Digital Media Law Project

Massachusetts Courts Mull Right of Access to Deceased Family Members' E-mail

Marie-Andree Weiss — Wed, 22 May 2013 13:09:49 +0000

A case in the Massachusetts Court of Appeals, Ajemian v. Yahoo!, Inc., decided on May 7, is the latest case dealing with ownership of digital assets after death.

Plaintiffs, Marianne Ajemian and Robert Ajemian, are co-administrators of their brother John Gerald Ajemian's estate. In 2002, Robert opened a Yahoo! account for John. Robert was a co-user of the account, but used it infrequently; rather, John was the primary user. John was killed in an accident in 2006. By that time, Robert had forgotten the password to the account. Plaintiffs tried to access the account to help them locate his assets and contact John's friends to inform them of his death.

However, Yahoo! refused to let them access the account and its content, claiming that it would be a breach of the Stored Communications Act (SCA), 18. U.S.C. §§ 2701 et seq. The SCA provides a cause of action against someone who "intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage."

After negotiation with Yahoo!, Plaintiffs filed a declaratory judgment action in Probate Court seeking a declaration that they were entitled to access the subscriber records of John’s email account (including subscriber information and e-mail header data, but not the e-mails themselves). Yahoo! agreed not to oppose that action, and a probate judge granted access to those records.

However, Yahoo! and the Plaintiffs did not reach agreement on the content of the account, i.e., the actual content of John’s e-mails. Accordingly, Plaintiffs brought a second declaratory judgment action in Probate Court to request access to the content of the account. Robert also brought this second action individually as a co-owner of the email account. Plaintiffs argued that the emails were the property of John’s estate and that thus its administrators should have access to the content of the account. They also argued that Robert was individually entitled to access the content of the account.

Yahoo! moved to dismiss the claim under the doctrine of res judicata, which bars relitigating a matter already adjudicated by a court. A second probate judge accepted Yahoo’s argument that the issue of the content of the e-mails could have been litigated in the first action, and was now foreclosed. The probate judge also ruled that the forum selection clause in Yahoo!’s Terms of Service (TOS) was enforceable and required any claims to be litigated in California.

Plaintiffs appealed to the Massachusetts Appeals Court, which reversed the judgment of the probate court, and remanded the case. The Appeals Court found that (1) the doctrine of res judicata did not apply because the first probate case had been limited in scope pursuant to an agreement with Yahoo!, and (2) Yahoo! had not established either that the forum selection clause had been accepted by the Plaintiffs or was enforceable. The ultimate issue in the case was, however, left undecided -- whether John’s e-mails were property of his estate. This question will be now addressed on remand by the probate judge. What factors will affect that decision?

Terms of Service

It is unlikely that the Plaintiffs would be able to claim rights arising out of Yahoo!’s Terms of Service, given that the Appeals Court’s ruling on the forum selection clause was based in part on a finding of insufficient evidence that the Plaintiffs had accepted the Yahoo! TOS. However, the TOS of email service providers may not provide much help to family members seeking access to email anyway.

This is not the first time that ownership of Yahoo! e-mail has been litigated. In 2005, Yahoo! allowed the father of a Marine killed in Iraq to access the content of his son’s email account, but only after a Michigan probate court ordered it. Yahoo! had taken the position that releasing the content without a court order would be a violation of its TOS.

In the present case, according to the Appeals Court, Yahoo! claimed no ownership in users’content under the version of the TOS effective at the time of John’s death in 2006, but also stated that the account was not transferable, and that the account would be terminated and all content deleted upon receipt of the death certificate of the user. These provisions remain in effect under Yahoo’s current terms. Yahoo! also states in its Account Help pages that under federal law it cannot release the content of electronic communications to family members but will delete accounts upon a proper request.

By way of comparison, Google published last March its policy for Gmail accounts of deceased persons, stating that “in rare cases we may be able to provide the contents of the Gmail account to an authorized representative of the deceased person” (emphasis in the original text) after “careful review.” Facebook has a policy to memorialize the account of a deceased person or to delete it at the request of a verified immediate family member.

Legislation Dealing With Digital Assets

Absent rights granted by the user’s contractual relationship with an e-mail provider, such rights might arise from statute. Right now, whether a bereaved family will be able to access the email account of the deceased could depend on where they live. The issue of ownership of digital assets has already been addressed in some states and is currently being debated by legislators in other states.

Across the border from Massachusetts, Rhode Island has already enacted a law giving administrators of an estate the right to request from electronic mail service providers access to or copies of the contents of the account of the deceased upon receipt of a written request or an order from the probate court. Another neighboring state, Connecticut, has enacted a similar law.

A bill currently pending in Virginia, H.B. 1584, addresses the issue of fiduciary access to digital assets. Fiduciaries, such as trustees or executors, would have the right to take control of digital accounts of the persons to whom they owe a fiduciary duty, unless barred to do so by the will or trust instrument, or by a court order. If such a law were in effect in Massachusetts, Yahoo!, as “custodian” of John’s digital assets, would have to either transfer the contents of John’s account to his brother and sister, or provide them access to the account within 30 days from receiving their written request.

The Ajemian case may trigger the Massachusetts legislature to propose a bill dealing with the issue of ownership of the email accounts of deceased persons, just as Oregon did following the much-publicized story of Karen Williams, who had tried unsuccessfully to access the Facebook account of her son, killed in an accident in 2005. The fact that these issues have tended to arise after the accidental death of a user helps to illustrate why a legislative solution is necessary. Even if a company’s terms of service were to allow transfer of rights in e-mail content by contract or in a will, in many cases sudden death (particularly of a younger user) may occur before such arrangements are made.

There remains, however, the question of the impact of the Stored Communications Act. If Yahoo! is correct that their refusal to turn over content is based not only on their TOS but on federal law, contrary state laws mandating such disclosure will likely be preempted.

In a case similar to the Ajemian case, last September a magistrate judge of the U.S. District Court for the Southern District of California granted Facebook’s motion to quash a subpoena compelling the social media site to provide the content of the Facebook account of a woman to her surviving family members. In In re Request for Facebook, Inc. to Produce Documents and Things, the family was seeking access in order to prove that the woman had not committed suicide. Facebook had argued that the subpoena violated the SCA by compelling the disclosure of material protected under the act. The magistrate judge held that “[t]o rule otherwise would run afoul of the “specific privacy interests that the SCA seeks to protect,” quoting the 2004 9^th Circuit case of Theofel v. Farey-Jones, in which the court held that plaintiffs whose private email messages had been disclosed under an overbroad subpoena had a cause of action under the SCA.

Privacy Issues

As the Facebook case, discussed above, suggests, allowing heirs and executors to access the online accounts of deceased users could pose significant privacy issues. Opening the private e-mails of a deceased person could potentially expose information that would damage that person’s memory or the interests of others still living. Some family members may be tempted to continue updating a deceased person’s account out of love, grief, or pure foolishness. However, not allowing this access also means that bereaved family members may lose access to pictures and messages posted by the deceased user, which may be a great source of comfort for them. There is a definite tension between these familial and privacy interests.

But whose privacy? Is it the privacy or reputation of the dead person, the interests of other family members, or the privacy of a person, still alive, with whom the deceased may have interacted on a private platform, such as an email or a private message? These questions have not been clearly resolved in this particular context under United States law.

Interestingly, the personal data of the deceased is not protected by European Union (EU) law. The Article 29 Working Party (WP29), which is the EU advisory body on data protection, has addressed the issue of personal data relating to dead individuals in its Opinion 4/2007 dealing with the concept of personal data. This data is in principle not subjected to the Data Protection Directive, and thus not protected by it (see p.22). The 2012 EU Commission Proposal for a data protection Regulation does not address this issue either.

However, the WP29 also notes that the personal data of the dead sometimes is related to the personal data of a living person, and, in that case, it is protected by the EU law. The WP29 cites health data of close relatives as an example, but the person with whom the deceased communicated also have a right to privacy, and it should not stop at the death of the other party to the communication.

Conclusion

While the probate court will have another opportunity to decide if the Ajemian family has a right to the contents of John’s e-mail account, for the moment this issue remains unresolved in Massachusetts. Regardless of the legal determination, however, the fate of digital assets left behind by a deceased family member creates complicated policy questions that call for resolution more nuanced than that provided by general data security laws.

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.

(Photo courtesy of Flickr user Irish Typepad pursuant to a Creative Commons CC BY-NC-ND 2.0 license.)

Justice Dept.'s Media Investigation Policy Falls Flat Compared to Other Protections Against Press Intrusion

Jeffrey P. Hermes — Wed, 15 May 2013 12:53:40 +0000

As has been widely reported, the U.S. Department of Justice has disclosed that it has obtained two months' worth of telephone records from 20 separate phone lines assigned to the journalists and offices of the Associated Press. The Associated Press was not informed of the investigation before the DOJ acquired the telephone data, which could potentially reveal confidential sources and editorial strategy (among other sensitive information).

The incident has resulted in widespread condemnation of the DOJ's actions by the press and demands for accountability and reform. In response, the DOJ has asserted its commitment to abiding by applicable law and its internal policies, which require special consideration before information may be sought from members of the news media.

This is not the first time that a government investigation into a news organization's operations has led to questions about the sufficiency of protection for the press, and in fact the effects of one prior incident in particular can be seen in these recent events. Examining this incident and its consequences provides a useful lens through which to examine the breadth and limitations of government power to investigate the press.

The First Amendment and the Fourth: Zurcher v. Stanford Daily

On April 12, 1971, four police officers conducted a search of the offices of the Stanford Daily, a student newspaper published at Stanford University. The search, which was conducted pursuant to a court-ordered warrant, was related to an investigation into a disturbance on April 9, during which a group of demonstrators seized the administrative offices of the Stanford University Hospital and engaged in a physical confrontation with police. The Santa Clara County District Attorney's Office asserted probable cause to believe that the Stanford Daily might have negatives, film, and/or images of the disturbance that would assist in the identification of the protesters.

The Stanford Daily filed a civil rights action under 42 U.S.C. § 1983, asserting that the search was unconstitutional. In particular, the newspaper asserted that issuing search warrants for news organizations posed multiple threats to newsgathering, including: (1) physical disruption of the timely newsgathering and publication process; (2) chilling of confidential sources and denial of press access to restricted events; (3) deterrence of note taking and other creation of work product by reporters; (4) exposure of internal editorial decision-making to government scrutiny; and (5) self-censorship by the press to conceal the possession of information of potential interest to law enforcement. Accordingly, the newspaper argued that the First Amendment required different procedures and a higher standard to be met for the issuance of a warrant to search the records of a news organization than is ordinarily required by the Fourth Amendment.

The federal district court agreed, holding that a warrant could not be issued for materials in the possession of a newspaper not itself suspected of being involved in a crime, unless:

it is established by affidavit would be "impracticable" to request the materials from the newspaper directly via subpoena;
there is reason to believe that the newspaper would disregard a court order not to remove or destroy the materials sought;
there is a clear showing that important materials will be destroyed or removed from the jurisdiction; and
a restraining order would be futile.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling, but in Zurcher v. Stanford Daily, 436 U.S. 547 (1978) the U.S. Supreme Court reversed, holding that sufficient protections for First Amendment interests were built into the Fourth Amendment standard for issuance of a warrant:

[P]rior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant - probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness - should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.

Id. at 565.

There is some suggestion that the Court recognized that this ruling, albeit consistent with its prior interpretations of the Constitution, nevertheless might be insufficient to protect journalists. Justice White, writing for the majority, commented: "Of course, the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure." Id. at 567.

The Privacy Protection Act

The United States Congress reacted swiftly to Justice White's hint with proposed legislation granting newsgatherers precisely the protection that the Court held the First Amendment did not provide. These proposals eventually resulted in the enactment of the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa et seq. (the "PPA"), which creates protections against searches for the work product or other documents possessed by any "person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce." In at least one case, this language has been held to be broad enough to protect the publisher of an electronic bulletin board. See Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432, 440 (W.D.Tex. 1993).

The PPA distinguishes between the "work product" of these individuals, defined as materials prepared and possessed for the purpose of being communicated the public that contain the mental impressions of the person who created those materials, and other "documentary materials," defined as any material upon which information of virtually any type may be recorded in any format. See 42 U.S.C. § 2000aa-7(a, b). The issuance of a warrant for either category is subject to substantial restrictions well beyond what the Fourth Amendment requires.

Pursuant to the PPA, a newsgatherer's "work product" may not be searched or seized, even with a warrant, unless:

(1) there is probable cause to believe that the person possessing those materials has committed or is committing a crime to which the materials relate other than a crime consisting of the possession, receipt, communication, or withholding of the material itself (except where such a crime involves classified or restricted government data, or child pornography, exploitation, or trafficking); or

(2) there is reason to believe that immediate seizure of the materials is necessary to prevent death or serious bodily injury.

Similarly, a newsgatherer's "documentary materials" may be searched and seized pursuant to a warrant only under the conditions for "work product" described above, as well as when:

(3) there is reason to believe that requesting the documents from the newsgatherer by subpoena will result in the destruction, alteration, or concealment of the documents; or

(4) the government has tried to use a subpoena, the newsgatherer has refused to comply with a court order directing compliance with the subpoena, and either (a) the newsgatherer has exhausted their rights to appeal the court order or (b) further delay in production of the materials would threaten the interests of justice.

42 U.S.C. § 2000aa(a, b). Even when law enforcement decides to obtain a warrant for "documentary materials" because further attempts to pursue a subpoena would threaten the interests of justice, the government must still give a newsgatherer an opportunity to submit an affidavit challenging the issuance of the warrant. 42 U.S.C. § 2000aa(c).

A newsgatherer whose rights under the PPA have been violated has the right to file a civil action against the government body and individual state officers involved. A successful claimant is entitled to recover either actual damages or $1,000 in liquidated damages (whichever is more), plus reasonable attorneys' fees and costs. 42 U.S.C. § 2000aa-6(a, f).

The Department of Justice's Policy on Investigating News Media

Critically, the provisions of the PPA discussed above do not apply to records in the possession of third parties, such as the telephone records at issue in the recent DOJ investigation. In fact, the government is not even required to obtain a search warrant for such materials. Pursuant to the so-called "third-party doctrine," when a person voluntarily turns over information to third parties or allows those third parties to collect information about his or her activities, that person has no expectation of privacy in that information protected by the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735 (1979). As a result, the government can obtain that information simply by issuing a subpoena to a telephone company or other third party. Unlike the subpoenas to newsgatherers contemplated by the PPA, which give newsgatherers the opportunity to object in court, subpoenas to third parties (such as telephone companies) could potentially bypass a news organization entirely.

The Department of Justice's discretion in this regard is not, however, wholly unfettered. Section 2000aa-11 of the PPA required the Attorney General, within six months of October 13, 1980, to issue "guidelines for the procedures to be employed by any Federal officer or employee, in connection with the investigation or prosecution of an offense, to obtain documentary materials in the private possession of a person when the person is not reasonably believed to be a suspect in such offense."

On November 19, 1980, apparently in response to this statutory command, the Attorney General promulgated as federal regulations its "Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media" (28 CFR § 50.10, the "Media Policy").

The Media Policy is long on rhetoric and promises of prosecutorial restraint. It begins with broad recognition of the importance of not interfering with the newsgathering function of the press:

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.
...
In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.

28 C.F.R. § 50.10(preamble, a).

The Media Policy also lays out a multistep process that the Department of Justice is supposed to follow when considering seeking the records of news organizations, including telephone toll records. With respect to telephone records, the DOJ must:

take "all reasonable alternative investigative steps" before considering issuing a subpoena for telephone toll records of any member of the "news media";
negotiate with the affected member of the news media before issuing a subpoena for toll records, so long as such negotiations would not undermine the integrity of the investigation for which the records are sought;
obtain the express authorization of the Attorney General for the subpoena, based upon a determination that the information sought is essential to a criminal investigation, and a failure to obtain the information from alternative sources.

28 C.F.R. § 50.10(b, d, e, g).

In addition, if the DOJ has previously negotiated with the news media for access to telephone toll records, it must give reasonable and timely notice to the member of the news media that the Attorney General has authorized the subpoena and that the government intends to issue it. 28 C.F.R. § 50.10(g)(2). Even when to protect the integrity of an investigation negotiations did not take place, the DOJ must give notice of the subpoena as soon as disclosure will no longer threaten the investigation (although this could be after a response to the subpoena is received from a third party). 28 C.F.R. § 50.10(g)(3).

Critical Distinctions

It might at first appear that the protections of the PPA for newsgathering materials and the DOJ's Media Policy for telephone toll records are at least comparable. Although the Media Policy contemplates a subpoena rather than a warrant, it at least indicates that whenever possible the DOJ should notify the news organization in question so that the media have the opportunity to intervene and to object to a subpoena to a third party. True, the Media Policy contains no hard-line requirement of a threat to life and limb such as applies to work product; but in the context of non-work product materials, even the PPA prefers a subpoena that a newsgatherer has the chance to challenge in court to a warrant issued without any adversary process. Likewise, the PPA allows the government to work around a news organization by means of a warrant for non-work product materials if alerting the organization in advance would result in the destruction of those materials.

Nevertheless, as a matter of practice the Media Policy's protections turn out to be far less substantial, as the Associated Press has learned. We do not yet know for sure what happened inside the DOJ with respect to the AP, such as whether a determination was made that disclosing the intent to request these telephone records in advance would jeopardize an investigation or whether the Attorney General in fact authorized the issuance of subpoenas. Because the DOJ is not required to seek prior court approval for a subpoena in the way that it must for a search warrant, there was no need for the DOJ to articulate in a transparent manner whatever concerns about urgency or operational security might have existed.

And even if it turns out that rogue DOJ agents disregarded the Media Policy entirely, the Associated Press has no legal remedy. The DOJ has the authority to issue subpoenas for the information that it obtained. Although the Media Policy states that "[f]ailure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action," it further states that "[t]he principles set forth in [the Media Policy] are not intended to create or recognize any legally enforceable right in any person." 28 C.F.R. § 50.10(n). Even the PPA provisions that apparently motivated the Attorney General to adopt the Media Policy suggest that the Policy is only enforceable by the DOJ itself. Section 2000aa-12 of the PPA states,

Guidelines issued by the Attorney General under this subchapter shall have the full force and effect of Department of Justice regulations and any violation of these guidelines shall make the employee or officer involved subject to appropriate administrative disciplinary action. However, an issue relating to the compliance, or the failure to comply, with guidelines issued pursuant to this subchapter may not be litigated[.]

In other words, ignoring the Media Policy might result in a head or two rolling, but the AP would not be able to bring a lawsuit, much less seek statutory damages and attorneys' fees as per the PPA's protection for work product and other materials.

A third distinction between the PPA's core protections and the Media Policy is perhaps less relevant to the AP, but should be of concern to independent online journalists and news ventures. As mentioned above, the PPA uses a more-or-less function-driven definition of the journalists protected under its scope, which while still ambiguous is likely broad enough to shield online publishers. In contrast, the Media Policy simply refers to the "news media" without further definition. There is no reason to believe that the DOJ would read the Media Policy, written in 1980, to apply to anything beyond the traditional institutional definitions of the news media prevalent at that time.

Conclusion

The recent events with the Associated Press echo the experience of the Stanford Daily, with both news organizations facing intrusions into their newsgathering activities that were possibly authorized by the law but nevertheless raised serious concerns as to whether the protections of the law were sufficient.

In the case of the Stanford Daily, the response to concerns over the scope of the Fourth Amendment as applied to news media was the enactment of the strong protections of the Privacy Protection Act. Similarly, the Associated Press investigation has called attention to the fact that the DOJ's Media Policy has significant problems with transparency, accountability, and scope. As a result, we should look carefully at whether further legislative correction is required.

Jeff Hermes is the Director of the Digital Media Law Project. The author would like to thank Andy Sellars for his discussion of ideas reflected in this post.

(Photo courtesy Flickr user daftgirly pursuant to a Creative Commons CC BY-NC 2.0 license.)

3D Printed Guns and the First Amendment

Andrew F. Sellars — Fri, 10 May 2013 23:34:02 +0000

Several news organizations are reporting today that the U.S. Government, through the Department of State, through the Directorate of Defense Trade Controls (DDTC), sent a letter to the organization Defense Distributed, requesting the immediate removal of several "data files" (in their words) off of their DEFCAD website that they claim violate federal law, including the plans for the "Liberator" 3D-printed handgun. The letter was phrased in the manner of a request, but one can be sure that sanctions would follow should Defense Distributed simply ignore the letter. (The Atlantic Wire was kind enough to post the letter in question, available for download here.) Defense Distributed has complied and removed the files from their website, but has indicated that they will "appeal." In this case, that appears to mean requesting a formal determination from the DDTC as to the status of the files in question, which could provide the basis for further legal review.

There's a lot to unpack in this story. Let's talk law first.

I. Data Exports, International Arms Trade, and the First Amendment

The obvious concern this action raises is one of free expression. It's hard to argue with the conclusion that the Department of State just threatened to punish Defense Distributed for disseminating information about how to make a 3D-printed gun (at least, without asking the government's permission first). And as tempting as it is to use this as a launching point for the code-as-speech debate, this case is not even that nuanced. The target here was not the executable object code of software; what DEFCAD was hosting were "computer aided design" or CAD files, which are to design blueprints what Word files are to books. Their regulation by the government is obviously and inherently done for the expressive content that they convey.

But before doing a full First Amendment analysis one should start with the crime alleged. The letter cites 22 U.S.C. § 2778, the law authorizing the President to "control the import and export of defense articles and defense services" by creating a list of such articles and services (the "United States Munitions List") and creating a licensing regime around them. The regulations promulgated by the Department of State have long extended the application beyond the physical items and into the informational: 22 C.F.R. § 120.10 regulates the export of "technical data," defined as information "required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles." Important exceptions exist, however, for information in the "public domain" (defined here as information available to the public through sales "at newsstands and bookstores," through publicly-accessible trade publications, through public libraries, and a few other needlessly technical avenues), as well as information "concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities." As patent doctrine so often cautions, one should not mistake the first application of knowledge with the discovery of the relevant knowledge itself. I'm not sure there's much in the components of this gun that a gunsmith doesn't already understand. It is therefore possible that this information is outside of the claimed authority altogether, which would make this a very short blog post.

Courts considering the First Amendment application to "technical data" exportation regulations have held that the fact that the restriction is applied to international trade is quite material. The leading authority on point is a 1978 case from the United States Court of Appeals for the Ninth Circuit, raised in the context of exporting blueprints for missile cases. The court upheld punishment notwithstanding a First Amendment challenge, but only after adopting a narrow framing of this statute and holding that the prohibition on the distribution of this information was a permissible "incidental limitation" on speech, suffered as a consequence of the governments legitimate authority to regulate "international arms traffic." Even then, the court seemed inclined to apply the law to raw information only if the defendant knows it is to be used for military purposes. In his The First Amendment and the Export Laws (58 Geo. Wash. L. Rev. 368, 381 (1990)) Allen Shinn notes that, following this case, the Department of Justice limited application of the law to circumstances where the government could show a specific arrangement with a foreign party. (I don't know if the past twenty years has eroded that prudent limitation.) A 1989 Ninth Circuit case and a 2012 Ninth Circuit case reapplied the doctrine to later dissemination of technical data to foreign powers; these cases analyzed the application of the law under United States v. O'Brien's speech/conduct distinction, which I think is a completely inappropriate place to begin, but even if you accept that, the limitation still only appears valid when giving technical data to foreign powers directly.

If the law only survives First Amendment scrutiny under such obviously international applications, and only applies to technical data beyond the scope public knowledge, it clearly should not apply to the work of Defense Distributed. In fact, there's something profoundly dangerous in the Department of State's attempt to draw this within the scope of its authority. The letter to Defense Distributed, and the law under which the letter claims authority, clearly contemplate the international trade of arms, and asserts the power Congress has given to the Executive Branch to regulate importation and exportation of arms. I don't see the justification for that position beyond the fact that Defense Distributed is publishing on the Internet. If our government takes the position that all material published online is treated with the scrutiny we used to reserve for international defense contractors, we have just placed severe limitations on persons Congress never sought to control when it passed these international trade statutes. We simply cannot justify limitations on freedom as necessary for foreign affairs, only to turn around and apply such restriction to obviously domestic conduct.

II. Plans for Undetectable Firearms and the First Amendment

There is another layer of potential criminality here as well, although it has not yet been asserted against Defense Distributed. Namely, the plans appear to be for the creation of a device which itself might be proscribed under the law. 18 U.S.C. § 922(p)(1)(A) declares it unlawful for "any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm" that is not detectable through walk-through metal detectors to the same level as a "Security Exemplar" created at the direction of the Attorney General for testing of detection equipment. The "Liberator" handgun was designed to include a six-ounce steel cube inside it in order to avoid this issue, but the plans themselves do not require its inclusion, and thus could easily be used to create an unlawful undetectable gun. What, then, should be the culpability of the person that tells you how to create the prohibited object? What if instead of the State Department issuing such a letter it was the FBI arresting Defense Distributed members for aiding a § 922(p)(1)(A) violation?

This is a question of considerable precedent, though less straightforward than one may initially expect. In the realm of advocacy for criminal activity, we have the very high bar put forth by the Supreme Court's Brandenburg v. Ohio case, which prohibits the punishment of advocacy of unlawful conduct except when there is both an intent on the part of the speaker for the listener to engage in said unlawful conduct and it is likely that the advocacy will result in imminent unlawful action. While this is the most direct case on point for crime-inducing speech, some courts have endeavored, either explicitly or implicitly, to identify a separate category for speech that facilitates a crime instead. Some courts have found that such "crime-facilitating speech" (to borrow a phrase from Eugene Volokh's excellent article on the topic) might be punished under a lesser standard than Brandenburg. Other courts hold true to Brandenburg, and the Supreme Court has yet to weigh in and indicate which is correct.

A classic example of the lesser standard is Rice v. Paladin Enterprises, a case concerning a book called Hit Man: A Technical Manual for Independent Contractors. While delivered in the form of narrative fiction, the book provides detailed instructions on how to kill undetected, and an individual named James Perry followed such instructions to the letter when killing three individuals as a paid hitman. In the subsequent wrongful death lawsuit, the United States Court of Appeals for the Fourth Circuit rejected application of Brandenburg, finding it limited solely to "advocacy" of crime, and instead found that this could be punished as the aiding and abetting of a crime, at least where (as the parties had stipulated there) the author knew and intended that the information be used for the commission of murder. (The strategy behind such a damning concession is lost to history.) The limited nature of the holding has been used by other courts to avoid its application, and several other circuits have rejected this narrowing of Brandenburg.

Another past example is the The Anarchist Cookbook, which quite famously contains instructions on how to create all sorts of devices of destruction and chaos, many of which are prohibited by law. Despite the book's 40-year history, however, there are no major cases addressing the constitutionality of The Anarchist Cookbook. A FOIA request for FBI information related to the Cookbook reveals a memo from the Assistant Attorney General Robert Mardian to FBI Director J. Edgar Hoover (page 123 of the PDF), wherein the Attorney General's office could not find a federal law that the mere publication of the Anarchist Cookbook violated, though they did not opine on whether a law that did criminalize the publication of such books might pass First Amendment scrutiny. The application of the First Amendment to such generalized information is coming back into public debate; reports seem to agree that the Tsarnaev brothers used Internet instructions for the pressure cooker bombs used in the Boston attacks last month, and one can only assume a corresponding demand will be made for the restriction of such speech online.

But assuming the Brandenburg provides the proper standard for this case, any punishment of Defense Distributed's members would have to show both that they intended that this technology be used to make unlawfully undetectable guns and that such unlawful manufacture was imminent. There are reasons to doubt the government's ability to do either. It is worth mentioning again that the gun includes within its conception a steel cube which would avoid the undetectability issue. This does not mean, of course, that Defense Distributed does not intend to have users make guns that do not include that cube, but it's at least circumstantial evidence to suggest the opposite. Beyond the question of intent, the question of "imminence" in the context of online speech is one that plagues scholars, and given the considerable length of this post it's a discussion best left for another day. It is safe to say that the deployment of a CAD drawing to a 3D printer is about as imminent as one can get online, though it is not the mere minutes or hours that one could assume is the standard from Brandenburg.

III. First Amendment Policy and the "Liberator" Handgun

There are also considerations that go deeper than the dry application of the law as it stands today – which I do think favors Defense Distributed both in the scope of the statute and the First Amendment rights at stake. I'd like to explore the policy of the doctrine as well.

It may seem counterintuitive, but there are good reasons for our reluctance to prohibit the dissemination of information on how to commit crimes. Volokh's aforementioned article notes several. To begin with, the description of crimes may instruct law-abiding citizens on how not to run afoul of the law. This is laughable when considering instructions for murder, but it is quite important when considering discussions of tax evasion, or producing handguns that may or may not trigger liability under the Undetectable Firearms Act. It can also train citizens on how to be aware of the commission of crimes – for example, knowledge about frauds and scams can help a person detect when someone is trying to scam them, and knowing the material components and construction of a (possibly) illegal firearm can better inform the public about what to look out for in the world. Turning to more Miklejohnian justifications, instructions on how to commit crimes can greatly inform the public as they debate the proper nature and scope of punishment under the law. If our tortured history of the Computer Fraud and Abuse Act teaches us anything, it's that Congress can do great harm to our justice system if they do not understand what they are criminalizing. Beyond the serious, one must also consider the more inarticulable desire to understand the world around us. The truth is many people (including me, and I'm willing to bet a lot of you) have read The Anarchist Cookbook out of mere curiosity. We like "true crime" as a genre and complain when movies are unrealistic in portraying a heist or hit. Something less obvious, less weighty and serious, but no less significant is lost when we starve the public's curiosity because we worry about what people may do with the information learned.

I'll freely admit that it's hard to keep these good things in mind when considering a new and uncertain evil. Owen Fiss makes an important observation at the beginning of his The Irony of Free Speech that a lot of the legendary 1960s First Amendment cases – while dressed in the trappings of an existential crisis – were actually rather tame occurrences. The speech in Brandenburg was not the out-and-out call for armed rebellion it is made out to be; it was a gathering of a dozen racists on an Ohio farm where Clarence Brandenburg said, "we're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The greatest violence he did that day was to the dictionary. The triviality of the harm was dispositive in Watts v. United States: an 18-year old at a public rally saying, "I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ." The Pentagon Papers, as power an image as they are, were at heart a history of unethical and perhaps unconstitutional behavior of since-gone presidential administrations, circulated after a new President took office. Again, the urgency of the case is made larger in hindsight. Paladin Enterprises is, of course, the counterfactual and the counter-result: a triple homicide was directly linked to book at issue, and the court found a way to punish that activity. It is this fear of the existential crisis that leads me to worry that a court considering the "Liberator" gun would strain to punish this activity notwithstanding First Amendment doctrine and policy.

So as we assess the danger here we should be mindful of what happened to Hit Man after it was adjudicated to be unlawful in Paladin Enterprises: it found its way to the Internet, and is now freely available on the Pirate Bay, right alongside The Anarchist Cookbook and the blueprints for the "Liberator." And we can take some comfort in knowing that the Anarchist Cookbook's instructions for making a zip gun and the Hit Man's instructions on how to use it have not combined to form a pandemic of murder. We should keep that in mind when we think about the "Liberator."

And if I could truly have my way (and with no small sense of irony after this lengthy post), I would urge the courts, the legislatures, and the public to ignore Defense Distributed's handgun altogether. It distracts from the actual issues surrounding America's profound problem with gun violence. In our dreams of a 3D-printed arsenal we soon forget that the "Liberator" cannot be made using something as simple as a MakerBot in someone's basement. This requires a 3D printer costing thousands of dollars and over a hundred dollars in raw material in order to build a gun that will probably only fire once before melting. Meanwhile, This American Life reported a few weeks back that the black market rate for a real handgun in Chicago can be as low as $25. To put it bluntly, we will see far more handgun deaths due to black market firearms this week than we will see from 3D printed guns in our entire lifetime.

Andy Sellars is a staff attorney at the Digital Media Law Project, and the Corydon B. Dunham First Amendment Fellow at the Berkman Center for Internet & Society. Thanks to Jeff Hermes, Phil Malone, and Kit Walsh for their thoughtful input.

Visualization of the "Liberator" handgun from Flickr user Electric-Eye, licensed under a Creative Commons Attribution No-Derivatives 2.0 License.

Peteski Productions, Inc. v. Gawker Media, Inc.

DMLP Staff — Fri, 10 May 2013 13:49:54 +0000

"Newsgathering in Massachusetts" Guide Now Available Online!

DMLP Staff — Wed, 08 May 2013 14:12:40 +0000

The Digital Media Law Project is pleased to announce the online release of its new legal resource, Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

Our new guide is a PDF document formatted for booklet printing, and provides background legal information on the rights of independent and institutional journalists to collect information in Massachusetts. It covers core topics in Massachusetts newsgathering law, including: open meetings and public records laws; access to courts and courtrooms; recording courtroom proceedings; recording the activities of public officials in public spaces; and protection for anonymous sources.

Written by Cyberlaw Clinic and DMLP staff, Newsgathering in Massachusetts was developed for "Filling the News Gap in Cambridge and Beyond: Citizen Journalism and Grass Roots Media," an event on May 4, 2013, celebrating of the 25th anniversary of Cambridge Community Television. We are now pleased to make this guide available to the public, and hope that you find it useful!

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 specific resources developed to respond to breaking legal issues affecting online speech.

The Harvard Law School Cyberlaw Clinic provides high-quality, pro-bono legal services to appropriate individuals, small start-ups, non-profit groups and government entities regarding cutting-edge issues of the Internet, new technology and intellectual property. Harvard Law School students enhance their preparation for high-tech practice and earn course credit for working on a variety of real-world litigation, client counseling, advocacy, legislation, and transactional/licensing projects and cases.

When Comments Turn Ugly: Newspaper Websites and Anonymous Speech

Jeffrey P. Hermes — Tue, 07 May 2013 15:57:10 +0000

Dan Kennedy has reported on an interesting anonymous speech issue brewing (or perhaps already boiled over) in the town of Cohasset, Massachusetts. It seems that the board of selectpeople of Cohasset has been concerned recently about ad hominem attacks on their members, delivered through the medium of the comment sections of the websites of the Quincy Patriot Ledger and the Cohasset Mariner. The board has debated issuing a subpoena through the Town Counsel to identify the commenters, allegedly to determine whether the comments were being posted from computers owned by the own in violation of Cohasset's computer usage policy.

One can debate whether this stated motivation is a pretext for an attempt to pursue the commenters based on the content of what they wrote; according to the Patriot Ledger, Acting Cohasset Town Manager Michael Milanoski has stated that "there is no indication that any employee was using any town employee computer to blog at all." However, the issue is potentially now moot, because GateHouse Media, owner of the Ledger and Mariner, has complied with subpoenas (see sidebar in linked story) issued in a separate libel suit filed in Quincy District Court by a former selectperson for the e-mail and IP addresses of at least some of these commenters. One imagines that the plaintiff in this suit would be willing to share the results of her subpoenas with the current board.

To be sure, GateHouse was within its rights to respond to the subpoenas. The company is bound by nothing other than its own privacy policy in preserving the anonymity of its users; that policy clearly states: "We may disclose information you have provided to us if we have a good faith belief that such disclosure is necessary to ... comply with the law, government action or with legal process served on us[.]" There is no obligation on the part of GateHouse to challenge subpoenas for information about its users, and according to the Quincy District Court Civil Clerk's Office, as of May 7, 2013, there were no documents in the court file (docket no. 13-CV-646) indicating that any attempt to quash a subpoena had been filed. We cannot tell if GateHouse nevertheless made an attempt to inform its users about the subpoenas, and the users simply failed to object. Massachusetts does not have a statute such as Virginia does, which requires an ISP that receives a subpoena for a user's identity to notify the user in a timely manner.

Nevertheless, this situation raises serious concerns. The First Amendment protects the right to speak anonymously, and that right should prevent courts from casually compelling the unmasking of anonymous or pseudonymous speakers in online forums. That right would be even more directly implicated if a government body such as a board of selectmen attempted to force disclosure of information that would lead to revelation of the users' identity, on a basis that could easily be a pretext for content-based concerns (and one must wonder why this concern over misuse of town computers did not result in subpoenas in connection with previous comments).

But even a subpoena issued by an attorney under a court's authority in a defamation case raises these issues. When an objection to such a subpoena is raised, courts have held that defamation plaintiffs should be required to make at least a prima facie showing that their claims have merit before compliance with the subpoena is compelled. However, an online commenter's opportunity to object is usually dependent on the willingness of a third-party service to provide minimal protections for its users. Without notice and an opportunity to object to a subpoena before a service provider turns over information, protection for anonymous speech online is meaningless. It might of course be the case that the former selectperson bringing the libel suit has meritorious claims, such that any objections by the anonymous users would have been overruled, but it does not appear that such objections were ever raised.

As Andy Sellars has written previously for the DMLP blog, the willingness of intermediaries to stand up for the rights of their users is the lynchpin and weakest link in freedom of speech online. If GateHouse did notify its users about the subpoenas, the users would at least have been afforded a chance to assert their rights. Nevertheless, GateHouse's privacy policy does not guarantee that it will provide notice of a subpoena, leaving its users' First Amendment rights a matter of the company's discretion.

It is not surprising that GateHouse does not promise stronger protection for its anonymous commenters: news organizations have had a tortured history with anonymous comments on their websites, even though some companies feel they are a necessary evil. Seven years ago, I wrote about legal challenges posed by allowing anonymous comments on news websites, notwithstanding strong federal protection against direct liability for those comments. Dan Kennedy notes the negative effect that allowing anonymous comments can have on the reputation of a news site, and suggests that it might be a best practice to allow only anonymous comments that have been through a moderation queue. In that manner, a forum could be provided for those who would otherwise be afraid to speak about crime and corruption for fear of retaliation, while still allowing the site to manage its tone and appearance. (I personally am less certain about encouraging more filtering of online speech, but recognize that news sites that primarily display their own content stand in a different position vis-a-vis moderation than social media networks that exist primarily to carry user content.)

But if a news organization decides to provide a forum for anonymous speech, then it should accept the consequences of that decision and be prepared to provide at least minimal procedural protections to its users. Allowing users to post anonymously in the face of a privacy policy that is silent on such protection invites readers to put themselves in jeopardy when the illusory shield of a pseudonym is pierced. This is consistent with neither good business practices nor civic responsibility over a forum for public discourse.

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

(Photo courtesy Flickr user Great Beyond pursuant to a Creative Commons CC BY-NC-SA 2.0 license.)

The DMLP Joins EFF in an Amicus Brief Addressing DMCA Misrepresentations and Critical Speech

Andrew F. Sellars — Thu, 02 May 2013 00:44:14 +0000

Earlier today the Digital Media Law Project, through our counsel at the Harvard Law School Cyberlaw Clinic, joined a brief filed by the Electronic Frontier Foundation in the United States District Court for the District of Massachusetts case Tuteur v. Crosley-Corcoran. The case concerns the Digital Millennium Copyright Act's "notice and takedown" procedures, and whether a party who sends a takedown request knowing that the target of the takedown has a valid fair use defense can be liable for such a misrepresentation. (You can read EFF's post about the filing here and download our brief here.)

As regular readers of our blog are aware, the DMCA, by immunizing online service providers from liability, incentivizes these services to implement a system whereby owners of content who discover copyright infringement by a service's users can file a notice with the service. The service will then expeditiously remove the allegedly infringing content and notify the user of the removal. The material will stay offline unless the website user files a counter notification stating that the user believes the material was incorrectly removed. After that point, the service provider has a window of no earlier than 10 and no later than 14 business days to restore the content.

This is a potent and unique remedy in online content liability: only in UGC-based copyright claims do we allow a private party to take down another private party's content without any judicial oversight, and force online services to wait weeks before restoring access the content in question. It is sadly unsurprising to learn that this private power to take down content has a history of abuse. We have seen many cases where people have improperly asserted a DMCA takedown in an effort to censor critical speech, including Diebold trying to remove company emails that showed a lack of faith in their e-voting systems, Ralph Lauren trying to remove website posts highly critical of a cover of their catalogue, a real estate company removing a critical website hosted by a third party, and radio host Michael Savage removing criticism of his prior remarks. (This common tactic is why the work of the organization Chilling Effects is so important.) Many of these cases arise when a critic uses expressive material created by the target of criticism to substantiate or illustrate their critique – a classic example of a "fair use."

Because it is so easy to take down content and it takes so long for content to come back up once it's taken down, Congress provides a vital remedy for takedown misrepresentations under the DMCA, at 17 U.S.C. § 512(f). Section 512(f) allows a party who had content removed based on a knowing misrepresentation that the material was infringing to recover damages and attorney's fees that flow from the improper takedown.

A classic example of such a misrepresentation can be found in the facts that are alleged in the Tuteur v. Crosley-Corcoran case itself. Here, according to the complaint in the case, Dr. Amy Tuteur, a Massachusetts OB/GYN, got into a dispute with Gina Crosley-Corcoran, an Illinois doula, over the merits of home birthing. The dispute lead to Crosley-Corcoran posting a photograph of herself on her blog extending her middle finger, with the accompanying comment, "I don't want to leave you without something you can take back to your blog and obsess over, so here's a picture of me, sitting at my dining room table[.]" Tuteur responded on her blog by posting the photo, arguing that it was an "outstanding example of table pounding" and accusing Crosley-Corcoran of being afraid to answer questions posed by Tuteur.

At this point, Crosley-Corcoran began threatening Tuteur with a copyright infringement lawsuit, and sent two DMCA takedown notices to the services hosting Tuteur's blog. According to the complaint, the second notice was sent after an alleged conversation between parties wherein Crosley-Corcoran's attorney acknowledged that she did not have a valid copyright claim. After responding to the DMCA takedowns Tuteur filed a lawsuit against Crosley-Corcoran, asserting a violation of Section 512(f) for her alleged misrepresentation. Crosley-Corcoran responded by filing a motion to dismiss for lack of personal jurisdiction.

In considering the motion to dismiss, the court by its own volition raised the possibility that Tuteur may not have a valid 512(f) claim, because, according to the court's order, "there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer’s possible affirmative defenses, only that she affirm her good faith belief . . . that the copyrighted material is being used without her . . . permission." The court ordered Tuteur to file a brief showing why her claims should not be dismissed for this reason.

The DMLP and EFF appeared as amici curiae at this stage to show why this interpretation is not a correct reading of the statute, frustrates Congress's intent to create an effective remedy for abuse of DMCA takedown notices, and goes against the opinions of the courts that have considered the issue (most notably, the cases of Lenz v. Universal Music and OPG v. Diebold). As the DMLP and EFF argue, the notice requirements of the DMCA do not require a copyright owner to merely claim use without permission; they require a copyright owner to state that the use "is not authorized by the copyright owner, its agent, or the law." (17 U.S.C. § 512(c)(3)(A)(v).) Similarly, Section 512(f) allows recovery against anyone who knowingly misrepresents "that material or activity is infringing," and as the Copyright Act and courts repeatedly note, "a fair use is not an infringement of copyright."

To bar misrepresentation claims even when a party knows that another's use of their material is fair would immunize all copyright owners who use the DMCA to silence critics who use some piece of the owner's media as part of the criticism. Copyright was never intended to be that sweeping, and Congress did not intend to be so punitive against Internet users as to frustrate and censor their speech beyond the normal boundaries of copyright. By ensuring that copyright owners are not allowed to knowingly ignore fair use concerns before forcing the removal of content for weeks, courts will help ensure that the DMCA does not become a tool of private censorship.

For more, please feel free to read our brief. Our thanks is due once again to Chris Bavitz and the HLS Cyberlaw Clinic, for their invaluable assistance in drafting and submitting this brief, and to Daniel Nazer at EFF for inviting us to join with EFF in addressing this critical issue.

Andy Sellars is a Staff Attorney at the Digital Media Law Project, and the Dunham First Amendment Fellow at the Berkman Center for Internet and Society.

Tuteur v. Crosley-Corcoran

DMLP Staff — Mon, 29 Apr 2013 17:08:34 +0000

David v. CBS Interactive, Inc.

DMLP Staff — Mon, 29 Apr 2013 14:10:23 +0000

Misidentifications Past and Present: Terror, Suspicion & the Media

Jeffrey P. Hermes — Fri, 26 Apr 2013 19:09:26 +0000

The DMLP blog has been on an unplanned break for a while as a result of the Boston Marathon bombings and subsequent manhunt. Like many in the Boston-Cambridge-Watertown area, we have had our past two weeks disrupted both with our personal attempts to come to terms with this senseless act of violence and by last Friday's "shelter-in-place" request by law enforcement.

There has been outstanding coverage and analysis of these events already by both mainstream and independent media, but one particular aspect which has stood out for many commentators was the role played by social media. For many in the Boston area, platforms such as Twitter and Reddit became a key way for the community to share its experiences and reactions, anger, fear, and prayers. Last Friday in the Watertown area, social media took on another aspect as the way in which many of us who sat locked in our houses reached out to one another for news and support.

However, there was also controversy around social media, in particular concerns about "witch hunts" among social media users while the suspects were still unknown. While these problems were not limited to social media platforms, there has been significant commentary about how social media either helped or hindered law enforcement efforts and public understanding in a crisis situation.

As we all try to gain perspective on the events of last week, it is helpful to remember that this far from the first time that reporting on acts of terror has generated mistakes and misidentifications. To the contrary, the natural impulse to identify the perpetrators of horrific acts as quickly as possible has often led to reporting of law enforcement efforts that swept up individuals later cleared of any wrongdoing. Examination of these situations, and the legal cases that resulted, may reveal whether there are unique issues that can be laid at the feet of social media or if these issues appear generally in reporting after terrorist attacks.

Three Case Studies

The Lockerbie Bombing: Schafer v. Time, Inc., 142 F.3d 1361 (11th Cir. 1998)

On December 21, 1988, an explosive device detonated on Pan Am Flight 103 over Lockerbie, Scotland, resulting in the deaths of all passengers and crew, as well as others on the ground being killed by falling wreckage. On January 31, 2001, a Libyan intelligence officer was convicted and imprisoned for the bombing. During the intervening twelve years, there was widespread discussion and speculation about who might be responsible for the bombing, with the government of Libya being at the center of the leading theory, but with many alternative theories advanced.

One such alternative theory was published in a cover story in Time magazine in April 1992, suggesting that the bombing had been the work of a Palestinian group seeking to eliminate U.S. counterterrorism agents on the flight. According to the article, the Palestinian group identified the flight carrying the U.S. agents with the assistance of a U.S./Iranian double agent named David Lovejoy. Time also ran a photograph purporting to be of Lovejoy, which it obtained from an affidavit filed by an attorney for Pan Am in a civil lawsuit related to the bombing. The affidavit claimed that an unnamed source had identified Lovejoy as the man in the photograph.

In fact, the picture was of another man, Michael Schafer. As the U.S. Court of Appeals for the Eleventh Circuit would later describe the mistake, "Time's article, therefore, erroneously identified Schafer, then working in his family's janitorial business in Austell, Georgia, both as a traitor to the United States government and a player in the bombing of Pan Am 103." Schafer demanded a retraction from Time, which the magazine published more than a month later. He also sued Time, Inc., for defamation in federal district court in Georgia.

The jury returned a verdict for Time in less than an hour. Schafer appealed the ruling, and the Eleventh Circuit reversed, granting a new trial because it found that the jury instructions issued by the district court were confusing. Specifically, the instructions were vague as to the question of whether Schafer needed merely to prove that Time was negligent in checking its facts (the proper standard for liability), as opposed to some level of intent to injure or constitutional "actual malice." However, the Eleventh Circuit held that Time would be allowed to argue in the next trial that it was not negligent in relying on the attorney affidavit.

Time settled the case with Schafer before retrial.

The Centennial Olympic Park Bombing: Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348 (S.D.N.Y. 1998); Bryant v. Cox Enterprises, Inc., 715 S.E.2d 458 (Ga. App. 2011)

On July 27, 1996, a bomb exploded in Centennial Olympic Park in Atlanta, killing one person and injuring more than 100 others. For three days thereafter, media coverage identified Olympic security guard Richard Jewell as a hero of the event, based upon his reporting of a suspicious unattended package and his reduction in casualties from the event through his efforts to evacuate people from the area around the package. On July 30, however, the Atlanta Journal-Constitution identified Jewell as the "focus" of the FBI's investigation of the event, which initiated pervasive and detailed analysis in the press of Jewell, his past, and his potential connection to the bombing.

In October 1996, Jewell was cleared of any responsibility for the bombing, with the FBI issuing an unusual official statement that he was no longer a suspect. (In 2003, Eric Robert Rudolph was convicted of the bombing and sentenced to life imprisonment.) Jewell then filed defamation lawsuits against a number of media outlets, including NBC, CNN, the New York Post, and Cox Enterprises d/b/a the Atlanta Journal-Constitution. The latter two cases generated significant court decisions.

The New York Post case

Jewell sued the New York Post in federal district court in New York over a series of articles, photographs, headlines, and other content that ran in the newspaper between July 31 and August 2, 1996. The articles contained a wide range of content about Jewell, including statements about his past work experience, his character, and the beliefs of various individuals and organizations (including law enforcement) about whether Jewell was likely to be responsible for the bombing. The Post moved to dismiss the case, arguing among other things that the statements in its various articles were substantially true, not defamatory of Jewell, and/or protected opinions.

In October 1998, the district court granted the Post's motion in part and denied it in part. The district court held that statements that Jewell was the "prime" or "main" suspect in the FBI's investigation were substantially true, based upon Jewell's own admissions. Jewell acknowledged that he was a suspect, but denied that he was the "main" suspect; the court found that to be a distinction without a substantial difference in terms of the impact of the Post's report.

With respect to defamatory meaning, many of the statements about which Jewell complained in the Post articles were facially innocuous, such as claims that Jewell "was a straight arrow who overdid everything" and was "desperate to stand out as a hero." However, the district court found that, read in context, these characteristics were presented in support of speculation by the Post and others that Jewell was responsible for the bombing; as a result, the court held that these statements carried a defamatory meaning. Similarly, the court held that statements that Jewell "fit the profile of the bomber" were not innocuous, just because innocent people as well as the guilty party might fit a profile; in context, the statement indicated a belief that Jewell was in fact the guilty party.

Nevertheless, the court held that the context of the New York Post articles was such that, for at least some of the statements at issue, a reasonable reader would understand them to be mere speculation or opinion:

It does not strain the concept of judicial notice ... to note that everyone hoped that the individual(s) responsible for the crime would quickly be brought to justice. ... Given this quick succession of events and publications, a reasonable reader would have understood the information concerning Jewell's involvement in the bombing to have been preliminary in nature. ... The preliminary nature of reported information is a contextual factor which supports, but by no means dispositively so, a finding that the statements are ones of opinion.

But the court also recognized countervailing considerations:

[T]he simple fact of the matter is that these statements were published in a newspaper. ... A newspaper column is the product of some deliberation, not the heat of a moment. Prior to publication, it passes through the hands of professional editors and it thus carries with it the cloak of credibility and authority of the particular newspaper and the profession. ...These undoubtedly are circumstances encouraging the reasonable reader to be less skeptical and more willing to conclude that the report is stating or implying facts garnered by a professional news gatherer and reporter.

The district court found that while many statements in the articles were phrased as speculation or in loose and rhetorical language, others were stated as fact. Moreover, the court found that many of the statements of opinion - such as beliefs and speculation that Jewell fit the profile of the bomber - might be found to create false implications of fact. As such, defamation claims on most of the statements were allowed to proceed.

The case against the Post was dismissed in March 1999 following a settlement in an undisclosed amount.

The Cox Enterprises/Atlanta Journal-Constitution case

Jewell sued Cox Enterprises, the publisher of the Journal-Constitution, in Georgia state court in 1997 over statements in a series of articles similar to those in the New York Post. These included breaking the story that the FBI considered Jewell a suspect, discussing ways in which he "fit the profile of the lone bomber" and approached the press seeking publicity, and comparing him to a notorious convicted serial child killer from Atlanta. None of the Journal-Constitution's articles revealed the sources of its information about the Jewell investigation.

In contrast to the New York Post, the Atlanta Journal-Constitution did not settle with Jewell, continuing to fight the case to conclusion after Jewell's death in 2007. Eventually, the Georgia trial court granted summary judgment to the defendants with respect to all statements at issue, which ruling was affirmed by the Georgia Court of Appeals in 2011. The Court of Appeals affirmed that the statements at issue were either substantially true or opinions that could not be proven false.

Notably, the Court of Appeals considered the context of the statements at issue in a manner similar to the federal district court in the New York Post case, but reached a significantly different result:

We cannot conclude that the statements contained within the August 1 and August 4 articles, construed in the context of the entirety of those articles and given their reasonable and natural meaning, amounted to an accusation by the Media Defendants that Jewell planted the bomb. Rather, a reasonable reader would have understood the information to be preliminary in nature and published during the very early stages of an ongoing investigation. Moreover, both articles reported not only the suspicion of Jewell's involvement, but also evidence tending to belie that suspicion. And finally, the record definitively establishes that at the time of the publications, investigators did, in fact, suspect that Jewell may have planted the bomb and were actively investigating that theory.

...

Although the July 31 article repeats the opinion of investigators who reportedly believed that Jewell may have placed the 911 call, it includes within its text the factual premise of that reported opinion. For example, the article sets forth what some described as Jewell's fervent approach to his prior law-enforcement duties; expressions of concern made by Jewell's former employer; Jewell's prior arrest for impersonating a police officer; and Jewell's reported ownership of a similar knapsack. Nothing in the article suggests to the reader any defamatory facts other than those disclosed within its text which, in context, is obviously a report on the very early stages of an intense and ongoing investigation.

The Court of Appeals also held that the comparison of Jewell in one column to a notorious serial killer was "loose, figurative language" and "[n]onliteral commentary that cannot reasonably be interpreted as stating actual facts about an individual."

The Georgia Supreme Court denied review of the Court of Appeals decision on January 9, 2012, ending the case almost exactly 15 years after it started.

The 2001 Anthrax Attacks: Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005); Hatfill v. The New York Times Co., 532 F.3d 312 (4th Cir. 2008)

Over the course of several weeks following the September 11, 2001, terrorist attacks, an unknown individual mailed a series of envelopes containing anthrax powder to various media outlets and the offices of two U.S. Senators, resulting in the deaths of five people and the infection of seventeen others. Throughout 2002 in the immediate wake of the attacks, Nicholas Kristof, a columnist for the New York Times, wrote about the FBI's handling of information related to a particular suspect he called "Mr. Z."

Much of Kristof's writing was devoted to collating information about Mr. Z that indicated he was responsible for the attacks. This culminated in an August 13, 2002 article in which Kristof identified Mr. Z as Dr. Steven Hatfill, a research scientist employed by the Department of Defense, and stated that the FBI should "end this unseemly limbo by either exculpating Dr. Hatfill or arresting him."

Hatfill sued the New York Times for defamation in federal district court in Virginia. The district court initially dismissed Hatfill's complaint, finding that Kristof was merely reporting on an ongoing investigation actually focused on Hatfill at the time and was "careful to disavow any conclusion of Hatfill's guilt." The U.S. Court of Appeals for the Fourth Circuit reversed in 2005, and remanded to allow Hatfill's case to proceed. The Fourth Circuit specifically rejected the Times' argument that the columns were agnostic as to Hatfill's guilt:

The columns did not describe any other actual or potential target of investigation, and they recounted detailed information pertaining to Hatfill alone. Once Kristof named Hatfill as Mr. Z (and perhaps even before that time), a reasonable reader of his columns could believe that Hatfill had the motive, means, and opportunity to prepare and send the anthrax letters in the fall of 2001; that he had particular expertise with powder forms of anthrax, the type used in the mailings; that his own anthrax vaccinations were current; that he was the prime suspect of the biodefense community as well as federal investigators; that he had failed numerous polygraph examinations; that specially trained bloodhounds had "responded strongly" to Hatfill, his apartment, and his girlfriend's apartment but not to anyone else or any other location; and that Hatfill was probably involved in similar anthrax episodes in recent years. Based on these assertions, a reasonable reader of Kristof's columns likely would conclude that Hatfill was responsible for the anthrax mailings in 2001.

Importantly, the Fourth Circuit did not address whether the statements in the columns might be either true or protected as statements of Kristof's opinion - only whether the statements were capable of damaging Hatfill's reputation.

Hatfill's claims ultimately failed after he was found to be a limited-purpose public figure in connection with the larger controversy over government readiness for bioterrorist attacks. As a result, he was required to prove that Kristof published the statements at issue with constitutional "actual malice," i.e., subjective knowledge of their falsity or a high degree of awareness of probable falsity. And, as the Fourth Circuit held, the record in the case contained "substantial evidence to support The New York Times' contention that Kristof actually believed that Dr. Hatfill was the prime suspect," including a long list of facts with respect to the FBI's investigation whose truth Hatfill did not dispute. As a result, the court ruled that "no reasonable jury could find that Kristof had a high degree of awareness that Dr. Hatfill was not the anthrax mailer."

The Fourth Circuit therefore affirmed summary judgment in the Times' favor, and the U.S. Supreme Court denied certiorari, ending the case. The FBI's investigation closed without an arrest after a new primary suspect, Bruce Edwards Ivins, committed suicide in 2007; in 2008, the FBI declared that Ivins had been solely responsible for the attacks.

Echoes of the Past in Last Week's Events

The applicability of the final legal conclusions in the cases discussed above is likely to be limited in any lawsuits that arise out of last week's events. Although these cases invoke general principles of defamation law, precise interpretations of the law will vary from state to state, and decisions on issues such as truth, falsity and opinion will turn on the facts of particular cases. Nevertheless, the cases above remain interesting for the aspects of news reporting in a post-attack environment that the courts considered relevant to questions of liability and damage.

Similar aspects, including reports of preliminary investigations by law enforcement, reliance on photographs and other information of uncertain provenance or import, and efforts to engage in armchair sleuthing to deduce the responsible party, can be seen in the aftermath of last week's events in both social media and professional reporting. Examples include:

The New York Post's report on April 16th that a "Saudi national" was a "potential suspect," had been taken into custody by police near the bombing site, and was being questioned at Boston's Brigham and Women's Hospital. The Boston Police later denied that they had a suspect at that time or had anyone in custody, although they acknowledged questioning a "person of interest"; this person was later cleared of responsibility.

The identification by some Reddit users in the "Find Boston Bombers" subreddit (reported by the Atlantic Wire) and by users of other social networking services of potential suspects based upon independent, albeit sometimes puzzling, investigation. Those subject to scrutiny included, among others: a man in a blue robe, based upon the design of the strap of his backpack; a man in a white hat, based upon the bulk of his backpack and another image in which the pack might not be present; and another individual, apparently because photos suggest he/she was walking away from one of the blast sites. None of these individuals were involved in the bombing.

A report by CNN on April 17th that a "dark-skinned" suspect had been arrested, and confirmation of an arrest by Fox News. No arrest had been made.

The New York Post's running of photographs of two men, under the April 18th front-page headline "BAG MEN: Feds seek these two pictured at Boston Marathon." These photographs had been circulated by authorities within the law enforcement community, but not publicly, for the purpose of identifying the individuals. The two men were innocent bystanders.

A misidentification by a Reddit user (reported by the Huffington Post) late on the night of April 18th of an individual photographed at the Marathon as missing Brown University student Sunil Tripathi. (Tripathi is now known to be deceased.) This was followed by other users' opinions that Tripathi matched one of the photos publicly released by law enforcement of the two suspects, leading to widespread discussion that Tripathi was "Suspect #2" in the bombings. Tripathi was of course not involved in any way.

Escalation via Twitter (reported by The Atlantic) early on the morning of April 19th of the following isolated statement on the police band: "Last name: Mulugeta, M-U-L-U-G-E-T-A, M as in Mike, Mulugeta." This apparently resulted in speculation that a "Mike Muguleta" was "Suspect #1" and was conflated with the prior item to suggest that law enforcement had identified Sunil Tripathi as "Suspect #2." There is apparently no "Mike Muguleta," and neither any "Muguleta" nor Tripathi were ever connected to the case by law enforcement.

There are, however, many significant differences from prior events. The most basic is the time frame, which was greatly accelerated from prior events. Articles indicating suspicion of Richard Jewell circulated three days after the Olympics bombing, and he was exonerated over two months later. The Time article inadvertently implicating Michael Schafer was published over three years after the Lockerbie bombing, and a correction ran more than a month later. The New York Times columns about Steven Hatfill began to run in 2002, several months following the anthrax mailings, and Hatfill was not unequivocally exonerated by the government until 2008. In the case of the Marathon bombings, the entire process of investigation, suspicion, misidentification and exoneration took less than a week: the identification of the Tsarnaev brothers as suspects was reported nationally by 8:00 a.m. on Friday, April 19th.

This is not to suggest that last week's misidentifications have not been devastating to the individuals involved and their families. Even brief identification as a terrorism suspect can cause tremendous distress, as shown by the desperation of a teenager (note: profanity beyond the link) depicted in the April 18th New York Post story to clear his name, and the increased suffering of Sunil Tripathi's family, already in torment over his disappearance. That said, the pace of events was such that correct information was released within days, if not hours, so that at least some aspects of the ordeal were not prolonged.

Another important difference between last week's behavior -- particularly on Reddit -- and prior incidents was the degree to which the ethics of attempting to identify suspects remained at the forefront of the discussion. An extended thread on Reddit (note: profanity beyond the link) discussed the propriety of crowdsourced efforts to identify suspects, including presumptions of innocence, lessons from the Jewell case, and the possibility of ruining an innocent person's life through rushes to judgment. Users also maintained a list of cleared individuals (link to cached copy on Google) to limit the impact of the crowdsourced search. The architecture of Reddit itself, with its voting mechanism, functions to move discredited information out of public view. Reddit's staff both publicly and privately apologized to the family of Sunil Tripathi and others affected, despite the fact that Reddit, under Section 230 of the Communications Decency Act, likely could not be held liable for user content.

I will leave to others the questions of the general utility of crowdsourcing in these situations, and whether this evidence of transparency and self-consciousness on Reddit offsets the consequences of users' activity. For interesting recent perspectives on those questions, see: Alexis Madrigal's piece in the Atlantic here and his subsequent exchange on Twitter with Dan Sinker of the Knight-Mozilla OpenNews Project; this article by James Surowiecki in the New Yorker; and this article from the Nieman Journalism Lab by Mike Ananny.

But however these questions are answered, the constant criticism and challenging of conclusions being drawn in coverage of last week's events is significant. In past events, readers had no effective way to publicly question the information they were receiving from the media. Although the individuals wrongfully identified could file defamation claims in the courts to make a strong public denial of accusations in the press, this tactic is not without its hazards. Lawsuits by their nature cause media organizations to dig in their heels in defense of their reporting, leading to protracted litigation that a plaintiff would have to see through or abandon at the cost of appearing to admit the truth of the accusation. Social media provides another channel of feedback, allowing the public to act as a check on sloppy journalism and unfounded speculation; as Erik Wemple commented for the Washington Post, "When tragedy strikes America, Twitter remembers bad reporting."

Conclusion

In the wake of confusing and senseless tragedy, there is a fundamental human impulse to try to exert control over an often impenetrably chaotic situation. Where a tragedy is caused by human action, that attempt to exert control often manifests as an attempt to identify those responsible. This is not new to last week's events; the reporting and public discussion in the aftermath of the Marathon bombing bear striking similarities to reporting on past terrorist attacks where the attacker was initially unknown.

But despite these similarities, social media platforms allow the public to engage with the fragmentary information available after this kind of event in a much deeper way, as part of the community. While it is debatable whether this form of communal activity is on the whole beneficial or detrimental, social media also provide forums in which this debate itself can take place. This may help to ameliorate some of the more damaging consequences of past events, where misinformation was perpetuated over an extended period before the error was publicly revealed.

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

Digital First Sale: A U.S. District Court Tackles Used MP3 Sales

Kristin Bergman — Fri, 12 Apr 2013 14:26:42 +0000

As many of us clear out our CD collections and move to digital music, more and more used CDs are making their way to garage sales, used music stores, eBay, Goodwill, and more. We don't worry about being sued for copyright infringement, because the first sale doctrine protects this resale. Should the sale of used mp3s be treated any differently? In other words, should the medium matter?

The U.S. District Court for the Southern District of New York recently decided just that, holding that the first sale doctrine does not extend to the sale of used mp3s. In this case, Capitol Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (RJS), Vivendi (parent of Capitol Records) sued ReDigi for copyright infringement, alleging that ReDigi makes and assists in making unauthorized reproductions and distributions of copyrighted works. This holding comes at an interesting time - just a month after the USPTO granted Amazon.com a patent for a system supporting a "secondary market for digital objects."

In describing its service, ReDigi's site explains, "ReDigi is a free cloud service that allows you to sell your legally purchased digital music. An online marketplace where you can buy pre-owned digital music for as low as $0.49. Keep your music collection fresh and light by storing your unused music in your cloud and streaming it to any device. Discover a new way to enjoy your digital music today."

To simplify ReDigi's process: Users who sign up for ReDigi download their "Media Manager," complete with a Verification Engine which analyzes the user's computer and identifies music files purchased on iTunes as eligible for sale. The user may then upload any of these eligible files to ReDigi's Cloud Locker (ReDigi's server) and ReDigi deletes all copies from the user's computer and connected devices. If the file is purchased, the user's access to the file is terminated, and the ownership and access is transferred to the purchaser. ReDigi cannot check for or otherwise control any copies that may have been made and saved on unconnected external devices.

In an order from March 30th, Judge Sullivan found that in the process of transferring the music file from the user's computer to ReDigi's Cloud Locker, an unauthorized reproduction occurs, and the online database and sales infringe Capitol Record's distribution rights. Judge Sullivan further rejected ReDigi's first sale defense, writing, "Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce." Focusing on the language of Section 109(a) of the Copyright Act, which permits an owner of a lawfully obtained copy "to sell or otherwise dispose of the possession of that copy or phonorecord," the Court held that the first sale doctrine only protects the sale of that particular, singular copy of the work and does not extend to the digital copies available on ReDigi's site. On the site, the user is not selling their particular phonorecord, and in this way, the court distinguishes digital goods from traditionally tangible goods.

Judge Sullivan's order appears to misunderstand digital resale as a process, stating that the first sale defense "does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era." Drawing this analogy, Judge Sullivan fails to recognize that the work in question neither changes medium nor results in two copies. ReDigi's users are not changing the form of their copy of Taylor Swift's latest single, or duplicating it in order to have an original and a copy. Rather, a single copy of the mp3 is transferred from the user's computer to ReDigi's server. While the file is copied in order to facilitate the transfer from one storage base to another, its ultimate form stays the same and the process contemplates that only one complete, playable copy of the work exists at any time.

Perhaps Judge Sullivan is really concerned with facilitating piracy, but such a fear is likely misplaced. It is true that ReDigi's service can only identify copies on the user's computer or connected devices, which may permit users to copy the mp3 and just store it elsewhere. However, this same replication happens all of the time with hard copies of CDs - countless individuals rip a CD to their computer, then sell or donate the used CD, yet the used CD market is not regulated on the basis of a suspicion that owners retain a copy of the work. If the Court's opinion here becomes prevalent, the first sale doctrine would depend entirely on the form in which the work is manifested, a potentially arbitrary distinction.

In addition to establishing a double standard of ownership based on the format of a work, this holding seems to contradict itself. Plainly read, the right of distribution is limited to physical, material copies of works. However, Judge Sullivan (and many before him, such as the Supreme Court in New York Times v. Tasini, 533 U.S. 483 (2001)) had to recognize that the digital version of the work is a "copy or phonorecord" in order to find infringement. As the statutory language used to describe the public distribution right is consistent with that of the first sale doctrine, it is inappropriate for the court to differentiate between its characterizations of "copy or phonorecord."

For now, ReDigi will continue to operate its current version of the service and, in light of the Supreme Court's recent decision in Kirtsaeng, will appeal the District Court's ruling. As the marketplace creates a demand for secondhand digital goods, this issue will surely remain relevant until resolved by the courts or Congress.

Kristin Bergman is a 2L at William & Mary Law School. She buys used CDs even when she suspects someone already burned them.

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

DMLP Co-Organizing an Event on Grassroots Media in Cambridge

DMLP Staff — Wed, 10 Apr 2013 18:40:19 +0000

As regular readers know, the DMLP spends its days analyzing the legal state of online journalism across the country and out into the rest of the world. Posts on this site address social media service of process in Texas, lèse majesté laws in France, FTC regulation of social media across the United States, defamation analysis for bloggers in Iowa, Florida laws on mugshot websites... and that's just the past couple of months! Every once in a while we here like to take an opportunity to bring our research back to our hometown, and look at all of these big picture media law issues as they apply to coverage of issues where we work and live.

It is in that spirit that we are delighted to announce that we here at the DMLP – along with our close friends at the Harvard Law School Cyberlaw Clinic and the MIT Center for Civic Media – are working with Cambridge Community Teleivsion at an event entitled "Filling the News Gap in Cambridge and Beyond: Citizen Journalism and Grassroots Media." The event is on May 4th from 9:30am-1:30pm at the Cambridge Public Library, 449 Broadway in Cambridge, MA.

The half-day forum will explore the quickly expanding world of citizen journalism: how technology is fueling its growth; how that growth is changing the way we see our world, enact change, and disseminate the news; and how people in communities around the world are taking the initiative to share stories that are left untold by the mainstream media. The forum is a must for both consumers and creators of local news content; journalists and media professionals; independent and collaborative website owners; legal professionals; and everyone who values local information, civic participation, and social justice. Admission is free.

The DMLP and the Clinic will present and participate in a workshop addressing legal issues facing those who gather news. State and federal laws provide tools and protections on which reporters can rely in collecting the facts on which their reporting is based -- enhancing access to government records, shielding from disclosure certain communications between journalists and their sources, and ensuring that journalists can record the acts of public officials in public places. But, these tools and protections are subject to limitations that can frustrate newsgatherers and impede their ability to practice their craft. The session will explore some of the important protections available to citizen journalists and others in the Commonwealth of Massachusetts and the hurdles that reporters face as they engage in newsgathering activities.

Other workshops will address the ways in which Cambridge residents are filling the void in local news in Cambridge and highlight tools being used by citizen journalists. Exhibitors will be on hand to present the latest technologies available for community reporters, and attendees will learn how to tap into local news outlets as well as how to get started reporting on local news.

"Filling the News Gap" commemorates the 25th anniversary of Cambridge Community Television and the 5th anniversary of their NeighborMedia program. The event is presented in memory of Karen Klinger, a correspondent with CCTV's NeighborMedia program and community activist who died in December after a six-month battle with cancer. Karen was in the original group of NeighborMedia journalists chosen in 2007. She focused on her neighborhood, Porter Square, particularly on issues related to development, safety and cleanliness. The community looked to her to cover vital issues in Cambridge. Karen was one of very few professional journalists in NeighborMedia, and brought a fierce commitment to the journalistic principles that guided her career. Her efforts to ensure journalistic integrity have had a profound impact on the structure of the NeighborMedia program.

Please visit CCTV's website or the event's Eventbrite page for additional information and to register for the event. Hope to see you there!

Social Media Goes Legit

Eric P. Robinson — Fri, 05 Apr 2013 19:21:12 +0000

There have several recent developments which mark a milestone in the evolution of social media platforms: their acceptance as mainstream forms of communication, on equal footing with older forms of communicating official or "important" messages.

In late February, a bill was introduced in the Texas legislature (H.B. No. 1989) which would allow service of process -- sending initial notice of a lawsuit to the defendant -- via a message sent through a social media site.

This is a new innovation in the United States, with only a few cases like Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (approving service via e-mail as a secondary method) and Mpafe v. Mpafe (Minn. Dist. Ct. May 10, 2011) (allowing service online, via social media websites and e-mail). Last year a federal judge in New York denied a request to serve notice via Facebook, since it was unclear whether the account to which the message was to be sent actually belonged to or was accessed by the defendant. Fortunato v. Chase BankUSA, No. 1:11-cv-06608-JFK (S.D.N.Y. June 7, 2012). [Ed. note -- For more background on electronic service of process, see our blog post here.]

Last month another federal judge in New York held that the Federal Trade Commission could notify several defendants in India about a civil suit brought by the agency via both e-mail and Facebook. Federal Trade Commission v. PCCare247 Inc, No. 12-07189 (S.D.N.Y. Mar. 7, 2013).

In the his ruling, District Judge Paul A. Englemayer emphasized that he was allowing service via Facebook did not violate due process, particularly because because notice would also be sent via e-mail. He added that "history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel."

Social media as a medium of legal notices received another boost this week when the Securities and Exchange Commission issued a report (summary) clarifying that public companies can fulfill public disclosure requirements via social media, as long as investors are made aware of where the information is available. The report stemmed from a SEC investigation of Netflix chief executive officer Reed Hastings' use of his personal Facebook page to annonce that the company had streamed one billion hours of content in the month of June 2012. In general, the SEC report concluded, personal sites of corporate executives should not be used for such purposes.

Although every case must be evaluated on its own facts, disclosure of material, nonpublic information on the personal social media site of an individual corporate officer, without advance notice to investors that the site may be used for this purpose, is unlikely to qualify as a method "reasonably designed to provide broad, non-exclusionary distribution of the information to the public" within the meaning of Regulation FD.

Other types of required legal notices would move online under bills proposed in several states. Such bills, which would allow legal notices to be published online rather than in local newspapers, are pending in Arizona, California, Connecticut, Florida, Maryland, North Carolina, and Virginia. (Hattip to the legal-notice.org blog, which follows this issue.) A Tennessee bill would require publication both in print and online. Such bills are generally opposed by newspaper publishers, which rely on the income from the rates they charge to publish legal notices.

Facebook and other social media have infiltrated our daily lives, often taking the place of older forms of communication. So it is not surprising that the government processes are taking these new media into account as legitimate substitutes for traditional ways of doing things.

Eric P. Robinson teaches media law and ethics at the CUNY Graduate School of Journalism and Baruch College, and is of counsel to the Counts Law Group. He was previously Deputy Director of the Donald W. Reynolds National Center for Courts and Media at the University of Nevada, Reno. Eric is a media and internet law attorney with extensive experience analyzing and writing on media, internet and freedom of expression issues, including tracking media and internet litigation and legislation. He also blogs at bloglawonline.com.

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

France Soon to Say "Get Lost" to its Criminal Offense to the President Law

Marie-Andree Weiss — Wed, 03 Apr 2013 16:39:51 +0000

The Legal Committee of France's Chamber of Representatives voted unanimously on March 27 to propose to repeal the offense of insulting the President of the Republic, which is still a crime under article 26 of the French Press law. French Representatives will now vote on April 18 to adopt the proposal to repeal article 26, then will send the proposal to the Senate.

I wrote earlier about that odd remnant in French law of the Ancien Régime belief that the Head of State must not be insulted, and talked about the judicial saga of Hervé Eon, a French citizen, arrested and fined in August 2008 for having held a placard which read "casse toi pauvre con" ("get lost you a$$...") on the side of a road where Nicolas Sarkozy, then President of France, was scheduled to pass by.

Eon was found guilty of having offended the French President, and was sentenced 30 Euros, while the maximum sentence can be as high as 45,000 Euros. He filed a complaint with the European Court of Human Rights in Strasbourg, and he won. On March 14, 2013, the European Court of Justice held in Eon v. France that France had violated article 10 of the European Convention of Human Rights protecting the right to freedom of expression. (The opinion has only published in French, and the translations in this post are mine, not an official translation.)

Protection of freedom of speech by Article 10 of the European Convention of Human Rights

Article 10 of the European Convention of Human Rights, to which France is a party, allows a public authority to interfere with freedom of expression, but only if such interference is (1) prescribed by law, (2) pursues one of the legitimate goals enumerated by article 10(2), and (3) is necessary in a democratic society. These three points are all taken into account by the European Court of Justice when deciding if a particular State law violates article 10.

In this case, The European Court of Human Rights found that sentencing Mr. Eon was an interference with his freedom of speech. Therefore, it undertook to determine if such interference was prescribed by law, if it pursued a legitimate goal, and if it was necessary in a democracy.

Prescribed by law: article 26 of the 1881 French Press Law

Article 26 of the French Press Law incriminates insulting the head of State, "offense au chef de l'État." The term "offense" is only used for insults to the head of State, while "injures" is used for insults to everybody else. While the French law defines at length what "injures" means, it does not define "offense."

However, the Court of Appeals which confirmed Mr. Eon's sentence specified that "[t]he courts have recognized that the offense is constituted by any offensive or contemptuous expression, by any defamatory imputation that, while about the exercise of the chief magistracy of the State and his private life, is likely to attempt to his honor or dignity."

One must have the intent to offend, but truth is not admitted as a defense. The European Court of Human Rights was not bothered by this lack of an exception for truth, as "get lost you a$$..."is meant to be insulting and is not an allegation which could be proven true or false. The court of first instance had found intent, reasoning that "[i]f the accused would not have had the intention to offend, but only intended to give an incongruous lesson in politeness, he would not have failed to precede the phrase "get lost you a$$..." by a formula such as "we do not say."

Legitimate goal: Which goal is pursued by article 26?

The court of first instance had stressed in its opinion that "the law intends to protect the function of President of the Republic," and the French government argued in front of the Strasbourg court that a law criminalizing offending the President was necessary to protect order in society.

Indeed, Article 26 of the French Press Law is part of a "délits contre la chose publique" paragraph, literally, "offenses against the Res Publica," the Republic or the public affairs. Even though article 26 also protects the President in his private life, he is protected as the first Representative of the Republic. As such, only public prosecutors can initiate the pursuit; the victim himself does not have that power.

This legal oddity was not discussed in this case, but the independence of prosecutors vis-à-vis the President was called into question in 2010 by the European Court of Human Rights in the Moulin v. France case, where the court found that French prosecutors are not independent judicial authorities. The Court reasoned that they can be removed by the government, are under the authority of the Minister of Justice, and therefore under the authority of the executive.

Therefore, it is legitimate to wonder if the President could influence, albeit indirectly, the decision of the prosecution to enforce article 26. As a benchmark, no pursuits for offense to the President were engaged under the three Presidencies preceding Mr. Sarkozy's, that is, under Valery Giscard d'Estaing (right wing), François Mitterand (left wing), and Jacques Chirac (right wing). The last President often protected by the courts by article 26 had been Charles de Gaulle.

As a result, in Eon, the Court found the interest protected by sentencing Mr. Eon was the reputation of the President, not public order.

Necessity: Is Article 26 necessary in a democracy society?

In order to answer the question of necessity, under the fundamental principles of EHCR case law, the court does not substitute itself to the competent national authorities but rather reviews State court decisions in the light of article 10. Under the court's case law, the interference must be "relevant and sufficient" and the issue must be "proportionate to the legitimate aims pursued."

What Mr. Eon did could not be considered, according to the Strasbourg court, as "targeting [the President's] private life or honor, or that it was merely a gratuitous personal attack against the person of the President of the Republic" (§57). Instead, the plaintiff had the intent "to publicly address to the Head of State a critique of political nature" (§58). The Court noted that Mr. Eon was politically active, and had unsuccessfully tried a few weeks before the incident to prevent an illegal Turkish family to be expulsed from France.

Therefore, sentencing Mr. Eon constituted a restriction to freedom of speech in the field of political debate, where "freedom of speech is of utmost importance" (§59).The protection of a politician's reputation has to give way to satire.

The Court went on by explaining its view on satire (§60):

The Court finds, on the other hand, that by taking for himself the abrupt formula used by the president himself, widely disseminated by the media and then discussed and commented by a broad audience, often in an humorous way, the applicant has chosen to express his criticism on the mode of satirical impertinence. As the Court has repeatedly emphasized that satire is a form of artistic expression and social commentary, which, by exaggeration and distortion of reality, naturally aims to provoke and agitate. This is why it is necessary to examine with special attention any interference with the right of an artist - or anyone else - to express themselves through it (Künstler Vereinigung Bildender v. Austria).

The 2007 Künstler Vereinigung Bildender v. Austria case cited in Eon involved a situation where the plaintiff, an Austrian Representative, had been represented in a painting engaging in sexual acts with others famous persons. In that case, the Court held thatthat the Representative, as a politician,"ha[d] to display a wider tolerance in respect of criticism."

In Eon, the Court did not engage in a long discussion of what is satire, but pithily stated that "criminalizing behaviors such as the one in this case is likely to have a deterrent effect on satirical interventions about social issues that can also play a very important role in free debate of questions of general interest without which there is no democratic society" (§ 61).

The court concluded therefore that sentencing Mr. Eon was disproportionate to the goal meant to be achieved, the protection of the reputation of the President, and was thus not necessary in a democratic society under article 10.

The future of lèse majesté

While it is now almost certain that France will abolish its lèse majesté law this year, other European countries, including Spain, Italy, the Netherlands, Poland, and Turkey, which is a candidate for EU membership, still incriminate lèse majesté.

In the 2011 Otegi Montdragon v. Spain case, the European Court of Human Rights had held that Spain had violated article 10 of the Convention when it sentenced an individual who had ‘seriously insulted' the Spanish King within the meaning of Article 490,3 of the Spanish Criminal Code. The court noted in this case that the remark aimed at the King did not concern [his] private life... or his personal honour, nor did they amount to a gratuitous personal attack against him" (§ 57). The law was not abolished following the Otegi case, and, as recently as last month, a Spanish court imposed a fine of 6,480 Euros on an individual for insulting the King.

Even though the Court in Eon did not go as far as to state that article 26 is unconstitutional, which would have obliged France to abrogate it, the French Representatives heard the message loud and clear. France will soon say good bye to article 26, and good riddance.

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

Judge: Blogging from the Courtroom OK, Twitter Not So Much

Jeffrey P. Hermes — Fri, 29 Mar 2013 20:02:26 +0000

As Bob Ambrogi reports, on February 19, 2013, Massachusetts Superior Court Justice Peter Lauriat held a hearing in the case of Commonwealth v. Fujita, a first-degree murder case going to trial in Middlesex County, Massachusetts. The purpose of the hearing was to give representatives of the media an opportunity to voice their objections to Judge Lauriat’s limitations on reporting on the trial. The judge had previously approved a panoply of reporting and recording techniques in the courtroom itself, including a video feed, a still camera, blogging, and (in the judge’s words) the “pencil press.” However, he prohibited the use of Twitter or other social media “other than the blogosphere” to transmit live updates during the trial from the courtroom or anywhere else within the courthouse.

So, the natural question is, what’s the difference? What exactly is the “blogosphere” in Judge Lauriat’s mind, and why does he draw the line at Twitter and whatever other social media tools are not within that sphere?

The Court Rule at Issue

For context, it is necessary to take a closer look at Massachusetts Supreme Judicial Court Rule 1:19, the court rule that governs use of cameras and electronic devices in Massachusetts courtrooms. Section (2) of the rule states:

A judge shall permit photographing or electronic recording or transmitting of courtroom proceedings open to the public by the news media for news gathering purposes and dissemination of information to the public, subject to the limitations of this rule. Subject to the provisions of paragraph (d), the news media shall be permitted to possess and to operate in the courtroom all devices and equipment necessary to such activities. Such devices and equipment include, without limitation, still and video cameras, audio recording or transmitting devices, and portable computers or other electronic devices with communication capabilities.

Rule 1:19 was amended (effective September 17, 2012) to expand the definition of the news media to include private individuals who “regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic.” Critically, however, those individuals are still required to register as members of the “news media” with the courts to gain the benefits of the rule; it does not generally allow attendees to use electronic communication devices in the courtroom.

Is Twitter “Necessary” in Court?

During the course of the February 19 hearing, Judge Lauriat at first appeared to be questioning whether Twitter was in fact “necessary” to the function of gathering and disseminating information to the public. The judge had the following conversation with Christina Findikyan, counsel for WCVB, in response to her suggestion that Twitter was broadly accepted as a tool for dissemination of the news (full transcript available here):

THE COURT: … [W]hy don’t you give me some examples of the broad acceptance of Twitter in the courtroom either in Massachusetts or elsewhere in the country.

MS. FINDIKYAN: Well, right now in the United States District Court, in the district of Mass., they are allowing the use of Twitter in the [Whitey] Bulger trial. And our journalists at WCVB are in fact using Twitter as a mechanism for disseminating the news in that case.

THE COURT: And what is it that [is] disseminate[d] in what I understand to be a hundred and forty character maximum amount with Twitter?

MS. FINDIKYAN: Well, Your Honor, I believe that a good journalist, as I believe that our journalists are, [is] able to in that short amount of time get out the necessary information in short tweets.

THE COURT: Why don’t you read me an example of some information that a news media person would tweet to the world or at least to his or her followers, for example in the Bulger trial which you’ve indicated there is some tweeting allowed.

While WCVB’s attorney looked up examples in response to the judge’s request, Timothy Madden, counsel for CBS Radio and WBZ-AM, countered the suggestion that the 140-character limit was insufficient to provide accurate information about the trial in comparison to other media:

MR. MADDEN: …The issue that my client is concerned with, Your Honor, is with respect to tweeting and posting to social media sites, … is that it views those activities as no different that blogging from the courtroom, which people can log on and read if they choose, it is simply a form of communication that I think has been, is sort of ubiquitous in our society today and … is relied upon by some folks to see short snippets of both personal and, you know, more national information or international information.

THE COURT: Who in the context of a case like this is it relied on by and what short snippets do you envision would be sent in a hundred and forty characters or less?

MR. MADDEN: Well, I can see – well, just, you know, people who are local to the area who are generally interested in the case.

THE COURT: What’s conveyed in a hundred and forty characters or less?

MR. MADDEN: Wanting to know or having access to information that, you know, this person just testified, this expert just testified – not necessarily the full extent of what they testified to but the fact that they testified, and certainly conveyed, it’s certainly newsworthy in some instances. Or Your Honor may grant a motion that is immediately newsworthy to the folks who are interested following the trial. And I just don’t see the distinction, Your Honor, between allowing someone to type a paragraph, or two paragraphs, or five paragraphs, that may fully convey – or may not, depending on the skill of the reporter – fully convey what’s happened in the courtroom with, on the other hand, not allowing an individual or reporter to send shorter snippets which of course are limited by the character lines and maybe multiple snippets, but obviously it’s not going to be a full article but it’s going to be still information that is newsworthy.

At this point, Judge Lauriat more directly asked why access to Twitter was necessary when other modes of access had been provided.

THE COURT: And [newsworthy information is] not available from any other source?

MR. MADDEN: Well, I don’t think that’s the standard, Your Honor. I think Rule –

THE COURT: Answer my question, Mr. Madden.

MR. MADDEN: The information may ultimately become available from other sources, but that’s also part of the problem. There are news media represented here who have access to websites through their news organizations that allow for them to sit here in this courtroom and to type real-time and to have that information conveyed to their readers or their subscribers. And then there are others who don’t. And some of those folks who don’t have to rely on social media websites.

THE COURT: Who are all of these folks since we’re all talking only about credentialed media. …

MR. MADDEN: My client, the representatives who are here from WCRB. If they were to send –

THE COURT: They have no access to get their message out other than by tweeting?

MR. MADDEN: In a real-time way, my client is here to confirm that, that in a real-time way that that’s the only means by which they … can get the information out in real time.

THE COURT: Not by watching the stream that’s being done in real time of the entire trial, except for certain limitations such as sidebar conferences, conferences between counsel and client, and the jury.

MR. MADDEN: But it’s the only means, Your Honor, my position is that it’s the only means that this particular news organization has to get information out to its audience.

THE COURT: It has full access to the feed, right? … My understanding is that it has full access to the feed, that the feed is available to all media. So that in terms of there being a source independent of sitting here in the courtroom and tweeting. They can watch the feed and tweet from elsewhere. They can do something else with the feed if they’d like. I’m not prohibiting them from access to what’s happening in court.

From Judge Lauriat’s questioning in these exchanges, it appears that he at least initially believed that Twitter access in the courtroom would be unnecessary (and thus subject to prohibition under Rule 1:19) for two reasons: first, that tweeting could not properly report the events of the trial; and second, that access to Twitter would be cumulative given that another mode of real time access (the video feed) was available.

The first reason raises serious concerns to the extent that it depends upon a judge’s opinion of the adequacy of a reporter’s coverage. Although there may be no constitutional right to use electronic devices in court, there are still First Amendment problems when a court imposes its own editorial judgment on whether a particular communications platform is appropriate for certain subject matter. And as Mr. Madden correctly pointed out, there are a number of events that can be reported during a trial within the length of a single tweet that are newsworthy in real time.

The second reason is facially more plausible, particularly in light of the judge’s suggestion that someone could tweet from off-site while watching the real-time feed. Of course, there are arguments that watching a live feed is not the same as being present in the courtroom, and that reliance on a feed presents additional risks in terms of potential technical difficulties. However, a more fundamental issue is that Rule 1:19 addresses the question of whether particular devices or equipment are necessary, not whether particular ways of communicating are necessary. “Portable computers or other electronic devices with communication capabilities” are explicitly included in the definition of necessary equipment.

The only stated limitation on the manner in which these devices are used is set forth in Section 2(d) of the rule, which states: “All equipment and devices shall be of a type and positioned and operated in a manner which does not detract from the dignity and decorum of the proceeding.” In context, it is clear that this section of the rule is directed at placement of devices and noise created by their operation, as the section goes on to discuss the requirement that cameras be mechanically silent and that photographers stay in a fixed position and keep movement to a minimum. Interpreting this rule to apply to the nature of the content shared by means of a given device runs into the editorial control issues discussed above.

A judge may also limit the use of any newsgathering devices or equipment in order to protect the rights of the parties and the functioning of the tribunal, as discussed in Section 2(b) of the rule. However, if such devices are allowed into a courtroom and are operated in a manner that does not physically interfere with the proceeding, the court should not interject itself into the manner in which the media (broadly defined to include citizen journalists) shares information with the community.

Unauthorized Use of Devices

Following the colloquy above, Judge Lauriat raised a third issue with respect to the use of Twitter, namely that it might encourage those not authorized to use electronic devices to do so:

THE COURT: …What is difficult and what I need to determine in the exercise of my discretion is how best to manage the courtroom during a first-degree murder trial, with in addition to sixteen jurors, lawyers, the defendant, the witnesses, the staff, and the court officers, we have roughly between forty and sixty spectators sitting in the gallery at various points during a trial. They come and they go so we probably have a larger number in total.

We have three court officers assigned to this first-degree murder case; that’s all there are available. We have three court officers to ensure the safety of the jury, the attention of the jury, the safety and attention of the parties, the if you will organization of the Court. And what [we] don’t have quite frankly because we don’t have money is a court officer to sit and full time monitor the audience, and to determine who of the fifty people in the audience is, one, and authorized representative of a news media with credentials; two, doing something appropriate that the news media is authorized to do under Rule 1:19, or none of the above but nonetheless – for example, an individual who decides the person next to me is tweeting; I think I’ll tweet. One is in your view by rule allowed to tweet in the courtroom, the other one is not.

I don’t have the staff, we don’t have the personnel to sit with each person in the back of the courtroom and decide who may appropriately tweet, if that were to be allowed, and who may not because they’re not a member of the credentialed news media. …

…I have concluded that it’s necessary, and I believe appropriate under the circumstances to try to draw the line at some point where I can make or exhibit some measure of control over what happens in this very open and very public trial, and that is the point that I have at this stage, and in the absence of any explicit direction from the Supreme Judicial Court, either in Rule 1:19 or otherwise, to direct the trial court to allow tweeting and postings to social media in addition to blogs and t.v. cameras and the pencil press, and those who may wish to take notes and still cameras.

Judge Lauriat then proposed “reducing the scope of the exclusion zone” to the floor on which the courtroom was located (rather than the entire courthouse), and, in response to a suggestion by counsel for WCVB, indicated that he would not prevent tweeting from a media overflow room in which members of the media watched the live feed from the courtroom.

There is no question that courts might face practical issues in effecting Rule 1:19, particularly as it is expanded to include citizen media and electronic devices. I am also sympathetic to the fact that the trial courts of the Commonwealth are underfunded. That said, the concern voiced by the judge seems speculative. Moreover, even if a member of the audience might spontaneously decide to tweet based on what their neighbors are doing, it is not clear why this would be inherently harmful in a way that justifies denial of use of electronic devices to registered media as provided by Rule 1:19.

It is also not clear that denying access to Twitter would be effective to prevent the problem of unauthorized use, given that authorized users could still be in the audience using electronic devices to work on blogs. An unregistered member of the audience would be unlikely to recognize the distinction between a blog and Twitter in thinking that audience use of electronic devices was permitted. A much less restrictive solution (if also imperfect) would be for the judge to instruct audience members at the beginning of each session that use of electronic devices is limited to those registered by the court.

Conclusion

In a criminal trial, particularly a capital felony case, the judge has the grave duty to protect the constitutional rights and safety of all participants. To that end, judges correctly believe that it is important to exercise strict control over what happens in the courtroom. However, the judge must also carefully balance those concerns against the importance of keeping the criminal justice system as open to public view as possible, a duty which entails yielding significant control over perception of what happens in the courtroom to the press and the interested public.

Judge Lauriat was clearly struggling with the proper balance in this case. Although I do not believe that he got it entirely right, he did acknowledge that he was operating without clear guidance from higher courts. He encouraged the media to seek review of his order if they were dissatisfied, so that the Superior Court might have the benefit of an appellate court’s guidance. Although the docket does not indicate that anyone took Judge Lauriat up on his suggestion in this particular case (the defendant was convicted on March 7, 2013, without any further docketed rulings or notices of appeal on the social media issue), there will hopefully be an opportunity to clarify these issues in the future.

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

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

Creative Lawyering or Copyright "Trolling" - a Copyright Society Event at Suffolk Law

Andrew F. Sellars — Tue, 26 Mar 2013 15:13:31 +0000

This Thursday I'll be joining Jason Sweet from the Cambridge law firm (and OMLN member firm) Booth Sweet LLP at an event hosted by the New England chapter of the Copyright Society of the USA entitled "Creative Lawyering or Copyright 'Trolling.'" The event will be a discussion of some recent attempts by law firms and rightsholders to use enforcement of copyright law as a direct revenue source – attempts like the now-dying (but, critically, not quite dead) Righthaven LLC that sued bloggers for copying news articles, and the currently-unraveling saga around Prenda Law. Jason will be talking a bit about his litigation work defending against these groups, and I'll be talking a bit about the Righthaven case specifically and what concerns these practices should raise amongst the copyright bar.

The event is at Suffolk Law School, 120 Tremont Street, Room 295, right in the heart of downtown Boston. The event is co-sponsored with Suffolk's IP Law Student Association, School Committee of the MA Chapter of the Federal Bar Association, and their IP and Entrepreneurship Clinic. The event is free and open to all. Further details can be found on the CSUSA website. Hope to see you there!

Andy Sellars is a staff attorney at the DMLP.

FTC Clarifies Obligations of Product Reviewers, But Does Not Ease Concerns

Jeffrey P. Hermes — Mon, 18 Mar 2013 20:46:15 +0000

On March 12, 2013, the Federal Trade Commission released a new guidance paper entitled ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." The new FTC guidance updates a prior FTC release from 2000 relating to disclosures in online advertising. The new guidance also provides some answers to questions raised by the agency's 2009 Guides Concerning the Use of Endorsements and Testimonials in Advertising, which caused substantial concern among bloggers and users of social media who write product reviews due to a lack of clarity as to their obligations.

Scope of the New FTC Guidance

The FTC has long taken the position that some online advertisements can be deceptive when not accompanied by certain clarifying disclosures. Such disclosures might relate to pricing, product materials or ingredients, or any of a number of other issues -- including identification of sponsored endorsements, as discussed in the 2009 endorsement guidelines. The agency's position on effective online disclosures is straightforward:

The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations; the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.

There is no litmus test for determining whether a disclosure is clear and conspicuous, and in some instances, there may be more than one method that seems reasonable. In such cases, the best practice would be to select the method more likely to effectively communicate the information in question.

The devil is in the details, of course, and the bulk of the FTC guidance is dedicated to discussing how to make disclosures clear and conspicuous in the context of online content. Key points include:

Advertisers and those offering products for sale online must take into account the platform on which content is being viewed. A disclosure on a website that is clear and conspicuous when viewed using a laptop or desktop browser might not be when viewed on a mobile device, particularly if scrolling is required to see the disclosure on a smartphone screen. Disclosures should be presented in a manner that either translates between fixed and mobile screens without loss of clarity, or there should be a mobile-optimized version of the site. Disclosures via pop-ups, Flash, or similar technologies might not be effective due to a lack of software support (e.g., Flash on Apple mobile devices) or tools that would prevent the disclosure from appearing (e.g., pop-up blockers).

Disclosures in multimedia campaigns should be presented in the same medium as the content to which they relate: audio disclosures for audio claims, written disclosures for written claims, et cetera. Necessary disclosures should be as prominent as the claims to which they relate; fleeting disclosures in a video clip are unlikely to be effective.

Disclosures should not be "buried" in Terms of Service or other lengthy contractual or contract-like content. "Even if such agreements may be sufficient for contractual or other purposes, disclosures that are necessary to prevent deception or unfairness should not be relegated to them. Similarly, simply because consumers click that they 'agree' to a term or condition, does not make the disclosure clear and conspicuous."

Hyperlinks may be used to connect readers to disclosures, but only in certain circumstances. Where the disclosure is "integral" to the advertisement (for example, disclosing that a necklace offered for sale is costume jewelry), it must appear in the text of the ad. Where hyperlinks are permissible, they must be conspicuous, clearly inform the reader about the nature of the linked disclosure, and lead directly to the disclosure in a location where it is prominently displayed. The use of a clickable symbol or icon to lead to disclosures is unlikely to suffice, unless the symbol/icon is widely understood by consumers.

"Space-constrained ads" (think Twitter) are not exempt from disclosure requirements. Disclosures may sometimes be made on a website linked from a tweet rather than in the tweet itself, but where a consumer might view the tweet and purchase an advertised product in a brick-and-mortar store rather than proceed to a linked site, the advertiser must consider whether the tweet standing alone would be deceptive. As with the use of other symbols and icons, identification of sponsored and advertising content via hashtags is unlikely to be effective unless the hashtag is widely recognized. Disclosures in separate tweets are unlikely to be effective where posts from other users could separate the disclosure from the content to which it applies.

Disclosures in blog posts must be placed in such a manner that readers are not likely to be distracted before viewing it. Thus, if a blog post contains links that might lead a reader away from the blogger's website, the disclosure should appear before those links.

The new FTC guidance includes further detailed information, including 22 illustrations of various circumstances in which disclosures either are, or are not, sufficient.

Product Reviews

So what does the new guidance mean for bloggers and social media users who are engaged in writing product reviews? Well, as the Digital Media Law Project has discussed extensively, the FTC considers a positive review of a product to be potentially sponsored or endorsed by the manufacturer -- and thus a form of advertising -- when the reviewer has received a free sample of the reviewed product. In circumstances where a reader would not reasonably expect such a "material connection" between the reviewer and the manufacturer, the FTC requires the disclosure of the freebie. Those disclosures are subject to the FTC's new guidance, just like other disclosures relating to advertising.

The most relevant aspects of the new guidance for product reviewers will be the sections relating to blogs and "space-constrained ads." Where a positive review of a freebie on a blog has hyperlinks in its text, the new guidance would suggest that the FTC disclosure should appear at the start of the review rather than at the end. In this way, the reader is not distracted by the links before reading the disclosure.

With respect to "space-constrained ads" (e.g., tweets), when a tweet about a reviewed freebie reflects the reviewer's positive opinion, the new FTC guidance indicates that the reviewer should include the required disclosure in the text of the tweet. However, a disclosure in the text of the tweet is probably unnecessary if the positive nature of the review is not apparent on the face of the tweet. For example, where a tweet merely includes a link to a review without spoiling the nature of the review, any required disclosures could probably be presented on the review site instead.

Note that the new FTC guidance does not expand the circumstances in which disclosures are required. The new guidance helps to explain how disclosures are to be made, but leaves in place the FTC's existing rules and guidelines about when disclosures must be made. Thus, it remains the case that a disclosure would probably not be required for a negative review even if the reviewer had received the product for free. Even if the freebie motivated the reviewer to be kinder than he or she might otherwise have been, the negative review is unlikely to be the kind of sponsored content about which the FTC was concerned in the 2009 endorsement guidelines.

The new FTC guidance also provides no additional insight as to whether the FTC intends to take enforcement action against individual bloggers and reviewers. The agency's statements to date suggest that they are more interested in pursuing manufacturers that attempt to buy positive reviews with freebies than they are the reviewers themselves. That said, the discussion of blogs in the new guidance relates directly to how bloggers themselves comply with disclosure requirements.

Broader Concerns

There remain serious questions about whether the FTC's guidance in this space represents an unconstitutional intrusion into protected, non-commercial speech. The FTC's authority to require disclosures in advertising derives from its power to take action against unfair and deceptive trade practices. Attempts to restrict or to compel modifications to non-commercial speech raise serious questions not only about whether the agency is exceeding its remit, but also whether the regulations are permissible under the First Amendment.

The theory behind the 2009 endorsement guidelines is that some online reviews which appear to be the work of independent writers are in fact advertisements in disguise. However, while there is little doubt that promotional material disguised as neutral editorial content can be deceptive, one criterion that the FTC uses to identify hidden commercial speech in this context -- the receipt of free products for review -- is unreliable at best and irrelevant at worst.

When the 2009 endorsement guidelines were published, many online reviewers took umbrage at the suggestion that they could be bought with items for review. Without question, free samples and products are a perk of reviewing, but there is a significant difference between enjoying such things and compromising one's editorial independence. A manufacturer who attempts to buy reviewers through free goods might be engaged in an unfair or deceptive practice, warranting sanctions against it. But that is a far cry from evidence that the manufacturer in fact controls what reviewers write, in such a way that would allow the government to treat the reviews themselves as mere advertisements subject to restrictions on commercial speech.

Absent that showing, the FTC's compulsion to include additional content in the form of disclosures is an intrusion into editorial discretion -- and simple, non-commercial communication -- in a manner repugnant to the First Amendment.

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

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

DMLP at UC Hastings on March 22, Discussing the Computer Fraud and Abuse Act

Andrew F. Sellars — Fri, 15 Mar 2013 18:33:21 +0000

On March 22nd I'll be at UC Hastings in San Francisco for an all-day symposium entitled The Computer Fraud and Abuse Act: Transformation after Tragedy. The event is meant to serve as a critical examination of the Act (18 U.S.C. § 1030) in light of the prosecution of Aaron Swartz, which ultimately lead to his tragic suicide two months ago.

Building upon my earlier writing on the topic I will be moderating a panel on the Swartz case specifically, along with panelists Prof. Rory Little from Hastings, Cathy Gellis from Digital Age Rights, and Trevor Timm from the Electronic Frontier Foundation.

The object of the symposium is to review and critically examine how the CFAA applies today and how we might change the law going forward. Other panels will include an analysis of recent CFAA cases and various legislative proposals that are currently being considered to reform the CFAA. Speakers at those panels include Kade Crockford from ACLU-MA, EFF's Cindy Cohn and Hanni Fakhoury, Lothar Determann from Baker & McKenzie LLP, Jonathan Mayer from Stanford CIS, Susan Freiwald from USF Law, and Sebastian Kraska from the German Institut für IT-Recht (Institute for IT Law).

The symposium is free to attend and is being held at the UC Hastings Alumni Reception Center, 200 McAllister St., Second Floor. California attorneys can receive MCLE credit for attending. You can RSVP for the event here. Registration closes on Monday. We hope to see you there.

Andy Sellars is a staff attorney at the DMLP and the Dunham First Amendment Fellow at the Berkman Center for Internet & Society.

On a Very Long Walk, Paul Salopek Sees a Ray of Light from the IRS

Jeffrey P. Hermes — Tue, 12 Mar 2013 17:36:31 +0000

Pulitzer Prize-winning journalist Paul Salopek is currently on a long walk...a walk across continents that is expected to take approximately seven years to complete. An extraordinary experiment in what Paul calls "slow journalism," the Out of Eden Walk will see Paul -- on foot at a rate of three miles per hour -- trace humanity's 60,000 year expansion out of Africa, through the Middle East and Asia, and down the length of North and South America. Dispatches from along the way will illustrate the cross-section of the human race that Paul encounters along his way, part of an innovative storytelling platform designed to explore who we are as a species, where we came from, and the journey that we are still on.

Clearly, for such a monumental project Paul requires an extensive support system, including representatives here in the United States who can coordinate the venture during the extended periods when Paul himself is out of ready contact. The form that the Out of Eden Walk has selected is a nonprofit organization that can operate as a legal entity in the United States. In November 2012, that entity applied for tax exempt status from the IRS, a critical step for securing the funding necessary to support the project.

As our regular readers will know, for a while now the DMLP has been tracking the progress of journalism organizations through the IRS process for obtaining Section 501(c)(3) tax exempt status. Applications from news organizations have been encountering crippling delays (sometimes up to two years) that can threaten the viability of a nonprofit venture. There have been some signs of improvement -- a few news organizations long delayed in the IRS process have obtained their tax exemptions, such as the San Francisco Public Press and The Lens -- but it is far from clear that the IRS has resolved its issues with journalism.

We are not the only organizations concerned about these issues. On March 4th, the Nonprofit Media Working Group of the Council on Foundations (under a grant from the Knight Foundation) released its report on IRS treatment of nonprofit media organizations, "The IRS and Nonprofit Media: Toward Creating a More Informed Public."

The report is well worth perusing, and comes to five basic conclusions as to problems with how the IRS is handling applications for Section 501(c)(3) status from media and journalism organizations:

"1. Applications for tax-exempt status are processed inconsistently and take too long.

2. The IRS approach appears to undervalue journalism.

3. The IRS approach appears to inhibit the long-term sustainability of tax-exempt media organizations.

4. Confusion may be inhibiting nonprofit entrepreneurs trying to address the information needs of communities.

5. The IRS approach does not sufficiently recognize the changing nature of digital media."

Many of the recommendations that the Report makes relate to the standards applied by the IRS in reviewing applications from nonprofit journalism organizations, a byzantine analysis described in detail in the Digital Media Law Project's Interactive Guide to the IRS process. The Report urges greater respect by the IRS for journalism as an educational endeavor, and less concern over operational similarities between for-profit and non-profit news organizations.

Under these circumstances, we were thrilled, and indeed astounded, to learn that on February 28th -- a mere three and a half months after it filed its application -- the Out of Eden Walk received a positive determination from the IRS on its 501(c)(3) status. The speed of this determination is not only remarkable for a journalism organization, but for a nonprofit organization of any type.

It is too early to say whether this marks a shift in the IRS's attitude toward journalism as a whole; the Out of Eden Walk obviously has substantial differences from other nonprofit journalism ventures. It is nevertheless reassuring that the agency was so quickly able to reach a decision on the educational value in this innovative approach to reporting and storytelling.

We congratulate Paul and the Out of Eden Walk on their success at the IRS, and wish them the best of luck on the road ahead!

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

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

Texas Bill Would Allow Publishers to Correct or Retract Content to Avoid Damages

Jillian Stonecipher — Thu, 07 Mar 2013 22:22:13 +0000

Texas State Representative Todd Hunter, R-Corpus Christi, has proposed a "retraction statute" that, if passed, will protect journalists both online and offline and promote truth and efficiency both in and out of court.

The Freedom of Information Foundation of Texas and the Texas Press Association assisted Hunter in drafting Texas House Bill 1759 (HB 1759), which would require a prospective plaintiff to give a publisher an opportunity to correct, clarify, or withdraw false content before filing a defamation lawsuit. Under the proposed law, a request for such a correction must be made within a year of the publication and within 90 days of the plaintiff becoming aware of the publication. If the request is granted, and a correction, clarification, or retraction is published "with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of," the plaintiff cannot be awarded punitive damages in a defamation suit.

A publisher who has been asked to make a correction may also ask the person making the request to provide "reasonably available information regarding the falsity of the allegedly defamatory statement." The requestor "must" provide the information within 30 days or be barred from seeking punitive damages in court.

If passed, HB 1759 will promote truth in publication. It will encourage subjects to contact publishers who may have gotten something wrong, encourage publishers to listen to and engage with subjects complaining of inaccuracies, and lead to corrections or clarifications in cases where a publisher determines one is necessary, which will provide the public more accurate information. Out of court resolution would also promote the interests of the judicial system by lessening the burden on courts, which are overburdened with ever-increasing caseloads.

This out of court dispute resolution provides a stark contrast to defamation lawsuits, which, once filed, encourage publishers and subjects to stick to their guns and fight it out in a winner-take-all battle that is unlikely to benefit any party. At that point, publishers typically adamantly support their legal right to publish what they have published in order to avoid liability, rather than considering extra-legal considerations like fairness and accuracy. Defendants can also accrue serious expenses putting on a legal defense for even a frivolous suit. By requiring plaintiffs to seek a correction and reducing available damages if a correction is made, Texas will deter plaintiffs from filing defamation suits and therefore reduce the potential chilling effects of such suits (Texas has already expressed its commitment to preventing such chilling by passing a strong anti-SLAPP statute).

Additionally, given the strong First Amendment protection for speech, which requires that actionable defamatory statements be made at least negligently (Gertz v. Robert Welch, Inc.), and in many cases with actual malice (New York Times Co. v. Sullivan), plaintiffs often expend significant resources and are ultimately unsuccessful in obtaining damages or compelling publishers to remove even factually false content. Encouraging publishers and subjects to resolve disputes outside of court therefore has significant benefits for defendants, plaintiffs, and the public.

Given the broad benefits of Texas' proposed retraction law, it is especially positive that the bill explicitly protects online speech by both media and non-media defendants. It "applies to all publications, including writing, broadcasts, oral communications, electronic communications, or other forms of transmitting information." In a case regarding online content a correction, clarification, or retraction is published with appropriate prominence and in an appropriate manner and medium if it is appended to the original publication.

Many of the approximately 30 states that already have retraction statutes on the books do not currently protect online speech. For example, Wisconsin's retraction law only applies to "newspapers, magazines, and periodicals." And in It's in the Cards, Inc. v. Fuschetto, the Wisconsin Court of Appeals held that this language did not apply to the internet, leaving the "legislature to address the increasingly common phenomenon of libel and defamation on the information superhighway." The Mississippi statute refers to "a newspaper . . . radio or television station," and has not been interpreted to apply to online publications. Similarly, the California retraction statute covers "publication of a libel in a newspaper, or of a slander by radio broadcast." California courts have not addressed whether the statute could apply to online speech but have interpreted the statute narrowly; In Condit v. Nat'l Enquirer, Inc., a federal court in California held that the statute's protections "are limited to publications which engage in the immediate dissemination of news."

In other states, courts have applied statutes that do not expressly cover the internet to online speech. For example, in Alvi Armani Med., Inc. v. Hennessey, a court applied Florida's retraction law, which applies to "publication or broadcast, in a newspaper, periodical, or other medium," to online speech, though it implied that the statute might not cover an individual online speaker rather than a company "which provides information to the consumer public."

In Mathis v. Cannon, the Supreme Court of Georgia held that the Georgia retraction statute, which covers "a regular issue of the newspaper or other publication," applies to online speech. The court noted that that construction was preferable to one limiting the statute to traditional print media because

"[i]t eliminates the difficult task of determining what is a ‘written publication' and who is the ‘print media' at a time when any individual with a computer can become a publisher. It supports free speech by extending the same protection to the private individual who speaks on matters of public concern as newspapers and other members of the press now enjoy. In short, it strikes a balance in favor of uninhibited, robust, and wide-open debate in an age of communications when anyone, anywhere in the world, with access to the Internet can address a worldwide audience of readers in cyberspace." (internal citations and quotation marks omitted).

HB 1759 law serves the same crucial functions. It will promote accuracy in reporting while saving plaintiffs and defendants significant expense and unburdening the courts. And, it is particularly forward thinking in that it provides the same rights to all speakers as it provides to the traditional media, therefore "strik[ing] a balance in favor of uninhibited, robust, and wide-open debate" both on and off line. This is especially important now, as traditional media budgets for investigative reporting shrink, and media's watchdog function increasingly shifts to independent newsgatherers publishing online.

Jillian Stonecipher is a 2L at Harvard Law School and an intern at the Digital Media Law Project. She is a proud Texan.

(Image of the Liberty Statue at the Texas Capitol by Flickr user Jes Reynolds, and licensed under a Creative Commons Attribution NonCommercial Share-Alike license.)