Nov.-Dec. 2010 Quick Links, Part 2

By Eric Goldman

Wikileaks

Wikileaks has been on my mind for the past 2 months, but the stories have moved faster than I can. From my perspective, Wikileaks is principally a story about The Empire Strikes Back (It is a dark time for the Rebellion….). You may recall John Perry Barlow’s classic cyberspace exceptionalist screed, “A Declaration of the Independence of Cyberspace” and its government baiting: “Governments of the Industrial World, you weary giants of flesh and steel…[y]ou have no sovereignty where we gather….[y]ou have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”

For a dying dinosaur, the US government has shown remarkable agility marshaling forces to combat Wikileaks. Think of all of the private companies that shunned Wikileaks because it was ticking off the US government: PayPal, Visa, Mastercard, Amazon, EveryDNS, Swiss banks, etc.; and many US government agencies tried to block their employees from accessing Wikileaks. Recall in The Empire Strikes Back how Darth Vader relentlessly and single-mindedly pursues Luke and his band across the galaxy (The evil lord Darth Vader, obsessed with finding young Skywalker, has dispatched thousands of remote probes into the far reaches of space). That’s kind of like how the US government is chasing Wikileaks throughout the Internet galaxy.

As several people have pointed out, the US government would be lauding Wikileaks as heroes if they were releasing secret Chinese government documents. But, because they are releasing US government secrets, some have hyperbolically called them terrorists who should be assassinated. Hypocrisy alert! (More on this from Techdirt).

Despite the US government’s relentless efforts to pursue and destroy Wikileaks, its failure to excise Wikileaks-published secrets from the Internet is telling. It reminds us that efforts like COICA and domain name seizures are tools of censorship, but those efforts will not effectively suppress unwanted activity. (More on this from Derek Bambauer and WaPo).

There has only been a little discussion about Wikileaks’ US legal liability. As a republisher of third party material, Wikileaks–and all of its upstream service providers–presumptively qualify for 47 USC 230. However, there are a variety of criminal doctrines restricting the dissemination of US government secrets (although, as this CRS points out, none are a slam dunk; but see Declan’s perspectives), and federal criminal prosecutions are outside the scope of 230. As a result, the possible criminality here helps explain why Wikileaks could face significant legal risk and why all of Wikileaks’ service providers fold like a house of cards when confronted with requests/pressure from the US government.

Obama Administration

In so many ways, both important and not, the Obama administration hasn’t deviated from the paths set by the Bush administration. However, in the past couple months, some new winds have been blowing from the Obama administration.

* The FCC’s net neutrality proposal (NYT, WaPo, Reuters). Given the steadfast opposition from Congress to the FCC’s power grab and the likelihood that the courts will say the FCC overstepped its authority, are these DOA?

* The FTC released a report, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers, digesting over a year’s worth of FTC hearings (see my recap of the Berkeley hearing) and warnings. Among other things, the report advocates for browser vendors to incorporate a “do not track” feature analogous to the Do Not Call registry (an unhelpful analogy for reasons I explore in this article). Vladeck’s testimony on Do-Not-Track. In response, Microsoft will integrate a “do not track” feature into the Internet Explorer 9 browser, and Mozilla will add something similar in Firefox.

* The Commerce Department’s proposed Privacy Bill of Rights for online consumers (NYT, WaPo).

Privacy

* US v. Warshak (6th Circuit Dec. 14, 2010). Email is protected by the Fourth Amendment.

* Doe v. Shurtleff, No. 09-4162 (10th Cir. Dec. 1, 2010). Amended 10th circuit opinion that sex offenders can be required to register their Internet aliases.

* Dunbar v Google (E.D. Tex. complaint filed Nov. 17, 2010): class action that Google’s scanning of emails in Gmail to trigger ads violates the ECPA. This is such a déjà vu back to 2004!

* WSJ: Deep packet inspection coming back on an opt-in basis?

* In re Quantcast Advertising Cookie Litigation, No. 2:10-cv-05484-GW-JCG (C.D. Cal. proposed settlement filed 12/3/10) and In re Clearspring Flash Cookie Litigation, No. 2:10-cv-05948-GW-JCG (C.D. Cal. proposed settlement filed 12/3/10). Persistent flash cookie lawsuit proposes to settle for $2.4M.

* Shefts v. Petrakis, 2010 WL 5125739 (C.D.Ill. Dec. 8, 2010). President of telecommunications company sues when the company monitors his email (using SpectorPro software) as part of a sexual harassment investigation.

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