Did A Former National Parks Employee Violate The CFAA By Tweeting About Climate Change?

from the the-tweets-heard-round-the-world dept

As you may have heard, over the past few days, there's been a lot of talk about various US government Twitter feeds "going rogue" in what many believe is an attempt at a bit of civil disobedience following gag orders being sent from the White House to various federal departments and agencies, with a particular ban on social media. Soon after that came out, the Twitter feed of the famed Badlands National Park in South Dakota, started tweeting about climate change:

Those tweets have since been deleted, but they certainly caused quite a stir, and there's even what claims to be a private rogue National Parks Service twitter feed that won't be silenced at @AltNatPartSer. That's apparently inspired other government employees to set up similar "rogue" Twitter accounts. As I write this, there are about two dozen such accounts on this list, with some personal favorites being the @Alt_FDA, the @RogueNASA and @AltFedCyberz. Now, it's important to state that there's no direct proof that these are actually run by federal employees, but the whole thing is fascinating to watch.

But, that alone doesn't necessarily make it worthy of a Techdirt post (yes, there's a possible Streisand Effect angle on all of this, but it remains to be seen how strong that really is). What caught my eye, however, was how the National Park Service eventually explained those original Badlands tweets, telling BuzzFeed that they were done by an ex-employee who had retained his password, but wasn't authorized to tweet from the account:

Now, the exact wording of that statement also made my ears perk up, because "not currently authorized to use the park's account" could have pretty serious legal consequences. As reporter Matt Pearce unfortunately, but correctly, points out, this could be interpreted, by some, to be a violation fo the CFAA.

You remember the CFAA, of course. That's the "anti-hacking" Computer Fraud and Abuse Act, that has an unfortunately long history of being twisted and questionably interpreted to mean that just about anything people don't like that you do on a computer is potentially a violation. In particular, many cases have focused specifically on what constitutes "without authorization" or "exceeds authorized access" under the law. The fact that the NPS directly claims that this person was "not currently authorized" certainly could be seen to trip the "without authorization" or "exceeds authorized access" lines.

Of course, the CFAA has different sections -- and most of the cases we talk about tend to focus on 1030(a)(4) which covers accessing information whose value is over $5,000. It's difficult to see how one could twist the Badlands tweets as being about accessing information valued at more than $5,000, but there is also 1030(a)(3), which one would hope also would not apply... but where you could see an overzealous DOJ try to make it stick. That's the section that says it's a violation of the CFAA to access a computer that "is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States."

Now, it's pretty clear that the intent here is to go after someone who hacks into a system and somehow interferes with the government making use of that computer (and, remember, the entire reason we have a CFAA is because some clueless politicians -- including Ronald Reagan -- freaked out about the very, very fictional movie War Games). But, given how the DOJ has stretched the interpretation of the CFAA in the past, would it be possible for them to try to claim that by making unauthorized access to a Twitter account, and tweeting those tweets, it was using a computer that "is used by the Government" and the "conduct affects that use by or for the Government of the United States" and that the access was "without authorization"? It... seems unfortunately possible.

So far, the administration doesn't seem too concerned about this... but just the fact that this is even possible is yet another reminder of just how ridiculous the CFAA is, and how it is in desperate need of serious reform.

Filed Under: cfaa, climate change, donald trump, former employee, national park service, tweets, unauthorized access

Yosemite Changing The Names Of Popular Park Landmarks Following The Most Ridiculous Trademark Dispute Ever

from the can't-find-the-words... dept

Yosemite National Park is apparently changing the names of a bunch of famous sites and buildings in the park thanks to one of the most ridiculous trademark disputes you'll ever hear about. Ever stayed at the famous historic Ahwahnee hotel? That's not what it will be called next time you go. Camped in Curry Village? Not any more. All thanks to... trademark law.

Almost exactly a year ago, I first heard about a potential for such a trademark dispute involving the famed Yosemite (a park I've spent lots of time visiting) and the company that had supplied concessions there since 1993, Delaware North Parks & Resorts (or, technically, its subsidiary, DNC Parks & Resorts at Yosemite). I had meant to write it up at the time, because the whole thing seemed insane -- but (like too many stories) never had the time. I then missed that, back in September, DNCY actually did sue (you can see the lawsuit itself), leading to the company demanding a ridiculous $44 million for the trademarks which no one seemed to know it had. But we'll get to that...

So, here's the backstory: part of the deal between the park and Delaware North in 1993, was that the company had to buy the assets of the previous operator, the Yosemite Park & Curry Company. That contract also noted that any new concession firm that took over from Delaware North would then have to purchase the assets from Delaware North. From the contract:

[DNCY will] sell and transfer to the successor designated by the Secretary its POSSESSORY INTEREST in CONCESSIONER and GOVERNMENT IMPROVEMENTS, if any, as defined under the contract, and all other of [DNCY] used or held for use in connection with such operations

... the Secretary will require such successor, as a condition to the granting of a contract to operate, to purchase from [DNCY] such POSSESSORY INTEREST, if any, and such other property, and to pay [DNCY] the fair value thereof.

The big issue is what the hell "such other property" entails. While some stories have reported that Delaware North secretly trademarked the names of key spots in the park, including the historic Ahwahnee hotel (for those who have been to the park, that's the fancy "nice" hotel in the park), others note that the trademarks were actually filed in 1988 by the Curry Company, and that means it's likely that Delaware North "acquired" them as part of its original agreement to purchase the assets of the Curry Company. Now it's important to note that those assets don't include the actual hotels or land or places or anything like that.

But it appears that everyone basically forgot about the trademarks.

Then, just as the Park started soliciting bids for a new concession contract, Delaware North dropped the trademark bomb on Yosemite, reminding them it had those registered trademarks on the names of every place where it ran the concessions -- and that if the park didn't renew with Delaware North, the new provider would need to pay $51 million for those trademarks and other assets, most of which it listed as "other property" under the contract.

The folks at Yosemite were... not pleased.

Delaware North's trademark claims come at a time when the park service is soliciting bids for a new concessionaire's agreement at Yosemite. Delaware North contends that if the park service decides to award the concessions agreement to another company, then the park service must pay Delaware North $51 million in "intellectual property rights" fees for the right to continue to use the names Ahwahnee Hotel, Badger Pass, Curry Village, the Wawona Hotel, and Yosemite Lodge, park documents show.

"This came as a complete surprise to us," said Yosemite chief spokesperson Scott Gediman, who is also a park ranger. "We did not think [Delaware North] would claim ownership to these names. ... These names belong to the American people."

Then, when Yosemite awarded the new concession contract to someone else, Delaware North stepped in and demanded many millions of dollars for the trademark going to court in September and eventually asking for $44 million for the names -- while the park says the trademarks are actually worth $1.63 million. Yosemite filed documents responding to the lawsuit and challenging many of Delaware North's claims, including the idea that Delaware North owns various improvements to facilities in the park, such as repainted walls. The park notes that under US law "once a capital improvement is constructed or installed by a concessioner on land owned by the United States in a National Park, title is vested in the United States." In some cases where Delaware North might have had an ownership claim, the reply notes, the company was obliged to first get approval from the National Park Service, which it failed to do.

And, then, a week or so later, Yosemite announced that it was going with the nuclear option of basically renaming everything in the park. Yosemite is basically saying "Hey, Delaware North, let's see how valuable your trademarks are if we just drop them entirely":

In an extraordinary move, the National Park Service announced Thursday that it was changing the names of The Ahwahnee hotel, Curry Village and other beloved park sites. The move, officials say, was forced on them by an intellectual property dispute with the park’s departing concessions company.

“We feel we have to change the names,” Yosemite spokesman Scott Gediman said in an interview Thursday. “With the ongoing litigation, we feel this step is necessary.”

The famed Ahwahnee is slated to become The Majestic Yosemite Hotel. Curry Village will become Half Dome Village, and the Wawona Hotel will become Big Trees Lodge.

In other changes, the popular Badger Pass Ski Area will be renamed the less evocative Yosemite Ski & Snowboard Area, and the Yosemite Lodge at the Falls will be reconfigured as the Yosemite Valley Lodge.

The park has a point, in that no one is coming there for the names. And while it'll certainly annoy traditionalists who are used to those names, it seems like a reasonable move to effectively pull the rug out from under Delaware North.

Still, the whole thing is pretty crazy -- starting with the idea that the concession provider should ever have held the trademarks on these classic and traditional names within a national park. Delaware North is somewhat apoplectic about this new move, claiming that it is "shocked and disappointed that the National Park Service would consider using the beloved names of places in Yosemite National Park as a bargaining chip in a legal dispute." Of course, that's hilarious since it was Delaware North who did that first, using "the beloved names" as a "bargaining chip" in trying to get its contract renewed. Delaware North also makes a bullshit claim that it had "previously offered to lease these trademarks, free of any charge" leaving out the fact that this required it to receive the new contract, rather than any competitor.

In the end, we're left with a ridiculous situation all around. These are trademarks that probably never should have existed in the first place, and if they did, they never should have been held by the concessions vendor. And then, once that happened, everything else becomes a huge mess, and ends with one of our most famous national parks changing the names on a number of historic places and landmarks. Isn't trademark law fun?

Filed Under: ahwahnee hotel, curry village, national park service, national parks, trademark, yosemite
Companies: delaware north, dncy