The Privacy Lawyer

US Supreme Court Overturns California Law restricting sales of violent viode games to children

2011-06-27T15:39:00.000-04:00

When laws in the US are measured against the US Constitutional rights, the rights they seek to restrict are weighted. One of the most compelling involves First Amendment freedom of speech infringements.

While laypeople think of speech as verbal communications, speech includes any communication of ideas in any medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503. The First Amendment applies as much to violent video games as to a published book.

In the Brown vs Entertainment Merchant Association, et al., decision issued today, the US Supreme Court reminded legislators that “government lacks the power to restrict expression because of its message, ideas, subject matter, or content” with the “limited exceptions of historically unprotected” classes of speech, such as obscenity, fighting words and incitement.

They warned that the legislature cannot create new categories of unprotected speech just because the social costs outweigh the social benefits of that expression. (Citing to US vs. Stevens, 559 U.S. ___) They were careful to distinguish the Ginsberg v. New York case (390 U. S. 629, upholding the harmful to minors standard for sexual content) as a mere critical application of laws designed for adults being adjusted for the protection of minors.

The California law proposed to create an entirely new category of content-based unprotected speech. Looking to history, the Supreme Court could find no basis for restricting a minor’s access to depictions of violence. They found the state’s arguments that the interactive nature of the violence created a special case unpersuasive.

In order for the California law to legally restrict a minor’s access to violent video games, given its inherent intrusion on freedom of expression and access to content, it would have to pass the “strict scrutiny” test – a justified compelling government interest and a narrowly-drawn restriction. (Citing R. A. V. v. St. Paul, 505 U. S. 377, 395)

The Court also reviewed the studies submitted both in support of and against the restriction of violent video game content and found that nothing proved that minors exposed to violent video games were more aggressive in their real life interactions. The state claimed that it was also representing the interest of parents in wanting to restrict their childrens’ access to violent video games. The Court did not believe that parents needed or would want such “protection,” and noted that some parents have no problem with their childrens’ use of violent video games.

Ciudadanía Digital. Celebrado con éxito el I Congreso Internacional - PantallasAmigas : Por un uso seguro y saludable de Internet, la telefonía móvil y los videojuegos - Por una ciudadanía digital responsable

2011-06-18T18:55:00.000-04:00

Ciudadanía Digital. Celebrado con éxito el I Congreso Internacional - PantallasAmigas : Por un uso seguro y saludable de Internet, la telefonía móvil y los videojuegos - Por una ciudadanía digital responsable

I met a real hero and she changed my life

2011-06-18T18:33:00.000-04:00

I met a real hero and she changed my life

To Monitor UGC or Not Monitor UGC, that is the question....

2011-06-17T11:47:00.000-04:00

The most relevant laws for companies with a US online presence that collect and publish user generated content are the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA).

Before the DMCA, there was a strong argument for holding companies legally responsible for the vicarious copyright infringement of its users because the company technically facilitated the infringement and posted the content for the public to access.

Recognizing that companies could not realistically police their sites for copyrighted content, the DMCA shifted the burden of identifying infringement to the rights' holders. However, companies only escape liability and gain protection by the safe harbor provision if they comply with a strict set of guidelines or have not actual knowledge of the infringement. (Companies must post instructions for rights holders to submit DMCA takedown notifications and timely follow through with all requests.)

The CDA, on the other hand, allows and encourages companies to proactively moderate their sites without fear that they will open themselves up to unlimited liability in the event they miss something or fail to take action.

In addition, under the US safe harbor for the hosting of child pornography, if the company becomes aware of the images or video that violate the child pornography laws in the US, it is not liable as long as it reports the images/video to the cybertipline and follows their instructions for managing that content.

None of these laws require moderation or that the network screen for copyright violations, child pornography or abuses. But in the case of the CDA, actual knowledge of the problem does not add liability. They may take action, take partial action or do nothing and see avail themselves of the CDA immunity provisions.

Under both the safe harbors for copyright infringement and the hosting of child pornography, actual knowledge requires remediative action. Failure to do so can lead to the network being charged for its failure to respond in accordance with the law.

One common solution is to only search for infringement of your own brand and risk management issues (such as threats and hate speech). If you avoid searching for the trademarks of third parties you will not have actual knowledge of their use and the responsibility to take action that comes along with that knowledge. It is also worth discussing the option of searching for intellectual property violations of your partners’ and advertisers’ names to demonstrate that you care about their brands as well as your own.

Sticking your network's head in the sand may look like the best way to do when it comes to mediating content and conduct on your sites/networks. But, if you have a brand name to protect or advertisers who want theirs protected, you have no choice. Just be careful how your systems aredesigned and your moderators trained. Looking for the needle you want in the haystack of social media and UGC isn't hard with the right tools. Use them.

NY Court rules that false allegations of homosexuality are defamatory.

2011-06-16T08:06:00.000-04:00

New York Judge just held that false allegations of sexual preference, where a man was accused of being “gay,” are defamatory under NY law. What does this mean? It means that a frequent tactic in cyberharassment (of adults) and cyberbullying (of minors), where the bully/harasser makes allegations of sexual preference – “You’re gay!” “He’s gay!” She’s a lesbian!”- can be grounds for a defamation lawsuit in NY if the allegations are false.

This matches recognized “defamation per se” law in the US, where sexual promiscuity allegations (if false) are grounds for a defamation law suit. “Defamation per se” means that everyone recognizes how serious a false allegation of sexual promiscuity can be to your reputation. Because of this, you don’t have to prove the monetary loss related to the damage to your reputation.

Generally sexual preference allegations, whether true or not, are designed to hurt the target. If target is gay, lesbian, bi or trans-sexual, they are designed to either “out” them, humiliate or exclude them. If they aren’t, it’s designed to start rumors, target them for exclusion, hate attacks or drive potential romantic interests away.

While this provides straight teens and adults grounds for a defamation lawsuit, it sadly, also means that allegations of gay, lesbian, bi or trans-sexual preferences are considered very damaging to your reputation, generally. This speaks to ongoing bias among the general population, as reflected in the law.

One step forward, another step back.

Parry's Blog and Podcast - the Megan Meier cyberbullying law!!!

2008-12-03T18:26:00.000-05:00

Parry's Blog and Podcast

Give them KidZui this Christmas

2008-12-02T23:20:00.000-05:00

Give them KidZui this Christmas

McAfee Security Insights Blog » Get Free Online Shopping Advice from Experts on December 4

2008-12-01T22:35:00.000-05:00

Join Parry at a fun and informative webinar. (And find out where she shops online :-))McAfee Security Insights Blog » Get Free Online Shopping Advice from Experts on December 4

Personal Finance: Don't let Web scams ruin holiday - Sacramento Business, Housing Market News | Sacramento Bee

2008-11-30T21:25:00.000-05:00

Personal Finance: Don't let Web scams ruin holiday - Sacramento Business, Housing Market News | Sacramento Bee

Parry's Blog and Podcast: In the wake of MySpace verdict, could social networks do more to protect consumers? | Technology | Los Angeles Times

2008-11-30T17:03:00.000-05:00

Parry's Blog and Podcast: In the wake of MySpace verdict, could social networks do more to protect consumers? | Technology | Los Angeles Times

The Prairie Chicken: A town fights back in MySpace suicide case

2008-11-25T01:21:00.000-05:00

Megan Meier's story...The Prairie Chicken: A town fights back in MySpace suicide case

Parry's Blog and Podcast

2008-11-23T05:44:00.000-05:00

Teen suicide from Florida goes public online at Justin.tv and BodyBuilder.comParry's Blog and Podcast

Researchers figure out how to crack GSM phone security

2008-02-22T11:46:00.000-05:00

Scarey stuff.Researchers figure out how to crack GSM phone security

Business & Technology | Students Fight Back Against Gossip Site | Seattle Times Newspaper

2008-02-18T19:56:00.000-05:00

Juicycampus is one of a series of new sites that encourage bashing of others. They claim to keep data anonymous, but also claim that they can turn over info on bomb-threats. If they have the data associated with a bomb-threat, they have one associated with a reputational attack.
There is no "free lunch" online. If you do something that is either against the law, or actionable by civil litigation, in a vast majority of the cases you can be found out.
Business & Technology | Students Fight Back Against Gossip Site | Seattle Times Newspaper

Experts urge tough penalties for cyber-bullying - ABC News (Australian Broadcasting Corporation)

2008-02-18T19:47:00.000-05:00

given what we have learned about Aussie cybertrends and abuses, I suspect that far more than 15% of their young people are victimized by cyberbullying. It's a reality, worldwide. Sadly.Experts urge tough penalties for cyber-bullying - ABC News (Australian Broadcasting Corporation)

www.kansascity.com | 02/16/2008 | Use illegal music downloading as a chance for a lesson on ethics

2008-02-17T14:52:00.000-05:00

100 10th graders polled in Westchester
69% bought music online
73% downloaded from P2P sites
86% knew downloading was illegal
But only 58% knew the consequences
56% thought they would never get caught
68% have never read about anyone getting caught
Only 3% know of someone getting caught

Piracy among teens and tweens is a given. And parents don't seem to care. I am less concerned about the music industry loses than I am about the effect of the activities on the ethics of our kids. A recent survey conducted by one of my Teenangels chapters in New Rochelle, NY disclosed that the kids are both buying and stealing. It's a matter of their allowance surplus and availability.

And one of my pet peeves is that when parents and kids care, they buy a premium subscription to limewire and other P2P sites only to find out that they aren't getting a subscription to the music, just an ad and spyware-free version of the sharing software. They are being deceived, over and over.

We need ot do something about this. It's time.

www.kansascity.com | 02/16/2008 | Use illegal music downloading as a chance for a lesson on ethics

'Cyberbullies' plague younger kids - SILive.com

2008-02-17T09:22:00.000-05:00

While I disagree that girls are the primary cyberbullies (boys just do it differently), this is a very good article.'Cyberbullies' plague younger kids - SILive.com

Sticks and Stones - cyberbullying in schools

2008-02-11T05:48:00.000-05:00

Sticks and Stones—Defaming Others Online

Sticks and stones will break their bones, but words will never hurt them—right? Wrong! While the First Amendment gives us the right of free speech, it does not give us the right to say false and horrible things about others. In the United States, someone whose reputation is damaged by a false statement made by another can sue that person for defamation. (Libel is when the defamatory statement is written, and slander is when it is spoken.) Under rare circumstances, such statements and the way they are delivered may rise to the level of cyberstalking or harassment, considered a crime in all 50 states.
Unfortunately, since the advent of the Web, many are taking their grievances to the public, online. They are building defamatory websites and posting defamatory comments online. While initially the victims of the defamation may ignore the postings and websites, they are starting to take action more and more frequently. And kids and teenagers are getting into the act as well. When harassment occurs and young people are on both sides of the events, with a young person harassing another young person, it is typically called cyberbullying. (When an adult is on one side or another, it is typically called cyberstalking or harassment.)
Sometimes when cyberbullying occurs the schools get involved, often to their detriment. [link to kids online in schools…offsite websites and cyberbullying] Our kids need to know that the online services and ISPs will provide their identity pursuant to legal process. And they can be found and held responsible for what they say and do online.

This is the piece for kids online in schools, offsite websites and cyberbullying:

Off-School Websites

Just as kids have circulated derogatory jokes and drawings of teachers over the generations, these digital kids circulate their jokes, insults, and drawings using the power of the Web, where they can be viewed by everyone. They then share the URL (Web address) of the site, so fellow classmates can appreciate their work. Often the URL ends up in the hands of a teacher. Teachers and administrators who are the target of the site report it, and threaten to file a lawsuit or to report it to the police. The school then feels compelled to do something. Typically the child is suspended or expelled, or college recommendations are withdrawn.
But several times the ACLU and other civil rights groups have taken these schools to court for disciplining a child for actions taken off-premises, and in most cases the school has lost the lawsuit. It can be a very costly mistake—a school system may have to pay $50,000 or more in damages when it exceeds its authority in this area. So what’s a school to do? I would suggest they take their lead from a very experienced school superintendent.
A teenager in that high school, after getting angry with certain teachers and administrators, lashed out by posting some pretty vulgar and insulting things about them on a personal website. He wrote the site from home and posted it online. It wasn’t posted on the school’s server, but was available to everyone with Internet access once they had the URL. URLs of classmates’ sites get passed around quickly, and many of the kids in the school accessed the site from the school’s computers.

When the word got back to the teachers and administrators, they were understandably furious. They sought help from the police, who threatened to charge the teenager with harassment (but they wouldn’t have been able to make that charge stick in this case).
Everyone involved seemed to lose their head, but the superintendent managed to keep his. He recognized that this wasn’t a school matter, and that the parents needed to be involved. He called in the parents, who were appalled and took this situation as seriously as they should have. Together they worked out a suitable apology and a way to handle the case without blowing it out of proportion. The press had a field day. This superintendent stood firm against the anger of the teachers and the pressures of the community. He was right.
Months later he shared something with me. He told me that he had met the young teenager at a school event, and the student apologized once again. He also thanked the superintendent for handling the situation with grace. The boy had acted out in anger, and hadn’t thought about the consequences of his anger. Eventually, even the teachers came around. I was sorry my children were already out of high school—they would have benefited from attending a school system run by such a patient and wise administrator. We could use many more like him.
An even greater risk occurs when a student is targeting another student with cyberbullying tactics. They may post derogatory things about them online, pose as them in communications with others or postings online, change their passwords, hack into their accounts, take digital images of them and post those (sometimes in altered pornographic poses) using mobile phone cameras, digital cameras and video. The methods used by kids to harass each other are limited only by their limitless imaginations, bandwidth and tech skills.
The courts in the United States have reviewed several of the cases where the school has taken disciplinary action to protect its staff or the school itself from harassment and another student from cyberbullying, even if it occurs from outside of school. Most cases rule against the school, but some new ones are ruling in the school’s favor on the basis that these matters affect the safety in the school itself. (Our cyberbullying and cyberharassment legal pages will launch soon, check back, or sign up for notice of our website alerts.)

What Can a School Do About This?

While taking disciplinary action against a student that does something outside of school hours and off school grounds may exceed a school’s normal authority and land the school in legal hot water, doing so with the consent of the parties is not. Most schools have an acceptable use policy. And the smart ones have it signed by the parents and the students. It typically deals with what is and is not permitted use of the schools technology and computer systems. And, it is a legal contract binding the parents and the school (and the students themselves once they are of legal contracting age).
By adding a provision that covers dangerous or abusive actions by a student that directly affects another student, the school itself or its staff, the school now has authority to take appropriate action to deal with the dangerous or abusive conduct. It is the impact on the school, its safety and the safety and well-being of its staff and students that will trigger the school’s authority, not whether the actions took place from a school computer within school hours. Laying out the problems and the impact of these problems on others at the school and the need to protect students, staff and the educational environment of the school is the place to start. Then, add an express consent to the school’s taking action in the event it deems the matter to have an adverse impact on safety and the welfare of students, staff and the educational environment. It’s that simple. But, as in all things legal, the devil is in the details.
School board attorneys, or special cyberspace attorneys expert in children’s issues should be retained to draft and implement policies to enforce acceptable use polices and risks management programs. This is not an area for amateurs or “wanna-be lawyers” who found a form online. It’s also not the time to cut and paste another school’s acceptable use policy and use it as your own.
The school should conduct an audit of its technology uses and needs. It needs to know how the technology is being used currently, as well as the recommendation of the experts within the school. These experts should include, at minimum, the school safety officer, the school board attorney, the principal, disciplinary officer, technology lab instructors, IT department and the librarian or library media specialist. It is best to also include a student representative and a parent representative, guidance counselor and mental health professional.
Then do some strategic planning. What’s on the horizon as far as new software applications and hardware installations? What is the five-year plan? Does the school even have a five-year plan? If not, what’s the two-year plan? (If you don’t have one of those, do not read further…find a professional to help you on more elemental things. You have serious problems.) Are their possible partners you can rely on? What about your computer suppliers? Your ISP? These companies have an amazing number of resources available to them to help schools. See what they have and don’t be afraid to ask for their help.
Once you have a snapshot of what you are doing and what you plan to do, think about what you should be doing. Look to other schools for guidance as well as professional educational associations. Then, put your pen to paper (or you fingers to the keyboard ) and explain what you are now doing, what you will be doing and the rules. Once that is done, lay out the range of disciplinary actions that might be taken and the parameters. Use simple language that the students and non-techies can understand. When that’s all done, run it by the lawyers to make sure you haven’t done anything wrong and haven’t left anything out. Then cross your fingers, hold your breath and wait. 
I am interested in hearing from those you of who have been through this process, and would love to highlight your work and share your successes (publicly) and your disasters (anonymously). Drop me an e-mail. We’re all in this together.

Parry

Parry's Blog and Podcast: Runescape...an interactive gaming site that puts Internet safety first.

2007-07-20T15:28:00.000-04:00

Runescape...Internet safety and interactive gaminig.Parry's Blog and Podcast: Runescape...an interactive gaming site that puts Internet safety first.

Parry's Blog and Podcast: Billion-dollar battle: Viacom vs. YouTube | Chicago Tribune

2007-03-15T13:36:00.000-04:00

Parry's Blog and Podcast: Billion-dollar battle: Viacom vs. YouTube | Chicago Tribune

how do we stop copyright infringements, teach respect for the rights of copyright holders and still use the new technology in ways to spread information and creative works? That is now the billion $ question :-)

Parry Aftab

Cyber-Bullying Is A Growing Menace To Kids, Technology Is Aiding Kids Who Can Spread Insults Farther And Faster - CBS News

2007-02-16T15:26:00.000-05:00

Cyber-Bullying Is A Growing Menace To Kids, Technology Is Aiding Kids Who Can Spread Insults Farther And Faster - CBS News

telling real stories is the most effective way of sharing the message that cyberbullying hurts. Take it seriously! and visit stopcyberbullying.org for more info on cyberbullying, what it is, how ot prevent it and what to do when it starts. Need one to one help? visit wiredsafety.org.

The MySpace case dismissal - why it's right.

2007-02-15T13:06:00.000-05:00

What do we want from MySpace?
Judge says MySpace isn't liable for alleged sexual assault on girl - Los Angeles TimesThis is not the first time individuals have sued service providers. In fact, long before the Communications Decency Act was made effective in early 1997, there were two lines of cases. One that held the service providers liable for things that their users did and the one that said they weren't responsible for what their users did. The two most significant cases involved Compuserve and Prodigy.The issue of liability tipped on the level of control the service provider had over the users. I often explain this using publisher liability law examples (which is where the cases first were developed). When an author writes a defamatory statement for which he or she can be sued, they are not the only ones who may be liable. Their publisher also can be sued (and often is, as the only deep pocket defendant the plaintiff can find). The can be sued and held liable because they have extensive control over the final published product. They often have editorial control, fact check statements and decide what is included or trashed from the book.Holding them liable in this case makes sense. The book is equally theirs. The liability is too.Now, look at others who have been sued in the past in under the publisher theories. Often these include booksellers, the local book store. (Lawyers sue everyone they can find in many cases to make sure that the person who is legally liable is included.)But what kind of control does the local book store owner have over the published work? Do they edit it? Do they review it before ordering it to sell, checking for accuracy? Do they have their teams of lawyers review the work for libelous statements? No. Of course not. They are lucky if they read the cover notes. They have no power over the book,other than to decide whether to order it or not.So the courts have looked to this and held that those in the chain of a libelous act cannot be held liable unless they have notice or control over the libelous act. It makes sense.One of the early cases cited this as the line of reasoning they applied in holding the service provider not liable for what their users did. But the other case said that because the service provider reserved the right to delete inappropriate posts and had a terms of service policy, that they had the power to control the content, and could be held liable.Had this line of reasoning continued, no service provider would ever monitor their channels, channles or site, since trying ot make it safer or more appropriate could be grounds for holding them liable. That conflicted with the public interest of making sites more responsible and having them implement safer practices. Punishing the ones who tried to do something didn't make sense.The CDA included a limitation of liability section to make sure that the service providers who took actions to try to police their site would not be penalized. It provided that a service provider, unless it was in true control of the content (such as being the editor for the content, or sponsoring it), had no liability for what their users did.When the US Supreme Ct struck down the CDA sections on censorship grounds later that year, this provision survived.And it should.We can't expect an service provider to be responsible for what their millions of users do.Now, in this case, the issues are a bit broader. A young teen girl accessed MySpace. She was under their required minimum age. MySpace initially set the minimum age for their users at 16, and then educed it to fourteen. But this young teen was 13. MySpace has no age verification. There is no technology that would permit a site to verify the age of a minor, for a free site, that would work and be reasonable. (There are strict laws regarding preteens (under 13) having to get verifiable parental consent for any interactive use, but not for teens and older.)I understand that she put down her age (and birthdate) claiming to be 18. At that time, MySpace had a technology in place to lock out underage preteens and young teens who put in their real age, and when they were denied the ability to register with MySpace, clicked the back button, becoming older in the next screen. That means she had to put 18 in the first time she tried to register.At that time, also, MySpace had extensive safety tips available from each page on the site. I know. I wrote them for WiredSafety.org, the Internet safety charity. This warned everyone about the risks of offline meetings, people not being who they said they were and protecting yourself online. It linked back to our charity's website, as well. I also suspect that it is unlikely that this young teen didn't know that there were risks in meeting people from the Internet in real life. (I work with thousands of teens each month. They know the rules, but sadly tend to ignore them when the promise of a soul mate or cute 16-year-old boy is involved.)She then agreed to meet someone offline that she first met on MySpace (based on reports). They went to a movie, had something to eat, and he molested her in a parking lot. (Also based on reports.)This is unforgiveable, horrible and painful for me to hear. I gave up my law practice to help keep kids safe online. I donate my time running a charity of all unpaid volunteers devoted to this mission. I awaken every morning to this and fall asleep at night in front of my computer doing this.I am so sorry for this young girl and her family. I understand their pain. I have held many young people in my arms after they were victimized by people the met from the Internet. Our new site, Katiesplace.org is devoted to helping.But, bottomline, it's not a website's fault when a teen lies about their age (after being advised of the rules of the site and safety). It's not their fault when the teen arranges to meet someone in real life. It is certainly not their fault when an adult rapes a teen.It's so easy to lash out, looking for the one entity to blame. It's easy to blame MySpace, or any other site where this could have happened. (I suspect that she also used an instant messaging program, and perhaps the phone to set up this meeting...but I wasn't aware that other tech companies or the phone company was sued.)MySpace has become everyone's punching bag. For the first time parents can see the stupid things many of their kids are doing and posting online. For the first time future employers, college recruiters and law school deans can access information posted by their applicants after a drunken binge on a Saturday night. Or police can see which kids are hosting a beer party when their parents are out of town. And it's easy to make friends online, to meet people with similar interests (or at least those who say they do).We are all who we want to be online.And it's not all bad. It's also valuable. These new technologies allow teens to raise awareness and organize support for important issues, share expertise, learn about what others are doing, be creative, network with kids from their old camp, school or town.So, when parents are looking for someone to blame, they need to look more closely in the mirror. Not bringing lawsuits against a website. But, if we can't make parents responsibel for their teens, what hope do we have?I always get parents to raise their right hand at my presentations and repeat after me "I am the parent!" "Because I said so" "While you live under my roof..." (See a trend here?)Attentive and involved parents can still face the pain of their teens and preteens acting out, being hurt and in some cases being killed or taking their own lives. But, they don't want MySpace raising their kids. That's their job.The judge in this case realized this. The holding was good law and right.Now, let's focus on the pain this young teen is facing. We need ot find ways ot support her and her family. We also need to find ways to stop thirteen year olds from lying about their age and meeting people offline.That doesn't come from a court...it comes from education, supervision and common sense.So, what do I want from MySpace?More help in spreading education and awareness, and their law enforcement cooperation, school cooperation and finding ways of helping parents understand how to keep their kids safe.Since I first met the people at the top of MySpace, I realized that they sincerely care. That's what I want. I can't ask for more.My 2 cents.Parry

ContraCostaTimes.com | 01/03/2007 | Northgate parents want video surveillance

2007-01-03T09:28:00.000-05:00

surveillance in schools.ContraCostaTimes.com | 01/03/2007 | Northgate parents want video surveillance

Chat transcript: Internet lawyer Parry Aftab on the Mark Foley scandal on CourtTV.com

2006-10-23T02:07:00.000-04:00

Chat transcript: Internet lawyer Parry Aftab on the Mark Foley scandal on CourtTV.com

UPDATE: Feds Seek Google Search Records In Porn Investigation - Yahoo! News

2006-01-22T19:27:00.000-05:00

UPDATE: Feds Seek Google Search Records In Porn Investigation - Yahoo! News

This is what the Internet does best...something new allowing for the sale of surplus media online: Soft Wave Media to Introduce RemnantRadio.com

2005-09-15T12:59:00.000-04:00

Surplus inventory, unused materials, excess services...the Internet allows for these to be optimized by matching buyers and sellers and getting each a deal they could never get any other way. This is the newest and best one I have seen in awhile. Check it out.

agenda of the Homeland Security's first privacy advisory committee meeting when Parry addressed the group

2005-09-11T13:30:00.000-04:00

"My d**k betta den urz" and the law

2005-09-01T16:08:00.000-04:00

quoting me on the law of racial slurs, etc. online

News-Leader.com | Opinions - well said about .xxx!

2005-08-31T10:08:00.000-04:00

News-Leader.com | Opinions: "pmcmasters@fac.org"

USATODAY.com - Anti-porn spam laws to shield kids backfire

2005-08-22T09:39:00.000-04:00

USATODAY.com - Anti-porn spam laws to shield kids backfire

The catch-all law...trespass. Unauthorized wifi and wireless access

2005-08-19T02:33:00.000-04:00

when in doubt, when you can't find a law that covers unauthorized Internet activity, everyone turns to trespass. It was the law used by AOL and others when fighting SPAM, claiming that the SPAMMERS were accessing their networks without authorization, and therefore committing trespass.

Trespass arises under state, rather than federal, law. Here too you will have to identify some kind of damage to the person from whom you are netnapping access. Once again, the larger the files, the more frequent the activity, the more easily your unauthorized access could constitute actionable trespass.

who knows...
but forewarned is forearamed.

until later...

Parry

The Computer Fraud and Abuse Act...and unauthorized wireless network access

2005-08-19T02:10:00.000-04:00

The best fit of all US national laws (other than trespass) is the CFAA (the computer fraud and abuse act). It criminalizes intentional access of a computer. The CFAA was used in a case involving Lowes and someone who accessed an open wireless access point (a WAP) to steal credit card information of Lowes customers stored on their network. Here the access was a small component of the larger criminal activity.

The law requires the intent to access, as well as a requirement that there is some damage caused by the unauthorized access. It also requires proof (at least by implication) that the access is unauthorized. There are many factors that can be usewd ot prove that the person accessing the WAP knew that it belonged to a family (such as when they use their surname to name their WAP) and therefore the interloper should have known it was unauthorized.

But what is the damage? perhaps increased demand on the wireless bandwidth? The CFAA provides that damage can include any impairment to the intergity or availability of data, a program, the syste or information. (1030(a)(5)(A)(ii). Diminishing the capacity or slowdowns may qualify as an impairment, under the law. The mere exchange of information is enough to trigger a misdemeanor (although it is arguable that a violation of the CFAA's section 1030(a)(2) may not be triggered by a mere exchange of packet and IP information required in the mere act of accessing a WAP).

although not designed to criminalize the unauthorized access of an unsecured WAP alone, as prosecutors seek laws to use to put netnappers in jail...they will probably look to this one.

until later...

Parry

not wiretapping laws...

2005-08-19T01:54:00.000-04:00

I've received several e-mails telling me that the wiretap laws don't criminalize wifi open network access without authorization. Although the wiretap laws have been used in some cases (the Electronic Communication Privacy Act or state equivalents) to proescute interception, it has been used to intercept communications/content rather than the access itself. (interception of digital pager transmissons and commercial satellite programming are two often cited examples of those cases).

People wrote in that notices would have to be posted before unauthorized access could be criminalized under the wiretap laws.

There is some confusion there. Notices are often recommended in a work environment, where the employer is monitoring or intercepting the commmunications of employees and others using the workplace computers. There is an exception to the wiretap laws which allows employers under certain circumstances to monitor and intercept communications. But the best practice is to inform your employees that they are being monitored (some states require it), so that you can rely on the better exemption - consent (actual or implied consent). The notice wouldn't apply in a wifi access case, even if the ECPA could be used to prosecute incoming, as opposed to outgoing, access of a network when no actual communications are being intercepted.

I never said that the wiretap laws would apply to wifi unauhtorized access.

I don't think they do or should.

until later...

Parry

hitting a hot button...

2005-08-19T01:26:00.000-04:00

every once in awhile I write an article that hits the hot button. Last year I wrote one about the Patriot Act and Confidentiality, how to balance your wanting to help with a terrorism investigation but needing to protect yourself against privacy lawsuits. That one won an important Gold Award from the business editors trade association.

I ranted about the trials and tribulations of traveling overseas and spotty access, as well as having to carry four devices to do what one should be able to do. I still get mail about that one.

But this one, on unauthorized access of unsecured wifi networks and the law, has topped all the others.

The origin of this article is far more intersting than the article itself. I really was sitting with one of my teenangels (teenangels.org) at a coffee shop in Washington, DC. Interestingly enough, I was waiting for someone from the MPAA to discuss our upcoming anti-movie-piracy educational camapaign at wiredsafety.org.
(There is something ironic about meeting on an anti-piracy campaign we are designing while technically pirating someone's wifi access :-))

The conversation took place as I have recounted it in the article. But I was intent on explaining that while it is probably wrong, it is probably not illegal. I know that this shouldn't make a difference for someone who devotes her entire life to helping kids become better cybercitizens and more ethical users of technology. But I really do have problems being unconnected, and receive 1000 e-mails every day I have to respond to, so offline time makes it impossible to handle. And, as most of you may understand...I just want to be connected, as long and as often as possible.

So, I do what the kids do when they download music illegally, I access open wifi networks because I want to get online, it's free and because I can.

I wrote the article, explained our conversation and that it wasn't ethical. And then didn't get a chance to submit it to my editor for a couple months. As I finally got it done and sent it off to my editor at information week magazine, I received a heads up from my son that Drudge has just reported the prosecution of someone from Florida for war-driving. (All prior cases involved some other type of criminal activity.)

oh!oh! I hate when that happens. I reviewed my legal analysis, and decided that I was probably still right, but hedged my bets by citing the case. The article ran two weeks later and the world exploded.

I have been getting e-mails and phone calls from NPR and other national news outlets about this article and my thoughts about open access of wireless networks.

My webmaster e-mailed me telling me that she had thought securing home networks was wimpy, and hadn't thought about the risks of someone using her IP address to do something illegal.

So, while I haven't had much time to do some original writing on my own main blog recently, I'll start adding information about the law on this and personal experience. It is obviously important to my readers.

Just remember...I hate this as muich as you do. I want to be online every moment from everywhere too. I think we are all entitled to the inalienable right to surf 24/7. But a judge somewhere may not agree.

So, unless you can find a judge just as obssessed with the Internet as we are...be careful and buys stock in national wi-fi access companies. I expect their stock to rapidly increase in value.

until later...

Parry,
The Privacy Lawyer

Wi-Fi freeloading...war driving...and netnapping - other people's wireless access - what's the law?

2005-08-19T01:23:00.000-04:00

The Privacy Lawyer: Wireless Freeloaders Are Breaking The Law

You can try to justify it, but there's no way around the fact. And if you fear it's your wireless connection that's being stolen, it's time to get proactive about securing that network.

By Parry Aftab, InformationWeek
Aug. 15, 2005
URL: http://www.informationweek.com/story/showArticle.jhtml?articleID=167100929

I love my Sony Vaio PCG-4C1L computer. I bought it for myself as a Christmas gift. People notice it wherever I go. It has a DVD burner, is tiny, and weighs next to nothing. One of the best things about this computer is that it has built-in wireless. Before this, I had to insert a wireless card. But this little powerhouse lets me connect everywhere all the time. I don't need or want Internet access on my handheld. My little computer fits in my purse and weighs less than a bottle of water. I can surf and check E-mail on my main laptop everywhere as easily as on my Treo. More easily, in fact. And that's part of the problem.

I've complained before that I needed one device that would do E-mail, Internet access, cell phone, and organizing. I bought the Treo 600. Now I'm convinced that surfing using a little handheld device isn't the way to go. Connecting wirelessly, while using a computer small and light enough to carry around, is. But there's a small problem ... to be able to connect almost everywhere, at any time, you need to use Wi-Fi networks. And that means other people's unsecured wireless networks.

Last year, someone wrote me a question, asking me about using his father's neighbor's wireless networks when visiting his father. I pontificated that it was wrong to do so, and he should arrange for high-speed access at his father's apartment or go to a Wi-Fi hub to surf. But that was before. Before my new little laptop and my newfound freedom to surf everywhere, whenever I want.

I was doing this happily. Free at last! Like Pinocchio, I have no wires! I am a live girl! And one day, the head Teenangel (from Teenangels.org, the group I founded to help educate kids on online safety, privacy, and security) noticed that I was connected while sitting over a cup of coffee. I proudly showed off my new computer and explained that you can find an open access point just about everywhere. She just looked at me and frowned. "After everything you taught us about cyberethics, you are stealing Internet access?" she charged. (I hate when kids do that!) I stumbled around explaining that no one was being hurt by it and if anyone wanted to lock us out, they could easily do it by securing their wireless network. Her frown didn't alter. "It's stealing!" she pointed out.

I then did what every self-respecting parent and Internet lawyer would do ... I back-pedaled. I explained the legal concept of "any port in a storm" that we learned in law school the first week. Patiently, I taught her that in England a long time ago, wealthy landowners often would refuse to allow people to tie up to their docks. But when a hurricane hit, the courts decided that if it was the choice between people drowning and the property rights of the landowner, the need to preserve life wins. That's where the saying "any port in a storm" came from. I looked up triumphantly. "Understand?"

As only an FBI-trained teen could do, she looked me straight in the eye and say, "You're kidding, right? You aren't really equating Internet access whenever you want it with someone dying in a hurricane? Are you?" (My triumphant smile faded. And I was tempted to explain that to some of us Internet addicts, access is life. But I could see it on the front page of the National Enquirer and instead I racked my brain for a better response. I had learned enough in law school to turn the question back on the student while I took the time to think. "Would it make a difference if it were a life and death Internet emergency?" (OK, I was grasping at straws, and by the look on her face, she knew it.)

"Like what?" She obviously had watched a movie or two about law school, and used the turnabout-is-fair-play Socratic method, asking the teacher a question when responding to the one the teacher had asked her while seeking time to think. I knew I was working with a master here. So, I grasped for the ultimate response. Rarely used, except in the most dire situations, I said "I'll look into it and maybe write an article about it for InformationWeek." She sat back, satisfied. I still needed time to think, and my coffee was cold by now. I logged off and drank it. I hate when that happens.

So, what's the law? What are the ethics? And is being denied Internet access for a few hours really the equivalent of death by drowning? (I knew I'd find some sympathetic readers at InformationWeek.)

The legal theories fall under "trespass" (used to fight spammers), intrusion (used to fight hackers and malicious code attacks), and unauthorized access (usually part of intrusion). It's wrong and technically illegal.

But. ("But" is the lawyers' response when they know the legal answer and don't like it, such as when you want to use your little computer everywhere to check E-mail and do research.) But, who's really hurt? If it's during the day and the person has an open Wi-Fi network and isn't home to miss a few bits and bytes, is anyone really hurt? Isn't it like the tree falling in the cyberforest when there is no one to hear it? If no one notices that you're using their access, is it really a crime? Unfortunately for me and my Sony Vaio--yes.

We can argue until we're blue in the face, but the answer doesn't change. It's wrong and illegal. As Wi-Fi users, we should be careful to lock up our networks to avoid tempting drive-by access poachers. But using unsecured networks as an excuse for accessing free wireless connections is like saying it's OK to enter someone's house and watch TV if they haven't locked his doors. It's smart to secure your network, but it shouldn't be a condition to protecting your rights and property.

Any doubts you may still have about the legality of wireless trespass should have been dissolved at the news earlier this year that a Florida man was arrested for accessing someone else's wireless connection. Benjamin Smith III was arrested in April for sitting outside the home of Richard Dinon and accessing his wireless Internet connection, according to press reports. Dinon called police after noticing Smith using a laptop in a vehicle outside Dinon's home. Dinon was wise to call. When someone is piggybacking off your wireless access, it's called "war driving" after the movie War Games, with Matthew Broderick. And often, cybercriminals, knowing that they could be traced back to their accounts using IP addresses, sit in their car on your street using your open access. When the FBI comes looking for the person downloading movies or child pornography, or luring children or sending denial-of-service attacks, they come looking for the person whose account was used, not the war driver. While you may be able to prove that your computer wasn't used for these illegal activities, or that no one was home at the time the activities occurred, it can be very tricky. It's far easier to secure your network with a passphrase.

And when you do, I may have to find other ways of logging on using my new cute little computer... or even pay for access.

Parry Aftab is a cyberspace lawyer, specializing in online privacy and security law, and she's also executive director of WiredSafety. She hosts the Web site aftab.com and blogs regularly at theprivacylawyer.blogspot.com.

--------------------------------------------------------------------------------

Man charged with wireless network trespassing - Jul. 7, 2005

2005-08-15T15:31:00.000-04:00

Man charged with wireless network trespassing - Jul. 7, 2005

InformationWeek > Wireless Network Theft > The Privacy Lawyer: Wireless Freeloaders Are Breaking The Law > August 15, 2005

2005-08-15T13:41:00.000-04:00

InformationWeek > Wireless Network Theft > The Privacy Lawyer: Wireless Freeloaders Are Breaking The Law > August 15, 2005

Blogathon 2005 - make a donation, blog for your charity. One of our volunteers is blogging for wiredsafety.

2005-08-05T23:26:00.000-04:00

Blogathon 2005

TIME.com: You Wanna Take This Online? -- Aug. 08, 2005 -- Page 1

2005-08-01T17:32:00.000-04:00

TIME.com: You Wanna Take This Online? -- Aug. 08, 2005 -- Page 1

State starts anti-spam registry for children - 07/26/05

2005-07-26T22:54:00.000-04:00

State starts anti-spam registry for children - 07/26/05

WSJ.com - Where the Dangers Are

2005-07-22T22:43:00.000-04:00

WSJ.com - Where the Dangers Are

FTC Targets X-Rated Spam

2005-07-21T19:25:00.000-04:00

FTC Targets X-Rated Spam

InformationWeek > Identity Theft > To Catch An ID Thief > July 11, 2005

2005-07-14T14:12:00.000-04:00

InformationWeek > Identity Theft > To Catch An ID Thief > July 11, 2005

InformationWeek > Wi-Fi > Florida Man Charged With Stealing Wi-Fi Signal > July 7, 2005

2005-07-14T14:11:00.000-04:00

InformationWeek > Wi-Fi > Florida Man Charged With Stealing Wi-Fi Signal > July 7, 2005

InformationWeek > PC-Use Policy > Worst-Case Scenario > July 11, 2005

2005-07-14T14:08:00.000-04:00

InformationWeek > PC-Use Policy > Worst-Case Scenario > July 11, 2005

child porn - risks to business ; Optimize Magazine >

2005-07-11T16:07:00.000-04:00

Optimize Magazine >

Bloggers Learn Price of Telling Too Much - Yahoo! News

2005-07-09T17:30:00.000-04:00

Bloggers Learn Price of Telling Too Much - Yahoo! News

Probe of Online Investigation Firms Sought - Yahoo! News

2005-07-09T17:29:00.000-04:00

Probe of Online Investigation Firms Sought - Yahoo! News

Wired News: Europe Goes Gently on P2P Piracy

2005-07-09T17:28:00.000-04:00

Wired News: Europe Goes Gently on P2P Piracy

Notice ot students at University of Connecticut re: privacy breach

2005-07-09T17:24:00.001-04:00

University of Connecticut

Privacy breaches: UConn Finds Rootkit in Hacked Server

2005-07-09T17:24:00.000-04:00

UConn Finds Rootkit in Hacked Server

Privacy breaches: USC: Applicants' Files May Have Been Read - Yahoo! News

2005-07-09T17:23:00.000-04:00

USC: Applicants' Files May Have Been Read - Yahoo! News

Joining the EU in a 2001 convention: CNN.com - Canada signs protocol to fight 'cyberhate' - Jul 8, 2005

2005-07-09T17:22:00.000-04:00

CNN.com - Canada signs protocol to fight 'cyberhate' - Jul 8, 2005

Australia to outlaw suicide Web sites | CNET News.com

2005-07-09T17:21:00.000-04:00

Australia to outlaw suicide Web sites | CNET News.com
I've done a great deal of writing in the area of suicide sites. Someone I know recently attempted suicide. He found all the help and encouragement he needed online, even a doctor willing to prescribe medications to take or advise him how to use what they already had in the house.

Sadly, while there are so many suicide sites (especially in Korea and Japan) to support the attmepting of suicide, there are few that are willing to provide online support to prevent it.

Cheers for the Australian law.
I am not sure how much it will help...but we need to do something.

my 2 cents.
Parry

Web 1997: Web ties to mass suicide probed | CNET News.com

2005-07-09T17:18:00.000-04:00

Web ties to mass suicide probed | CNET News.com
Suicide sites are thriving online. Now (see below) Australia outlaws dissemination of information encouraging suicide.

London77 is a new blog dedicated to honoring those lost and injured today in London

2005-07-08T00:23:00.000-04:00

London77 Please share your thoughts and prayers.

Parry

Globetechnology: In the stolen-data trade, Moscow is the Wild East

2005-07-06T11:15:00.000-04:00

Globetechnology: In the stolen-data trade, Moscow is the Wild East

Utah state laws impacting the Internet : KSL NewsRadio 1160

2005-07-01T10:35:00.000-04:00

KSL NewsRadio 1160

Mich., Utah to Launch E-Mail Registries - Forbes.com

2005-06-30T06:59:00.000-04:00

Mich., Utah to Launch E-Mail Registries - Forbes.com

WiredSafety is the world's largest online safety and help group - where to go when you need help online

2005-06-29T17:09:00.000-04:00

WiredSafety is the world's largest online safety and help group

Federal Trade Commission - Comment on COPPA

2005-06-27T19:31:00.000-04:00

Federal Trade Commission - Comment Form

The Grokster Decision…What is means and why it’s right.

2005-06-27T14:58:00.000-04:00

The decision is narrowly drawn, looks to the intent of the players and holds companies responsible for their intentional acts. It leaves Betamax untouched.

it's a good decision.

Like many others, I watched this case with interest. But, perhaps, with more interest than most. WiredSafety, the Internet safety group I run, had joined Verizon and others in the 512(h) subpoena litigation against the copyright associations. (The issue litigated involved a little known provision of the DMCA which had been held to allow a copyright holder to demand the real name, address and telephone number from an ISP for one of their subscribers if allegations of copyright infringement were made and a $35 fee paid to a court clerk.) We won. The copyright associations weren’t thrilled with our joining the litigation, but we knew that child molesters and cyberstalkers would soon abuse the process, claiming to be copyright holders.

I promised everyone that once the privacy issue was resolved, I would weigh in on responsible use of copyrighted material. And I did. It feels like selling out sometimes, but it’s right. It’s a sign that the Internet is maturing and so am I.

In the olden days before I began protecting kids and educating parents online, I was as liberal as they come. I fought any attempt to regulate the Internet or restrain actions online. “Educate not legislate” was proclaimed loudly on all of our websites and in every speech I gave. I fought law enforcement access to information without a court order or hard-sought subpoena.

Then I started working with families, holding children who had been molested in my arms and consoling their family members when their young teens were killed by sexual predators they met online. I saw images of 3 year olds being raped online. I knew and fought against unspeakable horrors.

And in the process, I found a balance. One that allowed for security, not just privacy. One that promoted responsible technology use, not free-wheeling abuse. I found a limit, in some cases for free speech and realized that without balance the Internet would never become what it could. I knew that in some ways I was selling out, in the way many of us (from the sixties) did after college when we paid taxes and wore dark suits and worked in tall buildings instead of blowing up buildings and shutting down military recruitment centers. But maybe it isn’t selling out. Maybe it was growing up.

In any event, I have grown up.

And now look to doing what’s right, not just what we can get away with.

Our kids are stealing. And many of the P2P companies are building a business on this. Some have even engaged in not so subtle messages about what they are doing, something I consider to be “consumer fraud.” Some promoted their services as “100% legal!” While their services are legal (allowing people to connect their computer to someone else’s for sharing files), using them to steal copyright material wasn’t. A subtlety lost on most parents and kids. When I would be speaking at a school event or to a parent group about responsible technology use and asked about the legality of using Kazaa or other similar sites to download music or motion pictures, I responding explaining the law. The next question, inevitably, was always about if what I said was true, how could a site like Kazaa lie about being legal. I would then be forced to explain the technology legality versus the use legality and by then, everyone was asleep.

People relied on the “100 Legal!” representation. They thought that if their children used those sites it was okay. And were shocked when they were sued. Hundreds of parents reported their confusion to me, and even more children and teens did. I would constantly have to argue my position, in the face of a prominent statement that seemed to conflict with what I was saying.

Enough people didn’t care about the legalities and were happy to steal music and motion pictures that the P2P services didn’t have to resort to tricking their users.

When I pointed this out to them in December, many of them remove the confusing language right away. But a few held out with excuses, and delays in complying with my request to remove the language confusing consumers. Eventually all complied and I was saved the effort of filing a consumer fraud complaint with the FTC and various state attorneys general.

The balance here was playing fair. The technology shouldn’t be banned because individuals were misusing it to steal copyrighted content. But lying to them about the legalities of stealing content should be banned.

Interestingly, the U.S. Supreme Court struck the same balance today. It didn’t blindly follow the Betamax line of cases which allowed people to by video recorders (in the face of the copyright holders’ claims that they would be used to pirate movies) by saying any technology that is can be abused is exempt from responsibility for the abuse. And it didn’t say that any technology is liable for abuse by its users. It said – look to the intent.

Just as I defended the P2P technology, but fought statements misleading their users into thinking sharing music was legal on their site, the Supreme Court said – it depends.

I am happy the Betamax line of cases remains good law. I am also satisfied that Internet and technology services and providers should be responsible for good business practices, such as not misleading their users or promoting illegal or misuse.

One of my Teenangels told me that I was wrong when I compared this issue to the Sony Betamax one. He looked me in the eye and said “It’s not like the use of a video recorder to play family movies or record something from the TV when you’re not home. No one uses [the P2P provider’s name omitted] for anything legal.”

From the mouths of babes.

If the P2P companies can show their intent is not to promote illegal use, they are fine. If not, they are just as responsible as anyone else who promoted illegal activities.

It didn’t go too far, but went far enough. Good decision. Fair decision. And the right decision.

supreme court rules that lawsuit against P2P companies can proceed

2005-06-27T13:27:00.000-04:00

A great resource for librarians and everyone else! LibraryLaw Blog: Patron Records

2005-06-26T12:42:00.000-04:00

LibraryLaw Blog: Patron Records

AOL News - Spokane Mayor Debates Privacy Online

2005-06-19T10:46:00.000-04:00

AOL News - Spokane Mayor Debates Privacy Online

Being held accountable for your cyberactions: The Daily Telegraph | Net bullies destroy a decent man's life

2005-06-13T18:54:00.000-04:00

The Daily Telegraph | Net bullies destroy a decent man's life

Dot XXX KGMB9 - Hawaii's Severe Weather Station | Local News

2005-06-09T11:43:00.000-04:00

KGMB9 - Hawaii's Severe Weather Station | Local News

Internet porn gets new address: ".xxx"

2005-06-03T16:38:00.000-04:00

Internet porn gets new address: ".xxx"

XXX marks sex spot in cyberspace :: Contractor UK : IMHO a well-researched article.

2005-06-03T16:35:00.000-04:00

XXX marks sex spot in cyberspace :: Contractor UK

Hear! Hear! a great response. Some Notes on the .XXX Top-Level Domain

2005-06-03T12:51:00.000-04:00

Some Notes on the .XXX Top-Level Domain

Most spywares target young kids

2005-05-07T21:18:00.000-04:00

Most spywares target young kids

Spyware and kids

2005-05-05T23:56:00.001-04:00

Are kids being targeted more by spyware purveyors? In my opinion they are. But spyware purveyors need to be aware that a kids clicked approval may not be worth the apper it's not written on. Underage for contracting is underage for contracting. Whether they click ot agree or sign something in blue ink, the law in most locations does not permit kids ot enter into binding contracts.

So, spyware purveyors look out. Parents who find this junk on their computer may be able to come after you for unauthorized access to their computers...and blaming it on the kids won't cut it.

Parry

Spyware firms targeting children - Consumer Security - MSNBC.com

2005-05-05T23:56:00.000-04:00

Spyware firms targeting children - Consumer Security - MSNBC.com

AOL and safe chat

2005-04-21T22:36:00.000-04:00

AOL has a major investment in kids. They developed the first parental control system for an ISP and has consistently won awards and recognition from my online safety group and from me personally.
They do it right. They always have. And worked harder to do it right than most others in cyberspace.

When you are a big company, people sue you. They are sometimes right and sometimes wrong. They sometimes win and sometimes lose. While it would be inappropriate for me to comment on ongoing litigation, I can tell you one thing. I don't have details on what AOL does in hiring, screening employees or other humnan resource issues. But I trust them. I trust them to do what's right for kids. I trust them to care.

When someone asks me as a lawyer to comment on legal issues, I do. Not as an opinion, but as an explanation of the legal arguments. I've never been shy about taking on the big guys. Nor am I shy about correcting any misconceptions that may exist when my discussion of legal theories are confused with my opinions as a child Interent safety advocate.

I have trusted AOL with kids for 11 years. I trsut them still. I will continue to trust them.

it's that simple.

Parry

InformationWeek > Law Enforcement > The Privacy Lawyer: The Pain Behind The Pictures > February 14, 2005

2005-03-11T23:18:00.000-05:00

InformationWeek > Law Enforcement > The Privacy Lawyer: The Pain Behind The Pictures > February 14, 2005

CommsDesign - Tips On Spotting Fraudulent Web Sites

2005-02-21T00:25:00.000-05:00

CommsDesign - Tips On Spotting Fraudulent Web Sites

Cyberbullying Basics

2005-02-15T00:35:00.000-05:00

Cyberbullying Basics

KatiesPlace.org

2005-02-14T03:47:00.000-05:00

KatiesPlace.org

Katiesplace.org

2005-02-14T03:34:00.000-05:00

After Katie Tarbox met an Internet sexual predator offline, she began the long journey of healing from her molestation. Ten years later, she looks back on her former thirteen-year-old self with a much better understanding. Having worked with many others who had encountered Internet sexual predators, she knew how easy it was for a young teen to be caught in the web of these molesters.

Now she realizes that there are many of these young boys and girls who never tell. They never tell their parents, or their friends or anyone else that they have been molested or otherwise sexually exploited by someone they met online. Sometimes the extreme pornographic images they encounter might be hurting them, or they may have been extorted into providing sexually graphic images via webcam or ditigal video or images. They may have stumbled upon child pornography or found their images morphed into pornography online by a former boyfriend or girlfriend, or by a cyberbully.

But they all have something in common. They all need a safe place to go for help and emotional support. Katie had long dreamed of building this place. And now, because of our collaboration, WiredKids.com will build it with her help and the help of many others who have lived trhough the torment of sexual exploitation. They will not have to suffer alone, and will be able to use the power of the Internet to get help they need.

Visit katiesplace.org and let us know if you want to help. You can make a donation at wiredsafety.org. Note in the comment line of paypal that the donation is for katiesplace.org. WiedSafety.org, like katiesplace.org is a program of the charity WiredKids.com. All donations are deductible to the fullest extent provided by law.

InformationWeek > What you can do > Editor's Note: IT Needs To Fight Child Pornography > February 14, 2005

2005-02-14T03:23:00.000-05:00

InformationWeek > What you can do > Editor's Note: IT Needs To Fight Child Pornography > February 14, 2005

Child Pornography ... Behind Every Picture There's Pain

2005-02-14T03:19:00.000-05:00

Child Pornography ... Behind Every Picture There's Pain

InformationWeek > Child Pornography > Raising Public Awareness > February 14, 2005

2005-02-14T03:18:00.000-05:00

InformationWeek > Child Pornography > Raising Public Awareness > February 14, 2005

InformationWeek > Law Enforcement > The Privacy Lawyer: The Pain Behind The Pictures > February 14, 2005

2005-02-14T03:17:00.001-05:00

InformationWeek > Law Enforcement > The Privacy Lawyer: The Pain Behind The Pictures > February 14, 2005

InformationWeek > Child Pornography > Picture This: Should Google Filter Its Image Database? > February 14, 2005

2005-02-14T03:17:00.000-05:00

InformationWeek > Child Pornography > Picture This: Should Google Filter Its Image Database? > February 14, 2005

InformationWeek > Child Pornography > Technology And The Fight Against Child Porn > February 14, 2005

2005-02-14T03:16:00.000-05:00

InformationWeek > Child Pornography > Technology And The Fight Against Child Porn > February 14, 2005

US Child Pornography Laws Post-Free Speech Coalition

2005-02-14T03:15:00.000-05:00

US Child Pornography Laws Post-Free Speech Coalition

important research on adult media literacy...

2005-02-10T11:39:00.000-05:00

BBC NEWS | UK | Top ten scams targeting consumers

2005-02-10T08:36:00.000-05:00

BBC NEWS | UK | Top ten scams targeting consumers Many, especially kids, are caught by the ipod scheme, similar to the matrix scheme mentioned in the article about top ten UK scams. It reminds us to think before you click!!!

MSNBC - Students ordered to wear tracking tags - it only gets more crazy out there!!!

2005-02-09T22:50:00.000-05:00

MSNBC - Students ordered to wear tracking tags Does this violate FERPA? California privacy laws? I'llbe writing about this. I have dedicated my life ot protecting kids. This isn't the way to do it.

Parry

Canadian Supreme Court Rules Flashing Children OK From Living Room Window

2005-01-31T00:16:00.000-05:00

Canadian Supreme Court Rules Flashing Children OK From Living Room Window

Cyberharassment by unwitting accomplices...don't believe everything you read online

2005-01-22T20:02:00.000-05:00

Cyberharassment or Cyberbullying by Proxy
(or third party cyberharassment or cyberbullying)

Often people who misuse the Internet to target others do it using accomplices. These accomplices, unfortunately, are often unsuspecting. They know they are communicating irate or provocative messages, but don’t realize that they are being manipulated by the real cyberharasser or cyberbully. That’s the beauty of this type of scheme. The attacker merely prods the issue by creating indignation or emotion on the part of others, can sit back and let others do their dirty work. Then, when legal action or other punitive actions are taken against the accomplice, the real attacker can claim that they never instigated anything and no one was acting on their behalf. They claim innocence and blame their accomplices, unwitting or not. And their accomplices have no legal leg to stand on.

It’s brilliant and very powerful. It is also one of the most dangerous kinds of cyberharassment or cyberbullying. Children do this often using AOL or another ISP as their “proxy” or accomplice. When they engage in a “notify” or “warning” war, they are using this method to get the ISP to view the victim as the provocateur. A notify or warning war is when one child provokes another, until the victim lashes back. When they do, the real attacker clicks the warning or notify button on the text screen. This captures the communication and flags it for the ISP’s review. If the ISP finds that the communication violated their terms of service agreement (which most do) they may take action. Some accounts allow several warnings before formal action is taken. But the end result is the same. The ISP does the attacker’s dirty work when they close or suspend the real victim’s account for a terms of service violation. Most knowledgeable ISPs know this and are careful to see if the person being warned is really being set-up.

Sometimes children use the victim’s own parents as unwitting accomplices. They provoke the victim and when the victim lashes back, they save the communication and forward it to the parents of the victim. The parents often believe what they read, and without having evidence of the prior provocations, think that their own child “started it.”
This works just as easily in a school disciplinary environment.

Unfortunately, while many who work with children are aware of this tactic, few adults are. Online media is often used to do someone’s dirty work in a cyberharassment campaign, without realizing it. And many netizens are manipulated as well. When something may be true if it appears once online and becomes Gospel if it appears twice, where scams, fraud and con artists abound, thinking that they are anonymous or can’t be held accountable for their actions, where misinformation and hype thrives, this isn’t surprising. There is something about the typed word online to make people think it must be true if someone said it.

This creates problems for those being attacked by accomplices who think they understand the truth and think they are doing something right. Our advice has always been to ignore these things, and they will usually run their course. Media attention and public denials only feed the motives of the person behind the attacks. And are rarely heard or believed by the accomplices.
So, if something is believed if not denied, but denials only make it worse, how do people deal with these kinds of attacks? Usually, if anyone bothered to check things out, they would find out that any accusations aren’t true. This is especially effective when a second or third campaign attempts to build on the first. A statement may sound true. And in the short term may not be clearly untrue. But when enough time passes and the claims don’t pan out, most accomplices aren’t mislead a second or third time. It usually dies out faster. Rarely are members of the media caught on the second or third round. They have their reputations on the line. Good journalists don’t repeat unfounded rumors and usually understand that they are being used.

But there are always accomplices who have problems understanding that they are being used. Sometimes they have their own agendas. Public figures are very familiar with people who attack them for their own motives, either to get their fifteen minutes of fame or to get revenge, or in some cases for financial rewards. Some may be emotionally disturbed, or have problems with social communications. Some people are just mean and rude. And some are inordinately gullible. And the common sense that should filter their actions online may not be present.

These people may not understand that their attacks, if designed to hurt someone’s reputation may be defamatory and subject them to lawsuits and in some cases harassment charges. They may not understand that they can be tracked quite easily most of the time and held accountable for their actions. They may not understand that their actions, while they may believe they are noble and right, may be a terms of service violation and cost them their online accounts.

I often point to my articles for children teaching them what to believe and what to distrust online. Unfortunately, these gullible people or people with their own agendas don’t have the sense that many seven year olds do. They repeat rumors, and take action. And find themselves facing liability when the person who started it all hides behind them. They should know that repeating lies, even if you read them online, is no excuse under the law.

A caution to all who believe things without confirming their accuracy: Silence should not be confused with an admission of guilt or confirmation that a lie told by someone is true. Sometimes silence is smarter, especially when the real fight may not occur online at all. The smarter ones don’t fight their battles in the public online, not when defamation or harassment is involved.

Just a reminder to think before you click. Otherwise you have become what you say you are fighting. You have become a cyberharasser or cyberbully yourself. Don’t be used. Use your head.

PC World | Global phishing scam rumbled, Aussies arrested - Teens duped into helping phishers

2005-01-11T16:59:00.000-05:00

PC World | Global phishing scam rumbled, Aussies arrested

Saving P2P by stopping the fraud and deceptive practices

2004-12-21T21:28:00.000-05:00

I have been receiving many e-mails from parents, and many challenges from kids recently about P2P.

Most P2P companies are fighting for survival right now. With the U.S. Supreme Court agreeing to hear the appeal of the Grokster decision that found P2P technology couldn't be held liable for the misuse by its users in dowloading media and copyrighted content.

But consumers may be fighting for themselves now as well. The less reliable P2P companies are misrepresenting (perhaps intentionally) what people are buying when they purchase premium ad-free services. Parents, hoping to help keep their kids' downloading habits on the right side of the law, are paying for the ad-free product thinking it provides a license to download music. They (and many lawyers) are confused by claims that the site or service or product or technology are 100% legal (and in some cases referencing the 9th Circuit decision up on appeal as proof, and in at least one case claiming to be the only P2P product that was ruled legal by the court).

And ever time I stand before groups of kids/teens I am challenged with questions about these claims and the burden of having to explain to them that although the technology is legal, misuse of it is not.

I am shouting in the wind.

Last Wednesday in Washington, thanks to the foreward thinking of Commissioner Pam Harbour (FTC Commissioner and mom), a workshop was held inviting the various stakeholders ot the table. While the FTC's jurisdiction doesn't extend to piracy, there have been claims on both sides of deceptive and unfair practices that do fall within its jurisdiction.

There was lots of pointing fingers and launching of accusations. And, I think, some progress. I had a great meeting with P2P United and especially eDonkey. They understood the issues. eDonkey agreed immediately to change its disclosures to make it clear that buying their premium product wasn't buying a license to download or upload copyrighted content. They also agreed to make this disclosure at least as prominent as the sale message.

Morpheus and others agreed to work with me to come up with disclosures at least as prominent, on their front page, clarifying the issues and making sure that consumers aren't confused.

It's an important first step, and one I am thrilled is being taken voluntarily by at least some of the P2P companies.

Parry

Google Yourself! ogInformationWeek > Parry Aftab > The Privacy Lawyer: Here's To Happy, Safe Holidays > December 22, 2003

2004-12-20T11:53:00.000-05:00

InformationWeek > Parry Aftab > The Privacy Lawyer: Here's To Happy, Safe Holidays > December 22, 2003

InformationWeek > Security > The Privacy Lawyer: Don't Wait Until An Employee Is Cyberstalked Before You Act > August 23, 2004

2004-12-20T11:52:00.000-05:00

InformationWeek > Security > The Privacy Lawyer: Don't Wait Until An Employee Is Cyberstalked Before You Act > August 23, 2004

InformationWeek > Cyberstalking > Tips To Avoid Cyberstalking > August 23, 2004

2004-12-20T11:51:00.001-05:00

InformationWeek > Cyberstalking > Tips To Avoid Cyberstalking > August 23, 2004

InformationWeek > Cyberstalking > Understanding The Cyberharassment Problem > August 23, 2004

2004-12-20T11:51:00.000-05:00

InformationWeek > Cyberstalking > Understanding The Cyberharassment Problem > August 23, 2004

InformationWeek > Cyberattacks > The Privacy Lawyer: Combat Cyberwarfare > December 20, 2004

2004-12-20T11:50:00.000-05:00

InformationWeek > Cyberattacks > The Privacy Lawyer: Combat Cyberwarfare > December 20, 2004

Slash asked me a question I couldn't really answer at a teenangels.org training sessions - why is P2P legal?

2004-12-11T13:40:00.000-05:00

Slash is the nickname I have given to one of our new teenangels. He is 13 years old and in 7th grade in New Jersey. I call him "slash" becasue he described himself as a history buff/technology buff/gamer and researcher. Any kid with that many "slashes" in his description of himself deserves a nickname, and "Slash" just seemed to fit.

We had about twenty preteen and young teens sitting in a classroom for a two hour training session on cybercrime, responsible use and online safety. It was being conducted with some of my existing teenangels, and a camera crew from Life and Styles TV show there to learn about cyberbullying issues and teenangels.

Our teenangels sessions are pretty free-wheeling when I conduct them. There are few questions I can't answer about kids online, cyberlaws and responsible and safe use. I've been doing this longer than most and talk with about 1000 kids a month, so I keep up to date on what theyare doing adn what they have questions about.

One of the kids asked me about music piracy online. I tried to stear the conversation to motion picutre piracy, since I think music piracy is a lost cause. (While some kids have slowed their downloading, it still remains the default method of acquiring music they want.) But they weren't having it. They knew all about music downloading. Only one had downloaded a motion picture (Sponge Bob and Incredibles).

If it's illegal to download music, she asked, why is the P2P network still up? How is that different from Napster. (They asked it differently, but that was the essential question.) I think went into my napster is different explanation, about central servers hosting the music itself and large software applications allowing you to search and connet to the drives of millions of other computers. One kid compared P2P to goolge, and I knoew they got it. It's the search and location service of P2P that makes it different, and as Google doesn't host the content, netiher do P2P. (These kids are amazing.) Someone asked another question and we moved on.

An hour later the session was over, and the kids were freed to go home, get something to drink and eat. They had sat patiently from 3pm to 5:30pm, and the promised pizza and drinks had never arrived. Most kids thanked me whiel bolting for the door, home and refreshments. :-)

But Slash stayed behind. He waited patiently for me to deal with the cameras, the parents and all the other kids. He waited becasue he had a question I hadn't answered.

"I don't get it" he said. "You explained that Kazaa and the others are just like a VCR." I told him that was correct. "And the recording and motion picture industries fought the VCR when it first came out because it could be used to steal TV and movie content, right?" he pressed on...'And you said that since the were lots of good uses for VCRs, like taping something when you're not home and family videos, that they couldn't blame the VCR for those people who used it improperly, right?" I nodded, very impressed that he had understood the underlying argument behind the Betamax cases which were used by the 9th Circuit to protect P2P industry from copyright infringement claims.

"I understand all of that. But what legitimate uses are there for P2P?" His mother stepped up to listen at this point. I explained that we hoped to share our online safety videos using P2P, and that Microsoft used it for sharing their ads and many people use if to share their own music that they have written and performed to help spread the word.

He listened and never let his eyes leave mine. He waited until i was done. and then punctured my argument. "The only thing people really do on P2P is download music, software and movies illegally. You know that. Why are people pretending that only some people misuse the technology. The P2P guys need us to misuse the technology. And is that's what they really want us to do, isn't it the real reason for the network and not misuse at all?" I was stunned.

For all my arguments, I knew that the legitimate use of P2P was a very very small percentage. I wonder if anyone has that number? When does misuse become mainstream use? And when does mainstream use that isn't discouraged by the technology providers become sanctioned use? When does it become intended use?

I am deeply troubled by this. I couldn't answer his question. I promised him that I would bring him and a few others to DC to interview the RIAA, MPAA and P2P industry groups.

I have adamentnly supported the technology and not throwing the baby out with the bathwater approach to P2P. I have written it, argued it in legal documents and done media on it. I have lectured on it and done public speaking and panels on it.

And now Slash has me confused. That confusion wouldn't have been a problem, because when I was at the session yesterday, the law said that P2P was a Betamax case and had legitimate purposes. While I don't often agree with the 9th Circuit on Internet law matters, I agreed with their decision. And I could rely on it. It was easier than working through Slahs's question. I cold say. "its the law." and be done with it. But I don't train the teenangels that way. And the Supreme Court in accepting cert has now taken the certainty out of the existing law.

I let Teenangels ask questions and if I can't answer them, put them in touch with those who can.

Why don't the P2P networks make it much more clear about downloading music and what is and what isn't legal? Why do they allow people to think that when they say the technology is legal, they don't mean downloading protected music is also legal? Why do they allow confusion over the paid premium versions of their software when parents and kids think they are paying for the right to download the software, not just ad-free versions of the software?

If they were much more clear about this, I would believe more in the abuse/misuse ruling of Betamax being applicable to P2P. I doubt it would put much of a dent in their traffic. But the kids and parents who want to obey the law wouldn't be confused anymore. I'll ask the FTC about this while speaking on the panel. I'll also see if we can get the P2P indsutry group to agree to fix this problem. I would have much more faith in heir good faith if they did it, not in the small print, but clearly. We'll have to see if that happens.

Now I can leave this before the able-minded justices at the US Supreme Court, because I can't answer Slash.
Can you?
Parry

p.s. while I can't answer him, I can help make sure that the disclosures and statements on the P2P networks are not confusing, not deceptive and not consumer fraud. Watch this space.

Wow! I was taken by surprise when I heard about the U.S. Supreme Court agreeing the hear the appeal of the entertainment industry of the P2P decisions

2004-12-11T13:28:00.000-05:00

I am quickly blogging this, as getting ready for a flight to DC this afternoon. I am going down to (among other things) speak on an FTC panel on P2P risks. Our panel is not designed to deal with the piracy issues, but other risks, government action and inaction and non-profit and advocacy programs. What is being done and what needs to be done to help consumers and businesses use the P2P technology safely and privately.

It's a softball panel, compared to the ones being held the next day on piracy issues. But one that made me think harder than most.

It's easy to talk broadly about the viral risks, security risks and privacy risks. So, when I decided to write a column for Information Week on P2P risks, other than piracy ones, I expected to have many others to draw on. Instead, I discovered that few articles have even raised the other risks. So I wrote it. Later I found some wonderful resources already written by the FTC on these kinds of risks. But their and my pieces pretty much stand alone. All the focus has been on copyright infringement and priacy issues.

The more I reviewed the situation, the more I saw potential problems in consumer misconceptions and confusion. And when consumers are confused, there is almost always something for the consumer protection agencies and groups to do.

As I review the cert applications and supporting documents, I realized that some of the issues I have discovered and some of the consumer misconceptions/confusion fixes may help save P2P technology from wholesale closures. And they involve not blokcing or filtering technologies, but education and disclosures and clarifications. The kind of things that the FTC does every day better than any single agency in the world.

I'll share some of my concerns and how, after shooting a video last night with some of my teenangels (teenangels.org) I decided to take more actions in thsi area and to devote serious time of WiredSafety.org, the non-profit I run, to developing educational programs, suggestions and helping stop consumer confusion and misconceptions.

Read further at this blog.
Parry