Digital Media Law Project

Seven Years of Serving and Studying the Legal Needs of Digital Journalism

Jeff Hermes — Tue, 24 Jun 2014 20:00:28 +0000

We have some important news to share from the Digital Media Law Project. After seven years of providing legal assistance to independent journalism through various methods, the DMLP will soon spin off its most effective initiatives and cease operation as a stand-alone project within the Berkman Center. The upcoming changes will ensure that our work continues in a robust and sustainable fashion, and so, while those of us here are a bit melancholy to see the end of an era, we are hopeful for what comes next.

I wanted to take this opportunity to look back over the history of the DMLP and its accomplishments, and to talk a bit about what the future will hold for our work.

The Beginning

In 2007, a group of scholars and attorneys at the Berkman Center for Internet & Society recognized a growing problem for online speech: namely, that a vast array of bloggers, citizen journalists, and other non-professional writers were publishing information on the Internet without a solid understanding of their rights and responsibilities under the law. Those without legal training or resources were unprepared for challenges such as defamation, privacy, and copyright claims, and often ran into pitfalls when dealing with issues such as corporate formation, contract negotiation, and development of website policies.

While the Berkman Center had been providing legal services to online ventures for several years through the Harvard Law School Cyberlaw Clinic, this growing need among independent publishers was simultaneously too widespread for the Clinic to address through its existing service model and too basic in many specific instances to present a valid case-by-case training opportunity for law students. A different approach was required.

Thus, in May 2007 the Berkman Center launched a new experiment: the "Citizen Media Law Project." The CMLP was an offshoot of the Cyberlaw Clinic, intended to address the lack of legal knowledge among bloggers and citizen journalists through the publication of online informational resources targeted at lay readers. The CMLP's primary resource was a detailed Legal Guide, which provided basic information on a broad array of media law and business law topics that online publishers could expect to encounter. The CMLP's Threats Database tracked legal challenges to online speech, such as lawsuits, police activity, and cease and desist letters, in order to address the lack of publicly available background information and primary source material relating to this type of activity.

The CMLP also engaged in a number of public outreach efforts, including organizing conferences, making speaking appearances, publishing its regular blog, and maintaining an online forum for discussion of legal issues affecting digital speech. These activities had the effect of raising the public profile of the project as an authoritative source of legal information.

The Online Media Legal Network

While these resources were successful and popular, there remained situations where citizen journalists and bloggers required more than just general legal information; rather, they needed the direct assistance of attorneys. Many members of the CMLP's audience were unable to afford counsel to support their legal rights, even if thanks to the CMLP's resources they had an understanding of those rights. Occasionally, CMLP staff members would represent a client directly in connection with narrowly defined legal questions; more commonly, the CMLP would appear as an amicus curiae in cases involving free speech issues. But this was insufficient to meet the needs of the CMLP's constituency.

Again, a broader solution was necessary, and in November 2009 the CMLP expanded its ability to support clients with the launch of its free attorney referral service, the Online Media Legal Network. The launch of the OMLN marked a quantum leap in the breadth and impact of the CMLP's services, placing individual online media clients in contact with skilled media and business attorneys throughout the United States willing to provide legal services on a pro bono or reduced fee basis. The network expanded dramatically as the CMLP promoted the concept of pro bono media law services, eventually reaching the point where the OMLN's member attorneys included hundreds of law firms, individual attorneys, and legal clinics, with members in all fifty states (plus the District of Columbia) and affiliations with international media law networks.

The "Early Warning System"

Throughout the growth of the project, the CMLP was building relationships with a wide array of partners, including the attorneys of the OMLN and their clients, non-profit organizations dedicated to journalism and online freedom, academic affiliates at other universities, and journalists and press organizations experimenting with online media. These individuals and organizations were eager to share their experiences with law in the digital age, and it became apparent that this feedback could provide critical information about breaking legal issues affecting online speech.

The CMLP began to treat these networks as an "early warning system" for legal questions worthy of attention. For example, at the end of 2011, the CMLP's networks alerted the project to issues at the Internal Revenue Service with respect to the agency's withholding of tax exemptions for non-profit journalism. Over the next three months, the CMLP investigated the issue and developed a tailored response in the form of an interactive resource that identified the challenges for journalism at the IRS, demystified the IRS's decision-making process, and provided guidance for meeting the agency's standards. The CMLP's IRS resource was extremely well received, and appears to have had a significant role in breaking up a backlog of applications at the agency.

Through the early warning system approach, the CMLP added greater flexibility to its operations, allowing us to identify new systemic imbalances in the law affecting online speech and to develop responses accordingly. This approach provided the CMLP with the guiding principle for its research, speaking appearances, and interventions in court cases.

Putting the Pieces Together

Over time, the CMLP organized its various efforts into five core initiatives: (1) the Legal Guide; (2) the Threats Database; (3) the Online Media Legal Network; (4) a "Research and Response" system to handle emerging issues; and (5) CMLP publishing through a series of online fora, including this blog. It was now easier to see how the activities of the project could function together to provide a coordinated set of legal resources for the public. When a client needed to speak to an attorney, they could be sent to the OMLN, but when their issues were not ripe enough to need a one-on-one consultation, the Legal Guide could serve their needs. The Threats Database provided attorneys and academics with neutral information about pending cases, but when legal issues became a problematic trend, the Research and Response initiative would develop more targeted responses. The CMLP blog changed in its tone from a forum for general commentary to a source for deeper insight and analysis of breaking issues at the intersection of law, technology and journalism.

It had also become clear that the original concept of the CMLP as serving a class of amateur bloggers and citizen journalists distinct from professional news outlets did not accurately reflect the nature of the online publishing environment. The CMLP had repeatedly encountered and assisted professional journalists who were nevertheless independent of traditional media outlets, either by choice or due to the economic disruption of the journalism industry. The project found that these clients had needs as significant as those of their "citizen" counterparts. The project recognized that distinctions between professional and citizen journalists were less important than analyzing the needs of online media as a whole.

The "Digital Media Law Project"

With this shift of focus, the project was able to respond to a range of important legal issues, including: First Amendment protection for the use of cameras to record the actions of public officials; legal constraints on newsgathering at the 2012 U.S. political conventions and the use of cameras at the 2012 national elections; the abuse of trademark law as a method of suppressing critical speech; the impact of legal regimes governing online intermediaries on data journalism and crowdsourced reporting; the use of digital technology to inform the public about judicial activity; systemic issues in the issuance of media credentials by government and private organizations; and more. Formalizing its new approach, the CMLP removed "Citizen" from its name in 2013, becoming the "Digital Media Law Project."

The Online Media Legal Network had by this time also emerged as an independent source of data for research purposes. By September 2013, the OMLN had placed its 500th client matter with a network attorney. In recognition of that milestone, the Digital Media Law Project conducted a comprehensive survey of its past clients and their legal needs, releasing that information in a report entitled The Legal Needs of Emerging Online Media: The Online Media Legal Network at 500 Referrals. This review of the issues facing a substantial sample of new and innovative online journalism ventures revealed that these clients' legal needs were in many respects not very different from those of traditional media organizations; while there were some distinctions, the primary difference lay in their ability to meet those needs.

The Future

Fundamentally, the Berkman Center is an incubation space that fosters experimentation in the study of the Internet and the development of tools and services that address the online world's many challenges. After seven years at the Berkman Center, the DMLP has grown from an experimental project that addressed the legal needs of an emerging class of bloggers and citizen journalists into a service organization that provides structured legal resources for the entire range of independent online journalism. We are extraordinarily proud of the work the DMLP has done, but now that the experimentation phase of the project is over, we have determined that the best path forward is to identify the most useful elements of the DMLP's operation, and make sure that they have permanent homes.

Some of our services - most notably our Legal Guide and Threats Database, along with our collection of research studies - will remain at the Berkman Center, reintegrated into the Cyberlaw Clinic where they will benefit from the support of law students and serve not only as an important resource for the public but as a tool to train young attorneys about legal issues vital to online communication. While our blog will cease publishing new posts, our archive of blog entries will remain available to the public. The Online Media Legal Network will find a new home outside of the Berkman Center with a non-profit organization that shares the DMLP's commitment to providing legal services to online media (we have a very exciting prospect lined up, but it's a bit early to report). While different aspects of the DMLP's work will continue in different places, we expect that the organizations taking on this work will work closely together to provide a coherent set of resources that address the diverse legal needs of online media.

These transitions will take place over the next few months, and the DMLP itself will wind up operations as an independent project as of September 30. As for those of us who work at the DMLP, we'll be moving on to other projects as well. I myself will be stepping back from my full-time role as the director of the DMLP as of June 30, but will be serving as a consultant to the Berkman Center through the transition period. Andy Sellars, our assistant director, will join the Cyberlaw Clinic as a Clinical Fellow and continue his work on freedom of speech and intellectual property issues in that context, including supervision of the Legal Guide and Threats Database in their new home. We don't know yet who will take custody of our office spider plant, Meiklejohn, but we're sure that the decision will be made by an electorate informed by the free flow of ideas.

***

It has been our pleasure to serve our constituency of online media projects and independent journalists over the last seven years, and those of us at the DMLP look forward to continuing this work in new ways. I would like to offer our gratitude to all of our colleagues at the Berkman Center (and especially the team at the Cyberlaw Clinic), our partners at other organizations, the volunteer attorneys of the Online Media Legal Network, our roll of contributing bloggers, and all of our donors and foundation supporters.

Most especially, I would like to thank: our founder and first director, David Ardia; our mentors and principal investigators, Phil Malone and Urs Gasser; Cyberlaw Clinic Managing Director Christopher Bavitz; my assistant director, Andy Sellars; and all of the other staff and interns of the CMLP/DMLP throughout the years: Sharo Atmeh, Julie Babayan, Lee Baker, Sam Bayard, Kristin Bergman, Reed Bienvenu, Rebekah Bradway, Arthur Bright, Jillian Button, Lauren Campbell, Tom Casazzone, Tuna Chatterjee, L.T. Ciaccio, Jason Crow, Alexandra Davies, Nicholas DeCoster, Jim Ernstmeyer, Vanessa Fazio, Courtney French, Helen Fu, Kelly Hoffman, Marshall Hogan, Kimberley Isbell, Olivia Jennings, Kyle Junik, Dan Kahn, Ryan Kane, Jane Kleiner, Erika Kweon, Frances Katz, Michael Lambert, Tim Lamoureux, Jason Liss, Matt Lovell, Katie Mapes, Ryan McGrady, Tabitha Messick, Natalie Nicol, Daniel Ostrach, Marc Pennington, Marina Petrova, Rich Quincy, Colin Rhinesmith, Amanda Rice, Caity Ross, David Russcol, Matt C. Sanchez, Alison Schary, Samantha Scheller, Natalie Senst, John Sharkey, Justin Silverman, Brittany Griffin Smith, Aaron Sokoloff, Lina Somait, Jillian Stonecipher, Konstantinos Stylianou, Tom Sullivan, Yixin Tang, Daniel Ungar, Caitlin Vogus, Miriam Weiler, and Stefani Wittenauer.

Addendum: The DMLP by the Numbers

Number of Legal Guide Entries: 700
Legal Guide Unique Pageviews: Over 9.15 million
Most Viewed Legal Guide Page: Recording Phone Calls and Conversations
Number of Threat Entries: 1,005
Threat Entry Unique Pageviews: Over 970,000
Most Viewed Threat Entry: Snyder v. Phelps
Number of Blog Entries: 1,113
Top 5 Most Popular Blog Entries:
Number of C/DMLP Amicus Briefs: 26 in leading role, joined many others
Number of OMLN Member Attorneys: 313
Number of States Represented by OMLN Attorneys: 50, plus the District of Columbia
Number of Client Matters Assigned to OMLN Attorneys: Over 530
Number of C/DMLP media mentions/press interviews: Over 180
Total Number of Staff & Interns, 2007-2014: 68
Total Project Funding, 2007-2014: $1.45 million

Jeff Hermes has been the Director of the Digital Media Law Project since 2011, and has been proud of every minute.

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DMLP Announcement: A New Report on Media Credentialing in the United States

DMLP Staff — Tue, 03 Jun 2014 15:01:16 +0000

The Digital Media Law Project at Harvard University's Berkman Center for Internet & Society and the Journalist's Resource project at Harvard's Shorenstein Center on Media, Politics and Public Policy are pleased to release a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.

Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.

Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.

"Media credentials represent one of the most important interactions between journalists and those who control access to events and information," said Jeff Hermes, director of the Digital Media Law Project and lead author of the report. "This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States."

Survey respondents included a wide range of journalists across the country, from employed journalists at long-standing media organizations to independent bloggers and activists fulfilling the information needs of their communities.

"The findings here speak to the vital issue of ensuring that journalists of all kinds can bear witness to important events in our society," said Shorenstein Center Director Alex S. Jones. "The ability of the press to operate freely, robustly and without interference is essential to an informed public. We must be vigilant in making sure that all organizations issuing press credentials exert the maximum effort to accommodate media members and enable the free flow of information."

The survey asked about respondents' experiences in seeking press credentials from federal, state, local, and private organizations from 2008 through 2013, revealing the following nationwide trends:

One out of every five journalists surveyed who applied for a credential was denied at least once by a credentialing organization in the past five years. Although there may be reasonable grounds for denial in some cases, the data suggest systemic issues at many levels.
Freelancers are more than twice as likely as employed journalists to be denied a credential at least once.
Those identifying themselves as photographers are almost twice as likely as others to be denied a credential at least once.
Those identifying themselves as activists are more than twice as likely as others to be denied a credential at least once.

Who Gets a Press Pass? is a report of the Media Credentialing Working Group, a collaboration of six non-profit organizations with a common interest in the ability of journalists and photographers to inform the public about important events: the Digital Media Law Project, Journalist's Resource, the National Press Photographers Association, Free Press, the Investigative News Network, and the Nieman Journalism Lab. It is the hope of the Working Group that this study will help newsgatherers to identify particular tensions in media credentialing practices and to work with credentialing agencies to resolve these tensions.

The report is available here. Press inquiries may be directed to the Digital Media Law Project here, and to Journalist's Resource here.

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United States

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Will E.U. Court's Privacy Ruling Break the Internet?

Eric P. Robinson — Tue, 13 May 2014 19:43:53 +0000

In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) -- meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).

Now, the European Court of Justice has issued a decision (summary) that could require search engines to remove links to online information about individuals that is "no longer necessary in the light of the purposes for which they were collected or processed." The court's decision does not discuss how the removal of these links should be accomplished.

The court's decision stemmed from a case brought by Spanish citizen Mario Costeja González, seeking removal from a newspaper's web site images of pages from January and March 1998 that included announcements for a real estate auction stemming from attachment proceedings for the recovery of social security debts owed by Costeja González. He complained to Spain's Agencia Española de Protección de Datos (Spanish Data Protection Agency; AEPD) (Spanish site; English resources), seeking removal of the information from the paper's website and from Google's search results.

AEPD held that the newspaper need not remove the material, since it published it under a legal directive. But it upheld the complaint against Google, saying that Costeja González had the right to shield the information from public view via the search engine. Google appealed to Spain's Audiencia Nacional (National High Court). That court sought an advisory opinion from the European Court of Justice -- the highest court in the European Union -- regarding the applicability of EU privacy laws to the case.

European law embodies a concept of privacy that is in many ways alien to American law, and would be unconstitutional under our First Amendment. This includes a right to bar or recover for publication of true but "private" information that is readily available publicly, and a right to shield dated information, often referred to as a "right to be forgotten."

The question before the court was whether the EU directive embodying these notions (Directive 95/46) applied to Google. This, in turn, depended on whether Google could be considered a content provider. The court held that it was, even though the information that Google collects and displays in its search results is already published online by someone else. Since Google is a content provider, the court held, it is obliged to follow the privacy directive.

Inasmuch as the activity of a search engine is therefore liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved.

Google Spain SL v. Agencia Española de Protección de Datos (AEPD), Case C‑131/12 (E.C.R. May 13, 2014), para. 38.

The court also ruled that Google was subject to Spain's jurisdiction, including its law applying Directive 95/46, because of Google's web site directed at the country (www.google.es). The court rejected Google's argument that it was Google, Inc., in the United States that performed the indexing and search functions at issue, rather than the Spanish subsidiary: "Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory." Id., para. 57.

After finding that the directive applies to Google, the court held that the search engine could be ordered to remove links to the objectionable material from search results for Costeja González's name.

[I]n order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

Id., para. 88.

The irony -- expressed in the last sentence above -- is that the court also observed that the newspaper that posted the notices of the auctions in the first place could not be required to remove those postings because they were published "solely for journalistic purposes," which is included within "the right to receive and impart information" guaranteed in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and referenced in the directive.

The court justified the different treatment of the newspaper and Google by staing that "first, the legitimate interests justifying the processing may be different [for the newspaper and the search engine] and, second, the consequences of the processing for the data subject, and in particular for his private life, are not necessarily the same." Id., para. 86.

Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.

Id., para. 87 (emphasis added).

The court acknowledges that these "rights override ..., not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name. " Id., para. 97. The court adds that this may not be true in the case of a promient person in public life, which may mean that the public interest in disclosure would outweigh that person's right to privacy.

But since Costeja González is not a public person, he may request removal of the articles from Google's search results even though he cannot request removal of the same articles from the newspaper's website. Again, this would not be the case under United States law, regardless of the plaintiff's status as a private or public figure. In the U.S., privacy law generally does not provide a remedy for the dissemination of true information that is already publicly available; moreover, the compelled removal of such information would raise serious issues under the First Amendment as prior restraints on speech.

The case now returns to the Spanish Audiencia Nacional for a specific decision in Costeja González's case, which can be appealed to Spain's Supreme Court. But the EU court's decision is binding on member states of the European Union, and could lead to more efforts by Europeans to have embarrassing or other material removed from web search results, even when the original site containing the material has no obligation to remove it.

Google has stated that it is "analys[ing] the implications" of the ECJ ruling, but requiring the modification of search results in response to what will likely be a flood of complaints from residents of EU countries puts Google in the difficult (if not impossible) position of either managing these complaints at significant cost or taking a blunderbuss approach to removal of content. And would such results persist outside the EU? Content filtering by country is not a new concept, but this ruling has the potential to create a dramatically different Internet in Europe.

There could also be a significant impact on the news organizations that, as the ECJ acknowledges, have the right to publish this information. The ECJ, in its ad hoc balancing of interests, seems blind to the fact that news organizations depend on search engines and other online intermediaries in order to reach their audiences. Allowing the subjects of news coverage to use these intermediaries as a choke point because the intermediaries are not themselves journalists threatens the primary benefit of the Internet -- namely, the networked dissemination of information.

Operating on the Internet has always posed challenges in complying with the laws of multiple countries. Search engines in particular have had problems in the past dealing with Great Britain's privacy laws, France's laws against Nazi memorabilia, and China's web restrictions. But this ruling by the European Court of Justice might just be the straw that breaks the camel's -- or the Internet's -- back.

Eric P. Robinson is co-director of the Program in Press, Law and Democracy at the Manship School of Mass Communication at Louisiana State University. He has taught media law and ethics at the CUNY Graduate School of Journalism, Baruch College, and the University of Nevada, Reno, where he was also Deputy Director of the Donald W. Reynolds Center for Courts and Media. He has also been a staff attorney at the Media Law Resource Center and a legal fellow at the Reporters Committee for Freedom of the Press. In addition to his posts here, he maintains his own blog at bloglawonline.com.

(Image courtesy of Flickr user The.Rohit pursuant to a Creative Commons CC BY-NC 2.0 license.)

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Privacy

Baidu's Political Censorship is Protected by First Amendment, but Raises Broader Issues

Natalie Nicol — Wed, 30 Apr 2014 13:22:26 +0000

Baidu, the operator of China’s most popular search engine, has won the dismissal of a United States lawsuit brought by pro-democracy activists who claimed that the company violated their civil rights by preventing their writings from appearing in search results. In the most thorough and persuasive opinion on the issue of search engine bias to date, a federal court ruled that the First Amendment protects the editorial judgments of search engines, even when they censor political speech. This post will introduce the debate over search engine bias and the First Amendment, analyze the recent decision in Zhang v. Baidu, and discuss the implications of the case for both online speech and search engines.

Search Engine Bias and the First Amendment

When users enter a query into a search engine, the search engine returns results ranked and arranged by an algorithm. The complicated algorithms that power search engines are designed by engineers and modified over time. These algorithms, which are proprietary and unique to each search engine, favor certain websites and types of content over others. This is known as “search engine bias.”

The question of whether search engine results constitute speech protected by the First Amendment is particularly important in the context of search engine bias, and has been the subject of considerable academic debate. Several prominent scholars (including Eric Goldman, Eugene Volokh, and Stuart M. Benjamin) have argued that the First Amendment encompasses results generated by search engines, thus largely immunizing the operators search engines from liability for how they rank websites in search results. Others (primarily Tim Wu) have maintained that because search engine results are automated by algorithm, they should not be granted the full protection of the First Amendment.

Until now, only two federal courts had addressed this issue. See Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007); Kinderstart v. Google, 2007 WL 831806 (N.D. Cal. 2007). In dismissing claims against Google, Microsoft, and Yahoo brought by private plaintiffs dissatisfied with how their websites ranked in search results, both courts concluded after limited analysis that search engine results are protected under the First Amendment.

Baidu in Court

In May 2011, eight Chinese-American activists who described themselves as “promoters of democracy in China” filed a complaint against Baidu in the United States District Court for the Southern District of New York. The plaintiffs, who are residents of New York, alleged that Baidu had violated their First Amendment and equal protection rights by “censoring and blocking” the pro-democracy content they had published online from its search results, purportedly at the behest of the People’s Republic of China. While the plaintiffs’ content appeared in results generated by Google, Yahoo, and Bing, it was allegedly “banned from any search performed on … Baidu.”

Baidu responded by filing a motion for judgment on the pleadings. Baidu argued that the plaintiffs’ suit should be dismissed based on the longstanding principle that the First Amendment “prohibits the government from compelling persons to speak or publish others’ speech.” Baidu also accused the plaintiffs of bringing a meritless lawsuit “for the purpose of drawing attention to their views.”

Last month, United States District Judge Jesse M. Furman concluded in a thoughtful decision that that the results returned by Baidu’s search engine constituted speech protected by the First Amendment, dismissing the plaintiffs’ lawsuit in its entirety.

Judge Furman began his analysis with a discussion of Miami Herald Publishing Co. v. Tornillo, a 1974 decision in which the Supreme Court held that a Florida statute requiring newspapers to provide political candidates with a right of reply to editorials critical of them violated the First Amendment. By requiring newspapers to grant access to their pages the messages of political candidates, the Florida law imposed an impermissible content-based burden on newspapers’ speech. Moreover, the statute would have had the effect of deterring newspapers from running editorials critical of political candidates. In both respects, the statute was an unconstitutional interference with newspapers’ First Amendment right to exercise “editorial control and judgment.”

The court then cited Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which extended the Tornillo principle beyond the context of the press. In that case, the Supreme Court ruled that Massachusetts could not require organizers of a private St. Patrick’s Day parade to include among marchers a group of openly gay, lesbian, and bisexual individuals. This was true even though parade organizers did not create the floats themselves and did not have clear guidelines on who and what groups were allowed to march in the parade. Once again, the Court held that requiring private citizens to impart a message they did not wish to convey would “violate[] the fundamental rule of protection under the First Amendment . . . that a speaker has the autonomy to choose the content of his own message.”

These decisions taken together, according to the court, established four propositions critical to its analysis. First, the government “may not interfere with the editorial judgments of private speakers on issues of public concern.” Second, this rule applies not only to the press, but to private companies and individuals. Third, First Amendment protections apply “whether or not a speaker articulates, or even has, a coherent or precise message, and whether or not the speaker generated the underlying content in the first place.” And finally, that the government has noble intentions (such as promoting “press responsibility” or preventing hurtful speech) is of no consequence. Disapproval of a speaker’s message, regardless how justified the disapproval may be, does not legitimize attempts by the government to compel the speaker to alter the message by including one more acceptable to others.

In light of these principles, the court reasoned that “there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation.” In retrieving relevant information from the “vast universe of data on the Internet” and presenting it in a way that is helpful to users, search engines make editorial judgments about what information to include in search results and how and where to display it. The court could not find any meaningful distinction between these judgments and those of a newspaper editor deciding which wire-service stories to run and where to place them, a travel guidebook writer selecting which tourist attractions to mention and how to display them, or a political blog choosing which stories it will link to and how prominently they will be featured.

Judge Furman made clear that the fact that search-engine results are produced algorithmically had no bearing on the court’s analysis. Because search algorithms are written by human beings, “‘they ‘inherently incorporate the search engine company engineers’ judgments about what materials users are most likely to find responsive to their queries.’” When search engines return results, ordering them from first to last, “they are engaging in fully protected First Amendment expression,” the court concluded.

The court declined to see any irony in holding that the democratic ideal of free speech protects Baidu’s decision to disfavor speech promoting democracy. “[T]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy.”

Implications for Online Speech and Search Engines

As the amount of content on the Internet grows exponentially, search engines play an increasingly important role in helping users navigate an overwhelming expanse of data – Google alone processes 100 billion search queries each month. As such, there is a definite public interest in shielding search engines from civil liability and government regulation. The decision in Zhang v. Baidu promotes strong constitutional protections for some of the Internet’s most heavily relied-upon intermediaries, making it clear that search engines cannot be compelled to include in their results the speech of others. Though not addressed in this case, these protections complement those guaranteed to search engines by Section 230 of the Communications Decency Act . CDA § 230(c)(1) immunizes search engines from most kinds of tort liability for publishing the third-party content of others, while CDA § 230(c)(2) protects their decisions to remove it.

If search engines were subject to civil liability in the United States for the ways in which they display and rank content in search results, individuals would have the power to alter or censor those results via the federal courts. In addition to the obvious financial consequences of civil liability for search engine operators (the plaintiffs in Zhang v. Baidu sought more than $16 million in damages), such a course could result in significant compliance burdens. To better understand how this might play out, one must look no further than this order by a French court requiring Google to remove from search results at the request of a British executive certain images which had been deemed to violate his right of privacy in a United Kingdom lawsuit. The court seemed to take the position that Google’s argument that the First Amendment protected its search results was inconsistent with the “neutral and passive role of a host,” as required to claim the protection of French intermediary law. Marie-Andree Weiss did an excellent write-up on this controversial decision for the Digital Media Law Project.

Though it has been rightfully heralded for reaching the conclusion that operators of search engines are exercising their First Amendment rights when deciding which websites to display in what order, the decision in Zhang v. Baidu has serious and potentially negative practical consequences for online speakers. Search engines play a critical role in helping online speech be discovered. Allowing search engines to prevent certain types of content from being indexed in search results could mean that some online speech will be nearly impossible to find without a direct link to where it exists online. A tremendous amount of power over what online speech can be easily located now rests in an ever-dwindling number of private entities. Proposals for a publicly-controlled, open source search engine belonging to “The People” have yet to gain traction.

Attorneys for the plaintiffs in Zhang v. Baidu have announced plans to appeal the decision to the U.S. Court of Appeals for the Second Circuit. Should the Second Circuit adopt the line of reasoning laid out so clearly by the district court, plaintiffs across the country considering bringing a lawsuit over search engine bias would be hard-pressed to overcome the First Amendment hurdles put in place by this likely influential precedent.

Natalie Nicol earned her J.D. from University of California, Hastings College of the Law. During law school, she worked as an intern at the Digital Media Law Project, the Electronic Frontier Foundation, and the First Amendment Project.

(Image courtesy of Flickr user simone.brunozzi pursuant to a Creative Commons CC BY-SA 2.0 license.)

Jurisdiction:

New York

Subject Area:

Tarantino v. Gawker Media, LLC

DMLP Staff — Fri, 25 Apr 2014 12:36:01 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

Gawker Media, LLC; Gawker Media Group, Inc; Gawker Entertainment, LLC; Doe 1 aka AnonFiles.com; Does 2 through 10

Date:

01/27/2014

Type of Party:

Individual

Status:

Concluded

Type of Party:

Individual

Organization

Media Company

Disposition:

Dismissed (total)

Location of Party:

California

Location:

California

Jurisdiction:

California

Location of Party:

New York
Delaware
Cayman Islands

Legal Counsel:

Henry L. Self; Martin D. Singer; Evan N. Spiegel

Source of Law:

United States

Verdict or Settlement Amount:

N/A

Legal Claims:

Court Name:

United States District Court for the Central District of California, Western Division

Legal Counsel:

Jean-Paul Jassy; Robert Penchina; Thomas Curley; Kevin L. Vick (for the Gawker defendants)

Court Type:

Federal

Tarantino, a multiple Oscar winning and nominated writer and director, is the writer and owner of a screenplay entitled The Hateful Eight. The script was leaked by unknown persons. On January 22, 2014, the website Gawker.com published an article about the leak... read full description

Case Number:

2:14-cv-00603

Web Site(s) Involved:

defamer.gawker.com

Relevant Documents:

2014-01-07-Complaint.pdf

2014-03-10-Gawker mo to dismiss.pdf

2014-03-24-Tarantino opp to mo to dismiss.pdf

2014-03-31-Gawker reply in support of mo to dismiss.pdf

2014-04-22-Order granting mo to dismiss.pdf

2014-05-01-First Amended Complaint.pdf

2014-05-07-Notice of Dismissal.pdf

Tarantino, a multiple Oscar winning and nominated writer and director, is the writer and owner of a screenplay entitled The Hateful Eight. The script was leaked by unknown persons. On January 22, 2014, the website Gawker.com published an article about the leak and Tarantino's reaction, and solicited readers to provide Gawker with a copy of the script. The following day, Gawker.com carried an article on its website with a hyperlink to a website where the document appeared.

Tarantino filed a complaint in the U.S. District Court for the Central District of California against Gawker Media, LLC, Gawker Media Group, Inc., and Gawker Entertainment, LLC (collectively, "Gawker") and Does 1-10, asserting the following claims:

Copyright Infringement [17 U.S.C. § 101 et. Seq.] (against Does 1-10)
Contributory Copyright Infringement [17 U.S.C. § 101 et. Seq.] (against defendants Gawker and Does 2-10)

The complaint alleges that Doe 1, also named as "AnonFiles.com," provided a full copy of the screenplay for download, which copy was either uploaded by Gawker or uploaded by another Doe defendant with Gawker's encouragement, and that other Does committed direct infringement by accessing the copy. The complaint further alleges that Doe 1 failed to respond timely or effectively to a DMCA takedown notice. The contributory infringement claim against Gawker is based on Gawker's providing a link to AnonFiles.com.

Gawker filed for a motion to dismiss for failure to state a claim upon which relief could be granted. Gawker argued that contributory infringement could not exist in the absence of direct infringement, and that merely accessing the script by clicking on the link provided by Gawker was not copyright infringement. Moreover, Gawker asserted merely encouraging others to read - but not copy, distribute, or otherwise use - the script on another site was not encouragement of copyright infringement. Finally, Gawker argued that publishing links to extant copies of Tarantino's work in the context of a news report was a non-infringing fair use pursuant to 17 U.S.C. § 107.

Tarantino, in his opposition to Gawker's motion, argued that the complaint's allegations that third parties accessed the screenplay via Gawker's link were sufficient to support a claim of direct infringement to support a claim of contributory infringement against Gawker. Because the screenplay was provided by Doe 1 in PDF format, Tarantino argued, it could not be viewed unless a complete infringing copy was downloaded to the user's computer. Tarantino further argued that Gawker's fair use argument was premature as asserting an affirmative defense, but went on to argue that Gawker's use was not fair because: (1) the primary purpose of the infringing use was commercial, not news reporting; (2) the use was not transformative; (3) the screenplay was unpublished; (4) the screenplay was a creative work, (5) the entire screenplay was made available; and (6) the disclosure of the screenplay undermined the market for the work.

In a subsequent reply brief, Gawker argued (among other things) that the format in which the screenplay was provided was neither relevant nor pleaded in the complaint, and that any allegations that Gawker was responsible for Doe 1's posting of the screenplay were purely speculative.

On April 22, 2014, the court granted Gawker's motion to dismiss, holding that Tarantino had failed to allege a claim of contributory infringement against Gawker because "nowhere in ... the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff's claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place." The court did not address Gawker's fair use arguments, finding that the "arguments, albeit persuasive and potentially dispositive, are premature." The court nevertheless granted Tarantino leave to amend the complaint to attempt to amend the defects in the claim against Gawker.

Tarantino filed a First Amended Complaint on May 1, 2014, dropping the Doe defendants and asserting claims solely against Gawker Media, LLC, for direct and contributory copyright infringement. The new complaint added allegations that Gawker itself downloaded an illegal copy of the screenplay and disseminated portions of the screenplay to others. On May 7, 2014, before Gawker was due to respond, Tarantino voluntarily dismissed the new complaint without prejudice, ending the case.

Publication Medium:

Website

Subject Area:

National Security Agency v. McCall

DMLP Staff — Wed, 23 Apr 2014 20:37:37 +0000

Threat Type:

Correspondence

Party Receiving Legal Threat:

Dan McCall

Date:

03/15/2011

Type of Party:

Government

Status:

Concluded

Type of Party:

Individual

Disposition:

Settled (total)

Location of Party:

Maryland

Location:

California

Jurisdiction:

California

Location of Party:

Minnesota

Verdict or Settlement Amount:

$500.00

Legal Counsel:

Jason D. Medinger; Jason D. Medinger

Source of Law:

United States

Legal Claims:

Other

Court Name:

United States District Court for the District of Maryland

Legal Counsel:

Ezra Gollogly; Paul A. Levy; Scott L. Nelson

Court Type:

Federal

Case Number:

1.13-cv-03203-MJG

Web Site(s) Involved:

zazzle.com

Relevant Documents:

2013-10-29-Complaint.pdf

2014-02-18-Settlement Agreement and Release.pdf

McCall is a designer who creates parodies of the official seals of the National Security Agency ("NSA") and the Department of Homeland Security ("DHS") for use on T-shirts, mugs and similar merchandise. Merchandise containing McCall's designs were offered for sale on a website owned and hosted by Zazzle, Inc. In March 2011, Zazzle received a letter from the NSA, and in August 2011, an email from DHS, indicating that several different images offered by Zazzle, including those created by McCall, were in violation of federal law. Specifically, the NSA letter indicated that McCall's NSA parodies were in violation of 50 U.S.C. § 3613, prohibiting the misuse of federal agency names, initials, or seals. The DHS letter indicated that McCall's DHS parodies were in violation of 18 U.S.C. §§ 506, 701, and 1017, which similarly prohibit the wrongful use of seals of federal departments or agencies.

Thereafter, McCall filed a complaint for declaratory relief against the NSA and DHS regarding the designs which were the subject of the agency communications. In the complaint, McCall claimed that his parodies were not in violation of any federal law, as his use of the images of the NSA and DHS seals did not create any likelihood of confusion about the source or sponsorship of the materials on which they were available to be printed. McCall further claimed that the statutes cited by NSA and DHS must be construed narrowly to permit parodic use of the agencies' names and seals to avoid conflict with the First Amendment.

In February 2014, McCall entered into a settlement agreement ("Agreement") with both NSA and DHS. In the Agreement, the parties agreed to the following:

McCall acknowledges that the Agreement is the result of a compromise and is not an admission by the United States of any liability or responsibility.
McCall agrees to file a notice of voluntary dismissal to dismiss the Complaint with prejudice.
NSA and DHS agrees to formally issue a letter to Zazzle and McCall indicating that they were not in violation of any federal law.
Counsel for NSA and DHS will request from the United States Treasury Judgment Fund one check in the amount of $500 made payable to McCall for the court costs incurred by the plaintiff.

Publication Medium:

Website

Subject Area:

Trademark

Dardenne v. MoveOn.org

DMLP Staff — Wed, 23 Apr 2014 20:21:21 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

MoveOn.org

Date:

03/14/2014

Type of Party:

Government

Status:

Pending

Type of Party:

Organization

Disposition:

Injunction Denied

Location of Party:

Louisiana

Location:

Louisiana

Jurisdiction:

Louisiana

Location of Party:

California

Legal Counsel:

Dale R. Baringer; James R Bullman

Source of Law:

United States
Louisiana

Verdict or Settlement Amount:

N/A

Legal Claims:

Trademark Infringement

Court Name:

United States District Court, Middle District of Louisiana

Legal Counsel:

Stephen G. Bullock; Dara Lindenbaum; Joseph E Sandler; Lesli D. Harris; Matthew S. Almon

Court Type:

Federal

Case Number:

3.14-cv-00150-SDD-SCR

Relevant Documents:

2014-03-14-Complaint.pdf

2014-03-14-Memo in support of prelim injunction.pdf

2014-03-14-Mo for prelim injunction.pdf

2014-03-24-Response to motion for prelim injunction.pdf

2014-04-07-Order denying prelim injunction.pdf

MoveOn.org is a public policy advocacy group and political action committee. On March 4, 2014, MoveOn.org caused a billboard to be placed along an Interstate Highway in Louisiana. This billboard was meant to draw attention to a political statement directed at the Office of the Governor of Louisiana. The billboard also contained a photograph of a crawfish taken from the Louisiana Department of Culture, Recreation and Tourism's ("Department") website.

The Department issued a cease and desist letter claiming that the billboard contained a substantial and colorable imitation of a state service mark created, trademarked and used by the Office of the Lieutenant Governor of Louisiana. MoveOn.org then began running a television advertisement that included a photograph of the Billboard and posted a YouTube video of the commercial. Thereafter, Jay Dardenne, in his official capacity as Lieutenant Governor of the State of Louisiana and commissioner of the Department, filed a complaint against MoveOn.org alleging violations of Louisiana and federal trademark laws. Specifically, Dardenne cited violations of:

La. R.S. 51:222
La. R.S. 51:223.1
15 U.S.C. § 1051 et seq.

Dardenne moved for a preliminary injunction, arguing that the television commercial and YouTube video constituted trademark infringement under Louisiana and federal trademark laws because the imitation of the service marks, together with the photograph taken from the Department's website, was likely to cause confusion or mistake as to the origin of the message of the billboard. Dardenne further asserted that infringement of the service marks by MoveOn.org did not constitute a protected parody claiming that the subject of the billboard, Governor Bobby Jindal, was not the creator of the service marks. Alternatively, Dardenne claimed that MoveOn.org was utilizing more of the service marks than was necessary to achieve its parody so as to suggest affiliation, sponsorship, or endorsement of the billboard by the Office of the Lieutenant Governor.

In its memorandum in opposition to the motion for preliminary injunction, MoveOn.org stated that the law allows trademarks to be used for parodic purposes. Furthermore, MoveOn.org argued that to establish infringement under both federal and Louisiana law, plaintiff must prove a likelihood of consumer confusion. MoveOn.org claimed that the plaintiff could not do this because no reasonable person viewing the advertisement, which was harshly critical of the state, could believe the billboard was conveying a message from the state itself. MoveOn.org also argued that its use of a modified version of the service mark was strongly protected because it was an expressive use for non-commercial purposes and that the service mark belonged to the State of Louisiana, which was the target of the parodic use.

On April 7, 2014, the court ruled that the plaintiff had not demonstrated a substantial likelihood of prevailing on its burden of proving a likelihood of confusion among viewers of the billboard. Furthermore, the court concluded that the plaintiff had failed to demonstrate a compelling reason to curtail MoveOn.org's political speech in favor of protecting of the State's service mark. Finally, court concluded that the plaintiff failed to demonstrate that injective relief was required to ameliorate irreparable injury. Accordingly, the motion for a preliminary injunction was denied.

Publication Medium:

Other

Subject Area:

Trademark

Feld v. Conway

DMLP Staff — Wed, 23 Apr 2014 20:10:37 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

Crystal Conway

Date:

12/10/2013

Type of Party:

Individual

Status:

Pending

Type of Party:

Individual

Disposition:

Dismissed (total)

Location of Party:

Massachusetts

Location:

Massachusetts

Jurisdiction:

Massachusetts

Location of Party:

Kentucky

Legal Counsel:

Mark E. O’Brien

Source of Law:

Massachusetts

Verdict or Settlement Amount:

N/A

Legal Claims:

Defamation

Court Name:

United States District Court, District of Massachusetts

Legal Counsel:

Kathleen A. Reagan

Court Type:

Federal

Case Number:

1:13-cv-13122-FDS

Web Site(s) Involved:

twitter.com

Relevant Documents:

2013-12-10-Complaint.pdf

2014-03-21-Conway mo to dismiss.pdf

2014-04-11-Feld opposition to mo to dismiss.pdf

2014-04-14-Order on mo to dismiss.pdf

In November 2010, Mara Feld arranged for her thoroughbred gelding to be shipped to a horse farm. The horse was instead sent to a horse auction and may have been slaughtered in Canada. The horse's fate became a topic of great debate on Internet sites dealing with thoroughbred race horses and at some point Crystal Conway became involved in the ongoing online discussions. On December 11, 2010, Conway posted on her Twitter account: "Mara Feld aka Gina Holt - you are fucking crazy!"

On December 10, 2013, Feld filed a complaint alleging one count of libel. Afterwards, Conway filed a motion to dismiss, arguing that the complaint did not state a claim upon which relief can be granted because her statement was an opinion. Conway further argued that the use of vulgarity signaled its lack of clinical or factual significance. Feld responded that the statement in question was not obviously a statement of opinion, because it could be interpreted differently. Furthermore, Feld argued that the use of profanity did not transform the statement into mere opinion.

The court held that the tweet had to be read in the context of the ongoing online discussion, rather than in isolation. In that context, the court found that the tweet could not reasonably be understood to state actual facts about Feld's mental state. Therefore, the complaint could not support a claim of defamation and Conway's motion to dismiss was granted.

Publication Medium:

Micro-blog

Subject Area:

Defamation
Twitter

Hear Ye, Hear Ye! Some Federal Courts Post Audio Recordings Online

Eric P. Robinson — Thu, 17 Apr 2014 17:48:12 +0000

While the propriety of video and photography equipment in federal courts is subject of ongoing debate and testing, a number of federal bankruptcy courts and three federal district courts make audio recordings of their proceedings available to the public for a nominal fee.

In his article for The New York Times "Room for Debate" feature on whether courts should eliminate human court reporters (spurred by the chaos caused by the recent resignation of a drug-addicted court reporter in New York), U.S. District Court Judge Richard G. Kopf casually mentions that proceedings in his court in Lincoln, Nebraska, are routinely audio recorded. The recordings are posted to the court's public online PACER database the same day.

PACER, short for Public Access to Court Electronic Records, is the federal courts' online case docket access system. Access to PACER requires registration, and fees are charged for accessing materials in the database.

On his blog -- a federal judge with a blog! -- Kopf explained last year that his court had been recording its proceedings "for a long time now," i.e., since 2007.

After an initial one-year test of audio recording technology in 12 federal district and bankruptcy courts, the U.S. Judicial Conference approved digital audio recordings as a method of taking the official record of court proceedings in September 1999. Compact discs of the recordings were made available to the public from the courts' clerk's offices, for a $26 fee.

In 2007 and 2008, five federal courts -- three trial courts and three bankruptcy courts -- began a pilot project of offering the audio recordings on PACER. The success of the program led to its expansion in 2009 to two additional bankruptcy courts and the U.S. Court of Federal Claims (which offers the recordings for selected cases through its website: example). In 2010, the program was opened to all federal courts, and the cost to access the recordings was raised from 8 cents to $2.40. This led 22 additional bankruptcy courts to implement the program.

Now, a total of 32 trial and bankruptcy courts offer audio recordings online.

In addition to the Court of Federal Claims, the trial courts include three federal district courts: the U.S. district courts in Nebraska -- Kopf's court -- the Eastern District of Pennsylvania, and the Southern District of Alabama (although it appears to have posted only one audio file).

The remaining 28 courts offering the recordings on PACER are federal bankruptcy courts : the U.S. bankruptcy courts for the Northern District of Alabama; District of Alaska, Northern District of California, District of Connecticut, Middle District of Florida, District of Hawaii, Central District of Illinois, Southern District of Indiana, District of Maine, Eastern District of Michigan, District of Minnesota, Eastern District of Missouri, Eastern District of North Carolina, Middle District of North Carolina, District of Nebraska, District of New Mexico, District of Nevada, District of New Jersey, Southern District of New York, District of Puerto Rico, District of Rhode Island, District of Utah, District of Vermont, Eastern District of Washington, Northern District of West Virginia, Southern District of West Virginia, Eastern District of Wisconsin, and the District of Wyoming.

The PACER system also offers an instructional video -- featuring a talking gavel -- on how to access the audio files in the PACER system.

At the appellate level, most of the federal Courts of Appeals offer audio recordings of their oral arguments on their websites, outside of PACER (1st; 3rd; 4th; 5th; 6th; 7th; 8th; 9th; D.C.; Fed.). Even the U.S. Supreme Court -- which has stubbornly resisted audio-visual coverage, despite pressure and a recent breach of this protocol -- posts audio of arguments to its website at the end of each week (while releasing transcripts of all cases and audio of a few prominent cases on the same day they are argued).

It's interesting that while the number of bankruptcy courts offering recordings has continued to grow, the number of federal trial courts offering the recordings has not increased significantly beyond the three that were in the program at its inception. Of course, trial courts are more likely than bankruptcy courts to have proceedings of interest to the press and the general public.

The audio recordings in the federal trial and bankruptcy courts are part of a larger debate over the merits of human court reporters. But as a court access issue, the easy and inexpensive availability of audio recordings of court proceedings is an important development, which hopefully more courts will embrace.

(Image courtesy of Flickr user Derek K. Miller pursuant to a Creative Commons CC BY-NC 2.0 license.)

Jurisdiction:

United States

Content Type:

Audio

Subject Area:

Access to Courts

Service and Research at the Frontier of Media Law

Jeff Hermes — Mon, 14 Apr 2014 14:46:02 +0000

Earlier today the Digital Media Law Project released a new report, The Legal Needs of Emerging Online Media: The Online Media Legal Network after 500 Referrals. This report explores the large body of data that we have gathered over four years of operating the DMLP's free nationwide attorney referral service for journalists, the Online Media Legal Network. Using this data, we have been able to identify notable patterns and trends in the legal needs of a substantial cross-section of the digital journalism ecosystem. You can read the executive summary of the report here.

I am particularly excited by this report because it represents the intersection of the two core functions of the Digital Media Law Project: (1) providing legal resources to digital journalists to help them to thrive in the face of legal challenges; and (2) studying the nature of the online journalism ecosystem and the legal issues that enhance or inhibit its function. The staff of the DMLP (both past and present) and the member attorneys of the Online Media Legal Network (who routinely volunteer their time on a pro bono or reduced-fee basis) have made a substantial difference in the future of news, by ensuring that hundreds of new and innovative journalism projects did not fail because of legal pitfalls unrelated to their merit. With this new report, we have been able to leverage their tremendous efforts even further by using their service as a basis for a survey that we hope will benefit a much broader range of journalists, attorneys, and researchers concerned with the networked exchange of information online.

The DMLP is privileged to operate at the frontier of media law and journalism, and we believe that we have a duty not only to serve the needs of our particular clients but also to report back on what we have seen to inform the efforts of others. Of course, there are limits on how we can use the data we have gathered. We protect the confidentiality of network clients; this new report is presented as a statistical analysis and does not identify any particular recipients of legal assistance (except for certain of our clients kind enough to volunteer public comments on the services that they have received from network attorneys). Nevertheless, we believe that this analysis of legal issues encountered at the frontier can provide important intelligence about the evolution of news.

We hope that you find the report interesting and helpful, and welcome inquiries about our work. You can reach us by e-mail at staff (at) dmlp.com, or through our contact form.

Jeff Hermes is the Director of the Digital Media Law Project.

Jurisdiction:

United States

Subject Area:

The Legal Needs of Emerging Online Media: The Online Media Legal Network after 500 Referrals

DMLP Staff — Mon, 14 Apr 2014 14:45:40 +0000

The Digital Media Law Project is pleased to announce the release of its report, The Legal Needs of Emerging Online Media: The Online Media Legal Network after 500 Referrals.

Executive Summary

Since December 2009, the DMLP has operated the Online Media Legal Network, a free attorney referral service for independent, online journalists and journalism organizations. The OMLN has served as a fundamental part of the legal support structure for online journalism, assisting more than 260 clients with over 500 separate legal matters.

As a result of that experience, the DMLP has been in a unique position to observe the nature of these new journalism ventures and their legal needs. This report collects these observations, including the following:

Those who have sought help from the OMLN overwhelmingly create their own original content, rather than aggregate the content of others. Many also provide support services to other journalists, platforms for users to talk to one another, or tools to access primary source information.

While some clients report on niche issues, many more are focused on reporting news of general interest, either to the public at large or local audiences. Non-profit clients show a greater focus on reporting on social issues such as health and education than for-profit or individual clients.

OMLN clients show significant evidence of forward planning. They are more often proactive than reactive to legal issues, frequently seeking assistance with intellectual property, content liability, and corporate questions before crises occur.

Individual clients not employed by an organization, and those clients who reported on businesses or to consumer audiences, sought help defending against legal threats more often than other clients. This indicates a particular need for greater litigation assistance among these categories.

The advice sought by OMLN clients with regard to intellectual property matters shows a near-perfect balance between protecting their own content and using the content of others.

While the client survey revealed some areas of concern, it was also consistent with the growth of a vibrant online news ecosystem comprised of journalists who, more often than not, address broad informational needs and are thinking ahead about the viability of their ventures.

You can download the report in PDF format here.

Jurisdiction:

United States

Subject Area:

DMLP Announcement: Live Chat Session on Tax-Exempt Journalism (UPDATED)

DMLP Staff — Mon, 07 Apr 2014 16:41:36 +0000

UPDATE: The chat session scheduled for April 10, 2014 has been postponed. We hope to have a rescheduled date soon, so please stay tuned.

This Thursday, April 10, 2014, at 1 p.m. ET, the Digital Media Law Project will be holding a live online session to discuss the legal environment for tax-exempt journalism in the United States. DMLP attorneys Jeff Hermes and Andy Sellars will review their experiences in helping journalism nonprofits seeking Section 501(c)(3) tax-exempt status from the IRS, as well as new DMLP resources for news organizations thinking about applying for a tax exemption.

Whether you're a journalism non-profit seeking a tax exemption from the IRS, or just interested in how the agency looks at news organizations, this session will give you the chance to learn and to ask questions about the IRS process, such as:

What is the IRS looking for when it evaluates a journalism organization's application for Section 501(c)(3) status?
Why does the IRS ask applicants certain questions about their operations?
Are there "red flags" that can cause problems with an application?

We will post connection information and a link to the online session on the DMLP home page on Thursday morning. But before then, we're asking anyone who is interested to help us kick off the discussion by submitting questions to us via e-mail at staff [at] dmlp [dot] org.

We'll read all of the questions, and try to answer as many as we can during the session; of course, we'll take questions from the audience as well. Unfortunately, we won't be able to provide legal advice about specific organizations or their applications to the IRS -- that should be done in private with your own lawyer -- but we will surface general issues of interest to everyone.

We look forward to seeing you on Thursday!

Jurisdiction:

United States

Subject Area:

Naffe v. Frey

DMLP Staff — Mon, 31 Mar 2014 20:18:00 +0000

Threat Type:

Lawsuit

Party Receiving Legal Threat:

John Patrick Frey; Christi Frey; Steve Cooley; County of Los Angeles

Date:

10/02/2012

Type of Party:

Individual

Status:

Pending

Type of Party:

Individual

Government

Disposition:

Dismissed (total)

Location of Party:

Florida
Massachusetts

Location:

California

Jurisdiction:

California

Location of Party:

California

Legal Counsel:

Jason S. Leiderman (withdrawn); Eugene G. Iredale

Source of Law:

United States
California

Verdict or Settlement Amount:

N/A

Legal Claims:

Defamation

False Light

Intentional Infliction of Emotional Distress

Negligence

Publication of Private Facts

Other

Court Name:

U.S. District Court for the Central District of California; U.S. Court of Appeals for the Ninth Circuit

Legal Counsel:

Kenneth P. White; Paul B. Beach

Court Type:

Federal

Case Number:

CV 12-8443-GW (District Court); No. 13-55666 (Court of Appeals)

Web Site(s) Involved:

http://patterico.com

Relevant Documents:

2012-10-02-Complaint.pdf

2012-11-19-Notice of Partial Voluntary Dismissal.pdf

2012-12-27-First Amended Complaint.pdf

2013-01-11-County Joinder in Frey's Mos. to Dismiss.pdf

2013-01-11-Frey Anti-SLAPP Motion.pdf

2013-01-11-Frey Motion to Dismiss FAC Counts 1-6 (12b6).pdf

2013-01-11-Frey Motion to Dismiss FAC Counts 2-7 (12b1).pdf

2013-01-11-LA County Motion to Dismiss FAC.pdf

2013-02-20- Naffe Opposition to Anti-SLAPP motion.pdf

2013-02-20-Naffe Opposition to County's Motion to Dismiss.pdf

2013-02-20-Naffe Opposition to Frey's Motion to Dismiss (12b6).pdf

2013-03-04-County Reply re Mo to Dismiss.pdf

2013-03-04-Frey Reply re Anti-SLAPP Motion.pdf

2013-03-04-Frey Reply re Mo to Dismiss Counts 2-7 (12b1).pdf

2013-04-01-Frey Reply re Mo to Dismiss Counts 1-6 (12b6).pdf

2013-04-18-Tentative Ruling on Motions to Dismiss.pdf

2013-12-09-Naffe Appellant's Brief.pdf

2014-02-07-Frey Appellee's Brief.pdf

2014-02-10-DMLP Amicus Brief.pdf

2013-04-19-Court Order Confirming Tentative Ruling.pdf

2013-02-21-Naffe Opposition to Frey's Motion to Dismiss (12b1).pdf

Content Type:

Text

Nadia Naffe accused a colleague of sexual assault and filed a criminal harassment complaint. John Patrick Frey, a Deputy District Attorney in Los Angeles County, raised questions about plaintiff's allegations on his blog and Twitter account which he maintained in his personal capacity. Naffe sued Frey, his wife, the former District Attorney for Los Angeles County and Los Angeles County under the theory that the defendant was acting in his official capacity as Deputy District Attorney while writing on his private blog, and that his actions violated her First Amendment and due process rights.

In a complaint filed in the U.S. District Court for the Central District of California, Naffe asserted the following causes of action:

1. violations of 42 U.S.C. § 1983
2. public disclosure invasion of privacy
3. false light invasion of privacy
4. defamation
5. intentional infliction of emotional distress
6. negligence
7. negligent supervision

Naffe subsequently filed a First Amended Complaint naming only Frey and the County as defendant. Frey moved to dismiss the First Amended Complaint, both for failure to state a claim (as to counts 1-6) and for a lack of subject matter jurisdiction over the state law claims (counts 2-7); the County filed its own motion to dismiss and also joined Frey's motions. Frey also filed a special motion to dismiss the state law claims under California's anti-SLAPP law. Naffe opposed all four motions.

In a tentative ruling (later confirmed), the district court found that it did not have independent subject matter jurisdiction over Naffe's state law claims because she had not sufficiently demonstrated a claim for relief exceeding the sum of $75,000. Accordingly, the court focused on whether Naffe had properly asserted a claim under 42 U.S.C. § 1983.

The court held that to state a claim under Section 1983, Naffe was required to allege facts sufficient to show that Frey's action related in some meaningful way either to his governmental status or to the performance of his duties, but found that Naffe had merely offered allegations that were conclusory or speculative. The court further held that merely "mentioning the fact that [Frey] [wa]s a deputy district attorney or prosecutor... does not transform everything he says on his blog or on Twitter into state action." Accordingly, the court dismissed Naffe's Section 1983 claim without leave to amend and dismissed her state law claims without prejudice. The court did not address the merits of Frey's anti-SLAPP motion.

Naffe appealed the ruling to the United States Court of Appeals for the Ninth Circuit. In her appellate brief, Naffe focused on a comment Frey had made on his twitter account, in which he states: "@NadiaNaffe My first task is learning what criminal statutes, if any, you have admitted violating." Naffe interprets this tweet to be a threat by a state prosecutor to investigate her for alleged criminal violations and offers it as evidence that her allegations are not merely speculative. Frey, in his appellee's brief, responded that such musings could not be deemed an official act, and that the factual context proves that the comment had nothing to do with anything over which a Los Angeles County Deputy District Attorney such as Frey could have jurisdiction.

The Digital Media Law Project ("DMLP") filed an amicus brief in support of Frey arguing that there are over 20 million Americans working for the government and that, even when those individuals speak on matters that relate to government activity, their ability to speak in their personal capacities must be preserved in order to ensure that these individuals' valuable viewpoints are part of public discussion.

Publication Medium:

Blog

Subject Area:

Defamation
False Light
Blogs
Publication of Private Facts
Government Speech

A New Approach to Helping Journalism Non-Profits at the IRS

DMLP Staff — Mon, 17 Mar 2014 14:28:25 +0000

Today, the Digital Media Law Project has launched a new version of its resources for journalism organizations seeking a Section 501(c)(3) tax exemption for the IRS. As a project, we have been concerned with non-profit journalism from the beginning, providing informational resources for news ventures seeking to form as non-profits. Since the launch of our attorney referral service, the Online Media Legal Network, in late 2009, about a third of our clients have been non-profit journalism organizations; more have been individuals or for-profits interested in starting a non-profit news venture. We have worked with more than forty groups to find counsel to assist them in applying to the IRS for recognition of tax-exempt status.

But the path to tax-exempt status has not always run smooth. From 2010 to 2012, the IRS was reevaluating its standards for journalism organizations, causing these organizations to face long delays while struggling to stay afloat without an exemption in place. In fact, the now-infamous IRS "BOLO" lists flagged "newspaper entities" for special scrutiny [PDF] as of February 2011. Several journalism applicants were questioned by the IRS about various aspects of their operation, without understanding why the IRS was interested in those issues -- and sometimes those questions seemed to verge into areas that should have been irrelevant under federal law. To help applicants satisfy IRS scrutiny, in April 2012 the DMLP released a detailed guide to the agency's decision-making process for granting tax exemptions to journalism non-profits.

In late 2012, it appeared that the logjam at the IRS was beginning to break, with a couple of high-profile applications accepted after delays of more than two years, and a steady stream of additional applications granted since then. And yet, the process remains complex, and there is substantial confusion about both how to obtain Section 501(c)(3) status and what that status allows you to do. For that reason, Eric Newton of the John S. and James L. Knight Foundation reached out to the DMLP and offered Knight's support for the development of a video debunking some of the more common myths and misconceptions, which we're pleased to present here (thanks also to Dan Jones, Digital Media Producer for the Berkman Center, and Ogmog Creative):

It has also become clear to us that the journalism organizations which have the easiest time finding a lawyer to help with a Section 501(c)(3) application, and succeed most frequently at the IRS, are those that take the time to study the 501(c)(3) process and the agency's standards before they apply. For that reason, we have launched a new collection of resources to help news organizations prepare to face the IRS, including: a checklist to help journalists decide if Section 501(c)(3) status is right for them; an updated section of our Legal Guide on the Section 501(c)(3) application process; our detailed guide to IRS decision-making for journalism non-profits; and an archive of successful application materials from news organizations that have obtained their tax-exempt status.

None of these resources is intended to allow a journalism non-profit to go it alone; with all that has happened at the IRS, the agency process is too tangled for a news venture to expect success without professional assistance. These resources will help journalism ventures to better understand what the agency is looking for, so that they can adjust their operations properly and be prepared to work with an attorney.

Non-profit journalism has the potential to address public information needs that are simply not profitable for a for-profit news organization to cover -- and there is no better time to launch resources intended to help bring information of public importance to light than the beginning of Sunshine Week. And at 1 p.m. Eastern on April 10, 2014, the DMLP will be holding a one-hour online session open to the public where you can ask questions about these resources and the application process; connection details will be posted on the DMLP homepage on April 10, so be sure to come back then.

The Digital Media Law Project is based at the Berkman Center for Internet & Society at Harvard University. The DMLP produces a wide range of legal resources for independent online journalism projects and media ventures, including its multistate Legal Guide and topic-specific resources developed to respond to breaking legal issues affecting online speech.

Jurisdiction:

United States

Subject Area:

Business Formation

With Cameras Banned in the Supreme Court, Undercover Video Emerges

Eric P. Robinson — Fri, 28 Feb 2014 18:21:48 +0000

People are discovering a recently-posted YouTube video that apparently shows both a portion of the oral argument in a campaign finance case in October 2013 and Wednesday's interruption of an oral argument before the U.S. Supreme Court.

The first half of the video says that it is shows the argument is in McCutcheon v. Federal Election Commission, No. 12-536, a case argued on Oct. 8, 2013 which challenges the constitutionality of federal limits on contributions to non-candidate political committees. The date stamp on part of the video matches the date that the case was argued. While the audio of the Justices and lawyers speaking can be heard, its impossible to make out the words. The scene, however, is clearly the courtroom of the U.S. Supreme Court.

The video then cuts to the interruption, during the Feb. 26, 2014 argument in Octane Fitness v. Icon Health & Fitness, No. 12-1184, a patent case. This half of video shows Kai Newkirk, a member of the group 99Rise -- which takes credit for the interruption in a press release -- interrupting the argument to state that the court's 2010 decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) should be overturned, and that the contribution limits at issue in McCutcheon should be upheld. The video also shows Newkirk being removed from the courtroom. (He was subsequently arrested and charged under 40 U.S.C. § 6134, which makes it illegal to "make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.")

Both portions of the video are jumpy and haphazard, and were apparently shot with hidden cameras in violation of the the court's strict prohibition on cameras in the courtroom. The video acknowledges this, beginning with the text, "What you're about to see have never been seen before. This is video from inside the chamber of the U.S. Supreme Court. Under their arcane rules, no one is allowed to record the proceedings. Not even C-SPAN ... (sic) in the year 2014." Other videos uploaded by the same YouTube user show what appear to be the full videos shot during the Octane Fitness argument. From the datestamps, it appears that three separate cameras were used. None of the words said in the videos are discernible, except for Newkirk's statement. A 23-minute video of the McCutcheon argument is also posted.

There has been growing pressure for the Supreme Court -- which controls it own rules -- to allow still and video cameras to cover its proceedings, including in an ad campaign launched last week. But there has been little movement on the issue, with federal trial courts conducting a second "trial" of cameras in selected courtrooms. When an attorney was indirectly tweeting from an overflow room at the court during oral arguments in the 2012 case challenging the constitutionality of the Affordable Care Act (Obamacare), the court asked her to stop.

The new videos may be less remarkable for what they show, than that they exist at all. They demonstrate that not everyone is prepared to wait for the Court to reform its own procedures. It will be interesting to see how the Court reacts.

Jurisdiction:

United States

Subject Area:

Access to Courts

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.

DMLP Staff — Tue, 25 Feb 2014 17:33:33 +0000

Threat Type:

Subpoena

Party Receiving Legal Threat:

Yelp, Inc.

Date:

07/02/2012

Type of Party:

Organization

Status:

Concluded

Type of Party:

Organization

Disposition:

Subpoena Enforced

Location of Party:

Virginia

Location:

Virginia

Jurisdiction:

Virginia

Location of Party:

California

Verdict or Settlement Amount:

$1,500.00

Legal Counsel:

Raighne C. Delaney (Bean, Kinney & Korman, P.C.)

Source of Law:

United States
Virginia

Legal Claims:

Conspiracy

Defamation

Court Name:

Circuit Court for the City of Alexandria

Legal Counsel:

Paul Alan Levy and Scott Michelman (Public Citizen Litigation Group), and Raymond D. Battocchi (Raymond D. Battocchi, P.C.)

Court Type:

State

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria. Hadeed claimed these users'... read full description

Case Number:

Trial: 12003401; Appeal: 0116-13-4

Web Site(s) Involved:

http://www.yelp.com/biz/hadeed-carpet-alexandria
http://www.yelp.com/biz/hadeed-oriental-rug-cleaning-washington

Relevant Documents:

2013-06-27-Yelp Reply Brief .pdf

2013-05-30-Hadeed Response Brief.pdf

2013-05-09-Amicus Brief of the Reporters Committee for Freedom of the press, American Society of News Editors, Gannett Co., Inc., and the Washington Post.pdf

2013-05-07-Yelp Opening Brief.pdf

2012-11-19-Trial Court Order.pdf

2012-07-02-Complaint.pdf

2012-10-31-Hadeed's Response to Yelp's Memo Objecting to Subpoena and Opposing Motion to Compel.pdf

2012-09-26-Hadeed's Request for the Court to Overrule Yelp's Objection to Subpoena.pdf

2012-09-05-Yelp's Response to Subpoena.pdf

2012-07-30-Notice of Filing Supporting Material.pdf

2014-01-07-Court of Appeals Decision.pdf

2012-10-22-Yelp's Memo Objecting to Subpoena and Opposing Motion to Compel.pdf

2012-07-30-Subpoena.pdf

Content Type:

Text

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

Publication Medium:

Social Network

Subject Area:

Defamation
Anonymity
User Comments or Submissions

Revised DOJ Regs Protect "Members of the News Media," But What Does That Mean?

Jeff Hermes — Tue, 25 Feb 2014 16:39:41 +0000

On February 21, 2014, the U.S. Department of Justice released its long-awaited revisions to 28 C.F.R. § 50.10, the DOJ's regulatory guidelines (the "Guidelines") regarding investigations and prosecutions of members of the news media. The prior version of the Guidelines came under fire last year, when it was revealed that the DOJ had, without prior notification, obtained two months of telephone records from 21 phone lines used by the Associated Press. These records had the potential to reveal confidential sources and other sensitive information relating to ongoing journalistic investigations. At that time, I wrote about weaknesses in the Guidelines' protections against unwarranted interference with journalism.

In the wake of these revelations, the DOJ announced that it would revise the Guidelines to provide significant new procedural protections for the press. I'll let others review the provisions of the new Guidelines in detail; for now, I want to point out one critical omission. Although the Guidelines extend certain protections to "members of the news media," they (like the prior version) still contain no affirmative definition of that term.

Instead, the only way in which "members of the news media" are defined is through exclusions. A number of these exclusions (predictably) relate to persons acting as agents of a foreign power, plotting terrorist activity, et cetera. More problematic are the implications of the following provision:

A Deputy Assistant Attorney General for the Criminal Division may authorize, under an applicable [Privacy Protection Act] exception, an application for a warrant to search the premises, property, or communications records of an individual other than a member the news media, but who is reasonably believed to have "a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication."

28 C.F.R. § 50.10(d)(6). The phrase "person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication" is how a journalist is defined in the Privacy Protection Act of 1980. The Privacy Protection Act was passed in response to concerns about the use of search warrants to invade newsrooms, and the inadequacy of Fourth Amendment standards for issuing warrants in the face of the special concerns raised by government investigations of journalists. Wisely, the Privacy Protection Act did not attempt to define journalists in terms of their organization or employment, but instead in terms of their function; this has enabled the Act to be flexible in responses to changes in technology and the journalism industry.

We still do not know what "members of the news media" means in the new DOJ Guidelines, but (by the way the above provision is phrased) we know that it is more restrictive than the functional definition of the Privacy Protection Act. This should give independent journalists significant pause. When government agencies attempt to define a journalist, they tend to adopt either an employment-based approach or a functional approach; the DOJ now seems to be eschewing a functional definition (or at least one as broad as in the Privacy Protection Act).

Moreover, apart from the single provision quoted above, the new Guidelines do not protect anyone who is not a "member of the news media"; in particular, they do not protect against the use of legal demands to third party carriers for communications records. This leaves journalists unaffiliated with a news organization on potentially unstable ground with respect to the security of their communications against secret government inquiries.

Jeff Hermes is the Director of the Digital Media Law Project.

(Image courtesy of Flickr user Peter Eimon pursuant to a Creative Commons CC BY-NC-SA 2.0 license.)

Jurisdiction:

United States

Subject Area:

Lawyers in the Vortex: When Attorneys Become Public Figures

Eric P. Robinson — Thu, 13 Feb 2014 17:10:31 +0000

There was substantial media coverage of the defense verdict in the recent "twibel" (i.e., libel via Twitter) case against singer Courtney Love. Although the case attracted attention for the medium in which the allegedly defamatory statements were made, the dispositive issue was a long-standing element of libel law that did not depend on Love's use of Twitter. Specifically, the jury found that plaintiff Rhonda Holmes, a lawyer who briefly represented Love in disputes stemming from the estate of Love's husband Kurt Cobain, had not proved the degree of fault on Love's part necessary for Holmes to win the case.

Curiously, the level of fault that the court required Holmes to prove was "actual malice," i.e., knowledge on Love's part that the statement was untrue, or reckless disregard by Love for whether it was true or not. Under U.S. Supreme Court precedent, the actual malice standard is applied when the plaintiff is a public figure.

There are two types of public figure plaintiffs: "general purpose public figures," who are so prominent and well known that they are public figures for all purposes; and "limited purpose" or "vortex" public figures, who become -- usually voluntarily -- involved in a particular public issue to the extent that they become public figures for statements regarding that public issue, but not for other matters. If a plaintiff is neither of these types of public figure, then s/he is considered a private figure, who does not have to meet the stringent standard of actual malice. (Private figure plaintiffs must still demonstrate fault on the part of the defendant in order to win a defamation case, but the specific level of fault that a private figure plaintiff must show varies from state to state.)

Meanwhile, the District of Columbia's Court of Appeals is facing a similar issue in another case involving a lawyer as defamation plaintiff. In that case, the court is considering the attorney's status in connection with a decision as to whether her suit against anonymous Wikipedia editors should be blocked under the District's anti-SLAPP statute.

We are used to the idea of celebrities and government officials being treated as public figures, but should their attorneys fall into that category as well? As it turns out, courts have long struggled with the question of when an attorney's involvement in a prominent case or controversy makes him or her a public figure in the defamation context; this post examines some of these decisions.

U.S. Supreme Court

The U.S. Supreme Court has considered three cases in which a lawyer's involvement in a prominent case led to questions about the lawyer's status as a defamation plaintiff. In all three cases, the Court held that the lawyer was not a public figure.

In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the Court held that a lawyer who was a prominent member of local society did not become a public figure due to his divorce by a court in Palm Beach, Florida. The Court found that the plaintiff did not voluntarily choose to make aspects of his life public by electing "dissolution of a marriage through judicial proceedings," since the court procedure was required for the divorce, and that the divorce itself was not a public controversy which made the plaintiff a public figure.

Similarly, the Court held in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) that a lawyer who represented a convicted criminal on appeal was not a public figure. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that the lawyer for a family involved in controversial civil litigation was not a public figure.

But since determinations of public or private figure status are highly fact-specific, these decisions are not necessarily determinative in subsequent cases. So state courts and lower federal courts have issued a variety of rulings on the public or private figure status of lawyers who are plaintiffs in defamation cases.

Involvement in Prominent Litigation

Despite the U.S. Supreme Court rulings in Rosenbloom and Gertz, other courts have held that an attorney's representation of a party in a prominent case can, under certain circumstances, justify a finding that the lawyer was a public figure.

In Della-Donna v. Gore Newspaper Co., 489 So. 2d 72 (Fla. App. 1986), the Florida Court of Appeals held that an attorney involved with a millionaire's estate became a limited public figure when a bequest to a university became a public controversy.
In Ratner v. Young, 465 F. Supp. 386 (D.V.I. 1979), a federal district court held that defense attorneys in a highly publicized murder trial were public figures because they had come to the Virgin Islands from New York to represent the defendant for free, thus injecting themselves into the case, and held press conferences to generate support for their client.
Similarly, in Hayes v. Booth Newspapers, Inc., 97 Mich. App. 758, 295 N.W.2d 858 (1980), a Michigan appellate court held that an attorney who had turned a criminal trial in which he represented the defendant into a cause célèbre was a public figure.
In Bandelin v. Pietsch, 98 Idaho 337, 583 P.2d 395 (1977), a lawyer prosecuted for contempt of court stemming from a probate matter was held by the Supreme Court of Idaho to be a public figure in a subsequent libel suit over coverage because of the prominence of that prosecution. The Idaho court discounted the lawyer's prominence in local politics several years before as a factor, after which he had gone into relative obscurity.

Public figure status due to involvement in a prominent case does not necessarily last forever, however. In New York, a lawyer who once represented a notorious criminal was held to not be public figure years after the representation. Polakoff v. Harcourt Brace Jovanovich, Inc., 3 Media L. Rep. 2516, aff’d, 67 A.D.2d 871, 413 N.Y.S.2d 537 (N.Y. Sup. Ct., App. Div. 1st Dept. 1979), appeal dismissed, 48 N.Y.2d 714, 422 N.Y.S.2d 378, 397 N.E.2d 1182 (1979).

Other courts have held that a lawyer's involvement in a prominent case did not, in itself, make the lawyer a public figure. The Michigan Supreme Court took this stance regarding an attorney in a publicized criminal trial, Peisner v. Detroit Free Press, Inc., 364 N.W. 2d 600 (Mich. 1984), as did the Arkansas Supreme Court is a case involving a lawyer who represented a witness in the 1990s “Whitewater” investigation, Little Rock Newspapers v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997). Even a prominent lawyer such as Gerry Spence, who advocated for famous and controversial clients, can be a private figure. Spence v. Flynt, 816 P.2d 771 (Wyo. 1991).

Involvement in Political and Public Controversies

Lawyers who work for the government -- as judges, prosecutors and public defenders, for example -- have often been held to be public officials who must show actual malice in a libel suit. But non-government attorneys have also been held to be public figures due to their involvement in political issues, at least for purposes of the specific public issue in which s/he was involved.

Thus a former city attorney and counsel for a local redevelopment agency who had initiated a recall of local public officials was found to be a public figure. Weingarten v. Black, 102 Cal. App. 3d 129, 162 Cal. Rptr. 701 (Cal. Ct. App. 1980). So was a prominent private lawyer who represented many public school districts. Schwartz v. Worrall Publications, Inc., 258 N.J. Super. 493, 610 A.2d 425 (1992).

A politically connected law firm was held to be a public figure when the firm sued a county legislator who accused it of over-billing the county and trying to hide a county official's miscounduct. Crowe Deegan v. Schmitt, 12 Misc. 3d 1152(A), 819 N.Y.S.2d 209, 2006 NY Slip Op 50870(U) (N.Y. Sup. Ct., Nassau County Apr. 14, 2006) (unpublished), aff'd and modified in part on other grounds, 38 A.D.3d 590, 832 N.Y.S.2d 242 (N.Y. Sup. Ct., App. Div. 2d 2007).

But some courts have ruled the other way. In ZYZY Corporation v. Gloria Hernandez, 345 S.W.3d 452 (Tex. App.—San Antonio 2011), a lawyer who spoke publicly as representative of an Indian tribe, which client constituted 10 percent of her business, was held not to be a limited purpose public figure.

Involvement in Other Legal Matters

While an attorney's involvement in a prominent legal case can be sufficient to make the lawyer a public figure, courts have not generally held that attorneys' involvement in other legal matters gives them public figure status.

Accordingly, in Denny v. Mertz, 100 Wis. 2d 332, 302 N.W. 2d 503 (Wis. Ct. App. 1981), aff'd, 106 Wis. 2d 636, 318 N.W.2d 141 (Wis. 1982), an attorney who thrust himself into the forefront of a corporate stockholder battle was held to not be a public figure because the corporate matter was not a public controversy which affected the “general public or some segment of it in an appreciable way.”

This also applies to administrative matters regarding attorney admission and discipline. Controversy over a lawyer's suspension and subsequent taking of the bar exam for re-admission to the bar was not sufficient to make the attorney a public figure in Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W. 2d 933 (1983). Neither was discipline of an attorney for practicing law in violation of his probation. Littlefield v. Fort Dodge Messenger, 614 F.2d 581 (8th Cir. 1980).

Local Prominence

Aside from being involved in a prominent case, a lawyer -- like any other member of the public -- can become a public figure by his or her general prominence in the community.

In Durham v. Cannan Communications, Inc., 645 S.W.2d 845 (Tex. Civ. App. -- Amarillo 1982, writ dismissed), the court held that whether a lawyer's noteriety in the community made him a public figure was an issue for the jury to decide. Other courts have been more certain. In Partington v. Bugliosi, 825 F.Supp. 906 (D. Haw. 1993), aff’d on other grounds, 56 F.3d 1147 (9th Cir. 1995), the court held that a well-known criminal defense lawyer was a public figure. The court in Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979), held a lawyer to be a public figure because of his prominence as a social activist.

Public figure status for a prominent attorney can also last for some period after the prominence recedes. In Lewis v. Coursolle Broadcasting of Wisconsin, Inc., 127 Wis.2d 105, 377 N.W. 2d 166 (1985), the court held that an attorney and former legislator who was still well-known in the community three years after leaving office remained a public figure.

Lawyers as Public Figures

Lawyers tend to be prominent in their communities, and are likely to be held to be public figures if they are are involved in local politics or community efforts. But in most situations, an attorney's representation of a client in a prominent case is not, in an of itself, sufficient to make the attorney a public figure.

(Image courtesy of Flickr user RyAwesome, pursuant to a Creative Commons CC BY-SA 2.0 license.)

Jurisdiction:

United States

Subject Area:

Defamation

Montesquieu, Come Back! (The French Police Already Know Where You Are)

Marie-Andree Weiss — Fri, 24 Jan 2014 22:09:03 +0000

On December 19, 2013, the French Loi de Programmation Militaire (the Military Program law, or "LPM"), was enacted. Article 20 of the LPM, which will come into force on January 1, 2015, authorizes the government to require Internet Service Providers (ISPs) and web hosts to provide "information and documents processed or stored," including geolocation data and metadata in real time, without having to first ask for an authorization from a judge. The new law raises serious questions regarding separation of powers and the extent of administrative authority in France.

A Surveillance Law Both Broad and Vague

Article 20 of the LPM allows the Prime Minister to authorize specially designated agents from the ministers of police, defense, economics and budget to issue demands to ISPs for:

"information or documents processed or preserved by their networks or electronic communications services, including technical data relating to the identification subscription or connection to electronic communications service numbers, identification of all the numbers subscription or connection to a designated person, the location of the terminal equipment used as well as a subscriber's communications on the list of dialed numbers and callers, duration and timing of communications"

The Commission Nationale de l'Informatique et des Libertés (CNIL), France's data protection authority, issued a statement following the enactment of the LPM noting that "information and documents" was so vague a term that "it appears to allow intelligence services to have access to content data, not only connection data." Ironically, the law was purportedly enacted to make surveillance laws more precise, following a 2010 European Court of Human Rights decision, Uzun v. Germany, where the court had warned Member States that "[i]n view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated" (at 61).

A Not-So-Precise Geolocation Surveillance Law

So how did a law purportedly intended to clarify the use of surveillance technology wind up with such foggy language? When the LPM was first presented to the French Senate in August 2013, the explanatory memorandum about the section that would become article 20 presented it exclusively as an anti-terrorism measure. The memorandum indicated that the section would authorize police in charge of preventing terrorism to access geolocation information and communications metadata in real time. The new provisions were originally intended to become part of a 2006 anti-terrorism law that is currently set to lapse the last day of 2015, and would be limited by the scope of the 2006 law.

But then came the sleight of hand. Senator Jean-Pierre Sueur argued that article 20 of the LPM should not become part of the 2006 law, but instead should become part of an updated general administrative communications interception law. "If geolocation is inserted in Article L.34-1-1, it is confined to anti-terrorist purposes, even though the intelligence services might need it for much broader purposes," explained Senator Sueur. In fact, the senator quoted the ECHR's decision in Uzun to justify this expansion of administrative authority, noting that the Court had found that using a geolocation device "could be acceptable under the right to privacy guaranteed by Article 8 § 1 of the European Convention for the Protection of Human Rights, provided that the law is very specific in its description of the device" (p.47).

Sueur's argument succeeded, and article 20 of the LPM became articles L. 241-1 et seq. of France's Homeland Security Code -- an entirely new chapter VI broadly named “Administrative access to data connection.”

So Much for the Judiciary

The main problem with Senator Sueur’s invocation of Uzun was that he conveniently forgot to mention that Uzun involved authorization by a German judge, not the administration, for police to place the GPS device at issue in that case.

In Uzun, a German prosecutor had placed Bernhard Uzun and "S.," one of his presumed accomplices, under surveillance, as they were suspected to have participated in bombing attacks carried out by a terrorist organization. The police had placed a GPS device in S.'s car and monitored Uzun and S.'s whereabouts for three months until their arrest. Uzun was subsequently found guilty of having carried out a bomb attack and, on appeal to the ECHR, argued that using a GPS device as a surveillance tool had been an unjustified breach of his privacy, as protected by article 8 of the European Convention for the Protection of Human Rights. But the ECHR held unanimously that there had been no violation, as installing the GPS device had been done in accordance with the law, to pursue the legitimate goal of protecting public safety, and had been a proportionate measure to accomplish this goal.

The fact that Uzun involved judicially authorized surveillance is critical. French law explicitly separates administrative police power, which is exercised preventatively to limit crime and maintain public order, from judicial police power, which is exercised to enforce law and investigate crime. The administrative police power is under the control of the administrative/executive authority, while the judicial police power is under the control of the judicial authority. Only the judicial authority is deemed to be the “guardian of individual freedom” by article 66 of the French Constitution.

So while the ECHR in Uzun had unanimously found no violation of article 8 of the European Convention on Human Rights protecting privacy, it was considering an exercise of judicial police power under the oversight of a judge in the active investigation of a terrorism suspect. It was not a case about administrative police power.

The French Conseil Constitutionnel (Constitutional Council), which is in charge of reviewing the constitutionality of laws, had found in 2006 that it is also permissible for administrative police officers to have access to stored electronic communication data without a warrant, but only when acting to prevent acts of terrorism. The LPM, however, contains no such limitation in its text and, once placed in the Homeland Security Code instead of the 2006 terrorism law, lost any limitation that could have been drawn from context.

The New Process: Collecting Geolocation and Metadata in Real Time Without a Warrant

So now the LPM authorizes the collection of geolocation and metadata in real time without a judicial warrant and not only for terrorist crimes. This is how it works: under the new article L. 246-3 of the Homeland Security Code, the ministers of homeland security, of defense, of economy, and of budget may ask for authorization to have access in real time to the "information and documents" subject to the LPM (the definition of which now appears in article L. 246-1 of the Code). The authorization is not granted by a judge, but by the Prime Minister (who heads the government under article 21 of the French Constitution). The authorization may be granted initially for a maximum time of thirty days, but can be renewed for the same amount of time.

The Prime Minister‘s decision is communicated within forty-eight hours to the President of the Commission Nationale de Contrôle des Interceptions de Sécurité (the National Commission to Control Security Interceptions, or "CNCIS"). The CNCIS was created by a July 10, 1991 law, following the European Court of Justice's condemnation of France in 1990 in two cases, Kruslin v. France and Huvig v. France. These cases noted France's lack of a precise communication surveillance law, holding that since "[t]apping and other forms of interception of telephone conversations represent a serious interference with private life and correspondence [they]... must accordingly be based on a 'law‘ that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated" (Kruslin at 33).

If the President of CNCIS does not believe the legality of the Prime Minister's authorization is "certain," he is to meet with the whole CNCIS, which must make a decision about the legality of such authorization within seven days.

But even forty-eight hours, and possibly seven days more, is quite a long time for potentially illegal surveillance to take place. Also, the control is only a posteriori and is only made by the CNCIS, which is an independent administrative authority, not a judicial authority. Geolocation and metadata surveillance in real time are thus left entirely in the hands of administrative authorities with no judicial oversight.

Is it Constitutional?

This new scheme seems unlikely to fare well with France's Supreme Civil Court, the Cour de Cassation. The day the Senate bill was sent to the Assemblée Nationale, France's lower chamber, the Cour de Cassation ruled in two geolocation cases. The court quoted, in full, article 8 of the European Convention of Human Rights, and concluded that "geolocation technology constitutes an interference with privacy of such gravity that this requires it to be executed under the supervision of a judge."

Therefore, there is a real chance that the LPM will eventually be declared unconstitutional. In fact, opponents to the LPM tried to have the law found unconstitutional by the Conseil Constitutionnel before its enactment, but could not gather the signatures of sixty Representatives or sixty Senators necessary to petition the Conseil Constitutionnel. The LPM may now only be declared unconstitutional if a party to a lawsuit argues that the LPM infringes on her rights and freedoms as guaranteed by the Constitution. If the conditions of admissibility would be met, the Cour de Cassation would refer the question of constitutionality of the LPM to the Conseil Constitutionnel, which could then repeal the law.

Conclusion

Even though the LPM had been presented as the law which would put France in compliance with Uzun, Christine Taubira, the Minister of Justice, announced on December 23 that the government had presented another geolocation surveillance law to the Senate intended "to bring French law into conformity with the requirements laid down by the European Court of Human Rights in its Uzun v. Germany judgment ... and the October 22, 2013 decisions of the Court of Cassation."

The French Senate adopted this bill on January 20, and it will be debated at the lower Assembly next month. It adds a new article to the French criminal procedure code which would authorize the police to put in place geolocation surveillance without requesting a warrant, if investigating a crime punishable by at least five years imprisonment, or at least three years imprisonment for crimes against property.

Hopefully, the new bill will give France another chance to publicly debate whether it is advisable for a democracy to authorize real time surveillance without judicial oversight. For now, it is hard to believe that France was the home of Montesquieu, who famously wrote in The Spirit of the Laws about the tripartite separation of powers: legislative, judicial and executive.

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.

(Image of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu on 1989 200-franc note courtesy of Flickr user Drew XXX pursuant to a Creative Commons CC BY-NC 2.0 license.)

Jurisdiction:

France

Subject Area:

Privacy

United States v. Brown

DMLP Staff — Thu, 23 Jan 2014 19:47:54 +0000

Threat Type:

Criminal Charge

Party Receiving Legal Threat:

Barrett Brown

Date:

09/12/2012

Type of Party:

Government

Status:

Pending

Type of Party:

Individual

Location of Party:

United States

Location:

Texas

Jurisdiction:

Texas

Location of Party:

Texas

Legal Counsel:

Candina S. Heath (Asst. U.S. Attorney), Sarah R. Saldana (U.S. Attorney)

Source of Law:

United States

Verdict or Settlement Amount:

N/A

Legal Claims:

Computer Fraud and Abuse Act

Fraud

Theft

Other

Court Name:

United States District Court for the Northern District of Texas: Dallas Division

Legal Counsel:

Douglas A Morris (Federal Public Defender - Dallas); Ahmed Ghappour (University of Texas Law School), Charles D. Swift (Swift & McDonald, PC), Marlo P Cadeddu (Law Office of Marlo P Cadeddu)

Court Type:

Federal

The U.S. government filed three indictments, consisting of seventeen charges, against Barrett Brown, an independent journalist. The charges arose out of Brown's online publication of a link to data obtained by hacktivist collective Anonymous and his alleged subsequent conduct. Anonymous hacked Stratfor,... read full description

Case Number:

3:12-cr-00317-L; 3:12-CR-413-L; 3:13-CR-030-L

Web Site(s) Involved:

BarrettBrownLOL (Twitter)

Brown's YouTube video

ProjectPM.info

Relevant Documents:

2012-10-01-Brown indictment.pdf

2012-12-04-Brown indictment.pdf

2012-12-17-Brown Not Guilty Plea.pdf

2013-01-23-Brown indictment.pdf

2013-02-04-Order Determining Brown's Competency.pdf

2013-07-02-Brown superseding indictment (supersedes 12-4-12 indictment).pdf

2012-10-15-Brown Not Guilty Plea.pdf

2013-08-07-US opposition to continuance (with request for gag order).pdf

2013-08-09-Brown reply to opposition to continuance.pdf

2013-09-04-Brown memo in opposition to request for gag order.pdf

2013-09-04-Agreed order re extrajudicial statements.pdf

2014-03-05-Government Motion to Dismiss.pdf

Content Type:

Text

Anonymous hacked Stratfor, a global intelligence firm, in December 2011, obtaining millions of e-mails, some of which included credit card and personal identity data. WikiLeaks published a large collection of these emails in February 2012, and Brown linked to a zip file of the leaked data on his IRC (Internet Relay Chat) channel, #ProjectPM. In response to these events, in March and September 2012, the FBI raided Brown and his mother's residences. Brown responded with YouTube videos, including one entitled "Why I'm Going to Destory FBI Agent [RS]," and similar commentary on Twitter.

The federal government filed a complaint against Brown in the U.S. District Court for the Northern District of Texas on September 12, 2012. According to the docket, the complaint alleged that Brown "knowingly counseled, commanded, and induced other individuals to make restricted personal information about a Special Agent (SA) of the Federal Bureau of Investigation (FBI) publically available with the intent to threaten, intimidate, and incite the commission of a crime of violence against that SA, in violation of 18 U.S.C. §§ 2 and 119." (The full text of this complaint is not available.) The first indictment included counts related to Brown's responses to the FBI raids on his social media accounts (on Twitter and YouTube), which the government alleged to be threatening the FBI Agent and exposing private information. Specifically, the three counts were: Internet threats under 18 U.S.C. § 875(c); conspiracy to make publically available restricted personal information of an employee of the United States under 18 U.S.C. § 371; and retaliation against a federal law enforcement officer under 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Brown pled not guilty to all three counts on November 15, 2012.

The government filed a second indictment, case number 3:12-cr-00413-B, on December 4, 2012, arising out of the hyperlink to the leaked Stratfor data that Brown posted on his IRC channel. The government asserted that sharing this link constituted a transfer the credit card account information contained therein; accordingly, Brown was charged with: traffic in stolen authentication features under 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); access device fraud under 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); and ten counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On December 17, 2012, Brown made a plea of not guilty to all of these charges. This second indictment was replaced by a superseding indictment on July 2, 2013, which made no substantive changes to the charges.

During the 2012 FBI raids, Brown denied the presence of any laptops at his or his mother's residences, though two were later found. For this, he was charged with obstruction of justice in a third indictment on January 23, 2013 (case number 3:13-cr-00030-B). The indictment included two counts: concealment of evidence under 18 U.S.C. § 1519; and corruptly concealing evidence under 18 U.S.C. § 1512(c)(1). According to the case docket, Brown entered a not guilty plea on January 30, 2013.

On January 30, 2013, the court held a hearing to determine Brown's competency to stand trial in his criminal cases, focusing on his mental health. In an order filed February 4, 2013, the court declared Brown competent to stand trial in all three pending cases.

On August 7, 2013, in the course of opposing a motion by Brown for a continuance of his trial date, the government asserted that Brown had repeatedly solicited "the services of the media or media-types to discuss his cases," and thereby demonstrated an "intent to continue to manipulate the public through press and social media comments, in defiance of the admonishment by the United States Magistrate Judge." Asserting that such "extrajudicial commentary" would undermine a fair trial, the government asked the court "to instruct the parties to refrain from making "any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."

Brown opposed the government's request for a gag order in pleadings filed on August 9 and September 4, 2013, arguing that the government had not established a need for a gag order or that less restrictive measures were not available to responf to pretrial publicity. The defense pointed out that since appointment of counsel on his behalf, Brown had made no statements to the press, his counsel had made no statements except with respect to matters in the public record, and any statements made by associates of Brown could not be attributed to Brown himself. The defense further argued that cases supporting gag orders required evidence of statements by the defendant, and not merely a claim that the defense had condoned or attempted to coordinate media coverage. The defense also objected to the government's attempt to rely, as a basis for a gag order, on Brown's own journalistic work product unrelated to the pending charges against him.

On September 4, 2013, the court entered an "Agreed Order Re: Extrajudicial Statements" signed by the judge and by counsel for Brown and the government. The order prohibits Brown and all attorneys for the government and the defense from making

any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere witha fair trial or otherwise prejudice Defendant, the Government, or the administration of justice, except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown's defense.

The parties are further prohibited by the order from avoiding its effect through indirect, but deliberate, means. The order states that Brown is permitted continue to make statements and publish on topics not related to the counts on which he was indicted.

Two trials are set in the case. The first trial, relating to the threats allegedly made by Brown, is set to begin on April 28, 2014. The second trial, relating to the charges regarding hyperlinking to stolen data and obstruction of justice, was set to begin on May 19, 2014; however, on March 5, 2014, the Department of Justice voluntarily moved to dismiss the hyperlinking charges. It is not clear whether this will affect the schedule of the second trial.

Publication Medium:

Forum

Social Network

Subject Area:

Linking
Computer Fraud and Abuse Act