Not yet it's not. Privacy is a function of reasonable expectation. So long as it's reasonable to expect that emails are private - generally, they should be considered so.
/.ers are quite a bit more educated than the average public - it wouldn't be fair to hold everyone to our higher standard.
Also - don't forget that this case is about a specific statute, the Wiretap Act. The Councilman court incorrectly ruled that the statute did not protect emails as strongly as Congress intended it to. We're as protected as Congress or the Constitution say we are - whichever is greater. In this case, Congress gave us greater protection - the court just misinterpreted it.
The Wiretap act has three separate levels of protections... the two important ones (for the purposes of this question) are "intercepted messages" and "stored messages."
Intercepted messages - messages captured and read in real time, require warrants (basically).
Stored communications - think voicemail (basically). These messages do not get as strict of a protection as intercepted messages.
Councilman said that because emails were being "stored" - even for a split second, in a router or in a server, while they were being passed along are not protected as interceptions - but only as stored communications. Dangerous stuff. Basically, under Councilman anything that is stored, while it is being sent out (think every message on any packet switched networks) does not get the strict wiretap protections.
As prisoner Stewart would say - "unsending" this email decision "is a good thing."
I wrote a paper on this last year... basically there are 3 interesting (legal) theories that could be used to enjoin VeriSign from continuing sitefinder (it's also working on.tv - BTW). Here is the ultra condensed version.
1. The Lanham Act - specifically the Anti-Cybersqatting Consumer Protection Act (ACPA). VeriSign is essentially registering and profiting off of the protected trademarks of others.
2. Antitrust. Verisign could be guilty of violating the Sherman Act - most interestingly as the controller of the DNS "essential facility." Similar actions caused AT&T (back when it controlled the local phone switches) to allow long distance competitors access to the local switches - so they could effectively compete. If the DNS registry is an essential facility - Verisign cannot use it to block out downstream competition (other registrars, web portals, etc.).
3. State Action - Takings violation. This one is a little wacky - but interesting none the less. Network Solutions (when they ran the DNS) was always let off the hook for AntiTrust via the Parker doctrine - which permits companies who are closely tied to the government (and the government itself) to be excused from antitrust laws - because of their close tie to the Federal Government. The same close ties could result in a "state action" under either a government function (not often used by the courts) or a symbiotic relationship test (rarely used by courts). Essentially - the private company acts like the government - and should be treated as such, which means having to follow the rigors of the Constitution. Specifically, when the capture the intellectual property of others (the names of the unregistered domain names that are now pointing to verisign's page), they are violating the "takings clause" - which requires compensation.
BTW - IANAL - but, I think the points are quite interesting. I really didn't do them justice by quickly summarizing them here, but what the heck - that's what slashdot is for.
I wonder if the EU - whose members are now using Windows servers to run their military hardware - will continue to push MicroSoft to release their source code to competitors?
Sounds like the EU AntiTrust ship might just turn around, after receiving orders from EU defense brass. The type of people who wanted the "real" steering wheel might not be too excited in an open source battleship.
Scary as it sounds, many courts have found that similar "browse-wrap" and "click wrap" conditions are valid contracts. So long as you have to affirmatively agree to the conditions, and either are presented with them, or giving the option to read them, they can be valid.
For some background on these types of contacts check out:
MicroSoft couldn't figure out a way to create their own bastardized WiFi++ and force everyone who had Windows to use it... so they got out of the market.
Right now I think they are just putting their products into as many diverse markets as possible (xbox, USB mice, fat-reducing grills) so that should the opportunity to use their dominance of the OS market to take over with their own perverted standard - they'd be ready.
Or, conversely maybe they want to seed evidence that they can produce standards compliant products - and fail. That way, next time the States bring an AntiTrust case, they'll be able to point to a few instances of them not being anticompeditive.
When somebody claims that somebody "under color of law" has infringed a federally protected right (either constitutional or statutory), usually they sue under Section 1983.
It's an important avenue to be sure, giving a right of action to folks who've had their rights squandered by public officials. It is however REALLY easy for a plaintiff to get their legal fees from the defendant (CA, in this case) in a 1983 action. Basically if they win on any of their claims (even say, one of a dozen claims) they'll get their legal fees paid for.
IANAL - but the lawyers love this one. Even if it's not a great case (like, I don't know... this one) it's worth a shot, because the lawyers get paid.
First, I find a interesting (by interesting I mean big omission) that a contract analysis of the GPL could not mention the UCC (uniform commercial code). Either article 2 (sale of goods, which many courts have applied to software licensing - even though it doesn't really fit) or draft UCC article 2B.
How about trade secret protection? Might the Uniform Trade Secret Act (state laws) protect a company who is in violation of the GPL from having to publish their code?
This is only the tip of the iceberg. This paper didn't really tell me anything that most/.ers already know.
being investigated by New York City Police and members of the joint terrorism task force
That's just great. Not that I don't hope they find the crooks to walked off with this stuff - but once the word "terrorism" pops up, all of the sudden I'm thinking Patriot Act.
These thieves might have gotten themselves some kick butt network hardware - but I bet they won't get themselves due process
Yet Darrell Luzzo, senior vice president of Junior Achievement, defends the industry's antipiracy program by saying it's not meant to cover all aspects of copyright law.
Of course it doesn't cover all aspects of copyright law. They seem to have forgotten about section 107 (fair use).
There are two reasons that stream-ripping will slip through the courts:
1. Under the Sony Betamax case, time shifting is fair use. Under the Rio case, space shifting is fair use. So long as those cases hold up - the only difference between time shifting your TV with a VCR, and stream ripping is the quality. Basically, there may be no copyright violation here.
2. Even if there is a copyright violation (I don't think there will be), the Grokster case said that where a software provider doesn't know about infringing uses, they are not contributing to copyright violations. Stream rippers, like Grokster, are out of the loop. There's no central database here. Don't forget, that even if RIAA is successful (which I don't think they will be here), who would they sue? Many streamrippers are open source, and distributed development projects. Lots of stones to turn over.
What will RIAA do? Shut down the stations. I'd be surprised if Roxio's Napster 2 will be allowed to continue to use their 9.95 all you can eat streaming service for much longer.
Not all of the pieces of the puzzle are in place yet but it looks like VeriSign is finally being pegged as a state actor. What does that mean? Well, all of those annoying parts of the constitution that apply to governments, but not to private parties... might apply to them (little things... like... due process maybe?).
Further - if domain names are property (which is contrary to some lot of previous court precedent - partially based on the idea that domain names are only protected in so much as they are trademarks, which generally cannot be transferred without transferring the good will of the company behind the trademark) VeriSign has some further problems. When they bumble these things, not only are they violating the domain owners due process rights - but it might be a constitutional "taking" - requiring compensation.
Hopefully finding that VeriSign is a state actor, and that there is a property interest in a domain name - will be the final nail in SiteFinder's coffin (which essentially would be conversion of all of the unregistered domain names).
Anybody interested in being the.net and.com domain registry? I have a feeling ICANN might be looking to fill some positions soon.
The only thing close to legal authorization for copyright self help came in the now doomed UCITA model law (Uniform Computer Information Transactions Act). Only two states (MD and VA) adopted the law, and even then (my understanding is) both of them amended it to not include the self-help provision.
Even under UCITA, it required express consent by both sides. End users would have to agree to this remedy (which I suppose won't be hard in the university situation - because the campus ISP is the only game in town). If that happened, the act would authorize the content owning company to remotely shut you down, to prevent you from infringing. The idea was to let software vendors shut down dead beat software buyers who didn't pay up. Nobody seemed to like it (self help thankfully isn't too popular in general).
Anyway - long story short, since most, if not all states expressly rejected this kind of industry self help - I wouldn't be surprised if a court took that to mean that the legislatures are not exactly on the self-help bandwagon (yet).
Congress has plenty of power here to do what it pleases. They have a "monopoly" over interstate commerce, to begin with. ICANN is basically a public utility, that the department of commerce oversees. Think of them as the internet gas company. They can do what they wish, but like the gas company they have a restrictive tarriff (in the form of a contract with the DoC, a memorandum of understanding with the DoC and a cooperative research agreement). The DoC can review ICANN's actions (though they haven't found the need to get) and enforce their agreements with them, much like a Board of Public Utilities would oversee a natural monopoly like the gas company.
A really good read would be ICANN and AntiTrust (2003 U. Ill. L. Rev. 1). There could be some ANtiTrust issues with ICANN now - but not the basic "it's an illegal monopoly" claims you're talking about. If they were trying to use their legitimate monopoly to break into other markets where they don't have a monopoly (much like VeriSign is doing with SiteFinder - using their registry monopoly to break into the portal and search markets) that would be a different story (a Sherman 2 story).
I also don't see how ICANN can be given back to the people... I guess that would mean the National Science Foundation? In my opinion ICANN is much more open and willing to change than the NSF ever was (noting the additional top level domains we now have).
The rumors of Camino's death have been greatly exaggerated...
OS X's Camino hadn't been updated since March of '03 (.7 release), and personally I thought it had been put out to pasture thanks to Apple bundling Safari.
According to http://www.mozilla.org/projects/camino/ we can look forward to.8 soon.
George Steinbrenner just could not allow the Red Sox to pick up the little robot and round out their rotation. Apparently, TV's Vicky from "Small Wonder" is also in talks with the NY baseball franchise as is D.A.R.Y.L.
Morse (the telegraph guy) was awarded a patent claim for:
"electro magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances."
Sound a little over-broad? The Supreme Court thought so too(1853). Broad claims get through the patent office sometimes. That's what courts are for. Will Amazon get some money out of this? Probably. Would I give them any money for it? No.
The New Jersey standard to set aside an election is simply for it to be "rendered doubtful" (see In re Hunt). I'm not sure of the standard here, but I'm sure it's something similar. With these electronic voting machines, I cannot see how any close election could not be "rendered doubtful" - since there is very little physical evidence to actually look at, or recount.
Don't be surprised if the set-aside elections are then resolved with the old tried and true paper ballots of lever machines. I think a lot of e-voting is going to turn into re-voting.
... actually invited the ISPs into court, instead of getting an Anton Pillar order - which I believe is ex parte.
Maybe that's the next step. (Maybe I'm way off on this as well - I've only studied American law) As draconian as we all think the DCMA is - at least we don't have to deal with those Anton Pillar orders - talk about plundering.
...for the illegal price fixing cartel that it is, under the Sherman Antitrust Act (and others) - the courts will be able to get back to more important things - like locking up the rest of the Food Network's goons.
All kidding aside - I'd like to see someone pin the RIAA as a "state actor" - and make them respect our first and fourteenth amendment rights.
"Good for you son. If there is one thing America needs, it's more lawyers. "
Slashdot Mirror
...the CDT, EPIC, and the ALA. Here's their brief (in PDF).
/.ers are quite a bit more educated than the average public - it wouldn't be fair to hold everyone to our higher standard.
Also - don't forget that this case is about a specific statute, the Wiretap Act. The Councilman court incorrectly ruled that the statute did not protect emails as strongly as Congress intended it to. We're as protected as Congress or the Constitution say we are - whichever is greater. In this case, Congress gave us greater protection - the court just misinterpreted it.
Intercepted messages - messages captured and read in real time, require warrants (basically).
Stored communications - think voicemail (basically). These messages do not get as strict of a protection as intercepted messages.
Councilman said that because emails were being "stored" - even for a split second, in a router or in a server, while they were being passed along are not protected as interceptions - but only as stored communications. Dangerous stuff. Basically, under Councilman anything that is stored, while it is being sent out (think every message on any packet switched networks) does not get the strict wiretap protections.
As prisoner Stewart would say - "unsending" this email decision "is a good thing."
1. The Lanham Act - specifically the Anti-Cybersqatting Consumer Protection Act (ACPA). VeriSign is essentially registering and profiting off of the protected trademarks of others.
2. Antitrust. Verisign could be guilty of violating the Sherman Act - most interestingly as the controller of the DNS "essential facility." Similar actions caused AT&T (back when it controlled the local phone switches) to allow long distance competitors access to the local switches - so they could effectively compete. If the DNS registry is an essential facility - Verisign cannot use it to block out downstream competition (other registrars, web portals, etc.).
3. State Action - Takings violation. This one is a little wacky - but interesting none the less. Network Solutions (when they ran the DNS) was always let off the hook for AntiTrust via the Parker doctrine - which permits companies who are closely tied to the government (and the government itself) to be excused from antitrust laws - because of their close tie to the Federal Government. The same close ties could result in a "state action" under either a government function (not often used by the courts) or a symbiotic relationship test (rarely used by courts). Essentially - the private company acts like the government - and should be treated as such, which means having to follow the rigors of the Constitution. Specifically, when the capture the intellectual property of others (the names of the unregistered domain names that are now pointing to verisign's page), they are violating the "takings clause" - which requires compensation.
BTW - IANAL - but, I think the points are quite interesting. I really didn't do them justice by quickly summarizing them here, but what the heck - that's what slashdot is for.
I wonder if the EU - whose members are now using Windows servers to run their military hardware - will continue to push MicroSoft to release their source code to competitors?
Sounds like the EU AntiTrust ship might just turn around, after receiving orders from EU defense brass. The type of people who wanted the "real" steering wheel might not be too excited in an open source battleship.
Scary as it sounds, many courts have found that similar "browse-wrap" and "click wrap" conditions are valid contracts. So long as you have to affirmatively agree to the conditions, and either are presented with them, or giving the option to read them, they can be valid.
h orpe/
For some background on these types of contacts check out:
http://gsulaw.gsu.edu/lawand/papers/su03/darden_t
It's hard to tell from the consumer warning if that's the case here, of if they're just jerks and are overtly committing fraud.
MicroSoft couldn't figure out a way to create their own bastardized WiFi++ and force everyone who had Windows to use it... so they got out of the market.
Right now I think they are just putting their products into as many diverse markets as possible (xbox, USB mice, fat-reducing grills) so that should the opportunity to use their dominance of the OS market to take over with their own perverted standard - they'd be ready.
Or, conversely maybe they want to seed evidence that they can produce standards compliant products - and fail. That way, next time the States bring an AntiTrust case, they'll be able to point to a few instances of them not being anticompeditive.
When somebody claims that somebody "under color of law" has infringed a federally protected right (either constitutional or statutory), usually they sue under Section 1983.
It's an important avenue to be sure, giving a right of action to folks who've had their rights squandered by public officials. It is however REALLY easy for a plaintiff to get their legal fees from the defendant (CA, in this case) in a 1983 action. Basically if they win on any of their claims (even say, one of a dozen claims) they'll get their legal fees paid for.
IANAL - but the lawyers love this one. Even if it's not a great case (like, I don't know... this one) it's worth a shot, because the lawyers get paid.
First, I find a interesting (by interesting I mean big omission) that a contract analysis of the GPL could not mention the UCC (uniform commercial code). Either article 2 (sale of goods, which many courts have applied to software licensing - even though it doesn't really fit) or draft UCC article 2B.
- ucc2b.html
/.ers already know.
http://www.eecs.harvard.edu/~mdw/proj/linux/gpl
How about trade secret protection? Might the Uniform Trade Secret Act (state laws) protect a company who is in violation of the GPL from having to publish their code?
This is only the tip of the iceberg. This paper didn't really tell me anything that most
being investigated by New York City Police and members of the joint terrorism task force
That's just great. Not that I don't hope they find the crooks to walked off with this stuff - but once the word "terrorism" pops up, all of the sudden I'm thinking Patriot Act.
These thieves might have gotten themselves some kick butt network hardware - but I bet they won't get themselves due process
Are Belong To Us.
I forgot: Internet uses doubleplusunbellyfeel communism.
Yet Darrell Luzzo, senior vice president of Junior Achievement, defends the industry's antipiracy program by saying it's not meant to cover all aspects of copyright law.
Of course it doesn't cover all aspects of copyright law. They seem to have forgotten about section 107 (fair use).
There are two reasons that stream-ripping will slip through the courts:
1. Under the Sony Betamax case, time shifting is fair use. Under the Rio case, space shifting is fair use. So long as those cases hold up - the only difference between time shifting your TV with a VCR, and stream ripping is the quality. Basically, there may be no copyright violation here.
2. Even if there is a copyright violation (I don't think there will be), the Grokster case said that where a software provider doesn't know about infringing uses, they are not contributing to copyright violations. Stream rippers, like Grokster, are out of the loop. There's no central database here. Don't forget, that even if RIAA is successful (which I don't think they will be here), who would they sue? Many streamrippers are open source, and distributed development projects. Lots of stones to turn over.
What will RIAA do? Shut down the stations. I'd be surprised if Roxio's Napster 2 will be allowed to continue to use their 9.95 all you can eat streaming service for much longer.
Very interesting.
.net and .com domain registry? I have a feeling ICANN might be looking to fill some positions soon.
Not all of the pieces of the puzzle are in place yet but it looks like VeriSign is finally being pegged as a state actor. What does that mean? Well, all of those annoying parts of the constitution that apply to governments, but not to private parties... might apply to them (little things... like... due process maybe?).
Further - if domain names are property (which is contrary to some lot of previous court precedent - partially based on the idea that domain names are only protected in so much as they are trademarks, which generally cannot be transferred without transferring the good will of the company behind the trademark) VeriSign has some further problems. When they bumble these things, not only are they violating the domain owners due process rights - but it might be a constitutional "taking" - requiring compensation.
Hopefully finding that VeriSign is a state actor, and that there is a property interest in a domain name - will be the final nail in SiteFinder's coffin (which essentially would be conversion of all of the unregistered domain names).
Anybody interested in being the
The only thing close to legal authorization for copyright self help came in the now doomed UCITA model law (Uniform Computer Information Transactions Act). Only two states (MD and VA) adopted the law, and even then (my understanding is) both of them amended it to not include the self-help provision.
Even under UCITA, it required express consent by both sides. End users would have to agree to this remedy (which I suppose won't be hard in the university situation - because the campus ISP is the only game in town). If that happened, the act would authorize the content owning company to remotely shut you down, to prevent you from infringing. The idea was to let software vendors shut down dead beat software buyers who didn't pay up. Nobody seemed to like it (self help thankfully isn't too popular in general).
Anyway - long story short, since most, if not all states expressly rejected this kind of industry self help - I wouldn't be surprised if a court took that to mean that the legislatures are not exactly on the self-help bandwagon (yet).
That's how I'd fight this.
I simply don't agree.
Congress has plenty of power here to do what it pleases. They have a "monopoly" over interstate commerce, to begin with. ICANN is basically a public utility, that the department of commerce oversees. Think of them as the internet gas company. They can do what they wish, but like the gas company they have a restrictive tarriff (in the form of a contract with the DoC, a memorandum of understanding with the DoC and a cooperative research agreement). The DoC can review ICANN's actions (though they haven't found the need to get) and enforce their agreements with them, much like a Board of Public Utilities would oversee a natural monopoly like the gas company.
A really good read would be ICANN and AntiTrust (2003 U. Ill. L. Rev. 1). There could be some ANtiTrust issues with ICANN now - but not the basic "it's an illegal monopoly" claims you're talking about. If they were trying to use their legitimate monopoly to break into other markets where they don't have a monopoly (much like VeriSign is doing with SiteFinder - using their registry monopoly to break into the portal and search markets) that would be a different story (a Sherman 2 story).
I also don't see how ICANN can be given back to the people... I guess that would mean the National Science Foundation? In my opinion ICANN is much more open and willing to change than the NSF ever was (noting the additional top level domains we now have).
The rumors of Camino's death have been greatly exaggerated...
.8 soon.
OS X's Camino hadn't been updated since March of '03 (.7 release), and personally I thought it had been put out to pasture thanks to Apple bundling Safari.
According to http://www.mozilla.org/projects/camino/ we can look forward to
Welcome back!
George Steinbrenner just could not allow the Red Sox to pick up the little robot and round out their rotation. Apparently, TV's Vicky from "Small Wonder" is also in talks with the NY baseball franchise as is D.A.R.Y.L.
Morse (the telegraph guy) was awarded a patent claim for:
"electro magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances."
Sound a little over-broad? The Supreme Court thought so too(1853). Broad claims get through the patent office sometimes. That's what courts are for. Will Amazon get some money out of this? Probably. Would I give them any money for it? No.
The New Jersey standard to set aside an election is simply for it to be "rendered doubtful" (see In re Hunt). I'm not sure of the standard here, but I'm sure it's something similar. With these electronic voting machines, I cannot see how any close election could not be "rendered doubtful" - since there is very little physical evidence to actually look at, or recount.
Don't be surprised if the set-aside elections are then resolved with the old tried and true paper ballots of lever machines. I think a lot of e-voting is going to turn into re-voting.
... actually invited the ISPs into court, instead of getting an Anton Pillar order - which I believe is ex parte.
Maybe that's the next step. (Maybe I'm way off on this as well - I've only studied American law) As draconian as we all think the DCMA is - at least we don't have to deal with those Anton Pillar orders - talk about plundering.
...because when right click on the paperclip and ask it if there is a security problem... and he told me Word already had security features.
Thank god!
...how the rest of the world must feel about google caching their websites.
--
Here's a bit of advice for you: 1
...for the illegal price fixing cartel that it is, under the Sherman Antitrust Act (and others) - the courts will be able to get back to more important things - like locking up the rest of the Food Network's goons.
All kidding aside - I'd like to see someone pin the RIAA as a "state actor" - and make them respect our first and fourteenth amendment rights.
"Good for you son. If there is one thing America needs, it's more lawyers. "
Water cooled? I hear the G5 gets so hot - they need to use that "Cool Water" cologne by Davidoff.