JUDGE STRIKES DOWN WARRENTLESS WIRETAPPING; SAYS VIOLATES FOURTH AMENDMENT

A judge in Texas has determined that warrantless cellphone tracking is indeed unconstitutional. In a brief decision issued earlier this month, US District Judge Lynn N. Hughes of the Southern District of Texas argued that seizing cellphone records without a search warrant constitutes a violation of the Fourth Amendment. "The records would show the date, time, called number, and location of the telephone when the call was made," Judge Hughes wrote in the ruling, linked below. "These data are constitutionally protected from this intrusion." The decision comes in response to an earlier ruling issued last year by Magistrate Judge Stephen Smith, also of the Southern District of Texas. In that case, Judge Smith argued against unwarranted wiretapping on similarly constitutional grounds, pointing out that with today's tracking technology, every aspect of a suspect's life could be "imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud."

The federal government appealed Judge Smith's ruling on the grounds that the Fourth Amendment would not apply to cellphone tracking, because "a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer's private papers." Judge Hughes' decision, however, effectively overrules this appeal. "When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause," Judge Hughes wrote. "The standard under [today's law] is below that required by the Constitution." The law in question, of course, is the Stored Communications Act -- a law bundled under the Electronic Communications Privacy Act of 1986, which allows investigators to obtain electronic records without a warrant.

US SENATE PASSES PATENT REFORM BILL, PRESIDENT TO SIGN INTO LAW

Yesterday, the Senate approved the America Invents Act by an 89-8 vote that could bring about the most drastic changes to the US Patent and Trademark Office (USPTO) in five decades. Under the bill, which the House approved back in June, patents would be awarded not to the first person to invent a technology, but to the first one to actually file with the USPTO, bringing US policy in line with protocol adopted in most other countries. It also calls for a streamlined application process and would allow the USPTO to charge set fees for all apps. The revenue generated from these fees would go directly to a capped reserve fund, allowing the office to retain the lion's share of the money, rather than funneling much of it to Congress, as had become the norm.

Supporters say this extra revenue will give the USPTO more power to chip away at its backlog of some 700,000 patent applications, while a new third-party challenge system will help eliminate patents that should've never received approval in the first place. Opponents, meanwhile, criticized the bill for not eliminating fee diversion altogether (an amendment that would've placed more severe restrictions was ultimately killed, for fear that it would jeopardize the bill's passage), with Washington Democratic Senator Maria Cantwell questioning the legislation's impact on small businesses, calling it "a big corporation patent giveaway that tramples on the rights of small inventors." But Senator Patrick Leahy, a Vermont Democrat who sponsored the bill, argued that yesterday's approval marks a major and historic inflection point in US patent policy.

President Obama is expected to sign the bill into law very soon.

FACEBOOK RELEASES ACTUAL CONTRACT IN CEGLIA LAWSUIT

On Friday, Facebook’s lawyers made news when they told a court hearing a lawsuit brought by the alleged initial investor in Facebook, Paul Ceglia, that they’d found the “smoking gun” proving the alleged investment contract was a fraud.

Facebook says they’ve found the “authentic contract” between Ceglia and Zuckerberg. Facebook is also charging that Ceglia, who they say is now living in Ireland, is holding back electronic storage devices he intentionally tried to hide from them.

Both parties agree that in 2003 Ceglia hired Zuckerberg, then a Harvard undergrad, to do work for his StreetFax company. But Ceglia filed suit in 2010, saying the contract also included $1,000 initial funding for Facebook, and that he’s entitled to more than half of the social networking giant.

Facebook argues the contract Ceglia produced electronically is a forgery and that Ceglia is a known con artist.

And now Facebook says that in the course of discovery — where Ceglia’s lawyers turned over to Facebook a number of computers and hard drives — that it has found the original “authentic contract” and proof that there are other “storage devices” that Ceglia is intentionally hiding from them in violation of a court order.

But the problem is Ceglia is claiming the “authentic contract” is shielded from use in the suit by designating them as “confidential” under the rules of an agreement between the two parties. Facebook is asking the federal judge overseeing the case in New York State to overrule that designation, in a detailed Friday filing where many of the documents were completely redacted due to the claims of confidentiality.

If indeed Facebook has a copy of the “authentic contract” and it does not include any investment in Facebook, the social networking giant could be close to finally putting aside the legal dramas over the site’s founding in 2004. Earlier this year, the Winkelvoss twins, who was made famous by the movie “The Social Network,” declined to ask the Supreme Court to let them re-litigate their settlement with Facebook over Zuckerberg’s alleged theft of their idea.

FEDERAL JUDGE REFUSES TO RETURN SEIZED DOMAINS; CLAIMS SHUTTING DOWN SPEECH NOT A HARDSHIP

In a cursory opinion issued today that left us scratching our heads, a federal judge has ruled that the government does not have to return a domain name seized by Immigration and Customs Enforcement (ICE), because its seizure did not create a substantial hardship. Really?

Puerto 80, the Spanish company behind popular sports streaming sites Rojadirecta.com and Rojadirecta.org, which were both seized by U.S. ICE earlier this year -- even though a Spanish court found they did not violate copyright law -- had filed a petition to have the sites released pending a trial on the merits of the case. The petition explained that government's seizure and continued control of the site was seriously damaging Puerto 80's business and also infringed on its readers First Amendment right to access its content. EFF, with co-amici Public Knowledge and Center for Democracy and Technology, submitted an amicus brief the elaborated on the First Amendment issues.

Puerto 80's petition explained that while the company can host content elsewhere, its usual visitors might not know how to find it. Too bad, said the court. "Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain to its customers,"

LULZSEC HACKER JACK DAVIS, AKA TOPIARY, RELEASED ON BAIL

District Judge Howard Riddle released 18-year old alleged LulzSec hacker Jack Davis on bail Monday morning. Davis hacked under the name “Topiary” online and served as the public face of LulzSec, often publishing press releases and status updates on the group’s Twitter account, before he was arrested on July 27th. The news debunks earlier reports thatauthorities had been duped into arresting an the wrong man.

Authorities in the U.K. said they discovered personal information for more than 750,000 people on Davis’ computers. Davis has been charged with hacking the Sun, Times, Sony and the Serious Organized Crime agency. Davis’ lawyers are highlighting his role as a press secretary for LulzSec and have argued that Davis did not participate in the attacks directly. Davis was released on bail but cannot access the Internet from any device, including from smartphones, The Financial Times said.

MISSOURI TO FORBID TEACHERS AND STUDENTS FROM BEING FRIENDS ON SOCIAL NETWORKS

If you’re a student living in Missouri, you’d better not be Facebook friends with any of your teachers – that will soon be illegal.

According to Missouri Senate Bill 54 that goes into effect on August 28, any social networking — not just Facebook — is prohibited between teachers and students. It’s all part of an effort to “more clearly define teacher-student boundaries.” However, KSPR reports that It’s only direct social media contact that’s prohibited; teachers are allowed to create Facebook Pages where all students have direct access to the teacher in a more public setting.

PROTECT IP ACT CALLED UNCONSTITUTIONAL BY BIPARTISAN GROUP OF LAW PROFESSORS

Turns out Eric Schmidt is not alone in his vehement opposition to the PROTECT IP Act, and the resistance is hardly partisan. A group of over 100 law professors signed a letter (jointly authored by Mark Lemley, David Levine, and David Post) arguing that the legislation working its way through congress is unconstitutional. The Supreme Court has previously ruled that speech can't be suppressed without the speaker being given an opportunity to defend his or her actions.

Yet, under the bill being advocated for by the RIAA the MPAA, a judge can issue a temporary restraining order that will essentially shutdown a site based only on evidence presented by the government. The letter warns that, not only could overseas domain owners be cheated of the right to due process but, plenty of protected speech could be censored based a single piece of infringing material. As we warned, this can only get nastier and this nascent battle is still only just getting started. You can read the entire letter here.

JUDGE RULES USE OF GPS TO TRACK CHEATING SPOUSE LEGAL IN NEW JERSEY

The use of a GPS device to track your whereabouts is not an invasion of privacy in New Jersey, a state appellate court panel ruled today. Based on the battle of a divorcing Gloucester County couple, the decision helps clarify the rules governing a technology increasingly employed by suspicious spouses — many of whom hire private investigators.

“For the appellate division to say that it’s not an invasion of privacy is a wonderful thing for the private investigation business,” said Lisa Reed, owner of LSR Investigations in Flemington. “It’s been something we’ve been haggling over for some period of time.”

No state law governs the use of GPS tracking devices, and the ruling, which does not affect police officers, is the first to address the issue, said Jimmie Mesis, past president of the New Jersey Licensed Private Investigators Association.

The court ruled in the case of Kenneth Villanova, a Gloucester County sheriff’s officer who sued private investigator Richard Leonard of Innovative Investigations Inc., hired by Villanova’s now ex-wife in 2007.

After Villanova evaded Leonard, who was following him, on several occassions, he recommended that Villanova’s wife buy a GPS tracking device. She put it in the glove compartment of the GMC Yukon-Denali, which they both owned but was primarily driven by Villanova, the court papers said. It was in place, undetected, from July 14 to Aug. 24, 2007. Two weeks into the GPS tracking, Leonard found Villanova leaving a driveway in his car with a woman who was not his wife, the decision said.

Villanova initially sued his wife for invasion of privacy and tried to include Leonard in that case as well. Villanova eventually dropped the claim against his wife in the divorce settlement but pursued his suit against Leonard. Villanova claimed the tracking device invaded his privacy and caused him ”substantial and permanent emotional distress,” though the appellate judges noted he sought no medical treatment or advice.

Appellate Judge Joseph Lisa, Jack Sabatino and Carmen Alvarez said Villanova had no right to expect privacy because the GPS tracked his movements on public streets. “There is no direct evidence in this record to establish that during the approximately 40 days the GPS was in the ... glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to (Leonard),” Lisa wrote.

US SUPREME COURT STRIKES DOWN CALIFORNIA VIOLENT VIDEO GAME LAW

On Monday, the United States Supreme Court rejected a law that would make it illegal for video game stores and publishers to sell or rent violent video games to minors. The law, which was adopted in 2005 and rejected in a 7-2 vote, was deemed unconstitutional and against freedom of speech rights. According to Reuters, a number of big players in the gaming industry opposed the law, including the Entertainment Software Association, whose ranks include Sony, Microsoft, EA, and Disney. “Our cases hold that minors are entitled to a significant degree of First Amendment protection,” Justice Antonin Scalia said. “Government has no free-floating power to restrict the ideas to which they may be exposed.”

NEW BILL WOULD FORCE CARRIERS TO REVEAL TRUTH ABOUT 4G

Though 4G’s definition is now anything but clear -- first it was fake, and then some solid lobbying on carriers’ parts convinced the International Telecommunication Union to sing a new tune that would allow telcos to call LTE, WiMAX and even certain 3G technologies “4G” without blatantly lying -- carrier marketing soon could be.

A new bill currently in hands of the U.S. House of Representatives could potentially require U.S. wireless service providers to define guaranteed minimum data speeds that customers can expect of their networks. Since two tin cans and a piece of string can basically be called a 4G network according to the ITU’s loose guidelines, this bill, dubbed the Next Generation Wireless Disclosure Act, would be a big step toward weaving through marketing tomfoolery and letting customers know just how 4G their 4G network really is.

While the benefits to subscribers are fairly obvious, whether or not the proposition might become law depends largely on how much lobbying carriers are prepared to do.

BILL TO MAKE STREAMING ILLEGAL CONTENT A FELONY INTRODUCED

Copyright owners have been frustrated by a disparity in federal law which views the illegal P2P downloading of copyright material as a felony, but if that same material is delivered via streaming it is not. The Commercial Felony Streaming Act would, just as its name implies, place the same legal consequences as downloading on the streaming of copyright material.

The act, which has received bi-partisan support and is sponsored by Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX), cleared its first legislative hurdle by being voted out of the Senate Judiciary Committee for presentation to the floor of the Senate. If approved by the Senate, the bill would then make its way over to the House. Renewed focus on rectifying the legal disparity between downloading and streaming came as the result of legislative recommendations presented to Congress by Victoria Espinel, the Office of U.S. Intellectual Property Enforcement Coordinator, back in March. The recommendations focus on ways to improve intellectual property (IP) enforcement efforts and include shoring up a disparity in how IP is enforced based on the method of distribution.

The wording of the legislation is careful not to target individuals who stream videos without the purpose of profit. In fact, the act clearly states that an offense, which could lead to imprisonment of up to five years, would need to consist of 10 or more public performances of one or more copyright works during any 180-day period. Also, the copyright work must have a retail value that exceeds $2,500 or a license worth more than $5,000. As one would expect, a number of industry groups applauded the approval of the act by the Committee including the American Federation of Musicians (AFM), AFTRA, Directors Guild of America, IATSE, SAG, Independent Film & Television Alliance, the Motion Picture Association of America, Inc. (MPAA) and the National Association of Theatre Owners (NATO).

TENNESSEE LAW BANS DISTRESSING IMAGES AND CIRCUMVENTS SEARCH WARRANTS FOR PRIVATE MESSAGES AND SOCIAL NETWORKS

Congratulations Tennessee! Governor Bill Haslam has put your state in the national spotlight and, for once, it has nothing to do with Bonnaroo or how bad the Titans are. The republican executive of the state signed a ban on "distressing images" into law last week that we're sure constitutional lawyers are going to have a field day with. Anyone who sends or posts an image online (and yes, that includes TwitPics) that they "reasonably should know" would "cause emotional distress" could face several months in jail and thousands of dollars in fines. The best part? Anyone who stumbles across the image is a viable "victim" under the law and the government doesn't even have to prove any harmful intent. So, Tennessee residents who aren't cautious enough using Google image search could get a few people in trouble.

Another, and perhaps more perturbing, part of the same bill also seeks to circumvent restrictions on obtaining private messages and information from social networking sites without a search warrant. We give it about a month before this gets struck down on obvious grounds that it's unconstitutional.

TENNESSEE MAKES IT ILLEGAL TO SHARE YOUR PASSWORD TO MEDIA SITES

One of the perks of having a friend with a Pandora, Rhapsody, or Netflix account is that if they’re really nice to you they may share their password, giving you free access to movies and music. Of course, these companies don’t advertise this as an option, for obvious reasons, but a new law passed in Tennessee is actually making it illegal to share your password. The consequences for being caught are pretty scary.

The bill, initiated by none other than the Recording Industry Association of America, has been approved by the Tennessee governor. The goal of the bill is aimed at stopping the billions of dollars lost in illegal music sharing. RIAA executive president of public policy Mitch Glazier told the AP that the bill is a “necessary protective measure as digital technology evolves.” He said the music industry has seen its domestic revenue fall from $15 billion to $7 billion in the past 10 years.

The RIAA says the bill was geared more towards hackers who sell passwords in bulk, but admits it could be used against people using a friend or relative’s password. The punishment for stealing $500 or less of entertainment would be a misdemeanor and up to a year in jail, as well as a $2,500 fine. Anything higher than $500 would be a felony with more serious penalties.

The RIAA hopes this bill will spread to other states but targeted Tennessee first because of Nashville’s ties to the music industry. It seems that most people sharing passwords within the same house, say between spouses, would be safe. However, if you’re sharing your Netflix password with 10 of your friends, you may be getting more than a slap on the wrist soon.

SAN FRANCISCO HALTS CELL PHONE RADIATION LAW

The San Francisco Chronicle is reporting that The City's law requiring cellphone retailers to label each device's SAR level as tested by the FCC has been put on indefinite hold, with a watered-down version likely taking its place. The law used SAR values to determine radiation levels.

As Joel Moskowitz, director at the IC Berkeley Center for Family and Community Health, and even the FCC will tell you, the SAR value is a poor measurement of radiation intake for consumers:

"The specific absorption rate isn't a very useful measure because it's the peak reading on a variety of tests conducted on cell phones to measure their radiation, but doesn't indicate the average amount of radiation a user would generally be exposed to. You could buy a lower SAR phone, but on average it could produce more radiation than a higher SAR phone."

Although changes to the law have not yet been formally introduced, they'll likely result in retailers handing out "tip sheets" to customers that explain how to minimize radiation exposure from their new handsets.

US SENATOR INTRODUCES INTERNET TAX BILL

A bill called the Main Street Fairness Act, sponsored by Rep. Bill Delahunt, was introduced in the House in July of last year. The bill would allow states who are members of the Streamlined Sales and Use Tax Agreement to collect state taxes for online sales. The agreement is an attempt to simplify tax collection and administration in an effort to make the ability for online merchants to collect state taxes more realistic.

CNet is now reporting that the House bill may be getting some assistance in the Senate thanks to Dick Durbin, a senator from Illionis. Durbin plans to introduce a bill by the same name as the House bill soon after Tax Day. It’s not surprising a Senator from Illinois would be introducing such legislation. In March, Illinois Governor Pat Quinn signed the state’s Main Street Fairness Bill which would require any online retailer with affiliates in the state to collect state sales tax for remote purchases. As a result of the new Illinois law, Amazon killed its affiliate program in the state.

If the Main Street Fairness Act makes it to the President’s desk and is signed into law, online retailers like Amazon wouldn’t be able to avoid the collection of state taxes by simply killing affiliate programs. The bill would make tax collection for those states who are part of the Streamlined Sales and Use Tax Agreement the law of the land.

HYUNDAI SONATA HYBRID DELAYED INTO 2011 BY VIRTUAL ENGINE SOUND REQUIREMENTS

The Hyundai Sonata Hybrid was ready to roll, in the US, in late 2010. Then the US government enacted a new law requiring all hybrids to have an audible "engine noise" so sight impaired individuals, and distracted folks, will be able to hear the near silent vehicles.

This required Hyundai to redesign the wiring harness, UI software and user manuals to meet the requirments set forth in the new legislation. These tweaks had to be done "amazingly late in the process," according to Hyundai America CEO John Krafcik.

NO WARRANT NEED TO LOOK THROUGH SMARTPHONE ACCORDING TO CALIFORNIA SUPREME COURT

According to the California Supreme Court, police don't need a warrant to start digging through your phone's contents.

The ruling comes as a result of the conviction of one Gregory Diaz, who was arrested for trying to sell ecstasy to a police informant in 2007 and had his phone confiscated when he arrived at the police station. The police eventually went through Diaz's text message folder and found one that read "6 4 80." Such a message means nothing to most of us, but it was apparently enough to be used as evidence against Diaz (for those curious, it means six pills will cost $80).

Diaz had argued that the warrantless search of his phone violated his Fourth Amendment rights, but the trial court said that anything found on his person at the time of arrest was "really fair game in terms of being evidence of a crime."

In its review of the case, the Supreme Court held that the Fourth Amendment didn't apply to the text messages on Diaz's cell phone at the time of arrest. The court cited a number of previous cases wherein defendants were arrested with all manner of incriminating objects—heroin tablets hidden in a cigarette case, paint chips hidden in clothing, marijuana in the trunk of a car—which did not require a warrant to obtain. The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.

The decision was not unanimous, though. "The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.

They went on to argue that the court majority's opinion would allow police "carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

The courts have gone back and forth in the past on how much privacy protection should be given to data that can be found on a citizen's cell phone. A Pennsylvania District Court ruled in 2008 that law enforcement must get a warrant before acquiring historical records of a cell phone user's physical movements. The same year, the 9th Circuit Court said that the text messages of a police officer had to meet the standards of a reasonable search before law enforcement could access them. In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

South Texas College of Law professor Adam Gershowitz argued in a 2008 paper that the proliferation of iPhone-like devices means that officers fishing through your pockets for weapons can suddenly access a plethora of sensitive documents, not to mention possible passwords. "[S]ince the Supreme Court has ruled that police have broad authority to arrest people for even trivial infractions, such as failure to wear a seat belt, the current rule gives law enforcement officers broad discretion to transform a routine traffic stop into a highly intrusive excavation of your digital life." [Ars Technica]