Cybersecurity Act of 2012 Back, but Same Problems and Questions Remain
Heritage.org (blog)
Senate majority leader Harry Reid (D–NV) has vowed to bring the Cybersecurity Act of 2012 (CSA) up for a vote in the lame-duck session, and it looks as though the vote could take place this week.
US-Canada Integrated Cybersecurity Agenda
Bay Area Indymedia
Under the guise of cybersecurity, the U.S. and Canada have been individually pushing draconian legislation domestically which would grant government agencies sweeping new powers. The implications would be far reaching and pose a risk to privacy.
DHS aims to hire 600 cybersecurity pros — if it can find them
CSO
November 13, 2012 — CSO — The Obama administration is hoping to make good on its promise to create new jobs — in this case, 600 of them in cybersecurity. 
The Alarming Trend of Cybersecurity Breaches and Failures in the US
Heritage.org
This summer, the Cybersecurity Act of 2012 (CSA) failed to pass the Senate, with Democrats and Republicans alike voting against the bill. The overriding concern was that the regulatory approach of the bill would be ineffective at best and harmful at worst.
The Elections and Cybersecurity
Network World
When President Obama was reelected last week, political pundits quickly turned to speculation and prognostication. Was the president’s reelection tantamount to a mandate? Would the election motivate both parties away from partisanship ?
NSA: Looking for a few good cybersecurity professionals
Network World
Network World – At a time when cyberattacks on America’s critical infrastructure have increased 17-fold (between 2009 and 2011), the need for highly trained cybersecurity professionals is acute. However, 83% of federal hiring managers in a recent
Senate readies for fight over cybersecurity surveillance
CNET (blog)
has inserted the cybersecurity bill into the Senate’s post-election calendar, and a vote could happen as early as this week after debate on a proposal to open more public land for hunting and fishing. That move has reignited a long-simmering dispute
Governor launches cyber security training program
WNEM Saginaw
The program offers students and Internet technology professionals a full curriculum of meetings and workshops as well as critical cybersecurity training and awareness tools. The new cyber range serves as a central resource hub and a partner in
Seven 2013 Cybersecurity Predictions from Websense Security Labs
Sacramento Bee
SAN DIEGO, Nov. 13, 2012 — /PRNewswire/ — From mass compromises of WordPress to a spear-phishing attack on the White House, there is no doubt cybercriminals gained confidence and momentum in 2012. To help organizations prepare for next year, the
Researcher to tackle cyber security for North American power grid
SecurityInfoWatch
In response, Waterfall Security Solutions has announced a $234,000 donation to Michigan Technological University, in support of Dr. Chee-Wooi Ten’s research into the cyber-security of the North American power grid. Dr. Ten’s research addresses these
Illustration of Facebook mobile interface

Illustration of Facebook mobile interface (Photo credit: Wikipedia)

A recent New Jersey District Court case underscores the rise in tensions between employers and employees when it comes to Social Media Accounts. In Ehling v. Monmouth-Ocean Hospital Service Corp., the Court denied an employer’s motion to dismiss a former employee’s invasion of privacy claim that alleged a supervisor accessed the employee’s Facebook account. Ehling worked for Monmouth-Ocean Hospital Service Corporation (“MONOC”) and became Acting President of the local union for Professional Emergency Medical Services. Ehling alleged that MONOC began engaging in a pattern of retaliatory conduct against her eventually leading to termination of her employment.

Posting Limited to “Friends”

Ehling maintained an account on Facebook, but kept access to her wall post limited to Facebook “friends,” many of whom were coworkers, but none of whom were members of MONOC’s management. Ehling alleged that MONOC surreptitiously gained access to her Facebook account when a supervisor summoned a MONOC employee, who was a Facebook friend, and coerced, strong-armed, and/or threatened the employee to access his Facebook account in the supervisor’s presence for the purpose of viewing and copying Ehling’s posts.

Ehling alleged that MONOC then sent letters regarding a certain posting to the New Jersey Board of Nursing and the New Jersey Department of Health, Office of Emergency Medical Services as it was concerned that Plaintiff’s Facebook posting showed a disregard for patient safety. Ehling alleged the letters were malicious and meant to damage her professionally.

Accessing Wall Postings Alleged to be Common Law Invasion of Privacy

Ehling’s claim for common law invasion of privacy was premised on Defendants’ alleged unauthorized “access of her private Facebook postings” The Court denied MONOC’s motion to dismiss which argued that Ehliong did not have a reasonable expectation of privacy in her Facebook posting. The Court stated that Under New Jersey law, to state a claim for intrusion upon one’s seclusion or private affairs, a plaintiff must allege sufficient facts to demonstrate that (1) her solitude, seclusion, or private affairs were intentionally infringed upon, and that (2) this infringement would highly offend a reasonable person. See Bisbee v. John C. Conover Agency Inc., 186 N.J. Super. 335, 339 (App. Div. 1982). “[E]xpectations of privacy are established by general social norms” and must be objectively reasonable – a plaintiff’s subjective belief that something is private is irrelevant. White, 344 N.J. Super. 211, 223 (Ch. Div. 2001).

The Impact of Social Media on Privacy is Unsettled

The Court went on to make further observations on the impact of Social Media on Privacy:

“Privacy in social networking is an emerging, but underdeveloped, area of case law. See Robert Sprague, Invasion of the Social Networks: Blurring the Line between Personal Life and the Employment Relationship, 50 U. Louisville L. Rev. 1, 13 (2011) (discussing the undefined legal boundary between public and private communications on social  networking websites).

No Reasonable Expectation of Privacy

There appears to be some consistency in the case law on the two ends of the privacy spectrum. On one end of the spectrum, there are cases holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view. See, e.g., United States v. Gines-Perez, 214 F.Supp.2d 205, 225 (D.P.R. 2002), rev’d on other grounds, 90 F. App’x 3 (1st Cir. 2004) (“[I]t it strikes the Court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information”); Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 44(Minn. Ct. App. 2009) (holding that privacy was lost when private information was posted on a publicly accessible Internet website and “[a]ccess to the publication was not restricted”).

Some Reasonable Expectation of Privacy

On the other end of the spectrum, there are cases holding that there is a reasonable expectation of privacy for individual, password-protected online communications. See, e.g., Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (N.J. 2010) (employee could have reasonably expected that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private); Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 587 F. Supp. 2d 548 (S.D.N.Y. 2008) (employee had a reasonable expectation of privacy in personal, password-protected e-mail messages stored on a third party’s server, although the employee had accessed that outside server while at work).

Legal Approaches Continue to Develop

The Court note that a consistent approach hasn’t yet developed. While most courts hold that a communication is not necessarily public just because it is accessible there is disagreement as to how far that theory extends. Some courts have adopted the rule that when one shares private information to one or more persons, there may still be a reasonable expectation that the recipients of the information will not disseminate it further. What is clear is that privacy determinations are made on a case-by-case basis, in light of all the facts presented.

It seems that every few months my clients get a raft of notices from very “official” sounding business, like “United States Trademark Protection Agency” seeking payment for services that appear to be necessary to maintain a trademark application or registration. As technology improves speed and efficiency, more of these opportunists are appearing.

U.S. Trademark Applications & Registrations are Public Records.

Filing an application for U.S. trademark registration makes certain information publicly available in the  U.S. Trademark Office records.  Several companies have been scraping these records and generating “official looking” notices and even invoices to unsuspecting companies.  These notices appear strikingly similar to  governmental agency communications and direct you to pay fees for registration,  monitoring (keeping an eye out for applications similar to yours) and for filing with domestic or international lists, directories, etc.

MANY OF THESE ARE SCAMS.

Despite claims otherwise, the United States Trademark Protection Agency (USTPA) is NOT a governmental agency and the U.S. Trademark Office (USPTO) web site even showed a warning that the USTPA is NOT affiliated with the USPTO.

Some companies charge fees to be listed in their worldwide trademark registration directories. These are not official filings, their usefulness is limited and they have no legal effect.

Other companies hire non-legal administrators to do trademark filings without proper supervision or training. These companies can prove very costly due to filing problems. I hope you are not confused by such mailings. Often, if you are represented by counsel, the U.S. Patent & Trademark Office will not send mailings directly to you, they will be sent to your attorney of record.  While some of these companies offer legitimate services, you should seek advice from legal counsel before utilizing them. Some examples of these companies include the following:

  • Globus Edition S.L. in Spain
  • Trademark Renewal Service in Washington, D.C.
  • Company of Economic Publications Ltd. in Austria
  • Edition The Marks KFT in Hungary
  • United States Trademark Protection Agency located in Seattle, Washington
  • Institute of Commerce for Industry, Trade, and Commerce located in Switzerland
  • CPI (Company for Publications and Information Anstalt) in Liechtenstein (a phantom company which says it works with
  • The Publication of Brand Names of the International Economy – another phantom company)
  • IDM International Data Medium AnsbH in Liechtenstein
  • S.A.R.L. – Societe pour Publications et Information located in Austria
  • TMI Trademark Info Corporation located in Pearland, Texas
  • ZDR – Datenregister GmbH in Germany

Many of these organizations send notices that look like invoices. I suggest that you not make payments without first consulting your attorney.

© is the copyright symbol

Image via Wikipedia

Yahoo! Inc. and RealNetworks, Inc. (collectively, the “Internet Companies”) sought separate blanket licenses to publicly perform the entirety of the American Society of Composers, Authors and Publishers (“ASCAP”) repertory for certain of their websites and services. A blanket license is a license  that gives the licensee the right to perform all of the works in 5 the repertory for a single stated fee that does not vary depending on how much music from the repertory the licensee  actually uses.

In this case, the Internet Companies offer their customers the ability to download musical works over the Internet. It is undisputed that  these downloads create copies of the musical works, for which the parties agree the copyright owners must be compensated. However,  the parties dispute whether these downloads are also public performances of the musical works. ASCAP contended that the downloads are public performances for which the copyright owners must separately and additionally be compensated. The district court held that these downloads are not public performances, the Second Circuit Court of Appeals agreed.

The Court held that the downloads were not musical performances that were simultaneously perceived by the listener. Rather, they were only transfers of electronic files containing digital copies from an online server to a local hard drive. Because the downloads at issue involved no recitation, rendering, or playing of the musical work encoded in the digital transmission, such a download was not a performance of that work.

About The Author

Safeguarding Ideas, Relationships & Talent®

Filmmakers face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage theirintangible assets and creative content in a way that drives innovation and increases the overall value of the business.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

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