Potential legal pitfalls for University Information Technology Services are getting more complicated over time, as Yale and other schools dodge new wiretapping requirements and eye an upcoming trial on patent infringement.
In the wake of a court decision in June, it appears that Yale is exempt from regulations that would have required ITS to upgrade its systems so that law enforcement agencies could tap into them. But the jury is still out on a legal gamble that the University took last fall, when it declined to pay a fee on its use of video and audio transmission technology in return for protection from future patent infringement lawsuits. A preliminary phase of court hearings on the patent in question is expected to conclude this week.
The federal wiretapping mandate, which reinterpreted the Communications Assistance for Law Enforcement Act of 1994, requires Internet service providers to make it easier for the government — armed with a warrant — to eavesdrop on Internet-based phone calls. Yale administrators had been concerned that the necessary upgrades would cost up to $1 million, but a federal appeals court upheld the mandate while exempting “private networks” — a category that probably includes Yale, Information Security Officer Morrow Long said.
Long said that while he cannot offer a concrete legal opinion, his analysis of Yale’s systems since the court decision suggests that the University is off the hook. Yale’s network is not widely available to the public, and few users here make the “voice over IP” phone calls targeted by the requirement, he said.
“What hasn’t been nailed down is some of the regulatory processes and definitions, as well as the effect this is going to have on higher education,” Long said. “But I do like the fact that they conceded that the internal portions of the private network are off-limits to CALEA.”
A national coalition of universities called the American Council on Education sued the Federal Communications Commission over the mandate last year, claiming that it would cost universities $7 billion nationwide. The FCC acknowledged during the trial that private networks were exempt, but persuaded the court to uphold the requirement for public providers such as AT&T. Because Yale utilizes a number of such providers, law enforcement may still be able to monitor Internet-based calls going into and out of the network, Long said.
In a press release, FCC Chairman Kevin Martin said the judges’ 2-1 decision reflected the importance of ensuring safety and security.
“I am pleased that the Court agreed with the Commission’s finding, which will ensure that law enforcement agencies’ ability to conduct lawful court-ordered electronic surveillance will keep pace with new communication technologies,” Martin stated.
Even as the debate over CALEA begins to die down, the issue of patent infringement in higher education remains as controversial as ever.
University officials said they are still awaiting the outcome of a lawsuit in which Acacia Research Corporation claims to hold a patent for streaming technology applying to everything from in-class video screenings to downloads from university Web sites. Last October the company offered universities nationwide the chance to pay an annual royalty fee and be exempted from the results of upcoming litigation. But Yale officials rejected the $4,000 fee, saying they would rather risk greater royalties in the future than submit to a patent claim they felt was overly broad.
“I don’t understand how they could fairly apply it,” Director of Academic Media and Technology Charles Powell said this week. “[The October offer] looks like a form of insurance I really don’t need insurance for.”
Acacia Chief Executive Officer Paul Ryan said federal Markman proceedings, in which a court defines certain terms in the patent, are expected to wrap up this week. A full trial on the patent will probably start next year unless Acacia and the institutions it is suing reach a settlement first, Ryan said.
About 320 institutions have accepted Acacia’s offer to pay a flat royalty fee, Ryan said. Rates for the institutions that are currently holding out will be “significantly higher” if the company’s claims are upheld, he said.
Ryan said that well-known corporations such as Disney and Bloomberg have honored Acacia’s patent, suggesting that its claims are fair.
“Good patents are always viewed as too broad because they cover important new technologies,” he said. “Universities such as Yale make an enormous amount of money licensing patented technologies, so one would think, of all parties, they would be sensitive to the intellectual property of other people.”
The Acacia lawsuit is one of several on which the University is keeping its eye, including a patent claim on administrative networking technology that some believe could ultimately threaten the open-source software Yale uses in its Classes*v2 server. In addition, reports surfaced over the summer that the government was monitoring anti-protest communications at several universities across the country. And at a national conference last week, an expert on risk management in higher education suggested that if universities are not willing to monitor student activities online, the schools could be legally considered negligent.
Michael Geist, a professor at the University of Ottawa who studies Internet law, said the legal environment is becoming more hostile to universities in areas including privacy, copyright law and security.
“The challenges are absolutely more complex given that educational institutions are increasingly viewed as network intermediaries who can exert influence or even control of their users,” Geist wrote in an e-mail. “The universities were the incubators of today’s network, yet are increasingly called upon to betray the traditional principles of openness and access due to external legal demands.”
Powell said ITS investigates students’ online activities only when high-level University officials specifically request it.