(1) We navigate through the details of the NSA PRISM Program and the Foreign Intelligence Surveillance Act, as well as the President’s Summit with China on cybersecurity with Dr. Russ Burgos.  (see below)

(2) Bennet discusses the recent Utah federal court decision in Zoobuh v Better Broadcasting.   (see link)

(3) We mourn yet another tragic mass shooting, this one just miles from our broadcast center here in Santa Monica.

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About Our Guest

Dr. Russell A. Burgos teaches in UCLA’s Global Studies and Middle East and North African Studies programs. He earned his Ph.D. from UCLA’s Political Science Department and has a master’s degree in National Security Policy Studies from The George Washington University.

In conjunction with UCLA’s Center for Middle East Development, he directed the Middle East Military-Security Program at the University of California Institute on Global Conflict & Cooperation (IGCC) for five years, facilitating dialog between senior military officers from the Near and Middle East. In that role, he developed close working relationships with senior military leaders from Egypt, Iraq, Israel, Jordan, Turkey, and Yemen, as well as from European and NATO allies including Britain, France, Hungary, Italy, and Turkey.

A veteran of Operation Iraqi Freedom, Professor Burgos spent 18 years in the United States Army, in both active duty and reserve component assignments. In Iraq, he was responsible for overseeing communications, current intelligence, and civil-military operations for a combat aviation battalion.

Professor Burgos has published in scholarly journals, edited volumes, research encyclopedias, and in major newspapers such as the Chicago Tribune, Los Angeles Times, New York Times, and Washington Post. He has provided expert commentary on regional security matters for local and national television and radio news, for Voice of America, and for television and film productions. He appeared most recently on the DVD/Blu-Ray edition of The Devil’s Double, a fictionalized account of the life of Uday Hussein (Corsan/Lionsgate 2011), discussing the history and politics of the actual Saddam Hussein regime.

He has taught at Claremont McKenna College, Pepperdine University, the University of Southern California and UCLA. He is an External Research Associate for the U.S. Army War College Strategic Studies Institute and is a member of the American Political Science and International Studies Associations and the Iraq and Afghanistan Veterans of America.

• During a 12-month period an estimated 14 in every 1,000 persons age 18 or older were victims of stalking
• About half (46%) of stalking victims experienced at least one unwanted contact per week, and 11% of victims said they had been stalked for 5 years or more.
• The risk of stalking victimization was highest for individuals who were divorced or separated—34 per 1,000 individuals.
• Women were at greater risk than men for stalking victimization; however, women and men were equally likely to experience harassment.
• Male (37%) and female (41%) stalking victimizations were equally likely to be reported to the police.
• Approximately 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or instant messaging (35%).
• 46% of stalking victims felt fear of not knowing what would happen next.
• Nearly 3 in 4 stalking victims knew their offender in some capacity.
• More than half of stalking victims lost 5 or more days from work.

In 2011 it filed several actions under the CAN-SPAM Act in Utah federal court against Better Broadcasting, LLC and other defendants.  [Full disclosure - I represented one of the defendants dismissed from this case]  ZooBuh sought default judgment and won.

The Utah district court made three key findings:

(1) Zoobuh and Standing

It concluded that Zoobuh’s 3-man operation was a bona fide ISP that had been adversely affected under CAN-SPAM.  The court cites ZooBuh’s efforts to

identify the source, examine the transmission information,examine and analyze the header information, take efforts to determine how and why the specificemails were able to circumvent and/or bypass preliminary filtering techniques, and to ultimately attempt to make the emails stop.

This, however, is more consistent with the operation of a plaintiff mill than that of a standard ISP.

(2) Trancos and Private Domain Registrations

It applied the California Court of Appeal’s Trancos decision to conclude that use of a privacy protect domains for sending email constitutes deceptive header information.

[W]here an email contains a generic “from” name and is sent from a privacy-protected domain name, such that the recipientcannot identify the sender from the “from” name or the publicly available WHOIS information,such is “materially misleading” and is a violation of 15 U.S.C. § 7704(a)(1)(C).

(3) Are Disclosures in Image Files Void

A determination of whether an email contains a Content Violation turns on theinterpretation of the term “clear and conspicuous.” In a commercial communication through anelectronic medium “clear and conspicuous” is defined as follows: the “disclosure must beunavoidable . . . [and] [a]ny visual message shall be of a size and shade, with a degree of contrast  to the background against which it appears, and shall appear on the screen for a duration and in alocation sufficiently noticeable for an ordinary consumer to read and comprehend it.”  F.T.C. v. Affiliate Strategies, Inc, No. 5:09-CV-04104-JAR-KGS, 2011 WL 3300097, *2 (D. Kan.Aug. 1,2011).

The question presented to the Court in this case is whether Required Content provided inthe emails through a remotely hosted image is clearly and conspicuously displayed. This Court determines that it is not.

The flaw with this conclusion is that it permits liability to rest not on the actual content of the message but on how a recipient’s anti-theft software elects to display it.

The opinion is below.

BIG QUESTION ON WHETHER CFAA BARS ACCESS TO PUBLIC INFORMATION

The court refused to dismiss much of Craigslist’s claim against data scrapers.  With respect to the CFAA claims, the court noted that 

The parties have not addressed a threshold question of whether the CFAA applies where the wner of an otherwise publicly available website takes steps to restrict access by specific entities, such as the owner’s competitors. “Some commentators have noted that suits under anti-hacking laws have gone beyond the intended scope of such laws and are increasingly being used as a tactical tool to gain business or litigation advantages.”Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 409 F. App’x 498, 506 (3d Cir. 2010); see also Nosal, 676 F.3d at 857 (describing the CFAA as “an anti-hacking statute”); Mark A Lemley, Place and Cyberspace, 91 Cal. L. Rev. 521, 528 (2003) (“An even more serious problem is the judicial application of the [CFAA], which was designed to punish malicious hackers, to make it illegal—indeed, criminal—to seek information from a publicly available website if doing so would violate the terms of a `browsewrap’ license.”).

The CFAA was passed in 1986, well before the development of the modern internet, and originally only covered certain computers operated by the federal government or financial institutions. See Christine D. Galbraith, Access Denied: Improper Use of the Computer Fraud and Abuse Act to Control Information on Publicly Accessible Internet Websites, 63 Md. L. Rev. 320, 329 (2004). In 1996, Congress amended the CFAA to cover all computers used in interstate commerce, but “[r]eferences can be found throughout the amendment’s legislative history that support the premise that the changes were designed to safeguard the privacy of information,” rather than to “widen dramatically the protection of the CFAA to include all information on all computer systems on the Internet, such as. . . data contained on publicly accessible websites.” Id. at 330-31 (citing 142 Cong. Rec. S10,889; S. Rep. No. 104-357 (1996)).

Although courts in this district have held that the CFAA may apply to unauthorized access to websites, the parties have not cited a case from this district or the Ninth Circuit addressing its application to information that is generally available to the public. In Facebook II, for example, Judge Ware held that the CFAA applied to information protected by a username and password. See 844 F. Supp. 2d at 1027. Although the defendants in that case accessed information with the consent of users who shared their credentials—the access was unauthorized because the defendants bypassed Facebook’s efforts to block their IP addresses—the information at issue was not available to the general public. See id. Applying the CFAA to publicly available website information presents uncomfortable possibilities. Any corporation could subject its competitors to civiland criminal liability for visiting its otherwise publicly available home page; in theory, a major news outlet could seek criminal charges against competing journalists for reading articles on its website.

In Nosal, the Ninth Circuit rejected an “interpretation [that] would transform the CFAA from an anti-hacking statute into an expansive misappropriation statute.” 676 F.3d at 857. At the same time, Nosal discussed at some length potential problems with an overly expansive interpretation of the CFAA, but did not seize on that opportunity to highlight a possible distinction between public and non-public information. Accordingly, until the Ninth Circuit holds otherwise-and in the absence of any argument on this issue from Defendants at this time-this Court assumes that the expansive language o

A similar Yelp case, has settled.

THE JIM BOHANNON SHOW

LINK TO SHOW

Jim Bohannon talks to special guests and his loyal callers about a spectrum of topics ranging from current events and politics to entertainment and pop culture. Jim is on the air with the newsmakers who are on the scene.

Join the conversation by calling 1-866-50-JIMBO / 1-866-505-4626 as we air live each weeknight from 10 pm to 1 am Eastern Time (or e-mail us!).

ABOUT THE HOST

During the 1980s he was a fill-in for Larry King when King had his popular nighttime national radio program. He also does much work with the Smithsonian Associates. He was inducted into the National Radio Hall of Fame in 2003.

Bohannon took over as permanent host during Larry King’s late night time slot on January 29, 1993, when King moved his radio show to the afternoon. His radio program is called the Jim Bohannon Show, which is heard on over 300 affiliate radio stations nationwide and is produced by Dial Global (successor to Westwood One, itself the successor to the Mutual Broadcasting System, Larry King’s original radio network). He broadcasts from Washington, D.C., whereWFED (as successor to the now defunct Washington Post Radio) is considered his flagship station today.

The show airs Monday through Friday from 10:00 PM to 1:00 AM Eastern Time (02:00 to 05:00 UTC during daylight saving time, 03:00 to 06:00 UTC during standard time). Each segment of the show features guests for interviews and calls from listeners. His show usually deals with politics and popular culture. In the event that Bohannon is not hosting that night’s show, a substitute host (chosen by Dial Global) takes his place. Substitute hosts have historically varied in nature and political views greatly; past substitute hosts include conservative talk host and comedian Dennis Miller, progressive talk host Leslie Marshall, and comedienne Joan Rivers.

ABOUT THE GUEST

Bennet Kelley is the founder of the Internet Law Center and host of Cyber Law & Business Report on WebmasterRadio.fm.  He has spoken and written extensively on Cyber Security and was selected by the U.S. Department of Commerce to participate in the 2012 US-China Legal Exchange in China which focused on e-commerce issues.

SEGMENT 1:  THRILLA ON CAP HILLA WITH PMA AND NETCHOICE DEBATE ON INTERNET SALES TAX LEGISLATION

SEGMENT 2:  POPEHAT DISCUSSES SANCTIONS ON COPYRIGHT TROLL PRENDA LAW

TODAY IN HISTORY

• news updates on CISPA, the Marketplace Fairness Act and state/federal privacy legislation;
• a discussion with Michael Weinberg, Public Knowledge’s Vice President, the Institute for Emerging Innovation on Data Caps and the Obama administration’s nominee for FCC Chairman; and
• as always starts with the Day in History.

Data Caps with Michael Weinberg
Air Date: May 1, 2013

Non-profit Washington, D.C.-based public interest group Public Knowledge is calling on all ISPs who use data caps to suspend them until an outside auditor cnn certify that their data usage meters are accurate. ISPs have no business imposing data caps on consumers without the ability to accurately determine how much data consumers are actually using. We get an explanation with Michael Weinberg, Vice President at Public Knowledge.

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An eventful 99th broadcast, even without the balloons.