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• What is Net Neutrality and why is it important?
• What did the Comcast decision do?
• What are the Commission’s options after the decision?
• How would you go about researching any of this?

Net Neutrality refers to the concept that Internet Service Providers should not be allowed to discriminate based on the content or type of information passing through their system.  For example if you purchase Internet access through your cable company, they could not reduce ‘throttle’ your bandwidth when you download video from another legitimate source.

The F.C.C. has indicatedits intention to promote the ‘Open Internet’ embracing the principles of Net Neutrality.   When Comcast began limiting the bandwidth of customers who used peer to peer networks to share data a complaint was filed with the F.C.C. and the F.C.C. orderedComcast to stop.  Comcast then petitioned for a review of this order and the D.C. Circuit Court, in Comcast Corp. v. F.C.C. determined that the F.C.C. lacked the authority to regulate Comcast’s ‘network management practices.’  This was based on, among other reasons, the F.C.C.’s classificationof cable internet providers as ‘information service’ rather than a telecommunication service subject to the common carrier regulations.

The F.C.C. was then seemingly left with two options, abstain from applying the common carrier regulations to cable internet providers, or to reclassify them in order to invoke the regulations.  The first option would not meet the F.C.C.’s open internet goal.  The second option, reclassifying cable internet provides as ‘telecommunications services’ would subject to the full suite of regulations designed for the telephone industry which are not a good fit for a cable company.  The Commission recently announced that it preferred a third waywhich would bifurcate the regulation of cable internet provides, regulating the broadband internet service as a common carrier, while not applying the full gamut of regulations to the cable companies.

Researching this type of Administrative regulatory action can be difficult.  Finding requests for comments, proposed, and final regulations in the Federal Register can be daunting on its own.  Fortunately, this issue has some unique terminology. Try the following in the Federal Register (FR):

 (net /2 neutrality) (open /3 internet) & f.c.c.

However ,what about statement from the F.C.C. like the Third Way above?  For many federal agencies, Westlaw has created specific databases to search for these materials.   For F.C.C. documents like the one above, search the Federal Communications – FCC Record (FCOM-FCC) database. 

Finally issues like this, where you may not know exactly where to begin are a great time to try out WestlawNext.  The global search capability of WestlawNext allows you to pull up relevant cases, statutes, regulations, decisions, and proposed actions all in one search.  Because of the unique terms on this topic I used the ‘strict’ command to run a terms and connectors search in WestlawNext:  strict: F.C.C. & “net neutrality” “open internet” now I can choose from all the categories on the left, including proposed legislation  or Administrative Decisions & Guidance.  In the Administrative Decisions content, I simply resorted my results by date bringing A THIRD-WAY LEGAL FRAMEWORK FOR ADDRESSING THE COMCAST DILEMMA to the top of the list.

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The ongoing saga of the lost/stolen iPhone prototype, posting on Gizmodo and subsequent raid on the home of the blogger who reported on it, makes for interesting soap opera, but also raises some interesting issues.

This post from the Electronic Freedom Foundation and this from the Volokh Conspiracy both provide detailed analysis of the legality of the search warrant.

Beyond the legality of the warrant, I wanted to look into the scope of protection for blogger-journalists on the civil side and how it applies in relation to issues of trade secrets and criminal activity. After a couple of searches I found, O’Grady v. Superior Court. 139 Cal.App.4th 1423. In that case, Apple sought authority to issue civil subpoenas to publishers of a web site that had obtained confidential company information about an impending product. The Appeals court decided that the website publishers should be granted a protective order, because, among other reasons, web sites were periodicals under reporter’s shield law.  The best line in that case is:

“While it may be tempting to think of Asteroid as a mere gizmo for nerds…”

Another case, decided two weeks ago in New Jersey, cites O’Grady and delves again into the scope of the journalist shield, noting “new media should not be confused with news media.” Too Much Media, LLC v. Hale 2010 WL 1609274. That is, posting something on the web does not automatically make you a journalist.

Let me know what you think of the intersection of the reporter shield laws and intellectual privacy.  Also, from a PR standpoint, was reporting this as stolen property a good move for Apple?

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Social media sites are getting a lot of coverage lately.  Avoiding liability in this realm involves maybe a little more than common sense.  Yesterday, we learned one law firm launched a practice group dedicated to social media.

A quick tip to get  research started in this area is to start broad and locate. Remember, when in transactional searching, locates are free. You can do as many as you need at no additional charge.

I would  start with a broad search like the one below. I ran it in three different databases to give you a sense of the sheer volume of material out there on this topic.

Database: TP-ALL (2788 Docs) Database: ALLCASES (135 Docs) Database: ALLNEWS (9513 Docs) * Please note that without identifying duplicate documents, the ALLNEWS search would jump to more than 50,000 hits.

Now the average person is not going to have the time (or the patience) to go through 135 cases or secondary sources and articles whose numbers are in the thousands. Instead, use locates to narrow the searches to more manageable numbers. Locating by fields is a great way to narrow your result lists.

Try the following:

Locate: TI,PR(SOCIAL-MEDIA SOCIAL-NETWORK! BLOG BLOGGER BLOGGING MYSPACE FACEBOOK TWITTER /P PRIVATE PRIVATELY PRIVACY SECURE SECURED SECURITY)

Database: TP-ALL (101 Docs) Database: ALLNEWS (382 Docs).

Another great way to reduce the size of your result lists, provide more relevant results, and save you time is to add additional terms to narrow the search or decrease your connectors.

Try:

Locate: (SOCIAL-MEDIA SOCIAL-NETWORK! BLOG BLOGGER BLOGGING MYSPACE FACEBOOK TWITTER /P PRIVATE PRIVATELY PRIVACY SECURE SECURED SECURITY /S EMPLOY! /S LIAB!)

Database: TP-ALL (24 Docs) Database: ALLNEWS (17 Docs)

Locate: (SOCIAL-MEDIA SOCIAL-NETWORK! BLOG BLOGGER BLOGGING MYSPACE FACEBOOK TWITTER /P PRIVATE PRIVATELY PRIVACY SECURE SECURED SECURITY /S EMPLOY!)

Database: ALLCASES (14 Docs)

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While losing an iPhone prototype might earn an Apple engineer a free flight and a free beer, the same might not be said for the attorney who loses her Blackberry.

Are you concerned about the security of the information on your mobile device?  What if someone gets access to this confidential information? What ramifications might it hold regarding attorney-client privilege?

In December last year, Jeff Richardson (iPhone J.D.) complained:

Security is very important for lawyers, but articles like [ABA’s Parting the Curtains on the iPhone's Security Problems] frustrate me a little.  First, the hacking required is very sophisticated.  The hacker mentioned in that article is Jonathan Zdziarski, the foremost authority on iPhone security who literally wrote the book on iPhone Forensics.  I have no doubt that if Zdziarski gets your iPhone and wants to do you harm, you are in trouble.  The random guy who picks up the iPhone you left on a subway will almost certainly not be Jonathan Zdziarski.

To read more about this emerging issue, and the pros and cons of using mobile devices in your law practice, try the following Westlaw searches:

Search:

IPHONE BLACKBERRY “SMART PHONE” TREO “PALM PILOT” “PERSONAL DIGITAL ASSISTANT” “MOBILE DEVICE” /P “LAW FIRM” LAWYER ATTORNEY COUNSEL /P #SECURITY PRIVATE PRIVACY & ATTORNEY-CLIENT-PRIVILEGE

Database:       TP-ALL

Search:

IPHONE BLACKBERRY “SMART PHONE” TREO “PALM PILOT” “PERSONAL DIGITAL ASSISTANT” “MOBILE DEVICE” /50 “LAW FIRM” LAWYER ATTORNEY COUNSEL /50 #SECURITY CONFIDENTIAL   ATTORNEY-CLIENT-PRIVILEGE

Database:        ABAJ

Search:

TI(IPHONE BLACKBERRY “SMART PHONE” P.D.A. “PERSONAL DIGITAL ASSISTANT” “MOBILE DEVICE”) & #SECURITY ATTORNEY-CLIENT-PRIVILEGE CONFIDENTIAL!