Pirate Bay verdict, and ensuing crankiness
CFAA and the Citrin decision
Trust and SSL
Jurisdiction
Software trust
Voting
Linking
Ellen paper
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?
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.
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:
You're guaranteed a random key provided the other side does not see your bits before choosing theirs. There are protocols to enforce that (eg exchanging encrypted bits and then exchanging special keys to decrypt them)
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?
What does this have to do with TRUST?
Do you trust the CAs listed in your browser? Huh? Have you even heard of any of them?
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. This seems to be the case with face-to-face and brick-and-mortar relationships just as much as with online situations.
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:
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?
trademarks
libel/defamation
criminal law
laws governing sales: seller can sue in his home state/country
This is more or less universal.
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
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
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.
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.
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
========
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.
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?
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.
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 legitimate 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, though they do leak the
browser and OS you are using. Furthermore, this is hard to change!
Try http://www.jms1.net/ie.shtml,
with internet explorer. (Actually, go to jms1.net, and you get
redirected to the linked site if you're using IE. At one point there
was a page on the site that would simply make IE die.)
IE's entire ActiveX security model is broken; ActiveX is an approach to security where you trust any signed
software. Java, on the other hand, trusts any source, but runs the
software in a "sandbox" where it (hopefully) can't damage your machine.
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. Do you trust your vendor?
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" (so named by Mark Russinovitch, then of sysinternals.com) 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 was apparently 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:
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.
While we're on the subject of Sony, there was a recent report (in
print, which I can't find now) that a significant breakin at US
Government sites was precipitated by flaws in the LimeWire file-sharing
package. As in, under some circumstances LimeWire would share everything.
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. We would find out almost immediately, after all.
(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:
Universal v Reimerdes:
from wikipedia (http://en.wikipedia.org/wiki/Universal_v._Reimerdes)
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.
Also, apparently the defendants more or less admitted that they were providing links to deCSS for the purpose of making illegal DVD copies. Things might have been different had they linked for the purpose of research.
While we're at it, contemplate 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0. Is this a legal number?
Part of the issue with linking is that it can provide easy access to "forbidden" content such as circumvention software (deCSS) or copyrighted content (eg providing movie .torrents). For that part, providing the URL in "unlinked" form is probably also subject to regulation.
But the other part is conventional "deep links". These can be used
to view a given page out of context, or to view a given page in a
border provided by another page, or to avoid advertising. Should these
kinds of links be subject to prohibition?
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.
http://dontlink.com; alas, active site work stopped in 2002.
But see: http://www.americanexpress.com/shared/copyright/webrules.html, item 9, "Linked Internet Sites"
Symantec has a different approach: http://www.symantec.com/about/profile/policies/legal.jsp#linking (2009)
Symantec permits anyone to link to Symantec's web site subject
to the linker's compliance with the following terms and conditions:
A site that links to Symantec's web site:
Rules 1-8 are entirely reasonable.