What Does the Criminal Conviction for Privacy Law Violations of Three Google Executives in Italy Mean for Multi-National Employers in the U.S.?

Tue, 09 Mar 2010 18:06:22 GMT

On February 24, 2010, a Milan court convicted Google’s Chief Legal Officer, Global Privacy Counsel, and a former member of Google Italy’s board of directors for violating Italian privacy law and imposed a six-month, suspended jail sentence. The case stemmed from a posting on Google Video® — a YouTube® predecessor — of a video depicting several teenagers bullying a classmate with Down’s Syndrome. Although the Google executives had no involvement in either the posting or in the decision whether and when to remove it, Italian law imposes criminal liability on senior executives for the actions of the corporation. Prosecutors alleged that Google should be held responsible not only for permitting the video to be posted in the first instance, but also for allegedly not having acted quickly enough to remove the video after receiving a complaint.

The convictions have wide ranging implications for e-commerce, but what are the implications for global businesses with employees in the European Union?

First, the Google convictions serve as an important reminder that government authorities in the E.U. are serious about enforcing data protection laws. Thus, U.S.-based multi-nationals need to confirm that their local affiliates are complying with local data protection law. Of equal importance, international transfers of employee data to the U.S. — for example, for inclusion in a centralized human resources data base — must satisfy local data protection requirements. Even after the employee data has been received in the U.S., data protection requirements (in addition to any imposed by U.S. law) will apply.

Second, the Google convictions highlight for U.S. employers a critical distinction between U.S. and E.U. privacy law. Under U.S. law, an employer’s legitimate business interests typically trump an employee’s countervailing privacy interests. U.S. employers, for example, have substantial leeway in conducting workplace video surveillance and searches of employees to prevent theft or deter workplace violence. In the E.U., privacy is a fundamental right that, as the Google convictions demonstrate, does not give way even to the freedom of expression so cherished and zealously protected in the U.S. According to the Italian prosecutor, protecting the dignity of the bullying victim took precedence over Google’s commercial interests, including its interest in being a platform for expression and communication over the Internet.

Finally, “privacy” in the E.U. is conceptually far broader than the “right to be left alone” underpinning U.S. privacy law. In the E.U., “privacy” encompasses the notion of data protection. Consequently, any use of individually identifiable information about a natural person — even a business e-mail address and phone number — is presumed unlawful unless the possessor of that information (known in E.U. law as the “data controller”) has a lawful justification for using the information. This prophylactic approach contrasts starkly with U.S. law which permits the use of personal information at the possessor’s discretion unless the law expressly prohibits or restricts the use. Moreover, such prohibitions and restrictions typically are confined to discrete categories of employee information, such as health information.

In short, the Google convictions should serve as a blinking yellow light to every U.S. employer with operations in the E.U., warning employers to consider potential implications under E.U. data protection law before using individually identifiable information about any employee who resides in the E.U.

This entry was written by Philip L. Gordon.

"Self-broadcasting" in the world of social media

Mon, 08 Mar 2010 16:15:09 GMT

Here is part four of my article on broadcast journalism for lawyers and law firms:

Using the Internet, lawyers and law firms can bypass the traditional mainstream media entirely and self-broadcast their own video and audio – on their own Web sites or on sites that accept user-generated broadcast content.

When lawyers appear on television or radio, law firms can post links on their Web sites or blogs or even request the files for posting. In addition, using inexpensive equipment and applications, they can easily create their own video and audio podcasts for download from law firm Web sites. It helps to have a good video/audio editor on staff. In this day and age, no lawyer presentation should go unrecorded. Law firms can also “broadcast” these reputation-building podcasts to clients and prospects via email alerts.

Once created, law-firm-generated video and audio can also be posted on a wealth of online content sites, which provide automatic RSS feeds that attract search engines. (RSS should also be added to any of your own Web site content.)

The line between print, broadcast and online news has become increasingly blurred. Print publications host audio and video on the Web sites – some of it generated by professionals and some of it contributed by “citizen journalists.” Television and radio station Web sites also include text and photographs.

A law firm, for example, that cannot get the local TV station to cover the opening of its remodeled lobby can now make its own video and post in on the station’s well-optimized Web site.

All modern media sites host blogs by their reporters, which can include links to video and audio. All of them offer versions for mobile devices. All of them offer subscriptions via Facebook, Twitter, RSS, email or text. All of them accept user contributions.

Law-firm-produced video and audio can also be easily posted on a wide range of social networking sites like LinkedIn, Facebook and Martindale-Hubbell Connected. It can be added to social content sites like JDSupra, Legal OnRamp and HubStreet. Legal Talk Network is a “talk radio” vehicle for lawyers and law firms. Savvy lawyers and law firms are even posting their own videos (and broadcast ads) on YouTube.

Finally, use Twitter to send out a short notification and a link every time you appear in the traditional broadcast media or self-broadcast your own video and audio content.

Be that lawyer! By consistently and carefully pitching, catching and self-promoting -- using traditional and online broadcast media -- lawyers and law firms can optimize search engine results and successfully spread the word about their professional expertise.

Here is a link to the entire article:

Lawyers and law firms: Broadcast your expertise, build your reputation

Some, But Not All, BIP/BTOP Deadlines Extended

Mon, 08 Mar 2010 15:58:20 GMT

New BIP deadline: March 29; New BTOP deadline for CCI projects: March 26

NTIA and RUS have announced extensions of the deadlines for some, but not all, submissions in response to the Second Notice of Funds Availability (NOFA) issued as part of the Big Money Hand-out made possible by the American Recovery and Reinvestment Act of 2009. Applications for Broadband Initiatives Program (BIP) funding will now be due at RUS by 5:00 p.m. (ET) on March 29, 2010. Applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP) will now be due at NTIA by 5:00 p.m. (EDT) on March 26, 2010.

It’s not clear why one agency opted for March 26 while the other opted for March 29, but would-be applicants should be sure to note that the deadlines for NTIA and RUS applications responsive to the Second NOFA are no longer identical.

Also, the extensions do NOT apply to requests for NTIA/BTOP funds for Public Computer Center projects or Sustainable Broadband Adoption projects. The deadline for applications for such projects remains 5:00 p.m. (EDT) on March 15. Check out our blog post about the Second NOFA for further details about the different types of projects.

"Catching" from the traditional broadcast media

Fri, 05 Mar 2010 18:50:31 GMT

Here is part three of my article on broadcast journalsim for lawyers and law firms:

In the case of a breaking news stories, news directors and reporters often come to you – looking for a comment (if you are directly involved in the story) or background (if you are an expert in a particular subject area).

If you are involved in a newsworthy event, understand that “no comment” is a terrible response to a media inquiry – especially if you are captured fleeing on camera with your hand in front of your face. If the case or matter is truly newsworthy, the story will appear with or without your input. Strategize with your client and, with the client’s permission, make sure that your client’s point of view is included in a dignified fashion in the report.

If you are asked to provide background on breaking news in which you have no direct involvement, it is usually because you have let the stations know ahead of time that you are an expert, are available to comment, and can speak coherently and intelligently in front of a camera or microphone. Do not be afraid to make this contact. Broadcast reporters are always interested in deepening their pool of qualified legal experts.

It never hurts to be on-site, either. When terror suspect Najibullah Zazi was inside the Denver Federal Courthouse, hundreds of reporters were waiting outside for hours in the frigid winter weather. Local lawyer and media commentator Craig Silverman was not sitting behind his desk waiting for the phone to ring. Instead, he braved the weather to circulate in the crowd of local, national and international reporters. As a result, his face and voice were all over the evening news.

Be aware of a major change in the way modern news directors and reporters “catch” their stories and expert commentators in the Internet age – Google and other search engines. According to recent reports, 85 percent of all reporters use Google on a daily basis. If you want the call to comment on a particular legal development, your name must show up in Google results for the keywords used by a researching reporter.

Here is a link to the complete article:

Lawyers and law firms: Broadcast your expertise, build your reputation

Embrace Life: Raising the Bar for PSAs

Fri, 05 Mar 2010 10:00:37 GMT

For as long as I have been watching television, I have seen countless public service announcements telling me to wear a seat belt. One series that sticks out in my recollection is the "You could learn a lot from a dummy" ads. I think I recall these mostly because there were so many of them, and there was a modicum of character development involved--the dummies were Vince and Larry. These were not high art, but according to the Ad Council, they were effective.

There have been other seat belt campaigns. Here's a PSA from the 1970's, and here's one about the inventor of the seat belt. In the history of seat belt PSAs, there seem to be two principal categories: humor and shock. Often, these PSA campaigns have slogans, too: Click It or Ticket, Drive Alive, Buckle Up . . .

Until this week, it had never really occurred to me to appreciate the artistic side of public service announcements, and then I saw the Sussex Safer Roads Partnership "Embrace Life" PSA:

I believe this PSA was unveiled a little over a month ago, and it already has more than two million views on YouTube. The Sussex Safer Roads Partnership has a page discussing the making of this PSA and other elements of the campaign, which include the use of graffiti, which seems like a bold, novel step.

I think that the PSA and the "Embrace Life" slogan are both home runs. Well done!

"Pitching" to the traditional broadcast media

Thu, 04 Mar 2010 15:27:52 GMT

“Pitching” to the traditional broadcast media

Here is part two of my article on broadcast journalism for lawyers and law firms:

When “pitching” news to the traditional broadcast media, remember that it has to be real news – and not self-promotion. News is information that a station’s viewers or listeners need to know in order to make good decisions about their personal and business lives. Always emphasize how your story will be of value to viewers or listeners.

In other words, news is important to people outside the law firm – not inside the firm. It often contains an additional element of new, first, best or most.

News that an associate has made partner, for example, is not likely to generate coverage. That happens all the time. News that the new partner is a deaf, orphaned, immigrant associate who worked his or her way through college and law school in the mail room at your firm might generate interest.

Make the story as easy as possible for the reporter. Never mail a press release. Call or email the right reporter with your story idea. If the reporter expresses interest, send additional information. New on the scene is the electronic press release, which includes not only background, but also direct email links to your experts as well as online links to photos, audio, video and other related news stories and Web sites. Imagine how helpful this material can be to a reporter rushing to complete a story on deadline!

Broadcast news directors and reporters like to produce exclusives – stories that none of the competitors can cover. Offer exclusives – and honor them.

Once the station has expressed interest in your pitch, time is of the essence. Broadcast news directors and reporters face multiple deadlines each and every day (with Internet publishing, the deadline has become “right now”), and are driven to feature their stories in a timely fashion – preferably sooner than anyone else. Make sure that you are actually available, at work or at home, in person or by phone (in the case of radio) to do the interview on deadline.

Think like a broadcast reporter. Television stations like stories that offer more than “talking heads.” They can be attracted to a story that includes a good visual setting, physical activity and interesting props. Radio stations find “value added” in stories with interesting sound effects (like an IP case involving recorded music).

Finally, know what you are going to say and who is going to say it – even before “pitching” the broadcast media. Practice in advance the 30-second “sound bites” you will use. Videotape and review them. Work with a media expert if necessary.

Here is a link to the complete article:

Lawyers and law firms: Broadcast your expertise, build your reputation

Lawyers and law firms: Broadcast your expertise

Wed, 03 Mar 2010 23:04:13 GMT

Recently, I posted an article on broadcast journalism in the Internet age. The article was based on a panel discussion and I felt, after I'd written it, that I wanted to expand the article to include points not made by the panelists. So I wrote another article on the subject of lawyers, law firms and broadcast journalism. Here is the introduction (the entire article will appear over the next few days):

“Hey, you’re that lawyer! The lawyer from the TV news about that case last night! The lawyer who was interviewed on public radio regarding that issue last week! The lawyer on the podcast about pending industry regulation that I downloaded and listened to last month! You’re obviously the expert. Let’s talk.”

Under national and state bar ethics rules, lawyers usually cannot call themselves experts in a given subject area. But they can use broadcast media to position themselves as experts in the eyes of consumers of legal services.

Until recently, it took a lot of work with a public relations expert for a lawyer to appear on television or radio as an expert. Broadcasters owned and controlled the airwaves, and access was limited.

Over the past ten years, with the advent of the Internet, the rules of the game have changed completely. Today, users own and control the Internet, and access is unlimited. There are many more opportunities to “broadcast” your expertise than ever before.

Upcoming sections include:

"Pitching" to the traditional broadcast media

"Catching" from the traditional broadcast media

"Self-broadcasting" in the world of social media

For the impatient, here's a link to the entire article:

Lawyers and law firms: Broadcast your expertise, build your reputation

37 Downloads? That’ll be $27,500…How Does a Court Determine What to Charge?

ppengelley@cozen.com (Pamela Pengelley) — Sun, 28 Feb 2010 20:26:52 GMT

This topic angers me. Fines for infringement under the Copyright Act range from $750 to $150,000 per infringement. That’s a wide spectrum! More disturbing is that the Act leaves the pricing decision in the hands of the judge, without any real guidelines for them to follow. This week, a judge ordered Whitney Harper to [...]

This topic angers me. Fines for infringement under the Copyright Act range from $750 to $150,000 per infringement. That’s a wide spectrum! More disturbing is that the Act leaves the pricing decision in the hands of the judge, without any real guidelines for them to follow.

This week, a judge ordered Whitney Harper to pay $27,500 for illegally downloading 37 songs…I’ll do the math for you – that’s $750 a song, i.e., the minimum allowed. Earlier this year, Joel Tenenbaum was held liable for $675,000 for file sharing 30 songs – that’s $22,500 per song. It gets better. Nearly a year ago, Jammie Thomas-Rasset was ordered to pay $1.92 million by a jury for downloading 24 songs…$80,000 per download! How does the court conclude how much to, for lack of a better word, charge per song? Is it based on the popularity of the song? Does Lady Gaga or Jay-Z rank higher than Skid Row or Journey because the former are currently more mainstream?

Is it fair or just? Does it take $22,500 or even $80,000 per song to teach a lesson to the infringer? Will raising the maximum limit of the fine to $1 million per infringement make the message clearer? Will any price hammer home the message that infringement is illegal? Is the money paid by the defendants actually going to the artists? After a brief Google search, I was surprised to find out that the RIAA keeps the money. (See http://torrentfreak.com/riaa-keeps-settlement-money-080228/) If the artists aren’t getting the money for their work, what’s the point of the Copyright Act or the RIAA and their lawsuits?* With so many questions unanswered and uncertain, am I the only one that thinks this whole thing is a scam? Even in criminal sentencing, there are guidelines for judges to follow. You can’t just sentence a man to life in prison or death for stealing a loaf of bread. There has to be some proportionality…the punishment has to correspond with the crime committed, right?** No such logic seems to exist in the Copyright Act. Aren’t we entitled to know what to expect for a crime we commit?

“The current damages range provides compensation for copyright owners because, inter aia, there exist situations in which actual damages are hard to quantify,” the Justice Department wrote. (See http://www.wired.com/threatlevel/2010/01/obama-supports-filesharing-verdict/#ixzz0glneHPQW)

Wait a second! Isn’t one of the basic rules of Remedies that the measure of monetary damages sought cannot be speculative? Isn’t what’s going on here exactly that? In other words, isn’t the fact that there are no guidelines for judges to follow leading to remedies or damages for the RIAA that are completely arbitrary and speculative? Is the RIAA really suffering $80,000 in damages per song? Are they able to prove damages of $80,000 per song?

“Furthermore, in establishing the range, Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed.” (See link above.)

With the average out-of-court settlement with RIAA being $3,500 (http://www.wired.com/threatlevel/2009/06/riaa-jury-slaps-2-million-fine-on-jammie-thomas/), number of infringements unknown, it makes you wonder why every infringer doesn’t settle with the RIAA.

Motions to set aside judgment have been filed in both the Tenenbaum and the Thomas-Rasset cases. It will be interesting to see what the final ruling will be. At this point, one thing seems certain – Whitney Harper should consider herself lucky for being charged only $750 a pop!

*I especially found it humorous that Bruce Springsteen’s name was added as a plaintiff to a suit filed by the ASCAP against a N.Y. bar. Shouldn’t The Boss sue ASCAP? But, I digress.

**I realize the Tenenbaum and Thomas-Rasset cases were jury trials, but that can’t justify the absurd amounts awarded in the Tenenbaum case, right? I can only hope that Set Aside motions will prevail, if I am to have any continued faith in the justice system.

Big Numbers in Downloads and Domain Names

Fri, 26 Feb 2010 10:23:35 GMT

You may have heard the news that iTunes has hit the 10 billion (with a "b") mark in number of songs downloaded. Sales began in 2003. That's an average pace of more than 1.4 billion downloads a year. Considering that a typical single song retails for $0.99 on iTunes (likely higher than average price, as many albums with more than ten songs go for $9.99), I thought, "Wow, that's about $10 billion in sales!" Well, yes and no. It's only $9.9 billion in sales--$100 million short of $10 billion. I sometimes tend to think that one decimal place, one hundredth, is "close," and in a sense, $9.9 billion is close to $10 billion. In another sense, $100 million is a lot of money standing on its own.

This reminds me of a point made at a trademark infringement trial a few years ago. A lawyer (not me) asked a business owner whether a production cost difference of a few pennies per piece part was a big deal--hoping to make the point that it was insubstantial. The owner replied, "It's a big deal when I'm ordering hundreds of thousands of parts." All of this, of course, is not new. I recall learning about economies of scale in my 10th grade Economics class, though the lesson obviously continues to impress.

But here is another big number to consider: the folks over at FairWinds recently discovered a company that was losing 47 million initial web impressions to typosquatting domain names. Josh Bourne has a recent post at the Domain Name Strategy blog discussing this and some related SEO (search engine optimization) issues, and it is worth a read.

Pay attention to how those little things add up!

Going Mobile

Thu, 25 Feb 2010 02:48:19 GMT

Chairman confirms upcoming effort to re-purpose TV spectrum for mobile broadband

For several months now the question on many TV broadcasters’ minds has been: will they or won’t they take away my spectrum and turn it over to smartphones? And while various FCC higher-ups have dropped conflicting hints about what the answer might be, the fact is that no one has expected to know for sure until the release (currently set for March 16) of the FCC’s National Broadband Plan (NBP). But late this month Chairman Genachowski tipped the Commission’s hand, albeit without adding much practical detail.

The FCC’s answer appears to be: TV spectrum is not being used efficiently, and would be better allocated to mobile broadband use, so the FCC plans to devise some mechanism to encourage TV licensees to cough up some or all of their spectrum in return for the prospect of taking home some portion of the proceeds when their spectrum is auctioned off for broadband.

According to the Chairman, the NBP will call for the “freeing up” of 500 MHz of spectrum over the next decade. And one way the FCC hopes to achieve that, at least in part, will involve “establish[ing] market-based mechanisms that enable spectrum intended for the commercial marketplace to flow to the uses the market values most.”

Can you spell “a-u-c-t-i-o-n”?

Sure enough, that fin de siècle panacea is going to be the go-to device again in the 21st Century. As described by the Chairman, the NBP will propose a “Mobile Future Auction” – unclear whether the “mobile” there modifies “future” or “auction” – which will “permit[ ] existing spectrum licensees, such as television broadcasters in spectrum-starved markets, to voluntarily relinquish spectrum in exchange for a share of auction proceeds”.

Precisely how such an auction would work has yet to be disclosed – indeed, it may not even have been determined yet. But it is apparent that the Commission has thoroughly embraced the notion that television spectrum is a resource that can and should be re-purposed for mobile broadband use. While Genachowski’s speech shed no light on the anticipated auction mechanism, it did offer something in the nature of a rationale as to why TV spectrum is being singled out.

For openers, there is a “massive amount of unlocked value” in TV spectrum – maybe even $50 billion, according to “one study” – and from this, the Commission has ineluctably concluded that there are “inefficiencies in the current allocation”. Who says there’s $50B, give or take, in “unlocked value” there? Why, “a broad range of analysts, companies and trade associations participating” in the FCC’s nearly infinite range of broadband-related inquiries. Which analysts, companies and associations? Well, the Chairman didn’t say. How might the inherent “value” get “unlocked” (and how did it get “locked” in the first place)? That’s another explanation which is left for a later day.

Another reason for grabbing TV spectrum: according to the Chairman, TV “spectrum is not being used efficiently – indeed, much is not being used at all”. In support of this claim Genachowski cited some vague and general claims along the lines of “Even in our very largest cities, at most only about 150 megahertz out of 300 megahertz [of TV spectrum] are used.”

While a speech is probably not the forum in which to lay all one’s cards out on the table, the Chairman might still have offered just a tad more support for the decision to go after TV spectrum. After all, estimates of “unlocked value” are not really something you can take to the bank, particularly if those estimates were propounded by folks who might be in a position to rake in some of that “unlocked value” if things go the right way. And it’s difficult to credit claims of efficiency of spectrum use when the TV industry, and the viewing public, are less than nine months into the DTV era. Certainly there may be substantial spectrum potential yet to be tapped, but why must we assume that the best (maybe even the only) way to tap it is through mobile broadband services to be provided by somebody other than broadcasters? (In fact, FHH has a client who has a technology that will allow TV stations to use any digital bits they don’t need for television programming to provide broadband – something they can do today under present rules and so can do a lot faster than navigating through the political reallocation and auction thickets.)

Perhaps recognizing that his rationale was not all that compelling, Genachowski shifted gears into huckster mode: “the Mobile Future Auction is a win-win proposal: for broadcasters, who win more flexibility to pursue business models to serve their local communities; and for the public, which wins more innovation in mobile broadband services, continued free, over-the-air television, and the benefits of the proceeds of new and substantial auction revenues.” Often when you hear the term “win-win”, it’s a safe bet that somebody’s trying to sell you something that you might neither want nor need. In this case, for example, we don’t know what “flexibility” broadcasters might gain that they don’t have now.

The Chairman did emphasize that the “Mobile Future Auction” is currently envisioned as a voluntary program. Voluntary? Perhaps, but maybe only in the same way that a businessman “voluntarily” decides to buy insurance from the guy who says “nice little business you got here – it’d be a shame if something happened to it.”

In any event, while we may not know all the details, we at least know the direction in which the Commission’s heading. Ideally more details will be available on March 16, the day on which the NBP is currently set to be revealed. But even that will mark, at most, the starting point of what is likely to be a difficult struggle.

Interestingly, it’s not at all clear what difference (if any) the FCC’s views will make. The statute requiring the NBP doesn’t say who is in charge of adopting it, or whether it even needs to be adopted by the Commissioners as the formal recommendation of the agency to Congress. The law simply directs the FCC to do its due diligence to come up with a plan, then tell Congress about it. Other than that, the FCC appears to have no independent authority to jumpstart or otherwise implement the NBP; the only entity explicitly granted authority by Congress to adopt regulations related to the broadband initiative is the Assistant Secretary of Commerce in charge of NTIA, not the FCC. Moreover, the FCC’s statutory auction authority doesn’t say anything about turning over any proceeds to incumbent licensees or anyone else but the U.S. Treasury.

Given the uncertainty about the follow-through, we are cautiously advising broadcasters to view the NBP as the FCC’s recommendation to Congress, and not a final decree. It is also appropriate to bear in mind that the folks in Congress may be reluctant to turn their backs on broadcasters, particularly if broadcasters increase the intensity of use of their spectrum by introducing more multi-channel broadcast or non-broadcast services. Notwithstanding social media and Internet advertising campaigns, etc., candidates continue to flock to broadcasters at election time to reach for voters. And broadcasters’ ability to deliver voters’ eyes and ears may constitute an “unlocked value” of its own.

We will, of course, have to wait and see.

What is the Court Thinking? Clues from the Source …

ppengelley@cozen.com (Pamela Pengelley) — Tue, 23 Feb 2010 15:10:32 GMT

Lawyers, academics, politicians, students and of course litigants are naturally concerned, often vitally concerned, to know how the final appellate court of the land will decide a given matter. Depending on the outcome, the law might be changed in new and radical ways; legislation might be struck down; government policy might fall. The wait to [...]

Lawyers, academics, politicians, students and of course litigants are naturally concerned, often vitally concerned, to know how the final appellate court of the land will decide a given matter. Depending on the outcome, the law might be changed in new and radical ways; legislation might be struck down; government policy might fall.

The wait to discover what is going to happen can be very long because, as we all know, it can be a year or more between the hearing of an appeal and the delivery of judgment in a given case. There is, however, a vital source of clues to the possible outcome of a case, to the thinking of the court and the arguments which they find persuasive, or not, that is often overlooked. I mean of course the transcripts of argument made during the oral hearing, which includes questions and comments from the bench.

As an example of the usefulness of these, take the case of Abbott v. Abbott, recently heard by the US Supreme Court. The Court heard argument about the meaning of “habitual residence” in the Hague Child Abduction Convention. The phrase is not defined, and counsel took the Court to decisions of courts of other countries, also signatory to the Convention. Have a look at the following extract, which includes submissions by counsel and exchanges with the bench, noting that in this instance at least, Justice Scalia seems quite willing to consider the application of foreign court decisions:

JUSTICE SCALIA: Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include the U.K., France, Germany, I believe Canada, very few come out the way you — how many come out your way?

MR. HAYS: The United States and Canada -as we point out in our brief, and I believe that it’s pointed out in other amicus briefs, the — there have only been seven courts of last resort that have heard this issue. There are some 81 countries that belong -

JUSTICE SCALIA: Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right? And — and the purpose of a treaty is to have everybody doing the same thing, and — and I think, we — if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in — in other countries that are signatories to the treaty.

MR. HAYS: If, in fact, there were a consensus, but there — there is not a consensus in this instance because we — as we analyze in our brief and I believe the 11 law professors analyzed in their brief, you cannot get a clear consensus.

JUSTICE BREYER: Who’s against it? As I read their brief, France is not on their side. It’s split.

MR. HAYS: Yes.

JUSTICE BREYER: Canada is on your side; that the House of Lords is — has some dicta written by two judges, which is good, but it wasn’t a holding in the case.

MR. HAYS: Correct.

JUSTICE BREYER: And — and that’s about it, and so maybe they -

JUSTICE GINSBURG: You have — you have -

JUSTICE SCALIA: Germany.

JUSTICE BREYER: Germany.

JUSTICE GINSBURG: Elizabeth Butler-Sloss in the Court of Appeals in England, and that was a square holding.

MR. HAYS: That was — there — there have been — that is one instance. However, you also have the situation of the — the Canadian opinions which are well-reasoned opinions -

JUSTICE GINSBURG: Which are dicta.

MR. HAYS: Which, actually, even though -even though they did not return the child based on the — on the ground, they still made the — the decision, and the second case that followed -

JUSTICE GINSBURG: All right. Well, you can take the German constitutional court.

MR. HAYS: Well, the German constitutional court in that instance, their specific reference in the case itself to the fact that this involved also joint custody rights, as do — as do a number of the other foreign — of the other foreign cases. Ireland, also, is one that is cited by Mr. Abbott, and that one involved a situation of joint parental responsibility.

JUSTICE BREYER: Who do you count for you of the seven, just so I can write it down and go back and read them? Any one of the seven for you?

MR. HAYS: Yes.

JUSTICE BREYER: Which?

MR. HAYS: The circuit courts in the United States.

JUSTICE BREYER: Okay. Any other for you?

MR. HAYS: And Canada.

JUSTICE BREYER: Canada. Okay. And who’s against you?

MR. HAYS: The — well, France is divided. France -

JUSTICE BREYER: No. I asked who is against you.

MR. HAYS: Against us, it’s — other than -other than the dicta that is — that is pointed out in the English opinions, we take the position that the other ones, it’s unclear as to — as to how you –

JUSTICE BREYER: You think one against you, one for you, the rest unclear?

MR. HAYS: Unclear.

JUSTICE BREYER: Okay.

JUSTICE SCALIA: Is Australia — is Australia unclear?

MR. HAYS: Yes. I — the — the Australian case dealt, again, with a — with a joint custody situation, and in that — in that particular case, I believe — if I am correct in my recollection of it -the Australian court expressed some reservation about making a bright-line rule that these type of ne exeat clauses actually established -

JUSTICE SCALIA: Well, according to the Petitioner’s brief, if this is inaccurate, the Australian court followed the English Court of Appeals decision that Justice Ginsburg referred to, emphasizing the desirability of uniform interpretations of the convention, and I count that against you, the Australia.

MR. HAYS: The — the point that we are making, however, is that, if you have a one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders, and -

JUSTICE SCALIA: We will have to parse them out, obviously. ………..

This extract from the transcript, from the horse’s mouth so to speak, shows clearly that the Court is concerned to look to decisions of other countries in their interpretation of “habitual residence”, and that Justice Scalia, perhaps, is concerned particularly with the attitude of “the biggies”, and that they will have to “parse them out”. A researcher therefore might take these clues, parse out the attitude of “the biggies” herself, and arrive at an educated guess as to the likely outcome.

Like Justice Scalia, a researcher from a common law jurisdiction will likely be interested, in such a matter, in finding transcripts from the final appellate courts of the biggies – the US, UK, Canada, Australia and New Zealand. Can you?The answer is a little surprising:

United States: The US is easy. They’re at the Court’s website, from 2000 on.

Australia: Australia is fantastically well served. Transcripts from the High Court of Australia have been posted very quickly on AustLII since 1994. Decisions from the Supreme Court of New Zealand are available at the Court’s web-site from 2004 on.

Canada: Canada is less easy. Transcripts from the Supreme Court of Canada are available, but you have to contact the Court and make a request. When the transcript is ready, which can take two weeks or more (presumably because of the need to translate into French), it will be emailed after payment of a small fee, which can be made over the phone with a credit card.

United Kingdom: Of the biggies, only the Supreme Court of the UK (which replaced the House of Lords last October), does not make transcripts available in any form, although hearings are filmed and footage is archived.

Does the Internet Create Unfair Jury Trials?

ppengelley@cozen.com (Pamela Pengelley) — Tue, 23 Feb 2010 13:03:55 GMT

Jurors are not supposed to look at media coverage of the case during a trial since their verdicts are supposed to based on the evidence presented in a trial, rather than media reports. But can they really resist taking a sneak peek on the Internet? In February of 2010, the U.K.’s Ministry of Justice released a [...]

In February of 2010, the U.K.’s Ministry of Justice released a very interesting report, titled “Are Juries Fair?“, by Professor Cheryl Thomas. Among other things, the study examined jurors’ use of the Internet to look up information about their cases in both long, high profile cases and standard cases lasting less than two weeks, with little media coverage. The report found:

All jurors who looked for information about their case during the trial looked for it on the Internet, as opposed to television, newspapers or some other source. (Well, okay, so this one wasn’t exactly a big surprise…).

More jurors said they “saw” information on the Internet than admitted to “looking for it” on the Internet. Since they were doing something that a judge should have told them that they were not supposed to do, this may explain why jurors were more likely to say the saw reports on the Internet than said they looked for it. (See? Lawyers aren’t the only people in the courtroom who resort to semantics….). But just what are the figures?

In high profile cases, 26% said they saw information on the Internet compared to 12% who said they “looked”.

In standard cases, 13% said they saw information compared to 5% who said they looked.

It’s not the young jurors who are sneaking a peek on the Internet to look up information about their trials. Among all jurors who said they looked for information on the Internet, most (68%) were over 30 years old. Among high profile cases, an even higher percentage of jurors (81%) who looked for information on the Internet were over 30 years old.

Of course, the results of this study raise a number of other questions like, did these jurors even realize that they are not supposed to use the Internet? And how exactly are they looking for information? For example, are they just searching on Google, or are they actually discussing the case on social networking sites? What sort of instructions from a judge are most effective in preventing jurors from looking up their case on the Internet?

The study also looked at a number of other issues, such as whether all-white juries discriminate against black and minority ethnic defendants (the study found that they didn’t), whether juries rarely convict on certain offences or at certain courts and whether jurors understand legal directions and whether they are aware of media coverage (in high profile cases, almost 3/4 of jurors were aware of media coverage of their case). The report canvasses all of the above in some detail and is definitely worth the read.

One of the conclusions was that jurors want and need new tools to better understand the trial process – the report suggested the use of written juror guidelines clearly outlining the requirements for serving on a trial. Until then, Justice may be blind, but Jurors will Wiki.

The Long and Short of Name Development

Tue, 23 Feb 2010 10:00:16 GMT

by Mark Prus of NameFlash^SM

Some of my name development clients are fans of long, keyword-rich names. Obviously the appeal of a search engine spotting your website is driving this approach.

Some of my naming clients are fans of short names that can be easily shared on Twitter.

Which approach is better?

I will confess I am a fan of short, memorable names. Steve Baird would agree. As Steve so eloquently puts it, “we live in a sound bite world.”

But I strongly believe that picking a name because it would be more attractive to search engines or because it is short enough to Tweet is a huge mistake. Any time you allow tactics to drive your strategy, you are heading down the road to ruin.

A far better approach is to hone your brand’s strategy and test it with consumers until you find the positioning that is going to make all the difference in your business, then develop a name. David Ogilvy once said "The results of your campaign depend less on how we write your advertising than on how your product is positioned." The same is true for your name. Spend time developing a positioning that rings the bell with consumers and then go find the perfect name that brings that positioning to life.

Sound like a difficult thing to do? Not really. I know I am biased by my 25+ years of experience in building great consumer brands, but this task is not difficult. Time consuming? Yes. At times painful? Yes. Expensive? Could be. But in the end, the process of honing the brand positioning and using that as a basis for name development will pay dividends for years to come.

If the name you choose ends up short enough to Twitter, then you may wish to include that tactic in your arsenal. If your name includes relevant keywords, so much the better! But please, don’t pick names because they work better with tactic A or Tactic B!

Your thoughts?

But I’m Innocent, I Swear! This Website Proves It!

ppengelley@cozen.com (Pamela Pengelley) — Tue, 23 Feb 2010 00:31:14 GMT

Who would have thought a comment as innocent as “Just walked into work at Cozen O’Connor-Toronto…so much work to get done” could potentially cause you so much trouble? I came across an article this weekend by Tracy Staedter, titled “I’m Not Home: Please Rob Me”. Ready to become paranoid? Read the article – it’s short and [...]

Who would have thought a comment as innocent as “Just walked into work at Cozen O’Connor-Toronto…so much work to get done” could potentially cause you so much trouble?

I came across an article this weekend by Tracy Staedter, titled “I’m Not Home: Please Rob Me”. Ready to become paranoid? Read the article – it’s short and to the point. Ever send out Evites? How about prior tweets, MySpace posts, etc. inviting people to your place and including an address? Bingo! Better pack up and move quick!

The website causing havoc is www.PleaseRobMe.com. Check it out…make sure you aren’t on the site…then check again after every time you tweet, post, etc. Do you have the time to constantly check? Probably not. Should you? Probably. It may make you paranoid, but then again, shouldn’t you be? But should the creators of the website be blamed – legally, morally, ethically? Should they be held accountable for what you put out into the public realm? Can you sue for violation of your privacy rights? Do you really have an expectation of privacy in any of those posts? In an age where MySpace, Friendster and other social networking sites regularly have their records subpoenaed, why should anyone think that anything they post will be “private”? What piqued my curiosity even more was how this website could apply in the criminal or tort law application. Can this website be used to substantiate or corroborate an accused’s alibi – “Your Honor, look! I have proof that I wasn’t in the city when the crime occurred…I tweeted that I would be in Los Angeles!” Look, my knowledge of Canadian (or U.S., for that matter) Criminal Law/Procedure does not extend further than the 800 or so pages of textbooks I read while in law school. But surely this website can be put to more use than just what the creators intended. So long as a proper foundation is laid, and the purported evidence is relevant, it may be admitted, right? Something to definitely consider as a defense attorney.

The creators of the website claim the site is supposed to help us…to open our eyes to the evil out in the world. Call me crazy, but perhaps a simple email addressed to me would have been more appreciated…though it leaves one wondering if such a logical course of action would have been as effective.

FCC Opens E-Rate Facilities To The Public At Large

Mon, 22 Feb 2010 15:29:46 GMT

Limited non-educational use of E-Rate-subsidized services OK’d temporarily with strings attached, as FCC considers making change permanent

For more than a decade schools and libraries have been eligible, under the E-Rate program, for discounts on a number of telecommunications services, Internet access, internal connections and related maintenance. The idea has been to promote the availability of affordable Internet connections for educational purposes. And to assure that the program is used for that focused goal, the FCC’s rules governing the E-Rate program have flatly prohibited schools from allowing E-Rate-subsidized facilities to be used for anything other than educational activities.

But now the Commission has loosened that prohibition, at least temporarily: through June 30, 2011, E-Rate-subsidized service in schools may be made available for use by the general community when school is not in session, as long as the cost to the government is not increased and the public is not charged for the Internet access. In the meantime, the FCC has invited comments on whether to make that change permanent.

Since the inception of the E-Rate program, subsidized service at schools could be used only for “educational purposes”. That means students and faculty may use the service at any time, but the general public may never do so. The result is that school computers are often idle at night, on weekends or during school breaks, when they could be put to use by adults who cannot afford broadband service at home or who live in geographic areas where broadband is not readily available. In the current difficult economic circumstances, Internet access could be used to apply for jobs, fill out government forms, and the like.

The FCC gets the point, so on its own motion it has declared that, from now through June 30, 2011, schools may choose to allow members of the community at large to use school equipment and Internet access when students are not around. But to assure that those facilities continue to be primarily dedicated to education, the FCC has attached strings:

Non-educational use is restricted to times when school is not in session (including evenings, weekends, holidays, and vacations);
Expanded use will not justify any additional funding beyond what is needed for strictly educational purposes; and
The public may not be charged for Internet access (although reasonable charges may be imposed to pay for extra heat, light, security, and similar increased costs).

The FCC says it will be diligent in scrutinizing funding applications, and especially amendments to pending applications, to make sure that no effort is made to sneak in requests to fund anything other than educational use by students and faculty.

Expanding the universe of users raises the question of whether mandatory filters to protect children from “inappropriate content” – obscenity, child pornography, other material that would be “harmful to minors” – should be removable when adults use the Internet access. The FCC will leave that decision up to individual schools.

While the Commission has made this relaxation effective only through June, 2011, it has at the same time proposed to amend its rules to make the relaxation permanent. That would be accomplished simply by a regulatory specification that E-Rate-subsidized facilities will be used “primarily”, rather than “solely”, for educational purposes. Comments on that proposed change will be due 30 days after the proposal is published in the Federal Register.

In the meantime, the temporary relaxation is effective immediately.

New Website Designed to Help with Mental Illness

Tue, 16 Feb 2010 22:09:33 GMT

I came across a new website directed at assisting with mental illness. Step Up on Second.

Step Up on Second announces the launch of its newly enhanced Web 2.0 site. Step Up on Second is a California non-profit organization providing support services for adults affected by severe and persistent mental illness, and young adults experiencing the initial symptoms of a mental illness and their families.

The interactive site provides resources for loved ones, clients, and family members in search of an organization that can provide help, hope, and a home to individuals affected by mental illness.

Step Up on Second provides help through comprehensive, integrated clinical programs for relapse prevention; hope through the embrace of community, opportunities for inclusion, advocacy, and empowerment; and permanent supportive home units for stability achieving self-determined goals.

Recently Actress Glenn Close posted on their blog.

Sears Makes Good Despite the Fine Print

Mon, 15 Feb 2010 12:47:59 GMT

Consumer sites, including this one, tend to point out a lot more negative than the positive issues about companies and their practices. This, however, is a story of extraordinary customer service that deserves to be publicly acknowledged. MrConsumer (aka Edgar, the editor of Mouse Print*) recently needed to replace his 23-year old gas range, fondly nicknamed the [...]

MrConsumer (aka Edgar, the editor of Mouse Print*) recently needed to replace his 23-year old gas range, fondly nicknamed the “Price is Right stove” because of its one-piece design consisting of a range, oven, and microwave popularized decades ago by that game show. After perusing the ads, he narrowed down the choices to a Sears Kenmore slide-in gas range advertised for about $1000 the last week in December in the Sears circular.

After calling four stores, MrConsumer finally found a local Sears that stocked the particular stove so he could look at it. It was very important that the range be stainless steel and have a professional look. As it turned out, the store did not have the advertised stove on display, but rather a similar but higher model. To confirm that the advertised stove was identical in appearance to the one in the store, the salesman took MrConsumer to a computer terminal to look at it online. The picture showed that it had stainless steel knobs, a computer control panel with a 0-9 digital keypad, and matte finish grates just like the similar model in the store. Assured of these specifications, the order was placed for this range:

At this point you might be able to guess what happened next when the stove was delivered on January 25. The grates were shiny black, making them look cheesy and not very professional. The electronic controls only had an up/down arrow to change the temperature in five degree increments. So, if you wanted to go from 300 to 400 degrees, you would have to press the up arrow 20 times. MrConsumer was very not happy, but since the electrician and plumber were already scheduled, the stove was installed the next day.

Complaining to Sears’ 800 number resulted in a very quick callback from the store manager. While willing to compensate MrConsumer for having received a lesser digital control panel, she was not so willing to try to obtain the matte finish grates shown both in the store and online. In part, she pointed to the fine print on the website:

*MOUSE PRINT:

In MrConsumer’s defense, this description was not shown to him in the store, and is not even visible on the same page where the stove is described online. (One has to click a link “more specifications” to find this. You will also notice it says the knobs are black, when in fact they are stainless.) Further, this description is contrary to the more prominent magnified picture at the top of the page that clearly showed matte grates, and the accompanying description that said “ professional-look heavy duty cast-iron grates are completely dishwasher-safe.”

Not willing to take “no” for an answer from the local store, MrConsumer sent a factual and polite email to two highly placed executives responsible for major appliances at Sears headquarters. [See the first comment below for the trick to finding such executives.] He asked for a price adjustment because of the lesser digital display, and requested that Sears provide the matte finish grates as was represented.

One of the executives actually responded the day after mailing, on a Sunday no less, saying that this was not the type of experience (being shown one thing, and receiving another) that their customers should have to go through. Within a few days, a person from “executive resolutions” called, acknowledging the wrong stove was pictured on the website. Remarkably, they offered to replace the stove with the one pictured (a more expensive model by about $250) at no cost, and to even cover the costs of having their plumber do the installation.

Wow. Is that not remarkable customer service, above and beyond expectations? It almost feels like the clock was turned back several decades when stores really did care about satisfying their customers. Hats off to Sears for showing that a big company can acknowledge a mistake and bend over backwards to remedy the situation.

(Despite the seeming fairy tale ending to this story, there will be a part two, as MrConsumer’s kitchen is now home to two Sears ranges. Ironically, in part, it is because more fine print tripped up the company’s best of intentions.)

iPad, the Latest Brand Bait?

Sat, 13 Feb 2010 18:23:23 GMT

Putting aside, for now, the unsettled question of who currently owns the iPad trademark, and Dan's perspective on Apple's trademark clearance strategies, from last week, look at what our finely-tuned e-mail spam filter just snagged:

It is a similar story to my previous Free Dell XPS Laptop Spam Scam? blog post from last December. Here, however, the Apple, iPad, and the (possible) iPad configuration trademarks, are the newest form of brand bait for what appears to be an ongoing type of spam e-mail scam. They're fast. It only took about two weeks after Apple's announcement of the iPad for these folks to bait their electronic hook with the newest branding lure.

By the way, how is it that these folks can make the free offer before Apple's iPad tablet is even available to the public? As of today, Apple still has a notify me page, if you'd like to "be among the first to receive iPad." So, doesn't the present unavailability of the iPad add to the misleading nature of the above advertisement because it seeks "testers" for this "new" product?

What do you think, misleading advertising, fair use of Apple's intellectual property?

This story also appears related to the topic covered in my previous Is Wal-Mart Giving Away Free $1,000 Gift Cards? blog post too.

What do these unsolicited e-mail programs have in common? Well, besides the fact that they all appear to originate from Canada (for reasons unknown to me), they use well-known, if not famous brands to attract attention online and convince you to supply them with your e-mail address. Really, would anyone pay even an ounce of attention to any of these e-mail spam solicitations without the unauthorized use of these popular brand names and images?

In an apparent attempt to avoid misleading anyone and confusion, of course, as was the case with the Free Dell XPS offer and the Wal-Mart $1,000 Gift Card offer, the Apple iPad ad offers a purported disclaimer:

The advertisers in this email are not affiliated with any of the above brands.

This is a third party advertisement sent to you by the list owner. If you no longer wish to receive email from this advertiser, please write Reward Group 191 7 West 4th Avenue, Suite 279 Vancouver, B.C. VJ6-1M7 or visit our email removal site by click here.

If you do not wish to receive correspondence from the list manager you will need to follow the unsubscribe instructions provide by the list manager on how to remove you from their list.

Who are the advertisers? Who is the list owner? It says the advertisers are not affiliated with any of the brands, so does that mean the list owner is? Does this disclaimer do the job with claims relating to likelihood of confusion as to source, affiliation, sponsorship, and approval?

Even in the unlikely event it does, what about claims for initial interest confusion? Where is the disclaimer for that additional type of unlawful trademark confusion? And, since there is a reasonable claim of trademark fame for many of these brands, is it even possible to have a disclaimer that avoids a state or federal dilution claim concerning a famous mark?

Does The World Need A U.N. Sponsored Cyber Peace Treaty? One Diplomat Emphatically Says Yes… As the U.S. Gears Up For A Cyberwar

ppengelley@cozen.com (Pamela Pengelley) — Fri, 12 Feb 2010 19:03:11 GMT

As the cyber war of words heats up between the U.S. and China, the rest of the world is taking notice….and proposing action. Most recently, the head of the United Nations’ communication and technology agency, Secretary General Hamadoun Toure of the International Telecommunications Union, proposed a treaty whereby member countries agree not to precipitate a cyber [...]

As the cyber war of words heats up between the U.S. and China, the rest of the world is taking notice….and proposing action.

Most recently, the head of the United Nations’ communication and technology agency, Secretary General Hamadoun Toure of the International Telecommunications Union, proposed a treaty whereby member countries agree not to precipitate a cyber attack against other member countries. “The framework would look like a peace treaty before a war,” he is reported to have said.

Secretary Toure’s proposal follows a series of concerns expressed at last month’s World Economic Forum in Davos-Klosters, Switzerland, including a harsh warning that cyber attacks could amount to a declaration of war. According to Secretary Toure, “[a] cyber war would be worse than a tsunami – a catastrophe.” Because of the potential devastating consequences of a cyber war, the Secretary strongly recommended that countries agree not to harbor cyber criminals and “commit themselves not to attack another.” Of course, nothing is quite as simple as that. For example, John Negroponte, the former director of U.S. intelligence, cautioned that intelligence agencies would “express reservations” about such a treaty. Given the breadth and scope of China’s, Russia’s and other countries’ intelligence operations and their reported limits on information disclosures, Mr. Negroponte’s remarks likely would be echoed by other nations.

Still, the U.S. is preparing itself for a cyber war. Speaking at the World Economic Forum, U.S. Senator Susan Collins (R- Me) acknowledged as much, reportedly stating that “if someone bombed the electric grid in our country and we saw the bombers coming in, it would clearly be an act of war…. If that same country uses sophisticated computers to knock out our electricity grid, I definitely think we are getting closer to saying it is an act of war.” Similar sentiments were echoed by Senator John D. Rockefeller (D-WV), Chairman of the Senate Committee on Commerce, Science, and Transportation. In April 2009, Senator Rockefeller introduced a comprehensive cybersecurity bill, The Cybersecurity Act of 2009, S. 773, which, according to the non-profit Authority on Managing Records and Information, is designed to:

Significantly raise the profile of cybersecurity within the federal government and streamline cyber-related government functions and authorities
Promote public awareness and protect civil liberties
Create teamwork and a partnership between government and the private sector on cyber security
Foster innovation and creativity in cybersecurity to develop long-term solutions

Senator Rockefeller’s bill also proposes to establish the Office of the National Cybersecurity Advisor within the Executive branch. The Office would be headed by an Advisor who would serve as the President’s lead official on all cyber matters. He/she also would be responsible for coordinating activities between the intelligence community and civilian agencies.

While the Cybersecurity Act of 2009 has not engendered much discussion in the media, it has drawn attention in the face of recent cyber attacks on Google. Referring to the cybersecurity breaches at Google and elsewhere, Senator Rockefeller issued the following statement:

Cyber-attacks are increasing exponentially and we need to get serious about America’s cybersecurity – our nation’s public and private infrastructure is too critical to remain vulnerable and unprotected… I intend to markup my cybersecurity bill early this year to address these ever-evolving attacks and secure our networks. It’s an understatement to say that cybersecurity is one of the most important issues we face; the increasingly connected nature of our lives only amplifies our vulnerability to cyber attacks and we must act now.

According to the Christian Science Monitor, the U.S. energy industry already has been the subject of at least one foreign cyber attack. The Monitor reports that three U.S. oil companies suffered previously unreported security breaches in 2008 by way of intrusions which focused on data detailing the value, quantity and location of global oil discoveries. The stolen information reportedly was transferred to a computer in China, leading some to believe that Chinese authorities may have been complicit. We emphasize, however, that there is no concrete evidence linking the Chinese government to the 2008 attacks.

In short, as physical wars in Afghanistan and elsewhere rage on, a different, but equally insidious, form of war is being fought over the Internet every day. And, as difficult as it is to achieve an armistice in the physical context, so too a cyber peace accord seems unachievable at the present time. Similarly, while the U.S. government is striving to deal with this situation, no legislative panacea seems to be in the offing. Meaning, of course, more insurable risks.

The Catch in Verizon’s $84.99 Triple Play Deal

Mon, 08 Feb 2010 19:47:00 GMT

Verizon FiOS has been advertising a great package price online for Internet, telephone, and FiOS TV — just $84.99 a month for a year. That is less than most competitors, and many consumers rave about FiOS. Here is their online animated ad (for which you need Adobe Flash player to view). Click the replay button if [...]

Here is their online animated ad (for which you need Adobe Flash player to view). Click the replay button if the animation has ended.

Did you catch that pop-up disclaimer at the end that was on the screen for less than two seconds? (You can hover over the “legal” button with your mouse to freeze it in place — something we guess most consumers probably wouldn’t know to do.)

*MOUSE PRINT:

$109.99/month for months 13-24, two-yr agrmt req’d plus taxes and fees.

We would venture to say that most consumers didn’t catch the fact that you must sign a two year contract to get this deal, and that the bargain $84.99 price only lasts for the first year. The price then jumps up $25 a month to regular price (apparently) for the second year.

Imagine the customers’ shock when they open their Verizon bill in month 13! And, if they want to cancel at that point, they are in for a second expensive surprise. Also not disclosed in the ad is Verizon’s new $360 early termination penalty (which is evenly pro-rated over the life of the contract).

Mouse Print* invited Verizon to comment on this story, but as of publication time, they had not yet done so. This post will be updated should they respond this week.

As we have repeatedly said, companies need to be more upfront about their pricing in their advertising, so their customers are not hit with unexpected charges.

IMPORTANT DISCLOSURE: The editor of Mouse Print* is a compensated member of Verizon’s Consumer Advisory Board, which advises the company on policy and public issues.

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