The use of smartphones has proliferated in the past couple of years. Not surprisingly, many of the users of such technology are lawyers! However, even given their immense benefits, the widespread use of smartphones in the practice of law can raise ethical risks for lawyers, particularly when confidential client information is on the line (no pun intended). The newest “Blackphone 2,” a collaboration project between phone-maker Blackphone and security communications company Silent Circle, just might provide the answer that lawyers have been searching for.
As background, Rule 1.6 of the Model Rules of Professional Conduct requires that lawyers hold private client information confidential. It states, in part: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Rule 1.6 has been interpreted as having a negligence standard. In other words, as long as a lawyer takes reasonable steps to insure client confidentiality, he/she is in compliance with Rule 1.6. Conversely, a failure to take such reasonable steps may result in liability to the lawyer. (more…)
After a several weeks-long trial, a federal jury found Ross Ulbricht guilty of running and operating the online black market known as Silk Road on February 4, 2015. (We previously covered opening statements in the case here.) The jury deliberated for only three and a half hours before convicting him on all counts, including conspiring to sell narcotics, hacking software and counterfeit documents, and a “Continuing Criminal Enterprise” charge, commonly known as the “kingpin” charge usually reserved for organized crime bosses. He faces a maximum penalty of life in prison. Ulbricht was accused of being the “Dread Pirate Roberts,” the “ringleader” of Silk Road, which he started in 2010 in order to sell hallucinogenic mushrooms. It then grew into a digital marketplace for narcotics and other illegal items like fake passports. Silk Road was cloaked in the Tor anonymity network to hide it from view and used Bitcoin as its currency of choice due its difficulty to track. The site was eventually shut down in 2013 when the FBI seized its servers and arrested Ulbricht.
The FBI claims that it was able to uncover the Silk Road servers via a software flaw on the site’s login page that revealed an IP address. That IP address then led to a location in Iceland where the Silk Road server was hosted. However, some members of the security community surmise that the FBI hacked the login page to force the IP address instead, which is illegal and could set a problematic legal precedent. (more…)
Later this month, the Court will hear oral arguments for the patent licensing case Kimble v. Marvel Enterprises, Inc. to decide whether it should overrule Brulotte v. Thys Co. The 1964 Brulotte decision, which has since been widely criticized, held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”
The Kimble case arose from a dispute between inventor Stephen Kimble and Marvel Enterprises over a gloved Spider-Man toy that gives its superhero users the power to shoot webs (foam string) at Green Goblin, Doctor Octopus, and associated villains. Kimble, who developed the gloved toy, alleged that Marvel Enterprises had developed a similar toy that incorporated his patented ideas, as well as other ideas that Kimble had disclosed to Marvel previously. After Kimble filed suit against Marvel alleging patent infringement and breach of contract, the parties eventually agreed to a settlement in which Marvel would purchase the patent for $500,000, plus 3% of net product sales. Importantly, though, the agreement contained no end date or “step down provision” for the 3% royalty payments. This created a conflict with Brulotte because the agreement, in essence, extended the term of Kimble’s patent indefinitely. Accordingly, as soon as the patent term expired, Marvel ceased making payments and Kimble sued for breach of the settlement agreement. (more…)
“You’re smart, busy & ambitious. You don’t need a dating app to get a date—you’re too popular as it is. But you should join The League.” The League is a new online dating app that is stirring up controversy and has been coined an elitist app for its highly selective and exclusionary model. Following in the success of dating apps such as Tinder and Hinge, The League aims to “help you find the right partner, provided that you fit in.”
Today, the online dating industry is worth over $2 billion. The League, one of the newest niche online dating apps available, launched in November 2014 and raised $2.1 million in venture capital within two months. The League prides itself on being distinguishable from other dating apps. This new dating app is discreet and hides your profile from friends, business contacts, and co-workers. The League also promises to help you “spend your time more … intelligently.” Furthermore, in an attempt to counteract the overabundance of choices available on other dating apps, The League claims to simplify your dating life by scouting potential matches for you based on your preferences. A member’s profile can only be viewed by another member who meets his or her preferences. The League also assures that there are “no fakes”—you can be certain that people are who they say they are because of The League’s thorough application process. Although The League has only been launched in San Francisco, the app already has 5,500 members just within San Francisco. However, there are almost 80,000 prospective members currently on the wait list. (more…)
In the most entertaining legal battle to develop out of Super Bowl XLIX, Katy Perry has famously attempted to copyright Left Shark, the much-celebrated Internet phenomenon of the month. In a more recent development, Perry has made further moves to bolster her intellectual property rights—this time with a trademark claim.
The origins of Left Shark are by now a familiar subject: two “sharks” served as backup dancers in Perry’s beach-themed halftime performance; one of them unexpectedly stole the show by bumbling his way through the choreography. The less-than-perfect performance did not escape the internet’s attention and collective amusement, and so Left Shark was born.
Before long, Fernando Sosa (of figurine company Shapeways) began recreating the shark for sale in miniature, and Perry’s lawyers responded with a cease-and-desist letter, claiming that Sosa’s product “infringes [Perry’s] exclusive rights in numerous ways.” Represented by NYU law professor Chris Sprigman, Sosa struck back by rejecting Perry’s ownership of copyright. Sprigman cited Perry’s own quotes, which indicated that she was not the “boss” of her halftime show, including, presumably, the production decisions leading to the creation of Left Shark. (more…)
No one from Earth has been to the moon since 1972, but Google’s Lunar XPRIZE has sparked an interest in returning. The Lunar XPRIZE is a race to the moon in which competitors must land a robot safely on the moon and send back “HDTV Mooncasts for everyone to enjoy.” The deadline is next year and it has created a growing interest in moon activity. One company, Bigelow Aerospace, has even developed inflatable habitats to set up in space. The program, known as BEAM, has been developed as an attachment to the International Space Station, but Bigelow would also like to launch these habitats to the Moon. Even though the 1967 Outer Space Treaty bans sovereign ownership rights to the moon, Bigelow may one day soon be allowed to place its habitats on the Moon.
As was outlined in a recent WJLTA blog article on Asteroid Mining, the Outer Space Treaty and the Moon Agreement currently govern space law. Though no sovereign can claim ownership in space, the Outer Space Treaty has potentially left open a loophole that could allow for nongovernmental, private entities to have ownership rights in space. Additionally, the 1979 Moon Treaty, which governs lunar activity was never signed by the U.S., leaving open another potential loophole for private American entities. (more…)
Every day, Automatic License Plate Readers (ALPR) capture millions of license plate images, which are stored in third-party databases. ALPRs have been used by law enforcement and state agencies to recover stolen vehicles and as a method of electronic toll collection on roads. Privacy activists, however, are concerned that state law enforcement may use ALPRs as a surveillance tool to track drivers’ locations and store images of drivers and their passengers. They argue that ALPRs may be used to collect information about individuals engaging in lawful activity, such as attending a peaceful gathering, or who pose no security threat.
For example, the Virginia State Police used ALPRs to record not only the license plates of vehicles attending President Obama’s inauguration, but entire campaign rallies for President Obama and former Alaskan Governor Sarah Palin as well. And in San Leadro, California, police used ALPRs to monitor Mr. Mike Katz-Lacabe’s Toyota Tercel, even though he had not been charged with a crime. When Katz-Lacabe submitted a public records request, he obtained 112 photos of his vehicles dating back two years. He was surprised to learn that he could identify people in the photos. Indeed, he was able to identify himself wearing one of his Berkeley shirts. (more…)
By Max Burke
The Federal Aviation Administration (FAA) on Sunday released proposed rules for small commercial unmanned aircraft systems (UAS)—also known as drones or unmanned aircraft vehicles. The rules would apply to non-recreational UAS under 55 pounds and would, among other things, limit flights to daylight hours and altitudes of less than 500 feet. A drone operator, with the help of visual observers, would need to maintain visual line of sight of the drone. And an operator would also “have to be at least 17 years old, pass an aeronautical knowledge test and obtain an FAA UAS operator certificate.” (See a summary of the proposed requirements here and the full proposal here.)
Currently, the FAA effectively bans commercial use of drones. Pursuant to section 333 of the FAA Modernization and Reform Act of 2012 (FMRA), the FAA authorizes such use only on a case-by-case basis; a limited number of companies have been given authorization since September 2014. The proposed rules—which were made pursuant to the FMRA—are supposed to be the next phase in expanding commercial drone use. The FAA lists a number of UAS activities that would be allowed under the proposed framework, including crop monitoring, research and development, power-line inspections, aerial photography, and aiding certain rescue operations. Anyone can submit comments on the proposed rules to the FAA for up to 60 days after the rules are published in the Federal Register. Unfortunately, promulgation of permanent rules is not expected until 2017, nearly two years after the deadline mandated by Congress in the FMRA. (more…)
On February 3, 2015, the UK House of Commons voted to authorize a fertility technique known as mitochondrial donation. The babies that result from such a technique would have three genetic parents: one father and two mothers. The process shows promise in preventing the passing on of serious mitochondrial diseases from mother to infant. Perhaps belying the controversy surrounding a novel reproductive technology, the vote in the House of Commons was fairly one-sided; there were 382 members in approval and 128 against. Approval by the House of Lords is necessary, but if it is forthcoming, babies conceived by this process could be born in 2016.
The process involves the manipulation of embryos from two women. The nuclear DNA of a woman who will pass on a mitochondrial disease is transplanted into the de-nucleated embryo of a donor. The resulting embryo has sets of nuclear and mitochondrial DNA from two different women, and the process of in vitro fertilization is then used to carry out the pregnancy. The infant born of this process would have the genetic material of three people, but would also hopefully be free of the diseases resulting from the defective mitochondrial DNA. Mitochondrial diseases are untreatable, and those afflicted by them often do not live into adulthood. This new fertility process is the result of lengthy scientific research, and heralded as a medical breakthrough. Proponents of the process say that it provides women who would otherwise pass on these debilitating diseases with the opportunity to have healthy genetic offspring. (more…)
On February 4, 2015, Tom Wheeler, Chairman of the Federal Communication Commission (FCC) announced, through a Wired op-ed piece, his plan to circulate a new proposal that would allow the FCC to use its authority under Title II of the Communications Act to protect consumer broadband internet and provide stronger “open Internet” protections. The proposal will be subject to a vote by the full commission on February 26, 2015.
The proposal is considered a big win for net neutrality advocates because it could allow the FCC to stop Internet service providers from charging content providers more money for reliable Internet access. The proposal comes as a direct response to President Obama’s speech in November 2014 where he asked the FCC to reclassify the Internet as a public utility and suggested a four point plan for ensuring net neutrality.
Net neutrality, or open Internet, relates to the idea that ISPs and governments should treat Internet data equally in order to preserve its freedom and openness. This could be accomplished by prohibiting the owner of a network from discriminating against information by slowing or tampering with the transfer of any data. Currently, the FCC attempts to ensure net neutrality through the Open Internet Order, which established “high-level rules requiring transparency and prohibiting blocking and unreasonable discrimination to protect Internet openness.” (more…)