Florida’s election laws are in the news again, and this time for a decidedly technology-forward reason. Florida’s House of Representatives recently passed Technology in Elections Act (HB 869).  [St. Petersblog 2.0] [Google Public Policy Blog].

As the Obama campaign showed us, social media and other Internet technologies are becoming an integral part of modern campaign efforts because they empower candidates to get the word out to the masses quickly and cheaply.  But as campaign communications move to the web, some are wondering, can state election laws keep up?

Many states have transparency laws that govern campaign advertising and impose disclosure requirements. These are the laws that you can thank for the “I approve this message”-style disclaimers. Most of these laws were written without technologies like Facebook, Twitter, AdWords in mind, and there has been confusion in some areas about whether and how the laws apply to internet advertising and other forms of communication on the web.

For example, Scott Wagman, a candidate in the 2009 St. Petersburg mayoral election, found himself the subject of a complaint submitted to the Florida Elections Commission as a result of his Google AdWords campaign. The complaint charged that Wagman’s campaign used the names of his opponents as keywords. This meant that if someone searched for the name of Wagman’s opponents, Google would display an ad directing the person to Wagman’s campaign website. [TampaBay.com]

While this AdWords strategy itself raises some interesting issues (it may strike some as brilliant and others as sinister), it wasn’t the keywords that were the problem.  According to the complaint, the problem with Wagman’s strategy was that his ads did not contain the political disclaimer required by Section 106.143(1)(a) of the Florida Statutes.

The Florida Election Commission investigated the complaint and ultimately concluded that there was “no probable cause to charge [Wagman]” with the violation. They reasoned that although Wagman’s ads did not contain the required disclaimer, his actions were not willful. After all, Google’s ads only have two lines of text making it virtually impossible to fit the entire required disclaimer into the allotted space.

Florida’s new law attempts to strike a balance between the need for transparency and candidates’ desire to avail themselves of new technologies. For example, pursuant to HB 869, if a “paid link” on the web “is no more than 200 characters” and links “to another Internet website that [includes the disclaimer]” then the paid link need not include the disclaimer itself.

-For the full text of the bill, click here.
-For the Florida House of Representative’s Staff Analysis of the bill, click here.
-For the Florida FEC’s decision regarding the Wagman complaint (via Tampabay.com), click here.

What do you think of Florida’s new law? Are there other states that have enacted something similar?

Send us your comments at comments@fastcase.com or post on our Facebook page.

By now you have probably heard about the Recording Industry Association of America’s (RIAA) big win against file-sharing service, LimeWire.  If not, you can check out excellent coverage of Judge Kimba Wood’s summary judgment decision, issued on May 11, via the New York Times, CNET, The Wall Street Journal, and Wired.

While reading the 59-page opinion, one nugget that caught our eye was that one of the factors that persuaded Judge Wood that LimeWire had “purposefully marketed” to folks known to be copyright infringers, was the company’s selection of terms for Google AdWords campaign such as: “napster mp3″, “napster download”, kazaa morpheus”, and “mp3 free download” .

We know that Google AdWords has been a battle ground in the arena of trademark infringement.  Google has historically allowed companies to purchase keywords for AdWords campaigns even if the trademark to the keyword is owned by a competitor (albeit with a number of restrictions).  This has made Google and its AdWords advertisers frequent targets of trademark suits.   Interestingly, Google recently scored a victory on this front in a suit filed by language software company, Rosetta Stone.  In the suit, Rosetta Stone, alleged that Google was liable for trademark infringement for selling its trademarked keywords to third parties.  The suit was dismissed by Judge Gerald Lee of the United States District Court for the Eastern District of Virgnia.  [Rosetta Stone Press Release] [CNET]

Could the LimeWire suit be the first time that a party’s selection of terms for an AdWords campaign has been used as evidence of copyright infringement?  If it’s not, we are sure you will set us straight.

Write to us at info@fastcase.com if you know of an earlier copyright suit in which AdWords keywords were an issue.

So with hundreds of millions of people re-directing their communications to electronic media, and in particular web-hosted e-mail like Gmail, it may surprise you to learn that under current laws, you have a far greater expectation of privacy in your regular mail than you do in your e-mail.

If you have any type of web-based e-mail account, the Stored Wired and Electronic Communications and Transactions Records Access Act (ECPA), 18 U.S.C. § 2701, despite the long and boring sounding title, is a statute worth getting to know. Enacted in 1986, the ECPA was actually quite forward-thinking in addressing governmental access to electronically stored information. Nevertheless, to some, recent case law interpreting the statute – such as the Central District of Illinois’s 2009 decision in U.S. v. Weaver, 636 F. Supp.2d 769 (C.D. Ill. 2009) – signal a need for legislative reform.

At issue in the Weaver case, was whether law enforcement officers could gain access to the contents of the defendant’s (accused of child pornography charges) Microsoft/MSN Hotmail account with a trial subpoena rather than a search warrant.

Why does it matter whether the government is required to obtain a search warrant as opposed to a trial subpoena? It matters because search warrants are much more difficult to get. To obtain a search warrant, the government must demonstrate probable cause and this requires the approval of a judicial officer. By contrast, a trial subpoena can be obtained by making the much less demanding showing that the requested materials are likely to contain relevant and admissible evidence – subpoenas can be issued by a court clerk or in some jurisdictions, the attorney herself.

So back to the outcome of the decision: the court reasoned that under the current statute, “for emails less than 181 days old, the question of whether a warrant is necessary turns on whether the emails are in ‘electronic storage’ or are ‘held or maintained . . . solely for the purpose of provided storage or computer processing services to [the] subscriber or user.’”

Somewhat counter-intuitively, “if [the emails] are held or maintained solely to provide the customer storage or computer processing services” then a subpoena would suffice. Significantly, the court’s decision turned on its finding that because Hotmail is a “web-based” and “remote” e-mail system, the messages stored in the defendant’s Hotmail account were maintained “solely for the purpose of providing storage or computer processing services” to him – and not for backup purposes. Click here for a copy of the decision.

If you find this discussion a somewhat odd way to think about the privacy issues related to e-mail, you are not alone. A interesting and diverse group of advocacy groups, technology companies, think tanks, attorneys and law professors have banded together to form Digital Due Process, a coalition in support of reforming the ECPA. For more information on Digital Due Process, click here.

While legislative reform may well be on the horizon, in the mean time, you might be able to improve your expectation of privacy in your e-mail by backing up what you need locally and taking what you don’t need off the web (it certainly can’t hurt). Here are some resources to help you accomplish this:

http://lifehacker.com/5335553/free-tools-to-back-up-your-online-accounts

http://mail.google.com/support/bin/answer.py?hl=en&answer=34030

http://www.sync-blog.com/sync/2008/01/how-to-back-u-1.html

Plus: Just this past week, Google (a member of the Digital Due Process coalition) has broken with the trend by treating the issue of government requests for data with remarkable transparency. Indeed, Google has an entire webpage devoted to the issue (click here) – complete with a nifty map showing where the requests come from, country by country.

As many expected, China reacted quickly censoring searches on Google.com.hk as well.  Read more at News 24.

Will other companies follow Google’s lead and take a stand?  PC Magazine reports that at least one company already has.  Go Daddy announced on Wednesday that it has decided to end its .CN domain name registration services citing concerns about China’s policies regarding internet registrant’s personal information.  And there are rumors that Dell is considering moving $25 billion of its business from China to India in order to obtain a “safer environment.”   Read more at Engadget.

We were also delighted to learn this week that information design guru Edward Tufte has been appointed to advise the Recovery Accountability and Transparency Board, a body that keeps tabs on the way that the $787 billion in stimulus funds is being spent.  A big part of his task will be to tweak and improve Recovery.gov — the RATB’s primary method of communicating with the public.  Tufte is a legend in the field of information design and we cannot think of a better person for the job.  Read more about his appointment at the New York Times or listen to this On the Media podcast.

And just this morning, we learned via the Wall Street Journal that a French hacker who goes by the name “Hacker Croll” has been arrested for hacking into some high profile Twitter accounts including the accounts of President Obama and Britney Spears.  French state prosecutor Jean-Yves Coquillat told the WSJ that, “[t]he man . . . hadn’t aimed to profit financially by hacking into the accounts . . . Neither did he post anything on the accounts . . . Instead he simply wanted to prove that he was capable of hacking into the accounts.”

In an effort to bring order back to the court, the federal Judicial Conference Committee on Court Administration and Management recently issued a set of model jury instructions that explicitly advise jurors not to “not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case.”

In other words, jurors “may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.“  For the full jury instructions, click here or here.

Will the jury instructions actually stop jurors from violating the rules against communicating about and researching cases?  Probably not.  But clear instructions ought to make it easier to discipline jurors for their transgressions.