Felten on Warshak v US

Email Protected by 4th Amendment, Court Says

The key to the Court’s ruling is an analogy, offered by the amici, between email and phone calls. The phone company has the ability to listen to your calls, but courts ruled long ago that there is a reasonable expectation of privacy in the content of phone calls, so that the government cannot eavesdrop on the content of calls without a warrant. The Court accepted that email is like a phone call, for privacy purposes at least, and the ruling essentially followed from this analogy.

This is not a general ruling that warrants are required to access electronic records held by third parties. The Court’s reasoning depended on the particular attributes of email, and even on the way these particular ISPs handled email. If the ISP’s employees regularly looked at customer email in the ordinary course of business, or if there was a written agreement giving the ISP broad latitude to look at email, the Court might have found differently. Warshak had a reasonable expectation of privacy in his email, but you might not.

The opinion: Warshak v USA. It is useful to note, for those of us who are concerned about privacy, that while the court seems to have made a certain leap by asserting that email is somewhat like phone calls, it still relies upon the notion that the programs that scan email (or other digital content) are not really intruding upon privacy — probably assuming that they are not yet sophisticated to do anything more than flag emails for human examination. In light of the government’s warrentless surveillance programs, this may be a poor assumption:

The government also insists that ISPs regularly screen users’ e-mails for viruses, spam, and child pornography. Even assuming that this is true, however, such a process does not waive an expectation of privacy in the content of e-mails sent through the ISP, for the same reasons that the terms of service are insufficient to waive privacy expectations. The government states that ISPs “are developing technology that will enable them to scan user images” for child pornography and viruses. The government’s statement that this process involves “technology,” rather than manual, human review, suggests that it involves a computer searching for particular terms, types of images, or similar indicia of wrongdoing that would not disclose the content of the e-mail to any person at the ISP or elsewhere, aside from the recipient. But the reasonable expectation of privacy of an e-mail user goes to the content of the e-mail message. The fact that a computer scans millions of e-mails for signs of pornography or a virus does not invade an individual’s content-based privacy interest in the e-mails and has little bearing on his expectation of privacy in the content. In fact, these screening processes are analogous to the post office screening packages for evidence of drugs or explosives, which does not expose the content of written documents enclosed in the packages. The fact that such screening occurs as a general matter does not diminish the well-established reasonable expectation of privacy that users of the mail maintain in the packages they send.

The EFF’s Archive

More on Google’s Public Policy Push

Learning From Microsoft’s Error, Google Builds a Lobbying Enginepdf

When it comes to lobbying, Google does not intend to repeat the mistake that its rival Microsoft made a decade ago.

[…] Google credits Microsoft’s missteps in the 1990s with helping it see the wisdom of setting up shop in Washington in a big way and using the many tools available in the capital, such as lobbying and lawyering, to get its way on major policy matters.

“The entire tech industry has learned from Microsoft,” said Alan B. Davidson, head of Google’s Washington office. “Washington and its policy debates are important. We can’t ignore them.”

Two years ago, Google was on the verge of making that Microsoft-like error. Davidson, then a 37-year-old former deputy director of the Center for Democracy & Technology, was the search-engine company’s sole staff lobbyist in Washington. As recently as last year, Google co-founder Sergey Brin had trouble getting meetings with members of Congress.

To change that, Google went on a hiring spree and now has 12 lobbyists and lobbying-related professionals on staff here — more than double the size of the standard corporate lobbying office — and is continuing to add people.

*Shock* — Ceding Control Leads To Profits?

Giving the customer a value proposition? Who’d a thunk it! Embracing Change, TV Networks Find Stronger Demand for Ads

The willingness of the big broadcast television networks to embrace change — by making it easier to watch shows online and by adopting new types of ratings — is contributing to stronger demand for commercial time ahead of the fall season.

[…] “The reality of the consumer marketplace is that people are watching television differently, and everyone has to face that fact,” said Tim Spengler, chief activation officer at Initiative in New York, a leading media agency owned by the Interpublic Group of Companies.

Major advertisers are signaling that they are willing to accept rate increases for commercials to be broadcast during the 2007-8 season, which begins in September. As a result, the total amount of money they are agreeing to spend in the upfront market may grow for the first time in three years.

For example, PBS’s ‘Exposé’ Is to Appear Online Before Being Broadcast

Executives at WNET, which produces the series in association with the Center for Investigative Reporting in Berkeley, Calif., said they were not concerned that the online audience would cannibalize on-air viewing more than incrementally.

“So far the limited amount of research tells us that won’t happen,” said Stephen Segaller, WNET’s director of news and public affairs programming, and the executive in charge of “Exposé.”

[…] While some series, like “Frontline,” have put all their content online, public television has been slow to move to online streaming because of budget constraints and complicated ownership and rights issues. But starting in July, WNET also plans to make its newsmagazine “Wide Angle” available online for the first time, concurrent with the broadcast schedule.

Oh, What A Tangled Web

Playing games with pharmaceutical patents: Court Upholds Plavix Patent

The ruling, while an important development for the brand-name manufacturers, was bittersweet. Bristol-Myers and Sanofi-Aventis, which is based in Paris, had been so intent on settling the patent litigation with Apotex before trial last year that they negotiated away the right to collect the triple damages that are generally allowed when companies violate patents held by competitors.

[…] The judge’s ruling yesterday closed another chapter in an unusual story that began in the summer of 2006 when federal agents searched Bristol-Myers’s headquarters in Manhattan. The search followed accusations that the companies had entered into a secret side deal to thwart a regulatory review of the proposed patent settlement.

Under an unrelated consent decree, Bristol-Myers had been bound to disclose the details of any such patent settlement deals to the Federal Trade Commission. Last week, it pleaded guilty to making false statements in connection with the attempted Plavix settlement, and agreed to pay a fine of $1 million.

A Modest Proposal

Or a radical rethinking of the business model — should Yahoo! outsource its search function to Google? After Shake-Up, What Now for Yahoo?

Short of a merger or an outright sale, few moves would seem more drastic than outsourcing the search business to Google and reassigning its people and dollars to projects like reinvigorating the Yahoo portal, buying hot start-ups and taking other initiatives that would differentiate Yahoo from the Internet search leader.

As radical as these ideas may seem, they have been contemplated by people in and outside Yahoo for a long time. And although Yahoo said it had no plans to get out of the Internet search business, the idea has again become fodder for debate.

[…] Competing with Google in search is costly, and there are no guarantees that Yahoo will ever match Google’s ever-improving algorithms.

Even it if it succeeds in narrowing the gap somewhat, Yahoo could make more money by simply outsourcing search to Google.

[…] A Yahoo executive who agreed to speak only on condition of anonymity said that ceding the search business to Google was not an option being considered now.

But that could change, the executive said, adding: “The Panama effort is actually really working. The question is whether the slope of the improvement is such that we’ll catch up, or get close enough. My guess is that the executive team is going to give it six or nine months and see if we are there, and if not, they’ll ask the question again.”

Another possibility: Murdoch Talking With Yahoo About Swap for MySpacepdf

News Corp.’s Rupert Murdoch has been discussing a deal to swap his MySpace social-networking site with Yahoo for a one-quarter stake in the Internet-portal company, even as he pursues his $5 billion offer for Dow Jones.

The talks with Yahoo are preliminary and began before chief executive Terry S. Semel resigned Monday, said a source familiar with the situation who spoke on condition of anonymity because the discussion is ongoing. It is unclear whether the talks will move forward under Semel’s successor, Jerry Yang.