Circuit Court


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.

Did you know the government can track your movements by your cell phone? And while courts are struggling to define whether agents need probable cause to follow your prospective movements, a new decision out of the U.S. District Court in Massachusetts says they only need to show relevance to get a record of your past movements. Read more about this in my latest Wired News column Is That Big Brother In Your Pocket?

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.

IPhones Most Revolutionary Feature: Unauthorized Hacks

Courts Turn Against Abusive Clickwrap Contracts

Wednesday’s Wired News column is about the state of the law wrt EULAs, terms of service agreements and other mass market contracting.  Two new cases suggest that courts are going to get more deeply into the business of protecting consumers from oppressive terms in these “take-it-or-leave-it” contracts.  In the column, I discuss the cases and argue this is the right approach.

In yesterday’s Circuit Court column “Free the Spam King” I take on the question of whether criminal prosecutions will stop spam, or are even fair. This one has engendered a lot of hate mail. It seems the only thing people hate more than child porn is spam.

Online Advertising: So Good, Yet So Bad for Us is my latest Wired News column.

The column discusses a debate at this year’s Computers Freedom and Privacy conference between Jeff Chester of the Center for Digital Democracy and Mike Zaneis from the Interactive Advertising Bureau. On one side, Chester argued that online advertising is privacy invasive and should be subject to consumer opt-in.  On the other side, Zaneis argued that advertising makes great content possible, gives people ads that are relevant to them, and doesn’t collect sensitive information.  I find something each man says to disagree with in the column, and don’t necessarily come up with a better answer.  Both Chester and Zaneis wrote me nice emails about the column, which I really appreciate.

I weigh in on NSLs and the FBI with today’s Circuit Court column: FBI Slips Demand Patriot Act Cuts.

I think the most interesting part of the column is the end where I try to grapple with the FBI’s assertion that the lower standard of proof for national security letters is really helpful to their investigations. While its a small part of this column, its an issue I plan to discuss more in future columns, and as Congress begins to reconsider the USAPATRIOT grant of powers in light of the FBI abuses.

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.

Today, a three judge panel from the Ninth Circuit withdrew its opinion in United States v. Zeigler and issued a new opinion. As you may remember, the original Zeigler opinion, from August 2006, held that private employees have no reasonable expectation of privacy, and thus no Fourth Amendment rights, in their workplace computers. In January 17th’s Circuit Court column on the topic, I argued that if employees have no protected privacy rights, then the government can enter a private workplace, without cause, without a warrant, with or without the employer’s consent and search employee computers. I imagine the police could also copy your work laptop if you happened to be using it in a coffeeshop or some public place. The employer could try to sue, but the effort would be hampered by lack of damages, government immunity and the usual expense of going to court. The employee could not make a motion to suppress based on the privacy rights of the employer, nor would he have the personal right either to challenge the government’s actions in a civil suit, or to suppress any discovered evidence.

One thing that some Circuit Court readers clearly didn’t get is that the employee’s privacy rights are extra cover for the employer. If the employee doesn’t have rights, the government can search employer owned computers and use whatever they find their against any individual, whether employee or CEO. With employee privacy rights, police are dissuaded from searching and seizing without either a warrant or consent from the employer.

That’s exactly what the new January 2007 opinion in Zeigler says. Building on the line of cases that says that employees have a reasonable expectation of privacy in their desk drawers and in their filing cabinets, the panel concludes that employees also have a REOP in their computers. Government agents need either a warrant or the consent of the employer before they can search. The agents in Zeigler got consent, the panel concludes, so Zeigler’s motion to suppress fails, and he’s no better off now than under the old opinion. But under the new reasoning, non-government employees and employers alike can breathe more easily.

Next Page »