8/12. The Federal Trade Commission (FTC) filed a civil complaint [9 pages in PDF] in the U.S. District Court (NDCal) against W3 Innovations LLC and Justin Maples alleging violation of the Children's Online Privacy Protection Act of 1998 (COPPA) and various sections of the FTC Act in connection with their soliciting personal information online from little girls without notice to, or consent from, their parents.

The COPPA, which is codified at 15 U.S.C. §§ 6501-6506, required the FTC to promulgate regulations that "require that the operator of any website or online service that collects personal information from children or the operator of a website or online service that has actual knowledge that it is collecting personal information from a child --- (i) provide notice on the website of what information is collected from children by the operator, how the operator uses such information, and the operator's disclosure practice for such information; and (ii) to obtain verifiable parental consent for the collection, use, or disclosure of personal information from children".

W3 Innovations, which also does business as Broken Thumbs Apps, makes, markets and sells software applications for mobile devices, some of which are directed to female children. In addition, W3 asked girls to post comments to web sites, and in so doing solicited the names and e-mail addresses of girls under 13 without first obtaining parental consent.

The FTC and defendants simultaneously signed a proposed consent decree [15 pages in PDF] that provides for a penalty of $50,000, an injunction against future violation of the COPPA, deletion of personal information, compliance monitoring and reporting requirements, and record keeping requirements.

The defendants admitted no wrongdoing.

The FTC stated in a release that this is its first COPPA case involving mobile applications.

Sen. John Rockefeller (D-WV) stated in a release that "As I have made clear at a number of online privacy hearings held by this Committee, consumers may not realize that their personal information is being collected by third party companies for marketing or profiling purposes".

He continued that "Congress passed COPPA over a decade ago precisely to prohibit the type of information collection practices in which W3 was engaged. The FTC's enforcement action sets a legal precedent that mobile applications targeting children must abide by the protections established by the law."

He added that "while I am pleased with the FTC’s recent action, I also believe it is crucial that the FTC completes its revision of the COPPA Rule to account for changing technology and give consumers the regulatory protections they need for the future."

This case is FTC v. W3 Innovations LLC and Justin Maples, U.S. District Court of the Northern District of California, San Jose Division, D.C. No. 11cv-03958-PSG.

8/15. A collection of gay and lesbian groups, represented by the American Civil Liberties Union (ACLU), filed a complaint in the U.S. District Court (WDMo) against a public school system Missouri alleging violation of 42 U.S.C. § 1983, based upon violation of the First Amendment of the U.S. Constitution, in connection with its use of internet filtering technology.

The complaint alleges that the filtering software at issue blocks access to web sites "advocating on behalf of lesbian, gay, bisexual, and transgender (``LGBT´´) people but permits access to websites that condemn homosexuality or oppose legal protections for LGBT people".

Section 1983 provides in part that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress".

Section 1983 actions are disfavored by many federal judges. Also, school districts may raise Section 230 immunity as a defense.

47 U.S.C. § 230 provides in part that "No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected".

The plaintiffs also filed a motion for a preliminary injunction. See, ACLU release.

This case is Parent Families and Friends of Lesbians and Gays, Inc., et al. v. Camdenton R-III School District, et al., U.S. District Court for the Western District of Missouri, D.C. No. 2:11-cv-04212.

8/16. The U.S. Court of Appeals (9thCir) issued its opinion [14 pages in PDF] in Dougherty v. City of Covina, a claim against a political subdivision of a state, under 42 U.S.C. § 1983, for violation of his constitutional rights. He alleged that the city violated his 4th Amendment right to be free from unreasonable searches and seizures by seizing and searching his home computer and other electronic items, without probable cause. The Court of Appeals held that the city lacked probable cause, but possesses immunity from this suit.

The probable cause holding in this case is of little significance. It provides an example of what does not constitute probable cause to search a home computer in a case which a law enforcement officer alleges to be a child pornography (CP) investigation. However, it does not provide an explanation of what does constitute probable cause to search a home computer, and which is applicable to all types of criminal investigations. Moreover, the section on probable cause is neither long nor thoughtfully drafted.

That is, this opinion does not provide guidance as to what would constitute probable cause to search a home computer for evidence of computer hacking, criminal copyright infringement, or online fraud.

The City of Covina Police Department requested a warrant to search the home, computers, cameras, and electronic media of Bruce Dougherty, an elementary school teacher. A police officer represented to the magistrate that there was probable cause to believe that Dougherty had CP in his home.

The officer submitted an affidavit to the magistrate that alleged the manner in which Dougherty looked at his students in class. It also alleged that on one recent occasion he picked up a student in class. It also alleged older in class touching. But, it contained no allegations regarding CP use. The affidavit alleged that in the experience of the investigating officer, the acts alleged in the affidavit are linked to CP use. Also, the affidavit did not allege that Dougherty owned a home computer, or had an internet access account.

The magistrate issued the warrant. Police conducted a search of Dougherty's home at gunpoint. The police seized and searched his computer. No charges were brought. Dougherty then sued the city, the officer, and the Chief of Police in the U.S. District Court (CDCal). The District Court dismissed the complaint. Dougherty brought the present appeal.

The Court of Appeals held that there was not probable cause to search his home computer or electronic media. However, it also held that since the 9th Circuit had not previously ruled on the question of probable cause to search a home computer in a CP investigation, the city and its employees have immunity from this suit.

The Court of Appeals adopted the following standard: "Under the totality of the circumstances, a search warrant issued to search a suspect's home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics use by the suspect; and (3) the only evidence linking the suspect's attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation." (Emphasis added.)

As a practical matter, this standard will not preclude law officers from obtaining search warrants for home computers in investigations which they allege to be CP investigations. All officers need do to avoid denial of a request for a warrant under this standard is allege that the suspect has home computer, which the officer in this case failed to do. Had the Court written a standard in which the three prongs were conjoined by the word "or", rather than "and", then the standard would have imposed a more meaningful limitation.

This opinion may be of only limited applicability to searches and seizures of computers in other types of investigations, because the Court only discussed probable cause in the context of CP investigations, the leading cases discussed and relied upon by the Court as precedent were CP related cases, and the standard adopted by the Court references CP.

This case is Bruce Dougherty, et al. v. City of Covina, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 09-56395.

The House will meet in pro forma session at 11:30 AM. It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will meet in pro forma session at 11:00 AM. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

12:30 - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Tax Aspects of Technology Transactions". The speakers will be Roger Royse (Royse Law Firm) and Kenneth Appleby (Foley & Lardner). Prices vary. CLE credits. See, notice.

TIME? The American Bar Association (ABA) will host a webcast panel discussion titled "LinkedIn for Lawyers".

1:00 PM. The US Telecom will host a webinar titled "Navigating the Rising Tide of Cyber Crime". The speaker will be Tom Dotson (CIO of SureWest). Free. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [36 pages in PDF] regarding removing the International Settlements Policy (ISP) from all U.S. international routes except Cuba. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-75 in IB Docket No. 11-80. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42625-42631.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [82 pages in PDF] regarding reporting requirements for providers of international telecommunications services. The FCC adopted this NPRM on May 12, 2011, and released the text on May 13, 2011. This item is FCC 11-76 in IB Docket No. 04-112. See, notice in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42613-42625.

The House will meet in pro forma session at 1:00 PM.

The Senate will meet in pro forma session at 10:00 AM.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Ownership of Digital Media and Electronic Privacy". The speakers will be Ben Kleinman (Manatt Phelps), Sharra Brockman (Verv), Eric Crusius (Centre Law Group), and Paul Roberts (Hogan Lovells). Prices vary. CLE credits. See, notice.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the consultation of International Telecommunication Union's (ITU) Telecommunication Standardization Sector Study Group 15 regarding whether draft Recommendation G.tp-oam (Operations, Administration and Maintenance mechanism for MPLS-TP in Packet Transport Network (PTN)) should be approved as a policy-level document, and what policy position the US should take at the December 2011 Study Group 15 meeting on this issue. See, notice in the Federal Register, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48939. Location: DOS, 2201 C St., NW.

Deadline to submit oppositions to petitions for reconsideration of the Federal Communications Commission's (FCC)'s Report and Order and Order on Reconsideration [144 pages in PDF] regarding pole attachments. That order is FCC 11-50 in WC Docket No. 07-245 and GN Docket No. 09-51. The FCC adopted and released it on April 7, 2011. The National Cable & Telecommunications Association (NCTA), COMPTEL, and tw telecom filed a petition for reconsideration on June 8, 2011. The Coalition of Concerned Utilities also filed a petition for reconsideration on June 8, 2011. See, June 20, 2011 Public Notice and notice in the Federal Register, Vol. 76, No. 143, Tuesday, July 26, 2011, at Pages 44495-44496.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 2:30 PM.

11:00 AM - 2:00 PM. The National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee (SGAC) will meet by teleconference. See, notice in the Federal Register, Vol. 76, No. 148, Tuesday, August 2, 2011, at Page 46279.

8/16. The U.S. Patent and Trademark Office (USPTO) announced in a release that it issued its 8 Millionth patent. Also on August 16, David Kappos, head of the USPTO, stated in a release that the backlog of patent applications awaiting first office action by examiners is 689,226, and that Traditional First Action Pendency is 27.8 months.

8/15. The Department of Justice's (DOJ) Antitrust Division charged Nautilus Hyosung Holdings Inc., an automated teller machine (ATM) manufacturer, in the U.S. District Court (DC) with obstruction of justice in connection with submitting false Hart Scott Rodino premerger filings with the DOJ. The DOJ also announced in a release that the defendant "has agreed to plead guilty and pay a $200,000 criminal fine for obstruction of justice. It added that the defendant "is a wholly-owned subsidiary of Korea-based Nautilus Hyosung Inc. (NHI). The false documents were submitted to the government by NHI on behalf of Nautilus Hyosung Holdings in contemplation of the acquisition of Triton Systems of Delaware Inc., a competing manufacturer of ATM systems. The department said that the parties abandoned the proposed acquisition of Triton before the Antitrust Division reached a decision whether to challenge the transaction."

8/12. The Government Accountability Office (GAO) released a report titled "Information Security: Federal Deposit Insurance Corporation Has Made Progress, but Further Actions Are Needed to Protect Financial Data".

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