If you’re interested, Jerry Brito over at SurprisinglyFree.com, has been doing a series of interviews with legal thinkers and entrepreneurs focusing on a variety of tech issues, and he’s posted a podcast of an interview he did with me a couple of weeks ago on Net governance issues - it turned out pretty well, I think, and those of you who find those issues of interest might find it useful and/or thought-provoking.
Archive for the ‘Cyberspace Law’ Category
Bernard Kouchner, the Foreign Minister of France and a founder of Doctors Without Borders, has an interesting but somewhat unsettling op-ed in today’s New York Times. Entitled “The Battle for the Internet,” it’s a call to arms in
the battle of ideas . . . between the advocates of a universal and open Internet — based on freedom of expression, tolerance and respect for privacy — against those who want to transform the Internet into a multitude of closed-off spaces that serve the purposes of repressive regimes, propaganda and fanaticism.
It’s a subject dear to my heart, as you probably know; I, too, believe that preserving what the Center for Democracy and Technology aptly calls the “free, open, and innovative Internet” is of the deepest importance for the future — literally — of human society on the planet. I like where Kouchner’s coming from:
The Internet is above all the most fantastic means of breaking down the walls that close us off from one another. For the oppressed peoples of the world, the Internet provides power beyond their wildest hopes. It is increasingly difficult to hide a public protest, an act of repression or a violation of human rights. In authoritarian and repressive countries, mobile telephones and the Internet have given citizens a critical means of expression, despite all the restrictions.
He’s right about that – at least, I agree wholeheartedly. (Libertarian blogger Adam Thierer called my book about the Net “an extended love letter to both cyberspace and Jefferson,” and though I’m not entirely sure he meant it as one, I took it as a compliment. Though we academics are supposed to take the posture of ironic detachment from pretty much everything we encounter, I happen to think, and I’m happy to say to whomever is listening, that the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe. I realize (see Evgeny Morozov’s rather peevish piece in Foreign Policy, denying that the Net has been (or can be) a force for good in the world) that it has not instantly transformed everything it touches into the Earthly Paradise – but that’s a pretty high standard to hold it to.
And I’m certainly with him when he writes:
However, the number of countries that censor the Internet and monitor Web users is increasing at an alarming rate. The Internet can be a formidable intelligence-gathering tool for spotting potential dissidents. Some regimes are already acquiring increasingly sophisticated surveillance technology. If all of those who are attached to human rights and democracy refused to compromise their principles and used the Internet to defend freedom of expression, this kind of repression would be much more difficult.
The Net is under siege, and will require some serious work to keep it free and open. But somehow, I can’t work up much enthusiasm for Kouchner’s call to action:
Multilateral institutions like the Council of Europe, and nongovernmental organizations like Reporters Without Borders, along with thousands of individuals around the world, have made a strong commitment to these issues. No fewer than 180 countries meeting for the World Summit on the Information Society have acknowledged that the Universal Declaration of Human Rights applies fully to the Internet, especially Article 19, which establishes freedom of expression and opinion. And yet, some 50 countries fail to live up to their commitments.
We should create an international instrument for monitoring such commitments and for calling governments to task when they fail to live up to them. We should provide support to cyber-dissidents — the same support as other victims of political repression. We should also discuss the wisdom of adopting a code of conduct regarding the export of technologies for censoring the Internet and tracking Web users.
These issues, along with others, like the protection of personal data, should be addressed within a framework that brings together government, civil society and international experts.
It sounds a bit, to my ears, too much like asking the UN to run the Net (which, as readers of my work know, we tried once before, with notable lack of success).
Kouchner also makes me nervous when he begins his list of what the “enemies of the Internet” are up to this way:
Extremist, racist and defamatory Web sites and blogs disseminate odious opinions in real time. They have made the Internet a weapon of war and hate. . . . Violent movements spread propaganda and false information.
There are many threats out there to the free and open Internet, but I don’t regard “extremist, racist, and defamatory Web sites,” or “blogs disseminating odious opinions,” as among them. Although Kouchner has ringing words for freedom of expression — “Freedom of expression, said Voltaire, ‘is the foundation of all other freedoms.’ Without it, there are no ‘free nations.’” — somehow I think that his agenda is to the contrary. Freedom of expression without “extremist, racist, and defamatory web sites” and “odious opinions” is not freedom of expression — not in my book, anyway. Something tells me that when the “World Summit on the Information Society” gets its hands on the Net, true freedom of expression on the Net will not be high on their list of preferred outcomes.
So, on the one hand, I’m glad Kouchner has sounded the alarm; he ends his piece by declaring that “the defense of fundamental freedoms and human rights must be the priority for governance of the Internet. It is everyone’s business” and I think he’s right — importantly right — about that. But I think we need — rather desperately — alternate governance models to deal with this problem, alternate models that move in a direction away from the UN and towards something that better reflects the wishes and desires of the world’s people, not the world’s governments. It’s not going to be easy, though I’m working on it . . .
I just noticed this decision, from a few weeks ago — Burfoot v. May4thCounts.com (Va. Cir. Ct. Apr. 22) (Poston, J.):
Today the Court sua sponte vacates the Order of April 21, 2010. In that Order the Court granted plaintiffs Motion for Entry of a Temporary Injunction prohibiting the defendants from using a website entitled “May4thCounts.com” and ordered the removal of the website from the internet. The Court also directed the plaintiff to effect service of process on the defendants and continued the action for July 7, 2010, for further proceedings. Under the Injunction Order’s terms, the action will be advanced on the docket upon the motion of any defendant.
Danielle Citron
Last year, Maryland law professor Danielle Citron published “Cyber Civil Rights” in the BU Law Review. Here’s the abstract:
Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. . . . Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.
. . . .
General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.
Citron’s article detailed some particular cases of such abuses. As she acknowledged, the mob actions are solidly within the scope of existing criminal law and tort law. Nevertheless, she made the case that federal civil rights laws should be revised to cover Internet threats and defamation–since civil rights statutes provide attorney’s fees for a successful plaintiff, and since prosecutors would be more likely to bring criminal charges if the underlying offense has a civil rights association. She arguds that “Just as changing circumstances justified curtailing the right of contracts in the 1930s, today’s networked environment warrants a rejection of free speech absolutism.”
Citron also proposed that website operators be civilly liable for the content of postings on their websites (by means of an exception to 47 U.S.C. § 230, the immunity statute), and that operators be required to collect and maintains ISP logs for all posters.
Last fall, the Denver University Law Review held a symposium about Citron’s proposal, featuring commentary from 11 scholars, plus a response from Citron. Rather than being required to submit a full-length article, the commenters for the on-line symposium were asked to provide a lightly-annotated essays. The full collection of commentary is here, as a PDF. (HTML versions of individual comments are here.)
Essays by Paul Ohm, Viva Moffett, and Wendy Seltzer suggest that mandatory ISP collection and civil liability might cause many problems than they would solve. In response, Citron acknowledges the force of these arguments. Accordingly, she suggests that the best remedies would be to amend federal civil rights rights statutes so that they fully cover the abuses she has described. She also suggests that some version of Notice & Takedown might be appropriate, although, as she detailed in her Boston University article, this has problems of its own.
Comments welcome, of course, but before commenting, please read at least one of the essays, or Citron’s original article.
From Hopscotch Adoptions, Inc. v. Kachadurian (E.D. Cal. Dec. 7):
On an expedited, ex parte basis, plaintiffs Hopscotch Adoptions, Inc. … and Robin Sizemore … seek: … a temporary restraining order to prohibit defendant Venessa Kachadurian’s … internet and related comments on Hopscotch and Ms. Sizemore ….Hopscotch is an accredited intercountry adoption agency and was co-founded by Ms. Sizemore, its executive director. Ms. Kachadurian is a Fresno resident who, according to plaintiffs, “has unsuccessfully pursued intercountry adoption since at least 2004 and has waged an ongoing cybersmear campaign against such agencies since at least 2005.” Ms. Kachadurian has been neither a Hopscotch client nor an applicant with plaintiffs or an entity affiliated with Ms. Sizemore.
Plaintiffs attribute to Ms. Kachadurian comments in email, blogs and internet chatrooms that plaintiffs engaged in illegal practices and that Ms. Sizemore was fired from a prior adoption agency job for illegal or unethical practices. Plaintiffs further attribute Ms. Kachadurian to improperly claim that Ms. Sizemore is connected with the arrest of Hopscotch’s in-county facilitator in the Georgia republic. Plaintiffs claim “irreparable harm” in lost business and “hesitance among adoption seekers in doing business with Hopscotch.” Plaintiffs’ complaint alleges claims for violations of the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030, et seq., defamation, negligent misrepresentation, false light, tortious interference with contractual relations, and negligent interference with prospective advantage….
Here, plaintiffs’ alleged harm is compensable by monetary damages, and the complaint’s tort claims demonstrate as much. Unearned fees from lost clients or opportunities is subject to calculation. Moreover, this Court is concerned about free speech issues, especially given plaintiffs’ reliance on apparent limited, stray comments by Ms. Kachadurian. This Court is perplexed by the overreaching injunctive relief sought by plaintiffs and inability to police or enforce such relief. Although plaintiffs identify finite, limited comments by Ms. Kachadurian, they seek sweeping injunctive relief touching on areas irrelevant and remote to plaintiffs’ claim. The scope of plaintiffs’ proposed injunctive relief is unreasonable and unacceptable….
This Court does not grant overreaching injunctive and discovery relief on an ex parte, unnoticed basis, especially when such requested relief lacks defined, adequate support. Although plaintiffs may have meritorious claims for monetary damages, this Court is concerned that plaintiffs pursue their requested relief to retaliate and intimidate….
Here is the plaintiffs’ denied motion for a TRO, which asks for (among other things) a temporary restraining order barring “[a]ny further annoyance or harassment of any adoption service provider and/or from interfering with any adoption service providers on the basis of their [race], color, religion, national origin, disability or sexual orientation,” barring “false and defamatory statements” (something that’s generally treated as an unconstitutional prior restraint unless there’s a final decision on the merits actually finding the speech to be false), and requiring defendant to “take appropriate remedial measures with respect to postings still available on the Internet.” Plus “Notice of this application was not provided to Defendant due to her history of acting in retaliation and general erratic behavior and concern that she might attempt to destroy relevant evidence in this matter,” but such speech restraints without notice are especially hard to justify.
So held a Massachusetts trial court last year in Jenzabar, Inc. v. Long Bow Group, Inc. (PDF p. 4); I just ran across the case online, so I thought I’d mention it. Defendant had posted a Boston Globe article that mentioned certain allegations by one DiLorenzo; DiLorenzo had later retracted those allegations. The court held that Long Bow had no “continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether DiLorenzo was still accusing the plaintiffs of inappropriate actions.”
Second installment of a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
Sami Omar al-Hussayen was a doctoral candidate at the University of Idaho when he was arrested in February 2003. Federal prosecutors alleged that al-Hussayen, a Saudi citizen studying computer science in the United States, provided “material support” and rendered “expert advice or assistance” to terrorists. News reports, on the word of anonymous “federal criminal justice” sources, linked him to Osama bin Laden.
What was his crime? Al-Hussayen used his computer skills to run a number of websites for a Muslim charity dedicated to traditional religious teaching. But if a web-surfer burrowed into links from al-Hussayen’s site, he or she would eventually come across links containing violent anti-American messages. This, prosecutors charged (PDF), was how al-Hussayen aided global terrorism.
District Judge Edward J. Lodge, for one, played the case right down the middle. In his jury instructions, Lodge explained to twelve stalwart Idahoans that the First Amendment protects advocacy, even advocacy to break the law, “unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio, 395 U.S. 444, 1969) Of course, it was doubtful that al-Hussayen was even advocating lawlessness, much less violence, but for the sake of argument, let’s assume that there was such a subtext to his website maintenance. Even then, the prosecution was highly dubious.
With Judge Lodge’s clear line separating lawful political speech from unlawful incitement to imminent violence, the jury took little time in acquitting the grad student of the terrorism-related charges. Liberty, which seemed to matter less and less at Main Justice in Washington, remained alive and well in Idaho. (This was due not only to a law-abiding judge presiding over the trial, but also to the fact that the defendant was able to hire and pay competent defense counsel.)
Nonetheless, this case, reportedly the first prosecution brought under the USA Patriot Act’s expanded material support provision, did little to clarify the “expert advice or assistance” aspect of the federal terrorism laws. There are, in fact, three separate federal statutes that criminalize such material support, and Georgetown Law Professor David Cole provides an interesting analysis of these overlapping provisions, here. For present purposes, material support will refer to 18 U.S.C. 2339B.
Yet the mere fact that there are three separate provisions for essentially the same violation—and all are characterized by vague and dangerously subjective wording—illustrates the general opacity of the federal criminal code. (And, rest assured, incitement to violence could likely be squeezed into yet another statute by a creative federal prosecutor). With similarly vague statutes criminalizing a wide array of seemingly benign activity, the average citizen, even without touching the apparently volatile arena of Muslim charities, can commit several arguable felonies in the course of a day. Thus, the thesis and title of my book, Three Felonies a Day: How the Feds Target the Innocent. (I provided an introduction to the topic on Monday.)
To be sure, there are countless federal crimes that an average citizen can inadvertently violate. But I’d like to focus today on the vague laws governing terrorism and terrorist organizations. These laws, and those prosecuted under them, provide a timely window into how loosely-worded statutes enable the government to prosecute virtually anyone.
Consider, first, the semantic power of “terrorism.”
The Animal Enterprise Protection Act, passed by Congress in 1992, outlawed the “physical disruption” of an animal farm or testing facility. But with animal-rights activists continually ramping up their protests, medical facilities and some researchers looked to toughen criminal sanctions. In November 2006, Congress responded with the Animal Enterprise Terrorism Act, which expanded the scope of criminal sanctions for any activist who “intentionally damages or causes the loss of any real or personal property…used by an animal enterprise.”
How does one define “real or personal property?” Is it limited to monetary losses, or can this include the loss of future profits? The statutory language is unclear, and case law indicates that loss of profits and business goodwill can be considered property damage (See, e.g., Radiation Sterilizers v. United States, E.D. Wash., 1994).
It’s an important distinction for animal-rights activists; after all, threatening future profit is arguably the point of lawful protest (expose alleged wrongdoing and, in turn, encourage a boycott by others). Nonetheless, the law threatens to impede such political expression, not only through actual prosecution, but also through the “chilling effect” of those who severely restrain themselves in order to avoid a possible federal criminal indictment—because they don’t know their legal obligations until it’s too late.
A similar legal ambiguity led to the court challenge of the aforesaid “material support” language. In a case that will be argued before the Supreme Court this coming term (Holder v. Humanitarian Law Project), six groups and two individuals are seeking clarity on whether they are permitted to assist in the nonviolent, legal activities of groups classified by the U.S. government as terrorist.
The Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam are considered terrorist organizations by the U.S. government, although plaintiffs insist that both groups engage in a broad range of lawful activity. Due to the vague terminology in Patriot Act provisions (“service,” “training,” or “expert advice or assistance,” to name a few), plaintiffs claim that even innocuous conduct such as “teach[ing] such an organization human rights advocacy or English” could be considered material support. With indictments like al-Hussayen’s showing the elasticity of “expert advice” in the government’s lexicon, there’s little wonder that these groups are seeking guidance.
The intensity of the friend-of-the-court (amicus) briefs is an indication, perhaps, of the far-reaching fear instilled by such statutory language. Wrote the ACLU (PDF):
Amici, like plaintiffs, are left hopelessly guessing – at the risk of grave penalty – whether their advocacy for peace or human rights, their engagement in or facilitation of peace-making dialogue, or the expressive components of their humanitarian aid work crosses the line from constitutionally protected to criminally proscribed.
The bi-partisan nature of the problem—demonstrated by the fact that what is now the “Holder” case began as Humanitarian Law Project v. Reno and then was re-named through every administration to the present day—explains the need for a non-partisan response. Starting with Clinton Attorney General Janet Reno, this case has been litigated through the Ashcroft/Gonzales/Mukasey years of the Bush administration, and it continues with current AG Eric Holder. Plus ça change, as the French say, plus c’est la même chose.
When these lines are left vague, the feds are given strong tools to target extremists. But they’re also free to target any other victim of their choosing, which they seem to do with disturbing regularity. And while the current political climate has put the issue of laws related to terrorism in the spotlight, similarly vague statutes exist throughout the federal criminal code, exposing all of civil society. It’s time to recognize that the bell tolls for us all.
Those of you who have been following this free speech / cyberspace law case — which I’m litigating pro bono — can now see starting the video of yesterday’s oral argument before the Nebraska Supreme Court. My opening argument starts at about 39:00, and lasts for about five minutes; it’s followed by the State’s argument, followed by about five minutes of my rebuttal. I’m cautiously optimistic, but I guess we’ll know in several weeks what the Justices really thought.
As I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. My client, Darren Drahota, was convicted of two counts of breach of the peace for sending two rude messages to William Avery, who had earlier asked him to stop sending such messages. Avery was Drahota’s University of Nebraska professor and a candidate for the Nebraska Legislature. (Avery was elected and is now a state legislator.) We argued that such speech did not constitute breach of the peace, and was in any event constitutionally protected under the First Amendment; for more details, see here. The Nebraska Supreme Court granted our petition for further review, and agreed to hear the case; we filed the opening brief Oct. 20, and the state’s brief was due yesterday.
Today, we learned that the state has apparently elected not to file a brief. The local prosecutors had of course prosecuted the case, and the Nebraska Attorney General’s office had briefed the case before the Nebraska Court of Appeals. But at the Nebraska Supreme Court stage, no brief is apparently forthcoming. (The Nebraska Attorney General’s office does make such a decision every so often.)
Naturally, the state supreme court will still have to consider the case, since there is a Nebraska Court of Appeals opinion on the books, and the court needs to decide what to do with it. But the state’s decision not to defend the opinion, or the result it reached, strikes me as heartening.
I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.
Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.
But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.
In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:
KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.
Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:
In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.
But the Ninth Circuit’s rules provide for an en banc from the en banc – a super banc? – of all of the judges. As Judge Kozinski explained in 2003 testimony:
In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.
Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In explaining the choice of community standards instead of national standards, the Court wrote:
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.
Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to `community standards,’ it meant community standards – not a national standard, as is sometimes argued. I believe that there is no provable `national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”
In the last decade, some have wondered whether this concept still makes sense with materials distributed and obtained over the Internet. The basic idea is that the experience of an Internet user does not depend on the local community, so it no longer makes sense to apply a local community standard to obscenity.
The question of how the Internet impacts national versus community standards came up indirectly at the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case on the constitutionality of the Child Online Protection Act (COPA). In Ashcroft, a bunch of people who wanted to post content on the Web argued that COPA violated the First Amendment rights of adults barring the posting of “material that is harmful to minors.” The statutory definition of “material that is harmful to minors” harnessed the “contemporary community standards” standards from obscenity law, and the Third Circuit had ruled that the community standards could not apply to the Internet because “Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.” The Supreme Court reversed in a splintered opinion, with various Justices chiming in on on how much of a problem they thought it was to use community standards in light of the First Amendment challenge to COPA.
So where does that leave Internet obscenity law: Do we still have community standards, or do we have new national standards?
The Ninth Circuit’s answer in yesterday’s decision, United States v. Kilbride: National standards. In an opinion by Judge Betty Fletcher, joined by Judges Hug and Hawkins, the Ninth Circuit concluded that if you looked at each of the concurring and dissenting opinions in Ashcroft v. ACLU, there were five votes for a new approach to Internet obscenity law that embraced national standards, not community standards:
The divergent reasoning of the justices in and out of the majority in Ashcroft leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .
Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.
At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.
Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.
As a matter of law, I don’t find this particularly persuasive. In Marks v. United States,430 U.S. 188 (1977), the Court identified the rule for identifying the holding of a fragmented court:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.
But here the Ninth Circuit is counting the number of Justices who had “concerns.” Concerns are not positions. You can’t count the number of Justices who had a particular thought and then say that the thought is somehow binding on the lower courts.
Rather, I would think this case should have been answered by the Supreme Court’s directive that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson /American Express, Inc., 490 U.S. 477, 484 (1989). My sense is that the case which directly controls here is Miller v. California, and I read Miller‘s statement of the “basic approach” to obscenity as being a holding, not just one of many possible ways to define obscenity. In light of that, I think courts are bound to the Miller community standard until the Supreme Court says otherwise, whether that standard makes sense for Internet obscenity or not. See United States v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005) (relying on the traditional Miller test on the ground that “if the Supreme Court wishes to treat all Internet obscenity cases as sui generis for purposes of federal obscenity law analysis, it has not yet said so, “tacitly” or otherwise.”).
Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.
So holds the Arizona Supreme Court; the Washington Court of Appeals held the same a year ago. The decision applies to whatever metadata is stored with the document, including creation, modification, and access dates, the identities of the creating, modifying, and accessing users, and so on (at least unless some exception to the public records act applies).
The decision does not require that the computer systems maintain any metadata; it only requires the disclosure of whatever metadata is present. “[W]hen a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law.”
Thanks to How Appealing for the pointer.
The case is In re United States, — F.Supp.2d —-, 2009 WL 3416240 (D.Or. 2009), by District Judge Mosman. The issue in the case is whether the government must notify a person when the government obtains a search warrant to access the contents of the person’s e-mail account. Judge Mosman concludes that Rule 41 and 18 U.S.C. 2703(a) require the notice to be served on the ISP, not the account holder, as a statutory matter. He then rules that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to the e-mails under the third-party doctrine. [CORRECTION: SEE BOTTOM OF POST] Here’s the relevant analysis:
The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world.When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.
This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all. The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties. [Citation to work of bald academic deleted.]
Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to … satisfy any applicable law, regulation, legal process or enforceable governmental request.” Google Privacy Policy, http:// www.google.com/privacypolicy.html (last visited May 13, 2009). The court understands that other ISPs have similar privacy policies. See, e.g., Microsoft Online Privacy Statement, http://privacy.microsoft.com/en-us/fullnotice.mspx (last visited May 13, 2009) (stating that personal information may be shared to “comply with the law or respond to lawful requests or legal process”); AOL Network Privacy Policy, http://about.aol.com/aolnetwork/aol_pp (last visited May 13, 2009) (“The contents of your online communications, as well as other information about you as an AOL Network user, may be accessed and disclosed in response to legal process (for example, a court order, search warrant or subpoena); [and] in other circumstances in which AOL believes the AOL Network is being used in the commission of a crime….”). Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
As I have blogged before, I disagree: I think e-mails are protected under the Fourth Amendment despite the third-party doctrine for reasons explained in my forthcoming Stanford Law Review article Applying the Fourth Amendment to the Internet: A General Approach (click on the link and then press the download button to download a draft of the article). Still, I thought the decision was worth noting given the importance of the issue and the still-unsettled state of the caselaw.
CORRECTION: In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it.
So held a federal district court in Dart v. Craigslist, Inc. Here’s what plaintiff, the Cook County, Illinois, Sheriff claimed:
[Sheriff Dart] … alleges that the “erotic” (now “adult”) services section of Craigslist’s popular Internet classifieds service facilitates prostitution and constitutes a public nuisance…. The webpage located at “chicago.craigslist.org” … displays Chicago-related listings arranged by categories (e.g., “for sale” and “services”) and subcategories (e.g., “antiques” and “computer”). Craigslist created the categories, but its users create the content of the ads and select which categories their ads will appear in. Users posting ads on the website agree to abide by Craigslist’s “Terms of Use,” which prohibit posting unlawful content. Users browsing the “erotic” subcategory — which is (or was) the website’s most popular destination — receive an additional “warning & disclaimer” stating that users entering that section agree to “flag ‘prohibited’” any content that violates Craigslist’s Terms of Use including “offers for or the solicitation of prostitution.” Below the warning is a general “erotic services” link, and links to further subcategories (e.g., “w4m” (women for men)). Craigslist also gives users the option to search through ads using a word-search function.Sheriff Dart alleges that, notwithstanding Craigslist’s warnings, users routinely post advertisements in the eroticservices category “openly promis[ing] sex for money.” Based on the samples that he cites in his complaint most of the ads are veiled (sometimes very thinly) using code words.
The court’s reasoning, which seems quite right to me: 47 U.S.C. § 230 generally immunizes Internet service providers from (among other things) being held civilly liable on the grounds that they are “publishers” of material that is supplied by their users. The Seventh Circuit has not read this as broadly as some other courts, but even under the Seventh Circuit’s reading, Craigslist immune because its alleged liability would stem precisely from the fact that it published material provided by its users. “A claim against an online service provider for negligently publishing harmful information created by its users treats the defendant as the ‘publisher’ of that information,” and is therefore preempted by § 230.
The court also considered the Ninth Circuit’s holding in Fair Housing Council v. Roommates.com (discussed here), under which a service provider could be held liable for its own actions in actively inducing people to post illegal content (some paragraph breaks added):
Continue reading ‘Craigslist Not Liable for Prostitution Ads’ »
Tags: 47 USC 230
VC readers in New York City might be interested in this talk I’m going to be giving at lunchtime this coming Thursday, Oct. 22. It’s co-sponsored by the Copyright Society of the US and the Internet Society’s NYC chapter, and is my (latest) attempt to get people to think about how we might fashion a copyright law for the Internet age that actually makes some sense (as opposed to the copyright law we actually have, which doesn’t). [Oh yeah, it's about my book, too - and why Jefferson sent a moose to Paris, and how we find a "moose" for the Net that will do for us what Jefferson's moose did for him]. I gave a version of this talk last week at the University of Virginia Law School, and I think I can guarantee you a pretty lively discussion — in fact, I’ll be a tad disappointed if fisticuffs do not break out in the audience as a result of some of the ideas I propound.
More from Walter Olson on the potential scope of the FTC’s new regulations governing bloggers and other social media users.
It’s been much asserted of late that it’s no particular burden to disclose when mentioning a newly published book or quoting from a newsworthy speech that the publisher sent you a review copy or the conference-giver let you into the hall on a press pass or its equivalent. But the regulations clearly contemplate broader disclosures than that. At some point, acceptance of such benefits will be deemed to create a relationship that must be disclosed even on other occasions, when, say, you mention an author or a nonprofit institution in a different context six months later.
Today the Sixth Circuit handed down a case on probable cause to search a home based in large part on a subscription to a child pornography website: United States v. Frechette. I blogged in detail about this issue a few years ago, so I wanted to cover the latest case, as well.
The defendant, Douglas Frechette, had a previous criminal history and was listed in the Michigan State Sex Offender Registry as living at a particular address in Muskegon, Michigan. Bank and drivers license records confirmed that he lived at that address. One day, Frechette created a PayPal account in his own name, linked to his own bank account, and from an IP addressed assigned to his home purchased a one-month subscription for $80 to a child pornography website, HTTP:\\[redacted]-lolita.com.” The purchase of the one-month subscription was the only purchase Frechette ever made on his PayPal account. The opinion indicates that the homepage of the website was extremely clear that it was entirely about very disturbing images of child pornography. Visitors to the site were “welcomed” with very graphic and patently illegal images.
It is unclear how long the site stayed on line. A little more than a year after Frechette’s purchase, however, agents learned of the purchase and confirmed from the sex offender registry that Frechette still lived at the same address in Muskegon. The agents applied for a warrant to search Frechette’s home based on that information. A search of of the home led to the discovery of child pornography images and a confession by Frechette. That then led to charges against Frechette, and a motion to suppress the images and the confession as a fruit of an allegedly unlawful search.
The question in the case was whether the magistrate judge had a “substantial basis” to believe that there was probable cause to find evidence of child pornography at Frechette’s home. The court concluded that there was, and this seems clearly correct to me. The agents knew that a registered sex offender had paid $80 to purchase a month of access to a website that offered only child pornography; they knew he had purchased the access from his computer at home; and they knew he still lived at that same home a year later. Given the known practices of child pornography collectors to keep and store images over a long period — practices that the federal courts of appeals have recognized — I would think it highly likely that there would be images of child pornography in the home a year later.
Judge Karen Nelson Moore vigorously dissented. Her opinion accused the majority of adopting a “radical view of probable cause” that created “an unprecedented encroachment upon our constitutional protections” based on the majority’s “personal feelings of scorn and disgust” about child pornography. Judge Moore thought it critical that the website appeared to be for “browsing” images rather than for “downloading” images. According to Judge Moore, “this browsing, without question, can be done without purposefully downloading images.” She also thought it important that Frechette only bought a one-month subscription rather than a multi-month subscription, as had been the case in some cases form other circuits that had found probable cause. She concluded with the following hypothetical:
Consider a factually identical scenario in a different context: Would this court approve a search warrant for all the computers in a home based on an affidavit that contains only one particularized fact—that someone who lived at that address obtained a one-month membership to a website that allows its members to listen to music in violation of copyright law? If the answer to this question is “yes,” there are not enough officers in the nation to enforce the countless warrants that magistrates may now issue to search college dorm rooms and homes across America. If the answer is “no,” as it should be, and as I suspect it would be, one must ask why two cases with materially indistinguishable facts result in two very different outcomes. The answer is as obvious as it is unsettling. The majority’s conclusion is erringly shaped by the fact that child pornography cases are particularly appalling. As reprehensible as our society finds those who peddle, purchase, and view child pornography, we, as judges, must not let our personal feelings of scorn and disgust
overwhelm our duty to ensure the protection of individual constitutional rights.
I think Judge Moore is wrong for a few different reasons.
First, there is no legal distinction between “browsing” and “downloading.” The federal child pornography laws criminalize intentional receipt and knowing possession, and anyone who goes out looking for images and sees them has intentionally received the images. Judge Moore notes the uncertainly over whether intentional browsing amounts to possession, but she mistakenly assumes that this is a dispute as to whether browsing is legal. See footnote 2. Intentional browsing is pretty clearly illegal under the receipt ban, though, regardless of the interesting issues raised by whether browsing amounts to the separate crime of illegal possession.
Second, I’m not sure I see the relevance of the fact that Frechette purchased only one month of access. My sense is that sites explicitly dedicated to child pornography usually last a matter of hours, days, or weeks, not months, before being taken down. It would have been surprising to purchase a subscription to such a site for several months, especially at $80 a month. And it’s not like this purchase was an accident: Frechette was a registered sex offender who set up a PayPal account just to make this one purchase. It seems very unlikely to me that he would go through the trouble of setting up a PayPal account for this and then pay $80 and then never actually receive or possess any images.
Indeed, the case for probable cause strikes me as dramatically stronger in this case than in most of the past cases from other circuits. In most of the past cases, the police knew an e-mail address had been used to join a child pornography e-mail list. They weren’t sure where the person was located in a particular place, or even whether the real account holder had been the one to join, whether the person every logged into the account to receive the images, and they didn’t know anything about the suspect (such as a prior criminal record involving sex offenses). In this case, though, they knew a registered sex offender had spent a good amount of money to buy access from his home to a site dedicated to child pornography. Further, the opinion states that the welcome pages of the site — the pages a person would see before buying a subscription — themselves contained very explicit images of child pornography, which Frechette must have seen before he intentionally purchased a subscription. I think that is very strong evidence.
Finally, Judge Moore’s hypothetical about a warrant for copyright offenders just doesn’t work. Most obviously, possession of unauthorized copyrighted material is not a crime. To be guilty of a copyright crime, a person needs to actually know they are breaking the law, the downloading cannot be fair use, and the person needs to download enough music to trigger the statutory threshold ($1,000, if I recall correctly). Mere purchase of a subscription to a music site does not show or significantly hint at any of these elements, so the fact of a subscription alone could not plausibly provide probable cause of any crime. In contrast, receipt or distribution of a single image of child pornography is a crime whether the suspect knows it or not, and there is no “fair use” defense. Plus, the argument that “there wouldn’t be enough police officers in the nation” to enforce an equivalent copyright crime seems off to me: Enforcement of the law is up to the executive, not the judiciary, and the executive has chosen not to enforce criminal copyright laws except in very extreme cases in large part because enforcement would be so invasive. The limit on copyright enforcement is a judgment about resources and social benefit, not a question of Fourth Amendment law.
I’m delighted to say that the Nebraska Supreme Court has just agreed to review State v. Drahota (Neb. Ct. App. June 16), a case that I am litigating pro bono. We don’t have an oral argument date set yet, but it will probably be during the first week of November. Here is my argument, from the 10-page petition for further review, on why the Nebraska Supreme Court should agree to hear the case; the argument on the merits — about why the Nebraska Supreme Court should reverse the decision below — will be quite similar, though of course not identical. Thanks again to Mayer Brown LLP (the firm with which I’m an academic affiliate) for providing support through their pro bono program; to Gene Summerlin of Ogborn, Summerlin & Ogborn for being pro bono local counsel; and, for their help as amici, to my coblogger David Post and the law professors who were willing to sign on to his amicus brief, to the Foundation for Individual Rights in Education, and to the ACLU of Nebraska.
Facts
In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.
Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please consider this email a request that you not contact me again for the purpose of spilling more vile [sic].” Drahota responded with an apology.
Four months later, Drahota sent two more e-mails to Avery, this time from the address “averylovesalqueda@yahoo.com.” In the first, Drahota wrote concerning the death of an Iraqi terrorist, and asked Avery: “Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.” The second had the subject line “traitor,” and read, in relevant part,
I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]
After a bench trial, Drahota was convicted of breach of the peace. The Court of Appeals affirmed the conviction, based solely on the last two e-mails. 17 Neb. App. at 685, 687.
Argument
I. The Importance Of This Constitutional Precedent Warrants Review By This Court
The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office. Prosecutors throughout Nebraska and the country will now be more likely to conclude that such speech could indeed lead to a prosecution. And citizens throughout the country will now be rightly concerned that their critical e-mails to government officials and political candidates will lead to criminal prosecution if a prosecutor concludes the e-mails contain “epithets” (even clearly political ones such as “traitor”) or “personal abuse.”
It is thus important for this Court to review the case, notwithstanding Drahota’s labeling his assignments of error in his pro se appellate brief as “issues” instead of “assignments of error.” 17 Neb. App. at 683. Drahota’s briefing was incorrect on this score. Nonetheless, he supported his claims with detailed argument. The state’s brief did not claim any waiver on Drahota’s part. The opinion below dealt fully with his arguments. And while the Court of Appeals stated it was reviewing the case for plain error, Id. at 684, it concluded there was no error at all.
The precedential force of the decision below is thus not limited to plain error cases. Because of this, reviewing the constitutional issue “is necessary to a reasonable and sensible disposition of the issues presented,” State v. Conover, 270 Neb. 446, 449, 703 N.W.2d 898, 902 (2005), both in this case and for the benefit of future speakers who might be deterred by the precedent set below. See, e.g., Linn v. Linn, 205 Neb. 218, 221, 286 N.W.2d 765, 767 (1980) (reviewing constitutional question in “‘the interests of substantial justice,’” though the issue had not even been raised below (quoting Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977))).
II. The First Amendment, And A Proper Understanding Of Breach Of The Peace Law, Bar Punishing Drahota’s E-Mails As “Breach Of The Peace”
The decision below is not only important but mistaken, both as to what constitutes “breach of the peace” and as to what the First Amendment protects. It is therefore likely to be confusing to lower courts, as well as likely to improperly deter constitutionally protected speech.
The e-mails in this case do not fit within any exception to First Amendment protection, nor are they like the speech that this Court has treated as a breach of the peace in the past. The e-mails do not contain “true threats” of illegal conduct; the opinion below did not suggest that the e-mails were threatening. Nor are they libelous, despite the assertion by the opinion below that the e-mail address from which they were sent (“averylovesalqueda@yahoo.com”) was “libelous,” 17 Neb. App. at 685, and despite the use of the word “traitor.” First, there can be no libel “‘when the words are communicated only to the person defamed.’” Molt v. Lindsay Mfg. Co., 248 Neb. 81, 91, 532 N.W.2d 11, 18 (1995). Second, in context Drahota’s “allegation” was a hyperbolic statement of opinion, not a statement of fact. See Letter Carriers v. Austin, 418 U.S. 264, 284, 286 (1974) (noting that “traitor” can be used not as a “representation[] of fact” but “in a loose, figurative sense”); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 792, 508 N.W.2d 917, 922 (1993) (endorsing the Letter Carriers analysis).
A. The E-Mails In This Case Are Not “Fighting Words”
Continue reading ‘Pro Bono Free Speech Case Headed to the Nebraska Supreme Court:’ »
