|FTC Brings and Settles COPPA Action Against
Mobile App Developer
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,
The COPPA, which is codified at
§§ 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
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.
|ACLU Sues School District Over Internet
8/15. A collection of gay and lesbian groups, represented by the American
Civil Liberties Union (ACLU), filed a
the U.S. District Court (WDMo)
against a public school system Missouri alleging violation of
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
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.
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
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.
|9th Circuit Addresses Probable Cause to
Search Home Computers
8/16. The U.S. Court of Appeals (9thCir) issued
[14 pages in PDF] in Dougherty v. City of Covina, a claim against a
political subdivision of a state, under
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."
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.
|This issue contains the following items:
• FTC Brings and Settles COPPA Action Against Mobile App Developer
• ACLU Sues School District Over Internet Filtering Software
• 9th Circuit Addresses Probable Cause to Search Home Computers
• More News
New items are highlighted in
|Tuesday, August 16
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.
|Wednesday, August 17
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,
|Thursday, August 18
TIME? The American Bar
Association (ABA) will host a webcast panel discussion titled "LinkedIn for
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,
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.
|Friday, August 19
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,
|Monday, August 22
10:00 AM - 12:00 NOON. The Department of State's (DOS)
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
reconsideration on June 8, 2011. The Coalition of Concerned Utilities also filed a
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.
|Tuesday, August 23
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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