Technology and I.P.

  • April 20, 2015
    Guest Post

    by Sean M. Flynn, Associate Director, Program on Information Justice, and Intellectual Property Professorial Lecturer in Residence, American University Washington College of Law

    The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.”  The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future.  If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations.  (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).

    Here, I analyze Section 8’s promise using The Washington Post's “Fact or Fiction” Pinocchio scale.  For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.

  • February 18, 2015

    by Jeremy Leaming

    U.S. Senators are again pushing a bill aimed at providing more protection of consumer data stored by American tech companies overseas.

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) recently reintroduced the Law Enforcement Access to Data Stored Abroad Act (LEADS Act), which languished in the last Congress. The LEADS Act would change the Electronic Communications Privacy Act (ECPA) and, in part, would prohibit federal officials from using a warrant to obtain information stored abroad, unless the information sought belongs to an American.

    In a press statement, Sen. Coons said, “Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant, and just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country. The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This is not only hurts our businesses’ competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners.”

    The senators’ statement on the LEADS Act claims it would “clarify ECPA by stating that the U.S. government cannot compel disclosure of data from U.S. providers stored abroad if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. person – that is, a citizen or lawful permanent resident of the United States, or a company incorporated in the United States.”

    The U.S. Court of Appeals for the Second Circuit is hearing an appeal of a federal court refusal to set aside a government issued warrant to obtain email account information stored by Microsoft in Ireland.

    See here for more information about the LEADS Act.

  • January 20, 2015
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    President Obama went to the FTC this past week to address ways to protect privacy and identity in what he called “a dizzying age” of new technologies. 

    One of the many new technologies changing the ways people interact with information is cloud computing. Whether it's Jennifer Lawrence saving intimate photos to Apple's iCloud, startups scaling up with Amazon Web services, or businesses and consumers moving their documents to Microsoft 365 or Google Docs, cloud computing is becoming a familiar part of our digital daily lives.

    Cloud services offer benefits of large-scale computing, which include efficiency, scalability, security, and computing power, as well as ubiquitous access to data from an increasing variety of devices. But turning over data wholesale to someone else also comes with questions about privacy, confidentiality, security, and control. 

    As evidenced by Microsoft’s challenge to a U.S. government warrant for emails stored in a data center in Ireland, these questions also present challenges to traditional notions of sovereignty and territorial jurisdiction because global networks and cloud systems transcend national borders.

  • September 18, 2014

    by Jeremy Leaming

    * On Feb. 12, 2015 U.S. Senators reintroduced the LEADS Act

    Intending to provide privacy protections to consumers’ data stored on tech companies’ servers overseas or in cloud computing services, a bipartisan group of senators late today introduced legislation to amend the Electronic Communications Privacy Act (EPCA).

    Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah) and Dean Heller (R-Nev.) announced introduction of the Law Enforcement Access to Data Stored Abroad Act or the LEADS Act. A provision of the bill states that law enforcement offices must “obtain a warrant under the Electronic Communications Privacy Act (EPCA) to obtain the content of subscriber communications from an electronic communications or cloud computing service.”

    The bill comes as Microsoft is fighting in court a warrant from federal prosecutors seeking access to data stored oversees. Microsoft is arguing that the federal government cannot compel disclosure of data it stores in Ireland. Microsoft Bradford L. Smith told The New York Times earlier this year, “What is at stake is the privacy protection of individuals’ email and the ability of American tech companies to sustain trust around the world.” The Times noted that Apple, AT&T and Verizon have all filed briefs supporting Microsoft.

  • August 26, 2014
    Guest Post

    By Archis A. Parasharami, litigation partner at Mayer Brown, and James Tierney, litigation associate at Mayer Brown

    *This post originally appeared on Class Defense

    In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions. By contrast, in some cases plaintiffs have succeeded in avoiding arbitration by arguing that they never agreed to it in the first place.

    The latest case to address such questions of contract formation comes from the Ninth Circuit, which held last week in Nguyen v. Barnes & Noble, Inc. that  plaintiff Kevin Nguyen had not agreed to arbitration because he and similarly situated consumers lacked sufficient notice of the company’s online “browsewrap” terms of use. Because the Ninth Circuit applied New York law governing contract formation—and because the court indicated that it would have come to the same conclusion under California law—the decision is an important one for all businesses that engage in online commerce in the United States.

    In the opinion, the Ninth Circuit distinguished between the familiar “clickwrap” process—in which a user affirmatively accepts terms by, for example, clicking “I agree” after receiving notice of the terms—and “browsewrap,” in which a company makes the relevant terms available to users on the web site (usually by providing a hyperlink), but does not require a customer to record his or her assent to the terms.

    In Nguyen, each page on Barnes and Noble’s web site included a link to the applicable terms of use. If followed, the link would direct a user to the terms, which provided that a user accepts the terms by “visiting any area in the Barnes & Noble.com Site, creating an account, [or] making a purchase.” The terms, among other things, provided that parties would resolve their disputes by arbitration on an individual basis.