It is Now Legal to Unlock your Cellphone

lock with keyPresident Obama signed a bill into law that is going to make a lot of cellphone users very happy. The bill was called the Unlocking Consumer Choice and Wireless Competition Act. This bill was written in response to a We the People petition that was titled “Make Unlocking Cell Phones Legal”.

How does this affect you? It is now legal for you to unlock your phone so that you can change carriers without having to purchase a new device. It is also now legal for you to sell, or buy, unlocked phones.

There are some things to be aware of, however. The new law doesn’t override terms of service contracts that people have already signed with their carriers. In other words, if your contract said that you can’t unlock your device for two years after you purchased it – you are still going to have to abide by that contract. Details on contracts vary by device and carrier, though, so you might want re-read yours.

This new law does not legalize the unlocking of tablets or other devices – only cellphones. However, wording in the bill does instruct the Library of Congress to consider making exemptions for those devices when it reviews things next year. That brings me to the key thing to know about this new law. It is a temporary solution! The Library of Congress will be reviewing exemptions again in 2015.

Image by Joe Buckingham on Flickr.

Canada Implements World’s First Law Regulating Bitcoin

Bitcoin logoThe Parliament of Canada has approved the world’s first national Bitcoin law. It is the first official law that concerns the treatment of Bitcoin financial transactions under national anti-money laundering law.

Bill C-31 was an amendment to Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA). In other words, the bill amended, or made a change to, an existing Canadian anti-money laundering law. Here are some key points of the law:

Regulates Bitcoin as an MSB (money services business): “Bitcoin dealing, more specifically referred to as ‘dealing in virtual currencies’ in Bill C-31, will be subject to the record keeping, verification procedures, suspicious transaction reporting and registration requirements under the PCMLTFA as a money services business.”

Does not define “dealing in virtual currencies”: “The phrase ‘dealing in virtual currencies’ was left undefined and it is not known what the defined term will encompass in terms of business activities once defined by regulation.”

Registration with FINTRAC (the Financial Transactions and Reports Analysis Centre of Canada): “Bitcoin dealers will be required to register with FINTRAC and if successfully registered, to implement a complete anti-money laundering compliance regime.”

Captures foreign Bitcoin companies targeting Canada: In short, the bill extends to entities that have a place of business in Canada and also to entities that have a place of business outside Canada (but who direct services at persons in Canada).

Prohibits banks from opening accounts for Bitcoin entities if unregistered: “Under Bill C-31, banks will be prohibited from opening and maintaining correspondent banking relationships with Bitcoin dealers that are not registered with FINTRAC.”

Another key point to understand is that Canada’s Governor General gave Royal Assent to Bill C-31. Under Canadian law, that on it’s own does not necessarily mean that the bill instantaneously goes into force. Certain parts of the bill come in force on dates that were set in the bill. Other portions will come in force on a date determined by the Governor General.

First Class Action Lawsuit Filed Against Instagram

InstagramWell, that didn’t take long! The first class action lawsuit against Instagram has been filed. This civil lawsuit was filed in U.S. District Court, Northern District of California. The case is called “Lucy Funes, individually and on behalf of all others similarly situated vs. Instagram Inc.”. It was filed by a San Diego based law firm called Filkelstein & Krinsk.

As you may have guessed, this lawsuit is about Instagram’s recent change to its terms of service. After much public outcry, (and a lot of people removing their photos from Instagram and taking them elsewhere), Instagram did make a modification to the unpopular change in its terms of service.

However, the lawsuit is in regards to a portion of the terms that are still there. Instagram kept in the wording that gives it the ability to take user content (the photos people put on Instagram), and place ads in conjunction with that content. There is a part of the terms of service that is still in effect that says that Instagram “may not always identify paid services, sponsored content, or commercial communications as such”.

The lawsuit is also about another issue related to the first one. People who used Instagram, but didn’t like the new terms of service, had no option other than to cancel their profile. Many did exactly that. However, the lawsuit notes that users who have canceled their profile then forfeit rights to their photos that they once shared through Instagram.

In response, Facebook spokesman Andrew Noyes had this to say to Reuters:

We believe this complaint is without merit and we will fight it vigorously.

When Instagram changed its terms of service, it included a mandatory arbitration clause. In short, that basically means that users who didn’t like the new terms of service could not sue Instagram. It would result in unhappy users waiving their rights to participate in a class action lawsuit.

However, that portion of the new terms of service doesn’t take effect until sometime in January of 2013. This means that it is possible for “all others similarly situated” to become a part of this class action lawsuit.

Judge Approves Facebook “Sponsored Stories” Settlement

There has been an interesting update to the settlement of a class-action lawsuit that was about Facebook’s “Sponsored Stories”. This is the lawsuit that was filed in federal court in San Jose, California, by five Facebook members who were upset after seeing their likenesses appear on one of Facebook’s “Sponsored Stories” without their permission.

In short, the five people said that Facebook violated California law by publicizing when a user clicks “like” on pages of certain advertisers and when Facebook puts that information into its “Sponsored Stories” feature. At the time, Facebook was not giving users a way to opt out of having their likenesses included in advertisements in this way, and it was not paying users whose likenesses or opinions were placed into an ad.

Earlier this year, U.S. District Judge Lucy Koh decided that the Facebook users who filed the lawsuit were able to show “economic injury could occur through Facebook’s use of their names, photographs, and likenesses”. The result was that Facebook was going to have to pay $10 million dollars to a charity. As far as I can tell, the exact charity was never named.

Today, the details of the settlement have been changed. Instead of Facebook giving $10 million dollars to a charity, Facebook is going to have to set aside $20 million.

That money is to be used to provide payments of up to $10 dollars to each Facebook user who has objected to being included in the “Sponsored Stories”. Facebook has also agreed to create new controls that will give users the ability to opt out of being put into “Sponsored Stories”.

The new details of the settlement have been approved by U.S. District Judge Richard Seeborg. Both Facebook and the users who filed the class-action lawsuit have agreed to the new settlement.

The story is not completely over, though. Attorneys for the Center for Public Interest Law want Facebook to be required to obtain affirmative consent from parents before Facebook uses the name or photo of any Facebook user who is under the age of 18 in the “Sponsored Stories”, (or anywhere else). The current settlement does not include that protection. There is the possibility that an objection to this settlement will be filed.

Image: Stock Photo Ten Dollars by BigStock

Freedom of Speech in the UK

Law GavelIn the latest podcast, Todd rightly asks about the apparent lack of freedom of speech on social media in the UK. Undoubtedly, it’s a complex issue but it is becoming increasingly clear that the right to free speech is under threat here in Britain. In this post, I’ll look at some of the issues, but to start with, I am not a lawyer (thank goodness) and this doesn’t constitute legal advice.

Unlike the USA, the UK does not have a written constitution guaranteeing rights. The closest the Britain gets to this is the Human Rights Act (1998) which only came into force in 2000. The Human Rights Act is the embodiment in UK law of the European Convention on Human Rights (pdf).  The ECHR’s Article 10 provides the right to freedom of expression but as will be noted from part 2 of the article below, there are plenty of possible exceptions. I’ve embolden the part that is relevant to the discussion here.

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Obviously, the UK police do not pro-actively monitor social media looking for offensive posts. A complaint has to be received by the police based on someone taking offence at a posting on social media. The UK law has increasingly moved away from “offence intended” to “offence taken”. This was primarily done to increase the power of law in areas of discrimination, where people could avoid convictions by claiming that sexually or racially offensive language wasn’t intended in the way it was taken. Now the law supported those who were offended by the sexual or racial innuendo, regardless of intention. However, the “offence taken” law has grown out of its discriminatory roots to take hold in almost any area of offence.

Much as the compensation culture has grown, a similar one has arisen that “bad things” are always someone else’s fault and they have to pay. Although it started with physical hurt, this has gradually extended to psychological hurt and finally simple feelings. Instead of “sticks and stones will break my bones”, it’s “I’m going to tell on you.”

Finally, both the police and the legal system have increasingly taken a view of what’s legal and illegal rather than what is right and wrong. Consequently, instead of the police looking at the social media post with a bit of common sense and telling the complainant to grow-up, the police are now obliged to follow procedure and take up the complaint.

Overall, these changes in the law and approaches to policing now mean that abusive and offensive comments are taken much more seriously than before.

Let’s take a look at three cases that show the variety of circumstances.

The first tweet to come to widespread notice was Paul Chamber’s tweet in response to his local airport being shut because of snow. “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your (expletive deleted) together, otherwise I’m blowing the airport sky high!!” He was initially found guilty in May 2010 of sending a “menacing electronic communication” but fortunately eventually won his challenge in July of this year. The whole incident was farcical and made the law look stupid.

The second isn’t a tweet but a T-shirt worn in response to the shooting of two police officers that said, “One less pig perfect justice”, pig being an abusive slang term of the police. Barry Thew was jailed for four months for this, but many would have seen this as political commentary, particularly as it was about to be revealed that the police covered up their incompetence in a sporting disaster in which 96 people died by disgracefully blaming football fans killed and injured in the incident.

And finally, Britain has been embroiled in child sex abuse scandal involving a well-loved (but now dead) BBC TV personality. In the wake of this, a living person was named on Twitter as being a paedophile when he was wholly innocent and completely blameless. He’s now suing everyone who repeated the lie unless they apologise.

As can be seen, it’s a complex issue with both the freedom of speech under threat and the rights of others needing to be protected. The Crown Prosecution Service has recognised that there is potentially a problem and is intending to consult with the legal profession and social media companies. The Director of Pubic Prosecution, Keir Starmer, QC, has said that “People have the right to be offensive, they have the right to be insulting, and that has to be protected.

In a recent statement about another tweeting case, the DPP said, “Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

There’s hope yet.

Courtroom Gavel photograph courtesy of Bigstock.

Apple, Samsung and a Third Way for Patents

Samsung LogoWhen I heard the verdict on the Apple v. Samsung case, I was angry. Angry with Samsung for copying, angry with Apple for suing, angry with jurors for naivety, angry with the legal system for letting itself be a pawn. Over the weekend, I’ve mellowed a little but I’m still concerned about the impact it will have on consumers.

Apple is not a great first inventor. It didn’t invent the PC, the GUI, the digital music player, the smartphone or the tablet: I will leave it as an exercise for the reader to educate themselves as to who did. Apple is great at design, marketing, timing and extracting value from suppliers, partners and customers. Absolutely no doubts there and they have the bank balance to prove it.

Android LogoThe word on the street was that Apple was looking for a $30 licensing fee to cover the use of the patents. As a consumer, I think that’s a rip off when compared to the overall price of the device. None of those patents are intrinsic to the device and I would happily have a phone or tablet that doesn’t have those features. Multitouch and pinch-to-zoom is over-rated generally, and as for the bounce-back, it’s a waste of CPU cycles.

Obviously there are two possible outcomes from an Android perspective. Either the patents are circumvented and Android users get an arguably lesser experience or the manufacturers stump up the licensing fees.

But there is a third way…Wouldn’t it be great if, as an Android consumer, one could choose whether to avail of certain patents or not? You could accept the Apple licensing and pay the extra $30 or else decline and get the non-infringing version. How brilliant would that be and it would let the market decide which patents are valuable and which aren’t.

Of course, the chances of it happening are slim but remember Google and Samsung, you read it here first.

Nothing to Hide, Nothing to Fear?

Interception of Communications Commissioner“If you’ve nothing to hide then you’ve nothing to fear” is often trotted out in the debate around privacy and secrecy. Superficially it seems reasonable but even with a modicum of critical thinking, the adage becomes trite and flawed. However, even if you did believe that “nothing to hide, nothing to fear” was reasonable, then the latest report from the British 2011 Annual Report of the Interception of Communications Commissioner (.pdf) ought to give food for thought.

The report covers the Regulation of Investigatory Powers Act (RIPA) which includes the postal service, telephony and electronic forms of communication, and can be carried out for both law enforcement and national security purposes. There are two distinct areas, the first being the interception of communications and the second being the acquisition of communications data. Simplistically, the first area is about directly listening in on a communication and the second is about who, when and where a communication took place.

In 2011, the total number of lawful interception warrants for the UK was 2911, and this all seems quite reasonable, given the population of the UK (60-odd million). However, in amongst the successful security operations, we also find that the security and associated agencies made 42 mistakes (1.4%), usually through typographic errors. In all instances, the error was discovered before the intercept took place or else all the material associated with intercept was destroyed.

Communication data requests cover information about communications, mainly subscriber data, service use data and traffic data, rather than the content of the communication itself. There were 494 078 communication data requests in 2011, an 11% decrease on the previous year. As you might guess, there were a few errors there too, with 895 mistakes being reported. Although this represents an error rate of only 0.18%, I’m sure it will be of little comfort to the two wholly innocent individuals who were arrested by the police because of these mistakes. Again typographic errors in the transcriptions of phone numbers or IP addresses were largely to blame but of additional concern was that nearly 100 of the errors were identified by auditors and weren’t recognised at the time of the requests.

If you think that because you’ve nothing to hide then you’ve nothing to fear, think again. You’ve everything to fear from the transposed digit, the wrong post code look-up and the minimum-wage flunky copying and pasting from the wrong records.

Probably not what you were worried about at all.

Judge Dismisses Patent Lawsuit: Apple vs. Motorola

U.S. Federal Judge Richard Posner of U. S. District Court for the Northern District of Illinois ruled on Friday, June 22, 2012, that Apple cannot seek an injunction against Motorola Mobility in Apple’s lawsuit about smartphone patents. Judge Posner has thrown out the case “with prejudice”, which means that neither Apple nor Motorola can refile this case. There is the potential for an appeal to be filed.

Judge Posner has not been pleased with this lawsuit from the beginning. He has already ruled that the testimony of some expert witnesses was inadmissible. Earlier this month he came to the conclusion that the case would be dismissed, and he canceled the trial date. But later on, Apple requested for a hearing where both Apple and Motorola could make their arguments for damages claims. Judge Posner agreed to that. After hearing the arguments, Judge Posner was very unimpressed.

In regards to why he threw out this case “with prejudice”, Judge Posner said:

“It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that he could have a second chance to prove damages”.

In short, the Judge concluded that Motorola can’t obtain an injunction against Apple in relation to patents that Motorola licensed under FRAND, (which stands for fair, reasonable, and nondiscriminatory) terms. Once you do that, the implication is that a royalty is adequate compensation for a license to use that particular patent.

He described Apple’s legal tactics as follows:

“A patentee cannot base a claim to an injunction on a self-inflicted wound, such as sponsoring a damages expert who prepares a demonstrably inadequate report”. He also went on to say: “in its latest written and oral submissions Apple attempts what I told its legal team at a pretrial conference I would not let it do in the liability trials then envisaged: turn the case into an Apple verses Motorola popularity contest. Apple wanted me to allow into evidence media reports attesting to what a terrific product the iPhone is”.

Image: Stock Photo Gavel by BigStock

Facebook Will Have to Pay $10 Million Settlement

Have you ever gone on Facebook, and noticed an ad at the side of the page that had a photo of one of your friends in it? How often have you seen a Facebook ad that pointed out that one of your friends “likes” a particular product or company? These types of advertisements are called “Sponsored Stories”, and Facebook has gotten into a lot of trouble for creating them.

Five Facebook members filed a class-action lawsuit in federal court in San Jose, California. They said that Facebook violated California law by publicizing when a user clicks “like” on the pages of certain advertisers and putting that information into its “Sponsored Stories” feature. Facebook did not give users a way to opt out of having their “likes” included in advertisements in this way, and it did not pay the users whose likenesses or opinions that it used.

The case was heard by U.S. District Judge Lucy Koh about a month ago, but the results of the case are just being made public now. The Judge decided that the Facebook users who filed this lawsuit were able to show that “economic injury could occur through Facebook’s use of their names, photographs, and likenesses”. The state of California has a law that protects a person’s name and likeness against it being appropriated for the advantage of the person or company that decided to just go ahead and use it, without having the permission to do so.

As a result of this lawsuit, Facebook will be paying $10 million to a charity. I haven’t seen anything that states which specific charity the money will go to.

I find this entire case very interesting, because I’ve always wondered about the hidden, inner workings of Facebook that resulted in seeing my friend’s faces appear in their “Sponsored Stories” advertisements. Sometimes, I’ve wondered if my Facebook friends were seeing my photo, or my name, attached to some company that I “like”. I live in California, so, it seems to me that I won’t have to wonder about this any longer.

It does raise a question, though. Can Facebook continue to use the photos, likenesses, and “likes” of users who live in a state that doesn’t have laws that prevent companies from using this type of stuff in their advertisements (without asking, or paying, the users who it takes them from)? Are my family members who use Facebook, and who live outside of California, protected from having their face wind up in a “Sponsored Story?”

Image: Photo Hand Cursor Thumb by BigStock

RIAA Says LimeWire Owes it $72 Trillion

Around four years ago, the Recording Industry Association of America (RIAA) filed a lawsuit against LimeWire. The RIAA was suing on behalf of several music labels. In short, the RIAA claimed that LimeWire’s P2P software, which allowed people to download and distribute copyrighted songs for free, caused the music industry to lose millions of dollars. The RIAA won that case. All that was left was to figure out how much LimeWire now owed the RIAA as a result.

The RIAA came up with a figure that most people would find to be astounding. They want LimeWire to pay them $72 trillion. The RIAA feels that since LimeWire allowed thousands, (or maybe millions), of people to illegally download one, or more than one, of the 11,000 songs that the RIAA owns that it means the members of the RIAA are now entitled to statutory damages for every single illegal download that occurred.

Judge Kimba Wood has called that figure “absurd”. Judge Wood went on to say, in a recent decision:

“An award based on the RIAA calculations would amount to more money than the entire music industry has made since Edison’s invention of the phonograph in 1877.”

It is also worth noting that the estimated wealth of the entire world is around $60 trillion. I’m not sure why the RIAA thought that LimeWire would be able to somehow come up with more money than what all of the people in the entire world, all together, are estimated to have. To me, this sounds impossible.

Instead, it appears that LimeWire is facing statutory fines of up to $150,000 for each violation of copyright that they allowed to occur. That could mean that LimeWire may end up owing the RIAA around $1 billion dollars. How LimeWire would manage to pay that much money in damages is unknown.