in television this activity could create comedic scenarios, in real life, those scenarios could devastate the people involved.
Technological advances have supplied us all with the means to share information, photos, music and other content instantaneously through various channels including the internet and wireless telephone lines. The possibilities are nearly limitless as to the kind and quality of the information and content we can share with each other, beamed directly to our laptops and our cell phones. However, the kind of content we send can create substantial legal problems, if that content turns out to be illegal. Unsurprisingly, people have chosen to use these new methods of communication to share sexually explicit messages and nude photos of themselves to romantic partners. Sexting, as it is called, because it usually involves the sending of text messages to cellular telephones, can be perfectly harmless if both parties consent to the activity and do not abuse the trust of the other, but this is not always the case. Likewise, in cases involving the nude photos taken by minors, the legal implications become staggering.
The Berkman Center For Internet & Society at Harvard University recently released a report on sexting, which maps out sexting among youths and the legal problems that surround such activity. The report provides statistical information regarding different situations in which sexting occurs, and some background on the repercussions of those situations. According to the report, states have growing concern with youths the sext, and have responded in a myriad of ways, including prosecuting minors for posting their own nude photographs on MySpace or sending them to other youths. Most charge the youths with violations of child pornography laws, which is troubling, because the youths face the same penalties for photographing themselves and sharing the photos, as would an adult who photographs a youth nude, such as prison sentences and sex offender registration. One must ask the question, is self-exploitation by children really what child pornography laws are meant to protect against? Child pornography cases of the past imply that this kind of voluntary action by a child may be protected speech under the First Amendment. Even more troubling is prosecution in the context of a romantic relationship among two youths who swap naked photos. But even when both parties consent to swap photographs, if one party abuses that trust and shares the photos with friends, as youths would be likely to do, both the sharer and the friends may be subject to liability.
The Berkman Center’s report discusses the basis for charging these youths and the defenses to the charges, but the fundamental problem seems to be a matter of public policy. Charging a youth under child pornography laws for photographing himself or for sharing a girlfriend’s photographs with his friends seems unduly harsh. Children lack the ability to understand the repercussions of their actions and often have knowledge that their conduct may be illegal. They are given the ability to share photographs via their cell phones and computers, and they are rarely told what is conduct is allowable and what is not. The report suggests modifying child pornography statutes to include an affirmative defense that exempts children who photograph themselves and share with other minors they choose, and including lesser penalties for children than adults would face, in such cases where activity is more harmful than mere sharing of personal nude photographs and thus would not be exempted. Some states have done exactly that.
However, the Berkman Center’s report does not address issues of adult sexting that does not involve child pornography. Largely, adults sharing sexual images and messages with each other is perfectly legal, but this activity can still expose adults to exploitation and liability. Imagine a situation in which a man sends a nude photograph to his girlfriend’s phone, but a child that she babysits sees the photograph. Or imagine a scenario where the man accidentally sends to photo to the wrong email address. Emails and texts are instantaneous and nearly impossible to retract. Both scenarios could cause the man considerable trouble, including embarrassment, legal liability for obscenity, or public ridicule. At the rapid pace we send our texts and emails, we often think little of these possible consequences, but perhaps we should. Fifteen years ago, to send a photo to someone would require physically taking it to that person, providing more time for reflection and reconsideration of sending the photo, but with an email, this time for reflection is non-existent and the possibility that photo reaches an unintended party is great. Today, “the timeless art of seduction” could send George to jail.
A PDF copy of the Berkman Center’s report can be accessed here.

Internet Censorship Bill Proposed by Congress Risks Dismantling the Internet

Posted by: Girard Kelly

A bill recently introduced by Congress called S. 3804, the Combating Online Infringement and Counterfeits Act (COICA) by Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT) attempts to combat copyright infringement on the Internet by creating a blacklist of Internet domain names which are controlled though the U.S ICANN Dynamic Name Service (DNS). It creates two distinct blacklists that would require Internet Service Providers (ISPs) to block blacklisted domain names otherwise known as website addresses that are used to locate their servers on the Internet. The first blacklist would contain domain name registrars that have been served any court order from the Attorney General in regards to infringement activity. The second blacklist would “maintain a public listing of domain names that, upon information and reasonable belief”[8] that the Department of Justice determined without judicial review were “Dedicated to Infringing Activities”[8]. This distinction would apply to any website where counterfeit goods or copyrighted material are considered “central to the activity of the Internet site”[8]. The consequences of this bill would essentially dismantle the infrastructure of the Internet and cause irreparable harm to the continued existence of technological free speech and must not be allowed to become law.
Although the bill only dictates that the first blacklist is subject to censorship, it provides incentive for service providers to also block websites on the second list pro-actively in order to guarantee immunity. This distinction of whether or not a website could be considered “dedicated to infringing activities” and then subsequently blocked raises significant legal, political and technical issues. First and foremost its enactment would pose a serious threat to Free Expression thereby imposing “prior restraints” on speech. Restricting speech in this manner has been expressed by the courts only to be used in extreme cases and is considered “the most serious and the least tolerable infringement on First Amendment rights.”[3] Several technology rights organizations such as the Center for Democracy and Technology(CDT) and Electronic Frontier Foundation(EFF) have spoken out against the censorship of free speech and the Internet in “An Open Letter From Internet Engineers to the Senate Judiciary Committee”[1] that states; “If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure.”[1] These advocacy groups recognize the fundamental dangers of censoring entire perceived copyright infringing domains that would inevitably lead to blacklisting legal, law abiding content and sub-domain websites.
If these blacklists are implemented they will very quickly begin to reshape the Internet. As more and more websites are blocked, third party services will emerge to meet the demand to circumvent these blacklisted DNS servers. These circumventing services would expose the inherent weakness of the COICA blacklists by enabling users to simply install an Internet web-browser plugin that would allow them to choose an alternative DNS server with the click of the button. Although seemingly insignificant from the end users’ perspective, these plugins essentially bypass all levels of trust and security we have come to expect with DNS. This ‘re-direction’ away from internationally maintained and monitored DNS servers would encourage the malicious use of these third party services or plugins to expose Internet users to ‘untrusted’ DNS servers that could easily hijack their passwords and confidential information. This new ‘fragmented’ Internet would be a step backward in technological progress and innovation that would essentially be equivalently analogous to communist China’s Internet firewall.[22] China’s firewall blocks keywords and websites that the Government deems inappropriate. If this sounds familiar it is because China’s firewall is essentially a blacklist of keywords and domain names that ‘facilitate’ inappropriate infringement, extremely similar to what the COICA bill recommends.
From a legal perspective the broad use of the term “facilitating” in the bill, specifically referring to copyright infringement could undermine the U.S secondary liability law as stated in Sony Corp. of America v. Universal City Studios, Inc. that it “does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”[20][9] By this definition the COICA bill would raise concerns about constructive knowledge for contributory infringement purposes, as set forth in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., “by intentionally inducing or encouraging direct infringement.”[21][9] if service providers are aware of blacklisted websites but do not discontinue providing service to those websites. These inconsistencies could threaten existing copyright exceptions, limitations and fair use defenses as wells as the DMCA Safe Harbor provisions.
Under this COICA bill for example, if a website were perceived to be “dedicated to infringing activities”[8], yet was operating under fair use and subsequently added to the blacklist and censored, service providers could be held liable for Misrepresentation under 17 U.S.C §512(f)(2). Pursuant to section §512(f)(2) “any material or activity that was removed or disabled by mistake or misidentification”[16] could indicate that the infringers would “… be liable for any damages, including costs and attorneys’ fees…”[16] The Safe Harbor provisions were enacted to protect against this type of abuse on free speech and support the advocacy work of the lawyers who fight these battles by enabling them to recoup their legal fees. Although the bill outlines a lengthy process for blacklisted domains to get off the “blacklist” and receive a “judicial review”, it is an opt-out process that threatens the very existence of the Internet. It creates an ambiguous situation where under the proposed COICA legislation domains placed on these blacklists may never find their way off. These blacklisted domains would need significant financial resources in order to peruse a misrepresentation counter-claim or successfully defend the legality of their website against the subjective evidence of the Attorney General, further complicating the issue.
The proposed COICA bill is attempting to leapfrog the current DMCA copyright infringement takedown notices by going above and beyond the removal of infringing content to include not just the content itself, but the entire domain. In the same way that the Safe Harbor provisions of the DMCA protect ISPs from contributory liability, these blacklists specify the “constructive knowledge” that service providers must follow in order to maintain immunity. This situation effectively creates a piracy “witch hunt”, that enables the Government to circumvent the very copyright laws meant to protect publishers and consumers and ultimately remove the judicial system entirely from excising due process in protecting Free Expression on the Internet. As of the writing of this article the Senate Judiciary Committee will not be considering the COICA bill until after the midterm elections this November 2010. This temporary victory should hopefully serve as a wake up call to Internet users worldwide. Now is the time to spread awareness about this critically important issue and exercise your freedom of speech on the Internet by getting involved with organizations such as the CDT and EFF in order to educate our elected representatives; “Tell Your Senator: No Website Blacklists, No Internet Censorship!”[17]

  1. 1.EFF, “An Open Letter From Internet Engineers to the Senate Judiciary Committee | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,



  2. 2.“Bill Summary & Status – 111th Congress (2009 – 2010) – S.3804 – THOMAS (Library of Congress),” n.d.,



  3. 3.Center for Democracy an Technology, “CDT Memo on the bill,” n.d.,



  4. 4.“Censorship of the Internet Takes Center Stage in “Online Infringement” Bill | Electronic Frontier Foundation,” n.d.,



  5. 5.Demand Progress, “COICA Fact Sheet | Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,



  6. 6.David Segal, “David Segal: Stop the Internet Blacklist,” The Huffington Post, September 27, 2010,



  7. 7.Mike Masnick, “Even Without COICA, White House Asking Registrars To Voluntarily Censor ‘Infringing’ Sites | Techdirt,” Techdirt, September 30, 2010,



  8. 8.First draft text of the COICA bill

    , n.d.,



  9. 9.“Letter of Concern to the Senate Judiciary Chair and Ranking Member,” September 27, 2010,



  10. 10.Jaikumar Vijayan, “Online IP Protection Bill Sparks Outrage – PCWorld,” PCWorld, n.d.,



  11. 11.Mike Masnick, “RIAA Claims That If COICA Isn’t Passed, Americans Are ‘Put At Risk’ | Techdirt,” Techdirt, September 29, 2010,



  12. 12.Govtrack, “S. 3804: Combating Online Infringement and Counterfeits Act (GovTrack.us),” Govtrack.us– A civic project to track Congress, n.d.,



  13. 13.EFF, “Sites COICA may take offline, and why | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,



  14. 14.Demand Progress, “Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,



  15. 15.EFF, “The COICA Internet Censorship and Copyright Bill | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,



  16. 16.“U.S. Copyright Office – Copyright Law of the United States,” n.d.,



  17. 17.Tim Jones, “Victory: Internet Censorship Bill is Delayed, For Now | Electronic Frontier Foundation,” Electonic Frontier Foundation, September 30, 2010,



  18. 18.Mike Masnick, “What Else Might COICA Be Used To Censor | Techdirt,” Techdirt, September 29, 2010,



  19. 19.Julian Sanchez, “Wiretapping the Internet | The American Prospect,” The American Prospect, October 4, 2010,



  20. 20.Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984).

  21. 21.Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).

  22. 22.“Great Firewall of China | Home,” n.d.,