PayPal becomes the latest company to ban class action suits

PayPal becomes the latest company to ban class action suits

Your computer is hacked. Can you legally counter-hack the hackers?

A vigorous debate on the answer (and deep disagreement) in a series of posts at The Volokh Conspiracy. Short answer: likely not under present (somewhat uncertain) United States law (including the Computer Fraud and Abuse Act).

1st post in the series (Stewart Baker) here.
2nd post (Stewart Baker).
3rd post (Orin Kerr).
4th post (Stewart Baker).
5th post (Orin Kerr).
6th post (Stewart Baker).
7th post (Orin Kerr).

The punch line is that ‘sophisticated’ investors may be the best marks. They want to believe the snake-oil claim of secret money-making formulas known only to the uber-elite … . Madoff appealed to the desire of those with money to believe that secret formulas can advance them from merely well-off to rich … . There are no secret investing formulas. Or if there were, Goldman Sachs would not share them. If there really were mysterious known-only-to-a-few money management techniques that ensure outsized returns without risk, Goldman Sachs would use these techniques to obtain vast wealth on its own, and not bother with clients. Madoff would have done the same — if his secret investing formula was real, why did he need clients? That Madoff or Goldman seeks fees from clients is, itself, proof the boys in pinstripes don’t have any super-advanced insight into financial markets.
Gregg Easterbrook in his TMQ Commentary at ESPN.

Five years ago, the iPhone revolutionized the mobile business and kicked off a seismic shift in the technology industry that continues today. But the massive success of Apple’s phone has overshadowed the grim reality of an American wireless marketplace that has become increasingly hostile to innovation — a market tightly controlled by carriers who capriciously pick winners and losers while raising prices and insisting that their use of valuable public spectrum remain free of any oversight. While the iPhone is a raging success, the wireless market is headed towards total failure.
Nilay Patel at The Verge. As they say, read the whole thing.

Federal Bill Seeks to set National Standards for Data Breach Notification

Via the Cyberspace Law Committee of the State Bar of California: “A United States Senate bill was introduced on June 22, 2012 to provide a national standard for notifying individuals of a security breach relating to their personally identifiable information. The Data Security and Breach Notification Act of 2012 (S.3333) was introduced by five Republican senators to override the patchwork of existing state regulation concerning security breach notification. Because the Act is much less stringent than the notification statutes currently in effect in a number of states, including California, it is likely that there will be opposition from, among others, online privacy advocates.”

Text of the Senate Bill

ArsTechnica: Judge Estimates 30,000 Secret Surveillance Orders Approved Each Year

ArsTechnica: Judge Estimates 30,000 Secret Surveillance Orders Approved Each Year

Interesting Cyberlaw and Other Academic Papers: Spring 2012

Do Not Track as Contract by Joshua Fairfield, Washington & Lee University, School of Law, Vanderbilt Journal of Entertainment and Technology Law, Vol. 14, No. 3, p. 101, 2012, arguing that as a matter of contract law, browser do-not-track options are enforceable against corporations.

The Anonymous Internet by Bryan H. Choi, Yale Law School, Information Society Project, Maryland Law Review (forthcoming).

From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting by Juliet M. Moringiello, Widener University School of Law, and William L. Reynolds II, University of Maryland Francis King Carey School of Law, Maryland Law Review (forthcoming).

Forcing Forgetfulness: Data Privacy, Free Speech, and the ‘Right to Be Forgotten’ by Robert Kirk Walker, UC Hastings College of Law.

Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse by Cheryl B. Preston, Brigham Young University – J. Reuben Clark Law School, and Eli McCann, 26 BYU J. PUB. L. 1 (2011).

Tackling Twitter and Facebook Fakes: ID Theft in Social Media by Alexander Tsoutsanis, DLA Piper and Leiden Law School, World Communications Regulation Report, 2012/4 p. 1-3.

Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody by Aaron Schwabach, Thomas Jefferson School of Law, Buffalo Intellectual Property Law Journal, 2012.

Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act by Sean M. Flaim, Catholic University of America, Columbus School of Law, NYU Journal of Intellectual Property and Entertainment Law (forthcoming).

Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law by Bruce E. Boyden, Marquette University Law School, Arkansas Law Review, Vol. 64, 2012.

A Due Process Right to Record the Police by Glenn Harlan Reynolds, University of Tennessee College of Law, and John A. Steakley, Washington University Law Review, Vol. 89, No. XXX, 2012.

The New Federal Crowdfunding Exemption: Promise Unfulfilled by C. Steven Bradford, University of Nebraska College of Law, Securities Regulation Law Journal, Vol. 40, No. 3, Fall 2012, arguing that the recent crowdfunding bill signed by President Obama into law is flawed because the regulatory cost of selling securities through crowdfunding might still be too high.

Aftermath of the Facebook IPO: Now that a bit of time has passed since the IPO and passions regarding the offering have cooled somewhat, interesting post-mortems on the offering are beginning to appear:

Felix Salmon: Facebook’s SecondMarket Muppets

Aswath Damodaran, Professor of Finance at the Stern School of Business, New York University: Facebook: Sowing the Wind, Reaping the Whirlwind In Professor Damodaran’s view, “[m]uch of the chatter about whether Facebook was a good buy or not was framed in terms of pricing, with the optimists arguing that it was a bargain because you were paying less per user than you were at other social media companies and the pessimists arguing that it was expensive because it was trading at a much higher multiple of earnings or revenues than Google or Apple. Any attempt at full-fledged valuation, where you confronted the uncertainty and attempted to make estimates, was viewed as an exercise in speculation and guesswork. I also think that this is why the conspiracy theories, where Morgan Stanley fed inside information about future growth to institutional investors prior to the IPO and where the poor retail investors were the last ones to know, are misplaced. I am convinced that the growth rate and the prospects of the company were never key drivers in how this stock was priced and that if there is a story here, it is one of ineptitude and arrogance, rather than malice.”

Also by Professor Damodaran, his pre-IPO thoughts on the valuation of Facebook:

Facebook and ‘Field of Dreams’: Hoodies, Hubris and Hoopla

The IPO of the decade? My valuation of Facebook

Facebook: Playing the “IPO pop” game?


Berkman Center’s Cybersecurity Wiki

Berkman Center’s Cybersecurity Wiki


Image by Laura Billings, “Virus” January 14, 2008 via Flickr, Creative Commons Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0)

Link Round-Up: Recent Revelations Regarding the STUXNET and FLAME Cyberattacks:

New York Times: Obama Ordered Wave of Cyberattacks Against Iran

Washington Post: STUXNET was Work of U.S. and Israeli Experts, Officials Say

The Atlantic Wire: A Complete Guide to FLAME, the Malicious Computer Virus Ravaging Iran (Kaspersky Labs): The FLAME: Questions and Answers

MIT Technology Review: How Obama was Dangerously Naive About STUXNET and Cyberwarfare

David Sanger of the New York Times: Mutually Assured Cyberdestruction?

Developments in the Emerging Online “Right to be Forgotten”

Last month, the European Commission proposed a broad reform of the EU’s data protection rules, including the proposed creation of a new “right to be forgotten” that would allow people to demand that organizations that hold their data delete that data, provided there is no legitimate grounds to retain the information. At the European Commission website: the proposal and a host of related materials.

Europe proposes a ‘right to be forgotten’ at ArsTechnica‘s Law & Disorder.

Additional reaction: Data protection changes place disproportionate burdens on business, expert says by law firm Pinsent Masons.

The Right to be Forgotten by Jeffrey Rosen writing as part of the Stanford Law Review Online symposium issue: The Privacy Paradox.

Is The ‘Right To Be Forgotten’ The ‘Biggest Threat To Free Speech On The Internet’? at NPR

World Bank Report: China 2030 – Building a Modern High-Income Society

World Bank Report: China 2030 – Building a Modern High-Income Society


You see, an economy built to last is one where we encourage the talent and ingenuity of every person in this country … . [W]e should support … . every risk-taker and entrepreneur who aspires to become the next Steve Jobs. After all, innovation is what America has always been about. Most new jobs are created in start-ups and small businesses. So let’s pass an agenda that helps them succeed. Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow.
President Barack Obama, State of the Union Address, January 24, 2012.

BUT, while a bill which would allow relatively small amounts of money to be raised through crowdfunding, including through sites such as Kickstarter, was passed by the House of Representatives by a 413-11 vote in November 2011, the narrower Senate version of the bill is languishing in the Senate Banking Committee.

Scott Edward Walker at Forbes: “Crowdfunding Bill Stuck in the Senate”

Background on the House Entrepreneur Access to Capital Act“The Entrepreneur Access to Capital Act and What It Could Mean for Startups” posted by the law firm of Sheppard Mullin at the Venture Law Blog.

Text of House Bill (passed): H.R. 2930: Entrepreneur Access to Capital Act.

Text of Senate Bill (in committee): S. 1791: Democratizing Access to Capital Act of 2011.

Senator Scott Brown, sponsor of the Democratizing Access to Capital Act, testifying in front of the Senate Banking Committee in support of the bill.

See alsoSenator John Thune, sponsor of the Senate’s Access to Capital for Job Creators Act, calls on the Senate Banking Committee to move forward on his bill which would eliminate the prohibition on general solicitation and general advertising from Regulation D, Rule 506 offerings, provided all purchasers are accredited investors.