Internet Law Three-Fer

Today’s flurry of posts is the product of two weeks of focus elsewhere: grading hundreds of papers, cooking for Thanksgiving, spending time with friends and family.  Now it is back to clearing out the inbox. . .

Internet Attacks Are Growing More Potent and Complex presages the type of cyber 9/11 that Jonathan Zittrain has been writing about for the past few years:  “Attackers bent on shutting down large Web sites — even the operators that run the backbone of the Internet — are arming themselves with what are effectively vast digital fire hoses capable of overwhelming the world’s largest networks . . .”  Just in case we don’t have enough to worry about.

The cause of digital publishing has benefited from the $125 million settlement of the book publishers’ copyright infringement lawsuit over Google’s Library Project.  The New York Times reported that the settlement “is only one of many initiatives under which books are making what may be the biggest technological leap since Gutenberg invented moveable type.”  A group of European libraries is opening a two-million title online database of “books and other cultural and historical articles.”  Google will provide online access to out-of-print books and share access revenues with publishers and authors, with 63% going to the copyright holders and 37% going to Google.  And Random House announced that it will add thousands of digital book titles to its offerings–and not just back-catalog and remaindered works.

Last, a federal court judge struck down the Massachusetts law banning Internet wine sales because it “has a discriminatory effect on interstate commerce because as a practical matter it prevents the direct shipment of out-of-state wine to consumers but permits all wineries in Massachusetts to sell directly to customers, retailers and wholesalers.”  Judge Zobel did not go out on a limb–her ruling brings Massachusetts’s obviously unconstitutional statute in line with the U.S. Supreme Court’s 2005 decision in Granholm v Heald striking down a similar Michigan law.

Once A Lawyer . . .

This one is for all of you prospective law students.  The Wall Street Journal’s Law Blog (one of my favorites) has this post today:  Is ‘Secretary of State Hillary Clinton’ Unconstitutional? Some Say Yes.  It discusses whether Clinton’s appointment violated the emoluments clause, which bars a Senator or Representative from appointment to office if the pay for the position was increased during the person’s service in the Senate or House.  The Secretary of State received a COLA increase this past January, hence the issue.

I recommend this post to those interested in the law with these insights/caveats/admonitions (you’ll decide later what they are):  Whatever you think of it now–whether you find it fascinating or eye-glazing–after a few months of law school you would care passionately about these arguments, even if the passion lasted only so long as the time you are on-call in Con Law.  And many years later, when you’ve forgotten that the Constitution contained an emoluments clause, a discussion like this will continue to have the power to hook you.

Amero Case Ends

Felony charges dropped against teacher in porn/spyware case reports that substitute teacher Julie Amero is finally clear of the ridiculous charge that she impaired the morals of children by intentionally exposing them to pornography.  The prosecution ignored the most obvious explanation, that the pornography on the poorly-maintained classroom computer was the result of spyware..  The state conducted no forensic exam of the computer and consulted no computer experts before charging Amero.  (See stories here and here.)  Michael Regan, the prosecutor, still doesn’t get it.  It’s been reported that “he remained convinced of Amero’s guilt and was prepared to take the case to trial again.”  The charges were dropped in exchange for Amero’s plea to a misdemeanor count of disorderly conduct and agreement to surrender her teaching license.  I understand why Amero would want to put this nightmare behind her but the misdemeanor plea is truly a case of putting lipstick on a pig.  The state should have let her walk with a clean record.

Bad Facts Make Bad Law

A Los Angeles jury convicted Lori Drew of three misdemeanors for her role in the events leading up to the death of Megan Meier. .  It did not convict her of accessing a computer without authorization to inflict emotional distress, a felony, or of conspiracy. Drew could receive up to one year in prison and a $100,000 fine on each conviction of accessing a computer with authorization.  The prosecution’s theory was that Drew, along with her 13-year old daughter and another young woman, violated the MySpace Terms of Service by creating a false identity, Josh Evans, to harass Meier, and that creating the fraudulent identity breached the Computer Fraud and Abuse Act.  It’s a novel and troubling theory because the CFAA is typically used to prosecute those who hack security to gain access to a computer.  Conflating use of a false identity or other violation of a web site’s terms of service with criminal conduct under the CFAA creates a powerful tool to use against behavior that most Internet users would not consider criminal.

Lori Drew is guilty of many things–being a helicopter parent, having the emotional maturity of a thirteen year-old, callous cruelty–but I don’t agree with these convictions.  If violating terms of use is to be a criminal act, Congress should say so.