TOP STORIES OF 2009
ZERO HOUR APPROACHING ON PRIVACY;
NINTH CIRCUIT SHUTS DOOR TO LITIGATION MILLS & NEGATIVE OPTION CRACK DOWN
Zero Hour on Privacy
Throughout the year, the FTC ratcheted up the rhetoric that action was imminent if the online advertising industry did not move to provide greater privacy safeguards for behavioral targeting. The year ended with both, as the FTC launched the first of the three Privacy Roundtables on December 7th and industry stepped up their efforts leading up to the conference.
The debate likely will turn to Capitol Hill in 2010 as House Internet Subcommittee Chairman Boucher (D-VA) is expected to introduce an omnibus privacy bill.
9th Circuit Closes Door to Litigation Mills
In Gordon v. Virtumundo,the Ninth Circuit affirmed the lower court’s dismissal of spamigator James Gordon’s attempt to sue under the CAN-SPAM Act as a faux-ISP stressing that the CAN-SPAM Act was not intended to support ”litigation mills”. Later, in Asis Internet Services v. Azoogle, the court added that the mere cost of having to implement anti-spam filtering was not the substantial harm required by the Act.
Going Negative on Options
The FTC has been increasingly aggressive in prosecuting fraudulent negative options schemes and has now teamed up with the BBB and Visa to educate consumers about negative option offers. As a result of this cooperation, Visa has decided to terminate 100 negative option marketers.
MYSPACE MOM, BLOGGER GUIDELINES and CDA IMMUNITY
DOJ Drops Appeal in MySpace Mom Case
Lori Drew, arguably the most hated Mom in America who used MySpace to torment her Missouri neighbor’s daughter, was tried and convicted in California for violating the Computer Fraud and Abuse Act – setting a potential precedent that would make most Internet users cyber criminals. The trial judge correctly set the ruling aside and the Justice Department decided not to appeal .
FTC Sets Disclosure Guidelines for Blogger Endorsements
The FTC embraced internet exceptionalism in imposing disclosure requirements for blog endorsements not required of its of fline counterparts. The FTC reasoned that readers of traditional media would not be concerned whether a reviewer received any consideration from the subject of the review but somehow this becomes relevant to a consumer once he switches to read ing a review on a blog.
CDA Immunity Questioned But Remains Intact
The Communications Decency Act (CDA) provides immunity for content-based claims of web publishers for content posted by third parties. Earlier this year, Craigslist came under scrutinty for its “adult services” advertisements and now its RipOffReport.com (ROR) who claims to never remove any content.
In Blockowicz v. Williams, plaintiffs won an injunction that ordered its cyber-smearer to remove certain defamatory postings made on ROR, but when both the defendant and ROR refused to take it down, the court held that ROR was not a party to the injunction and was immune under the CDA. This has sparked a torrent of debate over the scope of the CDA immunity and the adequacy of legal remedies for cybersmearing.
Click for a recent ILC presentation on Cyber Harassment.
NET POLICY: AMAZON TAX and NET NEUTRALITY
Amazon Fever Starts to Spread
While many states considered the “Amazon tax” in 2009, only Rhode Island and North Carolina enacted the measure (although legislation passed in California and Hawaii but was v etoed by the Governor). But deepening state fiscal crises (click for details inclluding a map of which states are in distress) for 2010 increase the likelihood that other states will follow suit.
The Obama administration has sought to codify existing Net Neutrality principles and expand broadband access. Comcast, which is challenging the existing guidelines, recently settled a class action for throttling certain users who accessed file sharing sites. Last year the FCC sanctioned Comcast for this practice which has added fuel to the once dormant Net Neutrality debate.
Click for a presentation providing an overview of Net Neutrality issues.
The Internet Law Center launched Cyber Report in March 2008 under the name “Monday Memo“. Monday Memo was quickly labeled one of the top 100 Internet law resources. In 2009, Monday Memo received the second place prize for in-house or corporate publications as part of the Los Angeles Press Club’s 2009 Southern California Journalism Awards.
In October 2009 the newsletter was rebranded as Cyber Report in conjunction with the launch of the Internet Law Center’s blog — ILC Cyber Report.