Is FCC violating process again with Net Neutrality action? Or just being Shortsighted and Stupid?

The first two FCC attempts to impose some "network neutrality" rules were vacated by the Federal Courts because the rulemaking was based, in large part, on imputed authority that the FCC did not statutorily have (see earlier post here), further supported by evidence that the FCC had violated its own procedures for rulemaking.  At the time of the second Court decision, many policy folks (myself included), commented that if the FCC wanted to move forward with Net governance and regulation, the best approach was to base a claim for regulatory authority under Title II of the Communication Act - which does cover telecommunication networks.
With the FCC deciding that it will issue a rulemaking addressing Network Neutrality this Thursday, without publicly releasing the actual rules being considered, the FCC would again be clearly violating the spirit, if not the letter of its own (statutory) rules on due process.
The FCC, when considering new rules and regulations, is supposed to undertake a multistage process that starts with a public Notice of Inquiry, a period to allow public (and industry comment), then a Notice of Proposed Rulemaking that outlines the proposals, followed by more opportunity for public comment.  Normally, if the FCC wants to consider substantive changes to proposed rules and regulations, it posts a Further Notice outlining the changes, and offers an additional period for public comment.
Tom Wheeler, the current head of the FCC, argues that the FCC has already gone through several NOIs, NPMs, and public comment periods.  However, the proposed regulatory framework for those appears to be totally different from what is to be acted on this week.  While the FCC doesn't have to refile Further Notices for every little change in the rules, because the proposals that had been discussed are substantially different from those to be voted on, this case clearly violates the both the spirit of the rulemaking process in that it hasn't allowed any time for public review and comment on what seems to be a wholly different set of rules and arguments than what had been previously proposed and discussed.  In addition to tossing claims of being "transparent" onto the growing dustheap of broken promises of transparency by this administration.  (In fact, as a Senator in 2007, Obama called the FCC's attempt to pass rules without full public disclosure and opportunity for public comment "irresponsible.")  Furthermore, the FCC is supposed to be an independent regulatory authority, not one that would toss aside several years of proposed rulemaking and public discussion to (allegedly) adopt - in full and without review, discussion, or amendment - a plan written by political operatives in the White House.

Regardless of the ethics of the current Chairman's behavior, and the potential authority Title II provides for regulating telecommunication networks, bringing the Internet under Title II is not necessarily reasonable or appropriate - in large part because of the statutory language in the 1934 Communication Act and the 1996 Telecommunication Act.
The 1934 Communication Act gave the FCC regulatory authority in two areas: Title I dealt with radio transmissions (including broadcasting), and Title II dealt with, basically, telephone networks.  More specifically, it was designed to deal with the existing local monopoly wired, switched, telephone system.  (The FCC was granted oversight of cable systems - redefined as multichannel video delivery services - by the 1984 Cable Act).
With the rise of the first use of wired telecommunications for computer communications in the late 1950s and 1960s, the FCC examined the question of whether computer networks should be regulated under Title II.  They reached a conclusion that it would not fall under Title II for several reasons: the computer network (later expanded to information) services typically did not own and run the actual wired networks they employed, but rather leased lines from telephone companies (the separation of service from network is explicit in FCC definitions of those terms.

There is a hard and fast statutory line separating the information services that utilize telecomm networks, and the telecomm-based distribution networks that deliver those services.  The current language would seem to explicitly exclude Information Services from falling under Title II. Also, on the technological side, the developing computer networks and information services used quite different technologies than telephony, and so the part of Title II that deals with technical standards would be largely irrelevant (if not applied) and inappropriate (if applied).  But most importantly, the FCC felt that trying to set standards and apply Title II regulation to computer networks and information services would restrict developments and innovations by imposing a governance structure that favored certain uses over others.

The main philosophy of Title II's network regulatory approach is that networks should act as common carriers (a regulatory philosophy borrowed from railroads and freight services). The essence of common carrier status is that the network should not discriminate among its users - that they shouldn't give favored treatment to one user over another. 

 One of the widespread fallacies in Network Neutrality discussions is that common carriers can't treat users differentially (thus everyone should have the same rate for internet connectivity). Actually, there's a long history of permissible differential treatment, as well as a long history pointing out the social benefits that can be acheived through appropriate cross-subsidies. Telecomms can treat users in different localities differently, and more critically, can differentiate on the basis of level of service. All they need to do is show that the costs of providing a particular type of network connection are different (a content-neutral rationale). The FCC has even allowed differential treatment for certain general classes of services (911, toll-free numbers, added-charge numbers). Furthermore, the 1996 Telecommunications Act removed many aspects of telecomm regulation from FCC oversight.

 In addressing the Title II approach, policymakers and pundits need to recognize that i) Title II is largely limited to telecommunication network operators, and the existing statutory language is not readily, or easily, extendable to Information Services and most ISP operations; ii) many of the aspects of the 1934 Act that regulators want to rely on for the new Internet rules have been superseded by the 1996 Act; and some issues are addressed by other laws and statutes (for example, copyright and privacy laws that expressly address ISPs, Information Services, and digital network operators). Many of the areas and concerns that Network Neutrality proponents are primarily concerned with may not be covered by a simple extension of Title II regulatory authority to the Internet.

While Title II can be a better foundation for asserting regulatory authority, just claiming that "We've changed our minds, information services and ISPs fall under Title II" is not likely to pass judicial review - because what they do doesn't fit the existing statutory language. Doing a sweeping assertion of authority is what got the FCC in trouble in previous attempts, and going the Title II route without serious review - if the action isn't quickly overturned - is going to create a virtual minefield of implementation problems and legal challenges - with the FCC and the Courts having to then decide which of the 100+ pages of telephone regulations should apply to the Internet, its backbone network providers (who already effectively act as common carriers anyway), ISPs (many of which are a mix of network operators and information services), and the Information Services that provide the content and services to users.  Should Universal Service apply to ISPs? Should ISPs be subject to the specific taxes applied to telephony (including one designed to help retire the Spanish-American War debt - which was paid off about 100 years ago - but still shows up on your telephone bill). Should the FCC's authority over pricing in the Internet apply only to interstate and international connections (the only price authority the FCC has over telephone rates under Title II in the 1934 Act, and which was sunseted out in the 1996  Act - leaving the FCC without statutory authority to regulate telecomm (ISP) rates and services)?

In other words - going the Title II route really needs extensive discussion of the proposed rules and policies to work out the problems and kinks that would be associated with that approach.  But the current FCC Chair and Democratic Commissioners seems determined to take the easy and quick approach of simple proclamation and promulgation of a massive set of new regulations, rather than doing the smart thing of working out the details and gaining some consensus from the various stakeholders that would be impacted by the new rules.  Or even considering if there is really any need for a massive overhaul and imposition of governmental (possibly politicized) oversight and control of a significant, and efficient major sector of the economy, and an increasingly vital source of information by both private and public sectors.

As I said with the last two FCC attempts at grabbing Internet oversight - this is too important, and too critical, to take short cuts.  If the FCC is going to do this, they need to do it the right way - with true transparency and plenty of opportunity for the public to point out the problems and pitfalls that always comes with trying to set uniform rules for very complex systems.  And first asking the most important question - do we really need to impose any kind of regulatory structure on the an efficient, innovative, and highly flexible Internet and Information Services sectors?

Droning On, or Not

So we got our first drone/videocamera system a while back (at UTK's School of Journalism & Electronic Media), just before the FAA came out with its restrictions on drone use.  And checking with the University's legal office, they initially said we should limit use to over University property; then said better not use it until FAA figures out rules.  And so it's been on a shelf in our equipment room for the last year.

It's not that we, and other journalism programs, don't see the potential of drones to gather information and images.  One early application of drone journalism was its use to cover the aftermath of Alabama tornadoes in 2011. [The FAA started an investigation of that "unauthorized" drone usage, arguing that it violated its regulations (as yet, no public announcement of actions)].

On the international front, the Bangkok Post used drones to cover the political protests last year, Meanwhile, drones are finding widespread applications in filmmaking - especially documentaries (where drones offer significant cost savings over renting helicopters) - and other uses related to imaging (real estate) and monitoring (disaster relief, agriculture, etc.).   Drones are proving to be potentially very useful tools, albeit with real concerns about potential loss of privacy, or damages from drones hitting things (power lines, other aerial vehicles, even people). There's certainly enough to keep a few academic drone journalism centers occupied.

In the meantime, the FAA has banned most commercial drone use, while it works out its concerns and develops drone-specific rules.
In the meantime, this summer's seen an emergence of interest in drone journalism - based on some really good examples internationally, and a spate of horrified reactions when a (thankfully false) report surfaced that celebrity-news outfit TMZ had applied for a license to operate drones (to peek into celebrity homes and back yards).  The report was false, but the renewed interest in the ability to use drones in news gathering isn't.
 A number of "drone journalism" programs and centers have developed at University journalism programs. The initial problem they all face is getting permission to actually use drones for news gathering and news reporting.  Initially, many thought they could get waivers in the form of FAA "Certificate of Authorization" (COA) program designed for unmanned aircraft systems (UAS).  That program allowed UAS use for research purposes, by "public operators (i.e. government agencies) of a specific drone within a specified geographic location for a limited period of time."  Even if the program was appropriate, the regulations require advance notice and approvals for each use, and severely limits the area and times of use - conditions that curtail the utility of drones for spot or breaking news coverage.
We profs would probably try sneaking drones into our journalism curriculum anyway, as we could identify specific times and places for class demonstrations.  However, the FAA indicated quite early on that "drones" were not the kind of "unmanned aircraft system" their current regulations covered, and until they could come up with new rules specifically for drones, most commercial drone usage (including for news coverage) was banned. So for now, the ability of most programs to use drones in journalism coverage and education is effectively curtailed.
That hasn't stopped some "drone journalism" centers and programs from partnering with news organizations to "research" drone journalism.  One, a joint project by Georgia Tech and CNN, to “investigate technologies, operating procedures, and crew skill requirements that will enable the safe and effective use of UASs for news coverage”, seems willing to continue despite FAA limits (part of that project is looking at aeronautical control systems, which the FAA considers UAS research).  Many others (Nebraska, Missouri, South Florida) have tried applying for COAs, despite the limitations.  But those approvals have not been coming.
Just as the FAA quickly decided that drones weren't UAS and thus able to operate within those guidelines, the FAA seem to have decided that drone journalism and other drone applications aren't what they meant by UAS research and were unlikely to get COAs.  Last month, the FAA said so explicitly, releasing a Memorandum that indicated that the only allowed use covered by a COA was for aeronautical research, which was restricted to research on airplane and aeronautical control systems.  The memorandum also indicated that the use of off-the-shelf drones for other research purposes (including journalism) would not be eligible for COAs.  The FAA suggested that public universities looking at drone applications wouldn't qualify as "public operators," either.

“The public aircraft statute exists to free governments from regulation, not to confer a benefit on government entities that is unavailable to civil operators. ... The public aircraft statute and UAS COAs do not exist to create a loophole of exclusive operation, or to allow state universities to become exclusive providers of certain aircraft operations by any entity willing to fund them as ‘research.’ ”

This certainly has slowed development of drone journalism here in the US; at least until 2015, when the FAA hopes to have new rules in place for drone operation.  Still, that delay hasn't slowed discussion of potential ethical issues, and consideration of whether the news industry should develop  normative guidelines for the use of drones in news reporting. Among the top ethical issues is the question of privacy (the TMZ/paparazzi issue), public concern that news organizations could be contributing to the growth of surveillance in public life, and the likelihood that drone coverage of criminal activities is likely to be subpoenaed by police (conflicts of interest).  Then there's the strong possibility of unanticipated effects, like drones hitting people or remote operators losing control. 

It's going to be an interesting new world with drone journalism, if and when the FAA allows it.

Sources: The Debate on Drones: Navigation for Journalists, PBS Mediashift, EducationShift
Ethics Aloft: The Pros and Cons of Journalists Using Drones,  PBS Mediashift, EducationShift.
University Hopes To Lend Drones To Students, May Face FAA Challenge, Forbes.com
Unmanned Aircraft Systems Alert: FAA memorandum may jeopardize certain state university research projects involving unmanned aircraft, Legal Alert from Kramer Leving Naftalis & Frankel laaw firm.

Copyright Decision on Aereo

Aereo is a recent technology service that offered online access to local TV broadcasts in selected markets in the U.S.  For a fee, they grabbed programs that a subscriber requested, from "free" over-the-air local broadcasters, digitally converted the broadcast into a IP stream that was sent directly to the subscriber's connected device.

And when TV networks and cable systems  heard about it, they sought to pre-emptively ban it.  Cable because it was a much cheaper alternative to a service they sought to provide.  The networks' objection was pithily stated by one network CEO: "If anyone makes money from local broadcasts, we demand a share of it."  A consortium of networks and MSOs filed suit claiming that Aereo violated copyright law and seeking an immediate injunction against deploying the system; however, the judge in that case ruled against an injunction as Aereo offered a reasonable argument that its service was not a violation of copyright - but did not initially rule on the viability of that argument.  Both parties wanted to expedite matters, so they sought to bring the case to the Supreme Court to get a final ruling on the basic copyright issues.

Copyright law is fairly simple, yet complex.  The law gives the owner of the copyright the legal authority to determine the conditions under which the copyrighted material is made available to others.  It also, however, permits a "fair use" exemption under certain general conditions - allowing others to access and use the content under restricted conditions.  The rise of broadcasting created an issue, however - what counts as a "copy"?  This came to a head with the rise of cable systems, and their retransmission of over-the-air broadcast signals from local (and eventually distant) stations.  As a result, Congress amended copyright law to include "public performance" of audiovisual signals, and specifically applied that term to carriage ("retransmission") of over-the-air television broadcasts. 

Around the same time, the Supreme Court issued a ruling on what behaviors were considered "fair use" of audio and video content.  Specifically, they ruled that - for legally acquired content - individuals could record content for their later use (time-shifting), transfer and translate content for use in different locals or on different devices (place-shifting), and make a back-up (archive) copy, but only for their own use.

Aereo's service was designed to fit those "fair use" guidelines and the "free" nature of over-the-air broadcasting (stations are prohibited from charging viewers for access to public broadcasts).  Each Aereo subscriber was assigned their own antenna for receiving the free broadcasts, and unlike cable, content was not retransmitted unless specifically requested by that subscriber, and was made available only to the device the subscriber sent the request from.  Aereo argued that they were not engaging in a public performance, but a private one that essentially amounted to the time-shifting and place-shifting aspects of fair use.

The big media consortium (ABC et al.) argued that the Aereo service was simply a retransmission service, and was engaged in "public performance" because it offered its service to the public at large.  Therefore, Aereo was in violation of U.S. copyright law.

The recent Supreme Court ruling (6-3) was that Aereo's service was "substantially similar" to cable, because it offers a service that allows subscribers to watch TV programs, and that it is a "public performance" because several subscribers may be watching the same program, thus constituting a "public."

It's not terribly surprising, although it is disappointing, that the majority decision is technologically ignorant and focuses on outcomes rather than processes and behaviors.  To the majority, any technology that delivers TV programs to members of the public is essentially no different than a cable system and thus any retransmission right for that content must be granted by the copyright owner (presumably, but not necessarily, for a fee).  In addition, the majority nonsensically assumes that since the copyright act does not explicitly define "public", it is any group of individuals beyond what may be watching on a single device. The majority also finds that it makes no difference who is initiating and controlling the retransmission - an individual subscriber or a cable system; rather, they shift the focus to Aereo because it offers a "service."

There is a weird yet nonsensical example given, where the majority suggests that Aereo's problem is that it doesn't provide a service to the copyright owners, but to the public.  The majority repeatedly focuses on copyright owner's right to set the terms of "performance" or consumption.  This ignores the fact that, under law and the terms of their licenses, local broadcasters must provide their copyrighted content freely and without restriction to the public.  Not only to those watching live at home on a TV set, or through a cable system paying retransmission fees; the viewer, or Aereo subscriber, already has the legal right to view or listen to broadcast content.  The copyright owners have already been paid for that performance by the broadcaster - the majority seems to think that viewers need to pay a second time to engage in time-, place- or device-shifting.

The majority decision argues that this ruling does not prejudge future technologies, saying that it is not their intent.  It's hard, though, to see how this is possible, when the decision sets down three extremely broad definitions - 1) that any system for delivering TV content to consumers is "substantially similar" to cable and thus subject to cable's rules; 2) that any group of individuals is considered to be "the public"; and 3) that the driving purpose is not protection of a copyright owner's rights, but the networks "right" to offer a "public performance" of copyrighted material.  Combine that with the majority decision's total disregard for the specific elements of technology and service offered by Aereo - and thus not providing any hook for a narrow argument - and you set a precedence for overreach.

Further, this case offered the opportunity to re-examine which activities are covered by "fair use."  In light of the wretched quality of the decision, I'm relieved that this Court didn't take up that opportunity.

The dissent shreds the majority decision, arguing that the service provided by Aereo was not even a "performance" as defined by copyright law, much less a "public performance."  Rather than looking at the end stage of the service (providing TV programs to viewers) and making an indefensible leap to equate it with cable, the dissent treats Aereo as an Internet content delivery system.  And supports their argument by actually looking at what the service does, then examining the actual case law relevant to those actions (rather than relying on problematic anecdotes).  The dissent eviscerates the majority's "looks like" argument, noting how it conflicts with other recent decisions (including some authored by the same Justice who wrote the majority decision), and ignores both the question of the type of copyright violation being considered (primary, secondary violation, and whether Aereo is acting as an ISP and thus exempt), as well as the issue of "fair use" and the role of the subscriber (not the system) in selecting content for viewing.

The majority decision has turned a copyright case into a "performance" result, achieved only with mystical inference of Congressional intent, over-broad definitions of "public" & "performance", and a "looks like a duck" equivalence of two video delivery systems that could hardly be more polar opposites in technology and operation.  And by doing so, making the application of copyright to new technologies and content delivery systems even more problematic for the future.

And of course, the TV & cable industry hailed the decision, seeing a potential source of revenues (or a protection of current retransmission rights fees).  However, that's likely to be a short-term and low-value source for broadcasters and networks for two reasons - first, that while they think they're soaking the service operator for these revenues, eventually viewers will figure out that stations and broadcast networks are asking them to pay for "free TV"; second, that it's the content that generates the value for viewers, not their "public performance" of that content.  In fact, to the extent that the broadcast "performance" has any value for the station or network, it comes from the broadcast's ability to reach an audience; as such, any mechanism that will extend or expand their reach should be welcomed, rather than challenged.

Sources -  Supremes Rule Against Aereo, Broadcasting & Cable
ABC et al. v. Aereo, Supreme Court decision No. 13-461

US to get Shield Law?

Yesterday, the US Senate Judiciary Committee passed out a proposed bill that would provide journalists some protections from having to testify or reveal sources - at least more than they currently have at the Federal level.  From what I can see in press reports, there are three serious gaps in the so-called shield law.

1. The proposed bill is clear that the protection is limited - Federal authorities retain the power to "compel disclosure" that might prevent or stop "serious crimes" or harm national security.  That's a potentially huge exemption
2. The bill expressly does not protect those disclosing "primary-source documents... without authorization."  While aimed at Wikileaks, remember that in the Pentagon Papers case, the NY Times coverage was based on disclosing "primary-source documents... without authorization."
3. Senator Diane Feinstein (D-CA) insisted on amending the bill limiting protection to "real reporters."
         "I can't support it if everyone who has a blog has a special privilege …"
   The amendment language defines a covered journalist as someone working for "an entity or service that disseminates news and information."  That is, you're considered a journalist not in terms of what you do, but who you work for.

 The Reporters Committee for the Freedom of the Press was lukewarm in its response, indicating that the proposed law

"goes a long way toward ensuring that reporters will be protected from subpoenas for their confidential information and sources.... While is it not as inclusive as we would like, it is not nearly as limited in that area as previous attempts at a federal shield law have been."

In this case, I'm not sure that such a limited shield is worth supporting.

Source -  Bill to protect journalists clears Senate panel, Los Angeles Times

Did You Know? - Email Privacy

In the U.S., the Electronic Communications Privacy Act (ECPA) currently allows law enforcement agencies can subpeona two broad classes of emails without having to show probable cause or obtain a warrant - any email that's been opened by its recipient, and any email that's at least 180 days old.
  Now this might not have made waves when the ECPA was initially passed in 1986, but some recent high-profile email snooping has brought the practice to light.

While ECPA was designed to balance people's privacy rights with the needs of law enforcement agencies investigating crimes, privacy rights groups have accused the Department of Justice of taking an overly broad interpretation to ECPA, based on the agency's reading that old emails aren't subject to protection under the Stored Communication Act.

After the Ninth Circuit Court of Appeals, which covers the western United States -- including California -- ruled that the Stored Communications Act did apply to emails, the Justice Department advised investigators that when accessing emails more than 180 days old without using a warrant, they should do so outside the court's jurisdiction. 

When the US Justice department starts advising law enforcement to ignore the law (as long as they don't get caught in the Ninth Circuit), that's ringing the privacy alarm bells and asking for added legislative and judicial oversight.

One reaction is the Leahy-Lee ECPA Amendments Act, which was approved by the Senate Judiciary Committee last week.  The bill would require law enforcement to obtain warrants in order to access stored online communications and content (including documents, pictures, and other information stored in the cloud).

"I have long believed that our government should obtain a search warrant -- issued by a court -- before gaining access to private communications," Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said...

I'm hopeful for speedy passage through Congress, and a Presidential signature.  But Congress has had trouble getting online and privacy laws right, and one has to wonder whether this President would be willing to reign in his own Dept. of Justice.  Given this administration's track record of ignoring laws and court rulings it doesn't like, I'm not so positive about the eventual outcome.

Source -  Email Without A Warrant? Senators Not Sold,  Information Week

Is TV Everywhere Legal? For now, maybe...

The last year has seen several new start-up services that seek to provide users access to programs they legally receive at home when they aren't in front of the TV.  And that's part of the goal of TV Everywhere - being able to access and view programming regardless of time, location, or type of screen.

  Aereo is a new start-up that offers subscribers access to their local TV stations through the internet, particularly via mobile devices.  It works by providing subscribers with a small antenna/tuner connected to their home Internet connection portal; allowing subscribers to take their free broadcast TV signals beyond the home.  As soon as the Areo started its service, they were sued by a consortium of networks and broadcasters for copyright infringement.  Part of the suit asked the courts to ban the service while their suit was in litigation - i.e., they wanted to kill the service while the challenge dragged out in court for years.
  An appeals court has now affirmed the trial court ruling against an injunction, allowing Aereo to continue operating through the litigation process.  Normally, such an injunction banning some behavior or service is awarded only if the party asking for the injunction is considered likely to win the case on its own merits.  As such, it's not a clear indication that Areo's service is legal, although judges indicated that Areo had a viable legal precedent for their system falling under "fair use" guidelines (as place-shifting of an otherwise legal signal).  That was enough to suggest that the challenge wasn't a cut-and-dried winner.

While I'm not a lawyer, the economist in me does wonder why broadcasters would object to a service that would make their signals more widely available and more valuable to viewers.  Perhaps it's not TV Everywhere access they object to, but not being offered a cut of Aereo's subscription revenues.

Source -  Appeals court denies broadcaster request to shut Aereo,  Consumer Electronics Net

Leahy's Email Privacy Bill does 180

Last May, Senator Pat Leahy (D, Vt.) introduced the "Electronic Communications Privacy Act Amendments Act of 2011" (PDF), ostensibly to ensure that police and government agencies needed a search warrant to access private conversations and information about locations of mobile devices.  The bill was, in part, a response to arguments from Obama's Dept. of Justice that "warrantless tracking should be permitted because Americans enjoy no "reasonable expectation of privacy" in their, or at least their cell phones', previous locations."

As the bill nears its scheduled vote next week, its come out that the bill has been dramatically rewritten.  Rather than protecting privacy, the revised bill specifically allows more than 22 Federal agencies "to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant."  The revised bill would also expand the powers of the FBI and Homeland Security "to gain full access to Internet accounts without notifying either the owner or a judge."

Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said requiring warrantless access to Americans' data "undercuts" the purpose of Leahy's original proposal. "We believe a warrant is the appropriate standard for any contents," he said. 

Leahy is said to have been pressured by groups representing police and district attorneys, as well as some strong politicking from the US. Justice Dept., to limit online privacy protections, or at least include major exemptions.  The revised bill does retain some protections from local and state police actions, but critics say it opens the floodgates for misuse at the Federal level.

Source -  Senate bill rewrite lets feds read your e-mail without warrants,  CNet News

ICANN Antitrust Case Moves Forward

A Federal  antitrust lawsuit filed against ICANN (Internet Consortium for Assigning Names and Numbers) has passed the first hurdle, with a Federal Judge ruling that ICANN, while a nonprofit, may still be engaged in the kinds of commercial activities covered by U.S. antitrust laws.  The Judge handling this preliminary hearing ruled that "ICANN's argument about its charitable purpose is "irrelevant to an analysis of whether ICANN's activities are commercial."
  A publishing company filed the suit

against ICANN last November, shortly before the rollout of a new ".xxx" top-level domain. ICANN said that companies or individuals could pay the registry ICM -- tapped to manage the .xxx domain -- to prevent their names from being registered with an .xxx at the end, but that doing so would cost $150.
(The suit argued) that companies or individuals who wanted to prevent their names being used by others in a .xxx domain should not have to pay a fee of $150. The company said the fee was artificially high and reflected price gouging, monopolistic conduct and other anti-competitive practices.

The ".xxx" domain was established expressly for porn and other "adult" sites, in part to facilitate the ability of filters to distinguish adult from more general-interest sites.
  When the case was filed, the Association of National Advertisers said the suit illustrated the issues that is likely to emerge from ICANN's plans to allow companies purchase the rights to use their brand names or other words as part of their top-level domain names (the text-based URL).

Source -  Judge Allows Antitrust Lawsuit Against ICANN,  Online Media Daily

FBI Blows Copyright Case

The high-profile case of contributory copyright infringement against file-sharing service MegaUpload was handed a major setback earlier today when the New Zealand High Court ruled that the search warrants used to seize servers and hard drives were illegal.
  The MegaUpload case was the US authorities' high-profile attempt to go after a non-U.S. internet service for contributory copyright infringement.  Contributory copyright infringement is defined as facilitating or encouraging copyright piracy, and MegaUpload was accused of encouraging copyright piracy by marketing a service where individual users could share files with others.  Since the corporate officers of MegaUpload lived in New Zealand, and their servers and data storage and servers were located outside the U.S., the FBI sought and obtained the cooperation of New Zealand authorities in serving warrants and arresting corporate officers.
  Responding to a legal challenge, the New Zealand High Court ruled that the warrants were illegal, as well as ruling that the FBI's moves to copy all the seized data and take it to the U.S. was unlawful.

"The warrants did not adequately describe the offences to which they related," High Court Judge Justice Helen Winkelmann said in her ruling. "Indeed they fell well short of that. They were general warrants, and as such, are invalid."

The ruling will impact further prosecutions in New Zealand and the U.S.  The judge ordered the FBI to return all copies of information and data provided by local authorities in violation of NZ law, and ruled that an independent lawyer would review all seized materials and judge what is relevant and appropriate to the case, and all other materials would be returned and could not be used in further court actions.  Lawyers for the Megaupload corporate officers raided indicated that they will argue,  in a hearing next week about how the case should proceed,  that all evidence seized in the raids should be considered tainted and invalid.  Standards in the U.S. are stricter, as any evidence obtained from illegal searches, or later developed based on information learned from the search, can not be used in court.  Lawyers for MegaUpload also argue that U.S. authorities cannot charge the company with criminal behavior because it is based in Hong Kong, asserting that no warrants or charges have been formally served on the company itself.
  Interestingly, lawyers representing the U.S. authorities said the ruling was "no surprise."  Which brings up the question of why jeopardize the case if you anticipate the warrants would be declared invalid?  Well, the procedures the U.S. have set up for combating intellectual property violations do not require any evidence of actual wrongdoing to take legal action.  The results in this case suggest that the U.S. will have trouble trying to gain cooperation from countries in the future in this area.  It's also a clear signal that a similar challenge in U.S. courts would be successful.

Sources -  NZ court finds Megaupload search warrants illegal,  Reuters
MegaUpload sees big court win, but case far from over,  cNet.com

Relevant posta -
The U.S. as Internet Bully
U.S. Efforts to Combat 'Pirates' by DNS seizure flops

Reporters Committee launches Digital Journalist's Legal Guide

Earlier this month, the Reporters Committee for Freedom of the Press posted a guide on press law issues that digital journalists might face.
Their Digital Journalist's Legal Guide is "designed to assist anyone who is disseminating news online, from an independent blogger to a reporter for a major media outlet."  The Digital Journalist guide follows on, and is integrated with, the Committee's other Guides: The First Amendment Handbook, The Reporters Privilege Compendium, Federal Open Government Guide and State Open Government Guide.

Source" Press release from the Reporters Committee

Smartphones: Evidence or Protected by Privacy?

From Jennifer Sprouse:

Here's an interesting article from the Atlantic magazine asking the question of whether cops should be allowed to search your phone- including email, photographs, and text messages- without obtaining a warrant. I think this is something that we should all be mindful of considering that our cell phones are our personal property, but this article raises the question of how personal our things are, and if the laws set in place already against warrantless searches and seizures will actually stand in the long run.

Source:  "Atoms vs. Bits: Your Phone in the Eyes of the Law," The Atlantic