Consumer Law & Policy Blog

A Phish Story

On Friday evening, I received an email from Beth Givens of the Privacy Rights Clearinghouse reprinting an email message sent to the Clearinghouse. I've obtained permission from both Ms. Givens and the author of the original email to post it here:

Last week I received a Bank of America phishing email. Nothing out of the ordinary in that. If I have a spare moment, I usually look to see if the phishing site is still up, then do a DNS lookup and blast off an email to let the site owner know of the scam.

I figure that is more effective than whining to BofA (or whoever). Though I also cc the Bank's abuse address, too.

Call it my little piece of spare time electronic civic duty.

Dee Pridgen's Report on the ABA Antitrust Section Consumer Protection Conference

My co-author, Dee Pridgen, Associate Dean and Professor of Law at Wyoming and author of the treatises Consumer Protection and the Law and Consumer Credit and the Law, attended the recent ABA Antitrust Section Consumer Protection Conference and kindly provided the following illuminating report:

I attended what was called the “inaugural stand-alone consumer protection conference” put on by the ABA Antitrust Section at Georgetown Law Center on January 29-30, 2007.  The focus was on FTC consumer protection enforcement and industry self regulation, with a smattering of state consumer protection enforcement thrown in. There was little or no discussion of private suits.  All five sitting FTC Commissioners, as well as the current and four former Bureau of Consumer Protection directors made appearances.  There was also good representation from the private sector, including firms and in-house counsel.  Two speakers from state attorneys general offices and two academics also spoke.  Thus, this conference was a good complement to the NCLC annual conference and the Teaching Consumer Law conference held biennially in Houston.

What I gleaned from the various speakers was that the FTC appears to be revitalized in the consumer protection area, with an emphasis on consumer privacy (including data security), consumer technology (spyware and adware), health and obesity issues, and international and criminal enforcement.  Several FTC speakers mentioned the recently passed US SAFE WEB Act [which we blogged about earlier here] as a major step forward in assisting the FTC in its overseas law enforcement efforts.

New York AG Settles Adware Charges

by Greg Beck

New York’s Attorney General announced a settlement yesterday with three big companies, Priceline.com, Travelocity.com, and Cingular Wireless, accused of using software called Direct Revenue to deliver unwanted ads to computer users. In a 2006 lawsuit, the Attorney General alleged that Direct Revenue installed its software onto millions of computers without adequate notice or consent. Once installed on a user’s computer, the software monitored Internet usage, collected data typed into web forms, and delivered a steady stream of unwanted advertising. To make matters worse, once installed, the software was difficult to remove.

The settlement marks the first time that advertisers, instead of just the adware maker itself, have been held responsible for this abusive sort of advertising. That seems like a smart strategy. In this case, Priceline, Travelocity, and Cingular had spent hundreds of thousands of dollars advertising their services through Direct Revenue. Targeting the advertisers could help dry up the source of funding that keeps adware companies in business. Although the financial settlement was relatively small, a total of $100,000 between the three companies, the companies also agreed to use only adware programs that provide notice and consent to users and make it easy for users to uninstall. Of course, few computer users, if fully informed, will willingly choose to install adware on their computers.

U.S. SAFE WEB Act of 2006

On December 22, the President signed into law the U.S. SAFE WEB Act of 2006, Pub. L. 109-455.  The acronym stands for the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders" Act.  The statute, which amends the FTC Act, seems largely intended to facilitate cooperation between the FTC and its international counterparts in addressing global Internet problems like spam and spyware.

Net Neutrality News

First, William Barr, Executive Vice President and General Counsel of Verizon and former Attorney General of the United States will speak about net neutrality in the inaugural Law and Information Society Lecture at Fordham Law School on Tuesday, January 16 at 6:00 p.m.  You can register here.  Second, The New York Times editorializes in favor of net neutrality here.  As for the FCC's position, the Times editorial notes that "As a condition of approving the AT&T-BellSouth merger, the Federal Communications Commission required AT&T to guarantee net neutrality on its broadband service for the next two years."  The Times also mentions that Congressional Democrats hope to pass net neutrality legislation.

Can Everything You Search Be Used Against You?

by Greg Beck

CNET’s Declan McCullagh highlights a recent 7th Circuit decision that hasn’t received much attention until now.  The court in United States v. Schuster upheld a hacker’s fifteen-month prison sentence for breaking into a wireless network service and interfering with other users, relying in part on the defendant's Google searches for “how to broadcast interference over wifi 2.4 GHZ,” “interference over wifi 2.4 Ghz,” “wireless networks 2.4 interference,” and “make device interfere wireless network.”  As the article points out, this is not the first time Google search terms have been used to support a criminal conviction.  A North Carolina murder defendant was convicted last year in part based on his searches for the words “neck,” “snap,” “break,” and “hold” after police recovered the search data from his computer.

Although there is no indication in the court's opinion about how prosecutors in this case obtained the search data, Google has acknowledged that it can trace searches back to a particular computer or, in some cases, to a particular user.  What exactly does Google know about you?  Its privacy policy states that it automatically records information that your browser sends whenever you visit a website. This can include your search terms, IP address, date and time of your search request, and, if you have cookies enabled, possibly your personal identity.  Google also acknowledges that it can track which links you click from its search results.  In short, Google may have several years’ worth of your search activity stored in its databases, and it may be able to connect much or all of this activity back to you.

Video Explaining "Net Neutrality"

Should Internet service providers ("ISP") be able to play favorites among web sites for their own purposes?  For example, should an ISP be able to block access to one web site (Google, say) so that the ISP's customers will be more likely to use a competitor's web site (a competing search engine, for example) that just happens to pay the ISP to block access to the first web site?  This is an issue of "net neutrality," which appears to be an up and coming consumer issue.  You can find a brief video explaining net neutrality at You Tube, courtesy of Public Knowledge.

Times Reports Bad News for Consumers: More Spam and HIgher Interest Rates on Subprime Loans

Today's New York Times has two articles relevant to consumer law.  The first article reports on an increase in the amount of spam getting through spam filters; at the moment, in the seesaw battle between the senders and blockers of spam, it appears that the senders are winning.  It will hardly come as a surprise that the federal CANSPAM statute has not solved the problem.  The second article describes the problems caused subprime borrowers by the rise in interest rates.

The Digital Millennium Copyright Act—A New Thanksgiving Tradition

by Greg Beck

For some reason, the day after Thanksgiving has become known as a day of shopping.  Retailers, eager to start off the holiday shopping season, tout low-low prices on "Black Friday" to get consumers into the store.

Prior to Thanksgiving, these prices are (in theory) supposed to be a secret, but on the Internet it is common to see sites like BlackFriday.info and FatWallet post Black Friday prices up to a month in advance.  In response, retailers have invented their own holiday tradition: targeting these sites with takedown notices under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. sec. 512.

Best Buy started off the holiday cheer this month by sending a cease-and-desist letter to BlackFriday.info, demanding that it take down Best Buy's upcoming sales prices.  BlackFriday complied under protest, noting in a brief statement:  "While we believe that sale prices are facts and not copyrightable, we do not want to risk having this website shut down due to a DMCA take down notice." 

Burlington Northern and Santa Fe Railway: Don't Paint Our Trains

by Greg Beck

Jay Youngdahl's law firm represents injured railroad workers in claims against railroad companies, including Burlington Northern and Santa Fe Railway (BNSF), one of the biggest railroad networks in North America. Part of the firm’s website includes a gallery of images created by New Mexico artist Douglas Johnson.  Youngdahl commissioned the paintings from Johnson to show the challenges faced by railroad workers, a subject that he feels has historically been ignored in the art world.   

    BNSF, however, apparently did not appreciate one painting on the site that appears to include representations of BNSF trains.  Upon discovering the image, BNSF's attorney sent several cease-and-desist letter to Youngdahl, claiming that his use of the paintings infringes BNSF’s trademarks, “dilutes the distinctive quality of BNSF’s famous trade dress and famous marks,” and “tarnishes BNSF’s reputation by suggesting that all FELA [Federal Employer's Liability Act] claims are claims made against BNSF.”  BNSF’s position once again raises the question of how far companies can go to regulate consumers' use of their trademarks for the purpose of commentary and criticism. Here is one of the letters received by Youngdahl.