Vogel Internet, Information Technology and e-Discovery Blog

Distance Learning on the Internet - Harvard & MIT Change all the Rules

Peter S. Vogel — Mon, 14 May 2012 04:19:13 -0600

edX is a new Internet distance learning site that promises to transform education to “enhance campus-based teaching and learning, and build a global community of online learners.” The joint partnership announcement promised that edX will:

...offer online learning to millions of people around the world. EdX will offer Harvard and MIT classes online for free.

The Atlantic calls edX the “The Single Biggest Change in Education Since the Printing Press.”

Does this really make sense, what's so new about Internet distance learning? Or is it just free Harvard and MIT education for millions around the world?

Actually Khan Academy claims it has already delivered more than +149 million lessons to date. I guess distance learning is already well-developed, and perhaps Harvard and MIT finally figured out they need to get with it!

Myspace Confesses Failure to Abide by Privacy Laws

Peter S. Vogel — Wed, 09 May 2012 08:44:17 -0600

Myspace agreed to 20 years of US government oversight of privacy, just like Facebook did in 2011 and Google did in 2010. On May 8, 2012 the Federal Trade Commission (FTC) released a statement about its settlement with Myspace dislosing the following mispresentations which were violations of federal privacy laws :

Myspace provided advertisers with the Friend ID of users who were viewing particular pages on the site.
Advertisers could use the Friend ID to locate a user's Myspace profile to obtain personal information publicly available on the profile and, in most instances, the user's full name.
Advertisers also could combine the user's real name and other personal information with additional information to link broader web-browsing activity to a specific individual.
Myspace certified that it complied with the U.S.-EU Safe Harbor Framework…, including the requirements that consumers be given notice of how their information will be used and the choice to opt out.

As part of the settlement agreed “… to implement a comprehensive privacy program, and …regular, independent privacy assessments for the next 20 years.” TheFTC solicits public comments:

The agreement will be subject to public comment for 30 days, … through June 8, after which the Commission will decide whether to make the proposed consent order final. Interested parties can submit written comments electronically or in paper form by following the instructions in the "Invitation To Comment" part of the "Supplementary Information" section. Comments can be filed electronically at this link. Comments in paper form should be mailed or delivered to: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

Myspace’s confession is not a big surprise given that Facebook and Google entered into similar agreements in the past 2 years.

Google Did Not Violate US Law When Collecting Wifi Data

Peter S. Vogel — Fri, 04 May 2012 04:29:44 -0600

Google was fined $25,000 for not cooperating with an investigation regarding Google’s collection of unencrypted wifi data when taking Street View pictures from 2006-10, but the Federal Communications Commission (FCC) reported that Google did not violate any US laws. The FCC’s Report included this conclusion regarding alleged violations of Section 705(a) of the federal Wiretrap Act:

…the Bureau has found no evidence that Google accessed or did anything with such encrypted communications….we do not find sufficient evidence that Google has violated Section 705(a).

When Google’s wifi data collection became news in 2010 Google confessed that the wifi information collected was:

WiFi networks broadcast information that identifies the network and how that network operates. That includes SSID data (i.e. the network name) and MAC address (a unique number given to a device like a WiFi router). Networks also send information to other computers that are using the network, called payload data, but Google does not collect or store payload data.

Since 2010 there has been much controversy about Google’s wifi collection, but the FCC’s vindication does not overcome Google’s alleged violation of EU laws.

I find Street View feature of Google Maps one of the greatest Interest services available since it allows anyone to see the world up close and personal. This is how Google describes Street View:

Google Maps with Street View lets you explore places around the world through 360-degree street-level imagery. You can explore world landmarks, view natural wonders, navigate a trip, go inside restaurants and small businesses.

It is interesting that Google created such a firestorm about collecting unencrypted wifi data while taking pictures which helped transform information on the Internet.

Cloud Wars - Google Beats Microsoft in Federal Bid War

Peter S. Vogel — Wed, 02 May 2012 06:30:32 -0600

Google finally won a cloud war against Microsoft after years of battle and the US Department of Interior (DOI) will now deploy Google Apps for 90,000 employees instead of Microsoft Office 365. On January 3, 2011 US District Judge Susan Braden issued a temporary injunction enjoining the DOI from awarding a contract to Microsoft because apparently the DOI did not comply with federal procurement laws. Computerworld reported that Google was the successful vendor:

The contract is worth about US$35 million over seven years, the Interior Department said. It estimated that by replacing its current systems with Google Apps for Government, it will save up to $500 million by 2020.

Google’s success is a major victory for Google Apps in the highly competitive cloud wars.

Cybersmear - Jury Verdict of $13.78 Million for Anonymous Postings

Peter S. Vogel — Fri, 27 Apr 2012 06:50:41 -0600

Freedom of speech under the First Amendment of the Constitution does not protect anonymous libel and slander posted on the Internet. ABC News reported that on April 20, 2012 a jury in Fort Worth, Texas gave a verdict in favor for Mark and Rhonda Lesher whose 2009 lawsuit was filed against “anonymous commenters who accused them of being sexual deviants, molesters, and drug dealers on Topix, once self-described as ‘the country's largest local forum site.’" Following the trial Mark Lesher said:

This vindicates us. This is vindication for all the scurrilous, vile, defamatory statements that caused us to be indicted, to be tried, that caused us to move out of town and my wife to lose her business,…You can't post anonymous lies on the Internet without suffering the consequences.

The Fort Worth Star Telegram reported that the Leshers filed their 2009 lawsuit following their acquittal of sexual assault, but the defendants at the Fort Worth trial posted thousands of anonymous statements on Topix which the jury concluded were slanderous.

The ruling in the Lesher case should be a warning to anonymous posters that they cannot hide behind the First Amendment if they slander others, and a jury may award significant damages for the slander.

Wikipedia Considered Reliable Authority by Many Judges

Peter S. Vogel — Wed, 25 Apr 2012 06:51:29 -0600

Many noted Judges rely on Wikipedia as authority including defining “Blazing Saddles” and “happy hour,” but the US Supreme Court has not yet accepted Wikipedia as authority. The New York Times reported in 2007 that Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit and well-known blogger, in Chicago claimed that “Wikipedia is a terrific resource.” Judge Posner went to say:

Partly because it so convenient, it often has been updated recently and is very accurate…It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.

However in a recent ruling of US v Larson, US 4th Circuit Court of Appeals Judge Barbara Milano Keenan overturned a jury conviction for violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a) (the animal fighting statute) because Juror 177 searched Wikipedia for the definition of "sponsor," one of the elements of the offense under the animal fighting statute. The Wikipedia search was determined to be juror misconduct since Juror 177 relied on definitions not provided in court, but Judge Keenan also pointed out that definitions on Wikipedia are subject to change by public edits and therefore Wikipedia is not reliable. Which is an interesting position since Judge Posner feels the opposite.

It seems to me that Wikipedia is a reliable authority for many lawsuits and will be more widely accepted in the future. What do you think?

Privacy Controversy about Cyber Intelligence Sharing and Protection Act (CISPA)

Peter S. Vogel — Fri, 20 Apr 2012 04:43:41 -0600

CISPA would permit “Internet companies such as Google and Facebook to collect and share a wide range of user data with the government” as reported by Computerworld. Now the White House is raising concerns about CISPA. Caitlin Hayden (spokeswoman for the White House's National Security Council) in an interview with the Hill said:

The nation's critical infrastructure cyber vulnerabilities will not be addressed by information sharing alone… information sharing provisions must include robust safeguards to preserve the privacy and civil liberties of our citizens…

Computerworld reported:

…there's nothing in the language of the bill that would prohibit companies from monitoring private email messages, chat messages and Facebook postings simply by claiming a cybersecurity purpose to the monitoring. They can then share that information with any other entity, including the Department of Homeland Security and the National Security Agency, without judicial oversight. The bill affords Internet companies a great deal of immunity for conducting such information monitoring and sharing.

Clearly we all need to stay tuned to what Congress does with the proposed CISPA legislation. What do you think?

Who Has the Dirtiest Clouds? Apple, Amazon, but not Google

Peter S. Vogel — Wed, 18 Apr 2012 06:48:55 -0600

Greenpeace reported that cloud computing may be popular, but generally it’s not very clean and gave Apple Ds and Amazon Fs, while Google got the best grades. The Greenpeace report entitled “How Clean is Your Cloud?” made these observations about electrical consumption:

The electricity consumption of data centers may be as much as 70% higher than previously predicted.
If the cloud were a country, it would have the fifth largest electricity demand in the world.

The Report had these findings regarding some of the largest IT/Internet businesses:

1. Three of the largest IT companies building their business around the cloud – Amazon, Apple and Microsoft – are all rapidly expanding without adequate regard to source of electricity, and rely heavily on dirty energy to power their clouds.

2. Yahoo and Google both continue to lead the sector in prioritizing access to renewable energy in their cloud expansion, and both have become more active in supporting policies to drive greater renewable energy investment.

3. Facebook, one of the largest online destinations with over 800 million users around the world, has now committed to power its platform with renewable energy. Facebook took the first major step in that direction with the construction of its latest data center in Sweden, which can be fully powered by renewable energy.

The Greenpeace Report is not surprising, but most cloud computing consumers do not take environmental concerns into consideration. Is this important to you and your business?

Copyright Infringement or Fair Use of Court Records?

Peter S. Vogel — Fri, 13 Apr 2012 06:40:32 -0600

“Fair use” of copyrighted works includes criticism, comment, news reporting, teaching, scholarship, or research, so what about use of public documents? The recent class action copyright infringement suit brought against West and LexisNexis (White v. West) will likely turn on the “fair use” doctrine. The Copyright Office describes “fair use” in Section 107 of the Copyright Act:

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work

To learn more about the copyright issues in the White v. West case please read my eCommerce Times legal column on entitled “Copyright Law vs. Public Court Documents.”

What do you think about “fair use” of public documents?

No Copyright Infringement but Criminal Charges for Massive Download

Peter S. Vogel — Wed, 11 Apr 2012 06:34:55 -0600

Allegedly MIT’s computer systems were breached by Aaron Swartz who then downloaded millions of scholarly articles, but there are no claims of copyrights infringement. The New York Times reported that in July 2011 Aaron Swartz was indicted on charges that he:

…broke into the computer networks at the Massachusetts Institute of Technology to gain access to JSTOR, a nonprofit online service for distributing scholarly articles online, and downloaded 4.8 million articles and other documents — nearly the entire library.

Mr. Swartz was charged with charges of federal wire fraud and unlawfully obtaining information from a secure computer. Also he was charged with Massachusetts state crimes of breaking and entering, and unauthorized access to a computer system. However MIT recently reported that the state charges have been dropped.

The way JSTOR works is that colleges and libraries pay for access and then provide the materials free to their users. So even though the materials on JSTOR are free to users, subscribers to JSTOR must pay. The charges against Mr. Swartz are that he breached the computer security to do the download. No claims of copyright infringement, but a serious criminal charges nonetheless.

What about the JSTOR Copyrights?

When you take the time to read the Terms of Services (ToS) on JSTOR you will see that the original authors of the materials on JSTOR retain all intellectual property rights, including copyrights. Further JSTOR warrants that it is not a copyright infringer.

So one might wonder, if Mr. Swartz infringed the copyrights of the authors on JSTOR why there have been no copyright infringement claims brought? That may change after the criminal trial however.

FOOTNOTE OF THANKS: To my friend Jonathan Thalheimer (McGuire, Craddock & Strother, P.C.) for passing along links about this JSTOR download.

LinkedIn Has an Unlimited Right to Everything Posted Forever

Peter S. Vogel — Thu, 05 Apr 2012 06:37:00 -0600

Few of the +150 million users realize that since LinkedIn began its operations that everyone gives an unrestricted license to everything posted. This may be a surprise since so few people ever bother to read Terms of Service (ToS) on any website or click agreement. Here is the license in LinkedIn’s User Agreement that all LinkedIn users must agree to before using LinkedIn which has not changed much since 2003 when LinkedIn began its operations:

…you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, …, any information you provide, directly or indirectly to LinkedIn, including,..

Just for clarity sake - “irrevocable” means the license cannot be terminated and “perpetual” means forever. So users should be mindful of what they post and messages they send using LinkedIn since LinkedIn has a license to all:

email messages
pictures
messages to and from Connections
recommendations
PowerPoints posted
EVERYTHING !!

Were you ready for the details of LinkedIn’s license? Most people are shocked to learn that LinkedIn has this license, so maybe people should take more time to read the ToS on websites so they would not be surprised.
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86% of Search Engine Users Learn Something New or Important

Peter S. Vogel — Mon, 02 Apr 2012 04:05:51 -0600

Pew Research recently reported that amazingly 86% of search engine users “learned something new or important that really helped them or increased their knowledge.” In the same report Pew also stated that:

91% of search engine users say they always or most of the time find the information they are seeking when they use search engines

Interesting enough however, only “73% of search engine users say that most or all the information they find as they use search engines is accurate and trustworthy.” So what does this say?

However invasion of privacy of search engine information is critical and:

…73% of search users say they would NOT BE OKAY with a search engine keeping track of your searches and using that information to personalize your future search results…

Do you agree with the results of this Pew Report?

Job Interview Requests for Facebook Passwords, a Violation of Federal Law?

Peter S. Vogel — Tue, 27 Mar 2012 06:00:03 -0600

After headlines about job applicants required to provide Facebook passwords two Senators requested an investigation of violation of federal laws. US Senators Chuck Schumer (New York) and Richard Blumenthal (Connecticut) issued a press release requesting that the US Equal Employment Opportunity Commission and Department of Justice:

…launch a federal investigation into a new disturbing trend of employers demanding job applicants turn over their user names and passwords for social networking and email websites to gain access to personal information like private photos, email messages, and biographical data that is otherwise deemed private.

The Senators specifically asked the Attorney General to determine if job interviewers’ requests for the Facebook passwords of interviewees violates the Stored Communication Act or the Computer Fraud and Abuse Act.

At the same time Facebook claims that such disclosures “violate Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.” Facebook went on to say:

We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.

Clearly we will see more about disclosure of Social Media passwords. What do you think?

Who Owns Publicly Filed Documents?

Peter S. Vogel — Fri, 23 Mar 2012 06:29:27 -0600

My recent blog about the copyright class action suit about the ownership of pleadings filed in federal and state courts around the US has intrigued many. In the aftermath of the Watergate scandal in the 1970’s state and federal governments have become more open. Anyone can get information whether posted on government websites, or by requests to a federal agency under the Freedom of Information Act (FOIA) or to state under open records laws (like the Texas Public Information Act).

Today lawyers file documents electronically in most federal court using a system known as PACER, and in many state courts using a variety of systems (like the Texas eFiling System which Texas Supreme Court Judicial Committee on Information Technology started years ago, and which I was founding Chair for 12 years). As a result, the federal and state courts (and clerks of courts) maintain electronic copies of those pleadings. Under our open government anyone can get a copy, if not filed under seal for confidential reasons, for some nominal fee or free.

Under the Copyright Act the moment the author creates a work it is copyrighted and unless assigned to another, the author retains the copyright. So when lawyers draft pleadings they appear to clearly be the author under the Copyright Act and there is nothing that changes that when the lawyers file those pleadings with courts.

So in the White vs. West case that was the subject of my recent blog, Edward White and Kenneth Elan White allege:

West and LexisNexis have engaged in wholesale unlawful copying of attorneys’ copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits....

In doing so, West and LexisNexis are infringing the rights of the very clients they purport to serve.

What do you think about White and Elan’s claims?

Copyright Infringement for the Sale of Publicly Filed Documents?

Peter S. Vogel — Tue, 20 Mar 2012 07:01:48 -0600

Two lawyers filed a class action suit against West and LexisNexis for violating the copyrights of court filings around the country. The lawsuit filed in Federal Court in New York City on February 22, 2012 by Edward White (of Oklahoma City) and Kenneth Elan (of New York) starts with a description of the case:

This is a copyright infringement action against West and LexisNexis based upon their unabashed wholesale copying of thousands of copyright-protected works, created by, and owned by, the attorneys and law firms who authored them.

The first step in this lawsuit will be for the Federal Court to establish whether is White and Elan properly claimed a proper class of plaintiffs for this case. White and Elan claim that the class in this lawsuit is:

…all attorneys and law firms…that authored works…that are contained in the Defendants searchable databases.

Then only if the US District Court certifies the class will this lawsuit proceed.

Since filings in courthouses are public documents, the documents are available to the public and the basis of While and Elan’s claims relies on the fact that under the Copyright Act the author has a monopoly on making copies. West and LexisNexis are clearly making and selling copies of court filings, and it will be interesting to see how this dispute is resolved.

Should Anyone Expect Privacy on Google?

Peter S. Vogel — Thu, 15 Mar 2012 04:30:37 -0600

Since 92% of adults use search engines every day means that they share volumes of information with Google, who dominates searching, 66.4% in the US and 80% in the EU. No one was surprised when Pew Research reported that 92% of adults search daily, but what Google does with our personal information changed on March 1, 2012 when Google simplified its Privacy Policy.

To learn more about challenges to Google’s new Privacy Policies, I encourage you to read my column in eCommerce Times entitled “Google's New Privacy Policy vs. the World.”

Let me know what you think about your privacy when you use Google!

Judge Rules that Apple Didn't Invent the iPad!

Peter S. Vogel — Mon, 12 Mar 2012 02:59:03 -0600

In 1994 Roger Fidler created a tablet with most of the features of the iPad a federal Judge ruled in Apple’s patent infringement case against Samsung. US District Judge Lucy Koh denied Apple’s motion for an injunction against Samsung for its Galaxy and Droid phone because Fidler’s 1994 tablet design created “basically the same visual image” as Apple’s iPad Design Patent (D504,889).

The Washington Post reported that in 1994 Fidler was doing research in Colorado for Knight-Rider and came up with the idea for what we now call an iPad. Interestingly enough Fidler’s next door neighbor in 1994 was Apple who developing the ill-fated Newton, an early PDA.

Check out Fidler’s video from 1994 on YouTube (which has gone viral) to see what how he described the iPad.

Of course the tablet computer is an old concept, and originally with a pen, so it’s no wonder that Fidler’s design in 1994 predated the 2010 Apple iPad.

Invasion of Privacy? - Federal Government Secretly Monitored Personal Webmail

Peter S. Vogel — Wed, 07 Mar 2012 10:55:55 -0600

A group of nine scientists and doctors recently sued the US government claiming that their personal Gmail accounts were under federal surveillance which led to harassment or dismissal for Food & Drug Administration (FDA) employees who were whistleblowers. The Washington Post reported that the FDA:

…secretly monitored the personal e-mail of a group of its own scientists and doctors after they warned Congress that the agency was approving medical devices that they believed posed unacceptable risks to patients.

However apparently the FDA told employees that they should not expect privacy:

FDA computers post a warning, visible when users log on, that they should have “no reasonable expectation of privacy” in any data passing through or stored on the system, and that the government may intercept any such data at any time for any lawful government purpose.

Notwithstanding the FDA warnings about no privacy, the FDA whistleblowers admitted that they accessed their Gmail accounts from government computers. Under the 2009 ruling from the US Supreme Court, employees using employer’s computers are not entitled to privacy under the Constitution (City of Ontario v. Quon). However the FDA whistleblowers claim that the FDA should not able to monitor emails not sent or received using government computers.

On March 5, 2012 Senator Charles Grassley (Committee on the Judiciary) and Representative Darrell Issa (Chair of the Committee on Oversight and Government Reform) sent a letter to the Office of Management and Budget demanding an explanation to Congress why the FDA “secretly monitored personal email accounts of …the FDA nine.” Further, the letter states that:

…FDA may have intercepted passwords to the personal e-mail accounts of its employees for the purpose of logging in to search for archived messages to and from Congress and OSC [Office of Special Counsel – where whistleblower complaints are filed]. In the absence of a subpoena, such an activity would violate the Stored Communications Act.

This will be an interesting lawsuit to follow since it not only challenges the City of Ontario case about employee privacy, but also if the FDA violated the Stored Communications Act.

Google's New Privacy Policies Break EU Laws

Peter S. Vogel — Fri, 02 Mar 2012 04:40:31 -0600

Although Google claims its new Privacy Policy helps simplify privacy, the EU claims otherwise and specifically that the new Privacy Policy “makes it impossible to understand which purposes, personal data, recipients or access rights are relevant to the use of a specific service.”

The EU gave the lead to investigate Google’s new Privacy Policy to the French Commission nationale de l’informatique et des libertés (CNIL). CNIL states that it “is responsible for ensuring that information technology remains at the service of citizens, and does not jeopardize human identity or breach human rights, privacy or individual or public liberties.”

On February 27, 2012 CNIL sent a letter to Google CEO Larry Page (which was follow-up to a February 3rd letter) complaining that Google failed to properly consult EU authorities about the new Google Privacy Policies and that the:

…preliminary analysis shows that Google’s new policy does not meet the requirements of the European Directive of Data Protection (95/46/CE), especially regarding information provided to data subject.

The CNIL highlighted the significance of Google’s penetration in the EU with the following statistics about Google’s usage:

-more than 80% of the European search engine market,
-around 30% of the European smartphones market,
-40% of the global online video market and
-more than 40% of the global online advertisement market

Apparently Google has chosen to ignore the EU’s warnings and surely we will see more headlines soon.

Internet Privacy Bill of Rights

Peter S. Vogel — Tue, 28 Feb 2012 05:14:37 -0600

Privacy is a hot topic for users of Facebook, Google, and other Social Media sites, so the White House has proposed the following Bill of Rights for legislative consideration:

1. INDIVIDUAL CONTROL: Consumers have a right to exercise control over what personal
data companies collect from them and how they use it.

2. TRANSPARENCY: Consumers have a right to easily understandable and accessible information about privacy and security practices.

3. RESPECT FOR CONTEXT: Consumers have a right to expect that companies will collect,
use, and disclose personal data in ways that are consistent with the context in which
consumers provide the data.

4. SECURITY: Consumers have a right to secure and responsible handling of personal data.

5. ACCESS AND ACCURACY: Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate.

6. FOCUSED COLLECTION: Consumers have a right to reasonable limits on the personal data that companies collect and retain.

7. ACCOUNTABILITY: Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights.

In 2011 more adult Social Media users were proactive in protecting their privacy by deleting people from as friends, deleting comments from their profiles, and removing their names from photos tagged to identify them as reported from a recent Pew Research Report entitled “Privacy management on social media.”

Internet Privacy will continue to great interest and concern, but since this is an election year it’s difficult to know how the proposed Bill of Rights will fare on the political arena.