This blog focuses on Supreme Court Technology Law (SCTL) issues Rod Dixon, J.D., LL.M.. is the Editor of SCTL.
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This weblog was created to share ideas about the development of Computer Law and Cyberlaw issues that receive attention in federal court litigation, particularly those issues that reach the U.S. SUPREME COURT. This blog is edited by:
Rod Dixon, J.D., LL.M.
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To date, Federal courts largely have done an awful job with applying any degree of intellectual rigor to an analysis of a worker's expectation of privacy - - particularly in the context of computers. In April 2007, the 10th Circuit was remarkably predictable in its lack of intellectual rigor in ruling in U.S. v. Barrows that a worker who does not use a password to block access to his personally owned computer has no subjective expectation of privacy.
Michael Barrows, treasurer for the city of Glencoe, Oklahoma, brought his computer from home and placed it on a desk at his job to complete work-related matters. He connected the computer to his government-employer network. Without Barrow's permission, someone accessed Barrows laptop and found files on it that were alleged to be evidence of child pornography. Barrows pled, but argued that his employer violated his right of privacy under the Federal Constitution's Fourth Amendment.
The 10th Circuit 's analysis of whether Barrows demonstrated that he had an expectation of privacy emphasized that an employee's failure to password protect a personally owned computer placed in the public space of an employer's workplace is a highly relevant in showing that the employee lacked of an expectation of privacy. According to the 10th Circuit, the "failure to password protect his computer,turn it off, or take any other steps to prevent third-party use" shows that Barrows did not "harbor a subjective expectation of privacy." The Court's conclusion echos an error entirely too common in privacy cases. By relying on what it concludes is a public space at Barrow's workplace, the Court has an expedient route to conclude its analysis, but on the way the court confuses the concept of privacy with that of solitude.
The long standing distinction between "privacy" and "solitude" is accorded significance to ensure that the right of privacy does not become a right reduced to a measurement of the physical surroundings of the alleged privacy invasion. In other words, there is a distinction between a determination concerning whether an employee maintained a subjective expectation of privacy and whether the physical location of an employee’s desk warrants an expectation of solitude. The latter goes to the employee’s understandings about the practical capability to intrude upon his space, while the former goes to an employee’s expectations concerning his employer’s lawful ability to intrude upon his privacy.
The fact that Barrow's desk was in a "public space" or that Barrow's computer lacked a password does not thereby transform the computer barrow owned into a device wherein the contents are devoid of any expectation of privacy. Leaving a wallet on an empty table at McDonald's while I walk five feet away to fetch a packet of salt may be careless or even foolish, but it does not mean I do not have a subjective expectation that no one will attempt an unauthorized access of my wallet's contents; you might say, however, that my expectation was unreasonable, but whether an expectation is unreasonable is not at all the same question as whether there is a subjective expectation in the first place.
The Court's reasoning about passwords also seems to lack intellectual mooring. While the use of a password on a computer may be relevant to showing that an employee has a subjective expectation of privacy on a particular machine (most employers would likely disagree since they provide passwords to employees for employer owned equipment) on what principle or point of logic did the 10th Circuit use to establish that the lack of a password shows the contrary? I have met many people who do not use passwords on their laptops, but do not expect unauthorized access of their machines simply because they use the laptop at a starbucks.
"We’re also pleased that today’s decision applies the patent law to software in the same way it’s applied to other inventions" says Microsoft concerning the Supreme Court ruling in MS v. ATT. Microsoft certainly gets it, but did the Court really deliver for them? On the issue of whether software patents are to be treated as any other invention, I think it is arguably doubtful.
A brief by a group of Intellectual Property law professors pointing out that: "We do not believe the Federal Circuit erred in holding that software code, like any other product, can be a component of a patented invention. Any attempt to draw an artificial line between software and other types of inventions finds no support in the statute, which merely speaks of components of a patented invention..." I agree.
Of course, the Supreme Court disagreed - notwithstanding Footnote 14 - and drew an arbitrary line at the point of "abstract software."
The IP Law professors provided the Court with a better path - than the one chosen - out of the minefield of difficult implications for resolving the AT&T claim against Microsoft; namely, the professors opined that: "The Federal Circuit erred in extending section 271(f)(1) back through the supply chain so as to impose liability for the export from the United States of a template used to create something overseas."
This is a sound point and seems more persuasive than a strained textual analysis of the word "component" or the word "combined." You might say it is a policy argument, but it seems to me to be a sound legal argument concerning a limit on the length of the chain of liability in section 271(f).
There are numerous indications in Microsoft v. ATT that a sea change in patent law is afoot, but one indication of noteworthy recognition is Footnote 14.
First, the facts: AT&T holds a patent on a computer used to digitally encode and compress recorded speech. Microsoft’s Windows operating system has the potential to infringe that patent because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by the patent. Microsoft sells Windows to foreign manufacturers who install the software onto the computers they sell. Microsoft sends each manufacturer a master version of Windows, either on a disk or via encrypted electronic transmission, which the manufacturer uses to generate copies.
Those copies, not the master version sent by Microsoft, are installed on the foreign manufacturer’s computers. The foreign-made computers are then sold to users abroad. AT&T filed an infringement suit charging Microsoft with liability for the foreign installations of Windows. By sending Windows to foreign manufacturers, AT&T contended, Microsoft “supplie[d] . . . from the United States,” for “combination” abroad, “components” of AT&T’s patented speech-processing computer, and, accordingly, was liable under the Patent Act.
And, the holding: the Supreme Court held: Because Microsoft does not export from the United States the copies of Windows installed on the foreign-made computers in question, Microsoft does not “suppl[y] . . . from the United States” “components” of those computers, and therefore is not liable under the U.S. Patent Act.
Footnote 14: three justices, (Alito's concurrence), in the 7-1 majority explicitly indentified that they concurred with Justice Ginsburg's opinion except for footnote 14. Why did Justice Alito, Breyer, and Thomas explicitly disagree with footnote 14? Justice Ginsburg asserted in footnote 14 that the majority had not reached an issue raised by Microsoft concerning whether software on a CD-ROM installed on a computer would effectively be a component of the computer, notwithstanding that the CD-ROM is removed upon installation.
Justice Alito says no -- relying on the conclusion that section 271(f) of the Patent Act does not reach software that is not a physical part of a machine (computer).
Justice Ginsburg was, perhaps, more cautious in reserving the implications of footnote 14 for another day, but I doubt that the remaining 4 justices in the majority would disagree with Alito's conclusion. Of course, the determination of what constitutes a potential patented invention's components is not dramatically distinct from considerations of patent subject matter. Hence, the Court's conclusion that "abstract software" is not a component of a patented invention logically applies to the question whether a software patent constitutes abstract software masquerading as patent subject matter. This should spur some interesting discussions among folks paying license fees for dubious software patents. The Court seems to be hinting at a doctrinal move toward pushing back on the proliferation of software patents.
More generally. there are troubling problems with the Court's reasoning (or, more precisely, its textual analysis), and the line drawing the Court makes between at what stage software ranks as a component and what stage it doesn't is ephemeral. I will not identify all of he problems I see in this post, but may do so later. Certainly, it seems sound to say that a component of a patent invention cannot be an abstract idea, but is firmware more like software on a CD-ROM (usually not a component) or software on a hard drive? If Microsoft had exported hard drives abroad and the hard drive was "combined" with other parts of a computer, the Court, presumably, would have found Microsoft liable. What about the BIOS on a chip? Although I agree with the Court's outcome, I am less convinced of a principled basis for the Court's line drawing. The hypos I have proposed go beyond the facts in the case, but the Court's reasoning should still seem applicable, if it's valid. I am not so sure.
As a matter of policy, the Court's conclusion s remarkably sound; namely, that U.S. patent law generally should not reach extraterritorially except under Congress' narrowly circumscribed exception for exports of a patented invention's "components" for the purpose of combining those components in another country. Exporting abstract software - - whatever that may be held to mean in a given context - - does not come within the exception.
Rod Dixon, J.D., LL.M.