Court case

On Oct 10, the Supreme Court sidestepped a growing controversy over who can give permission to access a computer, a debate that goes to the core of what constitutes hacking in this era of widespread use of the internet and social media. The justices turned away two cases over whether it is a violation of federal anti-hacking law for account holders to give a third party access to a computer system they do not own themselves. In doing so, they left in place a lower court ruling that went against a Cayman Islands company in a dispute with Facebook, and another against a California-based executive recruiter. The San Francisco-based 9th US Circuit Court of Appeals ruled in both cases that only computer system owners may grant authorization, and not account holders or employees with legitimate access credentials.

The Supreme Court on Oct 10 refused to review a ruling that Power Ventures, a defunct aggregation service, violated a federal hacking law by scraping Facebook's site. The court did not provide a reason for its move, which let stand a decision issued in 2016 by the 9th Circuit Court of Appeals. The lower court said in its ruling that Power violated the Computer Fraud and Abuse Act by accessing Facebook after receiving a cease-and-desist letter.

The anti-hacking law, which provides for private lawsuits as well as criminal penalties, prohibits people from accessing computers without authorization. The battle between the companies dates to 2008, when Power was trying to grow a service that enabled people to use a single portal to log in to a variety of social networking companies -- including MySpace, LinkedIn, Twitter and Facebook. To accomplish this, Power asked users to provide log-in information for their social networking sites and then imported people's information.

The US Supreme Court asked the Trump administration for its views on whether to hear Apple’s bid to avoid a class-action lawsuit accusing the tech giant of inflating consumer prices by charging illegally high commissions on iPhone software sales through its App Store. The justices are considering whether to take up Apple’s appeal of a lower court ruling that allowed the proposed class-action suit alleging it violated federal antitrust law to proceed. Apple said the case should be thrown out because only developers of the apps who were charged the commissions, not consumers, should be entitled to bring such a suit.

Apple charges app developers a 30 percent commission on App Store consumer purchases. The Justice Department will provide the high court with its stance on the matter. The dispute could have a major impact on electronic commerce, which has seen explosive growth, with $390 billion in US retail sales in 2016.

Public Knowledge, Consumer Federation of America, and New Networks Institute filed an amicus brief in the US Court of Appeals for the 8th Circuit requesting the Court to overturn and remand the Federal Communications Commission’s recent Business Data Services deregulation Order. Public Knowledge argues that the agency’s competition analysis, which found that duopoly competition -- real or potential -- is “sufficient” to discipline market power and high prices in the BDS market, is ludicrous. The Commission’s analysis is inconsistent with competition law and unsupported by the record, and the Order will lead to higher prices in the BDS market, which consumers will ultimately pay.

The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome. "The Chief Justice appreciated and shares your ultimate goal of increasing public transparency and improving public understanding of the Supreme Court," Roberts' attorney, Jeffrey P. Minear, wrote the four members of Congress seeking to have the court's gerrymandering case live streamed in audio. "I am sure you are, however, familiar with the Justices' concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request."

The European Union courts will hear a case with a massive impact on Facebook and other American internet service companies. The case, which an Irish court on Oct 3 referred to the Court of Justice of the European Union, revolves around where companies can store personal information.

Max Schrems is suing Facebook under the claim that, so long as the United States allows bulk surveillance programs, the US cannot guarantee that data stored on servers located on its shores abides by the EU’s stringent personal data protections laws. Currently, Facebook and other companies use what are known as “standard contractual clauses” to assure European users that their personal information is being protected. Schrems launched a similar case against an earlier treaty between the United States and European Union to cover cross-boarder data storage known as Safe Harbor, which the European courts eventually nixed. Safe Harbor was replaced by a new treaty, Privacy Shield, which is undergoing similar challenges. If courts continue to find US protections for European Citizens data insufficient, it could result in US internet service companies being unable to do business with Europe without setting up specialized servers there.

Broadband industry lobby groups have appealed to the US Supreme Court in an attempt to kill the Federal Communications Commission's network neutrality rules. The groups want the Supreme Court to rule that the FCC exceeded its authority when it reclassified Internet providers in order to impose stricter regulations. Such a ruling could prevent future FCCs from implementing net neutrality rules as strict as the current ones, which outlaw blocking, throttling, and paid prioritization. A ruling for the industry could also prevent future FCCs from reviving other consumer protections that are likely to be overturned by the commission's current Republican majority.

Lobby groups also allege that the FCC didn't do enough to justify its decision and that it didn't follow the required administrative procedures. But for potential long-term impact, the question of whether the FCC has the authority to classify broadband as a common carrier service is probably more significant. Whether the Supreme Court will actually decide to hear the case is far from certain.

AT&T is trying to take the fight over the Obama-era net neutrality rules to the US Supreme Court. On Sept 29, AT&T, the cable industry group NCTA, and CenturyLink filed separate appeals asking the court to overturn the controversial 2015 rules. A federal appeals court last year upheld the rules, which were passed by a Democrat-controlled Federal Communications Commission and supported by President Barack Obama. The broadband industry says it has no problem with the idea of an open internet, but it argues the new classification applies outdated regulations that have stifled investment.

Republicans, who now control the FCC, have already begun the process of dismantling the rules. In May FCC Chairman Ajit Pai, appointed by President Donald Trump, opened a proceeding to rewrite the rules. The FCC could vote to repeal the rules as early as December. Legal experts say this makes it less likely the Court will take the case. "The Supreme Court isn't likely to play a starring role on net neutrality now," said Matt Schettenhelm, a litigation and government analyst with Bloomberg Intelligence. "The court's likely to take a back seat, letting the FCC move ahead with its work to undo the 2015 order." This means the fight for net neutrality is likely to go on for several years as Democrats, consumer advocates and internet companies like Mozilla, which support the rules, have vowed to continue to fight.

Public Knowledge filed an amicus curiae brief in the case ASTM v. Public Resource. The case concerns Public Resource’s copying of model building codes and educational testing codes, which had been enacted into federal law and regulations. The standards organizations sued Public Resource for copyright infringement based on the copying of those legally-enforceable codes. The case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. The case is expected to be argued next year. The amicus brief, filed on behalf of a coalition of 62 organizations, companies, former government officials, librarians, innovators, and professors of law, asks the appeals court to permit Public Resource’s copying of the text of model codes enacted into law and not find it to be a copyright infringement.

The 9th Circuit Court of Appeals will hear arguments in a Federal Trade Commission throttling case against AT&T that has major implications for the agency’s reach over telecommunications companies. An 11-judge panel is taking a second look at the case, which centers on whether a carve-out in the FTC’s jurisdiction for "common carriers" should be based on a company’s activities or its status. A three-judge panel from the court sided with AT&T in 2016 and knocked down the FTC’s case against the telecom giant, ruling that the agency did not have the authority to bring the lawsuit against the company because of its status as a common carrier. The FTC asked the court to re-hear the case, and got support from the Federal Communications Commission and internet service providers including Comcast, Charter, Cox Communications and Verizon.