free speech


New Research Suggests That Governments May Fake SSL Certificates | Electronic Frontier Foundation.

In Germany, you can’t publish the names of murderers after some years have passed since the crime. So a convicted murderer’s lawyers wrote to Wikipedia and asked them to take his name off of the webpage about his victim. Read my take on this First Amendment issue on the EFF blog.

One of my new projects is defending researchers and bloggers discussing how to put custom operating systems on TI calculators. The press release and explanatory blog post are on the EFF site.

Hey, TI, Leave Those Kids Alone | Electronic Frontier Foundation.

Proposed Reporters’ Shield Law Overdue but Underpowered

This week’s Circuit Court column is about the proposed federal reporters’ shield law that just came out of the Senate Judiciary Committee. While we need a shield law, this one has a loophole for situations where the leak is criminal or tortious activity, and the loophole may just be too large for this version of a shield to do the trick.

I hope that First Amendment and reporters’ rights groups will be able to address this intelligently before consensus forms around final language for the bill. Its very easy to get caught up in the “you’re protecting criminals” rhetoric, particularly when a lot of business interests have formed a coalition to kill the bill entirely. However, the current version of the bill probably would not protect reporters even in the circumstances which have led Congress to propose this legislation in the first place. Read more here.

Last Tuesday, something fantastic happened. The U.S. 10th Circuit Court of Appeals gave the First Amendment some oomph in Golan v. Gonzales. The case, brought by Larry Lessig and lawyers with the Stanford Law School Center for Internet and Society, challenged section 514 of the Uruguay Round Agreements Act, or URAA, which removed thousands of books, films and musical compositions from the public domain. The 10th Circuit held that, following the Supreme Court case of Eldred v. Ashcroft, if Congress changes copyright’s “traditional contours,” courts must conduct a First Amendment review to ensure that those changes do not overly burden free expression in an unjustified manner. Removing works from the public domain is one such traditional contour, so the court sent the Golan case back to the District Court to determine whether the URAA goes too far in burdening speech.

I wrote about this case, which I was involved in when I was Executive Director of CIS, for this week’s Wired News column. You can read the full column here.

Yesterday’s Wired News column, filed from our pied a terre in Amsterdam, discusses the clash between the right to privacy and the right to free speech, as represented in a lawsuit by the local royal family against a tabloid it seeks to stop from publishing photographs of the young princesses playing on the beach with their mother and nanny. You can read the whole article here.

Doe Wins Motion to Unseal, Bodes Well for Preservation of Anonymity | Stanford Center for Internet and Society [beta site]

H.B. Fuller v. Doe is a case my Cyberlaw Clinic students and I have been working on for a year or so. Today we had some good news. The Sixth District Court of Appeal in California has granted our client John Doe’s motion to unseal records. In the trial court, Doe and Fuller stipulated to sealing documents Fuller claimed contained confidential information. On appeal, we moved to unseal the records in the appellate court because they do not contain confidential information. The appellate court agreed in this published opinion.

This conclusion could lead to a great outcome. Allowing companies to bring employee breach of contract claims based on conclusory allegations of confidentiality could really threaten anonymous speech. The case law clearly establishes a right to anonymous speech and a burden on plaintiffs to make some showing of wrongdoing before enforcing subpoenas for identity information, but exactly what that burden of proof is and what evidence is sufficient is still being fleshed out in the courts, including through cases like Fuller v. Doe.

For more about the case, visit the Fuller v. Doe page

In mid-February, the New York Attorney General’s office settled a complaint against Blue Coat, a business hardware and software company, for its End User Licence Agreement which prohibited benchmarking. The NYAG challenged the provision, which was only revealed to customers after purchase. The settlement comes with an approximately $30,000 slap on the wrist, an a promise not to include any anti-benchmarking language in EULAs for products sold in New York.

Here is the NY Attorney General’s press release. This is the second time, I believe, that the NYAG has gone after speech restrictive clauses in EULAs on behalf of consumers and succeeded. The success is particularly notable because Judge Easterbrook’s decision in ProCD v. Zeidenberg, often cited as the seminal case on EULA enforceability, suggests a different result. Yet, as I often inform my students, just because there is strong law against you doesn’t mean you can not win.

A couple of questions: First, why won’t the California AG’s office also be a leader in this area? Second, how did the NYAG win, and can consumer rights lawyers around the country expand this victory to challenge anti-Fair Use and reverse engineering clauses as well? Third, do this successes spell the end for ProCD?

Wired News: Patently Bad Move Gags Critics

Yesterday, RFID access device company HID Global got IOActive researcher Chris Paget to pull his talk from Black Hat DC because they claimed that demonstrating how to clone RFID cards violated their patents in card readers. Are they nuts? Unfortunately, IOActive, which probably holds several patents of its own and wants to look like an upstanding respecter of intellectual property rights, backed down and the talk went unmade. While I am not a patent lawyer, the claim seems both colorable and totally weak. Colorable, because if the card reader patents are valid and the claims are drafted broadly enough, then a homebrew card reader just might infringe. Totally weak, because even if the patents are valid, and the reader infringes, and HID Global decided to pay expensive patent lawyers to sue, the damages in the case, even if trebled, would be achingly small (the licensing fee for a single device). My Wired News column today is about this brouhaha. In the column, I heap scorn upon HID, but I do wish that IOActive had pushed the issue. I’m sure a flurry of lawyers would have rushed to their defense.

More on the issue from Ryan Singel, Rob Lemos and Brian Krebs.

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