Ethics, Week 12

Paper 3
A brief history of hacking
Legal tools
Felony prosecutions
Zero-day exploits: cisco, MBTA
Trust and SSL
Jurisdiction
Trusting software
Voting
Linking

Hacking
To some of you, hacking is clearly wrong and there shouldn't even be a question here. If you're one of them, just pay attention to the legal-strategies-against-hackers part. However, is using a website in a manner contrary to the provider's intentions always hacking?

Baase's "three phases of hacking"

1. Early years: "hacking" meant "clever programming"

2. ~1980-~1995:
    hacking as a term for breakin
    largely teenagers
    "trophy" hacking
    phone lines, BBSs, gov't systems
    lots of social engineering to get passwords
  
1994 Kevin Mitnick Christmas Day attack on UCSD (probably not carried out by Mitnick personally), launched from apollo.it.luc.edu. [!]
   
3. post-1995: hacking for money

early years / trophy
Phone phreaking: see Baase, p 256
Joe "The Whistler" Engressia was born blind in 1949, with perfect pitch. He discovered (apparently as a child) that, once a call was connected, if you sent a 2600 Hz tone down the line, the phone system would now let you dial a new call, while continuing to bill you for the old one. Typically the first call would be local and the second long-distance, thus allowing a long-distance call for the price (often zero) of a local call. Engressia could whistle the 2600 Hz tone.
       
According to the wikipedia article on John Draper, Engressia also discovered that the free whistle in "Cap'n Crunch" cereal could be modified to produce the tone; Engressia shared this with Draper who popularized it. Draper took the nickname "Cap'n Crunch".

As an adult, Engressia wanted to be known as "Joybubbles"; he died August 2007
       
Draper later developed the "blue box" that would generate the 2600 Hz trunk-line-idle tone and also other tones necessary for dialing.
       
How do we judge these people today? At the time, they were folk heroes. Everyone hated the Phone Company!
   
Is phone-phreaking like file sharing? Arguably, there's some public understanding now that phone phreaking is wrong. Will there later be a broad-based realization that file-sharing is wrong?
   
How wrong is what they did? Is there a role for exposing glitches in modern technology?
   

  
What about the Clifford Stoll "Cuckoo's Egg" case: tracking down an intruder at Berkeley & Livermore Labs; Markus Hess was a West German citizen allegedly working for the KGB. Hess was arrested and eventually convicted (1990). Berkeley culture at that time was generally to tolerate such incidents.

Robert Tappan Morris (RTM) released his Internet worm in 1988; this was the first large-scale internet exploit. Due to a software error, it propagated much more aggressively than had been intended, often consuming all the available CPU. It was based on two vulnerabilities: (1) a buffer overflow in the "finger" daemon, and (2) a feature [!] in many sendmail versions that would give anyone connecting to port 25 a root shell if they entered the secret password "wiz".

Were Morris's actions wrong? How wrong? Was there any part that was legitimate? RTM was most likely trying to gain fame for discovering a security vulnerability. There was no financial incentive.

The jury that convicted him spent several hours discussing Morris's argument that when a server listened on a port (eg an email server listening on port 25), anyone was implicitly authorized to send that port anything they wanted. That is, it is the server's responsibility to filter out bad data. The jury eventually rejected this argument.

Mitnick attack: how much of a problem was that, after all? There are reports that many Mitnick attacks were part of personal vendettas. (Most of these reports trace back to John Markoff's book on Mitnick; Markoff is widely believed to have at a minimum tried to put a slant on the facts that would drive book sales.)


Stage 3: even now, not all attacks are about money.

Baase, p 259:
"In 1998, the US Deputy defense secretary desribed a series of attacks on US military computers as 'the most organized and systematic attack the Pentagon has seen to date.' Two boys, aged 16 and 17, had carried them out."
   
What about the London attack of about the same era on air-traffic control?

2000: the "Love Bug" or ILOVEYOU virus, by someone named de Guzman. If you read the subject and opened the document, an MS-word macro launched the payload.

MS-word macros were (and are) an appallingly bad idea. Should people be punished for demonstrating this in such a public way? Was there a time when such a demonstration might have been legitimate?


Yahoo ddos attack & mafiaboy, aka Michael Calce
The attack was launched in February 2000. Calce got discovered by bragging about the attack pseudonymously on chatrooms. Alas for him, he'd previously used his pseudonym "mafiaboy" in posts that contained more-identifying information.

Conficker worm, April 1, 2009

Putting a dollar value on indirect attacks

This is notoriously hard. One of Mitnick's colleagues (Phiber Optik?) was facing damage claims from one of the Baby Bell companies in excess of $100,000, when it was pointed out that the stolen document was in fact for sale for under $25.


Calce & Mitnick now both work in computer security. Is this appropriate?

One theory is that gaining notoriety for an exploit is the way to get a security job. Is that appropriate?

If not, what could be done differently?


Modern phishing attacks (also DNS attacks)

Stealing credit-card numbers from stores. (Note: stores are not supposed to retain these at all.)

Boeing attack, Baase p 262: how much should Boeing pay to make sure no files were changed?

TJX attack: Baase p 87

40 million credit-card numbers stolen! And 400,000 SSNs

Hackers apparently cracked the obsolete WEP encryption on wi-fi networks to get in, using a "cantenna" from outside the building.
   
When attacks ARE about money, often the direct dollar value is huge. And tracing what happened can be difficult. An entire bank account may be gone. Thousands of dollars may be charged against EVERY stolen credit-card number.


Is it ok to be "testing their security"?
What if it's a government site?

Should you be allowed to run a security scanner against other sites?

What if the security in question is APPALLINGLY BAD?

What if you have some relationship to the other host?
 
Baase, p 270:
"The Defense Information Systems Agency estimated that there were 500,000 hacker attacks on Defense Department networks in 1996, that 65% of them were SUCCESSFUL, and that the Dept detected fewer than 1%"

Do we as citizens have an OBLIGATION to hack into our government's computers, to help demonstrate how insecure they are?

What about hacking into Loyola's computers? Are we obligated to do that? What about Loyola's wireless network?

Ok, failing that, what is our obligation to prevent intrusions that are not likely to be directly harmful to us?


Hactivism

In 2006, Kevin Mitnick's sites were defaced by a group. There's some irony there.

Other Baase cases:
    several attacks against Chinese gov't sites, due to repressive policies
    pro-Zapatista groups defacing mexican gov't sites
    US DoJ site changed to read "Department of Injustice"


Legal tools against hackers

Once upon a time, authorities debated charging a hacker for the value of electricity used; they had no other tools. The relative lack of legal tools for prosecution of computer breakins persisted for some time.

Computer Fraud & Abuse Act of 1986: made it illegal to access computers without authorization (or to commit fraud, or to get passwords)

USAP AT RIOT act:
extends CFAA, and provides that when totting up the cost of the attack, the victim may include all costs of response and recovery. Even unnecessary or irresponsible costs.
   
Trespassing?
"Trespass of Chattels": maybe. This is a legal doctrine in which one party intentionally interferes with another's chattels, essentially personal property (including computers). Often actual harm need not be proven, just that the other party interfered, and that the interference was intentional and without authorization.

In 2000 e-bay won a case against Bidder's Edge where the latter used search robots to get information on e-bay auctions. The bots used negligible computation resources.

Later court cases have often required proof of actual harm, though. In 1998 [?], Ken Hamadi used the Intel email system to contact all employees regarding Intel's allegedly abusive and discriminating employment policies. Intel sued, and won at the trial and appellate court levels. The California Supreme Courts reversed in 2003, ruling that use alone was not sufficient for a trespass-of-chattels claim; there had to be "actual or threatened interference".

       After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself. [emphasis added]

How do you prosecute when there is no attempt to damage anything?

Part of the problem here is that trespass-of-chattels was a doctrine originally applied to intrusions, and was quickly seized on as a tool against those who were using a website in ways unanticipated by the creator (eg Bidder's Edge). Is that illegal? Should the law discourage that? Should website owners be able to dicate binding terms of use for publicly viewable pages (ie pages where a login is not required)?

Felony prosecutions: Kutztown 13, Randall Schwartz, Terry Childs

Kutztown 13
        Students were issued 600 apple ibooks in 2004
        admin password was part of school address, taped to the back!
        passwordd was changed, but new one was cracked too.
        kids got admin privileges and:
                bypassed browser filtering
                installed chat/IM software, maybe others
                disabled monitoring software
       
        The school's security model was hopelessly flawed.
        Who is responsible for that?
        The school simply did not have the resources to proceed properly.
       
        The kids were warned repeatedly.
        But why didn't the schools simply take the iBooks away?
        Why were felony charges pursued?
       
        http://www.wired.com/news/technology/0,1282,68480,00.html
        cutusabreak.org: now gone
        Wikipedia: Kutztown_Area_high_School
       


randall schwarz
    http://www.lightlink.com/spacenka/fors

    Oregon made it a FELONY to do anything UNAUTHORIZED.
    Also, taking a file without authorization was declared to be THEFT.

    Schwartz faced three counts:

  1. Installation of an email backdoor at intel (he thought he had some kind of permission)
  2. Taking password file
  3. Taking individual passwords

These he did as a former sysadmin, now assigned to other duties, but still concerned about password security. All he did was to run the "crack" program to guess passwords.

Appeals court argued that although "authorization" wasn't spelled out in the law, Schwartz did things without authorization as narrowly interpreted. The appellate court also upheld the trial court's interpretation of "theft": taking anything without permission, even if the thing is essentially useless or if the taking is implicitly authorized.

The appellate court also seemed to believe that Schwartz might have been looking for flaws to take credit for them, and that such personal aggrandizement was inappropriate.


Schwartz and Kutztown 13 cases have in common the idea that sometimes the law makes rather mundane things into felonies. For Schwartz, it is very clear that he had no "criminal" intent in the usual sense, although he did "intend" to do the actions he was charged with.

Terry Childs

Childs was a Cisco-certified Internetwork engineer (CCIE) working for San Francisco; he was the only one with the router passwords for the city's fiberWAN network.

He was suspended for insubordination on July 9, 2008, apparently for refusing to turn over router passwords. There are GOOD reasons for limiting access to such passwords on a need-to-know basis, BUT refusing to turn them over might be going pretty far. (However, there are some mitigating factors, including the fact that there was an open speakerphone call in progress at the time Childs was asked for the passwords). There is reasonable basis for believing that dismissal is the only resort an employer should have when dealing with an uncooperative employee.

Childs did nothing to damage the network, and the network was never down at any time.

 He was arrested by SF police on Saturday, July 12, 2008 on four counts of computer tampering. He is still [April 2009]in prison. He refused to give the police valid passwords at his arrest (such refusal is protected by the 5th Amendment). He did give the passwords to the mayor of SF, on July 21, 2008.

Childs had some past history: he committed a burglary at age 17 and spent 4 years in prison. This apparently has no bearing on the present case.

The city's main claim is that Childs was arrested because he placed the city systems in jeapordy. However:

  1. Refusal to share passwords is hard to see as a criminal act. After all, Childs could always quit.
  2. The city knowingly created and encouraged the environment in which Childs was the only one with the passwords.
  3. No working systems were ever at risk.

The biggest concern to computing professionals is that San Francisco then created a laundry list of criminal allegations against Childs that in fact are standard practices:

  1. Childs knew several other people's passwords. (A list of 150 such was found in Child's house, and entered into evidence at his bail hearing without redacting the passwords themselves.)
  2. He had network sniffers in place
  3. He had "back-door" access to the routers, through several modems (three in the final criminal count). But these were pretty clearly for emergency access.
  4. Routers were configured to resist password recovery (this is standard practice when the physical security of the device is in question).
  5. Configurations were not written to flash memory (same as 4)
  6. Childs' pager was sent a page by one of the routers (duh)

Childs seems to have been "security-conscious to the point of paranoia". But most good computer-security people are!

In opposing bail reduction for Childs, the city's attorneys wrote in July 2008:

In the training room locked by the Defendant, they discovered two modems that allowed access to the City's network from unauthorized locations. A further analysis of the network by Principle Security Consultant Anthony Maupin determined that the Defendant had configured multiple Cisco network devices with a command that erases all configurations and data in the event somone tried to recover the password. Further, the Defendant had created his own private network that bypassed all City monitoring and security systems. He had programs that monitored and detected any intrusions and notified the Defendant if others were monitoring or trying to access his information. The Defendant had implemented his own email server and had multiple remote access systems, some which [sic] were hidden in locked storage cabinets and connected to modems. This permitted the Defendant to access the City's network infrastructure undetected. An additional modem was discovered in a locked cabinet near his cubicle that was connected to a phone line and had access to the network.

... There are over 1100 different devices, routers, switches, modems, etc, scattered throughout the  city's offices that the Defendant may have configured and even locked with his own passwords.  ... there is a serious threat to the City's network system if the Defendant was out of custody without the City having full control over all the 1100 devices as the Defendant may have access any of these devices [sic].

The final four charges (pretty close to the original, but none of the tantalizing allegations of the bail-reduction motion making it in): one of "disrupting or denying computer services" (by not revealing the passwords) and three of "providing a means of accessing a computer, computer system, or computer network" (one for each of the three modems).

Note that in the first "disrupting or denying computer services" charge, no computer services were actually disrupted. The only thing denied was the password.

There are no charges (as filed in February 2009) of network tampering; these appeared in court documents in July and August 2008 but were dropped. ("Network tampering" appears to have been replaced by the three modem charges.)

The modems were all apparently legitimate: the first was to dial Childs' pager if there was a problem (through the What's Up Gold monitoring package), the second was to allow immediate dialin access to some SF networks (not apparently the FiberWAN), and in addition was apparently installed before Childs was hired, and the third was to provide an alternative communications paths to emergency services across the San Andreas fault. (See http://www.infoworld.com/d/data-management/could-childs-case-put-all-network-admins-in-danger-979)
If there was any additional illegitimate purpose, it does not appear to be documented anywhere in any filings to date.

It is indeed possible that Childs decided not to have configurations written to flash memory for "job security"; ie so that, if there was a problem, he would be irreplaceable. Alternatively, it could have been because Childs was having conflicts with management and wanted them to know they couldn't work without him. There is no evidence, though, of this.

Childs has been in jail for ten months. Bail is $5 million. There remains no clear-cut charge that makes sense technically. The formal allegations against Childs do not spell out any specific evidence of intent to disrupt the network (though they do not have to).


zero-day exploits
    Should they be tolerated? Encouraged?

  1. Sometimes vendors ignore exploit reports without the publicity.
  2. Sometimes users really need a script to tell them if they are vulnerable; such a script is typically tantamount to an exploit
  3. Sometimes announcing a flaw gives crackers all they need to exploit it; withholding details merely gives false security.


Consensus seems to be that zero-day exploits are still a bad idea; that one has some responsibility to let vendors know about an exploit so a patch can be developed.

Patch Tuesday is now followed by Exploit Wednesday.

Cisco 2005 case involving Michael Lynn: see http://www.schneier.com/blog/archives/2005/07/cisco_harasses.html

Cisco threatened legal action to stop the [July 2005 Black Hat] conference's organizers from allowing a 24-year-old researcher for a rival tech firm to discuss how he says hackers could seize control of Cisco's Internet routers, which dominate the market.

Cisco called the disclosure "premature" and claimed Lynn had "illegally obtained" the information by reverse-engineering. Lynn acknowledged that he had disassembled some Cisco code, based on an announced Cisco patch, but found an additional problem that could allow an outsider to take over the router. Note that a patch had already been released by Cisco, but many customers had not installed it because Cisco had not indicated it was important.

Lynn demoed his findings to Cisco in June 2005. Initially there had been talk about a joint security presentation, but these broke down. The Black Hat conference was in late July.

At the 2006 Black Hat conference, Cisco was a sponsor. Lynn was invited to the party the company sponsored.


In 2008, three MIT students, Russell Ryan, Zack Anderson, and Alessandro Chiesa, developed Anatomy of a Subway Hack (see http://cs.luc.edu/pld/ethics/charlie_defcon.pdf (especially pages 5, 8, 11/12, 24ff, 41, 49, and 51)). One of the methods of attack was to take advantage of a vulnerability in the Mifare Classic RFID chip used by the MBTA's "Charlie Card". They intended to present their findings at the 2008 Defcon.

US District Judge George O'Toole granted a 10-day preliminary restraining order against the group, but then let it expire without granting the five-month injunction requested by the MBTA. The MBTA's legal argument was that the paper violated the Computer Fraud and Abuse Act, but the problem is that the CFAA normally applies to worms and viruses themselves, and not to publishing information about them.

Much of the information in the report is highly embarrassing to the MBTA, such as the photographs of gates left unlocked. Should they be allowed to block that?

The MIT group apparently asked their professor, Ron Rivest (the R of RSA), to give the MBTA an advance heads-up, but it apparently did not happen immediately as Rivest was traveling at the time, and in any event would have amounted to just a week or so. The MBTA was eventually informed, and quickly pushed for an FBI investigation.

The MIT group's RFID hack was based on the work of Gans, Hoepman, and Garcia in finding flaws in the Mifare Classic chipset; see http://cs.luc.edu/pld/ethics/mifare-classic.pdf. This is a serious academic paper, as you can tell by the font. Their work is based on earlier work by Nohl and Plötz, which they cite. On page 4 of my copy the authors state

We would like to stress that we notified NXP of our findings before publishing our results. Moreover, we gave them the opportunity to discuss with us how to publish our results without damaging their (and their customers) immediate interests. They did not take advantage of this offer.

Note also that the attack is somewhat theoretical, but it does allow them to eavesdrop on the encrypted card-to-reader communications, and to read all of data-block 0 stored on the card (and other blocks, if the data is partially known).

Nohl has said, "It has been known for years that magnetic stripe cards can easily be tampered with and MBTA should not have relied on the obscurity of their data-format as a security measure".


Hacking

What legal responses are appropriate?
Should we criminalize having hacking tools?
What about c compilers?

Identity Theft

what is it? What can be done?

And WHO IS RESPONSIBLE??

  
Trust

With all the concern about online theft, why do we trust online merchants at all? For that matter, why do we trust people we've met on facebook, etc?

Why we trust online sites:

   
Technological issues & trust: can we at least trust that we're talking to the person we think we're talking to?

Old-style PGP (Pretty Good Privacy) trust:
You need to VERIFY people's public keys (that the key matches the person). Otherwise you can get a bad key, write to them using it, and be victim of a man-in-the-middle attack.

(public key crypto: each person has a public key and a private key. If someone encrypts a message to you with your public key, you can decrypt it with your private key. Similarly, if you encrypt something with your private key, anyone can decrypt it with your public key, and in the process verify that it was encrypted with your private key. That last bit means that the message can act as your DIGITAL SIGNITURE.)

How can we be able to TRUST our keys?

Alice needs Bob's key.

  1. She can meet Bob at a key-signing party. Bob can give her his key hash.
  2. She can ask Chuck. Chuck says Bob's online keyhash is legit.
  3. She can decide NOT to trust Chuck, at least about Bob, and ask Dora instead. Dora has never met Bob, but got Bob's keyhash from Ernie, who has.
  4. She can ask someone who has a large group of signed verifications of keys. Three of them are signed verifications of Bob's key.


SSL certificates (TLS certificates)
SSL = secure socket layer, old name
TLS = transport-layer security, new name

Any pair of entities can negotiate a session key:

 
BUT: how do you know you're not about to give your credit card to a bad guy with whom you've just created a session key?

Ask landsend.com for their SSL certificate. Receive it. It includes digital signatures by well-known Certificate Authorities, or CAs. It also includes DNS name.
       
CHECK it by using known public key from one of the CAs. These keys are preinstalled in your browser.
This prevents man-in-the-middle attacks, but won't help if router or DNS is hacked

their SSL server uses public-key encryption to sign something with the current date/time; replay isn't feasible either.


What does this have to do with TRUST?

Do you trust the CAs listed in your browser? Huh?

Edit => Preferences => Advanced => Encryption => View Certs


Note this is powerless against phishing attacks
Although the new Extended Valuation SSL Certs might. *Might*.


Back to why we trust online vendors:

   
Overall, it seems that lack of bad past experience has the most to do with why we trust.

What about personal sites? (Not necessarily dating, but those too.) How do we form online friendships (eg at discussion sites)? What makes us think people aren't completely deceiving us? What about in face-to-face settings? Is that any different????


Jurisdiction online

jurisdictional issues: where did the sale take place? This one is very important for e-commerce.

Traditional three rules for lawsuit jurisdiction:

  1. Purposeful availment: did defendant receive any benefit from the laws of the jurisdiction? If you're in South Dakota and you sell to someone in California, the laws of California would protect you if the buyer tried to cheat you. Generally, this is held to be the case even if you require payment upfront in all cases. The doctrine of purposeful availment means that, in exchange here for the benefits to you of California's laws, you submit to California's jurisdiction.
  2. Where the act was done.
  3. Whether the defendant has a reasonable expectation of being subject to that jurisdiction.


eHarmony lawsuits, for alleged discrimination against homosexuals

eHarmony is headquartered in California

New Jersey lawsuit by Eric McKinley, 2005
California lawsuit by Linda Carlson, 2007

How does jurisdiction apply? Should it have applied in New Jersey?
Is the fact that users must enter their address the deciding factor?

Would it have mattered if eHarmony was a free service?

sales

trademarks
libel/defamation
criminal law


laws governing sales: seller can sue in his home state/country
    This is more or less universal.
   

laws governing trademarks

Trademark scope
        The Blue Note Cafe was located in NYC
        The Blue Note, St Louis (actually Columbia, MO) was a club, sued for trademark infringement by Blue Note New York because they had a web site.
        The case: Bensusan Restaurant Corp v King, 937 F. Supp. 295 (SDNY 1996)
The case was brought in federal district court, which decided there was a lack of jurisdiction. Before that, however, note that the Missouri club began using the name in 1980, and the NYC club did not register the trademark until 1985. Note that, generally speaking, in this sort of situation the Missouri club retains the right to continue to use the name locally, while non-local use is reserved to the federal trademark-holder.

The district court did look at the "long-arm statute" of the "forum state", that is, New York. The New York law provides that

a New York court may exercise personal jurisdiction over a non-domiciliary who "in person or though an agent" commits a tortious act within the state.

The State-court interpretation of this was that the act had to be committed in New York State, and the federal court deferred to this interpretation.

Another part of the NY state law did provide for jurisdiction when the other party was outside the state. However, the law also

... restricted the exercise of jurisdiction under sub-paragraph (a)(3) to persons who expect or should reasonably expect the tortious act to have consequences in the state and in addition derive substantial revenue from interstate commerce

The second circuit decided that Blue Note Missouri did not derive revenue from interstate commerce. End of case.

Blue Note St Louis had a mostly passive web site, although they did advertise tickets online, to performances at the club itself. These tickets had to be picked up at the Missouri box office; they were never mailed. Does this matter? Does it matter that the tickets were technically not sold over the internet, but instead you had to call a phone number?

This case was decided on jurisdictional grounds: NY State did not have jurisdiction.
The second-circuit appellate decision is at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=docket&no=969344.
              
Domain names

zippo v zippo, 1997

See http://cyber.law.harvard.edu/metaschool/fisher/domain/dncases/zippo.htm
    zippo lighters v zippo.com
    trademark infringement filed under PA state law, but filed in federal district court.
    PA "long arm" statute
   
zippo.com was a news service. They had email customers in PA, and two ISP customers.
    (1) the defendant must have sufficient "minimum contacts" with the forum state,
    (2) the claim asserted against the defendant must arise out of those contacts, and
    (3) the exercise of jurisdiction must be reasonable.
   

We find Dot Com's efforts to characterize its conduct as falling short of purposeful availment of doing business in Pennsylvania wholly unpersuasive. At oral argument, Defendant repeatedly characterized its actions as merely "operating a Web site" or "advertising." Dot Com also cites to a number of cases from this Circuit which, it claims, stand for the proposition that merely advertising in a forum, without more, is not a sufficient minimal contact. [FN7] This argument is misplaced. Dot Com has done more than advertise on the Internet in Pennsylvania. Defendant has sold passwords to approximately 3,000 subscribers in Pennsylvania and entered into seven contracts with Internet access providers to furnish its services to their customers in Pennsylvania. [emphasis added]

     
Decided JURISDICTIONAL issue, plus others: PA did have jurisdiction


Note the gray area between a completely passive website, just an "electronic billboard", and “the knowing and repeated transmission of computer files over the Internet”. Usually the latter means subscriber-specific information.

What about google.com? Should Illinois courts have jurisdiction?

Internationally, we already looked at LICRA v Yahoo, filed in France (and won by LICRA) for Yahoo's selling of Nazi memorabilia on its auction site in the US. Yahoo had initially agreed to comply with the French order, and then later changed its mind, and filed suit in the US asking that the US court declare that the french court did not have jurisdiction. That case ended in a draw (specifically, in a declaration that the case was not "ripe").


Suppose your bank makes an error. Where do you sue them? What if their only presence in your state is online? Consider the case Soma Medical v Standard Chartered Bank. SCB is located in Hong Kong. Soma is in Utah. Soma did banking with SCB online. Some money disappeared. Soma lost their lawsuit in Utah [Michael Shamos]

NTP v RIM: RIM's network hub was in Canada. RIM lost on that point, but there remain serious questions about whether US patent law extends to other countries.

Butler v Beer Across America
http://itlaw.wikia.com/wiki/Butler_v._Beer_Across_America
BAA is an Illinois company selling beer over the internet. Butler's minor son ordered beer, and it was delivered to him despite rules that required an adult signature. Butler sued BAA under an Alabama law that makes it illegal to sell alcohol to minors. In this case, Butler lost her bid to get Alabama jurisdiction, though the case was transferred by the Alabama court to Illinois.

Deciding that the sale of beer by Illinois defendants to an Alabama minor on the Internet occurred in Illinois, the federal court held that a single sale was insufficient minimum contacts to establish personal jurisdiction over the defendants in Alabama.



Cybersquatting:

This is somewhat related to trademark disputes, but an essential component is the claim that one party doesn't really want the trademark, but just wants to "extort" money from the other side.

See http://www.networksolutions.com/legal/dispute-policy.jsp

    Uniform Domain Name Dispute Resolution Policy -- ICANN

4(b). Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.



========

Also AntiCybersquatting Consumer Protection Act.

Some form of bad faith is usually necessary. But not always, if the effect is to resemble a famous trademark and if you have good lawyers. Sometimes the only "bad faith" or "intent to profit" is the offer of the domain holder to settle the case by selling the domain to the plaintiff.

All this is really about trademarks, not about jurisdiction. But the "flat" namespace of the web makes all trademark disputes national, or even global.


vw.net: virtual works
    http://www.news.com/2100-1023-238287.html
   
Peculiarity: vw.net, a one-man company with James Anderson as principle, offered to sell the name to volkswagen in 1998, and threatened to auction the name off if volkswagen did not buy. This triggers a presumption of domain-name squatting.
   

"A federal appeals court in Virginia [2001] affirmed a lower court's ruling that online service provider Virtual Works Inc. violated the 1999 Anticybersquatting Consumer Protection Act when it registered the domain vw.net with the intent to sell it to Volkswagen of America."

   

"Grimes' [Anderson's early partner] deposition reveals that when registering vw.net, he and Anderson specifically acknowledged that vw.net might be confused with Volkswagen by some Internet users," Wilkinson wrote. "They nevertheless decided to register the address for their own use, but left open the possibility of one day selling the site to Volkswagen 'for a lot of money'."

   
See http://vwx.com. Oops, I guess not; that site is now for sale. At one point, it was about Anderson's side of the case.
   
A possibly important point was that virtual works never used the abbreviation "vw" except in the domain name.
   
They (vw.net) lost.

Is this about cybersquatting? Or is it about the (lack of) rights of the Little Guy to use their trademark in good faith?


american.com: formerly owned by cisco, now a private 'zine (the airline is aa.com)

gateway 2000 v gateway.com
    gateway.com was a computer consulting firm, run by Alan Clegg. There was absolutely no evidence that Clegg foresaw that in the year 2000 the name gateway2000.com would become obsolete, and reserved gateway.com in anticipation of a domain sale.
   
yahoo.com v yahooka.com [which see]
    Case was actually never filed
   


state-law libel and jurisdiction

A state court in Clayton v. Farb, 1998 Del. Super. LEXIS 175 (Del. April 23, 1998), found that Delaware's long arm statute did NOT reach the defendant, who posted allegedly libelous and slanderous false statements about the plaintiff on his Internet site. The statute provided for jurisdiction over tortious activity outside of Delaware ONLY if defendant regularly conducted business in the state. The court found that access in Delaware to defendant's Internet posting did not constitute sufficient contact to support the exercise of personal jurisdiction.
     
******  Decided on JURISDICTIONAL grounds
    DE did not have jurisdiction

Laws governing libel:

Truth is a defense, but can be expensive to prove. If you say something false about a public figure, they have to prove actual malice. If you say something false about anyone else, all they have to prove is that you were negligent.

We've seen Batzel v Cremers.

Cremers lost on the jurisdiction issue.

But what if the legal climate in the Netherlands was different for libel lawsuits? What if in the Netherlands the burden of proof lay with the plaintiff to prove something false, and Cremers was sued in a jurisdiction (eg England, which still has pro-plaintiff libel laws) where the burden of proof lay with the defendant?


Trusting software: how do we do this? What responsibility do vendors have?

    is there an obligation for software to work on our behalf?
    a "fiduciary obligation"?
   
    Trusting your email software; trusting your browser

See http://stopbadware.org

Badware is software that fundamentally disregards a user’s choice regarding how his or her computer will be used. You may have heard of some types of badware, such as spyware, malware, or deceptive adware. Common examples of badware include free screensavers that surreptitiously generate advertisements, malicious web browser toolbars that take your browser to different pages than the ones you expect, or keylogger programs that can transmit your personal data to malicious parties. [stopbadware.org/home/badware]

   
What about DRM? What about Windows?

Most is spyware or viruses or some inappropriate "control" software (eg Sony's)

stopbadware.org definition
   1.  If the application acts deceptively or irreversibly.
   2. If the application engages in potentially objectionable behavior without:


See also stopbadware.org/home/guidelines

Also see http://stopbadware.org/home/alerts:
    RealPlayer had been here (Spr 2008?) (still in stopbadware.org/home/alertsarchive)

We find that RealPlayer 10.5 is badware because it fails to accurately and completely disclose the fact that it installs advertising software on the user's computer. We additionally find that RealPlayer 11 is badware because it does not disclose the fact that it installs Rhapsody Player Engine software, and fails to remove this software when RealPlayer is uninstalled.

    KaZaa had been here in (Spr 2008?)

We find that Kazaa is badware because it misleadingly advertises itself as spywarefree, does not completely remove all components during the uninstall process, interferes with computer use, and makes undisclosed modifications to other software.

    Spyware Striker Pro (Spring 2009)
        (ironically, this is NOT "fake" spyware-removal software!)

We've seen that people form trust relationships based on a fairly limited set of positive experiences (though a limited set of negatives, as well). Sometimes it seems that software has a lot to live up to, in that we trust it because we don't see bad experiences, but it is so easy for software to take advantage of us.
    * collecting personal information
    * sony "rootkit" cd driver
   
Email: who is responsible for keeping you safe from spam?
From embedded tags in html that reveal to the sender if you've viewed the email?

The images issue has been around for almost a decade; many email vendors (and many freemail providers) have been reluctant to support image-blocking until ~2006 or later. (There may be non-conflict-of-interest reasons for that: it may be perceived as a hard-to-understand option.)

Browsers: browsers do all sorts of identification of themselves when they connect. Some of that is important; some is questionable. Most browsers do not leak "private" information.

Try http://www.jms1.net/ie.shtml, with internet explorer.

What about cookies?

Many browser PLUGINS do leak some degree of private information. When you register a plugin, you connect some personal information to that plugin. Also, some plugins contact the mothership at regular intervals.

See spywareremove.com/remove-BrowserPlugins

SEVERAL media players (plugin or otherwise) may do some checking of licenses or with mothership before allowing play. Perhaps most players from media companies behave this way.


What about compatibility lock-in?


To what extent should your OS be required to act on your behalf?
Palladium (aka Next-Generation Secure Computing Base):
    locks you out of lots of things.
    Trusted side: can't be reached by debuggers or viruses
    Problem: machine now is autonomous; vendor has complete control.
    Software updates, file compatibility,
   


SONY case has the rights of users front and center.
Sony's 2005 copy-protection scheme : that installs a private CD driver AND a hidden "r00tkit" that conceals itself and hides some registry keys.

Is this legit?

How does it compare with Palladium (secure-computing platform)?

Users do click on a license agreement. Were they sufficiently warned?
(Software may have been installed before the EULA came up; and in any event clearly the EULA did not explain just what was going on.)

Note from Mark Russinovich, via wikipedia:

He also mentioned that the XCP software installed silently before the EULA appeared, that the EULA does not mention the XCP software, and that there was no uninstaller, all of which are illegal in various ways in various jurisdictions. Several comments to the entry recommended a lawsuit against Sony BMG.

    
There is now a virus/worm out that takes advantage of the sony kit.

Sony issued an uninstall utility that didn't actually uninstall the software, but did make it visible. However, users had to supply an email address, which by Sony's privacy policy was eligible for spamming.

This or a later removal kit allegedly ADDED a bad ActiveX control.


Trusting voting machines

If we trust our phones and calculators, why on earth shouldn't we trust voting machines?

Because nobody will gain from secretly having our phones and calculators give incorrect results.

(And there are now phone viruses)

     
Look at the video at http://itpolicy.princeton.edu/voting/videos.html
Question to think about and for discussion: 
 
    Who are we trusting when we use these machines in an election?
    How is this trust different with paper ballots?
    Why did they make the video (versus just writing a paper)?
 
Notes: just booting with a clean memory card does NOT necessarily clear the machine! The bootloader in flash memory may have been corrupted. The machine loads a new bootloader from every card with a file fboot.nb0
 
Seals (which Diebold recommends) are often ignored, and if not then breaking them constitutes an effective DoS attack.  
 


What about linking?
 
 Is a link to a defamatory site a form of defamation?
 (It probably depends on the context)
 
 Is a link to "illegal" software forbidden?
 2600 case:

Is linking to a site a form of using that site without authorization? Possibly leading to a claim of trespass-of-chattels?
 
What about linking to other sites:
     bandwidth
     trademark
     avoidance of advertising
    
     cussedness/control
    
 search engines do this CONSTANTLY.
    
For a while this was a serious issue, but it seems to be flaming out. Lots of sites still have bizarre linking policies, though.

dontlink.com

Universal v Reimerdes:
from wikipedia:
In particular the Second Circuit ruled that linking on the Internet happened so fast that it could be restrained in ways that might not be constitutional for traditional media.