Unfortunately, I haven’t been keeping this site up to date as I’ve been blogging on the Stanford Law School Center for Internet and Society site.  To that end, here are my most recent posts:

The Unintended Consequences of CISPA

New Cybersecurity Bill Available

Revised Cybersecurity Act Needs Amendments for Privacy, Security

Thanks for following along.


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.

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

The audio from theStanford Technology Law Review’s Fourth Amendment Symposium

is now available. Look under “Announcements” in the right hand column. I particularly enjoyed Erin Murphy’s comments on Susan Friewald’s paper and Donald Dripps’ comments on Paul Ohm’s.

Our client Kevin Poulsen reports on his recent award of attorney’s fees following his successful Freedom of Information Act case against the government.

We are hiring new fellows and a new Associate Director for the Fair Use Project. If you or someone you know would be good for the job, ampoule please apply/spread the word.

Symposium Graphic

This symposium is free, and you get eight MCLEs for it. See you there!

Beyond a Physical Conception of the Fourth Amendment:
Search and Seizure in the Digital Age

Stanford Law School
January 26th, 2007

* Can the government search your computer without a warrant?
* Can they obtain your personal information from your Internet service provider?
* Is it constitutional for the cops to track your movements?

Hear what the experts have to say, and let them know your opinions, through our symposium: Beyond a Physical Conception of the Fourth Amendment: Search and Seizure in the Digital Age. Top technology and privacy experts from across the country will argue about the Internet, criminal procedure, RFID, and the Constitution.

Best of all, you can participate! Five authors’ drafts will appear on the symposium website for commenting before (and after) the live event. Read, respond, and be heard in the live discussion!

Where: Stanford Law School
When: Friday, January 26th, 8:30 A.M. to 6:00 P.M.
Admission: free, and open to everyone!
Sponsors: the Stanford Technology Law Review, Center for Internet and Society, and Criminal Justice Center

Registration: let us know your name and whether you’re coming at techsymposium @!

Victory in Poulsen FOIA case | Stanford Center for Internet and Society

In April of 2006, Wired News editor Kevin Poulsen sued the United States Customs and Border Patrol under the Freedom of Information Act. Poulsen won the case, and yesterday the trial court granted Poulsen $66,000 in attorney’s fees.

Poulsen had asked CBP to disclose under the FOIA documents about a computer failure suffered by the US VISIT system, which was established to screen foreign nationals entering the country against terrorist watch lists. CBP refused, then asked Poulsen to drop his request, then denied the request. claiming that if the public knew what caused the outage, it would harm national security, among other reasons. Poulsen believed that if the problem was fixed, as it should have been, the public had a right to know why the US VISIT computers were malfunctioning.

Poulsen, represented by the Center for Internet and Society and the Cyberlaw Clinic, filed suit. CIS attorney and Associate Director Lauren Gelman was the primary supervisor and lead attorney on the project.

On summary judgment, Judge Illston in the Northern District of California ordered CBP to release documents and the documents revealed that the computers were infected with the Zotob worm, a common Microsoft Windows vulnerability.

Poulsen published two articles on the problem as a result of receiving the documents. (April 12, 2006) (November 2, 2006), (also redacted and unredacted document comparison).

The Zotob infection and CBP’s management of it was one of many technological and bureaucratic problems that ultimately led the government to abandon the US VISIT program, after almost two years and $1.7 billion dollars. Talk about information the public has a right to know.

Cyberlaw Clinic student Megan Adams did fantastic work on this part of the case, writing the complaint and the summary judgment pleadings. Gelman successfully argued the Summary Judgment motion.

Having prevailed, the FOIA says Poulsen is entitled to attorney’s fees, but CBP continued to fight him every step of the way. Poulsen had to file a motion for fees, which Cyberlaw Clinic student Jeff Laretto wrote and prepared to argue at the hearing originally set for Friday, January 19th. The hearing date was vacated with Judge Ilston ruled for Poulsen based on Laretto’s moving papers, granting $66,000 in attorney’s fees. Judge Ilston’s order included findings that Poulsen’s reporting created a public benefit, and that the CBP was not reasonably justified in denying him the documents in the first place.

In addition to Gelman, Adams and Laretto, and of course, Mr. Poulsen, thanks for their help with various aspects of the case goes to our legal assistants Lynda Johnston and Amanda Smith, CIS residential fellows David Olson and David Levine, Fair Use Project Exec. Dir. Tony Falzone, and students in the Cyberlaw Clinic in the Spring 2006 and Fall 2006 semesters.

Dan Gillmor‘s Center for Citizen Media and Student Fellows at our Center for Internet and Society are writing anElection Day Bloggers’ Legal Guide. Bloggers covering the upcoming election can submit their legal questions and Stanford Law School students under Lauren Gelman’s my auspices will answer them.

CIS is hiring a talented lawyer who wants to protect fair use.

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