MIRLN --- 17 Sept - 7 Oct 2017 (v20.14)

MIRLN --- 17 Sept - 7 Oct 2017 (v20.14) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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NEWS | RESOURCES | FUN | LOOKING BACK | NOTES

Future Navy accident investigations will look for cyber attacks (NextGov, 15 Sept 2017) - Rampant internet speculation aside, there’s no evidence yet that any hostile electronic breach led to recent U.S. Navy mishaps, according to the admiral who leads the service’s cyber operations. In fact, it was mostly to put such speculation to rest that Vice Adm. Jan Tighe said she dispatched a small team to join the Navy’s investigation into the Aug. 21 collision of the USS McCain with a cargo ship off Singapore. That accident followed a similar June 17 incident involving another destroyer, the USS Fitzgerald. Tighe said there’s no particular schedule for the team to complete its work. “Quite frankly, with respect to McCain, this is a ‘first of.’ We have a really hard time predicting a timeline,” she said. “It rather depends on what and if we find anything that looks suspicious and what and how we will go about determining whether it is, actually, suspicious or not. So, it could be weeks. It could be months. I don’t think it’s years.” But that’s part of the point. As Tighe’s investigators sniff around for evidence of meddling, they are trying to figure out where to look, whom to talk to, what angles to consider, and more. They are, in fact, pioneering a new kind of inquiry for the Navy. “Codifying how we will do these types of mishap investigations to account for a cyber component going forward is where we will learn from the results of the McCain investigation,” she said. Eventually, the Navy will “make it part of the normal process of how we do mishap investigations.” top

The alternate reality of prior art (Patently-O, 17 Sept 2017) - Thought pioneer Dan Abelow fits within an interesting designation. So far in 2017, his U.S. Patent Publication No. 2012/0069131 - mysteriously titled “Reality Alternate” - is the Most-Oft examiner cited U.S. prior art reference. The document - now patented as U.S. Patent No. 9,183,560 - covers a method of providing “a portal for a user … to be present simultaneously in two or more different non-fictional alternate realities that are distinct from a non-fictional physical reality of the user.” [Here, I’m looking at Examiner citations rather than those submitted by Applicants] The Abelow document reads something like science-fiction novel - defining a new Alternate Reality world both in terms of its incredible impact and technical specifications. From the abstract: Just as fiction authors have described alternate worlds in novels, this introduces an Alternate Reality-but provides it as technical innovation. This new Alternate Reality’s “world” is named the “Expandaverse” which is a conceptual alteration of the “Universe” name and a conceptual alteration of our current reality. Where our physical “Universe” is considered given and physically fixed, the Expandaverse provides a plurality of human created digital realities that includes a plurality of human created means that may be used simultaneously by individuals, groups, institutions and societies to expand the number and types of digital realities-and may be used to provide continuous expansions of a plurality of Alternate Realities. To create the Expandaverse current known technologies are reorganized and combined with new innovations to repurpose what they accomplish and deliver, collectively turning the Earth and near-space into the equivalent of one large, connected room (herein one or a plurality of “Shared Planetary Life Spaces” or SPLS) with a plurality of new possible human realities and living patterns that may be combined differently, directed differently and controlled differently than our current physical reality. In addition to being written in a way that draws diverse connections (helpful for obviousness conclusions), the reference is also 750 pages long! (The patentee paid an extra $4,000+ in filing costs for the extra page length). One of the best patent attorneys in the country - David Feigenbaum - filed this case and helped push it through to issuance. [ Polley : Hmmmmmm… Snowcrash ? Rainbow’s End ?] top

Lawyers can accept payment in bitcoin, Nebraska ethics opinion says (ABA Journal, 18 Sept 2017) - Lawyers may accept payment in digital currencies such as bitcoin but must immediately convert the money into U.S. dollars, according to a Nebraska ethics advisory opinion. The opinion , issued Sept. 11, is the first by a state ethics body to address the ethics of bitcoin payments, the Norfolk Daily News and Coin Desk report. Nebraska lawyer Matt McKeever says he requested the opinion. Eastern Nebraska is a rapidly growing hub for payment processing and financial technology, McKeever told the Norfolk Daily News. Bitcoin ATMs are already in use in the area, and the currency is being used on a daily basis, he said. The ethics opinion by the Lawyer’s Advisory Committee says a growing number of law firms in other jurisdictions accept payments in bitcoin, a currency with volatile prices. In 2013, for example, the price fluctuated from about $7 per bitcoin to $1,200 per bitcoin. Immediate conversion to dollars mitigates the risk of volatility and possible unconscionable overpayment for legal services, the ethics opinion says. Lawyers who receive payment in digital currencies should take three steps, the opinion says. First, the lawyer should notify the client that the payment will be immediately converted to U.S. dollars. Second, the lawyer should make the conversion through a payment processor. Third the lawyer should credit the client’s account at the time of payment. The opinion also says that lawyers who accept virtual currency “must be careful to see that this property they accept as payment is not contraband, does not reveal client secrets, and is not used in a money-laundering or tax avoidance scheme; because convertible virtual currencies can be associated with such mischief.” Lawyers may hold digital currencies in trust for clients after advising that the currency won’t be converted to U.S. dollars, but the currency must be held separate from the lawyer’s property and must be properly safeguarded, the ethics opinion says. There is no bank or FDIC insurance to reimburse a client for hacked bitcoin, so lawyers should take precautions such as encryption or use of more than one private key for access. top

World Wide Web Consortium abandons consensus, standardizes DRM with 58.4% support, EFF resigns (Cory Doctorow on BoingBoing, 18 Sept 2017) - In July, the Director of the World Wide Web Consortium overruled dozens of members’ objections to publishing a DRM standard without a compromise to protect accessibility, security research, archiving, and competition. EFF appealed the decision , the first-ever appeal in W3C history, which concluded last week with a deeply divided membership. 58.4% of the group voted to go on with publication, and the W3C did so today, an unprecedented move in a body that has always operated on consensus and compromise. In their public statements about the standard, the W3C executive repeatedly said that they didn’t think the DRM advocates would be willing to compromise, and in the absence of such willingness, the exec have given them everything they demanded. This is a bad day for the W3C: it’s the day it publishes a standard designed to control, rather than empower, web users. That standard that was explicitly published without any protections—even the most minimal compromise was rejected without discussion , an intransigence that the W3C leadership tacitly approved . It’s the day that the W3C changed its process to reward stonewalling over compromise, provided those doing the stonewalling are the biggest corporations in the consortium. EFF no longer believes that the W3C process is suited to defending the open web. We have resigned from the Consortium, effective today. Below is our resignation letter : * * * top

Motel 6 to revamp privacy, data sharing policies after Phoenix locations send guest info to ICE (SC Magazine, 18 Sept 2017) - Motel 6 employees in the Phoenix area who voluntarily and routinely handed guest registers to ICE officials without the benefit of a warrant may not have run afoul of the company’s privacy policy , but the hotel chain said it would take steps to shut down or prevent similar operations at its other properties nationwide. The Phoenix New Times reported last week quoted an employee at one of two Phoenix-area Motel 6 locations as saying, “every morning at about 5 o’clock we do the audit and push a button and it sends it to ICE,” prompting the American Civil Liberties Union (ACLU) to call out the motel chain on both Twitter and Facebook. “Is this your official company policy?” the ACLU tweeted . The Motel Six had said the Phoenix operation was orchestrated by locals and was shut down when corporate caught wind of it. “Moving forward, to help ensure that this does not occur again, we will be issuing a directive to every one of our more than 1,400 locations nationwide, making clear that they are prohibited from voluntarily providing daily guest lists to ICE,” according to a Motel 6 statement. “Additionally, to help ensure that our broader engagement with law enforcement is done in a manner that is respectful of our guests’ rights, we will be undertaking a comprehensive review of our current practices and then issue updated, company-wide guidelines.” top

New ABA book explores what makes cyber due diligence different (LegalTech, 18 Sept 2017) - Companies are now paying much closer attention to cybersecurity issues when involved in mergers and acquisitions. To help explain recent changes, the American Bar Association’s Business Law Section has published a new book, the “Guide to Cybersecurity Due Diligence in M&A Transactions.” It is edited by Thomas J. Smedinghoff, an attorney at Locke Lord, and Roland Trope, an attorney at Trope and Schramm. The 272-page book is broken down into 13 chapters that explore the importance of cybersecurity to due diligence and M&A, what acquirers should know, and how due diligence impacts a transaction. It also features an appendix that includes a listing of common U.S. data security laws and regulations. Among those working on the book were attorneys who specialize in corporate governance and cybersecurity. In explaining why the book came about, Trope told Legaltech News that “just a few years ago, cybersecurity due diligence was often ignored in M&A deals.” He cited one 2015 survey of global dealmakers by an international law firm that found that 78 percent of the respondents indicated that cybersecurity was not analyzed in great depth or specifically quantified as part of the M&A due diligence process. “In the past two years, however, there has been a significant shift toward recognizing the importance of cybersecurity due diligence in the context of M&A transactions,” he said. “Moreover, cybersecurity breaches have had a major impact on recent M&A transactions, further highlighting the need to address this important issue.” Smedinghoff explained that, in the M&A process, cybersecurity due diligence is similar to due diligence of any other topic, such as finance. “It seeks to determine the state or status of cybersecurity preparedness of the target company,” he told Legaltech News. He further highlighted some important questions that companies may want to address: * * * [ Polley : In a related vein, the Second Edition of the ABA’s bestselling Cybersecurity Handbook will come out in early November; a must-read for anyone working in the field, including private-practice attorneys, in-house counsel, non-profit and government lawyers, and others. For more detail, visit the ABA store at http://bit.ly/2x7HNbJ . A limited number of pre-publication copies are available to the press; contact me for information.] top

Author of key internet freedom law opposes new sex trafficking bill (Ars Technica, 19 Sept 2017) - The United States Senate is moving toward passage of a bill that would-for the first time-water down a landmark 1996 law that shields website operators from lawsuits and state prosecution for user-generated content. And one of the authors of that 1996 law, Sen. Ron Wyden (D-Ore.), argued Tuesday that this would be a mistake. The Stop Enabling Sex Trafficking Act now has 28 co-sponsors, and the breadth of that support was evident at a Tuesday hearing before the Senate Commerce Committee. The legislation would allow state attorneys general to prosecute websites that are used to promote sex trafficking-something that’s currently barred by Section 230 of the 1996 Communications Decency Act. It would also allow private lawsuits against sites that host sex trafficking ads. But Wyden argued at Tuesday’s hearing that weakening Section 230 would be a mistake. In Wyden’s view, Section 230 has been essential for establishing the United States as a global technology leader. It freed Internet startups from worrying about getting sued for hosting user-generated content, Wyden claimed. The section also allows startups to focus their resources on hiring developers and designers instead of lawyers. top

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The ten most important Section 230 rulings (Eric Goldman, 26 Sept 2017) - I’ve posted a new essay entitled “ The Ten Most Important Section 230 Rulings .” It will be published in the Tulane Journal of Technology & Intellectual Property. Everyone loves lists and rankings, but this essay is more than just fluffy clickbait. Organizing Section 230 cases by importance actually creates a helpful narrative about the development of Section 230 jurisprudence and the ongoing dialogue between different judges and courts. I’m pretty sure you can guess what’s #1 on the list (and we’ll be throwing it a proper 20th birthday party-more on that soon), and maybe you can guess #2, but can you guess #3 or #4? Would you reorder my list? Would you subtract one of my top 10 and replace with something different? Wars have broken out over lesser controversies. As always, I’d love to hear your thoughts, and feel free to thrash out the debate in the comments, too. * * * top

Cyber attack, hurricane weigh on FedEx quarterly profit (Reuters, 19 Sept 2017) - Package delivery company FedEx Corp ( FDX.N ) said on Tuesday a June cyber attack on its Dutch unit slashed $300 million from its quarterly profit, and the company lowered its full-year earnings forecast. The company said the cyber attack slashed 79 cents per share from its profit - nearly 40 times the 2 cents per share caused by deadly Hurricane Harvey, which brought catastrophic flooding to southeastern Texas. FedEx joins a string of companies that reported big drops in earnings due to the NotPetya virus, which hit on June 29, crippling Ukraine businesses before spreading worldwide to shut down shipping ports, factories and corporate offices. * * * Excluding the impact of the cyber attack and Hurricane Harvey, FedEx said it would have posted EPS of $3.32, above analysts’ expectations. Most services of the Dutch TNT Express unit resumed during the quarter and systems had been restored, but TNT Express volume, revenue and profit still remained below pre-attack levels, the company said. FedEx did not have insurance in place that covered the impact from the cyber attack. top

Patent venue: Cyberspace does not expand place of business (Patently-O, 21 Sept 2017) - Following the Supreme Court’s decision in TC Heartland , the debate has moved to interpretation of the requirement that an infringement defendant have either residence or “ a regular and established place of business ” in the chosen venue. Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 U.S.C. § 1400(b). In Raytheon v. Cray , the defendant is a Washington corporation with facilities in Austin and Houston - both of which are outside of the Eastern District of Texas. Still, E.D. Texas Judge Gilstrap found the company to fit within the regular and established place of business venue requirement based upon evidence that two Cray sales executives worked from home within the district - developing new sales and accounts worth ~ $350 million over the past 7 years. The execs received reimbursement for certain utilities and charges within the district and publicly advertised their “office” phone numbers within E.D. Texas. In the process of deciding its case, Judge Gilstrap also set forth an open four-factor test finding a regular and established place of business: physical presence, defendant’s representations, benefits received, and targeted interactions with the district. As a general matter, Judge Gilstrap’s interpretation appears fairly broad, and on writ of mandamus , the Federal Circuit has rejected Gilstrap’s analysis and directed that he transfer the case to a more appropriate venue. * * * Important mandamus order narrowing patent venue. In re Cray (Fed. Cir. 2017) [ Read the Case ] top

Deloitte hit by cyber-attack revealing clients’ secret emails (The Guardian, 25 Sept 2017) - One of the world’s “big four” accountancy firms has been targeted by a sophisticated hack that compromised the confidential emails and plans of some of its blue-chip clients, the Guardian can reveal. Deloitte , which is registered in London and has its global headquarters in New York, was the victim of a cybersecurity attack that went unnoticed for months. One of the largest private firms in the US, which reported a record $37bn (£27.3bn) revenue last year, Deloitte provides auditing, tax consultancy and high-end cybersecurity advice to some of the world’s biggest banks, multinational companies, media enterprises, pharmaceutical firms and government agencies. The Guardian understands Deloitte clients across all of these sectors had material in the company email system that was breached. The companies include household names as well as US government departments. So far, six of Deloitte’s clients have been told their information was “impacted” by the hack. Deloitte’s internal review into the incident is ongoing. The Guardian understands Deloitte discovered the hack in March this year, but it is believed the attackers may have had access to its systems since October or November 2016. [ see also, Deloitte breach affected all company email, admin accounts (Krebs on Security 25 Sept 2017)] top

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Law firm inadvertently leaks Pepsi client secrets to Wall Street Journal (Ride the Lightning, 28 Sept 2017) - Doesn’t it seem like we’ve heard the same story before with different players? Yes, once again we have an inadvertently misaddressed e-mail going to the last place you want it to go - to a reporter with The Wall Street Journal . Corporate Counsel carried the story , reporting that Wilmer, Cutler, Pickering, Hale and Dorr was caught up on September 27 th in an e-mail error that revealed secret U.S. Securities and Exchange Commission and internal investigations at PepsiCo, after a Wilmer lawyer accidentally sent a Wall Street Journal reporter privileged documents detailing a history of whistleblower claims at the company. The internal investigation revolves around PepsiCo’s 2011 acquisition of the Russian drinks company Wimm-Bill-Dann and the departure of general counsel Maura Smith in 2012 following allegations of financial misreporting and other wrongdoing at PepsiCo. A subsequent SEC investigation into Smith’s dismissal, and whether the company fired her in violation of whistleblower laws, is “at an early stage,” The Wall Street Journal reported. The reporter learned details about the years-old internal investigation started by Smith and about the more recent SEC probe, for which Smith was subpoenaed. The information included an August 31 memo about Smith’s subpoena and her contact with federal investigators that was “mistakenly sent by a WilmerHale attorney to a Wall Street Journal reporter as part of communication to other attorneys working on the matter,” the report said. Wilmer’s explanation and apology, sent from a spokesman, came less than three hours after the newspaper published its report. The law firm said it “inadvertently” leaked privileged information by e-mail, then asked the reporter to delete what he received. Wilmer accuses the newspaper of going back on its word to delete leaked documents. top

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FBI investigating hack attack on law firm defending top target of Chinese regime (World Tribune, 3 Oct 2017) - A law firm that was representing a major dissident who has exposed corruption at the highest realms of the Chinese Communist Party was targeted in a cyber attack, a report said. The FBI is investigating the alleged hacking this month at the Clark Hill law firm, which had been representing Guo Wengui, according to a report by Bill Gertz for the Washington Free Beacon on Sept. 29. The cyber attack “disrupted Clark Hill’s information systems for several days and appeared to have been carried out by sophisticated hackers who targeted Guo’s personal information and the lawyer representing him,” the report said. “Private cyber investigators later traced the cyber attack to China and South Korea,” according to persons with knowledge of the FBI investigation cited by the report. top

FCC proposes to eliminate requirement to keep hard copies of FCC rules (FCC, 26 Sept 2017) - The Federal Communications Commission today issued a Notice of Proposed Rulemaking that proposes to eliminate rules requiring certain broadcast and cable entities to keep paper copies of FCC rules. More than forty years ago, the Commission adopted rules requiring low power TV, TV and FM translator, TV and FM booster stations, cable television relay station (CARS) licensees, and certain cable operators to maintain paper copies of Commission rules. These rules were intended to ensure that such entities could access and stay familiar with the rules governing their operations. Because the rules are now readily accessible online, many parties believe that the paper copy requirements are outdated and unnecessarily burdensome. While regulated entities still would be required to be familiar with the rules governing their services, elimination of the paper copy requirements would give them flexibility to determine how to fulfill that obligation. This rulemaking is part of the Modernization of Media Regulation Initiative that the FCC launched earlier this year to reduce unnecessary regulation that can stand in the way of competition and innovation in media markets. top

Bloomberg Law launches AI research tool to find key points of law (Bob Ambrogi, 26 Sept 2017) - Bloomberg Law today rolled out to its subscribers new tool, Points of Law, that uses artificial intelligence and machine learning to help legal researchers quickly find language critical to a court’s reasoning and to support their legal arguments. As a researcher scrolls through a court opinion, Points of Law highlights the essential language in the opinion, making it easier for the researcher to browse through the key discussion points and enabling the researcher to more quickly get the gist of the key holdings. A pop-up shows the top three cases cited for the principle. The user can then select any of these Points of Law to see an expanded treatment that shows other cases that make the same point of law and an visual timeline and citation map of these other cases, as well as the ability to see and search related points of law. Each Point of Law has its own distinct page with these elements. “We are using machine learning and AI to extract the sense of a what a judge says in an opinion to allow for quicker and easier research and to uncover language that might be hard to find,” Darby Green, commercial product director for Bloomberg Law Litigation Solutions, told me yesterday. Bloomberg says that it has extracted more than one million Points of Law from its database of 13 million published and unpublished state and federal court opinions, and that these Points of Law are being continually updated as new cases are added. In addition to getting to these Points of Law through a court opinion, a researcher can also find them by conducting keyword searches across all case law or specific jurisdictions. top

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New from Fastcase: Instantly add public hyperlinks to case citations in legal documents (Bob Ambrogi, 3 Oct 2017) - The legal research company Fastcase is introducing a new feature today, Cloud Linking, that automatically converts case citations in legal documents into hyperlinks to the full-text cases. Cloud Linking is notable because the links it creates are public and free - anyone can follow them regardless of whether they have a Fastcase account. While both LexisNexis and Westlaw also have tools that convert citations into hyperlinks, the person following their links must have a subscription to view the source material. “We’re trying to make public law more public and useful - to move from a world in which law is scarce to one in which law is abundant,” said Ed Walters, Fastcase cofounder and CEO. “Our team at Fastcase has always said that law should be like electric power: nearly ubiquitous, inexpensive, reliable, and useful for powering other things.” To convert a document using Cloud Linking, you must be a Fastcase subscriber. In Fastcase 7, Cloud Linking now appears as an option on the top menu bar. In Fastcase 6, click Options in the top menu bar and then select Cloud Linking. top

The media really has neglected Puerto Rico (538, 28 Sept 2017) - While Puerto Rico suffers after Hurricane Maria, much of the U.S. media (FiveThirtyEight not excepted) has been occupied with other things: a health care bill that failed to pass, a primary election in Alabama, and a spat between the president and sports players, just to name a few. Last Sunday alone, after President Trump’s tweets about the NFL, the phrase “national anthem” was said in more sentences on TV news than “Puerto Rico” and “Hurricane Maria” combined. Those other stories are worth covering, of course. But compared to the other natural disasters of the past few weeks, Hurricane Maria has been relatively ignored. Data from Media Cloud, a database that collects news published on the internet every day, shows that the devastation in Puerto Rico is getting comparatively little attention. [ Polley : pretty interesting graphics; more interesting are the techniques employed.] top

Restoring those old liner notes in music’s digital era (NYT, 29 Sept 2017) - Two decades into the era of online music, streaming has been hailed as the industry’s savior, but a complaint from the earliest days of digital services persists: What happened to the liner notes? Much of the material that once accompanied an album has long since been stripped away - not just the lyrics and thank-you lists, but also essays, artwork and even basic details like songwriting credits - leaving listeners with little more on their screens to look at but a song title and a postage-stamp-size cover image. One company, TunesMap , wants to return much of that lost information, and more, through an interactive display that, when cued by a song playing on a streaming service, will present a feed of videos, photographs and links to related material. After a decade of development, TunesMap is scheduled to make its debut in November as an Apple TV app that will work with Sonos, the connected speaker system. The app is the brainchild of G. Marq Roswell, a Hollywood music supervisor who has worked with David Lynch and Denzel Washington. He bemoans the way early digital players and online music stores like iTunes removed all sense of music coming from a particular place and time. Working with Nigel Grainge , an influential record executive who died in June; Erik Loyer, an app developer and media artist; and Jon Blaufarb, an industry lawyer, Mr. Roswell in 2007 began to design what he calls an interactive “context engine.” Stream a song on a Sonos speaker and, if TunesMap’s app is also fired up on Apple TV, images and historical information related to the artist or a song’s origins begin to float buy. For a Bob Dylan song, the app shows vintage photographs of Greenwich Village, news clippings and links to related artists (like Martin Scorsese, who directed the Bob Dylan documentary “No Direction Home"). The goal is to present fans with a web of educational “rabbit holes” to explore. top

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Elsevier launches encyclopedic tool (InsideHigherEd, 3 Oct 2017) - The publisher Elsevier has announced the launch of ScienceDirect Topics, an information platform that has been compared to Wikipedia . The tool, announced last month, uses information from Elsevier books to generate “a quick snapshot of definitions, terms and excerpts on scientific topics.” An Elsevier news release said the tool would save researchers time because they won’t have to navigate away from Elsevier research articles to look up information outside their core discipline. “Previously, researchers would have had to leave the site, open up a search engine and spend time trying to find the right and trusted information. Not anymore. Our new technology enables researchers to access these foundational references and knowledge quickly, easily and at the point of need,” said Sumita Singh, managing director of Elsevier Reference Solutions. top

Google to ditch controversial ‘first click free’ policy (The Guardian, 2 Oct 2017) - Google is to abandon its controversial policy of forcing news providers to offer free articles in order to appear on its search engine as part of a collection of measures designed to support the growth of digital subscriptions. The US company will replace its so-called “first click free” policy, which requires publishers to offer three free articles a day before readers come across a pay wall. Instead Google will offer a flexible sampling model that allows news organisations to decide how many, if any, articles it offers for free. The “first click free” model has been described as “toxic” by publishers such as Axel Springer and Rupert Murdoch’s News Corp. Google is making the move after feedback from publishers and readers and after tests with the New York Times and the Financial Times . It is also a recognition of the growth of subscription services and the fact a “one size fits all” approach was not appropriate. As well as dropping “first click free”, Google will make it easier for users to subscribe to services. For example, people will be able to subscribe to news providers with one click through Google’s existing payment technology. top

Equifax is reportedly reviewing actions of its top lawyer, who oversaw security and stock sales (ABA Journal, 2 Oct 2017) - Equifax’s board of directors is reportedly scrutinizing the actions of the company’s chief legal officer, John Kelley, because of two of his duties-overseeing security and approving stock sales by executives. The Wall Street Journal (sub. req.) has the story , based on anonymous sources. Kelley had the responsibility to approve stock sales by senior executives, three of whom sold stock worth about $1.8 million days after the company discovered the data breach on July 29, according to the Wall Street Journal. Equifax has said the executives were not aware of the breach when they sold stock. It’s unknown when Kelley was told about the hack. Also, the company’s former chief security officer reported to Kelley. The company wanted the chief legal officer to oversee cybersecurity rather than an executive who might be concerned about the allocation of money, the article explains. top

Google’s new Gmail security: If you’re a high-value target, you’ll use physical keys (ZDnet, 2 Oct 2017) - Google will soon be offering an Advanced Protection Program to lock down the Gmail accounts of high-value targets. According to Bloomberg , the new Gmail service will block third-party apps from accessing user data and introduces a replacement for two-factor authentication based on Google’s USB Security Key. Google will begin offering the Advanced Protection Program next month, which will be marketed to “corporate executives, politicians and others with heightened security concerns”. Bloomberg notes that the service builds on USB Security Key, for which Google introduced software in 2014 . Security Key is a physical USB key used in place of a code required for two-step verification. It’s more secure because an attacker needs physical possession of the key to access an account they have credentials for. The USB key also cryptographically verifies the user is on a legitimate Google site and not a phishing site. G Suite admins can force their users to require the USB key for login. The Advanced Protection Program will require two keys to use the service, according to Bloomberg. top

More than 80% of all net neutrality comments were sent by bots, researchers say (Motherboard, 3 Oct 2017) - The Trump administration and its embattled FCC commissioner are on a mission to roll back the pro-net neutrality rules approved during the Obama years, despite the fact that most Americans support those safeguards . But there is a large number of entities that do not: telecom companies , their lobbyists, and hordes of bots. Of all the more than 22 million comments submitted to the FCC website and through the agency’s API found that only 3,863,929 comments were “unique,” according to a new analysis by Gravwell , a data analytics company. The rest? A bunch of copy-pasted comments, most of them likely by automated astroturfing bots, almost all of them-curiously-against net neutrality. “Using our (admittedly) simple classification, over 95 percent of the organic comments are in favor of Title II regulation,” Corey Thuen, the founder of Gravwell, told Motherboard in an email. This one was sent to the FCC 1.2 million times: The unprecedented regulatory power the Obama Administration imposed on the internet is smothering innovation, damaging the American economy and obstructing job creation.\n\nI urge the Federal Communications Commission to end the bureaucratic regulatory overreach of the internet known as Title II and restore the bipartisan light-touch regulatory consensus that enabled the internet to flourish for more than 20 years.\n\nThe plan currently under consideration at the FCC to repeal Obama’s Title II power grab is a positive step forward and will help to promote a truly free and open internet for everyone.\n In case you are wondering, the “\n” strings as well as other weird symbols that might appear in other comments are alternative representation of certain special characters, or line breaks, according to Thuen. The comment above was already spotted as coming from bots in May . (Gravwell published some of the data they crunched in a spreadsheet in case you are curious.) top

App listening for audio beacons may be illegal wiretapping-Rackemann v. Colts (Technology & Marketing Law Blog, 4 Oct 2017) - This is a lawsuit against the Colts and app developers, alleging that the Colts’ app activates a device’s microphone and temporarily records portions of audio, for advertising purposes. The app monitors the audio for “beacon tones” which are then used to deploy advertisements. The app is able to listen on command and while running in the background. The app’s terms of service allegedly does not disclose the use of beacon technology or that it activates the microphone for the purposes of “listening in”. It’s unclear from the order precisely when the listening feature was activated. Plaintiff alleged that he downloaded the app from the Google Play store and used it to follow the Colts and as a result, the app listened in on his “private conversations”. He sued on his own behalf and on behalf of a putative class. The various defendants (the Colts, app developers) moved to dismiss. The court denies the motions. * * * top

Supreme Court says live streaming would “adversely affect” oral arguments (Ars Technica, 4 Oct 2017) - The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome. “The Chief Justice appreciated and shares your ultimate goal of increasing public transparency and improving public understanding of the Supreme Court,” Roberts’ attorney, Jeffrey P. Minear, wrote (PDF) the four members of Congress seeking (PDF) to have the court’s gerrymandering case live streamed in audio. “I am sure you are, however, familiar with the Justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request.” For years, members of Congress and the public have been trying to get the high court to televise or to live stream the audio of their oral arguments, in a bid to make the court more transparent. The response has always been an affirmative “NO” out of fear that it could affect the proceedings. The court’s oral arguments are open to the public, however, and the audio version of an oral argument is usually made publicly available on the Friday of the week that the case was argued. The court’s opinions are also posted to its website when the court releases them. In other ways, however, public access to the court has been stuck in the Dark Ages-such as when it comes to obtaining briefs submitted by parties to the court. The court does not make them available online. But it plans to do so for free beginning next month . The lower federal courts started making their records available online nearly two decades ago using a paid system called PACER . [ Polley : Why should the Supreme Court be different from other gov’t entities?] top

New CIS cybersecurity guide for small and medium businesses (Ride The Lightning, 5 Oct 2017) - The Center for Internet Security (CIS) recently published CIS Controls: Implementation Guide for Small- and Medium-Sized Enterprises (SMEs). This guide contains a small sub-set of the CIS Controls specifically selected to help protect SMEs. The guide seeks to empower the owners of small and medium-sized enterprises to help them protect their businesses with a small number of high priority actions based on the CIS Controls - a comprehensive set of cybersecurity best practices developed by IT experts that address the most common threats and vulnerabilities. The guide is only 15 pages - well worth reading in conjunction with the NIST Cybersecurity Framework (covers businesses with up to 500 users) - and it mentions a number of free and low-priced tools. The CIS Controls discussed include: * * * top

RESOURCES

Law Enforcement Access to Student Records: A Guide for School Administrators & Ed Tech Service Providers (Future of Privacy Forum, 26 Sept 2017) - Today, the Future of Privacy Forum released a new paper, Law Enforcement Access to Student Records: A Guide for School Administrators & Ed Tech Service Providers . With the repeal of the Deferred Action for Childhood Arrivals (DACA) program last month, it is important that schools - and the companies that serve them - understand their legal options and when they may be required to disclose student personal information to law enforcement. “The Federal Education Rights and Privacy Act (FERPA) broadly prohibits schools from disclosing student records without the written consent of the parent or student,” said Amelia Vance, FPF Policy Counsel. “In this Guide, we highlight two key best practices when responding to federal requests for student data: 1) consult legal counsel to determine your obligations; and 2) carefully align the amount and types of data you collect about students to the programs and services you provide,” said Vance. The Guide notes that some schools collect student immigration status or other data that can be used to imply immigration status. “If schools collect student immigration status data, it is considered part of the student record and is protected by FERPA,” Vance said. The Guide explains that schools may only disclose this information with consent or in response to a valid court order or subpoena. In addition to the Guide, FPF has released an accompanying blog with a list of supplemental resources and articles. top

Stop and Frisk Online: Theorizing Everyday Racism in Digital Policing in the Use of Social Media for Identification of Criminal Conduct and Associations (Sage Journals, 28 Sept 2017) - Abstract: Police are increasingly monitoring social media to build evidence for criminal indictments. In 2014, 103 alleged gang members residing in public housing in Harlem, New York, were arrested in what has been called “the largest gang bust in history.” The arrests came after the New York Police Department (NYPD) spent 4 years monitoring the social media communication of these suspected gang members. In this article, we explore the implications of using social media for the identification of criminal activity. We describe everyday racism in digital policing as a burgeoning conceptual framework for understanding racialized social media surveillance by law enforcement. We discuss implications for law enforcement agencies utilizing social media data for intelligence and evidence in criminal cases. top

FUN

I Fought The Law; A photo exploration of the most absurd American laws and legal legends (Mashable, 28 Sept 2017) - It all started with one vague conversation. “One winter evening in 2012, a friend told me it was illegal to have an ice-cream cone in your back pocket,” says photographer Oliva Locher. “Our conversation quickly moved on to a new topic but that statement stuck with me. After doing some research and learning of many other strange laws I knew I had a new project.” That project transformed itself into Locher’s new book, I Fought The Law , a photo examination of the absurd laws in American history. For the book, Locher figured out strange laws in each state in the U.S. and photographed each one being broken. top

LOOKING BACK - MIRLN TEN YEARS AGO

(note: link-rot has affected about 50% of these original URLs)

Yahoo strikes deal to catalog lyrics online (SiliconValley.com, 24 April 2007)—Yahoo has teamed up with Gracenote, an Emeryville company, to offer what it is calling “the largest catalog of legal, licensed song lyrics” on the Web. “It fills a huge, gaping hole out there,” said Ian Rogers, general manager of Yahoo Music. While there are plenty of Web sites offering lyrics, Gracenote is the first company to have gone through the painstaking process of negotiating deals with the thousands of publishers who own copyrights to the lyrics. The catalog offered by Yahoo will include lyrics of 400,000 songs owned by more than 10,000 publishers. About 9,000 artists are represented, ranging from classic names such as the Beatles and Bob Dylan to more recent stars like Radiohead and Beyonce. Craig Palmer, chief executive of Gracenote, said it took more than two years and nearly 100 deals to forge the legal framework behind the database. Gracenote then had to create standards for publishing lyrics on the Web and put together an automated system for compensating the songwriters. This can include as many as 10 writers on a single hip-hop song. “The copyrights, the database and the payments issues all had to be solved in order to bring this obvious service to market,” Palmer said. Yahoo’s song lyrics are supposed to be the official versions. Under the licensing agreement, Yahoo will share with copyright holders the revenue from the ads that will be displayed alongside the lyrics. Music publishers such as BMG Music Publishing, EMI Music Publishing, Sony/ATV Music Publishing, Universal Music Publishing Group and Warner/Chappell Music are contributing lyrics. top

8.3 million Americans victims of id theft (Washington Post, 27 Nov 2007) - Nearly 4 percent of American adults were victims of identity theft in 2005, but half of them did not incur any out-of-pocket expenses, the U.S. Federal Trade Commission said on Tuesday. An agency survey found identity information was stolen from 8.3 million U.S. adults and most commonly used to access or open accounts for credit cards, bank checking, telephone service, e-mail, and medical insurance. “In more than half of the incidents, victims incurred no out-of-pocket expenses,” the FTC said in a statement. However, 10 percent of the victims reported out-of-pocket expenses of $1,200 or more, it said. The FTC survey also looked at the value of goods or services that thieves obtained using the victims’ personal information. In half of all incidents, thieves obtained items or services worth $500 or less while in 10 percent of cases, thieves got at least $6,000. Some 37 percent of victims reported problems beyond their out-of-pocket expenses, the FTC said. They included being harassed by debt collectors, denied new credit or loans, unable to use existing credit cards, having utilities cut off, or having difficulty obtaining or accessing bank accounts. top