Monthly Archives: March 2011

Lewton v. Divingnzzo: Hidden Audio Recorder in Teddy Bear Violates Federal Privacy Law

Posted on March 29, 2011 by Gary Juskowiak under The Bolt

Overview of Lewton

Parents who are concerned about their child’s well being might use hidden electronic monitoring devices such as hidden audio recording devices and nanny cams.  Unfortunately, parents who use these devices may unwittingly violate federal and state law.  In Lewton v. Divingnzzo (PDF), a mother was convicted of violating the Wiretap Act of The Electronic Communications Privacy Act (ECPA) 18 U.S.C. §§ 2510-2522 after she concealed an audio recording device in her daughter’s teddy bear (“Little Bear”) for the purpose of gathering evidence to sabotage the child custody rights of her ex-husband.  Over five months she downloaded the recorded conversations from the audio recording device to her computer, burned CDs of the conversations, and ultimately had transcripts made of the conversations.

Application of the Wiretap Act in Lewton

The Lewton Court held that the mother violated the Wiretap Act of ECPA, §§ 2511(1)(a) and (b) by “intercepting the oral communications of all plaintiffs using the device planted in Little Bear”; and §§ 2511(c) and (d) by “intentionally using and disclosing the plaintiffs’ oral communications in conjunction with the state court Custody Case.”  An “oral communication” under the Wiretap Act is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations…” § 2510(2).  The Court found that the Plaintiffs had a justified expectation that their conversations were not being intercepted.

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Centocor v. Abbott Labs: Enforcing the Written Description Requirement in the Unpredictable Arts

Posted on March 29, 2011 by Jessica Martinez under The Bolt

In the recent Centocor Ortho Biotech, Inc. v. Abbott Laboratories (PDF), the Federal Circuit found that Defendant Abbott was not liable for patent infringement, on the basis of written description insufficiency. The Federal Circuit emphasized the patent statute’s requirement that an application must contain not only claims that define the invention, but also a written description that sufficiently discloses and conveys “possession” of the claimed invention.

About Centocor v. Abbott

The patent at issue concerns a human antibody that binds to the protein tumor necrosis factor-alpha (TNF-alpha). Overproduction of TNF-alpha has been implicated in a number of auto-immune diseases, including Alzheimer’s Disease and arthritis. The antibody, which both Centocor and Abbott claim, binds to TNF-alpha in order to regulate overproduction and reduce incidence of such auto-immune diseases. Although Centocor and Abbott have patents that claim a form of the TNF-alpha antibody, the two parties took different approaches and this resulted in antibodies with a similar “constant” region, but different “variable” regions. Centocor started by identifying a mouse form of the antibody and then modified it to create a “chimeric” protein (contains a human constant region and a mouse variable region). In contrast, Abbott pursued a fully human form, containing both a human constant region and a human variable region, from the beginning of its research.

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Sony v. Hotz: Controversies Regarding DMCA, Jurisdiction, Search Warrant and Subpoenas

Posted on March 20, 2011 by Margaret Grazzini under The Bolt

Factual Background

When Sony released its PlayStation 3 (“PS3″) video game console, it included a feature that allowed customers to install a version of the Linux operating system so that the machine could be used as a general purpose computer.  In April 2010, Sony released a system firmware update that removed the “OtherOS” functionality.  In late 2010, a group of hackers known as fail0verflow, allegedly working to restore the OtherOS feature, succeeded in circumventing critical technical protection measures (“TPMs”) within the console, allowing users with upgraded PS3s to use the OtherOS feature once again.  George Hotz, a rather notorious New Jersey hacker, built on fail0verflow’s work to successfully circumvent the TPMs protecting the PS3′s Master Key, and he posted explanations of his work on Twitter and YouTube in early January 2011.  The Master Key grants access to the PS3′s core functionality, so third parties who obtain it may write firmware and application software that appears to the console to be legitimate. Essentially, the release of the key has compromised the system. Though Sony has made efforts to upgrade with security patches, hackers quickly unpacked the updated firmware and began efforts to crack it completely.

Responding to the jailbreak, Sony has sued Hotz and others involved in the decryption of the keys, alleging violations of the Digital Millennium Copyright Act (“DMCA”) and the Computer Fraud and Abuse Act, contributory copyright infringement under 17 U.S.C. § 501, and various California state common law and contract claims.  Sony requested damages and a preliminary injunction against distribution of the software.  Additionally, Sony sent a DMCA takedown notice to a site hosting source code to tools based on Hotz’s research that could be used to crack the PS3 firmware. There does not appear to be any way for Sony to effectively correct the problem. As Ben Kuchera at Ars Technica explained, “Sony speaks of ‘closing the door,’ but the simple fact is that there is no door to close. The code sought to be restrained will always be a Google search away.” In a demonstration of how easily the key could be spread, a company representative recently posted it to Twitter by mistake.  To reduce user demand for unauthorized firmware, Sony is threatening to ban any users found using “unauthorized or pirated software” from its PlayStation Network online service.

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People v. Xinos: A Privacy Right in Vehicle Data

Posted on March 15, 2011 by Gary Juskowiak under The Bolt

A California Privacy Right in Vehicle Data

In People v. Xinos, 192 Cal. App. 4th 637 (2011) (PDF), the California Sixth District Court of Appeal ruled on a person’s privacy right in his vehicle’s sensing and diagnostic module (SDM) data. This issue is a matter of first impression in California.  An SDM stores vehicle data such as engine speed, vehicle speed, throttle percentage, braking, vehicle deceleration, airbag deployment, and the status of restraint systems.  These devices are also termed event data recorders (EDRs).  George Xinos hit and killed a pedestrian with his SUV while he was intoxicated and driving at 60 miles per hour.  His SDM module recorded 5 seconds of data preceding his change in speed upon striking the pedestrian.  He was convicted of vehicular manslaughter based in part on his excessive speed, which was determined from an analysis of his vehicle’s SDM data.

The Court of Appeal in Xinos held that the defendant had a reasonable expectation of privacy under the Fourth Amendment in the digital data stored on the SDM in his vehicle.  The Court held that the SDM data was protected by the Fourth Amendment because “a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.”  Furthermore, the Court held that the SDM data from Xinos’s vehicle was not admissible because the police did not have probable cause when they downloaded the SDM data.  Probable cause exists where “the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, and that evidence bearing on the offense will be found in the place to be searched.”  Brinegar v. U.S., 338 U.S. 160 (1949).

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Internet “Kill Switch” Legislation: Can Obama Turn Off the Internet?

Posted on March 9, 2011 by Lily Ackerman under The Bolt

During the recent revolution in Egypt, the government disabled Internet access throughout the country with the flip of a switch. Could the same thing happen in America? Practically, because the structure of the Internet in the United States is more complex and decentralized than in Egypt, it cannot be shut down as easily. However, several bills have been proposed that could give the government broad power to take over the Internet communications of any public or private entity it deems necessary.

The first bill introducing the concept of Presidential Internet “kill switch” power was S. 773, the Cybersecurity Act of 2009 (later the Cybersecurity Act of 2010). The original version of the bill gave the President the power to “declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal government or United States critical infrastructure information system or network.” The bill provides examples of “critical infrastructures,” such as private and public entities in the energy, information, telecommunications, emergency services, agriculture, food, water, public health, government, transportation, defense, banking, finance, chemicals and hazardous materials, postal, and shipping sectors. Due to the unpopularity of the kill switch provision, the bill was amended (PDF) to remove the kill switch power and require the President to work with government and private industry to define “cybersecurity emergency” and develop “detailed response and restoration plans.”  The amended bill also stated that it “does not authorize, and shall not be construed to authorize, an expansion of existing Presidential authorities.”

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The Bolt: Now on Facebook and Twitter!

Posted on March 7, 2011 by Will Moseley under The Bolt

We here at the Bolt appreciate all of our readers who have found us through Google, incoming links, blog directories, and so on.  We’ve always offered an RSS feed so that you can follow our posts with greater convenience, but today we’re announcing two new options for keeping Bolt updates visible in your social news feeds.  We’ve set up accounts on Facebook and Twitter, where we’ll keep you updated about new posts and any other news relevant to this site or the Berkeley Technology Law Journal generally.  Add us, and pass these links along to your friends as well!

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NLRB v. American Medical Response: A Rare Case of Protected Employee Speech on Facebook

Posted on March 7, 2011 by Jessica Martinez under The Bolt

The recent settlement between the National Labor Relations Board (NLRB) and an ambulance service company in Connecticut is the first of its kind to set legal limits on employers’ Internet and social media policies.

In December of 2009, employee Dawnmarie Souza was fired for posting negative comments on Facebook about her supervisor at the American Medical Response (AMR). After her supervisor denied her request for Union representation, Souza went on Facebook and called him a “dick” and “scumbag,” which spurred supportive Facebook comments from co-workers. She was fired shortly thereafter.
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District Court Finds Qui Tam Provision in Patent False Marking Law Unconstitutional: Unique Product Solutions v. Hy-Grade Valve

Posted on March 7, 2011 by Robert Yeh under The Bolt

35 U.S.C. § 292 is known as the Patent False Marking Statute and contains two subsections.  Subsection (a) says that it is unlawful, without the consent of the patentee, “to mark a product with, or use in advertising, a patent number in connection with products that are not patented” or no longer patented.  Subsection (a) further states that the penalty for violating the statue is a fine of “not more than $500 for every such offence.”

Subsection (b) contains the qui tam provision.  It plainly states that “[a]ny person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.”  Subsection (b) is the only relevant language in the Patent False Marking Statute that authorizes a private party to sue for penalty and split the proceeds with the government.  By this single brief sentence, Congress delegates the authority to enforce § 292 to private parties, and does not provide the Department of Justice (DOJ) with statutory rights anywhere in § 292 to intervene in or control private § 292 actions.

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