June 2013

US v. Apple could go to the Supreme Court

It is apparent that the Department of Justice’s case against Apple case raises novel legal questions that could well end up commanding the attention of the U.S. Supreme Court.

For casual observers of the case, this had not been so obvious before. That's because the legal questions raised by the conduct of the five publishing companies who were also originally named as Apple's co-conspirators and co-defendants in the case -- Hachette, HarperCollins, MacMillan, Penguin, and Simon & Schuster -- did not pose comparably challenging questions. Apple had a vertical relationship to all the other players in the alleged plot. As a result, its conduct poses far less familiar factual and legal questions. While there have been prior cases in which vertical players have participated in horizontal antitrust conspiracies, these have usually involved situations where a behemoth vertical player was the instigator and chief beneficiary of the whole scheme—the "ringmaster," as courts have put it. Apple doesn't fit that template, though.

Don’t Treat Consumers Like Criminals

[Commentary] The House Judiciary Committee will hold a much-needed hearing on cellphone unlocking. At stake is whether wireless consumers can be prosecuted for what, not long ago, was considered a routine practice.

Let’s go back to the free market. Let’s allow contract law — not copyright or criminal law — to govern the relationship between consumers and wireless carriers. The free market for mobile devices and wireless service has been a dramatic success. As the Federal Communications Commission reported earlier this year, prices in the wireless market are down, and investment is up. More manufacturers are developing innovative mobile devices, and consumers are reaping the benefits. Wireless carriers certainly don’t need the federal government’s help. But in a free market, once a consumer’s contract expires, she should be able to take her device to another carrier. The government shouldn’t tilt the scales with legal penalties; it should leave the mobile marketplace alone.

Institute of Medicine Issues Violence Study Recommendations To Administration

The Institute of Medicine (IOM), part of the National Academy of Sciences, issued a report finding that, due to a lack of research focused on guns, "a direct relationship between violence in media and real-life firearm violence has not been established and additional research is necessary," but that existing evidence points to a "significant relationship" between media and some real-world violence.

The report reviewed existing research, pointed out where more research could be done, but concluded that even from what it said was “limited” evidence, "a significant relationships exist between violent media exposure and some measures of aggression and violent behavior." The report is a response to President Barack Obama’s executive order -- following the Newtown (CT) school shootings -- requesting that the Centers for Disease Control and Prevention "immediately begin identifying the most pressing firearm-related violence research problems." IOM suggests conducting more research on copy-cat acts and suggestions media violence has been imitated in real life. It suggests such research might "advise media purveyors about changes in frequency or type of violent content to help reduce copy-cat effects or encourage help-seeking behaviors." The report also says that there are possible adverse effects from evening news reports about violent incidents and "ongoing, sensationalized stories about high-profile murders and mass shootings" that "has not been the subject of systematic research...Some evidence exists that these types of news stories are associated with unrealistic perceptions of low community safety as well as, in some cases, secondhand trauma-related fear, depression, feelings of vulnerability, and PTSD."

“The research agenda proposed by the IOM would improve our understanding of this content and how it is linked to behavior," said Senate Commerce Committee Chairman Jay Rockefeller (D-WV). "This will inform our work to develop policy that protects our children. We should take the IOM proposal seriously and make sure the research into causes of gun violence can begin in earnest. I have always believed that the cornerstone of good public policy is strong facts rooted in objective evaluation.”

Google releases economic impact data

Google said that its search and advertising tools generated $94 billion of economic activity in the United States in 2012.

Going a bit more granular, Google said that it generated $640 million of economic activity in Washington, DC alone for businesses, Web site publishers and non-profits last year. The company also noted that it provided around $27.5 million in free advertising to non-profits through the Google Grants program. In its calculation, Google includes the impact of Google Search, AdWords, AdSense and Google Grants.

Getting China to talk about cyberespionage

[Commentary] Economic espionage in cyberspace is a pressing issue where progress might be possible. To say that China has carried out a massive stealing campaign is not hyperbole, Chinese denials notwithstanding. The intrusions have been increasingly well documented. The United States also carries out cyberspying against China, and a nascent, offensive U.S. cyberwarfare capability is growing. But U.S. intelligence agencies do not steal technology or proprietary information for the private sector.

China probably can’t turn off the economic espionage like a switch. There’s plenty of nasty stuff in cyberspace that both countries probably can’t control — malicious code, disruptions and hacking. Both will remain wary military competitors, on the ground and in cyberspace. But President Xi Jinping could agree to a sustained and deeper engagement on the topic, perhaps with an accelerated pace of bilateral working groups, both military and diplomatic. A useful long-range goal for these talks would be an agreement on norms and standards of behavior. They could take off the table some of the most egregious actions, such as grand theft of intellectual property.

FCC to vote on cellphone privacy rules

Apparently, the Federal Communications Commission will vote later this month on whether to require cellular carriers to better protect their customers' privacy.

The regulations would require carriers to take "reasonable precautions" to protect personal information, such as the numbers customers dial, the length of calls and their location. The carriers would be barred, with certain exceptions, from sharing the information with third parties without the customers' permission.

FTC’s Ohlhausen warns against privacy regulation

Maureen Ohlhausen, a Republican member of the Federal Trade Commission, warned against overly aggressive government regulation of online privacy.

Instead, she said the FTC should support voluntary industry-led efforts to develop privacy protection guidelines. "Self-regulation can also offer consumers more privacy choices," Commissioner Ohlhausen said at the Digital Advertising Alliance's conference. "Voluntary codes of conduct and industry-led enforcement are particularly appropriate in dynamic sectors of the economy where traditional regulation may stifle innovation and slow growth." She said companies should develop the privacy guidelines without "undue government involvement." "Otherwise, industry may lose the incentive to participate and instead take a wait and see attitude about whether Congress would ever impose such requirements through legislation," she said.

US officials to meet over cellphone thefts

Top law enforcement officials from San Francisco and New York plan to meet with some of the largest US smartphone makers next week to help thwart the rise in cellphone thefts and robberies.

San Francisco District Attorney George Gascon and New York Attorney General Eric Schneiderman announced that their meeting scheduled to take place in New York City on June 13 will be dubbed a "Smartphone Summit." Gascon and Schneiderman said they plan to meet with representatives from Apple, Google, Samsung Electronics, and Microsoft and urge them to create new technology to permanently and quickly disable stolen smartphones, making them worthless to thieves. In San Francisco, where more than half all robberies involve a cellphone, Gascon has called on the companies to create new technology such as a "kill switch" to render phones useless. His office cites a 27-year old tourist who suffered severe knife wounds to his face and throat two weeks ago after being robbed by two men over his iPhone. In New York, Schneiderman said there was a 40% spike in cellphone thefts last year. Authorities there have coined the thefts of the popular iPhone and other Apple-related products as "Apple-picking."

Reps Eshoo, Whitehouse Want FCC Update on CALM Act

The co-authors of the CALM Act want the Federal Communications Commission to give them an update on the progress of the law's implementation, which requires video providers to insure advertisement volume is consistent with the surrounding program.

The law went into effect approximately six months ago and they want to know, for one thing, how many complaints the FCC has received about loud commercials since then, as well as how many entities have been granted waivers of temporary relief from that implementation. In a letter to acting FCC chairwoman Mignon Clyburn, Reps. Anna Eshoo (D-CA) and Sen. Sheldon Whitehouse (D-RI) did not indicate any impatience with that implementation, and a spokesperson for Rep Eshoo confirmed it was simply a six-month check-up rather than a response to any complaint. "We have not heard any bad reports," he said.

US networks bet on comeback for TV poker

Ten years ago, poker shows proliferated on television and then faded but with several states and federal legislators moving to legalize the game online, some networks are betting that TV poker is back.

"Online poker will introduce a lot of new people to the game and I think that will bring another big wave to television," said Jamie Horowitz, vice president original programming and production for Walt Disney's ESPN. ESPN televises the popular World Series of Poker (WSOP) tournament, currently taking place in Las Vegas through July 6. ESPN will air 26 segments on WSOP starting on July 23. Hollywood agents, TV executives, poker and gaming executives have been meeting to discuss and pitch new poker programs, from reality shows about female tournament players, to shows potentially featuring new online gaming companies.