I previously blogged about an incident where a judge in the Northern District of California ordered a gmail account shut down due to an errant transmission of sensitive financial information of Rocky Mountain Bank through (or to) a gmail account.  See additional coverage at TechDirt, BNA's TechLaw, and Wired.

The parties ultimately resolved the dispute, but MediaPost sought to intervene to find out exactly what happened and what steps Google took.  The court denied MediaPost's motion to intervene.  Access Judge Ware's ruling at Scribd here.  MediaPost has appealed. 

I don't know what MediaPosts's chances are on appeal.  My gut says not so good.  Appeals are tough to begin with, but here a third party is trying to intervene in a case that the underlying parties have settled.  There's obviously significant public interest issues lurking in the background, but I can see an appeals court leaving those for another day.  I am personally curious to see what happened behind the scenes and would love to see MediaPost shed some light on the situation. 

Facebook has been locked in an interesting battle with Power Networks over Power's alleged unauthorized access to Facebook's network.  There have been a slew of motions filed, following Judge Fogel's denial of Power's Motion to Dismiss and dismissal of Power's counterclaims (without prejudice). 

I'll take a look at the motions later, but one thing that was interesting was the Judge Fogel recused himself.  (Access the Recusal Order here.  The reasons were stated at a hearing but not in the order.)  Does this mean one of Facebook's lawyers accidentally "friended" Judge Fogel?  Probably not.  It could be anything from a tenuous investment relationship to a relationship one of Judge Fogel's family members has with Facebook.  Maybe one of his kids got a job there or something?  I'm curious to know, but I wouldn't make too much of it.

Judge Fogel took a somewhat Facebook-favorable view of the case.  I'm curious as to what Judge Ware (who the case is now assigned to) will do.  According to Judge Ware's Wikipedia page, he's heard a bunch of internet cases, but then again, I would think all N.D. Cal. judges have.

The Ninth Circuit affirmed the district court's ruling in Office Depot v. Zuccarini [Scribd link], agreeing that a creditor may levy against a domain name in the jurisdiction where the domain name registry is located. The decision is significant for two reasons. First, it affirms (or reaffirms) that domain names are property subject to the claims of creditors. Second, it allows creditors to proceed against domain names where the registry is located, thus allowing creditors to proceed against domain names in one proceeding and more importantly levy against domain names located abroad (where the registry is located in the United States). Overall, this makes getting at a domain name much easier for creditors.

Background: Office Depot originally obtained a judgment against frequent cybersquatting defendant John Zuccarini. Office Depot then assigned the judgment to DS Holdings. Office Depot obtained the judgment in 2000 and it's surprising that 10 years later the judgment is finally being enforced against something. Although Zuccarini is proceeding pro se, it seems like he was or became well versed in putting up roadblocks and delaying resolution of the litigation.

DS went after 190 .com domain names that were registered in Zuccarini's name. DS originally tried unsuccessfully to have the domain names transferred directly to it. (This was the technique successfully used by the plaintiff in Bosh v. Zavala.) Later, DS sought to have a receiver appointed over the domain names. The district court granted DS's request to have the receiver appointed, and Zuccarini appealed. Zuccarini's appeal focused on whether it was proper to appoint the receiver in the Northern District of California, since the domain names were not necessarily "located" there.

The court's ruling: The court runs through basic principles of in rem jurisdiction and what rules apply. The court then looks to federal rules to determine where the receiver should be appointed in this case. Finding no applicable federal rule, the court looks to California law. California law provides that a writ of execution may be issued "in the county where the levy is to be made." With this in the background, the two questions presented by the court are: (1) "are domain names property that is subject to execution?" and (2) "if so, where are the domain names located for purposes of execution?"

With respect to the first question, the court cites to Kremen v. Cohen, and easily concludes that (under California law) "domain names are intangible property subject to a writ of execution." Kremen undermined Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759, 770 (Va. 2000), a Virginia case widely cited for the proposition that creditors cannot get at domain names because domain names are contract rights rather then property. To the extent Kremen did not refute Umbro, this decision definitely provides the necessary ammunition to creditors. (Again, collection is state-specific, and apart from the analysis of the nature of domain names, the outcome in these cases turns on the statute in question, which vary from state to state. That said, I think given the robust marketplace in domain names, Umbro's conception of the domain name as a personal services agreement seems outdated, and most courts will easily recognize this.)

With respect to the second question, the court acknowledges that "attaching a situs to intangible property is ... a legal fiction," and the determination must be made in a "context-specific" manner. Fairness was relevant to the court's determination of the appropriate situs, and the court was understandably not receptive to Zuccarini's policy arguments that allowing a court to issue an order directed to the registry would mean that every .com and .net domain name could be levied through courts in the Northern District of California. The court also looked to the ACPA, which provides for in rem jurisdiction over certain cases where the "registrar, registry, or other domain name authority" is located. Although this was not an ACPA case, the court found the structure set up by the statute persuasive and that the writ was appropriately issued from Northern District of California since VeriSign (the registry for .com domains) is located there.

My reaction: The decision clears up two things. Although post Kremen v. Cohen there shouldn't have been much dispute that domain names are property which are subject to the claims of creditors, the case clears up any lingering doubt that may have existed. (Kremen and this case applied California law, but the result shouldn't vary much across other states.) Second, the decision makes clear that a court which has jurisdiction over the registry can issue an order allowing the creditor to get at the domain names. The case also implicitly affirms that getting a receiver appointed to sell the domain names is the appropriate route for the creditor. Getting the name transferred to the creditor is not a remedy allowed under California law (Palacio Del Mar Homeowners Ass'n, Inc. v. McMahon). Additionally, a transfer of domain names from a cybersquatter to a judgment creditor raises some issues around potential infringement of third party rights through sales or other exploitation of the domain names. (See this post on Bosh v. Zavala for some discussion of those issues.) The method ultimately used by DS in this case (a receiver) avoids all of these issues, or at least shifts them over to the receiver rather than the creditor.

As mentioned above, this ruling makes clear that regardless of whether a domain name is registered through a foreign registrar, a court having jurisdiction over the registry can issue an order directing transfer of the domain names to a receiver. With respect to .com and .net domain names, this means that creditors can try to get at these domain names through proceeding in the Northern District of California (as the court notes, VeriSign is the registry for .com and .net domain names and is headquartered in Mountain View). While the ACPA allows plaintiffs to file in rem suits where the registry is located, it's nice (for creditors) to have a similar ruling in the post-judgment context, and one from the Ninth Circuit as well.

Will this cause a rush of similar claims to be filed in the Northern District of California? It's tough to say, but even post Kremen, it does not seem like there's been a ton of post-judgment collections activity with respect to domain names. From a practitioner's standpoint, it's certainly nice to have this rule on the books.

An odd footnote: Zuccarini is a colorful character whose internet exploits have gotten him in trouble with the law. He was arrested in 2003. (Here's a post at CircleID rounding up reactions to his arrest.) According to his Wikipedia entry which contains a link to a Bureau of Prisons search, he was released in 2005.

[Originally posted at Professor Goldman's Technology and Marketing Law Blog]

I'm guessing the headline from this Ad Age article (titled "Clorox: Seeking Attorney to Oversee Social Media Programs" / h/t John Lichtenberger) may be an example of a headline that doesn't precisely fit the article.  From reading the article, Clorox seems to envision the prospective Colorox in-house lawyer as overseeing the legal aspects of the social media program, rather than overseeing the program itself. 

I'm not sure what Colorox has in mind for the new lawyer's orientation, but it should think about giving him or her a copy of this cartoon I came across the other day titled "Corporate Twitter" (by Tom Fishburne):



The risk averse nature of lawyers coupled with our instinct for editing and re-editing documents at length will probably cause us to butt heads with the social media departments on occasion.  This will probably result in the exaggerated version of the typical battle between the legal department and the marketing department in any company (or the legal department and the sales department).

My blogging energy went in a lot of different directions this year, but one of the biggest changes I experienced was that I spent a good chunk of time on Twitter.  (I'm @VBalasubramani, if you are interested, but I should warn you that I don't tweet a ton about legal topics - I would say 20-30% of my posts there are relevant to my area of practice.  As for the other 70-80%, if you are curious as to whether my tweets fall into the stereotypical "what I ate for breakfast" category, you'll just have to follow me to find out!)

There's a ton of digital ink spilled on what to do on Twitter, how to monetize or build business through it, and there is a big contingent of experts who for a small fee can school you in the ins and outs from Twitter. So I won't bore you (or waste your time with my own tips).  One of the more interesting aspects of Twitter for me was self-reflection, and reaffirming some larger lessons.  These mostly fall into the obvious (play nice, be honest, do unto others) category, but I thought a few were worth summarizing.

1. Everything you say says something about you. Twitter is all about saying what's on your mind, and in this sense, it's a giant container of "unsolicited information."  An old friend and I used to joke about "unsolicited information," and in some ways Twitter reminds me of this.  We were both starting out as lawyers, and worked at a firm.  As in any other environment where you have people that are all starting out as a group, we spent a ton of time interacting with people who had all recently started.  One thing we realized is that at least half of the stuff our fellow associates said were for their own benefit.  For example, you are on your way to get a coffee, and you stop by and ask someone how they are doing and they say "I'm just busy. . . staffed on like 8 zillion matters, and feeling totally crushed."  The goal of that comment is not to impart information to you, but to reaffirm to the speaker what is going on in his or her own mind:  "I'm busy, important, and billing lots of hours."  There's a lot of this on Twitter.  Not that there's anything wrong with this, but it's helpful to remind yourself once in a while. 

2. You don't need to weigh in on everything.  This feels like advice a social media expert may dole out, but it really takes a lot of effort to not comment on what other people say. And you don't need to do so.  In fact, you should restrict your comments to the exceptional circumstance.  People will post on all sorts of topics, ranging from who should pay for the media coverage of the balloon boy debacle, to the merits of Apple's upcoming devices (comments about impending product offerings are rampant on Twitter).  If you are at all opinionated, the impulse is often strong to comment on everything.  There's a lot to comment on.  As in real life, it's worth resisting this impulse, or at least checking it.

3.  Everyone you follow will say stuff you think is unimportant. Your twitter stream is built by you following people who you generally share some affinity with.  However, even these people will say stuff that will leave you scratching your head.  I find myself constantly surprised by this, but on some level it's just basic reaffirmation of the fact that we're all different.  What you think is important isn't necessarily what someone else thinks is important.  And there's a certain social zen that comes along with seeing stuff you think is totally irrelevant in your Twitter stream.  (On NFL game day it can get particularly taxing for some, but that's neither here nor there.) 

4.  Good people are where you find them.  Another reaffirmation of a basic truth, but it's sometimes easy to lose sight of this in real life (particularly for lawyers).  People from all walks of life have stuff to add to the mix.  Some of the people with the most interesting stuff to say are well outside my area of professional interest. 

***

By the way, what got me thinking about this is a wonderful Slate entry from Malcolm Gladwell about the "theory of disqualifying statements," which someone described as Gladwell's "10 year old argument against Tweeting":

Diaries, by their very seductively uninhibiting nature, are breeding grounds for disqualifying statements. Any one of these sentences could irrevocably alienate any one of you (not to mention the very real possibility that merely owning up to the Theory of Disqualifying Statements is in itself a Disqualifying Statement). Hence my trepidation, and why I don't feel I can do any more than the most cursory of explanations of my day . . . .

Something to keep in mind.

[Ouch!  A friend emails to say "if you need Twitter to learn or re-learn these basic life lessons, you've got issues."  He's got a point ...]

I blogged a month or so ago about plans by the Montgomery County DA's office to tweet the names of DUI arrestees.  (h/t Paul Kennedy "Drink. Drive. Tweet.")  I speculated as to whether this raised any ethical issues and overall it just struck me as a bad idea.  It turns out this may actually violate the rights of those who are arrested and whose names are tweeted. 

Someone successfully challenged a similar practice in New York:  Bursac v. Suozzi, 22 Misc.3d 328, 868 N.Y.S.2d 470 (Supreme Court, Nassau County New York 2008).  In Bursac, the Nassau County Executive created a wall of shame, on which it posted a photo of people who were arrested for DUIs.  Postings were accompanied by press releases.  One arrestee (against whom charges were dismissed) requested that the posting be removed and when this request was refused, sued.  The court found that the posting violated the petitioner's due process rights:

[the County Executive's actions,] in publishing and maintaining the petitioner's name, picture and identifying information embedded in a press release on the County's Internet website, which results in limitless and eternal notoriety, without any controls, is sufficient to be the `plus’ in the `stigma plus’ due process analysis in the case at bar. The Court finds that the petitioner's due process rights have been violated.

The decision is summarized at Cyb3rcrim3 here: "Stigma Plus."  (An excellent blog that I recently started reading.)  As Professor Brenner notes at her blog, the County Executive relied on Paul v. Davis, 424 U.S. 693 (1976).  in Davis, the Court held that the Louisville police department's creation of a pamphlet containing the names of individuals recently arrested for shoplifting could not be challenged under section 1983:

reputation alone does not implicate any 'liberty' or 'property' interest sufficient to invoke the protection of the due process clause.

From my read of the Court's opinion in Davis, tarnishment of reputation alone is not sufficient to implicate the Due Process Clause - the state has to somehow interfere with a person's right to employment or take away something in which you have a property interest.  Notwithstanding Davis, the court in Bursac found the publication of identifying information about DUI arrestees to be problematic because of the unique nature of the internet, and the fact that landlords, employers, and others screen people through internet searches.  (Davis seemed to say that the government had to be the one depriving you of a job or other benefit, but Bursac didn't delve into this distinction.  Also, maybe there are other cases out there on this issue, I haven't done an exhaustive search.)  In the court's eyes, by labeling someone as a DUI arrestee on the internet, you may as well be denying them a job opportunity:

when the government agency voluntarily promotes and publishes arrest records, containing names, pictures and identifying information, on an Internet website with unlimited access to the public, [this] may affect a legal status and impose specific harm by being available to, inter alia, search engines ,credit agencies, landlords and potential employers, for a lifetime, regardless of the underlying outcome of the case. It is the scope and permanency of public disclosure on the Internet by a governmental agency that distinguishes the County's "Wall of Shame" from traditional and regular forms of reporting and publication such as print media.

There you have it.  Regardless of whether Bursac is correct, it certainly seems like the Montgomery County arrestees have a colorable case.  Another potentially distinguishing aspect of the Montgomery County scheme (from the one in Davis) is that the DA's Office admitted that its practice is designed to punish and deter.  In Davis, there's at least a colorable justification that the publication is for the benefit of shopkeepers (however dissatisfying this explanation may be).  I would think something with a punitive motivation raises an additional set of issues.  I'm sort of hoping someone sues so we can find out!

BTW:  my earlier post was picked up by a few media outlets, including IDG News ("Texas County to Name Drunk Drivers on Twitter") and Mashable ("Drunk Drivers in Texas to be Named on Twitter").  Of course, my all time favorite was a piece which contained this *somewhat* inaccurate description:

L’avvocato Venkat Balasubramani, famoso blogger americano che scrive in merito alla legge, ha espresso il suo parere: “Se i fatti possono essere resi noti dai media, ciò non significa che i legislatori stessi debbano pubblicizzarli”

NotizieFresche: "Texas: Una punizione per chi guida ubriaco? Il proprio nome pubblicato su Twitter."  I think that's the translated version of the IDG article, but who is counting?

I've noticed an unfortunate trend among bloggers that's worth flagging. Maybe it's a pet peeve. Either way, people lately seem to associate two totally random things that have no connection at all, and ask what one can teach the other (or what one can learn from the other). Mostly these posts come from people trying to move the legal profession along, which in my book is a worthy goal. But at a certain point, you have to ask, what does one really have to do with the other, and is there really a need to stretch the analogy so far?

Some examples:

• Martindale.com: "What the NFL Playoffs Can Teach us About a Lawyer's Social Media Efforts"
• ABA Journal: "What Susan Boyle Can Teach Trial Lawyers"
• Larry Bodine:  "What Law Firms Can Learn From Airlines"
• Jay Shepherd "Why Law Firms Should be Treated Like Pizza Joints"
• Arnie Herz "What President Obama can Teach us About Client Relationships"
  

There are a lot of other examples out there. Who knows, maybe there's some sort of blogging camp or webinar where this is taught as a tried and true method?  It may appeal to some, but let me just say it doesn't work for me.  It sort of brings to mind a jab in one of Justice Scalia's opinions:

Applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.

While we are on the topic of analogies between lawyering and other activities, for me, one of my prior jobs that lends some good experience to lawyering is waiting tables.  You deal with a bunch of customers in both situations and your ultimate goal is to keep them happy.  You have to communicate and keep them apprised of where their matter is.  But most importantly, you have to juggle.  In my busy moments (like now) where I'm juggling a bunch of stuff, I feel exactly like I did back in my waiting table days.  The possibility of being frazzled exists.  I've experienced it in both situations. 

As for Tibetan goatherders, I'm sure there's a lot they could teach us about lawyering.  Then again, they can probably teach a lot of people about a lot of different things. Added: a money comment from David Sugerman in response to the question: "not much and an awful lot." 

Legal Blog Watch: links to this post.  More examples from the comments there.

BTW:  check out Jay Shepherd's blawg review # 246, with predictions for 2010.

Just when I thought many of the issues lawyers deal with through the use of social media were overblown and could be easily addressed by common sense, someone comes along to prove me wrong:  the Montgomery County District Attorney's Office.

As defense lawyer Paul Kennedy notes, the Montgomery County DA's office has decided to tweet the name of everyone arrested for a DUI. 

This is just a bad idea all the way around.  As Paul notes, people are wrongly arrested all the time, and there is damage that can be done just by noting the fact of someone's arrest.  To me it doesn't seem like there's any good justification for publicizing the names of people arrested for certain types of crimes (I suppose it could serve some deterrent value...).

The DA's office may come back and say that these are public facts and newspapers may publish the names of arrestees all the time.  But just because facts are publicly known and made available by the media, doesn't mean the prosecutor has to actively publicize these facts.

I wonder if there are any ethical issues lurking around here? 

Am I off-base on this one?  I'm not a criminal lawyer so I may well be, but it just doesn't pass the gut-check test for me. 

I guess we may want to look at the bright side.  Tweeting the names of arrestees probably makes it much easier for lawyer-marketers to reach out (even via Twitter) to the people who have been arrested.  (kidding)

I have a pair of posts at Professor Goldman's blog on unsolicited text messages, and the Telephone Consumer Protection Act and the Computer Fraud and Abuse Act.

Last week, a federal court in Minnesota held that the transmission of unsolicited text messages does not constitute a violation of the Computer Fraud and Abuse Act (Czech v. Wall Street on Demand, Inc.).  The court recognized that the Computer Fraud and Abuse Act is a statute designed to combat hacking, and that plaintiff's allegations that it repeatedly received unwanted text messages do not make out a claim - based on the extraction of information, transmission of harmful code, or access (without authorization) - under the Computer Fraud and Abuse Act.

This week, a federal court in Illinois (Abbas v. Selling Source, LLC) held that the transmission of unsolicited text messages could violate the Telephone Consumer Protection act, because unwanted SMS messages constituted "calls" under the TCPA.  Interestingly, defendant raised a First Amendment defense, which the court rejected.

Both cases are worth reading. 

"Why is Facebook so hard to use?" is a question that has nagged me for the past year.  Seriously.  For a company that has raised as much money and garnered the amount of attention that Facebook has, the Facebook user experience stinks.

I consider myself reasonably able to figure out basic tools like these on my own.  But to me it seems like you need to take a class in order to put together anything more than a basic "personal page" on Facebook.  Worse yet, Facebook doesn't make available documentation that answers basic questions on how to set up and use the various types of pages on Facebook.  (Maybe this is what they teach you at social media seminars?)

Here's the scenario:  I have a personal page on Facebook which I've had for the past year or so (give or take).  About six months ago I decided to set up a "company page" for a side-project I'm working on with my mom (selling Indian spice mixes and rubs).  Here's a link to the spice mix page.  (At the risk of sounding trite, and to use an over-used expression, "feel free to fan" the spice rub page [link].)  The basic problem I have is that Facebook does not make it easy to disassociate my personal page from the company page.  My recollection when I set up the company page was that you had to tie it to a personal page for the person who would be the administrator.  This was a lame decision on Facebook's part.  Maybe people want to set up a company page but they don't want to be "on Facebook" (personally)?  Anyway, that's neither here nor there, but what I'm really having trouble figuring out is how to easily distinguish between posting to your personal page and and posting to the company page. 

Here's an example of what's problematic.  I did a test post on the company page - here's a screen cap of the post below:



You would think since I posted this under my company account profile, this comment would not be in any way associated with my personal account, right?  Wrong:


I realize Facebook has a lot of different settings you can tweak (including privacy settings) but this seems like a pretty basic failure in the way that company pages and personal pages fit together.

I know I'm not alone in my experience.  As a relatively light Facebook user who hasn't been really active on Facebook I still chat with a fair number of people who have had similar problems, and worse yet, people who generally can't figure out the process of how to easily set up a company account (or don't realize the difference between a company page, a cause page, event page, fan page, etc.).

Get it together Facebook -- user experience is all important, and judging from my experience, Facebook gets a big fat F.

[BTW:  at the time I created the company page I was fairly certain that you needed to have a personal profile to "administer" a separate page, such as a company page, but maybe things have changed.]