Palin’s Hacker Tracked via Proxy Server Logs

FBI agents used proxy server logs to track down the hacker who broke into Sarah Palin’s Yahoo e-mail account. The hacker gained access to the Republican Vice Presidential candidate’s account by re-setting her password. He then foolishly posted details of his adventures up on an on-line forum.  That information is now leading reporters and federal investigators to the suspect – 20-year-old David Kernell, Tennessee university college student, and son of state democratic representative Mike Kernell, who goes by the ‘net name “Rubico.”

He forced a password reset by answering questions about Palin’s birthday, zip code and where she met her spouse, Wasilla High School.   Of course, by being the Republican candidate for Vice President, this information is all very easily found on the Internet. Rubico used a proxy server that shields the source IP address from website logging scripts.  But aren’t proxy servers supposed to anonymize your information?  Yes and no.  To prevent abuse of the service – such as the occasional bomb threat or other illegal act that’s been known to happen - the admin of the proxy server logged each user’s IP address, along with the time and web destination.

CNET reports that the FBI searched Kernell’s apartment over the weekend, and local media reports suggest that three of his roommates could testify before a grand jury in connection to the case this week.

In the next few weeks, we will discuss the implications of hacking activity.  What laws were broken?  We will talk about the claims for violations of the Stored Communications Act and the Computer Fraud and Abuse Act.  Is there an argument for Yahoo’s email policy and password reset system?

 

New Lawsuit: U.S. Warrantless Surveillance Program

On the heels of 2006’s lawsuit against AT&T, the Electronic Frontier Foundation (EFF) on Thursday filed a class action lawsuit [Full text complaint] seeking injunctive, declaratory and equitable relief from the National Security Agency(NSA) warrantless surveillance program. EFF is arguing against the NSA’s unprecedented access to over 300 terabytes of data concerning communication sent and received by AT&T customers.

The suit names the defendants as the U.S. government, the NSA, President George W. Bush, Vice President Dick Cheney, and several other officials. EFF alleges violations of the First and Fourth Amendments, the Foreign Intelligence Surveillance Act(FISA) and other federal electronic surveillance law. The complaint also argues that the surveillance program violated the Federal Administrative Procedure Actbecause it exceeded Congressionally-mandated limitations established by FISA, and alleges that it violates the Constitutional separation of powers principle “because it was authorized by the Executive in excess of the Executive’s authority under Article II of the United States Constitution … and exceeds the statutory limits imposed on the Executive by Congress.”

The NY Times has excellent coverage.

Comcast to Appeal Web Blocking Decision

Comcast is appealing an FCC ruling that the company is improperly blocking customers’ Web traffic, triggering a legal battle that could determine the extent of the government’s authority to regulate the Internet. The Comcast case arose from complaints by users of file-sharing software often used to download large data files.

In a precedent-setting move, a divided FCC last month determined that the company is violating a federal policy that guarantees unfettered access to the Internet.

The FCC noted Comcast’s network management practices were “discriminatory and arbitrary” and that the company’s practices “contravene industry standards and have significantly impeded Internet users’ ability to use applications and access content of their choice.”  Full text here.

Interestingly, the FCC opinion also expressed the FCC’s desire to be “the” administrative agency involved with Internet regulation. Their opinion utilizes the FCC’s New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet, which Comcast has stated is merely a policy, not an enforceable law.  (Full text Appeal here)

This action is the first test of the FCC’s network neutrality principles, which may mean that there is no need for Network Neutrality legislation in the future, although both Presidential candidates currently have positions on the issue.

Rights Holders Must Consider Fair Use for DMCA Takedown

The “good faith belief” standard for issuing a DMCA takedown notice requires copyright holders to consider whether the use of a copyrighted work falls within fair use exceptions to the Copyright Act (Lenz v. Universal Music Corp., N.D. Cal., No. 07-3783).

 

In a matter of first impression, Judge Jeremy Fogel held that, though an extensive investigation is not required, a copyright holder must have a subjective belief that a use of a copyrighted work is infringing and does not fall within fair use exceptions in order to issue a DMCA takedown notice in good faith. He also stated that “Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that ‘the fair use of a copyrighted work… is not an infringement of copyright[,]‘ ” at 17 U.S.C. § 107.  The plaintiff, Stephanie Lenz, videotaped her young children dancing in her family’s kitchen. The song “Let’s Go Crazy” by the artist known as Prince played in the background. The video is twenty-nine seconds in length.

 

The record company failed to consider fair use, and issued a takedown notice solely to appease an artist whose song played in the background of a video clip uploaded to YouTube.  These allegations were sufficient to state a DMCA misrepresentation claim against the label, the court held.