As I noted in a recent white paper, states are adopting legislation intended to make identity theft more difficult by regulating the way businesses use or store certain types of personally identifiable information.

 

The State of New York adopted a new statute on September 26th, the Consumer Communication Records Privacy Act (S.6723/A.12033) that obligates most non-governmental entities to encrypt consumers' social security numbers and otherwise regulates how businesses and other entities may use and store social security numbers.  Jones Day has a helpful backgrounder on the new law. 

 

While no one wants to encourage identity theft, the proliferation of inconsistent state laws may make compliance difficult, if not impossible, for some types of businesses that rely on their customers' personally identifiable information.  In addition, because failure to comply with data privacy statutes may be a predicate for other consumer protection statutes, these laws carry the potential to become another source of lawyer-driven class action litigation.

With some recent high profile departures of public technology company general counsels, some companies are engaged in some rather public courting of potential new GCs. 

 

The current climate, however, is making for some strange dynamics in the relationship between corporations and their in-house lawyers.  While most public company GCs report to the CEO, some public company boards are expecting their GCs to push back on the CEO and other members of management and, in effect, act as the board's watchdog for compliance issues. 

Using an extensive database of recorded music subject to copyright, MySpace has plans to scan every file uploaded to the social networking site to ensure that copywritten files are excluded. 

 

MySpace claims that users who repeatedly attempt to upload prohibited files will be banned. 

Back in the news again -- this time on NPR.  I've got coverage on PointofLaw. 

NBC news is carrying the results of a nationwide survey on attitudes towards data privacy.  

 

The results are conflicting: while a majority claim to have concerns regarding data privacy (both as to corporations and the government) a majority also claim to be willing to sacrifice what some privacy advocates claim are "personal" items of data for greater convenience, savings and personal security.

For example, forty percent would submit to fingerprinting at a local police station. Sixty person would carry a driver's license with an embedded ID chip or biometric device. Nearly 20 percent of respondendents would be willing to have a microchip implanted under their skin that could be used to identify the owner and access his or her medical history in the event of a medical emergency.

And yet the conflict between privacy concerns and the efficiencies and convenience that can come from data-sharing have not prevented many state legislatures from adopting data privacy legislation, as outlined in a white paper I recently co-authored (with C. Celeste Creswell) for the Edison Electric Institute, available here.  

There is an argument that these many and conflicting state laws make compliance unnecessarily difficult for service providers and that federal preemption is needed to provide a single, national standard.

(Cross-posted at PointOfLaw) 

The Democratic Peoples Republic of Korea has stated that a U.N. resolution pursuing sanctions would be tantamount to a "declaration of war" and South Korea believes that the North may be preparing a second nuclear test. 

 

It's hard to see any good options here.  A nuclear North Korea presents risks from multiple angles - an unhinged dictator with a penchant for outrageously provocative statements and the potential for nuclear sales to terrorists. 

 

Sanctions seem doomed to fail.  What do economic sanctions matter to a country with no real economy?  Why will the Dear Leader give up his nuclear weapons in response to economic sanctions when his people are already starving? 

 

There seems to be no good military option.  A ground invasion would be too difficult to contemplate.  An conventional air response could give no assurances of taking out the nuclear sites, leaving the potential for a nuclear counter-strike, and world opinion would not tolerate a U.S. nuclear strike against the DPRK under the present circumstances. 

 

And yet the very act of declaring there are no good options would seem to embolden the North. 

 

As in other games of strategy, when there are no good options, one plays for time and the hope that facts will change.  Perhaps, in playing for time, China's role as an intermediary will become more clear and a solution to the puzzle will emerge. 

An enterprising con artist is sending unsolicited mail that "spoofs" the CircuitCity.com domain.  The email thanks you for your recent "order" and attaches what appears to be a .zip file that contains the order.

 

A recipient who hadn't recently ordered anything from Circuit City would be tempted to click on the attached file.  I suspect, but cannot yet confirm, that the attchment contains some kind of identity-theft worm or trojan horse that will unleash further mischief if opened.

 

I've copied the header data from the incoming email below (after sending copies to Circuit City's abuse desk and the FTC's spam depository).  If any IT administrators or law enforcement types reading this would like to track down the perpetrator and hang him by his toes while reading to him aloud the collected works of Marcel Proust, please let me know what I can do to help.

 

Header data:

Return-Path: <scatterbrain@tlcfan.com>
Received: from inbound-mx34.atl.registeredsite.com ([216.247.37.58])
          by imta04a2.registeredsite.com with ESMTP
          id <20061013141234.TZYB2005.imta04a2.registeredsite.com@inbound-mx34.atl.registeredsite.com>
          for [my email address]; Fri, 13 Oct 2006 10:12:34 -0400
Received: from aarl62.neoplus.adsl.tpnet.pl (aarl62.neoplus.adsl.tpnet.pl [83.5.197.62])
 by inbound-mx34.atl.registeredsite.com (8.12.11.20060308/8.12.11) with SMTP id k9DE98mG026028
 for [my email address]; Fri, 13 Oct 2006 10:09:11 -0400
Date: Fri, 13 Oct 2006 21:06:04 +0600
From: info@circuitcity.com
Message-ID: <04659647.48979529@homeric.com>
To: [my email address]
Subject: Order ID : 37679041 Is Being Processed
MIME-Version: 1.0
Content-Type: multipart/mixed; boundary="----------E16637D411BB2B8"
X-SpamScore: 6.5
X-MailHub-Apparently-To: [my email address]

 

Snowfall records set in Buffalo, Detroit and elsewhere. 

In the same week, blogger Noel Sheppard uncovers an environmental magazine that is advocating Nuremberg-style trials for the "crime against humanity" of denying the effects of global warming and columnist Peggy Noonan recounts four recent tales of leftists clamping down on the dissenting speech of non-leftists, including:

 

As Peggy Noonan concludes, "Free speech means hearing things you like and agree with, and it means allowing others to speak whose views you do not like or agree with. This--listening to the other person with respect and forbearance, and with an acceptance of human diversity--is the price we pay for living in a great democracy. And it is a really low price for such a great thing."

 

Why is it that leftists, who were once the champions of free speech and the virtues of dissent and debate, now so often seem to insist that only they may speak?   

 

I'll suggest a theory: While there is diversity among the many issue groups that make of the left wing of U.S. politics, nearly every one of them is focused on a particular theory, a particular issue and a particular policy outcome.

 

Gun control advocates want to limit access to guns and they don't care how that control comes about.

 

Immigration advocates want our borders to remain porous and don't really care what steps may be required to maintain the status quo.

 

Abortion-rights advocates view the right to an abortion as a paramount value and subordinate other values as needed.

 

In each paradigm the issue-oriented group has adopted a single, paramount value to which all others are subordinated.  Even free speech is subordinate if it conflicts with the chief value.

 

In contrast, the right wing of today's American politics, which is generally called "conservative" although it is more correctly the intellectual descendant of what was once called "Liberalism".  The Liberal view posits that free speech, free thought and individual liberty are the highest values in politics and perceives political debate as the arbitration among competing values within a hierarchy in which liberty is paramount.

 

If you view liberty as paramount and all other social values as subordinate, you will be naturally inclined to tolerate the expression of diverse opinions.  Today's "liberals", however, are anti-Liberal to the extent that they elevate one or more values (i.e., abortion, gun control, wealth distribution, etc.) over the value of individual liberty.

Section 806 of the Sarbanes-Oxley Act gives expansive whistleblower protections to employees of public companies who alert management of possible securities fraud or certain other types of corporate misconduct.

 

Section 806 is an important development in the law because of the severity of its impact on public company employers.  An aggrieved employee who can claim to have been terminated as a consequence of activity protected under Section 806 is entitled to reinstatement and back pay, among other things.

 

In a recent case, however, the Department of Labor has narrowed the scope of whistleblower protections, limiting the ability of employment discrimination plaintiffs to use Section 806 as a source of leverage in garden variety employment termination disputes.

 

In Platone v. FLYi, Inc. (Sept. 29, 2006), the Department of Labor reversed the holding of the ALJ and dismissed the claim of a former employee who alleged that she was terminated because she complained to management about the Air Line Pilots Association supposed failure to reimburse her employer for certain items.

 

The ALJ adopted the plaintiff's theory, agreeing that the facts underlying the complaint could have resulted in adverse publicity and a diminution in shareholder value, thereby amounting to the kind of activity protected by Section 806.

 

On appeal the DOL disagreed, arguing that Section 806 "does not provide whistleblower protection for all employee complaints about how a company spends its money and pays its bills".  The DOL noted that the employee's original complaint to her employer was not couched in terms of accounting irregularities - she merely complained of amounts not being reimbursed - and her theory of potential losses of shareholder value was simply "gloss" that was added later.

 

 

 

The Fall 2006 Report of the Internet Industry Committee of the ABA's Public Utility Section is now available on the publications page.

 

The Report covers several new examples of state-level Internet anti-fraud legislation as well as some recent cases involving service provider immunity under the CDA. 

 

 

A recent paper by a pair of law professors suggests that a handful of Supreme Court decisions have given a qualified blessing to anonymous speech and publication and the authors insist that such speech should be protected.

 

The paper, Cotter, Thomas F. and Lidsky, Lyrissa Barnett, "Authorship, Audiences, and Anonymous Speech" (August 21, 2006). Minnesota Legal Studies Research Paper No. 06-37 Available at SSRN: http://ssrn.com/abstract=925736, is suggests that the problem of anonymous speech is critical to a number of Internet-related challenges, including those involved when law enforcement or civil litigants seek to compel ISPs to identify their customers when anonymous speech becomes relevant in litigation.