IBLS Speaker's Corner

The Supreme Court of Guam Held that Internet Access Service is Neither a Telephone Service Nor a Supplement to Telephone Service

Martha L. Arias — Mon, 08 Feb 2010 04:40:00 GMT

Guam is an island located in the Western Pacific Ocean; it was controlled by Spain from 1668 until 1898 when it was surrendered to the United States as part of the Treaty of Paris, the treaty that ended the Spanish-American War. Thus, Guam is currently an unincorporated territory of the United States. Guam is governed by the President of the United States, an elected governor, and a unicameral 15-member legislature. As any unincorporated territory of the United States, Guam has its own judicial system, including a Supreme Court. In 2009, the Guam Supreme Court held that Internet service access is neither a telephone service nor a supplement to telephone service. This decision is consistent with decisions rendered by United States courts on whether Internet service access is a telecommunication service.

In Carlson v. Guam Tel. Auth., 2002 Guam 15, (2002), The Supreme Court of Guam was to decide whether internet access service was a telephone service within 12 Guam Code Ann. § 7104(a)(1993). 12 Guam Code Ann. § 7104(a) (1993) is the statutory provision that regulates the Guam Telephone Authority (GTA). According to this provision, GTA has the power to “install, maintain, sell and supply to individuals, firms, corporations and governments, including the government of Guam, telephone services.” Thus, GTA could only provide Internet access services if that service is considered a telephone service or a supplement to telephone service.

The controversy arose when GTA started offering Internet access service, through an Internet service provider (ISP) called GuamTel.net, on December 02, 2000. Plaintiffs, a group of private parties, sought declaratory relief and a permanent injunction against GTA. The trial court granted relief for the plaintiffs and a permanent injunction against GTA. GTA appealed before the Supreme Court of Guam.

The Supreme Court of Guam commenced its analysis by stating that there was not case on point to decide this issue, and that Ada v. GTA, 1999 Guam 10 was “arguably useful” to decide this controversy. The parties to Carlson had different interpretations of the Ada case. In Ada, GTA submitted a bid to acquire a Federal Communications Commission license to provide and operate personal communication services (PCS) in Guam. The case went to court and the trial court ruled for GTA, and the Supreme Court of Guam affirmed. PCS is a wireless telecommunication service that combines cellular telephone features with other advance technologies. Thus, in Carlson, the Supreme Court of Guam refused to apply Ada. Additionally, the court held that it was unnecessary to rely on the Federal Communications Commission’s interpretation of the terms “telecommunication services” and “information services” arising out of the Federal Telecommunications Act of 1996. Rather, the court provided its own interpretation of 12 Guam Code Ann. § 7104(a)(1993), outside federal law.

The court held that telephonic communication is the transmission of speech over distances, and telephone service is the service that facilitates a two-way communication. Then, according to these definitions, the court was to decide whether Internet access service was a telephone service or a supplement to it. The Supreme Court of Guam concluded that Internet access service is a data-transmission service. It supported this conclusion by providing examples of the other services provided by ISP such as e-mail, chatting, and other Internet-based features. So, the real issue in Carlson was to determine whether Internet access service was a supplement to telephone service. The court concluded that “Internet access service allows for a type of transmission of data and information that is by-and-large unrelated to ordinary telephone service, and therefore does not supplement such service.” Thus, Internet access was considered an animal on its own rather than a supplement to telephone service.

The court in Carlson, therefore, held that “GTA does not have the statutory authority to provide internet access services and GTA therefore exceeded its statutory authority in attempting to do so through its operation of GuamTel.Net.”

.eu Top Level Domain Names and Public Policy Considerations

Martha L. Arias — Wed, 03 Feb 2010 19:25:00 GMT

A Top Level Domain system that encompasses several geographical regions requires careful consideration of domestic policies and legal principles. Indeed, just as an economic regional agreement requires consideration of each country's financial situation, among others, sharing a Top Level Domain system requires the analysis of the states' public policies and legal principles. For instance, the European Union's Top Level Domain system, .eu, is subject to community regulations that appropriately address the concerns of the member states. This article provides information on public policy considerations incorporated in the .eu Top Level Domain system regulations, and an example of how these public policy considerations triumph individual's rights.

The European Union (EU) regulates the .eu Top Level Domain system (TLDS) through Regulation (EC) No. 733/2002 of the European Parliament and of the Council of April 22, 2002, and implementing Regulation No. 874/2004. Two articles of Regulation 733/2002 particularly address public policies regarding .eu TLDS.

Article 5 of Regulation 733/2002, a mandate to the Commission, states that the implementation of .eu TLDS must include public policy principles on registration. The following are the public policy considerations that this regulation requires,

"(a) an extra-judicial settlement of conflicts policy;

(b) public policy on speculative and abusive registration of domain names including the possibility of registrations of domain names in a phased manner to ensure appropriate temporary opportunities for the holders of prior rights recognized or established by national and/or Community law and for public bodies to register their names;

(d) issues of language and geographical concepts;

(e) treatment of intellectual property and other rights."

The use of geographical language and concepts is a sensitive issue when it comes to registration of domain names. For this reason, Regulation 733/2002 particularly addresses this concern. For instance, this regulation requires that member states notify to the Commission and other member states a limited list of broadly-recognized geographical and/or geopolitical names that affect their political or territorial organization. The list included names that may either "(a) not be registered, or (b) be registered only under a second level domain according to the public policy rules." Then, the Commission shall notify the Registry the list of notified names and publish the list.

Article 7 of Regulation No. 733/2002 introduces another public policy consideration. It states that the Community will retain all rights relating to the .eu TLDS. This includes intellectual property rights to the Registry databases and the right to re-designate the Registry. This is an extremely important public policy principle, fundamental to an orderly administration of the TLDS.

Regulation No. 874/2004 implemented Regulation 733/2002. The preamble to Regulation No. 874/2004 introduces a policy consideration when it states that the Commission is authorized to select domain names to be used by the institutions of the Community, and to designate the operator of those domain names. Also, the Registry is empowered to reserve some domain names for its operational functions. Lastly, the preamble states, member states are authorized to designate an operator that will register as a domain name the country's official name and the name under which it is commonly known.

In addition to this policy consideration in the Regulation's preamble, Regulation No. 874/2004 incorporates mandates that directly address domestic legal topics such as trademarks and copyrights, among others. Article 10(1) of Regulation No 874/2004 introduced an extremely important public policy principle for the .eu TLD States that "['H]olders of prior rights recognized or established by national and/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts."Prior rights" shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works."

The Commission, through Decision 2002/375/EC of May 21, 2003, designated the European Registry for Internet Domains (EURid) as the non-profit agency in charge of managing .eu TLDS. EURid is incorporated under the laws of Belgium. Galileo Lebensmittel GmbH & Co v. the Commission of the European Communities, 2009 ECJ EUR-Lex LEXIS 138, is an interesting case involving a EURid decision and the .eu TLDS regulations.

Galileo Lebensmittel GmbH & Co is a company that holds several trademarks, including the word mark Galileo registered with the German Patent and Trademark Office. Galileo applied to EURid for the registration of the domain name Galileo.eu. EURid denied the application because the Commission had reserved this domain name for its institutions and bodies, as authorized by Regulation No. 874/2004. Galileo then brought an action for annulment of the Commission's decision to reserve the domain name Galileo.eu for its institutions and bodies. The court of first instance denied Galileo's claim. Galileo appealed before European Court of Justice (ECJ). The ECJ confirmed the court of first instance and, after the analysis of several legal issues, held that "an individual to whom a Commission decision is not of direct and individual concern and whose interests are therefore unaffected by that measure cannot invoke the right to judicial protection in relation to that decision." In other words, the ECJ considered that Galileo was not entitled to judicial protection in regards to the Commission's decision to reserve Galileo.eu for its operations because that decision was not of direct or individual concern. Public policy and the Commission's rights to reserve domain names triumph the prior rights principle established by Regulation No. 874/2004.

Some Internet Service Cash Rebates May Be Disguised Loans

Martha L. Arias — Mon, 01 Feb 2010 20:54:00 GMT

Human creativity has no boundaries. This creativity, however, may be used for the good and the bad. A very peculiar business model was invented in the United States, and is potentially harmful to our society. This business consists in disguising small and extremely high interest loans by offering Internet services. A customer signs a contract in which she/he receives Internet service for one year and, at the time of signing this contract, that customer also receives a cash rebate of up to US$120. A customer can only open up to three "Internet service" accounts. By offering a rebate of $120 for an Internet service contract, this company is loaning small amounts with high interest rates; a clever way to go around usury and small loan laws.

Fast cash businesses are very popular in the United States (U.S.). They offer several small loan options such as payday advance loans, tax check advance, cash advance, among others. These traditional businesses, however, must comply with laws and regulations intended to protect consumers. Some of these laws are state usury and small loan/short term laws. Federal financing laws usually do not apply to these businesses because they are not federally insured, given the small amount and short term of the loans offered. Whether the federal government should regulate these businesses is the subject of debate in the U.S. Some groups strongly oppose fast cash businesses because, they claim, these businesses abuse the needy. Other groups support them because they provide a small relief to Americans who live paycheck-by-paycheck. Internet Service Providers (ISPs) are those companies providing Internet and e-mail services. Most ISPs require an annual contract and a monthly fee between $9.95 to 23.90 (not including telephone services). Rebates are corporate incentives to promote business products or services. Rebates come in various forms, checks, store coupons, cash-in, etc.

A clever entrepreneur incorporated a business to offer Internet services. Clients were to sign an annual Internet contract with bi-weekly payments of twenty dollars. By signing the Internet service contract, clients received a $120 cash rebate. If clients terminated the contract before the one-year expiration period, clients had to return the $120 cash rebate. Another similarly clever entrepreneur offered the same service with cash rebates up to $300. Obviously, to qualify for this robust rebate, the monthly "Internet service" cost more -around $60 per month. Is this business model legal?

The legality of cash rebate as the incentive for the signing of an Internet service contract depends on the specific facts and the state law at hand. In Dep't of Fin. Insts. v. Mega Net Servs., 833 N.E.2d 477 (Ind. 4th D. Ct. App. 2005), the Indiana Court of Appeals was to design two consolidated cases in which the trial court had denied preliminary injunction against two ISPs that offered cash rebates to their customers as stated above.

The Indiana court reversed the trial courts holding and remanded the case for further consideration. The Court of Appeals of Indiana held that the two so-called ISPs were providing disguised small loans in violation of Indiana Statute § 24-4.5-7-410, and that the ISPs' unlawful acts constituted irreparable harm enough to justify preliminary injunction. Title 24 of the Indiana Statute addresses Trade Regulations; Consumer Sales and Credit; article 4.5 is titled Uniform Consumer Credit Code; and chapter 7 regulates Small Loans. Section 410 establishes limitations on agreements and practices, which specifically states that "[A] lender making small loans, or an assignee of a small loan, shall not commit nor cause to be committed any of the following acts:

(a) Threatening to use or using the criminal process in any state to collect on a small loan.

(b) Threatening to take action against a borrower that is prohibited by this chapter.

(c) Making a misleading or deceptive statement regarding a small loan or a consequence of taking a small loan.

(d) Contracting for or collecting attorney's fees on small loans made under this chapter.

(e) Altering the date or any other information on a check or an authorization to debit the borrower's account held as security.

(f) Using a device or agreement that the department determines would have the effect of charging or collecting more fees, charges, or interest than allowed by this chapter, including, but not limited to:

(i) entering a different type of transaction with the borrower;

(ii) entering into a sales/leaseback arrangement;

(iii) catalog sales;

(iv) entering into transactions in which a customer receives a purported cash rebate that is advanced by someone offering Internet content services, or some other product or service, when the cash rebate does not represent a discount or an adjustment of the purchase price for the product or service; [emphasis added] or

(v) entering any other transaction with the borrower that is designed to evade the applicability of this chapter. [emphasis added]

(g) Engaging in unfair, deceptive, or fraudulent practices in the making or collecting of a small loan.

(h) Charging to cash a check representing the proceeds of a small loan.

(i) Except as otherwise provided in this chapter:

(i) accepting the proceeds of a new small loan as payment of an existing small loan provided by the same lender; or

(ii) renewing, refinancing, or consolidating a small loan with the proceeds of another small loan made by the same lender.

(j) Including any of the following provisions in a loan document:

(i) A hold harmless clause.

(ii) A confession of judgment clause.

(iii) A mandatory arbitration clause, unless the terms and conditions of the arbitration have been approved by the director of the department.

(iv) An assignment of or order for payment of wages or other compensation for services.

(v) A provision in which the borrower agrees not to assert a claim or defense arising out of contract.

(vi) A waiver of any provision of this chapter.

(k) Selling insurance of any kind in connection with the making or collecting of a small loan.

(l) Entering into a renewal with a borrower."

Literal (c) and (f)(iv) and (v) above clearly state that a cash rebate offered for the signing of an Internet service or any other contract is prohibited when the cash rebate does not represent a discount or an adjustment of the purchase price of the service or product, or when the rebate is used to disguise a small loan. In Mega Net Servs. the court found that the $120 or $300 cash rebate and the monthly Internet service fees did not represent a discount or adjustment of the service offered. Instead, it was indicative of a high interest loan. Indeed, customer who terminated the Internet service contract before the one-year expiration date were to refund the cash rebate plus any accrued bi-weekly installment. The court also considered the fact that one of the companies offering this service did not advertise their Internet service, but rather advertised their fast cash services. Also, the court was suspicious of the per-customer limitation to subscribe for Internet services and obtain the cash rebate. The Indiana court reasoned that a person could have several Internet service accounts and there was no reason to limit access to those Internet accounts. It seems, the court added, that the rebate was the essence of these businesses rather than the Internet service offered.

Well, there is always a creative mind behind a corporate structure ready to target the needy. These are precisely the type of businesses that do not create prosperity; instead, they suffocate the nation's labor force.

Is There a Constitutional Right to Send Unsolicited E-Mail Advertisement?

Martha L. Arias — Wed, 27 Jan 2010 23:19:00 GMT

The First Amendment to the United States Constitution and the states' Constitutions guaranty freedom of speech in the United States. Consequently, some private parties have argued that there is a constitutional right under the First Amendment to send unsolicited e-mail advertisement. If sending unsolicited e-mail advertisement is constitutionally protected, does a private party have legal standing to protect its right in court? This article provides a district court interpretation of whether there is a constitutional right to send unsolicited e-mail advertisement, and legal standing to defend those cases in the United States.

In Cyber Promotions v. America Online, 948 F. Supp. 436 (E.D. Pa. Dec. 26, 1996) the a Pennsylvania district court was to decide whether a private company that sent unsolicited e-mail advertisement could invoke First Amendment protection against a private hosting company that blocked that advertisement. The plaintiff, Cyber Promotions, was a corporation incorporated under the laws of Pennsylvania that provided online advertisement services. The defendant, American Online (AO), is a corporation incorporated in Delaware. AO is a private company with no public funding. AO charges its subscribers a monthly fee for Internet and e-mail services. E-mail services are offered through AO's server, which consists of computer hardware and software. AO, as private company, invests on the improvement and efficiency of its server. Cyber Promotions sent a great volume of unsolicited e-mail advertisement to AO subscribers, and AO blocked those e-mails. Cyber Promotions complained and claimed violation of its constitutional right of Freedom of Speech. The district court held that Cyber Promotions did not have a constitutional right, under the United States Constitution or the state constitution, to send unsolicited e-mail advertisement. Cyber Promotions sought reconsideration of this holding.

When reconsidering its holding, the Pennsylvania District Court for the Eastern District affirmed its previous decision. The court first analyzed, as it is required in any constitutional claim, whether AO was a public entity or had any government participation to support this cause of action. Cyber Promotions argued that by providing Internet services, AO became a "mixed private and public" corporation to support this constitutional claim. The court rejected this position. The court held that AO was a purely private entity and utilized no political powers or services. "The guarantees of free speech, under U.S. Const. amend. I, guard only against encroachment by the government and erect no shield against merely private conduct," the court held. The court reached this conclusion after applying the three test inquiries to determine whether AO was a state actor.

The district courts of Pennsylvania enunciated three tests to determine whether a defendant to a constitutional claim is a state actor. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995). The first test is called the exclusive public function test. "The inquiry under this test is whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state." The inquiry under the second test is whether "the private entity has acted with the help of or in concert with state officials." The third test inquiry is whether "the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity." The district court applied each of these inquiries to the case at hand and concluded that Pennsylvania was not a state actor.

To conclude, a private entity may have a constitutional right to advertise and publish. This is different, however, than a First Amendment right to send unsolicited e-mail advertisement. Likewise, private companies offering Internet and e-mail services also have the right to block unsolicited e-mails to their customers. Most Internet and e-mail services are provided by private companies with no government participation. Thus, there is no state action sufficient to trigger a constitutional claim.

Virtual Visitation

IBLS Editor — Mon, 25 Jan 2010 16:46:00 GMT

"Virtual visitation" is a way for divorced parents to communicate with their children via electronic means. In the United States, legislatures and courts are increasingly recognizing virtual visitation as a means for non-custodial parents to communicate with their children. Following, there is information about this modern concept. This article provides information on how the "virtual visitation" concept has been interpreted by state courts and what states have adopted legislation that incorporates this technological way of child-parent communication.

"Virtual visitation" is a way for divorced parents to communicate with their children via electronic means. State laws recognize various methods of virtual visitation, including personal video conference, Web cam, and video phone. Other methods include e-mail, chatting in a private chat room, instant messaging, and interactive game-playing between parent and child from remote computers.

Utah was the first state to codify the concept of virtual visitation. It defines "virtual parent-time" as visitation that is facilitated by tools such as telephone, e-mail, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media. These electronic methods of contact supplement in-person visits between a non-custodial parent and a child or between a child and the custodial parent when the child is staying with the non-custodial parent. Wisconsin has also adopted legislation in this area. The Wisconsin statute similarly considers the availability of electronic communication as a factor in determining custody and parenting time. On the other hand, Wisconsin''''''''s parental relocation statute specifically provides that a court may not use the availability of electronic communication as a reason to support the modification of a physical placement order or the refusal to prohibit a move. Virtual visitation legislation has now been introduced in Missouri, Ohio, Illinois, Virginia, and Florida. Bills also have been drafted in California, Georgia, Maine, Maryland, Minnesota, New York, North Carolina, Tennessee, Texas, and West Virginia.

Case law has also established virtual visitation in various jurisdictions. For instance, in McCoy v. McCoy, 764 A.2d 449 (NJ Super. Ct. App. Div.2001), the mother petitioned the court to allow her to relocate to California so that she could accept a permanent job with health benefits. She proposed a visitation schedule that would provide the father with the same number of total days with the child, but would group those days around the child"s school vacation schedule. She also proposed setting up a Website with streaming video that would allow the father and the child to see each other in real time over the Internet. The father opposed the move, arguing that it was not in the child''''''''s best interests and that it would damage his relationship with his child. The appellate court disagreed and allowed the mother to relocate. The court noted that whenever a custodial parent moves to a distant location, the ability of the non-custodial parent to exercise visitation is adversely affected. That fact alone, however, may not be contrary to the best interests of the child if an alternate visitation schedule continues and preserves the relationship between the child and the non-custodial parent. The court deemed the mother''''''''s suggested use of the Internet to enhance visitation as creative and innovative. A key factor in the McCoy case was that the non-custodial father would have the same or greater number of total days with the child. The Internet merely supplemented visitation.

In Arriaga v. Gambardella, No. FA990431585S, (Conn. Super. Ct. Aug. 6, 2002), a Connecticut court ordered the parties to explore the use of the Internet for virtual visitation or online conferencing. Each party was responsible for its own expenses in purchasing a computer and related hardware and software, as well as obtaining and maintaining Internet access. In Hernandez-Mora v. Jex, No. 001-WY-100g-CB (D. Colo. July 12, 2001), the child and father lived in Spain while the mother remained in the U.S. The father was required to provide an appropriate computer and service plan for the mother that maintained necessary service upgrades and a DSL line (or greater quality bandwidth) for two years, and to create and maintain a Website with the child''''''''s schedules, activities, pictures, and information. Additionally, the father was required to ensure that the child''''''''s and mother''''''''s privacy were protected.

Commentators have expressed concern that, instead of merely supplementing personal contact, virtual visitation will eventually be used to limit it. For example, in a 2002 Massachusetts case, Cleri v. Cleri, (Mass. Probate & Family Court, No. 01D-0009-D1, 2002), the trial judge awarded the ex-wife custody of her three small children and gave her permission to move the children to New York. While the husband was granted two weekend visits a month, he also would have virtual visitation on Tuesdays and Thursdays from 6 to 7 p.m. The judge ruled that computer conferences are inexpensive and would allow the ex-husband to read to his children and help with their homework. Critics have claimed, however, that the court was substituting virtual time for real time, to the detriment of the father.

The Utah and Wisconsin legislation specifically provide that virtual visitation is in addition to, not instead of, personal contact. Legislation is needed simply to make judges aware of their options. Virtual visitation is not a justification for the relocation of the custodial parent, but it is a factor the court can consider when determining how the parent-child relationship will be affected by custodial parent relocation, allowing the parent and child to communicate on a more regular basis.

Case law indicates that courts generally support virtual visitation as a supplementary means of communication, normally, the relocating parent bears the expense and responsibility for providing the physical capacities for virtual visitation.

With the increasing use of virtual visitation, legislatures and courts are providing for electronic means of communication between non-custodial parents and children. The key proviso is that virtual visitation may not replace actual visits or serve as grounds for awarding custody.

Brazil Sugar Mills

Jerry — Sat, 23 Jan 2010 17:50:00 GMT

Legal Issue:

I need the addresses of sugar mills in Brazil. Can someone assist.
==========Company: nb marketing company
First Name: zaheer
Last Name: dilawar
Phone:
Email: nbmarketingcompany@gmail.com
Phone: 00923224211115
Address: 31 M2 Eden tower gulberg 2 lahore
City: lahore
Country: Pakistan
==========================================

================================

Who Is Liable for Taxes and Duties?

Jerry — Wed, 20 Jan 2010 20:52:00 GMT

Legal Issue:

I'm looking to import direct to buyers into the uk and Ireland via a china dropshipper. Am I liable for the taxes and duties or is the buyer liable?? First Name: Chris
Last Name: Walsh
Phone:
Email: Walsh.chris.j@gmail.com
Phone: 833 514 256
Address: Santry
City: Dublin
Country: Israel
==========================================

E-Mails & Privacy under the U.S. Patriot Act

Martha L. Arias — Wed, 20 Jan 2010 04:39:00 GMT

The Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, § 201, 100 Stat. 1848, codified as amended at 18 U.S.C.S. §§ 2701-2711, regulates the access, use, disclosure, interception and privacy protection of electronic communications. ECPA defines electronic communications as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce." Thus, according to this definition, e-mails are electronic communications under ECPA. ECPA was introduced by the precepts of the U.S. Patriot Act and as many other concepts introduced by the Patriot Act, it contains questionable surveillance measures. This article, for instance, presents a case involving the U.S. government surveillance of e-mails, as authorized by ECPA, and the court's decision on the plaintiff's violation of privacy claim.

Compelled-disclosure of electronic communications under ECPA provides different levels of privacy protection depending on how long an e-mail is held in electronic storage with an electronic communication service or remote computing service. 18 U.S.C.S § 2703(a) authorizes the federal government to order the disclosure of e-mails that are in electronic storage with an electronic communication service for 180 days or less only pursuant to a warrant order. Hence, 18 U.S.C.S. § 2703(d) authorizes the federal government to request internet service providers (ISPs) to disclose the content of their customers' electronic communications in certain cases. Requests under this ECPA section may be processed by way of ex parte court order. As a result, U.S. groups that defend privacy rights have criticized this particular ECPA section despite the requirement that these requests are limited to certain cases. E-mails in electronic storage for over 180 days may be ordered disclosed by (1) a warrant order; (2) an administrative subpoena; or (3) an ex parte court order under §2703(d).

Compelled-disclosure of electronic communications, therefore, requires knowing the exact definition of the following three terms: "Electronic communication services" are those that allow users to send or receive wire or electronic communications. 18 U.S.C.S. § 2510(15). This definition, therefore, covers basic e-mail services. "Electronic storage" is a temporary storage of a wire or electronic communication for purposes of backup. 18 U.S.C.S. § 2510(17). "Remote computing services" are those that provide long-term computer storage or processing services to customers. 18 U.S.C.S. § 2711(2).

IN Warshak v. United States, 532 F.3d 521 (Ct. App. 6th Cir. 2008), the U.S. was conducting an investigation of Warshak's company to determine if he had committed bank and mail fraud and money laundering, and obtained an ex parte court order compelling an ISP to disclose the content of Warshak's e-mails. Warshak only knew about this ex parte order one year later after the federal government had spied on his e-mails. Warshak filed a declaratory judgment action seeking to invalidate § 2703(d) under the Fourth Amendment to the United States Constitution. Warshak also sought a preliminary injunction seeking to enjoin the federal government from using § 2703(d) to review the content of any personal e-mail account belonging to Warshak or any resident of the Southern District of Ohio. The district court enjoined the government from using §2703(d) to seize the content of Warshak's e-mails without providing him with an opportunity to be heard. The government appealed.

The court of appeals vacated the district court's preliminary injunction, and remanded the case with instructions to dismiss the constitutional claim. The court of appeals held that the case was not ripe for review. The court held that "[L]ike standing, ripeness is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction. The ripeness doctrine serves to avoid premature adjudication of legal questions and to prevent courts from entangling themselves in abstract debates that may turn out differently in different settings. In ascertaining whether a claim is ripe for judicial resolution, the United States Court of Appeals for the Sixth Circuit asks two basic questions: (1) Is the claim fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass; and (2) what is the hardship to the parties of withholding court consideration?"

The court in Warshak abstained from getting into muddy waters, and we may expect any court of appeals will follow this posture. No U.S. judge may want to hold that the Patriot Act and §2703(d) violate the United States Constitution. This is definitely a matter left to Congress and too political and sensitive for any court. Meanwhile, we can easily say that there is not expectation of privacy on any e-mail content when it comes to a federal crime investigation.

Ten New Global Trends 2010

IBLS Editor — Mon, 18 Jan 2010 17:11:00 GMT

Miniaturization
Every business process will go through intense compression and digitalization so when it comes out on the other side of the tunnel, it will have already considerably reduced its operational costs. This will enable the process to function effectively, more powerfully, and be highly replicatable, with a lower cost structure like a proverbial silver bullet. Will this now shrink entire office floors into cubicles, and cubicles into little icons on websites? Who would need to come to the offices anyway; managers, to put their feet on desks, water cooler crowds, elevator pitch experts or just the office cleaners? Is this the reason commercial office space is about to fall off the cliff? Both big and small businesses will be shrinking to survive, with increasing competitive pressure the requirement is to become the silver bullet. Are you running a bullet speed operation or lost in the office maze?

Lateralization
The realignment of both the cerebral hemispheres is also urgently required with the next automobile tune-up. Many exhausted and stressed out individuals throughout the world have suffered tremendously over the last few years, intensifying with the economic collapse. This raises serious question about the functionalities of senior executives, their basic business logic, financial literacy and the right-left-brain balance. Why did the business systems and financial services fail so badly? Despite all the high level education, was their vision got blurred, or capital risk management was insufficient so the real world imploded. Was it the lack of lateralization which fogged the reality? Is it time to re-discover new types and styles of educational agendas, new methods and new formats of operation? A new wave of educational programs will sweep the executive corridors. Are you newly trained and outfitted as a gladiator or you are just an old time spectator?

Trillionization
Once society becomes immune to the trivialization of the trillionization of nations'' debts it will become a real comfort pillow for the public consciousness to sleep on. After a year of struggle, over confidence about a $1 million net profit may sound like an embarrassingly minute accomplishment when pleading for plant expansion funds to a banker, whose tight fisted policies, despite receiving a $100 billion bailout, still do not solve your business issues. The overly casual use of the word trillion, as an ordinary measurement of the rising deficit, with each hiccup is going to diminish our respect and regard to the daily challenges
of life, dealing in only a few millions of dollars. Is this the reason why nobody is any longer impressed by how much money you have made during this great recession? New methodologies and new types of presentation collateral will be required to pitch for any serious business game plan. Do you have the new tools to present your business plan or would you prefer the sign language?

Infotoxication
If the information is more toxic than the toxic assets themselves what is the point of believing anybody? Just stay intoxicated; forget joining AA. The truth is being morphed into twisted sugar candy by the day to keep the masses high while credibility gaps are getting wider by the hour. Is there really a person or a body on this planet that the global masses would blindly believe? Is there a government, a department, a corporation, an NGO, a global body, a credit reporting agency, a polling service or a bank? What happened? Was it a meteor hit, or just a daisy-cutter type memory loss? Why trustworthiness simply disappeared and why was credibility just wiped out? Is this the reason for the lowest rating when any head of state goes for national public broadcasts? Is this the reason that newspapers and TV are becoming irrelevant and disappearing? Creating solid credibility will be the biggest challenge for both the public and private sectors in this new decade. Do they trust you with their life or with empty bottles?

Googlelization
If society is already overly dependent on Google without a quick early morning hand shake, the day simply doesn''t start. The sun does not come out and the moon stays stuck behind the clouds. The entire global search-centric culture is based on Googling to put life in perspective, determine the importance of anything, news, personalities, money matters, buying or selling of any idea. The new product and services from the mother ship Google will keep us even more comfortably tangled in a kind of great and free service till we all get overly cozy, almost dazed and habitually responding to our stimuli. What Google did in the last ten years took others a century to even approach. Today, Google can be credited with a
trillion dollar savings in time costs, by having information in seconds available to the global public. It is hard to imagine a life on this planet without it. Become a Google expert and find all the possible options to build your expansion strategies around its access and services. Ignore the sobbing in other media and advertising as they have run out of batteries. The introduction of new ideas, ranging from phone and gadgets to insurance and banking services, will create amazing shock waves and exciting opportunities to feel the global pulse in real time. Are you being Googled and if not do it yourself?

Domainization
If several key languages other than Roman alphabets are allowed, it will make the internet really global. It will be a dynamic adjustment, colorful and yet at times extremely confusing, so what should brand name holders do? Scream foul in other languages; buy dictionaries, or simply go exploring on world trips? A name is the most important and critical component of any serious business today. If a name is not worthy of protection as it is already diluted and confusing, then it could surely become a nightmare very soon. Only well balanced and protected name holders will really be allowed to play the superior games on new platforms of TLD now offered by ICANN. A serious business without a solid global name is like a dull joke in search of laughter. Global understanding of domain name management and naming architecture skills will be where all the battles of social-media-searching and customer acquisition will be headed. Is your name identity a shiny star or a dull object?

Ghettoization
Is social media in reality becoming an anti-social-media, as Joe-Social has little or no real relationship with Jane-Public, except as a spectator cheering at dull events. Is it creating its own social-ghettos, where micro-gatherings are only blocking crowd-gathering? Will this fad mould into another form of personal personification like an old phone directory but with pictures and some quirky messages? If advanced
level personal data was manipulated to determine the next action to plant a selling proposition, would it not eliminate all the old selling procedures? Can you imagine this as a new online CyberHeaven or will it be CyberHell? Is it time to buy stock in delivery vans? New processes will seriously replace old style location and large inventory-based retail industry thinking, along with the traditional advertising? Are you in social-media-heaven or anti-social-purgatory?

Cybernetization
Once all the processes are electronic, digitized, portable and in cyberspace, then what is the point of a regimented 9-to-5 Monday to Friday working society? Free at last! If everyone was working and thinking while connected to some large portal spread out on a global range, what would it do to corporate structure, hierarchies, protocols and decorum? Would society cope with such an open ended free flow of work? Will it change habits and daily routines? Will you find more people in libraries, cinemas, malls or restaurants? Will they just stay home and watch 3DHDTV and get more depressed about repeated ''socio-politico-economico-climatico-damaged-news''? Will the home craft industry boom and autos stay in the garage? Will back yards turn into small grow-op farms, and will groceries stores be quieter? Are you already undressed to be hard-wired?

Frugalization
While ''shop till you drop dead'' created the greatest recession, then ''save till you drop'' will keep you there forever. Was it the failure of capitalism and liberal economic policies without regulation that resulted in ''beg, borrow and steal, shop at high interest plastic and boost Dow at 15000''? It will surely take all the income to finance these shopping bills. The capitalist free enterprise system seems broken. Communism and socialism is also not the answer. The society all over the world is getting a free crash course on economy, and what they are going to derive is that saving is perhaps the only way. Wealth is created by actual work and not by spending. Is it possible that the USA may end up with a Japan-like decade? The intense frugality at the main street will spread and linger all over. Are you saving or spending enough or do you have a printing press too?

Globalization
If globalization is the only way to go forward despite all the nationalism, what will the new world would look like? Will it eventually create select alliances and free trades? Will it create blocks, or just battles in a sandbox? The search for best markets, best labor and minimum regulation is where the private corporate
jets would be parked. The talk of nationalism would primarily feed the textual lines to the tele-prompters all over the world, but the real protectionism will not work well for most of the nations. The internationalism of business is already way out of the bag and this is where all the cutting edge skills are required. Multiple countries, languages and cultures will all dance to one tune in the same boardroom. New global standards will drive marketing, naming and image management. Are you basically local, somewhat ''glocal'' or truly internationalist?

END

Naseem Javed is widely recognized as a world-authority on building corporate image and creating global name identities. www.abcnamebank.com Toronto - New York

Only Live Broadcasts Qualify for Statutory Damages on Unregistered Foreign Works

Martha L. Arias — Wed, 13 Jan 2010 17:45:00 GMT

Video sharing Websites such as YouTube, which at inception revolutionized the music industry, have also challenged copyright litigation. Although international organizations have been proactive in conveying homogeneous copyright principles through international agreements such as the Berne Convention, the Trade-Related Aspects of Intellectual Property Rights (TRIPs), WIPO Copyright Treaty, and other major international agreements, practical domestic litigation issues may arise when a party files a claim for copyright infringement. For instance, recovery of damages from copyright infringement varies because each country''s domestic legislation may contain dissimilar rules. This article provides an example of how in the United States (U.S.) statutory damages are not afforded to unregistered foreign works despite the Berne Convention, to which the U.S. is signatory.

The Viacom Int''l Inc. v. YouTube Inc., 253 F.R.D. 256, 2008 U.S. Dist. LEXIS 50614 (S.D.N.Y., 2008) was the leading case that for the first time presented the question of whether unregistered foreign works published in YouTube in violation of copyright laws merit statutory damages under U.S. copyright legislation. The Viacom case involved several legal issues not to be addressed in this article, but its subsequent history cited as Football Ass''n Premier League Ltd. v. YouTube, Inc., 633 F. Supp. 2d 159 (S.D.N.Y. 2009) is what deserves special attention. In Football Premier, the court was to decide whether publication of unregistered foreign works (sport videos) in YouTube merit statutory claims under 17 U.S.C.S. § 412.

17 U.S.C.S. § 412 prohibits recovery of statutory damages for each and every work unless the work was registered (a) before the infringement commenced or (b) within three months after its first publication. Both, domestic and foreign works must be registered to be eligible for statutory damages in the U.S. An exception to the registration rule for live broadcasts is found in 17 U.S.C.S § 411(c), which states that "a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies [of, among other things, statutory damages], if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner. . . . (1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work. . . ."

The plaintiff in this case claimed that YouTube violated copyright laws when it allowed the upload of defendants" copyrighted videos in YouTube Website and claimed statutory damages under § 412. Defendants had not registered these works in the U.S. Plaintiff argued that although the foreign works were not registered in the U.S., denial of statutory damages to defendants was a violation of the Berne Convention and TRIPs.

The court held that in the U.S. a party can bring copyright infringement claims for unregistered foreign works under the Berne Convention, but cannot recover statutory damages in the U.S. The court supported this holding on the Congressional intent and discussions when ratifying the Berne Convention. The Berne Convention states that the "exercise of copyrights shall not be subject to any formality." The United States Congress analyzed whether registration of copyrighted works constituted a formality within the meaning of the Convention. The Judiciary Committee concluded that the registration requirement under 17 U.S.C. § 411(a) did violate the Berne Convention, but the House of Representatives disagreed. The problem was solved by exempting foreign Berne Convention works from the registration requirements, but leaving the requirement intact for U.S. and other works. See 134 Cong. Rec. H10091, at H10093, H10096 (daily ed. Oct. 12, 1988). Thus, foreign works do not need to register to file copyright claims in the U.S., but if they do, parties qualify for statutory damages.

Regarding violation of TRIPs, the court held that U.S. domestic laws shall prevail over TRIPs mandates. The United States Congress expressly mandated in 19 U.S.C.S § 3512(a)(1) that "[N]o provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect." Therefore, 17 U.S.C.S. § 411(a) that requires registration of domestic and foreign works and 17 U.S.C.S. § 412 prohibiting statutory damages to unregistered foreign works prevail over TRIPs copyright principles.

The U.S. is one of few countries that require registration of copyright works in regards to the recovery of statutory damages. It is evident that the U.S. laws on statutory damages do not violated the Berne Convention because aggravated parties still may file their infringement claims and recover other damages. Yet, Congress found the way to maintain its legal tradition of requiring registration despite international commitments; after all, that is what sovereignty is all about.

Online Store License Requirements?

Jerry — Tue, 12 Jan 2010 17:31:00 GMT

Legal Issue:

Hi I'm a student and i'm doing a research on B2c LAWS. In Iran, there is a law that forces those that want to build an online store to give a License. In fact,thay have to refer to Ministry of Commerce and give this license that authorised them to build an online store. I want to know, is there any law or legal license in U.S.A or other countries for making retailers on the web reliable? thank you, Regards, lomer.

First Name: Mozhan
Last Name: Lomer
Phone:
Email: mozhan_213@yahoo.com
Phone: 0098-21-66903390
Address: no 24-sindokht st
City: tehran
Country: Iran

Where Are Taxes Paid?

Jerry — Mon, 11 Jan 2010 18:51:00 GMT

Legal Issue:

Hello, I am Croatian and I would like to establish an international company. Buy products in Japan, the United States, China and selling them in the U.S.. I will then use drop shipping in the USA, drop shipping companies that sent the products to different world markets, mainly U.S. Where do I pay taxes, in the U.S. or in country where I established an offshore company?
First Name: Aleksandar
Last Name: Stojic
Phone:
Email: aleksandar.stojic@gmail.com
Phone: 00385997384400
Address: Andrije hebranga 28
City: Karlovac
Country: Croatia
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The European Union’s Work Strategies and Practical Measures against Cybercrime

Martha L. Arias — Mon, 11 Jan 2010 03:38:00 GMT

The steady increase of cybercrime with transnational implications concerns the European Union member states. For this reason, the European Council concerted some work strategies and practical measures against cybercrime in November 2008. These strategies and measures seek join action by member states in the sphere of police and judicial co-operation against cybercrime, in an effort to combat transnational organized crime and computer crimes in the European Union. This article briefs the European Council''s Work Strategies and Practical Measures against cybercrime adopted in November 2008.

The European Council stated that "the development of a comprehensive programme against cybercrime appears to be the most appropriate working method at Union level if we are to find solutions to all the issues which arise on the subject, or which are likely to arise in the near future, and to monitor their implementation." Thus, in 2008, the European Council adopted work strategies and practical measures against cybercrime, taking into consideration principles of the European Convention on Cybercrime.

Work Strategies & Measures

1. The purpose of adopting these strategies and measures was to effectively combat the multiple crimes committed by means of electronic networks. The Council was mainly concerned with child pornography and other forms of sexual violence; terrorism, as defined by Decision 2002/475/ JAI of June 13, 2002; threats and large scale attacks to electronic networks; and other traditional Internet crimes such as "identity fraud, identity theft, fraudulent sales, financial offenses, illicit trading on the Internet, particularly narcotics and arms dealing."

2. The Council considered that an effective response to cybercrime is obtained by adopting three basic measures: (a) strengthening of partnership between the public and the private sector to detect and prevent criminal activities, (b) improving knowledge and training among authorities involved in the fight against cybercrime in Europe; particularly, setting up a network of Head of police against cybercrime, and (c) reinforcing technical and international co-operation with countries that most actively deal with cybercrime.

3. Therefore, the Council invited the member states and the European Commission to introduce technological measures to combat cybercrime. Some of these measures were considered short term such as setting up a platform to report criminal acts committed on the Internet, drafting a co-operation agreement between law enforcement agencies and private operators, describing what is identity fraud on the Internet, in compliance with domestic laws, setting up national frameworks and best practices regarding cyberpatrols, which are the modern tools against Internet crime, enabling data exchange at an European scale and according to domestic laws, resorting to join investigation and enquiry teams, and finding solutions to electronic roaming and the anonymity of prepaid telecommunication products. Medium term measures proposed included exchanging mechanism available to block or close down child pornography sites in the member states, facilitating remote searches under national laws and enabling investigators to have rapid access to information under the acquiescence of the host country, and providing temporary definitions of offenses, categories and statistical indicators to encourage collection of comparable data regarding cybercrime.

Practical Measures between Law Enforcement Authorities and the Private Sector

1. Law enforcement authorities and the private sectors should be encouraged to engage in operational and strategic information exchange to identify emerging forms of cybercrime. Also, law enforcement authorities should constantly inform service providers about cybercrime trends. The private sector and law enforcement authorities should assist each other with education, training and other support services.

2. Member states should create a standard system of information exchange between law enforcement authorities and the private sector.

3. Member states should adopt a standard request form from law enforcement. As a minimum, requests from law enforcement should be in writing, in electronic format, and contain the following information: reference number, reference to legal basis, the specific data requested, time zone, and information to verify the source of the request.

4. The law enforcement and private sector should agree on a system for prioritization of law enforcement requests.

5. Law enforcement and the private sector should design their co-operation taking into consideration the costs involved in creating and responding to requests.

As of January 2010, some of these measures were fully implement in the European Union. For instance, the telecommunication roaming issue was resolved in 2009. A system of data exchange between member states was also implemented. These advances are a good indicator that the European Union will soon accomplish a unified enforcement system against cybercrime.

Basis for Libel and Defamation?

Jerry — Thu, 07 Jan 2010 17:14:00 GMT

Legal Issue:

Someone published my photo and company website on a website for real estate fraud in Panama - we have no affiliation with these projects - how do we demand removal and/or do we have grounds for a lawsuit for libel and defamation?

Company: PanaManagement
First Name: Juliette
Last Name: Passer
Phone:
Email: jpasser@prodigy.net
Phone: 2125413909
Address: 445 APrk Ave
City: NY
Country: United States

Internet Censorship in South Korea

IBLS Editor — Wed, 06 Jan 2010 21:45:00 GMT

In 2001, the South Korea''s Ministry of Information and Communication passed the controversial Internet Content Filtering Ordinance, which highly regulates the country''s Internet content. The Ordinance requires, among others, that Internet Service Providers block access to Websites on a government compiled list, that the Internet be accessible to the youth, that public libraries and schools install filtering software, and that an Internet content-rating system be introduced. New rules introducing further restrictions are also expected although not yet enacted.

South Korea is the most Internet connected country in the world. As of 2005 more than 89 percent of South Korean households had Internet access, with 75 percent of these households using broadband. South Koreans are connected to the most advanced national network infrastructure in the world.

In 2001, the South Korea''s Ministry of Information and Communication promulgated the controversial Internet Content Filtering Ordinance. In addition, new rules are expected, which will set down relatively rigid provisions requiring news Websites to comply with the same restrictions as newspapers, TV, and radio. These rules require forum and chatroom users to make verifiable real-name registrations. In addition, internet companies would have to make their search algorithms public to improve transparency. The new rules are also expected to grant the Commission wide powers to suspend the publication of an article deemed fraudulent or slanderous, for a minimum of 30 days. During this period, the Korean Communications Standards Commission may decide either to reinstate or to permanently remove the article.

The Korean Internet Safety Commission (KISCOM), formerly the ICEC, is responsible for overseeing the ''Internet Content Rating Service." This service allows Websites to evaluate themselves on the danger they present to minors. The Ministry of Information and Communications formally enacted an Internet content rating system implementing the ICEC''s rating criteria. The ICEC released its ‘Criteria for Indecent Internet Sites'' on April 24, 2001, which classified information concerning homosexuality in the category of ‘obscenity and perversion.'' Its filtering system reportedly blocked access to a number of gay and *** Websites. This position has since been reversed. KISCOM is also responsible for a compulsory filtering system to determine which sites will be blocked.

The Korean Internet Safety Commission (KISCOM), formerly the Information and Communications Ethics Committee (ICEC), is an independent body established in 1995 under the Telecommunications Business Act to formulate a code of communications ethics and to inform state policy aimed at ‘eradicating subversive communications and promoting active and healthy information.'' Although nominally an independent body, commentators argue that it appears to reflect government policy.

The 2001 Ordinance classified homosexual Internet content as ‘harmful and obscene.'' The Ministry of Information and Communications ordered a large South Korean Website devoted to issues of homosexuality to classify itself as harmful and to block minors from accessing the site; failure to comply ran the risk of fine and imprisonment. Homosexual rights advocates challenged the order in court as an illegal restriction on free speech. Although the court ultimately ruled in favor of the ICEC, it questioned the constitutionality of classifying homosexual content as harmful to minors.

According to reports, in 2001 the South Korean government reportedly required its ISPs to block as many as 120,000 sites on an official list. While the precise number of sites that were in fact blocked is not clear testing conducted at the end of 2006 by the OpenNet Initiative indicated that Internet filtering in South Korea is not as extensive as reports have suggested.

South Korea''s controversial Internet Content Filtering Ordinance regulates the country''s Internet content. It mandates the blocking of access to Web sites on a government-compiled list and requires that Internet access facilities accessible to youth install filtering software. New rules introducing further restrictions are also expected.

How to Obtain Refund?

Jerry — Wed, 06 Jan 2010 17:16:00 GMT

Legal Issue:

I have been robbed of my money by eleckingdom.com and the only reason I thought they were real was because the International organization of consumers union of china backed up their legitimacy. I woul like to know how I can get my money back of 209 USD, if possible and if not, at least shut down their illegal operation they have made available to the US people.
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First Name: Raul
Last Name: Garcia

Email: r.garci24@att.net
Phone: 3238961508
Address: brighton ave
City: los angeles
Country: United States

Automation of Copyright Infringement Notices by ISP

Jerry — Tue, 05 Jan 2010 17:16:00 GMT

We as an ISP also receive lots of notices about copyright infringement. We process all these messages, trace down the users and send them warning notices according to our company policy. Because we receive a lot of notices, it takes a lot of time to manually process all notices, so we are looking to automating the processing of notices. As you are a medium that tries to stop copyright infringement, do you know how other other ISP's deal with copyright infringement? I mean in following the 3 step procedure: processing notices, tracing down users and sending them warning notices, disabling access of repeated infringers. Do you know if there anything in automating this process? Can you provide me with some contacts of other ISP's that act against copyright infringement, so I can share ideas with them to make our own process more efficient and effective?

Company: TLS

First Name: Chandra
Last Name: Rampadarath
Phone:
Email: chandra.rampadarath@telesur.sr
Phone: + 597 8879482
Address: Hogerhuystraat
City: Paramaribo

Who Knew-IBLS the Christmas Gift!!!

Jerry — Tue, 05 Jan 2010 00:37:00 GMT

Guess what I got from my sister for Christmas???? The lady she works for was talking to me when I was out there about going into internet law, they are starting up some site and are running into all kinds of issues and she thinks internet law is the up and coming thing. So......my sister called last week and said, "I got you the coolest gift for Christmas, it will really help you learn about internet law and I'm really excited to give it to you." So..........I opened up the box and on the outside she had taken pictures of internet law books, etc and laminated them and put them all over the box. When I opened the box, she had taken the home page of the site and laminated it to show me where to go to get my subscription........and........the site was ibls.com!!!

My sister is your new sales person! She is so excited about all the info on your site, she wants me to print out the 30 articles I get and give them to her too. She thinks your business will soon be very successful!..........of course it will :)

RYAN HAIGHT ONLINE PHARMACY CONSUMER PROTECTION ACT OF 2008

IBLS Editor — Mon, 04 Jan 2010 02:34:00 GMT

On October 15, 2008, President George W. Bush signed the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. The purpose of the Act is to regulate rogue online pharmacies and their sale of drugs, particularly to youngsters.

On September 30, 2008, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which amended the Controlled Substances Act, won final approval from both houses of Congress. On October 15, President Bush signed it into law. The legislation is a response to the heightened concern regarding the ease of purchasing controlled drugs over the Internet without a legitimate prescription, particularly by high school students.

The Act, which came into force in April 2009, prohibits United States online pharmacies from supplying controlled substances to anyone without a valid prescription. The Act also requires that the medical doctor writing the prescription personally sees the patient at least once.

For a prescription to be valid, it must have been issued for a legitimate medical purpose in the usual course of professional practice after at least one face-to-face medical evaluation of the patient. A "covering practitioner" may also issue a prescription if the practitioner who has conducted the in-person physical exam is temporarily unavailable.

The Act imposes stringent registration requirements on those pharmacies dispensing controlled substances online. Such pharmacies must be registered by each state in which they operate or sell controlled substances and must modify their existing Drug Enforcement Administration (DEA) registrations to include the authority to dispense controlled substances on the Internet. It is expected that the latter requirement will enable the DEA to scrutinize each application to determine whether a rogue Internet site is involved in the operation.

On their Web sites, online pharmacies must identify their location and list the states in which they are authorized to sell medicines.

The law also increases maximum sentences for the illegal sale of certain drugs (Schedules III, IV and V) and enhanced penalties in cases where death or serious bodily injury has resulted.

The Act also empowers the Attorney General of each state to bring a civil action in a federal district court, following notice to the U.S. Attorney General, to enjoin the actions of any Internet pharmacy allegedly violating the law. These powers allow the state Attorney General to collect damages and other compensation, including civil penalties, where the actions have threatened or have adversely affected a state resident.

The Act is named after Ryan Haight, an outstanding high school student and star tennis player from Laguna Beach, CA. In February 2001, Haight died of an accidental overdose of Vicodin, Valium and morphine. A doctor had prescribed him these drugs over the Internet, and a pharmacist had filled the prescription online. The 18-year-old had never met either of them personally.

The Act specifically exempts telemedicine practitioners who are licensed by the state in which the patient resides, when the patient is being treated by, and physically located in, a registered hospital or clinic, and where the practitioner is acting in the usual course the profession and in accordance with state practice.

The National Center on Addiction and Substance Abuse at Columbia University (CASA) has been documenting the rise of Internet pharmacies since 2004. In its July 2008 report, CASA identified 159 sites offering prescription medications for sale. Of these, only 2 were certified by the National Association of Boards of Pharmacy as legitimate Internet pharmacy sites.

Conclusion:
The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 was signed into law in October 2008. This legislation arguably attempts to strike a balance between ensuring that consumers can purchase needed and prescribed medication online and protecting others, particularly teenagers and young adults, from purchasing controlled substances over the Internet

Domain Name Basics

Martha L. Arias — Wed, 23 Dec 2009 22:35:00 GMT

We all surf the Web and use available Internet features. Yet, few folks really know what a domain name entails and where to resort when problems arise. This article provides information about the basics of domain names and an increasingly common problem called domain name cyber piracy.

Domain names are addresses that help identify a person, corporation, or government agency and, for this purpose, interact with an Internet Protocol (IP) address. Each domain name is assigned a numerical address; although users actually see alphabetical addresses. The Internet Corporation for Assigned Names and Numbers (ICANN) is the organization that manages the global domain name system (DNS). ICANN is a non-profit organization commissioned by the United States (U.S.) Department of Commerce. Other international organizations assist ICANN. Some of these organizations are the Internet Society, which establish technical standards; the International Ad Hoc Committee (IAHC), which help with the administration of top-level domain names; the Internet Assigned Numbers Authority (IANA), which maintain the administrative tables for Internet services; the Network Information Center (InterNIC), responsible for the registration of domain names; Network Solutions, Inc (NSI), which process domain name applications. The Global DNS is simply an international directory of domain names and IP addresses that mostly control Internet e-mail services.

A domain name has two elements: (1) a top-level domain (TLD) designation. This designation may be generic (gTLD) and country code (ccTLD); and (2) a second-level domain. This is a secondary identifier for the Internet address. There are specific authorized gTLDs; they are divided in two categories: restricted and unrestricted. The restricted gTLDs require proof of specific qualifications; they are the following

.edu - for four-year degree granting colleges and universities;

.gov - for the United States federal agencies;

.int - for international organizations;

.mil - for the military of the United States.

The unrestricted gTLDs are open to the public in general; they are the following,

.aero - for airline groups

.biz - for businesses or firms

.cat - for sites related to Catalan language and culture

.com - for commercial entities

.coop - for business cooperatives

.jobs - for employment sites

.info - for information services companies

.mobi - for mobile device sites

.museum - for museums

.name - for personal web sites

.net - for gateways and Internet administrative hosts

.org - for non-for-profit organizations.

.pro - for professionals

.tel - for internet communications

.travel - for travel related businesses

Country code TLD (ccTLD) is the code used by countries other than the U.S. Each country may administer its ccTLD. They may use the unrestricted gTLD and add the country code after the gTLD.

Domain name cyber piracy is an increasing problem being addressed by those engaged in the management of domain names. Cyber piracy is the bad faith use of a trademark or a public figure name when registering a domain name. Although the general rule regarding registration of domain names is first-come-first served, international and United States laws prohibit bad faith registration of domain names when individuals are seeking a profit from the trademark owner or the public figure. Those trying to prevent others from the use of their trademark or public name in domain names must prove bad faith to success in their claim. Usually, bad faith is proven when the registrant of the domain name request payment to return the domain name to the trademark holder or public figure. The U.S. enacted the Anticybersquatting Consumer Protection Act (ACPA) to protect trademark holder and others from bad faith registration of domain names. ACPA amended the Lanham Act (the U.S. trademark law) and expressly states that “(a) person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses a domain name that-- (1) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (2) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or (iii) is a trademark, word, or name protected by reason of § 706 of Title 18, or § 220506 of Title 36.”

A trademark holder may seek transfer of its domain name in court proceedings -in rem action. The domain name registrar, domain name registry, or domain name authority cannot transfer, suspend or modify the domain name without a court order. Also, ICANN adopted the Uniform Dispute Resolution Policy (UDRP) in 1999. This is an agreement entered into by ICANN-certified registrars that requires submission of any dispute to arbitration. The arbitration process starts by filing a complaint with an approved dispute resolution service provider. The approved dispute resolution service providers are (1) the WIPO Arbitration and Mediation Center (Geneva); the National (2) the National Arbitration Forum (Minneapolis); (3) the eResolution/Disputes org Consortium (Amherst, Massachusetts and Montreal, Canada); and (4) the CPR Institute for Dispute Resolution (New York). These providers may adjudicate disputes involving gTLDs.

E-Commerce Career Opportunities?

Jerry — Tue, 22 Dec 2009 22:56:00 GMT

I currently hold a Bachelor's of Science Degree in Computer Information Systems, and Executive MBA, along with 20+ years work experience. However, I'm considering an Executive JD Degree from Kaplan University / Concord Law School. I will complete this degree during the year 2012. Upon earning the JD, with a specialty in any of the following areas: e-commerce and Internet themes like intellectual property , digital signatures, consumer protection, e-public procurement, cybercrime, privacy and security, e-banking, e-payments, online buys and sells, among others; what career opportunities can you foresee over the next 5-7 years, given my IT, business, and legal backgrounds. Also, what are the industry leading companies and or Federal Agencies I should focus on for possible consulting / employment opportunities? Thanks for the insight!
==========================================

First Name: Roy
Last Name: Hodge
Phone:
Email: rhodge@rehsystems.com
Phone: 419-514-1600
Address: 8762 Orchard Lake Road
City: Holland
Country: United States

China’s Latest Labor Contract Law

Martha L. Arias — Mon, 21 Dec 2009 04:13:00 GMT

Entrepreneurs worldwide are closely following the development of China’s labor contract laws. These laws definitely impact both foreign investors in China and those acquiring products made in China. China’s latest modification to its labor contract law was approved in 2007 and became effective on January 01, 2008. Employers must follow this new law in regards to employees hired on or after January 01, 2008. This article provides a synopsis of China’s 2007 labor contract law modification.

One of the most important modifications introduced by China’s labor contract law 2007 is the need of a written contract for each employee hired on or after January 2008. Employers were not required to execute new contracts for existing employees. Employers, however, were required to comply with the rules introduced by this 2007 legislation. There are three types of labor contracts under this new law: fixed duration, non-fixed duration, and project duration contracts. A written contract must be executed on the first day of the job, or no later than one month from the employee first day on the job. If the employer does not execute a written contract within one month from the employee first day on the job, but less than one year, the employers must pay that employee double the salary for each month the employee was working without a written contract. If the employer fails to execute a written contract for more than one year after the employee first day on the job, the contract will automatically be deemed a non-fixed labor contract. If the labor contract is signed prior to the start of the employment, the contract is deemed to commence the first day of the job.

China’s 2007 labor contract law considered invalid the following contracts: (1) when employee’s consent is obtained through threats or duress; (2) when their provisions violate other laws and regulations; and (3) when the employee’s rights through negotiation are eliminated. These contracts include those that include employee’s renunciation of severance or any other statutory benefit. Another important modification of China’s 2007 labor contract law is the modification of probationary periods. No probationary period is allowed for labor contracts less than three months or specific projects. Contracts for more than three months or one-year fixed term will have a probationary period of no more than one month. Contracts of one-to-three years fixed duration may have a probationary period of no more than two months. Contracts for more than three years or non-fixed duration contracts may have a probationary period of no more than six months.

China’s 2007 labor contract law introduced the severance benefits for employees. The amount of severance is one month salary for each year of employment, up to twelve years. Employees working for over six months but less than one year will receive one month salary as severance. The severance of employees working less than six months will be calculated in the amount of half of a month salary. Employers are to pay severance in the following cases (1) when the employer terminates the labor contract for cause (employee’s incompetence or change of job circumstances); (2) when the employee terminates the contract for legal reasons (failure to obtain payment, employer’s violations, etc); (3) lay-offs due to bankruptcy laws; (4) employer-employee termination agreement; (5) when the employer terminates a fixed-term contract at its expiration date (some exceptions apply); (6) when the employer closes its business, goes bankrupt, dissolves, or is ordered to close; and (7) other situations stipulated by law.

The central effect of imposing employers to execute written contracts is the protection of China’s employees. Fixed term contracts were abolished and firing employees became costly for China’s employers. Fixed term contracts, for instance, now require payment of severance at the end of the contract; a payment not required under previous labor law. Thus, let’s wait and see if products made in China will continue to be as price-competitive as they are now. It seems that China has entered a new labor law era that protects employees, but also creates additional financial responsibilities for employers.

Personal Identifiable Information Collected by Cable Companies Providing Internet Services

Martha L. Arias — Thu, 17 Dec 2009 04:11:00 GMT

Privacy is a significant issue for Internet users, and how such privacy is protected when cable companies provide Internet services is also a user's concern. Phone companies have been traditionally providing Broadband Internet services and applicable regulations well address the issue of how these providers should protect users' privacy. It is not clear, however, if cable companies providing Internet services are subject to regulations that protect users' privacy when those companies collect users' personal identifiable information. This article presents an example of an Internet cable subscriber who alleges violation of privacy by the cable operator.

In the case of Klimas v. Comcast Cable Communs., Inc., 465 F.3d 271, the Court of Appeals for the Sixth Circuit decided whether a cable operator violated 47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 when collecting personal identifiable information concerning subscribers. The district court dismissed plaintiff's claim. Plaintiff subscriber appealed, and the appeal was dismissed.

47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 provides that: "(1) Except as provided in paragraph (2), a cable operator shall not use the cable system to collect personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.

(2) A cable operator may use the cable system to collect such information in order to (A) Obtain information necessary to render a cable service or other service provided by the cable operator to the subscriber; or (B) Detect unauthorized reception of cable communications."

The statute does not define "personal identifiable information" except in the negative. 47 U.S.C.A. § 551(a) (2) (A) says that the term "does not include any record of aggregate data which does not identify particular persons."

Plaintiff filed a class action against defendant cable company for violation of 47 U.S.C.S § 551(b) of the Cable Communication Act of 1984 (Cable Act). Plaintiff claimed that Comcast violated the Cable Act by collecting personal identifiable information concerning subscribers. Concretely, plaintiff claimed that Comcast collected users' Internet protocol (IP) addresses and their linkage to universal resource locators (URLs). Plaintiff affirmed that Comcast collected "personally identifiable information sent to and from its Internet subscribers, including their Web surfing habits, where they visited, information they provided at Web sites and the like." In other words, plaintiff claimed that Comcast collected information leading to the identity of its subscriber and to their Web surfing habits.

Comcast moved to dismiss, and the district court granted it. The district court assumed that an IP address is always dynamic and held that "a dynamic IP address cannot constitute [personally identifiable information]" because "[d]ynamic IP addresses constantly change and unless an IP address is correlated to some other information, such as Comcast's log of IP addresses assigned to its subscribers . . ., it does not identify any single subscriber by itself." This means that according to this district court, an IP address does not provide specific information about the subscriber.

Plaintiff appealed. The court of appeals dismissed the appeal, but based on different grounds. The court of appeals held that because the plaintiff alleged that Comcast collected personal identifiable information by means of a system through which it provided Internet service, instead of cable service, the complaint did not state a claim under 47 U.S.C.S § 551(b) of the Cable Act. The court held that a cable service does not include broadband Internet service even when provided by a cable operator. The court was reluctant to apply the Cable Act to Internet services, even if those services are rendered by cable companies. Therefore, according to this Sixth Circuit Court ruling, 47 U.S.C.A. § 551(a) (2) (A) of the Cable Act does not apply to broadband Internet services.

In this case, the court of appeals recognized that the Federal Communications Commission (FCC) has abstained from deciding the issue of whether Internet services are telecommunication services regulated by the Cable Act or any other telecommunication act. Indeed, the FCC supports the argument that Internet services are "informative services" and no telecommunication services.

Payment Problems with www.mallmic.com?

Jerry — Wed, 16 Dec 2009 17:42:00 GMT

Legal Issue:

I pay with Western Union for an order made to www.mallmic.com and now, after confirming to me receipt of the money, they are asking for more money(price increase of product??), even more, lately, they are not answering my emails? Is there anybody to help?

Company: Vitreus Casa
First Name: Sasa
Last Name: Predovic
Phone:
Email: sasa.predovic@zg.t-com.hr
Phone: +38598366007
Address: Vrhovec 128
City: Zagreb
Country: Croatia
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Physicians' Online Consultations in Missouri: a Sufficient Examination is Required

Martha L. Arias — Mon, 14 Dec 2009 11:25:00 GMT

Consulting a physician over the Internet might not have been feasible a couple of years back. Technology and innovative business models, however, currently allow the offering of services that years ago required the real-time presence of the parties. For instance, people can now consult a physician over the Internet. Hence, the regulatory compliance of these professional consultations is still under development. A physician consultation that involves prescription of controlled medicines is serious business, and state governments and regulatory boards will most likely enact rules to regulate this professional practice and protect the patients and society in general. This article presents an interesting case involving the online prescription of medicines in Missouri.

In the case of Thompson v. State Bd. of Registration for the Healing Arts, 244 S.W.3d 180 (Ct. App. Missouri 2007), the court of Appeals of Missouri was to decide whether a physician who prescribed medicines through an online consultation that did not involve sufficient examination, just a review of an online form, violated Mo. Rev. Stat. § 334.100.2(4)(h). This statute prohibited the prescription of controlled substance medicines without sufficient examination.

A physician licensed by the state of Missouri provided consulting and prescribing services to the owners of a website called www.ePrescribe.com. Users would fill out an online consultation form so that the physician could evaluate it and prescribe medicines if necessary. In 2000, when this occurred, Missouri had no regulations concerning physician who prescribed medicines online. The Board of Registration for the Healing Arts (the Board) filed a complaint against this physician before the Administrative Hearing Commission (AHC) seeking to discipline the physician. The Board presented evidence about the risks of prescribing Meridia without sufficient examination. As a result, the physician was sanctioned.

An undercover agent posing as a patient paid an online medical consultation with ePrescribe.com. The undercover agent filled out the consultation form and provided the information required. The physician prescribed Meridia, a controlled weight loss medication. The undercover agent sought a second online consultation posing as another patient and he was also prescribed the controlled medicine. The controlled medicine prescribed was delivered from Missouri to another state.

The Board in its complaint claimed that the physician violated Mo. Rev. Stat. § 334.100.2(4)(h) and AHC disciplined the physician for prescribing a controlled substance without sufficient medical examination in violation of this Missouri Statute. AHC also disciplined the physician for prescribing medications outside the manufacturer’s recommendations and for conduct that might be harmful or dangerous to the public health or for incompetency. The disciplinary action consisted of a public reprimand to the physician’s license and a prohibition from prescribing medicines over the Internet. The physician sought legal review. The circuit court confirmed the AHC’s disciplinary action. The physician appealed and the court of appeals confirmed the circuit court’s decision.

The court held that the physician was not sanctioned for prescribing medicine over the Internet. Instead, the court held, the physician was sanctioned for prescribing controlled medicines without sufficient examination as the Missouri statute required. The court held that the online consultation filled out by users did not constitute sufficient examination for a doctor to prescribe controlled medicines.

The unregulated prescription of controlled substances by doctors is under scrutiny in the U.S. after the death of renowned figures such as Michael Jackson and Anna Nicole Smith. The online prescription of medicines is still regulated by state and regulatory bodies through existing legislation and rules. Yet, specific rules are to be enacted to control this practice that although convenient for the public, it may be misused or abused.