We recently covered a plan, hatched at SXSW, to crowdfund a billboard in Lamar Smith's home district, with the statement "Don't Mess With The Internet" on it -- in response to Smith's sponsorship of a series of anti-internet bills, most notably, SOPA. First the good news: the crowdfunding campaign reached its $15,000 goal, so it was funded.

However, it's worth noting that the folks over at the Austinist blog have mocked the plan, insisting that it infringes on Texas' trademark on "Don't Mess With Texas" (also the Austinist article seems to go back and forth between trademark and copyright, not recognizing that the two are different). Texas' Department of Transportation (DOT) holds a trademark on the phrase as part of its anti-littering efforts. I had actually thought about this earlier, as we've written about how the state of Texas has been overly aggressive with the trademark, such as going after book authors who have used the title.

Of course, there's a big problem here if Texas does decide to challenge this particular billboard: trademark law covers use in commerce. The billboard in question is not selling anything, is not used in commerce and is pretty clearly protected political speech. The Austinist blog seems to assume, incorrectly, that a trademark is a blanket rule that blocks any such use by anyone ever. That's wrong. It wouldn't surprise me to see Texas still complain and maybe even file a lawsuit, but I can't see how it has any chance of winning at all. In fact, if it did go down that path, the state of Texas might quickly learn that you "don't mess with the internet."

In an amazingly short and to the point ruling (embedded below), a judge in a district court in Southern Texas, Lynn Hughes, ruled that letting the government get mobile phone data without a warrant was unconstitutional:

When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. U.S. Const., amend. 4. The records show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act, 18 U.S.C. § 2703(d), is below that required by the Constitution.

Of course, there are a number of cases out there that have ruled on similar issues... and come to different conclusions. This is one of those issues that will continue to bounce around until the Supreme Court clarifies. Still, there's something nice about seeing a court ruling of this nature, where the judge doesn't waste any time at all, and basically just says, "Hey, 4th Amendment! Next!"

One of the big battles in the patent world, as you probably know, involves the convoluted ways in which companies try to file and keep patent lawsuits in the notoriously patent holder-friendly East Texas. A few years ago, the appeals court that hears patent cases reprimanded the East Texas courts and suggested they should be more willing to transfer cases to more reasonable locations.

This has resulted in some games being played by lawyers who want to keep cases in Texas. The popular one is to set up a totally empty office in some of the office buildings that seem to specialize in this kind of thing. That was a nice part of the recent This American Life episode about patents, where reporters Alex Blumberg and Laura Sydell literally went to one such famous building in Marshall, Texas, and knocked on doors to see if anyone actually occupied the offices of "patent troll" companies. Another strategy has been to sue random companies in East Texas along with the real targets. The small East Texas companies are usually dropped from the lawsuit later, but the patent trolls argue that with so many different companies in so many different places, East Texas is as good as any place... especially since at least one infringing company is right there! Of course, one nice thing about the recent patent reform bill is that it likely ends these attempts to bogusly join together unrelated defendants.

Of course, some lawyers go above and beyond such simple tactics. A personal favorite, of course, was the fact that TiVo literally bought a prize-winning bull in Marshall, Texas. Some say it was to influence the jury, but we wonder if it didn't also help establish a "presence" in East Texas.

Along those lines, it's interesting to note that a Silicon Valley lawyer-turned-patent troll, named Kevin Zilka, who has a rather dubious history with filing lawsuits in East Texas, apparently has set up a dog park in East Texas. Once again, the assumption is that this is a rather cynical attempt by Zilka to establish a reason for keeping cases that jurisdiction. Zilka, after all, is the guy who once sued a company four blocks away from his own offices in San Jose... but still filed the case nearly 2,000 miles away in East Texas. I'm sure the dog park is quite nice, but it sure seems like a massively cynical attempt to establish a "presence" for the sake of keeping cases in East Texas.

You've probably heard the phrase "don't mess with texas." It's pretty widely known in general, but what you might not know is that the phrase is actually trademarked by the Texas Department of Transportation as a part of an anti-litter campaign. I had no idea. Anyway, the state is quite upset that anyone might think of the phrase in any context other than combating litter. Stephen S. Power alerts us to the news that the state has sued over a romance novel with the phrase as its title. And they're going all in. They've sued the publisher of the book, Hachette Book Group, and the author, Christie Craig, and they're even going after Barnes & Noble for daring to stock the book. Amazingly, the state doesn't even seem to want to hide the fact that it's flat out abusing trademark law. Remember, trademark law is only supposed to prevent confusion and no "moron in a hurry" is going to think that the Texas Department of Transportation has put out a bodice ripper novel. And rather than allege that, the state seems to just be saying that it doesn't like sex:

"The book," TxDOT's suit says, "contains numerous graphic references to sexual acts, states of sexual arousal, etc."

They're afraid that this will harm their ability to keep the streets clean of litter. I'm not quite sure how. Of course, if you look, it appears that TxDOT does, in fact, have a number of federal registered trademarks on the phrase. I went through them all and not a single one appears to be for books, however. There are things like clothing, signs, luggage tags, beverage holders, garbage bags, "plastic squeeze flashlights," etc. But nothing about books.

Here's hoping the defendants do decide to "mess with Texas" and teach them a little something about trademark law.

Given a second chance to pass an anti-TSA groping bill in Texas, it appears that Texas state elected officials chickened out again. While the State Senate had watered down the bill so that it allowed the TSA to continue to do the "enhanced patdowns" if they had a "reasonable suspicion" (rather than the "probable cause" standard in the original bill), the House failed to vote on the newly revised bill by the end of the session yesterday, which apparently means that the bill can't be introduced again this year.

After Texas politicians (new motto: "don't mess with Texas, unless you threaten to take away our airplanes") backed down on a proposal to make TSA-style gropings illegal unless the TSA could show the Constitutional basis for them, many pointed out that the bill could not be reintroduced this session. However, according to Kashmir Hill, a loophole and a whole bunch of protesters complaining about politicians backing down may mean that the bill has one more chance this year.

Lt. Governor David Dewhurst, who was one of the main reasons why the bill died in the first place, has now asked the Governor, Rick Perry, to call the bill during a 30-day special session that resulted from the state's budget fight. Hill notes that Perry might not be willing to take on this issue, due to his own presidential aspirations, but Perry has a history of going his own way on certain things, so it could happen. I'm still not sure the bill really has enough support to make it, but it certainly would create an entertaining legal fight...

Apparently Texas has a bizarre tax law, in which newspapers don't have to pay sales tax, but where newspapers are very specifically defined as "being printed on newsprint, distributed in short intervals, disseminating the news, with an average sale price that doesn't exceed $1.50." Having that price point in there seems like a really strange static number. Of course, due to inflation, the Wall Street Journal and the NY Times have both increased their cover price such that they're over an average of $1.50, and the state government, so desperate for tax money, declared that both newspapers are no longer newspapers, and must now pay sales tax. Dow Jones paid the tax, but is now suing the state, claiming that the tax code represents a First Amendment violation.

While this may sound silly, there is a pretty strong basis for the lawsuit. There have been a few Supreme Court cases that cover similar grounds, including Minneapolis Star v. Minnesota Comm'r which found that a tax on ink for newspapers was prior restraint and a violation of the First Amendment and Grosjean v. American Press Co., Inc., where the Court found that a tax on newspapers that had a circulation of 20,000 was similarly a restraint on the First Amendment. It seems like the Texas tax is pretty similar to both of those situations...

Apparently, the new slogan for Texas is "don't mess with Texas... unless you threaten to stop all flights out of Texas... because then we'll fold." Following the US Justice Department warning the state that if it passed the bill to make overly aggressive TSA gropings illegal, the TSA might have to stop all flights originating in Texas. And, rather than call the feds' bluff, Texas politicians have shelved the bill. Apparently, this means the same bill cannot be reintroduced this session. Some have pointed out that the bill probably didn't have enough support to make it through anyway, but it makes you wonder how much of that was due to threats from the feds.

We've already covered the proposal in Texas to make TSA airport gropings illegal, and we've already noted that the TSA insists that it can safely ignore such a law (an argument that some dispute). However, now the Justice Department is apparently telling the Texas legislature that if it passes the law, flights out of Texas could be banned:

If HR 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

That's a mighty big stick the feds are pulling out there. The sponsor of the bill says the whole thing is ridiculous. He notes (quite craftily) that the bill clearly exempts TSA officials from being liable for criminal prosecution under the bill, if they can show the Constitutional reasons that allow them to grope anyone's private parts:

"The bill clearly states that an agent is exempt from prosecution as long as a constitutionally sanctioned federal law directs them to perform the invasive, indecent groping searches-including touching breasts, sexual organs and buttocks," noted State Representative David Simpson (R-Longview), the bill's author.

"Instead of threatening to shut down flights in Texas, why doesn't the TSA just show us their statutory authority to grope or ogle our private parts?" asked Simpson.

"All that HB 1937 does is require that the TSA abide by the Fourth Amendment to the US Constitution," Simpson continued. "We aren't even prohibiting the pat-downs, per se. We're just saying you can't go straight to third base. You have to have a reason-you have to have probable cause-before groping someone's sexual organs."

Things certainly could get interesting. In the meantime, perhaps don't plan too many trips that involve flying out of Texas in the near future.

We've discussed an attempt in New Hampshire to make TSA agents liable to be accused of sexual assault for patdowns, and now we learn that a bill is making its way through the Texas legislature that would criminalize the aggressive groping procedures, if there is no "probable cause." That choice of words is obviously quite intentional, as the idea is to refer back to the 4th Amendment. Unfortunately, courts have not found that such airport searches violate the 4th Amendment, though they've become ever more intrusive over the years.

The big question, of course, is what happens if this bill passes and becomes a law (apparently it has a large number of co-sponsors). It would create a difficult position for TSA agents in Texas, and I imagine a lawsuit would eventually be needed to resolve things. But all of that depends on whether or not the bill will ever actually pass. I could definitely see the White House putting pressure on Texas' governor to veto the bill... Still, with various states now looking to pass laws against these procedures, isn't it time the administration and the TSA reconsider these procedures?