Viewing post categorized under: Computing



February 7 / Blogs, Computing, Other Intellectual Property, Technology

Selfies in Court: Snapchat as Admissible Evidence

Abstract: Social media is now a widely accepted and important medium of evidence in court. Yet Snapchat, a new and popular image messaging app among the youngest generation of smartphone users threatens to upend the field of social media evidence. Snapchat is unique among social media platforms because it functions to avoid permanence. Such is the appeal to today’s teenagers: a normal “snap” (a picture or video captured through the app) can only be viewed for a maximum of ten seconds before it deletes. Users may also choose to upload a snap to their “Story,” which posts the picture or video for all their contacts to view multiple times within a twenty-four hour period. The deleting function unique to Snapchat presents inherent difficulty in saving images taken through the app. In fact, recipients of snaps are left with only one method of saving the images they see: the “screenshot.” A screenshot is a smartphone function not related to Snapchat which captures what the viewer sees on their phone screen at that moment and can be saved. While it has been these screenshots which have allowed Snapchat to enter the world of admissible evidence, it is now use of the app itself as evidence which have signaled courts’ acceptance of Snapchat and its greater value to justice in the near future.

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February 6 / Blogs, Computing, Copyright

YouTube’s ContentID Copyright Infringement Flagging System

Abstract: The idiosyncrasy of the Internet often invites colorful analogies in its description: high seas and piracy, Wild West and lawless frontier. This is not undeserved; despite great strides over the course of its development, the Internet remains unexamined and unregulated in many ways, and the regulations that do exist are largely self-governed. Copyright law in particular has proven contentious for lawmakers who are forced to balance digital rights management on a massive scale with the rights of end users. Nowhere is this conflict more apparent than in the practices of the video-sharing juggernaut YouTube.

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March 31 / Blogs, Computing, Trade Secret

The Growing Concern Regarding US Corporate Trade Secrets

Abstract: Globalization has produced many benefits for United States corporations, but a significant detraction has been the emergence of trade secret theft. As technology advances, trade secret theft has become an even more persistent threat in the general marketplace. There are various ways trade secret theft can occur, but it is increasingly common for the theft to involve cyberspace, especially as these corporations expand into foreign markets. Consequently, Congress has taken a significant interest in curbing trade secret theft, as is evidenced by the various proposals before them today. These proposals offer varying solutions to trade secret theft, which range from creating a private cause of action in federal courts to specifically targeting foreign entities and governments engaged in cyber espionage, such as China. Before analyzing a number of current proposals, it is necessary to define trade secrets and understand their current legal status in the intellectual property landscape.

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November 25 / Blogs, Computing, Technology

Obama’s Broadband Plan

Abstract: This January, President Barack Obama announced a federal government initiative to expand broadband infrastructure. Given the widespread use of technology in today’s society, the President believes that broadband access is an essential piece of infrastructure that needs improvement.

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November 12 / All Articles, Blogs, Computing

The Trans-Pacific Partnership on Internet Service Providers: Notice, Counter-Notice, and Liability Limitations

Abstract: With the recent release of the Trans Pacific Partnership (TPP) intellectual property chapters, jurists and pundits have quickly begun to comb through the
language and pick apart the intriguing and possibly soon-to-be influential document. While many have focused on this document’s proposed changes to the way copyright holders and infringers interact with their governments, each other, and each other’s governments, it is very important to stop and try to understand the changes that are more ground level. More specifically, it is worthwhile to take a close look at the proposed changes in how copyright holders and infringers interact with Internet Service Providers (ISPs), as this interaction and the legal responsibilities ISPs have during this interaction will mostly define how the average citizen in TPP member states will experience the effects of the document.

Thankfully, ISP responsibilities regarding IP infringement does not seem to span many chapters, but rather are contained to their own sections labeled quite clearly. The system envisioned by the TPP is one of notice and counter-notice, where the ultimate end for an ISP is to gain limitations on liability (monetary or otherwise) as well as other non-defined incentives. The treaty notably states that not qualifying for liability limitation under the TPP does not per se mean they are in a liable position. It points out that the TPP section in question is “without prejudice” to any current limitations in liability for intellectual property infringement, and thus does not displace those exemptions, but rather sit beside and provide other avenues to liability exemptions.

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April 13 / Computing

Net Neutrality Rules: Title II and its Implications

By: Alexa Esposito 

 

Introduction:

On February 26th, the Federal Communications Commission (“FCC”) voted to regulate broadband Internet service as a public utility, proposing a series of “strong, sustainable rules” intended to protect the Open Internet from the threats of broadband Internet Service Providers’ (“ISPs”) economic incentives.

The new rules proposed by the FCC prohibit ISPs from (1) blocking content, (2) throttling or impeding Internet traffic, and (3) offering faster Internet services to those who can afford such services and slower Internet services to everyone else.[1] The FCC also imposes a new standard for future conduct of ISPs, mandating against unreasonable interferences and practices that would inhibit either (1) the ability of consumers to select and use services or devices of their choice or (2) the ability of edge providers, such as website and application developers, to make lawful content, services, applications or devices available to consumers.[2] Through these prohibitions and new standards for ISP conduct, the FCC seeks to ensure that America’s broadband networks be fair, fast, and open today and in the future.[3]

As the bedrock of its authority to regulate the Internet in this manner, the FCC primarily cites Sections 201 and 202 of Title II of the Communications Act. Although Title II was once seen as precluding broadband Internet, the FCC notes that Title II is very much applicable to the present status of broadband Internet service access as a transmission platform. The remainder of this article will be dedicated to examining the core provisions of Title II of the Communications Act, Sections 201 and 202; how these sections give rise to the FCC’s power to regulate the Open Internet; and the implications of this regulatory power.

 

Regulatory Power under Title II and its Implications:

Title II of the Communications Act, enacted in 1934, gave the FCC the power to regulate interstate and foreign commerce in communication by radio and wire and make available a “rapid, efficient, Nationwide and world-wide radio communication service” to all Americans.[4] Sections 201 and 202 are at the core of the FCC’s order. Section 201 requires that common carriers engaged in interstate or foreign communication by wire or radio must furnish such services “upon reasonable request therefor” and in accordance with the public interest. They must also charge reasonable rates and charges for such services.[5] The second core section of Title II to the FCC’s order is Section 202, which makes unreasonably discriminatory rates, services, or any other discriminatory practices in relation to the communication service unlawful.[6]

The FCC has decided to reclassify ISPs as common carriers and the broadband Internet access services they provide as telecommunications services under Title II in light of two factors: (1) The Internet is presently used as a transmission platform for third-party content and services like other traditional Title II utilities such as the radio, and (2.) ISPs, now more than ever, have economic incentives that may impede the speed and equality of the Internet services provided to consumers.[7] By reclassifying the broadband Internet access providers as common carriers and the Internet services they provide as telecommunications services under Title II, the FCC has broader regulatory power to ensure that the Internet is open, fair, and in accordance with the “public interest”.

What is unclear right now is at what cost the FCC’s broader regulatory power to promote fair and fast Internet services will come. Will the FCC also regulate the rates at which Internet services can be charged and thus define what is considered a “reasonable” rate for Internet services under Title II? This seems likely in light of the fact that the FCC makes a point to note what rate-regulation will not be. The FCC states that the Order will not apply outdated, utility-style rate regulation under Title II to the regulation of the Open Internet in the 21st century but stops short of indicating what kind of rate regulation will be applied.[8] Therefore, how great of an economic burden the FCC’s broader regulatory power will impose on ISPs and how much of this burden will be transferred to consumers through higher service prices remains to be seen.

 


 

[1] Press Release, Federal Communications Commission, FCC Adopts Strong, Sustainable Rules to Protect the Open Internet (Feb. 26, 2015); Rebecca R. Ruiz and Steve Lohr, FCC Approves Net Neutrality Rules, Classifying Broadband Internet Service as a Utility, N.Y. Times (Feb. 26, 2015), http://www.nytimes.com/2015/02/27/technology/net-neutrality-fcc-vote-internet-utility.html?_r=1.

[2] Press Release, Federal Communications Commission, FCC Adopts Strong, Sustainable Rules to Protect the Open Internet (Feb. 26, 2015).

[3] See id.

[4] See 47 U.S.C. § 151(a).

[5] According to 47 U.S.C. § 153(11), the term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

[6] See 47 U.S.C. § 202(a).

[7] Federal Communications Commission, supra note 1.

[8] See id.

April 8 / Computing

Is the Electronic Communications Privacy Act Constitutional: Fourth Amendment Concerns

By: Matthew Lumpkin

 

History and Introduction:

Interpretation of the Fourth Amendment, which protects against unreasonable searches and seizures,[1] was relatively straightforward with regard to communication when a citizen’s only concern was with the Government intercepting their correspondences sent via post.[2] Since then, Courts have struggled to properly interpret the Fourth Amendment with respect to modern forms of communication. The Government inevitably seems to find ways to monitor these new forms of communication but laws limiting such government intervention lag behind the fast-moving technology.

The Wiretapping Act of 1968, which dealt primarily with the warrantless interception of communications via telephone became quickly outdated as computers became more prevalent.[3] In order to respond to the woefully outdated nature of the Wiretapping Act, the Office of Technological Advancements released a report calling for new legislation that would properly address the new forms of electronic communication. In 1986, Senators Leahy and Mathias introduced the Electronic Communications Privacy Act (“ECPA”), which was designed to clarify the standards for the obtainment of electronic records and communications while protecting the privacy rights of users.[4] The ECPA is composed of three titles: the Wiretapping Act,[5] the Stored Communications Act (“SCA”),[6] and the Pen Register Statute.[7]

The Wiretapping Act and the Pen Register Statute are not without their faults, but the more controversial part of the ECPA is the SCA. The SCA deals with stored electronic communications of any kind. It divides computer services into electronic communication services (“ECS”) and remote computing services (“RCS”).[8]  In order to access ECS, the Government must receive a search warrant based on probable cause for communications that are 180 days old or fewer.[9] For communications that are more than 180 days old, then the Government need only obtain a subpoena or a court order with a burden of proof that is less than probable cause.[10] This 180-day cutoff is based on the fact that the storage of electronic communications was extremely expensive when the ECPA was first enacted almost 30 years ago.[11] The Government does not need a warrant to access RCS.[12]

 

The Fourth Amendment and the SCA: A Delicate Dance:

There are multiple concerns that the SCA cannot be squared with the Fourth Amendment. First, the 180-day cutoff seems arbitrary.[13] An email does not lose its importance or privity on day 181 such that it no longer deserves constitutional protection. Courts have not addressed the concerns raised by this arbitrary number. They instead choose to rely on the reasonable expectation standard, which asks whether or not the plaintiff had a reasonable expectation of privacy with regards to the communication.[14] Other courts simply suggest that the defendant, whose communications were taken without warrant or probable cause, should seek the exclusionary remedy,[15] which is when a defendant would argue that the evidence obtained by the search should not be admitted in court. Illinois v. Krull made it clear that the exclusionary remedy is unsatisfactory. There, the court created a good faith exception to the exclusionary remedy when law enforcement officials are laboring under a constitutionally questionable statute while they commit the search and seizure in question, which practically rules out such a remedy.[16] The Fourth Circuit en banc suggested that if the exclusionary rule is not a viable remedy, then the plaintiff can attempt to bring a Bivens action, suing the Government. However, as the defendant in this case rightly points out, it is unlikely that many plaintiffs will succeed in such an action.[17]

Another concern regards the scope of the search and seizure. The Fourth Amendment requires a warrant that is particular as to what will be searched and possibly seized.[18] Without requiring a warrant, which the SCA does not for RCS or for ECS communications which are 181 days or older, it is nearly impossible to ensure particularity. It seems that any communication is fair game.[19] This gaping loophole lays in stark contrast to the Wiretapping Act, which proposed minimizing intrusion, by allowing law enforcement officials to listen only to conversations related to the investigation.[20]

In addition to the Government accessing all of the communications they want, they also have a 90-day window within which they have to inform someone that the Government is obtaining their electronic communications. Essentially, the Government can read someone’s personal and secretive communications for 90 days without that person being the wiser.[21] The requirements for obtaining this privilege of monitoring are that notifying the suspect creates the risk of: “(A) endangering the life or physical safety of an individual; (B) flight from prosecution;  (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.”[22] It would seem that all criminal investigations meet at least one of these standards.

Despite these concerns, the Supreme Court is yet to take a case that addresses the constitutionality of the SCA. The lower courts that address these concerns, address them through an opaque lens that is warped either by judicial deference to the Legislature, or by the reasonable expectation standard.[23] It is a delicate dance, and no one wants to step on anyone else’s toes.

 

Proposed Reforms And Critique:

Not all is doom and gloom. Senators Leahy and Lee have introduced a bill with possible reforms to the SCA. The third section of the proposed bill eliminates the 180-day cutoff all together and requires a search warrant based on probable cause for all searches and seizures from both ECS and RCS. This section also states that the Government must provide notice to the suspect and a copy of the search warrant within 10 business days for a law enforcement agency, and three for other agencies, with exceptions laid out in section four.

Section four deals with delayed notice. It states that the Government can obtain a court order delaying notification for up to 180 days if it is a law enforcement agency and 90 days if it is another type of agency. The court may tack on 180-day or 90-day periods with subsequent court orders.

The final reform proposed in the bill is listed in section five and it suggests that the Government Accountability Office—the “watchdog” of Congress—do an evaluation. This evaluation would take a look at various data: how often law enforcement relied on SCA to obtain electronic communications, the average length of time it takes for a service provider to comply with requests, the number of times a warrant was used to obtain the information, and how often notice was delayed. This section also asks the Comptroller General to monitor whether or not the new warrant requirement has had any effects.[24]

Although these reforms do touch on some critical points of controversy, such as the warrant requirement, the scope issue, and the ECS-RCS distinction, there is room still for further changes to the SCA. The notice requirement has not been amended to correctly mirror notions of fairness. Third-party service providers have to notify the Government three business days before they inform the consumer, if they decide they’d like to inform the consumer in the first place, of Government monitoring. This allows the Government enough time to go back to the judge they got the original court order from, and get another one extending the period of delay in notice. The reforms also extend the amount of time the Government can delay providing notice, and so by stacking court orders a user could be spied on for a year (two court orders) before they even knew that there communications were being monitored.

The SCA still has a ways to go before it accurately mirrors the technological landscape and the concepts of fairness and privacy that flow through the fabric of modern society. One wonders when the delicate dance will end. Will the Supreme Court finally decide the constitutionality of the Act, or will the reforms come to pass so that the difficult question does not have to be answered? Some commentators suggest that the entire SCA should be repealed and then new legislation that fits more with society as it is, not as it once was and that can be reconciled with the Constitution should be enacted. With technology advancing so much faster than the Legislature passes reforms, while the Judiciary continues to sidestep, one wonders whether or not the SCA can survive another three decades before it must be reformed again. The answer seems to be, probably not.

 


 

[1] U.S. Const. amend. IV.

[2] See Generally Ex parte Jackson, 96 U.S. 727 (1877)

[3] United States v. Seidliz, 589 F.2d 152, 157-58 (holding that former employee of government agency who was deemed a spy could not rely on Wiretapping Act because electronic communications were not aural and stored ones were not being transmitted).

[4] Electronic Communications Privacy Amendments Act of 2013, S.R. 113-34, 113th Cong.

[5] 18 U.S.C. §§2510-22.

[6] Id. at §§ 2701-12.

[7] Id. at §§ 3121-27.

[8] Id. at §§ 2703(b)(1) and (2)

[9] Id. at §§ 2703(a)

[10] Id. at §§2703(d)

[11] Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373, 391 (2014)

[12] See 18 U.S.C. §§ 2703(b)(1)(B)(ii)

[13] See Alexander Scolnik, Protections for Electronic Communications: The Store Communications Act and the Fourth Amendment, Fordham L. Rev. 349, 377 (2009) (suggesting that 180 day cutoff is based on outdated understanding of email usage).

[14] See Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring).

[15] Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc)

[16]See 480 U.S. 340, 349-353

[17] Warkshak, 532 F.3d at 532. The court admits that Bivens claims may not settle constitutional validity inquiry (Citing Scott v. Harris, 550 U.S. 372, 378 (2007)).

[18] US. Const. amend. IV.

[19] See 18 U.S.C. §2702(c). Vaguely referencing the divulging of “a record or other information”.

[20] Kerr supra note 11, at 383.

[21] 18 U.S.C. §§2705(d)

[22] Id. at §2705(a)(2)

[23] See generally Warshak v. United States, 532 F.3d 521(Martin, J., dissenting).

[24] See generally Electronic Communications Privacy Amendments Act of 2013, S.R. 113-34, 113th Cong. p. 8-9

April 1 / Computing

What does SCOTUS think of Online Threats?

What does SCOTUS think of online threats?: Predictions for US v. Elonis

By: Andrea Clavijo

Four years ago, thirty-one year old Anthony Elonis posted seemingly threatening content on Facebook about his wife, Tara, who had just left him. A self-proclaimed aspiring rap artist, Elonis’ posts detailed the pain he wished to inflict upon his estranged wife. In his defense, he maintained the posts were some of his original lyrics and that “venting” about his problems helped him to feel better.[1] Additionally, he asserted a First Amendment right to share his lyrics on social media in the first place.

Elonis’ estranged wife obtained a restraining order against him, but the posts continued. Both the District Court for the Eastern District of Pennsylvania and the Court of Appeals for the Third Circuit affirmed his conviction under federal law, which made it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”[2] The Supreme Court granted review on June 16, 2014 on the questions of (1) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant’s subjective intent to threaten, and (2) whether, by virtue of the First Amendment, proof of a defendant’s subjective intent to threaten is required for conviction under Section 875(c).

Virginia v. Black tells us that the First Amendment protections do not extend to speech amounting to “true threats.”[3] True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.[4] The issue before the Court therefore hinges on how a factfinder should determine what kind of statements qualify as “true threats” – and, specifically, whether Elonis’ Facebook posts fall into that category.

Currently, the federal circuit courts of appeals are split as to the correct mens rea requirement necessary to prove a violation of the federal threat statute.[5] A majority of those courts require an objective test to determine true threats.[6] The objective test asks whether the average reasonable person would interpret the statement as reflecting a serious intent to harm someone.[7] Other courts add a subjective inquiry into the analysis of true threats.[8] The subjective test looks into the mind of the speaker to determine whether or not he personally intended to threaten anyone.

The Supreme Court of the United States will finally be settling this disagreement among the circuit courts. On December 1, 2014, the Supreme Court heard oral arguments. For the government, Deputy Solicitor General Michael Dreeben advocated for the objective test. Counsel for Elonis, John Elwood, instead argued in favor of the subjective test.

How will the court rule?

The Court will likely settle Elonis’ case with either criminal law or First Amendment lenses. It could statutorily evaluate the Model Penal Code to find whether or not Elonis is guilty, thereby avoiding the “true threats” confusion entirely. Or, the more likely avenue, the Court could resolve this under First Amendment jurisprudence. While an opinion in this case will not be published for a few more months, we can look to patterns and dialogue from the oral arguments to predict how each justice on the Court will likely vote. The entire transcript of the oral argument can be found here.[9]

Chief Justice Roberts: During oral argument, Roberts challenged the government’s theory, asking to consider the demographics of the “listeners” to an Internet rant. He notes that the definition of an “average reasonable person” differs across social media accounts because some users have a wide range of “friends” whereas others have a more narrow set. (33). Accordingly, the “friend” list of one user could react vastly different to a particular post from the “friend” list of another – so where is the line drawn? He also expressed particular concern about protecting the free speech rights of rap artists, and questioned whether an objective test would threaten the lyrical style of rap music, chilling creative expression by exposing artists to liability. (40). Given CJ Roberts’ mindfulness of the complicated diversity of audiences, I think he will be more in favor of a subjective test that will limit the number of speakers at risk of liability.

Justice Kennedy: From the beginning, Kennedy made clear that the term “true threats” is too vague for his liking. (4). Seeming to appreciate a more structured approach, I think he will vote in favor of the subjective test. Kennedy is a strong advocate of the “marketplace of ideas” (after all, he wrote the majority opinion for Citizens United), so I can see him agreeing with Roberts that a subjective test will be more protective of inculpable artists and free speech interests at large.[10]

Justice Ginsburg: More than providing answers, Ginsburg pressed Elwood over and over again about how exactly one can prove a genuine threat in the mind of another. (5).  She seemed skeptical of a subjective test and the hurdle to meet it – having asked Elwood three different times how to prove such a thing – so I suspect she will vote in favor of the government’s objective approach. (4, 5, 19).

Justice Breyer: If anyone is going to advocate for deciding this case on a statutory basis rather than on First Amendment doctrine, it will be Breyer.[11]  He questioned Elwood matter-of-factly on why the Model Penal Code could not decide the case. (12). Later, he was even more overt when he told Dreeben to “drop the First Amendment analysis” and view the issue from the standpoint of “hornbook criminal law.” (37). In brief, he seemed to take the position that Elonis’ status should be determined by demonstrating whether he had knowledge of the elements for the crime he was convicted for – transmitting in commerce a threat. As such, if Elonis did not know those elements, then he is “home free”. (12). I predict Breyer will write his own minority opinion – I don’t expect he’ll be able to convince four other justices to also drop the First Amendment analysis. As such, he’ll likely write specifically as to why it should have been determined narrowly under criminal law.

Justice Scalia: Arguably, Scalia’s biggest contribution to this oral argument came from a creative hypothetical he posed to Elwood – can a friend who warns a wife about how her husband wants to kill her be held liable for this same federal offense under the subjective test? As Scalia explained, if he adopted Elwood’s approach, the friend issuing the warning could be held liable for knowing that the information he communicated to the wife would reasonably put her in fear, even if he isn’t the one intending to kill her. (21). Scalia drove home the point that the purpose of the communication is critical. Near the end of the arguments, Scalia remarked that the speech in question is of “low value anyways.” (49). I think Scalia is unconvinced this speech deserves the extra protection a subjective test would create and will thus vote in favor of an objective test.

Justice Alito: The moral crusader among the justices focused his inquiry on congressional intent. (23) In contrast to Breyer, Alito questioned why mens rea is of any relevance to the issue at hand. (55). Instead, he is troubled by those who might fall victim to these Internet rants, particularly domestic violence victims. (60). He sounded almost disgusted with Elwood’s suggested subjective approach, calling it a “roadmap for threatening a spouse and getting away with it.” (59). Again, he placed more importance on the risk of a listener feeling harmed than he does on the risk of a speaker feeling curtailed – concerned that simply labeling oneself an “aspiring rap artist” could free one from prosecution. (59). I have no doubt Alito would strongly dissent from a majority that supports the subjective requirement (probably along with Scalia) and argue that this is bad speech that is harmful and objectively unworthy of First Amendment protection, a position similar to those he took in Snyder v. Phelps and United States v. Stevens.[12]

Justice Sotomayor: To date, Sotomayor hasn’t written much about First Amendment issues. However, based on her comments during oral arguments, she seemed averse to carving out a special rule for Elonis’ posts. She equated the government’s arguments to “quarreling” – taking issue that the government disagreed with defining a true threat as “when you intend to put another person in fear or that you know your words will cause a reasonable person to feel fear.” (31). She continued by explicitly stating that “[the Court has] been loathe to create more exceptions to the First Amendment.” As such, I anticipate her advocating for the continued deciding of First Amendment issues on a case-by-case basis rather than adding another category of unprotected speech. In fact, this view is summed up nicely on an article published by the First Amendment Center which describes Sotomayor as someone “more concerned with context than with concepts, more attentive to discerning facts than with announcing new doctrine, and one who is more focused on applying law than developing it.”[13]

Justice Kagan: From the beginning of oral arguments, we heard Kagan’s enthusiasm for finding middle ground to establish a clear standard. (9). She posed different solutions: using a recklessness standard (9), adopting the same test as fighting words (25), or even implementing buffer zones (46). Kagan’s hybrid approach seemed to suggest that a recklessness standard “would create a kind of ‘buffer zone’ that would provide more protection for speech than the government’s proposed rule, but at the same time would presumably avoid the kind of inquiry into the speaker’s subjective intent that Elonis would require.”[14] As such, I anticipate Kagan will, like Breyer, write a separate opinion advocating her new standard.

Overall, the justices themselves appear just as split as the circuit courts do. Should the Supreme Court follow the majority view of the circuits and adopt the objective test, a defendant could be found guilty of communicating a true threat even if he didn’t intend to communicate so. Someone who jokes or raps about a threat would be subject to liability if a reasonable person receiving the communication would understand those words to be threatening.

 


 

[1] Amy Howe, Drawing a line between therapy and threats: In Plain English, SCOTUSblog (Nov. 24, 2014, 3:31 PM), http://www.scotusblog.com/2014/11/drawing-a-line-between-therapy-and-threats-in-plain-english/

[2] Lyle Denniston, Argument preview: Social media as a crime scene,SCOTUSblog (Nov. 29, 2014, 12:03 AM), http://www.scotusblog.com/2014/11/argument-preview-the-social-media-as-a-crime-scene/

[3] Virginia v. Black, 538 U.S. 343, 359 (2003)

[4] Id.

[5] Paul Larkin and Jordan Richardson, True Threats and the Limits of First Amendment Protection, The Heritage Foundation (Dec. 8, 2014), http://www.heritage.org/research/reports/2014/12/true-threats-and-the-limits-of-first-amendment-protection – _ftn6

[6] See United States v. Hart, 457 F.2d 1087, 1091 (10th Cir. 1972)

[7] Amy Howe, Court difficult to read on Facebook threats: In Plain English, SCOTUSblog (Dec. 1, 2014, 6:57 PM), http://www.scotusblog.com/2014/12/court-difficult-to-read-on-facebook-threats-in-plain-english/

[8] See United States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005)

[9] References to specific page numbers of the oral argument transcript are listed in parentheses.

[10] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 316 (2010)

[11] Lyle Denniston, Argument analysis: Taking ownership of an Internet rant, SCOTUSblog (Dec. 1, 2014, 2:13 PM), http://www.scotusblog.com/2014/12/argument-analysis-taking-ownership-of-an-internet-rant/

[12] Snyder v. Phelps, 562 U.S. 443 (2011); United States v. Stevens, 559 U.S. 460, 482 (2010)

[13] http://www.firstamendmentcenter.org/true-threats

[14] Amy Howe, Court difficult to read on Facebook threats: In Plain English, SCOTUSblog (Dec. 1, 2014, 6:57 PM), http://www.scotusblog.com/2014/12/court-difficult-to-read-on-facebook-threats-in-plain-english/

March 25 / Computing, Other Intellectual Property

Can We Really Have a Right to be Forgotten?

In May 13, 2014 the Court of Justice of the European Union (ECJ) held in Google Spain v. Agencia Española de Protección de Datos that search engines must consider requests from individuals to remove links that reference the name of the requesting individual.[1] Across the Atlantic, just a year before, the California legislature passed SB 568.[2] In its own words, the bill grants “privacy rights to California minors in the digital world.[3] In doing so, California became the first American state to require website operators to allow minors to remove information that they had previously posted to a website.[4] Together, these developments represent a movement toward recognition of the right to erase personal information from the Internet – more widely known as the “right to be forgotten.”  The recognition of these rights is controversial; it has not been, and perhaps could not be, universal. American freedom of speech jurisprudence, for example, is especially strong and could be fatal to domestic establishment of a similar right.

This tradition, however, has not deterred California from enacting its own right to be forgotten, albeit abridged and targeted towards minors. SB 568, dubbed the “eraser law” by the media, reflects California’s status as a leader in data privacy law.[5]  Section 22581(a)(1) stipulates that website operators shall “permit [minors] to remove or request and obtain removal of content or information posted on the [website]”, as well as provide notice of such ability and clear instruction on how to do so.[6] Section 22581(b)(1)-(5) lists exceptions- most importantly, for information that is required by federal or state law to be disclosed, content posted by third parties on such websites, information that is anonymized, and for minors that are compensated for the content they pose.[7]

Domestic U.S. groups including the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) have been critical of both the Google Spain v. AEPD ruling and SB 568.[8] Citing concerns ranging from implementation and practicality to structural and rights-based issues, these criticisms highlight the complex nature of the discussion on digital rights – an area in which practicality, in both pragmatically and technically, intertwine with conceptual rights. However, complexity should not deter an important discussion. The advent of practices such as doxxing (the broadcasting of personal identifiable information about individuals), cyber-bullying, cyber-stalking, and other attacks unique to the data on the Internet have given rise to this discussion. Consequently, we must ask whether the “right to be forgotten” is the right solution to these problems.

Broadly, the issue with the right to be forgotten is that it is essentially a limit on the corner stone human right to freedom of expression.[9] Of course, this is not an absolute right: even the exceptionally strong American tradition, stemming from the First Amendment, bears certain exceptions: libel and slander, incitement, obscenity, child pornography, threats, and fighting words.[10] Similarly, the rights enjoyed by public actors and certain types of broadcaster are also not given the same breadth of speech rights.[11] These exceptions to the American constitutional right to speech is reflective of value decisions made over centuries balancing free speech against a broad number of other competing interests. Other democracies have opted to carve out more exceptions.[12] For example, in the Canadian legal tradition, freedom of expression is not absolute, and is subject to “reasonable limits.”[13] Such limits must take into account that some versions of speech are “more central to constitutional guarantees than others.”[14] Ultimately, a discussion about limiting free speech requires inquiry into the type of speech it is, and cannot reasonably be a blanket ban.

In Google Spain v. AEPD, the ECJ ruled that Google (and other search engine providers) have a responsibility to delete links concerning personal information upon request as long as the links are not relevant or in the public interest. In response to the ruling, Google has been complying with takedown requests by weighing each on a case-by-case basis, balancing the “right to be forgotten [with] the public’s right to the information.”[15]

However, the AEPD ruling gave Google no real instruction on how to comply with the requests. Google has essentially had to create their own process on how to obey the takedown requests, in which the company attempts to balance the public’s right by categorizing the individual as a private or a public individual, and then categorizing the information based off of its weaker or stronger privacy interest.[16] It seems absurd that a private institution is essentially given the responsibility of setting their own guidelines for the takedown requests, considering that the ECJ ruling essentially asks Google to balance deeply important human rights in their processing of these requests.[17] The CDT published an article criticizing the right to be forgotten, arguing “it is the role of legislatures and ultimately to ensure that human rights are protected and respected [and] to address conflicts where they arise between right.”[18]

The Google Spain ruling also poses structural issues. Because there are no clear guidelines as to how to obey the right to be forgotten, particularly litigious individuals can still choose to sue Google to get their information removed, should their request through Google’s process be denied.[19] These unclear boundaries can easily lead Google to decide that the cost of litigation is not worth it, and accept more takedown requests than it reasonably should. Such litigation, on top of the burden of being mandated to police their own website, is particularly unfair strain to push onto a private actor, no matter how important they are in today’s world. The right to be forgotten forces Google to answer difficult questions about speech rights and human rights that should not be answered by a private actor, and react in ways that are not necessarily in the best interests of speech rights.

That being said, these problems are not fatal to the right to be forgotten. The European Commission could pass a directive clarifying how to comply best comply with the Google Spain v. AEPD ruling. It could also attempt to eliminate any cause of action against Google by creating a separate type of procedure for takedown requests, such as creating an arbitration body, for such takedown requests.[20]

California’s SB 568, on the other hand, is a much narrower limitation on speech rights. SB 568 limits the right to be forgotten to allowing all minors to delete personal information about them that appears on the Internet. The Internet and social media have become a core part of minors’ lives, with 95% of all teens having an online presence.”[21] In light of issues such as cyber-bullying, and the unfairness of allowing someone’s childhood to impact their future, it is sensible to give such a narrow band of people the right to be forgotten. Such a narrowly carved out exception makes more sense than a broader right to be forgotten, though.

The right to be forgotten highlights many of the themes central to the intersection of the Internet and laws. For example, although Google may be a private actor, its status as the world’s primary search engine may require that we force it to adhere to certain governmental regulations. Given that the Internet is now so ubiquitous to everyday life, it is clear that some individuals’ previous conception of the Internet as an anonymous crypto-anarchic haven be reexamined. However, on the other hand, any regulations must be considered within the scope of the technical capabilities that we have to regulate content on the Internet and the realities of how people behave when using the Internet. Proxies and VPNs, for example, remain popular ways to circumvent domestic Internet filtering. Whether the right to be forgotten as conceived by the ECJ will ever extend outside of Europe remains to be seen.

 


 

[1] C-131/12, Google Spain v. Agencia Española de Protección de Datos, not yet reported.

[2] SB-568, California, http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568

[3] Id.

[4] Lee, James, SB 568; Does California’s Online Eraser Button Protect the Privacy of Minors?, 48 UCD L. Rev. 1173

[5] Shaheen, Randy and Arredondo-Santistebar, Laura. California Enacts Law Protecting Minors’ Digital Privacy Rights. Venable LLP, (November 24, 2014)

[6] SB-568.

[7] Id.

[8] O’Brien, Danny and York, Jillian. Rights That Are Being Forgotten: Google, the ECJ, and Free Expression. Electronic Frontier Foundation, (July 8, 2014)

[9] Universal Declaration of Human Rights. United Nations, (16 December, 1948)

[10] Ruane, Kathleen. Freedom of Speech and Press: Exceptions to the First Amendment. Congressional Research Service, (September 8, 2014).

[11] The FCC and the Freedom of Speech. Federal Communications Commission, (October 17, 2014)

[12] For example, unlike the US, Canada, France, and Germany all have exemptions for hate speech.

[13] Canadian Charter of Rights and Freedoms, Part I of the Constitutional Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[14] W.S. Tarnopolsky, The Canadian Bill of Rights, 2d ed. (Toronto: McClelland and Stewart, 1975).

[15] Floridi, Luciano et. al, The Advisory Council to Google on the Right to be Forgotten, Google, (November 4, 2014)

[16] Id.

[17] C-131/12, Google Spain v. Agencia Española de Protección de Datos, not yet reported.

[18] On the “Right to be Forgotten”; Challenges and Suggested Changes to the Data Protection Regulation, Center for Democracy and Technology, (May 2, 2013) <https://www.cdt.org/files/pdfs/CDT-Free-Expression-and-the-RTBF.pdf>

[19] Id.

[20] On the “Right to be Forgotten”; Challenges and Suggested Changes to the Data Protection Regulation, Center for Democracy and Technology, (May 2, 2013) <https://www.cdt.org/files/pdfs/CDT-Free-Expression-and-the-RTBF.pdf>

[21] Madden, Mary et. al. Teens and Technology 2013, Pew Research Center, (March 13, 2013). < http://www.pewinternet.org/2013/03/13/teens-and-technology-2013/>

March 23 / Computing, Copyright, Featured

On the Legality of Watching Unlicensed TV Streams

By: Monica Rodriguez

According to a September 2014 report by Nielsen, internet streaming has become the obvious choice for a generation on the go—with digital use among persons 18-34 at 16%.[1]  In fact, online video streaming had an increase of close to 60% during the 3rd quarter of 2014 among the same age group.[2]

Nielsen TV streaming Graph

Nielsen, Digital Growth is Fueling an Increase in Media Time.

 

In a world where demand and efficiency rule entertainment, young adults are moving away from traditional television viewing to digital video.  The Wall Street Journal explained that Americans increased web streaming to about 11 hours a month, up from 7 in 2013 and noted that online consumption is likely even higher, as viewing with devices such as the Roku or smartphones are not included.[3]  Although shows like HBO’s Game of Thrones or even the Super Bowl provide streaming on their own websites, in an effort to shift with the trend, many viewers choose to stream from unlicensed third-party streaming providers, citing that the account subscriptions and targeted commercials are major hindrances to their viewing experience.[4]  With the growing number of people who promote the digital platform, one significant question remains—is watching streamed, unlicensed television content even legal?[5]

Although there are many ways to focus on this issue, the most direct seems to be through an examination of copyright law.  17 USC §102(a) explains that copyright protection subsists in original works of authorship fixed on any tangible medium of expression; in other words, copyright protection applies to original works, like television shows, at the moment it is created.[6]  Exclusive rights with current copyright laws include ability to make copies and control distribution for revenue and profits.  However, there is not necessarily a violation of copyright if a “reproduction manifests itself so fleetingly that it cannot be copied, perceived, or communicated;” in other words, the “dividing line can be drawn between reproductions that exist for a sufficient period of time to be capable of being ‘perceived, reproduced, or otherwise communicated’ and those that do not.”[7]  Because of all these rights and limitations, the question of the whether watching unlicensed television streams is legal becomes complicated.

The Associated Press v. Meltwater case, in which daily headlines and bits of newspaper stories on Meltwater had links to the full online articles from the Associated Press as well as others, which made unauthorized copyrighted content available to viewers for free, had two different outcomes in the U.S. and U.K.[8]  While the U.S. focused on Meltwater as the host of infringing content, the European courts ruled that “users who see content online, without actually willingly making a copy of it, should not be held accountable for any resulting copyright infringement.”[9]  Jim Gibson, director of the Intellectual Property Institute at the University of Richmond law school in an article with Business Insider, furthered this concept explaining, “when the user downloads even part of a file—called ‘pseudo-streaming’— it counts as a copy of copyrighted material, which is illegal. And when the user streams content as a ‘public performance’—namely, when it’s shown to a substantial number of people […] it also constitutes a copyright violation.  Outside of these cases, accessing unlicensed streamed content is generally legal.”[10]

On the other hand, the government has been pushing Congress to make online streaming a felony and wants to shift blame to the viewers, declaring, “downloading a copy of the movie ‘Captain America’ illegally is a felony, but if you were to simply stream the same movie illegally it would only be a misdemeanor,’ [Congressman] Nadler [Democrat, New York] said. ‘Does this distinction make sense?”[11] Deputy Assistant Attorney General David Bitkower explained the significance of streaming viewers by pointing to the Megaupload.com case, in which over 150 million registered users (and 50 million daily visitors) would access reproduced and distributed copies of unauthorized content accounting for as much as 4% of all Internet traffic. [12]  Arguing that viewers also have a role in illegal stream watching, the Department of Justice explained that the amount of bandwidth devoted to copyright-infringing video streaming grew by 470% in a two year span beginning in 2010.[13]

In short, the answer to legality of watching streamed, unlicensed television content is that it remains legal, although likely not for long.  This is true for two main reasons—(1) we must account for technological advances like “pseudo-streaming” which currently serve as violation loopholes in copyright law and (2) Congress is making active steps to uniformly shift liability to viewers for both downloading and viewing unlicensed content.  Despite this legal debate, it is important to note that the MPAA (Motion Picture Association of America) seldom pursues litigation against individuals who stream these shows as it is difficult to identify the IP address linked to the illegal activity.[14]

 


 

[1] Nielson, Shifts in Viewing: The Cross-Platform Report Q2 2014 (2014),  

http://www.nielsen.com/us/en/insights/reports/2014/shifts-in-viewing-the-cross-platform-report-q2-2014.html

[2] Wall Street Journal, TV Viewing Slips as Streaming Booms, Nielsen Report Shows (2014),

http://www.wsj.com/articles/tv-viewing-slips-as-streaming-booms-nielsen-report-shows-1417604401

[3] Id.

[4] Christina Sterbenz, How Sketchy Streaming Sites Really Work — And Why Some Are Legal (2014),

http://www.businessinsider.com/are-streaming-sites-legal-2014-4; See also Stephanie Rabiner, Illegal Sports Websites Shut Down by Feds Ahead of Super Sunday (2012), http://blogs.findlaw.com/tarnished_twenty/2012/02/illegal-sports-websites-shut-down-by-feds-ahead-of-super-sunday.html

[5] Supra 4.

[6] 17 U.S.C.A. § 102. (West)

[7] U.S. Copyright Office, DMCA Section 104 Report 111 (August 2001); see also 73 Fed. Reg. at 40808.

[8] BGR, Pirating copyrighted content is legal in Europe, if done correctly( 2014), http://bgr.com/2014/06/05/streaming-movies-and-tv-shows-for-free/; see also Gigaom, You can’t break copyright by looking at something online, Europe’s top court rules (2014) https://gigaom.com/2014/06/05/you-cant-break-copyright-by-looking-at-something-online-europes-top-court-rules/.

[9] Supra 8.

[10] Christina Sterbenz, How Sketchy Streaming Sites Really Work — And Why Some Are Legal (2014),

http://www.businessinsider.com/are-streaming-sites-legal-2014-4

[11] The Hill, DOJ To Congress: Make Online Streaming a Felony (2014), http://thehill.com/policy/technology/213285-doj-to-congress-make-online-streaming-a-felony

[12] U.S. Department of Justice, Statement of David Bitkower Acting Deputy Assistant Attorney General Criminal Division, Copyright Remedies. ( 2014), available at, http://judiciary.house.gov/_cache/files/c2cf069f-5e3d-4449-8614-c05b183fd910/bitkower-doj-remedies-testimony.pdf

[13] Id.

[14] Stephanie Rabiner, Is Streaming or Watching Movies Illegal? (2012), http://blogs.findlaw.com/law_and_life/2012/04/is-streaming-or-watching-movies-illegal.html