SCOTUS to Weigh in On Constitutionality of Offensive Trademarks

wa-redskins

Another Controversial Trademark: The Washington Redskins

By Adam Roberts

Simon Shao Tam named his band ‘The Slants,’ to make a statement.  He wanted to address cultural issues and discussions regarding race in society.  This type of free speech is generally considered foundational to the protections of the First Amendment.  But, Tam was denied this right.

In In Re Tam, the U.S. Patent and Trademark Office (USPTO) denied Tam’s registration for ‘The Slants,’ finding that a “substantial composite of persons of Asian descent would find the term offensive.”  Tam appealed his case to the Federal Circuit Court of Appeals who overturned the decision.  In her opinion, Judge Kimberly Moore expressed that the statute on which the Government relied – Section 2(a) of the Lanham Act – was unconstitutional under the First Amendment.  The court held that discrimination against content-based private speech is subject to strict scrutiny, which means the Government must present a compelling interest to restrict this kind of speech.  The Government’s interest in excluding speech they determined offensive was considered illegitimate to the court, and a judgment was entered in favor of Tam.

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Taking a Bite Out of the Big Apple: Law Enforcement and the Apple iPhone

iphoneBy Michael Huggins

On October 26, 2015, the United States government argued before a federal magistrate judge in New York that it should be able to force Apple to unlock an iPhone as part of a criminal investigation. The federal government filed a request for a court order to compel Apple to comply pursuant to the All Writs Act— an 18th Century law that allows federal courts to issue orders to effectuate otherwise valid court orders. The government argues that the federal courts can use the All Writs Act to force Apple to assist the government in investigating users of the software. Apple refuses to comply with the order.

Apple argues that the situation would not be any different than if the government used the All Writs Act to force a safe manufacturer to travel around the country, unlock safes, and give the contents of those safes to the government. Apple argues that the government wants Apple to do the investigative work for them. Judge James Orenstein, the federal magistrate judge in the United States District Court for the Eastern District of New York, agreed with Apple’s logic. Assistant U.S. Attorney Saritha Komatireddy believes that Apple’s refusal to unlock the phone represents a surprising reversal from Apple’s previous willingness to unlock phones for the government. When Judge Orenstein asked Apple why it did not challenge the previous search warrants, Apple’s attorney Marc Zwillinger replied that the company had only recently become more cognizant of the harms to high-profile data breaches and that the company has had a change of heart. But even if Apple was willing to unlock the phone, it cannot do so because each individual contains a very specific password/key to unlock the phone. Continue reading

New Jersey Case Against Andrew “Weev” Auernheimer Dismissed for Lack of Venue

 

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Andrew “Weev” Auernheimer

By Eric Siebert

On April 11, the Third Circuit Court of Appeals vacated a conviction against Andrew Auernheimer (known among hackers by the nickname “Weev”) on venue considerations. The original case charged Auernheimer with conspiring to violate the Computer Fraud and Abuse Act (“CFAA”) under 18 U.S.C. § 1030, and identity fraud under 18 U.S.C. § 1028(a)(7). After being indicted on both counts by a federal grand jury, Auernheimer moved to dismiss the indictment based, in part, on improper venue. The United States District Court for the District of New Jersey denied his motion and found that New Jersey was a proper venue because 4,500 residents were affected by Auernheimer’s actions. Rejecting this reasoning, the Third Circuit reversed the district court’s decision and ruled that venue was improper, finding that New Jersey was not the site of any “essential conduct elements” of the crimes for which Auernheimer was charged.

The charges against Auernheimer centered on the unauthorized collection of about 114,000 iPad users’ email addresses through AT&T’s servers (AT&T was the exclusive data service provider for iPads at the time). Daniel Spitler, Auernheimer’s co-conspirator, first recognized that he could crack into AT&T’s registration and log-in systems, allowing him to extract the emails of any user that had previously registered their accounts through AT&T. After sharing his discovery with Auernheimer, the two proceeded to collect over 100,000 emails through a “brute force” attack on AT&T’s servers. While still collecting email addresses, Auernheimer contacted members of the media, including a reporter at Gawker, in order to publicize their activities. Gawker published a story about the hackers and the flaw exploited in AT&T’s system, mentioning some names of affected individuals, but only showing redacted images of a few email addresses. Importantly, at all times relevant to the case, Spitler was in San Francisco, California, Auernheimer was in Fayetteville, Arkansas, the servers accessed by the two were physically located in Dallas, Texas and Atlanta, Georgia, and it was undisputed that the Gawker reporter was not in New Jersey. Continue reading