October 2006 – Attorney Evan Brown

October 27, 2006 Electronic Discovery, Evidence, Litigation, Privacy

Parties must use neutral forensics examiner in file-sharing case

Case highlights important privacy interests in electronic discovery dispute.

From Ray Beckerman, we learn of the U.S. District Court for the Eastern District of Texas’s decision on a motion to compel discovery filed by the recording industry against an accused file-sharer. While the defendant will have to submit her hard drive for forensic examination to see whether she had any copyrighted sound recordings stored on it, she will not have to turn it over to the recording industry’s forensic expert.

Instead, seeking to “balance the legitimate interests of both sides,” the court ordered the parties to select a neutral computer forensics expert to conduct the inspection. Such an approach, the court found, would protect the disclosure of the defendant’s personal information, such as personal correspondence, household financial matters, school homework, and perhaps attorney-client privileged information.

Although in theory this sounds like a reasonable approach to protect the confidentiality of the defendant’s information, one could be troubled by a particular part of the court’s decision. The order states that “the Plaintiffs shall have the right to suggest hard drive search methodologies to the neutral expert and the expert shall make every effort to utilize those methodologies.”

But there is nothing in the order giving the defendant the right or opportunity to object to those methodologies. With an obligation to “make every effort” to comply with the suggestions of the plaintiffs, just how neutral is that forensic examiner really going to be?

Sony BMG Music Entertainment et al. v. Arellanes, No. 05-CV-328 (E.D. Tex., October 27, 2006).

October 15, 2006 Privacy

Government couldn’t track location of cell phone without probable cause

In the case of In the Matter of the Application of the United States of America for an Order Authorizing the Disclosure of Prospective Cell Site Information, the U.S. District Court for the Eastern District of Wisconsin denied the government’s application for disclosure of “cell [s]ite information” pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703, and the pen register statute, 42 U.S.C. § 3122.

The government sought cell site information so that it could track the general whereabouts of a criminal suspect. Cell site information is a record of the cell towers a cell phone connects to while the phone is turned on. The government, with cell cite information, can determine the location of a suspect possessing the cell phone. For more information on the technical aspects of cell site information, refer to this Wikipedia article.

The court noted at the outset that the issue in the case was not whether the government could obtain cell site information (it can), but rather what standard the government must meet to obtain such information. As a preface to the analysis of that issue, the court set out the three ways the government generally may access information related to telephone usage.

First, the government can listen in on calls if it shows probable cause and obtains a “super-warrant” under 18 U.S.C. §2518(3). Second, if it seeks records pertaining to a subscriber to an electronic communications service, it must show “specific and articulable facts” showing the records are relevant and material to the investigation. (See the Stored Communications Act at 18 U.S.C. §2703.) Third, the government can proceed under 18 U.S.C. §3122(b)(2) (the “pen register statute”) to obtain the numbers dialed from a phone or the numbers from which calls are made to a target phone.

The government claimed that by seeking cell site information, which included information about the towers used by the suspect’s phone and a map of tower locations, it was not requesting precise tracking information. Because it would only be able to determine the general neighborhood of the suspect, the government argued that the proper standard for obtaining the information should be “likely to be relevant” or “specific and articulable facts,” rather than the higher standard of “probable cause.”

The court rejected the government’s argument, citing to the Communications Assistance for Law Enforcement Act (“CALEA”). CALEA expressly prohibits the government from obtaining “information that may disclose the physical location of the subscriber” except where the probable cause standard has been met. Although the text of CALEA does not indicate how granular the term “physical location” is to be interpreted, the court held that the general geographical location revealed by cell site information clearly is a “physical location.” Accordingly, the “probable cause” standard was appropriate.

The government had not met its burden, so the request was denied.

In the Matter of the Application of the United States of American for an Order Authorizing the Disclosure of Prospective Cell Site Information, 2006 WL 2871743 (E.D. Wis., October 6, 2006).

October 10, 2006 Trademarks

A review of the Rescuecom case: AdWords trademark infringement suit dismissed

Plaintiff Rescuecom, a computer services business, filed suit against Google, claiming that the search engine infringed its trademark by suggesting and selling the registered mark RESCUECOM as a keyword to competitors advertising through Google’s AdWords program. Google moved to dismiss for failure to state a claim, arguing that Rescuecom had not adequately alleged that Google’s sale of the keyword and triggering of ads was an actionable trademark use under the Lanham Act, 15 U.S.C. 1051 et seq.

The court agreed with Google and dismissed the case.

The court first looked to the Lanham Act for the elements of a trademark infringement claim. Under the Act, infringement occurs when (1) a defendant uses a plaintiff’s valid and protectible mark in commerce, without the plaintiff’s consent, in connection with the sale or advertising of goods or services, and (2) that use is likely to cause confusion as to the source of those goods or services.

The court observed that the Second Circuit has not decided whether the sale of a trademarked keyword for advertising purposes constitutes trademark infringement. It noted, however, eight recent decisions indicating a split among district courts over the issue of trademark use in the sponsored listing context.

Rescuecom offered four arguments as to why Google’s suggestion and sale of RESCUECOM as a keyword was trademark “use” under the Lanham Act. First, Google was free-riding on the good will associated with the trademark. Second, Google lured searchers away from the Rescuecom website. Third, the keyword’s use by competitors altered search results, causing confusion. Fourth, Google used “Rescuecom” internally as a keyword to trigger competitor’s advertisements.

The court addressed Rescuecom’s good will argument first, and found that Rescuecom’s allegations could not support improper trademark use by Google. Although the allegation of use of the mark “in commerce” could be supported, the court gave a nod to the decisions in 1-800 Contacts v. WhenU, 414 F.3d 400 (2d Cir. 2005) and Merck v. Mediplan Health Consulting, 425 F.Supp.2d 402 (S.D.N.Y. 2006) to hold the subtle point that commercial use is not the same as “use in commerce” for trademark purposes. In the absence of an allegation of an improper trademark use, there could be no violation of the Lanham Act.

In addressing Rescuecom’s next argument – that Google lured searchers away from Rescuecom’s website – the court rejected the faulty premise that a trademark use occurs when a searcher clicks a sponsored link triggered by “Rescuecom” but the user is not led to the Rescuecom site. Critical to the court’s analysis in rejecting this argument was that Rescuecom had not alleged that any of the sponsored links, besides those leading to Rescuecom’s own site, displayed the RESCUECOM mark.

The court also rejected Rescuecom’s next argument, that Google caused confusion via altered search results. Similar to its analysis for the previous argument, the court found that because searchers could still find Rescuecom’s website in the search results, and because none of the sponsored links displayed Rescuecom’s trademark, there was no infringing use by Google.

Rescuecom’s final argument, namely, that Google’s internal use of the mark to trigger ads was infringing also failed. Where Google did not place the RESCUECOM mark on any “goods, containers, displays, or advertisements” and where Google’s “use” of the mark was not visible to the public, there was no cognizable trademark use under the Lanham Act.

Because Rescuecom had not adequately alleged that Google’s actions constituted a trademark “use,” the court dismissed the federal trademark infringement, false designation of origin and dilution claims. The court refused to exercise supplemental jurisdiction over the remaining state law claims.

Rescuecom Corp. v. Google, Inc., 2006 WL 2811711 (N.D.N.Y., Sept. 28, 2006).

October 5, 2006 Miscellaneous

A review of the Target ADA case: California federal court denies motion to dismiss lawsuit over website accessibility

In the case of National Federation of the Blind v. Target Corporation, the U.S. District Court for the Northern District of California has held that it will allow in part, and dismiss in part, a lawsuit brought against Target by an advocacy group claiming that Target’s website violates the Americans with Disabilities Act (ADA).

Plaintiffs, national and state advocacy groups for the blind, claimed that defendant’s website (Target.com) is inaccessible to the blind, and therefore violates the ADA and similar California state laws. The plaintiffs have sought declaratory, injunctive, and monetary relief. Because Target.com allows a customer to perform functions related to Target stores, the plaintiffs argued, and because the website is not fully accessible to the blind, those customers are denied full and equal access and enjoyment of Target stores.

Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.

The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. Title III states in part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, [and] services … of any place of public accommodation…” 42 U.S.C. 12182(a). In rejecting the defendant’s first argument, the court emphasizes that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.

The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. The court noted that because Target.com is integrated heavily with defendant’s stores, and because the website offers services and goods available in defendant’s stores, the website operates as a gateway to the store. Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.

The court then addressed defendant’s third assertion, that a satisfactory auxiliary aid is being provided. Defendant claims that all goods and services available on the website are also available on the telephone, and this satisfies the ADA’s auxiliary aid exception. The court rejected this argument by noting that this exception is an affirmative defense. Because the lawsuit was at the pre-trial motion phase, this affirmative defense was pleaded prematurely.

The court finished its discussion of defendant’s motion to dismiss by agreeing that the plaintiff failed to state a claim under the ADA inasmuch as the goods and services on Target.com are unconnected to Target’s brick-and-mortar stores. In a footnote, however, the court commented on the future of plaintiff’s ADA claim: “The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its customer-base, while on the other hand it seeks to escape the requirements of the ADA.”

National Federation of the Blind v. Target Corporation, 2006 WL 2578282 (N.D. Cal., September 6, 2006).