The Endgame

And an ugly precedent in the exercise of the power of the Executive is set: Telecoms Win Dismissal of Wiretap Suits (pdf)

A federal judge on Wednesday threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

Chief Judge Vaughn R. Walker of Federal District Court in Northern California said that although consumer and privacy groups raised important constitutional issues in their claims, Congress had left no doubt about its “unequivocal intention” when it passed a measure last summer giving immunity to phone carriers in the wiretapping program.

The ruling: In Re: National Security Agency Telecommunications Records Litigation. It points out that the options remaining to try to regain integrity in the system depend upon a few cases yet pending:

The two categories of cases not targeted for dismissal in the United States’ instant motion to dismiss are those brought against governmental entities (Al-Haramain Islamic Foundation, Inc v Bush, No C 07-0109; Center for Constitutional Rights v Bush, No C 07-1115; Guzzi v Bush, No C 06-6225; Shubert v Bush, No C 07-0693) and those brought by the United States against state attorneys general (United States v Clayton, C 07-01242; United States v Palermino, C 07-01326; United States v Farber, C 07-01324; United States v Reishus, C 07-01323; United States v Volz, C0 7-01396; Clayton v ATT, C 07-01187). The latter six actions by the United States against states are the subject of a separate motion for summary judgment brought under section 803 of FISAAA, 50 USC § 1885b (Doc #536) and a separate order by the court.

[…] The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. […]

We’ll see. But, don’t forget that this President specifically came off the campaign trail to vote on this immunity bill in the Senate, and he voted in favor — not to mention his continuation of the previous Administration’s policies when it comes to domestic telecommunications surveillance, so we can bet that there will continue to be nightmares to come.

Just consider: while one might imagine that the telecommunications companies “won” in this case, it’s now the case that these companies are vassals of the US Government. They no longer have recourse when told to break the law by the Government — they are no longer able to act on their clients’ behalf because they can no longer claim that the Government is asking them to shoulder a liability risk that violates their contracts with their customers and their fiduciary responsibility to their shareholders — anyone raising that objection will simply be told that the Government will immunize them. Which makes the closing portion of the New York Times’ article particularly ironic:

“We are gratified by the court’s decision,” said Michael Balmoris, a spokesman for AT&T, “and we look forward to continuing our focus on serving our customers’ needs.”


I have no desire to join the “tinfoil hat brigade,” but the expansion of executive power under this new Administration doesn’t look like much of a “change” to me at all. After all, there’s S.1100 — “Detainee Photographic Records Protection Act of 2009” —

A bill to provide that certain photographic records relating to the treatment of any individual engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside the United States shall not be subject to disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act)

To get a sense of just how miraculous it is that Al-Haramain is still being litigated at all, you might want to see this earlier post as well as the related New Yorker article (pdf).


It boggles the mind, the things that one can claim to “own” — not to mention the notion that there are bureaucracies that are willing to offer up this kind of “property” to claimants: San Francisco Journal – A Quack Sets Off a Legal Squabble in San Francisco (pdf)

But if a new duck in town, if you will, has its way, Mr. Scannell’s quacking days could be over. Last month, a rival company, Ride the Ducks, filed suit in Federal District Court here to stop Bay Quackers from using quacking devices on its tours.

At issue is a “sound mark,” the auditory equivalent of a trademark, which Ride the Ducks says it holds on a quack created by a yellow bill-shaped kazoo (called a Wacky Quacker) and which it says Bay Quackers has violated by using a similar kazoo that creates an identical quack.

“If you blew theirs and ours, you wouldn’t hear any difference,” said Bob Salmon, vice president of marketing and sales for Ride the Ducks, whose company has been using its kazoo for more than a decade. “It’s a very important part of our product. We’re very interactive with people on the street, and the way that we interact is using our Wacky Quackers.”

[…] “We don’t have a problem with competition, even direct competition,” Mr. Salmon said. “But we have a problem with them infringing on our trademark.”

The “sound mark” serial number is #75686528 (registration number #2484276); filed April 14, 1999, registered September 4, 2001. (You can look it up on the USPTO.GOV website) The description of the mark is as follows:

The mark consists of a quacking noise made by tour guides and tour participants by use of duck call devices throughout various portions of the tours.

Something To Worry About

The Know Privacy project site (via the Bits Blog)

From the Executive Summary of their report:

Online privacy and behavioral profiling are of growing concern among both consumers and government officials. In this report, we examine both the data handling practices of popular websites and the concerns of consumers in an effort to identify problematic practices. We conclude by offering potential solutions to realign privacy practices with consumers‘ expectations.

Here’s Hoping

Justices to Weigh Patenting of Business Methods (pdf)

The Supreme Court agreed on Monday to decide what sorts of business methods might be patented, an issue with the potential to reshape significant parts of the economy.

“This is the most important patent case in 50 years, in particular because there is so much damage and so much good the court could do,” said John F. Duffy, a law professor at George Washington University who submitted a brief in the appeals court in support of neither side.

“The newest areas of technology are most threatened by the issues at stake here,” Professor Duffy said. “The court taking this is likely to make a lot of people nervous, including software manufacturers and biotechnology companies.”

In October, the United States Court of Appeals for the Federal Circuit in Washington significantly narrowed the processes eligible for patent protection, ruling that only those “tied to a particular machine or apparatus” or transforming “a particular article into a different state or thing” qualified. (local copy)

Judge Mayer’s dissent is particularly worthy of a read.