Free Speech & The InternetFree Speech & The InternetPrepared for:Prepared for:

First Amendment Lawyers First Amendment Lawyers Association Association

Summer Meeting, 2008 Summer Meeting, 2008 San FranciscoSan Francisco

By: Lawrence G. Walters, Esq.By: Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Weston, Garrou, Walters & MooneyMooney

www.FirstAmendment.comwww.FirstAmendment.com

INTRODUCTIONINTRODUCTION

CRIMINAL CASE CRIMINAL CASE DEVELOPMENTSDEVELOPMENTS

U.S. v. WilliamsU.S. v. Williams, , 553 U.S. ___, 128 S.Ct. 1830 (May 19, 553 U.S. ___, 128 S.Ct. 1830 (May 19, 2008)2008)

Supreme Court voted 7-2 to uphold a federal Supreme Court voted 7-2 to uphold a federal statute (PROTECT Act of 2003) prohibiting the statute (PROTECT Act of 2003) prohibiting the knowing offering or seeking of child knowing offering or seeking of child pornography. pornography. ““Any person who knowingly advertises, promotes…Any person who knowingly advertises, promotes…

or solicits…any material or solicits…any material or purported materialor purported material in a in a manner that reflect the belief, manner that reflect the belief, oror that is intended to that is intended to cause another to believe, that the material is [child cause another to believe, that the material is [child pornography or obscenity involving minors]…is pornography or obscenity involving minors]…is guilty…”guilty…”

The original statute was struck down by The original statute was struck down by Ashcroft v. Ashcroft v. Free Speech CoalitionFree Speech Coalition – this case involves the next – this case involves the next attempt at regulating virtual child porn. attempt at regulating virtual child porn.

The issue comes down to the constitutionality of The issue comes down to the constitutionality of criminalizing the act of knowingly or unintentionally criminalizing the act of knowingly or unintentionally passing off real or passing off real or virtualvirtual child porn as real child child porn as real child porn. porn. nextnext

U.S. v. Williams, continued…U.S. v. Williams, continued… Scalia interprets statute aggressively, but Scalia interprets statute aggressively, but

observes that juries will not likely convict observes that juries will not likely convict defendants charged under problematic defendants charged under problematic interpretations by the government. interpretations by the government.

Of course this is little Of course this is little comfort for those so charged.comfort for those so charged.

Scalia also has no concern with Scalia also has no concern with criminalizing the pandering ofcriminalizing the pandering ofFirst Amendment protected First Amendment protected materials like virtual child porn materials like virtual child porn if the defendant has the requiredif the defendant has the required““belief” that the material is real.belief” that the material is real.

U.S. v. WilliamsU.S. v. Williams, continued…, continued… Scalia finds that offers to sell or promote illegal Scalia finds that offers to sell or promote illegal

material are excluded from 1A protection, like material are excluded from 1A protection, like solicitation or conspiracy, because they have “no solicitation or conspiracy, because they have “no social value.” Also requires social value.” Also requires bothboth subjective belief and subjective belief and overt act causing another to believe.overt act causing another to believe.

Stevens (joined by Breyer) concurs to attempt a Stevens (joined by Breyer) concurs to attempt a further narrowing of the statute to satisfy his further narrowing of the statute to satisfy his constitutional concerns (although he still voted to constitutional concerns (although he still voted to uphold the statute).uphold the statute).

Stevens – citing the need to divine the ‘intent of the Stevens – citing the need to divine the ‘intent of the drafters’- read into the statute a ‘lascivious purpose’ drafters’- read into the statute a ‘lascivious purpose’ element that was missing from the statutory element that was missing from the statutory language, to avoid the innocent transmission of nude language, to avoid the innocent transmission of nude baby pics with ambiguous descriptions.baby pics with ambiguous descriptions.

Souter strongly dissented on the basis that this Souter strongly dissented on the basis that this statute allows for prosecution of individuals for statute allows for prosecution of individuals for activity associated with protected material involving activity associated with protected material involving no real children.no real children. nextnext

WilliamsWilliams, , finifini. .

Congress has essentially deferred to the Congress has essentially deferred to the Court to fill in the gaps and make this Court to fill in the gaps and make this statute work.statute work.

The Court has accepted this unusual task.The Court has accepted this unusual task.Apparently, this Court is not willing to take Apparently, this Court is not willing to take

any more heat to protect virtual child porn any more heat to protect virtual child porn from governmental regulation.from governmental regulation.

This decision is arguably the closest the This decision is arguably the closest the High Court has come to approving High Court has come to approving ‘thought crimes.’ ‘thought crimes.’

Mukasey v. ACLUMukasey v. ACLU----F.3d– (3d Cir. 2008)

COPA invalidated for the 3d time by the 3d Circuit. COPA invalidated for the 3d time by the 3d Circuit. (Was (Was anyone surprised?)anyone surprised?)

COPA imposed criminal penalties on webmasters COPA imposed criminal penalties on webmasters publishing harmful materials on the Web for commercial publishing harmful materials on the Web for commercial purposes.purposes.

Affirmative defense granted for webmasters who Affirmative defense granted for webmasters who interposed age verification devices such as credit card, interposed age verification devices such as credit card, digital signature or password authentication. digital signature or password authentication.

After two visits to the Supreme Court, the 3d Circuit held After two visits to the Supreme Court, the 3d Circuit held that the statute was vague and overbroad, not narrowly-that the statute was vague and overbroad, not narrowly-tailored, and failed to use the least restrictive means.tailored, and failed to use the least restrictive means.

Plus, the definitions of “harmful materials” and Plus, the definitions of “harmful materials” and “commercial purposes” were not narrowly tailored.“commercial purposes” were not narrowly tailored.

Filters more effective than age verification requirement.Filters more effective than age verification requirement. Law of the case principles compel the conclusion that Law of the case principles compel the conclusion that

COPA is invalid, given previous holdings.COPA is invalid, given previous holdings.nextnext

Mukasey, cont.Mukasey, cont. ““As a Whole” term = vague as applied to the As a Whole” term = vague as applied to the

Internet. Unclear what content is to be considered.Internet. Unclear what content is to be considered. Lack of regulation of foreign websites key to holding Lack of regulation of foreign websites key to holding

on under-inclusiveness.on under-inclusiveness. ““Minor” also vague, since it is unclear whether the Minor” also vague, since it is unclear whether the

material must be harmful to adolescents or 2 year material must be harmful to adolescents or 2 year olds, or something in between.olds, or something in between.

Affirmative Defenses insufficient because they do Affirmative Defenses insufficient because they do not effectively discern users’ age (thus do not exist), not effectively discern users’ age (thus do not exist), and they only apply once the website operator has and they only apply once the website operator has been prosecuted.been prosecuted.

COPA is overbroad because it applies to even a COPA is overbroad because it applies to even a small piece of material on a site, considered in small piece of material on a site, considered in isolation and out of context. isolation and out of context.

These points potentially valuable in future litigation.These points potentially valuable in future litigation.

U.S. v. Michael Arnold,U.S. v. Michael Arnold,523 F.3d 941 (9th Cir. April 21, 523 F.3d 941 (9th Cir. April 21, 2008)2008)

Defendant’s laptop was searched upon Defendant’s laptop was searched upon arrival in the U.S. from the Philippines; arrival in the U.S. from the Philippines; authorities discovered child pornography. authorities discovered child pornography.

Defendant argued that the search was Defendant argued that the search was unconstitutional since Customs lacked unconstitutional since Customs lacked reasonable suspicion to search. reasonable suspicion to search. The Central District of California granted a The Central District of California granted a

Motion to Suppress Evidence (“laptop is like Motion to Suppress Evidence (“laptop is like our mind”) and the Gov’t appealed.our mind”) and the Gov’t appealed. nextnext

U.S. v. Michael Arnold, U.S. v. Michael Arnold, cont…cont…

Upon appeal, the 9th Circuit issued an Upon appeal, the 9th Circuit issued an en bancen banc ruling ruling that the search of a laptop is equivalent to the that the search of a laptop is equivalent to the search of luggage and reasonable suspicion is not search of luggage and reasonable suspicion is not necessary. necessary.

This ruling is similar to one reached in a 4th Circuit This ruling is similar to one reached in a 4th Circuit case, case, U.S. v. Ickes,U.S. v. Ickes, in which a conviction was upheld in which a conviction was upheld after Ickes’ camcorder was searched at the Canadian after Ickes’ camcorder was searched at the Canadian border, revealing suspicious material.border, revealing suspicious material.

Note:Note: A Senate Judiciary Subcommittee held hearings A Senate Judiciary Subcommittee held hearings pertaining to the overzealous search and seizure of pertaining to the overzealous search and seizure of laptops at U.S. borders. EFF and the Association of laptops at U.S. borders. EFF and the Association of Corporate Travel Executives have filed Corporate Travel Executives have filed amicus amicus briefs briefs requesting that the Supreme Court reverse this 9th requesting that the Supreme Court reverse this 9th Cir. ruling.Cir. ruling.

Practice Pointer: Practice Pointer: The only challenges left to boarder The only challenges left to boarder searches are 1) “Exceptional Damage” to property, searches are 1) “Exceptional Damage” to property, and 2) “Particularly Offensive Manner”and 2) “Particularly Offensive Manner”

State of Illinois v. Jeremie Dalin State of Illinois v. Jeremie Dalin (Jury Verdict)(Jury Verdict)Online Threat Online Threat NOTNOT Constitutionally Constitutionally ProtectedProtected Former High School Student Jeremie Dalin was Former High School Student Jeremie Dalin was

charged with a Class 1 Felony after posting a charged with a Class 1 Felony after posting a false “terrorist” threat on his Internet blog that false “terrorist” threat on his Internet blog that read: “Hell will break loose and many will die.”read: “Hell will break loose and many will die.” Nearly 500 students failed to show up for class that day. Nearly 500 students failed to show up for class that day.

Defendant argued that the posting was within Defendant argued that the posting was within his First Amendment rights and was vague his First Amendment rights and was vague enough to not be considered a serious threat.enough to not be considered a serious threat.

Lake County Judge ruled that the post was not Lake County Judge ruled that the post was not protected by the First Amendment and the protected by the First Amendment and the Defendant now faces up to 15 years in prison.Defendant now faces up to 15 years in prison. Note: ∆ did not attend the school, and selected the name Note: ∆ did not attend the school, and selected the name

of the school at random from a web listing. His claimed of the school at random from a web listing. His claimed intent was to post something outrageous that would intent was to post something outrageous that would receive a large number of views and stay on top of the receive a large number of views and stay on top of the blog page as the most popular item. blog page as the most popular item.

U.S. v. Lori Drew,U.S. v. Lori Drew,Case No.: 2:08-cr-00582-GW (C.D. Cal. May Case No.: 2:08-cr-00582-GW (C.D. Cal. May 15, 2008)15, 2008)

Lori Drew was indicted by the DOJ for her Lori Drew was indicted by the DOJ for her alleged role in the Internet hoax that led alleged role in the Internet hoax that led to the suicide of a 13 year old neighbor. to the suicide of a 13 year old neighbor. Drew created a fake MySpace account Drew created a fake MySpace account

purporting to be that of a young boy and purporting to be that of a young boy and sent cruel messages to the neighbor girl that sent cruel messages to the neighbor girl that presumably led to her suicide by hanging.presumably led to her suicide by hanging.

Initially, the State authorities Initially, the State authorities investigated the crime and concluded investigated the crime and concluded that the State law does not prohibit that the State law does not prohibit cyber-bullying.cyber-bullying. nextnext

California v. Lori DrewCalifornia v. Lori Drew, , cont…cont…

After substantial public outcry and media After substantial public outcry and media coverage, the Justice Department charged Drew coverage, the Justice Department charged Drew with 3 counts of fraudulently accessing another’s with 3 counts of fraudulently accessing another’s computer (18 U.S.C. computer (18 U.S.C. § 1030)§ 1030) and one count of and one count of conspiracy.conspiracy. This is the first time that the above Statute has been This is the first time that the above Statute has been

used in a case unrelated to the pursuit of actual used in a case unrelated to the pursuit of actual hackers.hackers.

By accepting MySpace.com’s Terms, users agree By accepting MySpace.com’s Terms, users agree not to promote false information or harass other not to promote false information or harass other users. users.

Query:Query: Does a violation of MySpace’s ToS Does a violation of MySpace’s ToS warrant criminal prosecution by the feds? What warrant criminal prosecution by the feds? What about Drew’s Free Speech rights? about Drew’s Free Speech rights?

NoteNote: 36 states, now have anti-bullying laws, : 36 states, now have anti-bullying laws, according to watch dog group, Bully Police.according to watch dog group, Bully Police.

Oklahoma v. Riccardo Ferrante,Oklahoma v. Riccardo Ferrante,Case No.: S-2007-31 (Okla.Crim.App. Case No.: S-2007-31 (Okla.Crim.App. March 7, 2008)March 7, 2008)

Ferrante was arrested in 2006 for Ferrante was arrested in 2006 for placing a camera under the skirt of a placing a camera under the skirt of a young girl in a Target store and taking young girl in a Target store and taking photos. He was charged under the OK’s photos. He was charged under the OK’s “Peeping Tom” Statute, which requires “Peeping Tom” Statute, which requires that the incident take place where one that the incident take place where one has a reasonable expectation of privacy.has a reasonable expectation of privacy.

The Tulsa-based trial court dismissed The Tulsa-based trial court dismissed the felony charge, since a Target store the felony charge, since a Target store does not provide customers with a does not provide customers with a “reasonable expectation of privacy.”“reasonable expectation of privacy.”

The State appealed, but the Court of The State appealed, but the Court of Criminal Appeals upheld the decision. Criminal Appeals upheld the decision. Public dress is subject to public filming, Public dress is subject to public filming, regardless of the angle of the camera’s regardless of the angle of the camera’s lens. lens.

Holding consistent with prior cases. Holding consistent with prior cases.

U.S. v. Girard LaFortune,U.S. v. Girard LaFortune,520 F.3d 50 (1st Cir. March 18, 520 F.3d 50 (1st Cir. March 18, 2008)2008) An undercover FBI agent was working the chat An undercover FBI agent was working the chat

rooms and came upon the Defendant who sent rooms and came upon the Defendant who sent images of child pornography. The Agent images of child pornography. The Agent prepared an affidavit, attached the images, and prepared an affidavit, attached the images, and presented it to the District Court in order to presented it to the District Court in order to obtain a Search Warrant. No expert testimony obtain a Search Warrant. No expert testimony whether images depicted real children or not.whether images depicted real children or not. Upon review of the images, the Magistrate Judge signed the Upon review of the images, the Magistrate Judge signed the

Search Warrant to search the Defendant’s homeSearch Warrant to search the Defendant’s home.. During the search, agents seized defendant’s During the search, agents seized defendant’s

laptop which contained images depicting child laptop which contained images depicting child pornography. pornography.

A federal grand jury indicted ∆ on 4 counts of A federal grand jury indicted ∆ on 4 counts of transportation, possession, receipt and publishing transportation, possession, receipt and publishing or advertising child pornography.or advertising child pornography. nextnext

U.S. v. LaFortuneU.S. v. LaFortune, cont…, cont… Defendant filed a Motion to Suppress Evidence based on Defendant filed a Motion to Suppress Evidence based on

the the AshcroftAshcroft decision, that images presented in decision, that images presented in conjunction with a Search Warrant have to depict “actual” conjunction with a Search Warrant have to depict “actual” child pornography. He further argued that the Magistrate child pornography. He further argued that the Magistrate Judge was not in a position to make that kind of Judge was not in a position to make that kind of determination.determination.

The Motion to Suppress was denied.The Motion to Suppress was denied. The Defendant appealed, but the 1st Circuit upheld the The Defendant appealed, but the 1st Circuit upheld the

district court ruling. The 1st Circuit held that probable district court ruling. The 1st Circuit held that probable cause cause diddid exist and that the Magistrate Judge was qualified exist and that the Magistrate Judge was qualified to rely on her own lay evaluation of the images at issue to to rely on her own lay evaluation of the images at issue to determine whether they depicted actual or virtual children.determine whether they depicted actual or virtual children.

NoteNote: No expert testimony is required on the issue of the : No expert testimony is required on the issue of the child’s age(s) in child porn cases. This applies regardless child’s age(s) in child porn cases. This applies regardless of the stage of the criminal proceeding (pretrial, trial, of the stage of the criminal proceeding (pretrial, trial, sentencing).sentencing).

QueryQuery: Given modern technology, can anyone but an : Given modern technology, can anyone but an expert really tell whether images depict real or virtual expert really tell whether images depict real or virtual children?children? See See WilliamsWilliams..

U.S. v. Stevens,U.S. v. Stevens,__ F.3d__ Case No.: 05-2497 (3d Cir. July 18, 2008)__ F.3d__ Case No.: 05-2497 (3d Cir. July 18, 2008)

∆ ∆ charged and convicted on violation of 18 U.S.C. § 48, the charged and convicted on violation of 18 U.S.C. § 48, the ‘Crush Video” law, for selling videos showing pit bull fighting.‘Crush Video” law, for selling videos showing pit bull fighting.

Statute designed to prevent animal cruelty, particularly videos Statute designed to prevent animal cruelty, particularly videos of women stepping on and killing animals with bare feet or of women stepping on and killing animals with bare feet or high heels, in a sadistic manner. high heels, in a sadistic manner.

Such videos are allegedly popular on the Internet.Such videos are allegedly popular on the Internet. Government urged the creation of a new category of speech Government urged the creation of a new category of speech

unprotected by the First Amendment. Court declined that unprotected by the First Amendment. Court declined that invitation and invalidated the statute.invitation and invalidated the statute.

Supreme Court has not expanded the categories of Supreme Court has not expanded the categories of unprotected speech in over 25 years, and no compelling unprotected speech in over 25 years, and no compelling reason exists to do so now. reason exists to do so now.

Child porn is the only area where recording a crime can be Child porn is the only area where recording a crime can be criminalized. The action and the recordation are conflated criminalized. The action and the recordation are conflated and related.and related.

Third Circuit refused to find a compelling interest with animal Third Circuit refused to find a compelling interest with animal cruelty videos.cruelty videos.

CDA SECTION 230 CDA SECTION 230 IMMUNITY CASESIMMUNITY CASES

Jane Doe v. Friendfinder Jane Doe v. Friendfinder Network, Inc.,Network, Inc.,540 F.Supp.2d 288 (D.N.H. March 27, 540 F.Supp.2d 288 (D.N.H. March 27, 2008)2008) Doe brought suit against AdultFriendFinder.com after Doe brought suit against AdultFriendFinder.com after discovering a profile, depicting her image and discovering a profile, depicting her image and various other personal details, that was not posted various other personal details, that was not posted by her. Plaintiff’s suit alleged invasion of privacy and by her. Plaintiff’s suit alleged invasion of privacy and publicity rights, defamation, intentional infliction of publicity rights, defamation, intentional infliction of emotional distress, along with violations of the New emotional distress, along with violations of the New Hampshire Consumer Protection Act and the federal Hampshire Consumer Protection Act and the federal Lanham Act.Lanham Act.

The Court held that Friendfinder has Section 230 The Court held that Friendfinder has Section 230 immunity under the CDA from the state tort claims, immunity under the CDA from the state tort claims, but allowed the publicity right claim to go forward, but allowed the publicity right claim to go forward, since it was based on intellectual property principles, since it was based on intellectual property principles, and therefore excluded from 230’s immunity grant. and therefore excluded from 230’s immunity grant.

Plaintiff's false advertising claim under the federal Plaintiff's false advertising claim under the federal Lanham Act was also permitted, as Friendfinder’s use Lanham Act was also permitted, as Friendfinder’s use of teasers and online advertisements falsely of teasers and online advertisements falsely represented that she was an active participant of represented that she was an active participant of their online services, and this federal claim is not their online services, and this federal claim is not subject to immunity. subject to immunity.

Fair Housing Council of San Fernando Fair Housing Council of San Fernando Valley v. Roommates.com,Valley v. Roommates.com,521 F.3d 1157 (9th Cir. April 3, 2008)521 F.3d 1157 (9th Cir. April 3, 2008)

The Fair Housing Council brought suit in the Central The Fair Housing Council brought suit in the Central District of California alleging discrimination.District of California alleging discrimination.

The District Court granted summary judgment, ruling The District Court granted summary judgment, ruling that Section 230 immunity applied to the website that Section 230 immunity applied to the website operator.operator.

On appeal, the 9th Circuit issued an On appeal, the 9th Circuit issued an en bancen banc ruling ruling reversing the previous decision. Kozinski argued that reversing the previous decision. Kozinski argued that the CDA immunity does not extend to acts of the CDA immunity does not extend to acts of operators in creating questionnaires which are operators in creating questionnaires which are designed to solicit discriminatory preferences and designed to solicit discriminatory preferences and divulge protected characteristics from users in divulge protected characteristics from users in violation of federal law. violation of federal law.

Another example of some courts starting to pull back Another example of some courts starting to pull back on the otherwise broad immunity provided by Section on the otherwise broad immunity provided by Section 230. 230. nextnext

Fair Housing Council of San Fernando Fair Housing Council of San Fernando Valley v. Roommates.com, Valley v. Roommates.com, cont…cont…

The dissenters asserted that: The dissenters asserted that: ““The majority’s unprecedented expansion The majority’s unprecedented expansion of liability for Internet service providers of liability for Internet service providers threatens to chill the robust development threatens to chill the robust development of the Internet that Congress envision…by of the Internet that Congress envision…by exposing every interactive service exposing every interactive service provider to liability for sorting, searching provider to liability for sorting, searching and utilizing the all to familiar drop-down and utilizing the all to familiar drop-down menus, the majority has dramatically menus, the majority has dramatically altered the landscape of Internet liability.”altered the landscape of Internet liability.”

Chicago Lawyers’ Committee for Civil Rights Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., v. Craigslist, Inc.Under Law, Inc., v. Craigslist, Inc.519 F.3d 666 (7th Cir. March 14, 2008)519 F.3d 666 (7th Cir. March 14, 2008)

In a break from the last two cases, the 7th Circuit In a break from the last two cases, the 7th Circuit affirmed summary judgment against the Lawyers’ affirmed summary judgment against the Lawyers’ Committee in a lawsuit alleging Craigslist violated the Committee in a lawsuit alleging Craigslist violated the FHA.FHA.

The Northern District Court in Illinois originally dismissed The Northern District Court in Illinois originally dismissed the case citing CDA Section 230 immunity. the case citing CDA Section 230 immunity.

The 7th Circuit upheld that ruling, holding that Craigslist The 7th Circuit upheld that ruling, holding that Craigslist cannot be held liable for user-generated content.cannot be held liable for user-generated content.

Craigslist allows users to post virtually unrestricted ad Craigslist allows users to post virtually unrestricted ad content, not subject to the type of drop down menus content, not subject to the type of drop down menus seen in seen in Fair HousingFair Housing..

Judge Easterbrook’s opinion recognized the costs Judge Easterbrook’s opinion recognized the costs exceeded the benefits of forcing an intermediary to filter exceeded the benefits of forcing an intermediary to filter user generated content.user generated content.

Global Royalties, LTD. v. XCentric Global Royalties, LTD. v. XCentric Ventures,Ventures,544 F.Supp.2d 929 (D.Ariz. 2008)544 F.Supp.2d 929 (D.Ariz. 2008)

Plaintiffs brought suit against the Defendant’s Plaintiffs brought suit against the Defendant’s website, RipoffReport.com, for defamation. website, RipoffReport.com, for defamation. Consumers are able to post complaints about Consumers are able to post complaints about sketchy businesses/business practices, and sketchy businesses/business practices, and then the Defendant uses the consumer then the Defendant uses the consumer complaints as leverage to convince businesses complaints as leverage to convince businesses to pay to mediate the issues and remove to pay to mediate the issues and remove business names from the site. business names from the site.

The District Court dismissed the suit. CDA The District Court dismissed the suit. CDA immunity protects a website operator even immunity protects a website operator even when potentially defamatory content is posted when potentially defamatory content is posted by third-party users, and where the site by third-party users, and where the site benefits from continued availability of the benefits from continued availability of the information online.information online.

CIVIL LITIGATION IMPACTING CIVIL LITIGATION IMPACTING ADULT ENTERTAINMENTADULT ENTERTAINMENT

Quon v. Arch Wireless, et al.,Quon v. Arch Wireless, et al., __ F.3d ____, 2008 WL 2440559 (9th Cir. June 18, __ F.3d ____, 2008 WL 2440559 (9th Cir. June 18, 2008)2008) The 9th Circuit ruled unanimously that there is a The 9th Circuit ruled unanimously that there is a

“reasonable expectation of privacy” in the workplace, “reasonable expectation of privacy” in the workplace, prohibiting employers from accessing text messages prohibiting employers from accessing text messages and limiting employers’ access to employee email.and limiting employers’ access to employee email.

The case stemmed from a lawsuit filed against the The case stemmed from a lawsuit filed against the Ontario, California Police Department. The officers Ontario, California Police Department. The officers alleged that their employer was infringing on their alleged that their employer was infringing on their privacy rights.privacy rights.

The Court held that the employer’s conduct in spying on The Court held that the employer’s conduct in spying on employee communication was violative of the Stored employee communication was violative of the Stored Communications Act (“SCA”), 18 U.S.C. Communications Act (“SCA”), 18 U.S.C. §§ 2701, §§ 2701, et seq. et seq.

Wireless internet provider was prohibited by SCA from Wireless internet provider was prohibited by SCA from releasing text messages exchanged by employees, to releasing text messages exchanged by employees, to employer.employer.

The reasonable expectation of privacy existed despite The reasonable expectation of privacy existed despite the agency’s written computer and email policy stating the agency’s written computer and email policy stating otherwise. otherwise.

ICANN Approves “Dot-Kitchen-ICANN Approves “Dot-Kitchen-Sink” TLD Expansion PolicySink” TLD Expansion Policy

ICANN approved a policy that will allow ICANN approved a policy that will allow corporations and other entities to register branded corporations and other entities to register branded top level domains (TLDs). (Dot FALA anyone??)top level domains (TLDs). (Dot FALA anyone??)

Fees will likely start at $100k and corps can only Fees will likely start at $100k and corps can only register previously registered brand TLDs, such register previously registered brand TLDs, such as .coke or .toyota. Cities and states are also as .coke or .toyota. Cities and states are also eligible.eligible. The high fees are intended to deter cybersquatters.The high fees are intended to deter cybersquatters.

ICANN also approved non-Roman characters for ICANN also approved non-Roman characters for domain names/addresses.domain names/addresses.

NoteNote: This has the potential of expanding the : This has the potential of expanding the scope of domain law. May reopen the possibility scope of domain law. May reopen the possibility of ICM (or ??) attempting to register a .xxx of ICM (or ??) attempting to register a .xxx extensionextension. .

ICM Registry, Inc. v. U.S. Department of ICM Registry, Inc. v. U.S. Department of Commerce,Commerce,Case No.: 1:06-cv-00949 (D.D.C. March Case No.: 1:06-cv-00949 (D.D.C. March 12, 2008)12, 2008) A federal judge granted summary judgment A federal judge granted summary judgment

against ICM Registry, the backers of the .xxx against ICM Registry, the backers of the .xxx TLD, in an FOIA lawsuit.TLD, in an FOIA lawsuit.

ICM contended that the federal gov’t ICM contended that the federal gov’t intervened “behind the scenes” to encourage intervened “behind the scenes” to encourage ICANN’s rejection of the proposed .xxx TLD.ICANN’s rejection of the proposed .xxx TLD.

The feds released several docs pursued by The feds released several docs pursued by ICM, but redacted and withheld others that ICM, but redacted and withheld others that fell within the “deliberative process privilege.” fell within the “deliberative process privilege.” ICM countered that that was inapplicable, but ICM countered that that was inapplicable, but the Judge disagreed, stating that ICM did not the Judge disagreed, stating that ICM did not provide sufficient evidence of government provide sufficient evidence of government misconduct. (Chicken & Egg?)misconduct. (Chicken & Egg?)

ICM intends to appeal the ruling.ICM intends to appeal the ruling.

Internet Archive, et al. v. Internet Archive, et al. v. Mukasey,Mukasey,07-6346-CW (N.D. Cal. April 2008)07-6346-CW (N.D. Cal. April 2008)

In late 2007, the FBI presented the online library, “Internet In late 2007, the FBI presented the online library, “Internet Archive” with a National Security Letter requesting info on a Archive” with a National Security Letter requesting info on a customer. The NSL was not accompanied by a court order, customer. The NSL was not accompanied by a court order, but did include a gag order, prohibiting any public but did include a gag order, prohibiting any public discussion of the letter.discussion of the letter.

The Archive provided publicly-available documents and The Archive provided publicly-available documents and sued the agency, alleging the letter violated free speech sued the agency, alleging the letter violated free speech rights. The FBI then withdrew its request.rights. The FBI then withdrew its request.

The suit challenged the constitutionality of the FBI’s The suit challenged the constitutionality of the FBI’s authority to impose broad non-disclosure obligations on NSL authority to impose broad non-disclosure obligations on NSL subjects and questioned the FBI’s authority to issue an NSL subjects and questioned the FBI’s authority to issue an NSL to the Internet Archive.to the Internet Archive. The Archive asserted that it’s shielded from compliance The Archive asserted that it’s shielded from compliance

by 18 U.S.C. § 2709(f), a 2006 Amendment limiting the by 18 U.S.C. § 2709(f), a 2006 Amendment limiting the ability to demand records from libraries.ability to demand records from libraries.

The Archive’s lawsuit, which remains pending, is the first The Archive’s lawsuit, which remains pending, is the first challenge under the ECPA, and the government has lost 3 challenge under the ECPA, and the government has lost 3 other challenges to its NSL procedure. other challenges to its NSL procedure.

U.S. v. Impulse Media Group,U.S. v. Impulse Media Group,Case No.: C05-1285RSL (W.D. Wash. Case No.: C05-1285RSL (W.D. Wash. May 2008)May 2008)

Impulse Media was successful in this CAN-Impulse Media was successful in this CAN-SPAM lawsuit. Defendants not guilty of SPAM lawsuit. Defendants not guilty of spamming. spamming. The Defendant was represented by FALA member The Defendant was represented by FALA member

Robert Apgood.Robert Apgood. The court required that the Government prove The court required that the Government prove

“specific intent on the part of the defendants “specific intent on the part of the defendants to induce affiliates to promote their site(s) via to induce affiliates to promote their site(s) via email in violation of the CAN-SPAM Act.”email in violation of the CAN-SPAM Act.” Mere knowledge that the emails were sent was not Mere knowledge that the emails were sent was not

sufficient.sufficient. The District Court denied the Government’s The District Court denied the Government’s

Motion for Permanent Injunction (d’uh?), citing Motion for Permanent Injunction (d’uh?), citing the jury’s verdict that IMG had not initiated the jury’s verdict that IMG had not initiated any of the 413 email messages at issue.any of the 413 email messages at issue.

Jaynes v. Commonwealth of VirginiaJaynes v. Commonwealth of Virginia657 S.E.2d 478 (Va. 2008)657 S.E.2d 478 (Va. 2008)2008 WL 1850270 (Petition for Rehearing) 2008 WL 1850270 (Petition for Rehearing) (Va. 2008)(Va. 2008)

In a 4-3 vote, the Virginia Supreme Court upheld In a 4-3 vote, the Virginia Supreme Court upheld the first felony SPAM conviction.the first felony SPAM conviction.

In 2003, prior to the passage of CAN-SPAM, Jaynes In 2003, prior to the passage of CAN-SPAM, Jaynes was arrested for violating the state’s anti-SPAM was arrested for violating the state’s anti-SPAM statute. He was sentenced to 9 years in prison for statute. He was sentenced to 9 years in prison for sending millions of messages over a 2 month sending millions of messages over a 2 month period.period.

In dissent, Justice Lacy wrote that the “unsolicited In dissent, Justice Lacy wrote that the “unsolicited bulk electronic mail provision of Virginia’s bulk electronic mail provision of Virginia’s Computer Crimes Act is unconstitutionally Computer Crimes Act is unconstitutionally overbroad on its face because it prohibits the overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk anonymous transmission of all unsolicited bulk email including those containing political, religious email including those containing political, religious or other speech protected by the First Amendment or other speech protected by the First Amendment to the U.S. Constitution.to the U.S. Constitution.

When all else fails…When all else fails…

Bank Julius Baer & Co. LTD. v. Bank Julius Baer & Co. LTD. v. Wikileaks,Wikileaks,Case No.: C-08-00824-JSW (N.D. Cal. 2008)Case No.: C-08-00824-JSW (N.D. Cal. 2008)

Wikileaks.org is a website that describes itself as a Wikileaks.org is a website that describes itself as a Wikipedia for untraceable mass document leaking and Wikipedia for untraceable mass document leaking and analysis. Its primary interest is in exposing oppressive analysis. Its primary interest is in exposing oppressive regimes. regimes.

This suit came about when a Cayman Islands Bank sued This suit came about when a Cayman Islands Bank sued Wikileaks after a disgruntled employee stole and Wikileaks after a disgruntled employee stole and released confidential documents regarding its asset released confidential documents regarding its asset protection services.protection services. The Bank claims Wikileaks violated California law regarding The Bank claims Wikileaks violated California law regarding

unlawful and unfair business practices, interfered with the unlawful and unfair business practices, interfered with the bank’s confidentiality agreement with the employee, and bank’s confidentiality agreement with the employee, and interfered with the bank’s prospective economic advantage.interfered with the bank’s prospective economic advantage.

The case first attracted attention when District Court The case first attracted attention when District Court Judge White ordered Wikileaks and its domain registrar Judge White ordered Wikileaks and its domain registrar to disable the domain name, and then reversing his to disable the domain name, and then reversing his decision in light of First Amendment concerns decision in light of First Amendment concerns heightened by media scrutiny.heightened by media scrutiny.

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WikileaksWikileaks, cont…, cont… In February, Judge White issued an order purporting In February, Judge White issued an order purporting

to shut down the site and another order specifically to shut down the site and another order specifically requiring that the bank documents be taken down.requiring that the bank documents be taken down.

Judge White later held a hearing and issued an Judge White later held a hearing and issued an order rescinding his previous orders.order rescinding his previous orders.

Applying the classic preliminary injunction standard, Applying the classic preliminary injunction standard, he found that the bank had not shown it satisfied he found that the bank had not shown it satisfied the likelihood of success element following reasons:the likelihood of success element following reasons: US courts may lack jurisdiction, since the bank is located US courts may lack jurisdiction, since the bank is located

out of the Cayman Islands, the domain owner is a foreign out of the Cayman Islands, the domain owner is a foreign citizen, and the Defendants may not have sufficient CA citizen, and the Defendants may not have sufficient CA contacts.contacts.

Important First Amendment issues are at stake. Important First Amendment issues are at stake. The Judge’s prior orders proved ineffective. The orders The Judge’s prior orders proved ineffective. The orders

ironically led to even more dissemination of the documents ironically led to even more dissemination of the documents at issue, as public interest increased after Judge White’s at issue, as public interest increased after Judge White’s controversial ruling.controversial ruling.

Viacom Int’l, Inc, v. YouTube, Inc. and Viacom Int’l, Inc, v. YouTube, Inc. and Google, Inc.Google, Inc.Case No.: 1:07-cv-02103LLS (S.D.N.Y. July 2, 2008)Case No.: 1:07-cv-02103LLS (S.D.N.Y. July 2, 2008)

Federal Judge Stanton has ordered Federal Judge Stanton has ordered Google to turn over a database linking Google to turn over a database linking info about users of YouTube with every info about users of YouTube with every clip watched by its users, to Viacom, to clip watched by its users, to Viacom, to aid in a pending $1 billion copyright aid in a pending $1 billion copyright infringement suit.infringement suit.The court asserted that Google could “cite no The court asserted that Google could “cite no

authority barring them from disclosing such authority barring them from disclosing such information in civil discovery proceedings, information in civil discovery proceedings, and their privacy concerns are speculative.”and their privacy concerns are speculative.”

Viacom v. GoogleViacom v. Google, cont…, cont… The Court order raises concerns regarding The Court order raises concerns regarding

privacy rights and has millions of users worried privacy rights and has millions of users worried that their viewing habits will be exposed. that their viewing habits will be exposed. Update: Viacom and copyright holders have agreed Update: Viacom and copyright holders have agreed

to allow Google to mask the users’ identities. Under to allow Google to mask the users’ identities. Under the Agreement, YouTube can swap the user logins the Agreement, YouTube can swap the user logins and IP addresses with other, presumably and IP addresses with other, presumably anonymous signifiers. anonymous signifiers.

Google believes the court’s ruling is violative of Google believes the court’s ruling is violative of the Privacy Protection Act, 18 U.S.C. the Privacy Protection Act, 18 U.S.C. § 2710, § 2710, which aims to protect the video rental records which aims to protect the video rental records of individuals. The Act provides a civil cause of of individuals. The Act provides a civil cause of action against the releasing party, but since action against the releasing party, but since this release was court ordered, liability may not this release was court ordered, liability may not apply.apply.

Warshak v. U.S., Warshak v. U.S., __F.3d ___, 2008 WL __F.3d ___, 2008 WL 2698177 (6th Cir. 2008) [Not in 2698177 (6th Cir. 2008) [Not in Written Materials]Written Materials]

In a 9-5 vote, an In a 9-5 vote, an en bancen banc panel of the 6th Circuit reversed panel of the 6th Circuit reversed the district court’s injunction against Stored the district court’s injunction against Stored Communications Act (“SCA”), 18 U.S.C. 2703(d) for lack of Communications Act (“SCA”), 18 U.S.C. 2703(d) for lack of ripeness.ripeness. District Court held that the Govt’s compelled disclosures of plaintiff’s District Court held that the Govt’s compelled disclosures of plaintiff’s

emails without probable cause violated the 4th Amendment. emails without probable cause violated the 4th Amendment. The primary issues were whether the Gov’t should be enjoined from The primary issues were whether the Gov’t should be enjoined from

conducting future conducting future ex parteex parte searches of a criminal suspect’s emails searches of a criminal suspect’s emails and whether such a search would violated the 4th Amendment. and whether such a search would violated the 4th Amendment.

The District Court had ruled that the plaintiff would likely succeed on The District Court had ruled that the plaintiff would likely succeed on his claims since Internet users have a reasonable expectation of his claims since Internet users have a reasonable expectation of privacy in emails, and that court orders based on anything less than privacy in emails, and that court orders based on anything less than probable cause were insufficient to justify a search of emails.probable cause were insufficient to justify a search of emails.

Government refused to agree not to use the procedure in the future.Government refused to agree not to use the procedure in the future. next next

Warshak v. U.S., Warshak v. U.S., cont…cont… The Court majority ruled that the issue The Court majority ruled that the issue

was not ripe for adjudication since the was not ripe for adjudication since the Plaintiff had already been indicted and Plaintiff had already been indicted and convicted of the various offenses, and it convicted of the various offenses, and it was uncertain if and how the issue would was uncertain if and how the issue would arise in the future.arise in the future.

The Court argued that a key feature of ESA The Court argued that a key feature of ESA searches is “prior notice” which he was searches is “prior notice” which he was given by the Indictment and conviction. given by the Indictment and conviction.

The dissent focused on the ongoing The dissent focused on the ongoing degradation of civil rights and the degradation of civil rights and the unwarranted deferential treatment to the unwarranted deferential treatment to the government in its surveillance activity.government in its surveillance activity.

U.S. v. Wilcox,U.S. v. Wilcox, (Crim.App.No.: (Crim.App.No.: 200000876 – July 15, 2008) [Not in 200000876 – July 15, 2008) [Not in Written Materials]Written Materials]

The U.S. Court of Appeals for the Armed Forces ruled The U.S. Court of Appeals for the Armed Forces ruled in a 4-1 vote that PFC Jeremy Wilcox could not be in a 4-1 vote that PFC Jeremy Wilcox could not be court-martialed and subject to criminal charges for his court-martialed and subject to criminal charges for his espousal of racist views in an Internet profile.espousal of racist views in an Internet profile. Military personnel do not have the same free speech rights as Military personnel do not have the same free speech rights as

civilians – the speech must be weighed against the sizeable civilians – the speech must be weighed against the sizeable deference accorded military interests.deference accorded military interests.

The court still found that Wilcox’s statements The court still found that Wilcox’s statements constituted protected speech and that Wilcox constituted protected speech and that Wilcox intended his statements be made to a like-minded intended his statements be made to a like-minded civilian friend and not to fellow soldiers. (On the civilian friend and not to fellow soldiers. (On the Internet?? Ok.) The govt. failed to introduce evidence Internet?? Ok.) The govt. failed to introduce evidence of any negative impact on others. of any negative impact on others. The defense was also able to show that Wilcox had good The defense was also able to show that Wilcox had good

working relationships with minorities within his unit and there working relationships with minorities within his unit and there was no evidence that his racist views adversely affected his was no evidence that his racist views adversely affected his performance.performance.

DEFAMATION CASESDEFAMATION CASES

Doninger v. Niehoff,Doninger v. Niehoff,527 F.3d 41 C.A.2 (2d Cir. May 29, 527 F.3d 41 C.A.2 (2d Cir. May 29, 2008)2008)

Parents of a high school student sued the Parents of a high school student sued the school principal and district alleging violation of school principal and district alleging violation of the student’s First Amendment rights after she the student’s First Amendment rights after she was not allowed to run for Student Government was not allowed to run for Student Government because of a blog posting.because of a blog posting. The student encouraged other students to mass The student encouraged other students to mass

email and call the school principal demanding a email and call the school principal demanding a school event be held. When the event was school event be held. When the event was cancelled, the student posted a blog calling school cancelled, the student posted a blog calling school officials “douche bags.”officials “douche bags.”

The school subsequently blocked the student The school subsequently blocked the student from running for a student gov’t position. from running for a student gov’t position. When she won as a write-in, the school blocked When she won as a write-in, the school blocked her from taking the position.her from taking the position.

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Doninger v. Niehoff, Doninger v. Niehoff, cont…cont… The student’s mother filed a Complaint with the District The student’s mother filed a Complaint with the District

Court alleging violations of her daughter’s First Court alleging violations of her daughter’s First Amendment rights, due process and equal protection Amendment rights, due process and equal protection under the 14th Amendment. Damages and an under the 14th Amendment. Damages and an injunction were sought.injunction were sought.

The Court ruled the Complaint failed to demonstrate a The Court ruled the Complaint failed to demonstrate a sufficient likelihood of success on the merits. The sufficient likelihood of success on the merits. The Second Circuit affirmed the denial of the injunction.Second Circuit affirmed the denial of the injunction.

The constitutional rights of students in public schools The constitutional rights of students in public schools are not coextensive with the rights of adults.are not coextensive with the rights of adults. School administrators may prohibit student expression if it is School administrators may prohibit student expression if it is

disruptive, vulgar or offensive speech. disruptive, vulgar or offensive speech. NoteNote: This case is representative of an increasing trend : This case is representative of an increasing trend

in the courts substantially diluting the speech-in the courts substantially diluting the speech-protective scope of protective scope of Tinker’sTinker’s “material disruption” test, “material disruption” test, even when that disruption is taking place off campus, even when that disruption is taking place off campus, occurring on the Internet. Remember the occurring on the Internet. Remember the Bong Hits 4 Bong Hits 4 JesusJesus case? case?

Evans v. Evans,Evans v. Evans,162 Cal.App.4th 1157, 76 Cal.Rptr.3d 859 162 Cal.App.4th 1157, 76 Cal.Rptr.3d 859 (Cal.App.4th Dist. May 12, 2008)(Cal.App.4th Dist. May 12, 2008)

A sheriff sued his former wife and mother-in-A sheriff sued his former wife and mother-in-law alleging harassment, defamation and law alleging harassment, defamation and invasion of privacy. The court granted a invasion of privacy. The court granted a preliminary injunction barring the respondents preliminary injunction barring the respondents from continuing any harassing behavior. from continuing any harassing behavior.

The injunction was reversed and remanded as The injunction was reversed and remanded as overbroad and an unconstitutional prior overbroad and an unconstitutional prior restraint on speech:restraint on speech: The injunction was unconstitutionally vague in that The injunction was unconstitutionally vague in that

it failed to clearly define the persons protected and it failed to clearly define the persons protected and the conduct it prohibited.the conduct it prohibited.

The injunction was determined unconstitutional The injunction was determined unconstitutional prior restraint because there was no trial and no prior restraint because there was no trial and no determination on the merits that any of the determination on the merits that any of the respondents’ statements were, in fact, defamatory.respondents’ statements were, in fact, defamatory.

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Evans v. Evans, Evans v. Evans, cont…cont…

Practice Pointer:Practice Pointer: Generally, any injunction Generally, any injunction prohibiting future speech based on allegations prohibiting future speech based on allegations of defamation will be considered an of defamation will be considered an unconstitutional prior restraint, and sanctions unconstitutional prior restraint, and sanctions have been imposed on attorneys for even have been imposed on attorneys for even requesting such relief. Only speech found to be requesting such relief. Only speech found to be defamatory on the merits can be enjoined. defamatory on the merits can be enjoined. Often plaintiffs will seek to prohibit all Often plaintiffs will seek to prohibit all comments or criticism by the defendant, when comments or criticism by the defendant, when any statements have been found to be any statements have been found to be defamatory, which will likely be found to be a defamatory, which will likely be found to be a prior restraint. prior restraint.

Ending QuoteEnding Quote

"Free speech not only lives, it rocks!" -Oprah Winfrey