While I don’t practice criminal law, I thought this story was worth a quick mention because of its far-reaching implications for both privacy rights and criminal law.  A federal judge in Vermont has ordered a criminal defendant, Sebastien Boucher, to decrypt his hard drive so prosecutors can view the unencrypted files.  Specifically, the judge wants Boucher to type in his “PGP” password.  (”PGP” stands for “Pretty Good Privacy,” which is encryption software).

Boucher, a canadian citizen who is a permanent resident in the United States, was coming back from Canada in December of 2006 when a customs agent—without needing the password—searched his laptop and allegedly found thousands of images of adult and child pornography. 

Boucher was arrested, was given and waived his Miranda rights, and allegedly told customs agents that he might have downloaded child pornography.  His laptop was then shut down after his arrest.  It wasn’t until later when law enforcement tried to access his computer again that they learned the drive was encrypted with PGP and couldn’t be accessed without Boucher’s password.

A federal magistrate originally ruled in November of 2007 that the Fifth Amendment prevented Boucher from being forced to disclose his password.  As I’m sure most of you know, the Fifth Amendment is a cornerstone of the American criminal justice system which  provides that:  “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”  In other words, given the criminal charges against him, Boucher had a Fifth Amendment right to keep the files encrypted.

The federal district court judge overruled the magistrate and found that Boucher doesn’t have such a Fifth Amendment right.  According to the judge, Boucher “has already admitted to possession of the computer, and provided the government with access to the Z drive. The government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.”  

This case will be appealed to the Second Circuit.  And no matter who wins there, an appeal to the Supreme Court seems likely given the importance of the issue.  As noted in the article, Homeland Security claims that it has the right to seize anyone’s laptop at the border for an indefinite period of time, so issues such as this take on special significance (although this policy is now being closely scrutinized by lawmakers, outside interest groups, and those within Homeland Security).  Stay tuned!

Fart.  Fart.  Fart.  It’s not often a lawyer gets to use that word in a courtroom once, let alone repeatedly.  But sometimes the practice of law in these modern times lends itself to some unusual—dare I say fun?—cases that are not your traditional fare.  Or perhaps I should say, “iFart,” which is a bit more apropos here.  

Flatulence—or more specifically, fart noises—is apparently big business in software today, especially for the iPhone.  Who knew?  And this story underscores the lengths that some companies will go to protect their trademarks and brands in this digital age.  It seems that two companies which make competing “flatulence noise simulation software” for the iPhone have gotten themselves into a bit of a, uh, legal stink. 

InfoMedia, which makes “iFart Mobile,” a popular novelty application for the iPhone, has filed for a declaratory judgment in a Colorado district court against Air-O-Matic (”AOM”), which makes “Pull My Finger,” a competing application which was apparently the leading fart simulation software before iFart, uh, exploded onto the scene.  A copy of the complaint can be viewed here.  I, for one, had no idea that digital fart simulation technology had advanced so rapidly.

AOM filed for a trademark on the term “Pull My Finger” at the Patent and Trademark Office (”PTO”) in December of 2008.  The application is pending.  InfoMedia alleges in its complaint that its use of the term “pull my finger” in its advertising and other marketing constitutes a “fair use” under trademark law and does not and will not infringe upon any of AOM’s trademark rights.   It also wants the court to declare that “Pull My Finger” is a “descriptive” phrase and therefore doesn’t qualify for protection.

According to letters and e-mails between the parties, in addition to using “pull my finger” in press releases, AOM has also accused InfoMedia of posting a YouTube video prominently using the term, posting false negative reviews and testimonials of “Pull My Finger” (while extolling the virtues of iFart), and spamming AOM customers on Twitter with ads for iFart.  While I’m not exactly sure what makes one fart application better than another—and my expertise is strictly limited to my own personal experiences with flatulence—these differences are apparently quite significant.

So what did InfoMedia do?  Exactly what it should have.  It beat AOM to the punch and filed for a declaratory judgment in its home state of Colorado.  Even though AOM is located in Florida, it now has to defend itself in a Colorado court.  That’s not necessarily a bad thing, but InfoMedia now has the “home field” advantage and AOM doesn’t have the option of suing in Florida.  It now has to find a Colorado law firm.

I’ve only seen InfoMedia’s complaint and attachments and not AOM’s response, so I’ll reserve my opinion on the case’s merits.  Trademark law can be quite complex anyway, and intellectual property cases in general can turn on factual or legal nuances.  If, however, this case was only about InfoMedia using “pull my finger” descriptively in some of its press releases, then it would probably have a strong case that it didn’t infringe. 

But if InfoMedia kept using “Pull My Finger” in fake testimonials and reviews and ran a deceptive ad campaign on Twitter, than AOM’s claim could be stronger.   As noted by AOM’s counsel:  “InfoMedia’s efforts have been directing at merging Pull My Finger and iFart in the consumers’ minds, so that searches for Pull My Finger pull up the iFart application.”

Of course, all of this depends upon whether or not the court finds “Pull My Finger” to be protectable.  InfoMedia has alleged that the term is “descriptive” and doesn’t qualify for registration.  So what does descriptive mean?  According to the PTO’s Trademark Manual of Examining Procedure:  “A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services.”

InfoMedia correctly notes in its complaint—and cites that most revered of internet sources, Wikipedia—that the term “pull my finger” is synonymous with flatulence.  The company is essentially alleging, among other things, that the term merely describes the function or feature of AOM’s software. 

So is “Pull My Finger” descriptive?  It’s hard to say.  The PTO notes that the ”great variation in facts from case to case prevents the formulation of specific rules for specific fact situations.  Each case must be decided on its own merits.”  Translation:  The court will have to make the call after carefully considering all of the flatulence-related evidence.

If the term is found to be descriptive, AOM would then have to show that the phrase has acquired “secondary meaning” in order to get it registered.  Secondary meaning is defined as “proof that [the mark] has become distinctive as applied to the applicant’s goods or services in commerce.”  In other words, ”it must be shown that the primary significance of the term in the minds of the consuming public is not the product but the producer.” 

Thus, AOM would have to show that customers primarily associate the term, “Pull My Finger,” with AOM and not just with the application itself.  This isn’t easy to do, especially if a product just entered the marketplace and hasn’t been in use for a long period of time, and been extensively marketed and advertised. 

So we’ll have to wait and see what happens.  The parties may very well settle and not take the risk that litigation often entails—somebody’s got to lose, after all.  I hope they don’t settle, though.  I would love to read a court opining on flatulence and fart noises.  It would be quite entertaining.  You know, a real gas.

I’m not sure whether to be amused or upset by this story, but I thought it was worth a quick post.  It seems that a petulant 19 year-old in Florida took the law into his own hands when he was told by a Starbucks customer that he couldn’t use the customer’s laptop to check his Facebook account. 

So what did this genius do?  What anyone would do, of course.  Wait a little while and check his account from home, you ask?  No, that would take too long.  And since we live in a society of instant gratification, he decided to snatch the laptop and run out of Starbucks.  Needless to say, he was apprehended in the parking lot and arrested.  Now he’s been charged with robbery (which is a felony). 

I guess when you need your hit, you need your hit.  And you won’t let something as trivial as the law stand in your way.  Just ask any drug addict.  Is Facebook really that addictive?  I haven’t yet experienced any tremors or nightmares from failing to check my various e-mail accounts, but maybe I’m just not hip enough.

While this guy is clearly an idiot, it does portend ominous things for the future.  Facebook junkies.  Social networking lifers.  Will they have entire wings in drug rehab centers or prisons for people like this?  I know it sounds ridiculous, but with social networking sites like Facebook growing by 4 to 5 million users a week, the power of the medium can’t be underestimated. 

Some people will obviously take it to the extreme.  Some always do, but it does make me wonder.  And I wonder what this guy will do when he can’t check Facebook from his prison cell.  The withdrawal pains may be incapacitating.

I know advertisers are constantly looking to determine how effective their ads are, but this story is just creepy.  Not necessarily for what it is at the moment—which seems harmless—but for what it can (and will) lead to in the not-too-distant future.  It seems that advertisers, in their never-ending quest to gather as much information as they can about you to supposedly better target your preferences, have now started to embed cameras in video screens that display advertisements.  These cameras watch you as you watch the ad.

The cameras can apparently determine—with a fair degree of accuracy—the person’s gender, approximate age range, and ethnicity (in some cases).  As a result, the advertisements can tailor themselves to the person viewing them.  Thus, according to the article, men could see ads for razors, women could view cosmetics ads, and teens could check-out the latest video game advertisements. 

The advertising industry hasn’t quite decided what to call these ads yet, but early contenders include such terms as “smart ads,” ”proactive merchandising,” “gaze tracking,” or the lengthier “face-based audience measurement.”  Sounds innocuous, doesn’t it? The article is quick to point out that the technology doesn’t identify people individually, but only the categories mentioned above. 

So it’s far from perfect.  For now.  But does anyone truly think that it won’t be vastly improved in the future?  Advanced face-tracking technology is already used by various government agencies and security companies.  How long do you think it will be until these types of ads can identify people individually, correlate and aggregate the information, and then engage in “hyper-targeting” (for lack of a better word)?

Imagine staring at an advertisement for Ex-Lax at a local mall for a few seconds only to return home and find a $5.00 off coupon waiting for you in your e-mail.  Or how about ads from Ex-Lax’s competitors, with the heading, “Constipated”?  Or better yet, how about if it’s sent directly to your cell phone or PDA, especially when you walk past a drugstore?  There’s nothing like instant gratification these days. 

Think it won’t happen?  It’s only a matter of time.  Of course, Congress or the states can step in and try to outlaw these eventual types of advertising practices (which will hopefully withstand First Amendment challenges), but there’s no indication that they will—especially given the considerable strength of the advertising lobby.  

Advertisers will undoubtedly claim that such methods will allow them to tailor their message to people who not only want their products, but need them.  I can see the pitch to Congress now during the hearings:  “Our methods allow us to deliver specifically-targeted content to consumers who will not only benefit from use of our product, but will also be given the opportunity to derive savings and . . .” blah, blah, blah.  Remember, the business of America is business, and advertising is the great facilitator of that.

And of course, the issue is never just the collection and aggregation of the data, but what happens to it, who can see it, how it’s used, under what circumstances it can be disclosed, and all of those other pesky policy questions that relate to giving an individual some semblance of control over their personal lives.  Just don’t expect any help from the advertisers.