Politics and Law

You know a Web app has come into its own when it gets banned in courtrooms and locker rooms.

Twitter, which went from being just another Web geek service to an Internet phenomenon lampooned on "The Daily Show with Jon Stewart," is now becoming a nuisance for at least two American institutions--the judicial system and the NBA.

Some judges and lawyers believe the integrity of trials is being threatened by jurors posting comments about cases on the popular microblogging service.

Lawyers for a building products company are asking an Arkansas court to overturn a $12.6 million judgment against the firm after a juror tweeted during the trial, violating court rules, The New York Times reports.

And in Pennsylvania, defense lawyers for a former state senator found guilty of corruption failed to persuade a judge to declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The lawyers plan to use that for grounds for appeal, the newspaper reported.

For some jurors, the 140-limit of Twitter may be too limiting. A juror blogged about a drunk-driving case before and after a guilty verdict was rendered, in 2007. Regardless, the verdict was upheld and a request for a new trial was denied.

The report also found that jurors are using their iPhones and BlackBerrys to do research in cases, which also is forbidden.

The use of the Internet for research isn't new. In 2007, the conviction of a man accused of sexually abusing minors was reversed and a new trial was granted after two jurors searched for the alleged victims on MySpace.

Sports players are also communicating with their fans on Twitter. Although that is not likely to interfere with game scores, it is still worrisome, at least to Milwaukee Bucks coach Scott Skiles. He has asked his players not to use Twitter from the locker room after learning that Bucks forward Charlie Villanueva tweeted from his mobile phone during halftime on Sunday.

"In da locker room, snuck to post my twit. We're playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up," Villanueva tweeted using the screen name CV31, his initials and jersey number, according to the Associated Press.

The fact that the Bucks beat the Celtics 86-77 didn't really appease the coach.

"You know, (we) don't want to blow it out of proportion," Skiles said. "But anything that gives the impression that we're not serious and focused at all times is not the correct way we want to go about our business."

Carl Malamud, the tech activist campaigning to be named head of the Government Printing Office, appears to have the support of at least one Washington politician.

Senator Joe Lieberman (I-Conn.) sent a letter Friday to the federal court system with concerns about whether court documents are sufficiently accessible to the public and whether private information in those documents is appropriately secured. The letter cites research Malamud conducted showing that personal information is not well protected.

Senator Joe Lieberman (I-Conn.)

(Credit: Lieberman.Senate.gov)

In his letter to Judge Lee Rosenthal, who chairs the Committee on Rules of Practice and Procedure for the Judicial Conference of the United States, Lieberman asked if the court system is complying with the E-Government Act of 2002.

One of the goals of the legislation, Lieberman wrote, was "to increase free public access to these records...(yet) seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available."

Currently, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which charges 8 cents a page for access. The E-Government Act, however, altered the law so that courts may only charge fees for such documents as is necessary. Given that the Judiciary Information Technology Fund had a surplus of about $150 million in 2006, Lieberman points out, that 8-cent fee does not seem necessary.

Furthermore, the letter says, an investigation on Malamud's site Public.Resource.org found numerous examples of personal data in court records that should have been redacted, in accordance with the E-Government Act's privacy provision.

"Given the sensitivity of this information and the potential for identity theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the (Homeland Security and Governmental Affairs Committee) on how this provision has been implemented as we work to increase public access to court records," the letter says.

Now that the U.S. Court of Appeals has ruled that abstract processes, or business methods, cannot be patented, it's important to look at how this could affect the tech industry.

The case in question was rejected because the patent at issue was a process not tied to a "machine," which is one standard for patentability.

Overall, it seems like a ruling that should favor companies that make hardware and software because while it narrows the types of patents that can be filed, in return should protect them from the frivolous patent suits that have flooded the industry in the past few years.

"We've seen a rise in the number of lawsuits against tech companies in the IT area specifically. Many are very questionable patents, and the patent office is overwhelmed," said Jason Schultz, acting director of The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley. "It will reduce the number of patent applications which are filed in the IT space--especially by these questionable entities or companies trying to patent trivial things."

"Trivial things" like broadly defined behaviors, or obvious ideas, such as credit-card processes for e-commerce, or shopping carts for Web sites--things that some companies have attempted to patent that have more to do with a process and less to do with a machine.

One of the advantages of this type of decision is "it allows the patent office to make quick and easy rejections instead of deep, technical rejections, which are intense substantive analytical decisions," added Schultz.

In other words the entire patenting process could be sped up because there would be fewer patents filed over time.

The nonprofit Washington, D.C.-based Computer and Communication Industry Association agreed it would be a boon to the companies it represents.

"The Federal Circuit's opinion implicitly recognizes that an out-of-control patent system was not promoting progress, but rather impeding it," said CCIA President Ed Black. "The standard articulated in this case should limit the outrageous business method and software patents that we have recently seen without undermining the incentive to innovate in these areas."

Some tech companies worried the ruling could go too far, but it doesn't appear that's what happened. It doesn't necessarily mean that more patents on higher-quality hardware or software will be rejected right away, it will just require a little finesse. Most tech companies should be safe, as long as the process they're trying to patent it tied to a computer, which definitely counts as a machine, according to Brent Yamashita, partner in the patent litigation group for DLA Piper.

The decision "may be adverse for some business method patents that already exist, but in most cases a skillful patent attorney would be able to still get a patent for his or her client...by making sure the process being described is tied in with the actual machine or tangible such as a computer," said Yamashita.

"There are already are many patents drafted that way. In the future, practitioners just need to be careful to make sure they don't just describe a process in the abstract," he noted.

That means instead of giving a broad description of a product (like listening to music from a remote device) they have to be much more specific and narrow about what they claim to have invented (how the process of listening remotely is tied to a specific device or service).

In all, "I think (it) will be good for everybody," said Schultz.

The Supreme Court has refused to consider appeals from Samsung Electronics in a case against Rambus, a memory design and patent licensing company, closing a saga that began in 2005 over alleged patent infringement.

The court's decision to stay out of the case leaves in place an April appeals court ruling (PDF) that a district court had no jurisdiction to grant an order that--while technically in favor of Rambus--included negative opinions about the company.

Rambus first sued Samsung in 2005 for allegedly violating its patents of various dynamic random access memory, or DRAM, devices. Samsung immediately countersued in the Eastern District Court of Virginia, claiming that the patents were invalid and unenforceable.

In a similar case, a district court found Rambus guilty of spoliation of evidence. Rambus quickly settled that case and, in September 2005, moved to dimiss its claims against Samsung. However, Samsung's attorney fees were still in dispute, so Rambus offered to fully compensate for them.

Samsung refused the offer but continued with its court motion to obtain them. The district court in July 2006 denied Samsung its attorney fees--in that sense ruling in favor of Rambus--but included in its ruling a lengthy opinion addressing allegations that Rambus was guilty of tampering with evidence.

Unhappy with this turn of events, Rambus argued that the court lacked jurisdiction to even give the ruling, since its offer to pay Samsung the attorney fees rendered the case moot. In April of this year, the Court of Appeals for the Federal Circuit sided with Rambus, vacating the previous order and remanding the case back to the court with instructions to dismiss Samsung's complaint. The Supreme Court's decision not to hear Samsung's appeal leaves the lower court's decision in place.

The U.S. Department of Justice has been fighting an extended legal battle since 1998 to enforce a federal law that targets Web sites deemed "harmful to minors." On Tuesday, it lost again.

This week's ruling (PDF) by the Philadelphia-based Third Circuit Court of Appeals means Web site operators can continue to relax, at least for now, about the Child Online Protection Act being enforced against them. COPA includes criminal penalties, including fines and six months imprisonment, for anyone found guilty of violating it.

The court concluded that COPA "cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional" and upheld a lower court's ruling from March 2007 that said the federal law was unconstitutional.

As a side note, because the law was written so long ago, it's surprisingly limited. It applies only to material delivered "by means of the World Wide Web"--meaning it doesn't cover peer-to-peer file sharing, the Usenet newsgroups that alarm New York's attorney general, games like Virtual Hottie 2, those naughty things happening in Second Life, videos watched via a third-party iPhone application, or streaming porn viewed through the VLC, RealPlayer, or Windows Media Player desktop applications.

Still, it's too early to say that this is the end of COPA. The Bush administration is guaranteed to appeal to the U.S. Supreme Court, which has come up with some surprising rulings in the two times it has already reviewed the law.

That's not a typo. The Supreme Court has handed down two preliminary rulings, once in 2002 and again in 2004. The first time it sent the case back to the Third Circuit with instructions to broaden its legal analysis beyond the law's interaction with community standards; the second time it wanted a review of whether "technological developments" have affected the law's constitutionality.

Now the court seems ready for a final ruling probably by next summer--and the more conservative justices conceivably could assemble a majority to uphold COPA as constitutional.

It could work like this: The Supreme Court's ruling in 2004 against the Justice Department and in favor of the ACLU commanded a narrow 5-4 majority, with justices Stephen Breyer, William Rehnquist, Sandra Day O'Connor, and (separately) Antonin Scalia dissenting.

The Breyer-written dissent said that COPA places "minor burdens on some protected material--burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available 'less restrictive' way similarly to further this compelling interest. Hence the Act is constitutional." Scalia went even further.

In the last four years, of course, John Roberts has succeeded Rehnquist and Samuel Alito has succeeded O'Connor, who was often a swing vote on free speech matters. The question for next year is whether the court's conservatives can pick up a majority, which would uphold COPA as constitutional and breathe life into a decade-old law that everyone else has forgotten about.

Kicking the public out of a courtroom is an option that should be used rarely, and extremely judiciously, which is what makes U.S. District Judge James Ware's decision Monday disappointing.

Ware shuttered the doors to a San Jose, Calif., hearing pitting Facebook and Mark Zuckerberg, probably the world's youngest self-made billionaire, against Harvard University classmates who claim Zuckerberg stole ideas and source code from a similar venture called ConnectU. Ware took this extraordinary step without notice, without a formal request from either side, and without even specifying why it was necessary.

This is at odds with the law of the land--it views courtroom closings as extraordinary events--which is why CNET News.com is evaluating whether to file papers seeking access. Not only should the courtroom not have been closed, but any audio recording or transcript of the proceedings should be released.

It is long-established precedent in the 9th U.S. Circuit Court of Appeals, which is binding in San Jose, that two requirements be met before the public can be barred. First, the public and the press must be given "a reasonable opportunity to state their objections." Second, the "reasons supporting closure must be articulated."

Those requirements were conspicuously absent from Monday's hearing. Neither side formally asked Ware to bar the public. When he asked if there were objections -- and representatives of three different news organizations asked the hearing be delayed to give us a reasonable opportunity to raise them--Ware dismissed the idea. He said only that booting out everyone but the lawyers would be "beneficial" (for whom?).

No less an authority than the U.S. Supreme Court described the presumptive First Amendment right to access court proceedings thusly: "The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Ware certainly has experience dealing with complicated technology cases. He showed he was sensitive to civil liberties in his response to the Justice Department's demands to Google. He's presided over spam lawsuits, the RealNetworks case, and the Sex.com lawsuit.

In this case, Facebook got the courtroom closing it wanted, apparently without even having to ask the judge for it. The likely reason for the closure is that ConnectU recently learned of the existence of instant messaging logs from Zuckerberg's computer dating back many years. Facebook attorney Neel Chatterjee of the Orrick law firm has been insistent on keeping these and scores of other documents confidential--the phrase "under seal" now appears no fewer than 234 times in the official court docket.

No doubt Chatterjee is zealously protecting Zuckerberg's interests. But it is unusual for any attorney to claim that so many documents are highly confidential, which prompted ConnectU to request that the judge "limit materials filed under seal." In that and continued public access to proceedings in this case, satisfying the appearance of justice demands no less.

The U.S. Supreme Court has struck down a Maine law that slapped severe restrictions on sales of cigarettes via mail order and the Internet.

In their opinion (PDF) on Wednesday, the justices said a 1994 federal law trumped the Maine statute restricting sales and shipments of tobacco.

The 1994 federal law in question says that no state may enact a law "related to a price, route, or service of any motor carrier...with respect to the transportation of property."

That seems pretty clear: cigarettes are property, and the Maine regulations targeted motor carriers transporting them. But Maine says that "public health" concerns--namely, preventing kids from ordering smokes online--justified its rules.

One part of Maine's regulations said that only Maine-licensed retailers may ship tobacco to state residents. Another section said that only licensed shippers may transport cigarettes to Maine residents.

In his opinion, Justice Stephen Breyer didn't buy it. He wrote:

Maine's inability to find significant support for some kind of "public health" exception is not surprising. "Public health" does not define itself. Many products create "public health" risks of differing kind and degree. To accept Maine's justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same.

Justice Ruth Bader Ginsburg concurred with the opinion, but said that the 1994 federal law was written to deal with the trucking industry--and Congress probably never envisioned the growth of online commerce (meaning, presumably, the rise of sites like esmokes.com and buydiscountcigarettes.com). Ginsburg wrote:

State measures to prevent youth access to tobacco, however, are increasingly thwarted by the ease with which tobacco products can be purchased through the Internet...While I join the court's opinion, I doubt that the drafters of the (1994 law), a statute designed to deregulate the carriage of goods, anticipated the measure's facilitation of minors' access to tobacco. Now alerted to the problem, Congress has the capacity to act with care and dispatch to provide an effective solution.

The case was decided narrowly on federal preemption grounds, and the court did not discuss the Jenkins Act or arguments related to the dormant commerce clause. Also, for the record, the specific language at issue in the Maine statute didn't single out Internet sales (it's just that its effect was pretty Internet-specific).