TLJ News from April 16-20, 2011

DOJ to Allow CPTN to Acquire Novell Patents Subject to Conditions

4/20. The Department of Justice's (DOJ) Antitrust Division issued a release announcing that it will allow CPTN Holdings LLC's acquisition of patents and patent applications from Novell, Inc. to proceed, subject to certain conditions.

CPTN is a consortium created by Microsoft, Oracle, Apple and EMC for the purpose of acquiring the Novell patents.

The DOJ stated that "as originally proposed, the deal would jeopardize the ability of open source software, such as Linux, to continue to innovate and compete in the development and distribution of server, desktop, and mobile operating systems, middleware, and virtualization products." The DOJ continued that CPTN and its owners have "altered their original agreements to address the department's antitrust concerns".

In particular, "Microsoft will sell back to Attachmate all of the Novell patents that Microsoft would have otherwise acquired, but will continue to receive a license for the use of those patents, the patents acquired by the other three participants and any patents retained by Novell", "EMC will not acquire 33 Novell patents and patent applications that have been identified as related to virtualization software", "All of the Novell patents will be acquired subject to the GNU General Public License, Version 2, ... and the Open Invention Network (OIN) License, a significant license for the Linux System", and "CPTN does not have the right to limit which of the patents, if any, are available under the OIN license". With these and other changes, the DOJ will allow the transaction to proceed.

Representatives Write FCC Re Motorola Dominance in Public Safety Market

4/20. Rep. Fred Upton (R-MI), Rep. Henry Waxman (D-CA), Rep. Greg Walden (R-OR), and Rep. Anna Eshoo (D-CA) sent at letter to Federal Communications Commission (FCC) Chairman Julius Genachowski regarding the public safety equipment and device market, in which Motorola is the dominant vendor.

They stated their concerns that "public safety equipment is often more expensive than comparable commercial equipment, and that interoperability is undermined", and that "certain public safety jurisdictions that have received, or have applied for, waivers for early deployments of 700 MHz broadband networks have already awarded contracts" to Motorola.

The letter propounds numerous interrogatories, and requests the production of documents. They request a "list of waiver recipients and applicants that have already selected a vendor, and identify the vendor", and ask "whether these jurisdictions followed a competitive bidding process in the selection of the vendor that is to construct the broadband public safety network".

The letter also asks whether these vendors are supplying "equipment that conforms with open, commercial LTE standards", and whether, and how, they are implementing "proprietary broadband wireless technologies".

The letter requests a response by May 5.

The letter is signed by the Chairmen and ranking Democrats of the House Commerce Committee (HCC) and its Subcommittee on Communications and Technology.

Sen. Franken Writes Steve Jobs Regarding Location Data Retention by iPhone and 3G iPads

4/20. Sen. Al Franken (D-MN) sent a letter to Steve Jobs, Chairman of Apple, regarding a feature of Apple's iOS 4 operating system that stores, unencrypted, users' location data.

Sen. Al FrankenSen. Franken (at right) wrote that Apple's software is "secretly compiling its customers' location data in a file stored on iPhones, 3G iPads, and every computer that users used to ``sync´´ their devices."

Sen. Franken also referenced a piece by Alasdair Allan and Pete Warden titled "Got an iPhone or 3G iPad? Apple is recording your moves", published on April 20, 2011.

"The existence of this information -- stored in an unencrypted format -- raises serious privacy concerns", wrote Sen. Franken. "Anyone who gains access to this single file could likely determine the location of a user's home, the businesses he frequents, the doctors he visits, the schools his children attend, and the trips he has taken -- over the past months or even a year."

Moreover, he said, "third parties could gain access to this file". He suggested that "malicious persons may create viruses to access this data", and that "this information could be abused by criminals and bad actors".

Sen. Franken then propounded numerous interrogatories to be answered by Jobs.

See, full story.

Michigan Police Use CelleBrite Devices to Extract Data from Cell Phones

4/20. The American Civil Liberties Union (ACLU) wrote in a short piece on April 20, 2011, that "Michigan State Police (MSP) may be using portable devices to secretly extract personal information such as text messages, photos, video, and GPS data from cell phones during routine stops."

On April 13, the ACLU of Michigan published a piece on its efforts to obtain information from the MSP. It wrote that "For nearly three years, the ACLU has repeatedly asked for this information through dozens of Freedom of Information Act requests, but to date it has not been provided."

The ACLU of Michigan added that "According to CelleBrite, the manufacturer of at least some of the devices acquired by MSP, the product can extract a wide variety of data from cellphones including contacts, text messages, deleted text messages, call history, pictures, audio and video recordings, phone details including the phone number and complete memory file dumps on some handsets."

CelleBrite states in its web site that "Cellebrite's UFED is in use at military, law enforcement, and government agencies across the world."

It adds that its product named "UFED Physical Pro" can "extract deleted mobile device data, user passwords, file system dumps, and physical extraction from GPS devices."

CelleBrite's manual for the UFED Physical Pro states that it supports the iPhone operating system.

See also, April 13 letter from the ACLU of Michigan to the MSP.

Update on Abidor v. DHS

4/20. On September 7, 2010, Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL), and the National Press Photographers Association (NPPA) filed a complaint [37 pages in PDF] in the U.S. District Court (EDNY) against Janet Napolitano and others alleging violation of 1st and 4th Amendments of the U.S. Constitution in connection with the Department of Homeland Security (DHS) practice of searching, copying and detaining electronic devices at international borders without reasonable suspicion.

The ACLU is counsel for plaintiffs. See, story titled "ACLU Sues DHS Over Suspicionless Searches of Electronic Devices at Borders" in TLJ Daily E-Mail Alert No. 2,129, September 9, 2010.

Abidor v. DHS involves government warantless extraction of data from cell phones and other mobile devices. However, the legal analysis applicable to customs searches is different from the analysis applicable to other government searches of mobile devices.

For example, in 2006 the U.S. Court of Appeals (9thCir) issued its opinion [PDF] in USA v. Romm, 455 F.3d 990, holding that a border or international airport seizure and search of a laptop computer, including search of internet caches, forensic analysis, and recovery of deleted files, is permissible, without consent, a warrant, probable cause, or any reason to believe that contraband is being brought into the U.S.

That case is USA v. Stuart Romm, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-10648, an appeal from the U.S. District Court for the District of Nevada, D.C. No. CR-04-00216-PMP(PAL). See also, story titled "9th Circuit Holds Government Can Conduct Warrantless Random Searches of Laptops of Persons Entering US at Airports" in TLJ Daily E-Mail Alert No. 1,417, July 25, 2006.

Similarly, the 9th Circuit held its 2008 opinion [13 pages in PDF] in USA v. Arnold, 533 F.3d 1003, that a CBP search of an air traveler's laptop without suspicion was permissible, and porn pictures found on that laptop could be introduced as evidence in a subsequent criminal prosecution for porn possession. The Court held that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border".

That case is USA v. Michael Timothy Arnold, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-50581, an appeal from the U.S. District Court for the Central District of California, D.C. No. CR-05-00772-DDP. See also, story titled "Summary of Cases Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.

On January 28, 2011, the DHS moved to dismiss in Abidor v. DHS. The DHS argued that the plaintiffs lack standing because they have not suffered injury.

The DHS also argued, relying upon Arnold and other cases, and that neither the search of Abidor's computer, nor the DHS policy of conducting warrantless suspicionless searches, violate either the 1st or 4th amendments. See, DHS memorandum [35 pages in PDF] in support of motion.

On March 9, 2011, the ACLU filed its opposition [45 pages in PDF] to the motion to dismiss.

On March 30, 2011, the DHS filed its reply brief [22 pages in PDF], arguing that the plaintiffs have shown no reason why the Court should depart from Arnold and other precedent.

This case is Pascal Abidor, et al. v. Janet Napolitano, Alan Bersin and John Morton, U.S. District Court for the Eastern District of New York, D.C. No. 1:10-cv-04059-ERK.

Copps Names Mark Stone His Chief of Staff

4/19. FCC Commissioner Michael Copps named Mark Stone to be his Chief of Staff and Senior Policy Advisor. See, FCC release.

Stone will replace John Giusti, who will become Head of Spectrum for the GSM Association (GSMA), a trade association for mobile service providers that use the Groupe Special Mobile or Global System for Mobile (GSM) communications standard.

Stone has worked at the Federal Communications Commission (FCC) since 1994. He is currently Deputy Chief of the FCC's Consumer and Governmental Affairs Bureau. Recently, he has worked on FCC regulation in the context of disability access, and FCC regulation of service providers' billing practices.

Margaret McCarthy remains Copps' Policy Advisor for Broadband, Wireline and Universal Service, and Joshua Cinelli remains as Copps' Media Advisor. See also, Copps' staff web page.

People and Appointments

4/19. AT&T hired former Rep. Billy Tauzin (R-LA) to lobby for approval of the AT&T T-Mobile USA transaction. Tauzin is a former Chairman of the House Commerce Committee (HCC), and its Subcommittee on Telecommunications.

More News

4/19. Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its proposed rules changes to "provide reporting of uses of sound recordings performed by means of digital audio transmissions pursuant to statutory license for the period April 1, 2004, through December 1, 2009". The deadline to submit comments is May 19, 2011. See, Federal Register, April 19, 2011, Vol. 76, No. 75, at Pages 21833-21835.

Supreme Court Hears Oral Argument in Microsoft v. i4i

4/18. The Supreme Court heard oral argument in Microsoft v. i4i, a patent case involving the standard of proof that must be met by a party seeking to a judgment of invalidity. See, full story.

More News

4/18. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-76-2 [61 pages in PDF] titled "Biometric Data Specification for Personal Identity Verification". Comments are due by June 6, 2011.

Go to News from April 11-15, 2011.