© 2010 Mudd Law Offices1 Intellectual Property Counseling: From Start-Up to Initial Public Offering Illinois State Bar Association April 28, 2010

© 2010 Mudd Law Offices 2 Hot Topics in Internet IP and Privacy Anonymity Online and Unwanted Content Privacy Social Media Eavesdropping and Unauthorized Access Section 230 Immunity

© 2010 Mudd Law Offices 3 Anonymity Online Anonymous Speech is Protected…. ….and Protected online….. …..by the Constitution

© 2010 Mudd Law Offices 4 Anonymity Online But: Defamation not protected Privacy Violations not protected Breach of Contract not protected IP violations not protected

© 2010 Mudd Law Offices 5 Anonymity Online Begin with policies… What can employees do and what can they not do?

© 2010 Mudd Law Offices 6 Anonymity Online Policies to Consider Non Compete Non Disclosure Employment Agreements Computer Use Policies

© 2010 Mudd Law Offices 7 Anonymity Online By policies, proactive defense

© 2010 Mudd Law Offices 8 Anonymity Online But, what if content found online by anonymous speakers what to do…….

© 2010 Mudd Law Offices 9 Anonymity Online Defamation - Unless severe, best to avoid Backlash Difficult Standard

© 2010 Mudd Law Offices 10 Anonymity Online Originally, the standards began very minimalist Motion to Dismiss Columbia Ins. Co. v. Seescandy.com 185 F.R.D. 573, 578 (N.D. Cal.1999) Elements quite straightforward….

© 2010 Mudd Law Offices 11 Anonymity Online –Identify defendant with sufficient particularity –Show previous efforts to locate the defendant –Demonstrate Could Survive Motion to Dismiss –Justify Request and Identify Those with Information

© 2010 Mudd Law Offices 12 Anonymity Online Standards became more stringent Dendrite Int’l, Inc. v. John Doe No A.2d 756, (N.J. App. 2001) –Notification –Specify Exact Statements –Prima Facie Cause of Action –Produce Sufficient Evidence to Support Each Element –Balance Strength of Prima Facie Case against Necessity for Disclosure

© 2010 Mudd Law Offices 13 Anonymity Online Doe v. Cahill, 884 A.2d 451 (Del. 2005) Notice Summary Judgment

© 2010 Mudd Law Offices 14 Anonymity Online Mobilisa, Inc. v. John Doe 1, et al., 170 P.3d 712 (November 27, 2007) Cahill plus Balancing

© 2010 Mudd Law Offices 15 Anonymity Online For Employers, the game is up defamation no more…

© 2010 Mudd Law Offices 16 Anonymity Online Where more accepted… Confidentiality IP Breach of Contract (be careful)

© 2010 Mudd Law Offices 17 Anonymity Online Be careful Be prepared to meet MSJ standard Courts aware and savvy

© 2010 Mudd Law Offices 18 Privacy Video Surveillance Robbins v. Lower Merion School District (E.D. Pa.) (school uses laptop cameras) Arlen Spector introduced legislation Surreptitious Video Surveillance Act of 2010

© 2010 Mudd Law Offices 19 Privacy Cloud Computing

© 2010 Mudd Law Offices 20 Privacy (cont’d) Facebook Changes privacy policies again Information owned by Facebook Call for Legislation

© 2010 Mudd Law Offices 21 Social Media Concerns Guiding Employers on Monitoring Social Media Proactive Approach Means Developing Policies and Being Reasonable

© 2010 Mudd Law Offices 22 Social Media Concerns (cont’d) Why be concerned? Hostile environment/harassment issues Defamation Claims Improper Disclosure Child Pornography Reporting (Illinois) FTC Guidelines on Product Affiliation Malware and Security Issues

© 2010 Mudd Law Offices 23 Social Media Concerns (cont’d) Developing Policies Reflect Philosophy of Organization Prohibit Clear Conduct Be Reasonable and Practical

© 2010 Mudd Law Offices 24 Social Media Concerns (cont’d) Be cautious of privacy Intrusion Upon Seclusion Eavesdropping Statutes NLR Act

© 2010 Mudd Law Offices 25 Eavesdropping and Unauthorized Access Federal Statutes –Computer Fraud and Abuse Act –Electronic Communications Privacy Act –Stored Communications Act State Statutes

© 2010 Mudd Law Offices 26 Eavesdropping and Unauthorized Access Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) Variety Contexts - National Security - Financial Information - Information from Government - Protected Computer

© 2010 Mudd Law Offices 27 Eavesdropping and Unauthorized Access CFAA (cont’d) Protected Computer Financial Institution or related Interstate or Foreign Commerce 18 U.S.C. § 1030(e)(2)

© 2010 Mudd Law Offices 28 Eavesdropping and Unauthorized Access (a)(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period

© 2010 Mudd Law Offices 29 Eavesdropping and Unauthorized Access CFAA (cont’d) Protected Computer and Causes Damage Google Example

© 2010 Mudd Law Offices 30 Eavesdropping and Unauthorized Access CFAA (cont’d) Civil Remedy provision 18 U.S.C. § 1030(g) Anyone harmed BUT….

© 2010 Mudd Law Offices 31 Eavesdropping and Unauthorized Access One of five types of damage (18 U.S.C. § 1030(c)(4)(A)(i) Most Common (I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; Also: affecting medical examination, diagnosis, treatment, or care physical injury to any person; a threat to public health or safety; damage affecting a computer used by or for an entity of US

© 2010 Mudd Law Offices 32 Eavesdropping and Unauthorized Access Must be Unauthorized Access Exceeding Authorized Access Key Question….

© 2010 Mudd Law Offices 33 Eavesdropping and Unauthorized Access Snap-on Business Solutions Inc. v. O'Neil & Assocs., Inc. (N.D. Ohio April 16, 2010) (Examined Agreements, question of fact denied MSJ) LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009) (access not automatically unauthorized if disloyal) International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006) (employee who violates duty of loyalty, no authorization)

© 2010 Mudd Law Offices 34 Eavesdropping and Unauthorized Access CFAA (cont’d) US v. Drew, (259 F.R.D. 449 (C.D. Cal. 2009) (violation of TOS not enough)

© 2010 Mudd Law Offices 35 Eavesdropping and Unauthorized Access Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq. Particularly § 2511, criminalizes Intentional interception of oral, wire or electronic communication Discloses Uses

© 2010 Mudd Law Offices 36 Eavesdropping and Unauthorized Access ECPA (cont’d) Question: What is interception

© 2010 Mudd Law Offices 37 Eavesdropping and Unauthorized Access ECPA (cont’d) Civil Remedies generally any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used

© 2010 Mudd Law Offices 38 Eavesdropping and Unauthorized Access Relief –Preliminary, declaratory and other equitable –reasonable attorney’s fee and costs –Damages, either (a) actual plus profits OR (b) statutory ($100/day or $10,000) 18 U.S.C. § 2520

© 2010 Mudd Law Offices 39 Eavesdropping and Unauthorized Access ECPA (cont’d) Question: What is electronic communication? United States v. Councilman, 418 F.3d 67 (1st Cir. Mass. 2005) United States v. Szymuszkiewicz, 2009 U.S. Dist. LEXIS (E.D. Wis. June 30, 2009)

© 2010 Mudd Law Offices 40 Eavesdropping and Unauthorized Access Stored Communications Act (18 U.S.C. § 2701) whoever-- (1)intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; AND…..

© 2010 Mudd Law Offices 41 Eavesdropping and Unauthorized Access SCA (cont’d) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished...

© 2010 Mudd Law Offices 42 Eavesdropping and Unauthorized Access SCA (cont’d) Civil Remedy Very similar to ECPA except minimum statutory of $1,000 Punitive if willful determination 18 U.S.C. § 2707

© 2010 Mudd Law Offices 43 Eavesdropping and Unauthorized Access SCA (cont’d) 18 U.S.C. § 2702 Providers generally cannot disclose contents of communications except in certain instances

© 2010 Mudd Law Offices 44 Eavesdropping and Unauthorized Access SCA (cont’d) City of Ontario, California v. Quon, et al. United States Supreme Court April 19, 2010 Oral Arguments Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. Cal. 2008)

© 2010 Mudd Law Offices 45 Eavesdropping and Unauthorized Access SCA (cont’d) Quon Privacy rights of employees and texting

© 2010 Mudd Law Offices 46 Eavesdropping and Unauthorized Access SCA (cont’d) Quon SCA Question: In storing texts, was Arch Wireless acting as a “remote computing service” or an “electronic communication service”? If remote computing service, it could disclose, as subscriber was the City employer.

© 2010 Mudd Law Offices 47 Eavesdropping and Unauthorized Access SCA (cont’d) Quon SCA Question: If electronic communication service, it could not disclose because the City was not an “originator or an addressee or intended recipient of such communication.” This is what Ninth Circuit concluded.

© 2010 Mudd Law Offices 48 Eavesdropping and Unauthorized Access SCA (cont’d) Impact of Quon on Use of Employer Devices by Employees

© 2010 Mudd Law Offices 49 Eavesdropping and Unauthorized Access Illinois Eavesdropping Statute 720 ILCS 5/14-1 et seq. IP Section proposed legislation to include electronic communications SB 2987

© 2010 Mudd Law Offices 50 CDA § 230 OSP Safe Harbor for Content No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. § 230(c)(1)

© 2010 Mudd Law Offices 51 CDA § 230 (cont’d) OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2)) No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; OR

© 2010 Mudd Law Offices 52 CDA § 230 (cont’d) OSP Safe Harbor for Voluntary Efforts (47 U.S.C. § 230(c)(2)) No provider or user of an interactive computer service shall be held liable on account of (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

© 2010 Mudd Law Offices 53 CDA § 230 (cont’d) § 230 Does Not Affect: Criminal Law Intellectual Property (see DMCA) ECPA 47 U.S.C. § 230(e)

© 2010 Mudd Law Offices 54 CDA § 230 (cont’d) Additional Provisions: State law can expand, but not be inconsistent (47 U.S.C. § 230(e)(3)) Requires Interactive Service Provider to provide notice of availability parental control devices (47 U.S.C. § 230(d))

© 2010 Mudd Law Offices 55 CDA § 230 (cont’d) As always, definitions critical: Interactive Service Provider Information Content Provider

© 2010 Mudd Law Offices 56 CDA § 230 (cont’d) Interactive Computer Service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. 47 U.S.C. § 230 (f)(3)

© 2010 Mudd Law Offices 57 CDA § 230 (cont’d) Information Content Provider means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. § 230 (f)(3)

© 2010 Mudd Law Offices 58 CDA § 230 (cont’d) Broad Protection Past Cases Craigslist Roommates.com

© 2010 Mudd Law Offices 59 CDA § 230 (cont’d) Craigslist Chicago Lawyers Cmte. v. Craigslist, 519 F.3d 666 (7th Cir. 2008) March 14, 2008 (no liability, did not cause to be posted)

© 2010 Mudd Law Offices 60 CDA § 230 (cont’d) Roommates.com Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. Cal. 2008) Liability - created discriminatory questions

© 2010 Mudd Law Offices 61 CDA § 230 (cont’d) Recent Cases Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 591 F.3d 250 (4th Cir. Va. 2009) (No liability) FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. Wyo. 2009) (liability - engaged in illegal conduct) Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. Wash. 2009) (no liability)

© 2010 Mudd Law Offices 62 Jurisdiction in Cyberspace 7th Circuit Tamburo v. Dworkin, et al.

© 2010 Mudd Law Offices 63 EFF’s 2010 Items Attack on Cryptography Will 2010 be the Print version of RIAA? Global Internet Censorship Hardware Hacking Location Tracking

© 2010 Mudd Law Offices 64 EFF’s 2010 Items Net Neutrality Online Video (TV Everywhere, Selectable Output Control) Congress (Patriot Act, Cybersecurity Act) Social Networking Privacy

© 2010 Mudd Law Offices 65 EFF’s 2010 Items Fair Use of Trademarks Web Browser Privacy

© 2010 Mudd Law Offices 66 Charles Lee Mudd Jr. Mudd Law Offices 3114 West Irving Park Road Chicago, Illinois Telephone Facsimile