Monthly Archives: June 2011
Yesterday I wrote that the Tennessee ACLU was planning to sue the State of Tennessee over their new cyberbullying law, which was scheduled to go into effect July 1. Now it appears that the State may give another look. From the Daily News Journal:
We were told it doesn’t. And I still stand to be corrected,” Ketron said. “If it does, we’ll change it, because that was not the intent. The intent was to keep these kids from destroying other kids’ lives.”
The ACLU of Tennessee, which plans to file a lawsuit against the legislation, contends Public Chapter 362 violates free speech and expression guaranteed by the First Amendment. Ketron’s legislation is set to take effect Friday.
The ACLU says the law would make it a crime to post any image online that causes “emotional distress” to a person. Even though it was intended to curb online harassment, the law is too broad and sets no definitions for offensive or disturbing speech or images, the ACLU’s statement says.
They part of the law here is that the image causes “emotional distress”. I had mentioned void for vagueness before, but let’s put that aside for now, and look at the “emotional distress” issue. Emotional distress is a legal term of art, which arose out of tort law in the torts of negligent and intentional infliction of emotional distress. Since this type of crime would be a specific intent crime, the analysis would be more similar to Intentional Infliction of Emotional Distress (IIED). If we were to make the jump and relate the criminal aspect of this law to the “emotional distress” in tort, then the key element is “extreme and outrageous conduct”.
Back in March, the Supreme Court ruled on IIED and how it relates to the first amendment. The case, Snyder v. Phelps, Doc. No. 09–751, concerned the emotional distress inflicted upon those attending the funeral of a fallen Marine by the members of the Westboro Baptist Church, who were present there protesting. The Supreme Court concluded that the Freedom of Speech guarantee of the First Amendment protected the Westboro Baptist Church against the IIED tort. Taken to its logical conclusion, this means that Free Speech trumps the effect of emotional distress. This lends credence to the argument that the Tennessee anti-cyberbullying law is unconstitutional because the type of speech anticipated is protected by the first amendment, and that this protection is not surmounted by the emotional distress suffered by the individuals who may see the image.
With all this going against them, it is wise that the Tennessee legislature take another look at the law.
Wiretapping has not really been in the news since the second Bush administration, when the issue focused on warrentless wireless wire taping by the National Security Agency, and whether this goes beyond the scope of the Foreign Intelligence Surveillance Act, 36 US. SS.1801-1812, (1978 Amend. 2001,2007,2008). The foil to the governments ability to wiretap was technology. Companies like Vonage and Xfinity produce a technology which uses the internet instead of phone lines to make more or less conventional phone calls, called Voice over IP, or VoIP. Unlike conventional phone lines, there was no ordinary means by which to tap into VoIP calls from the outside. Now it appears that Microsoft, has developed the technology which allows for government surveillance of Internet communications. From TechNewsWorld:
The patent application, number 20110153809, states data associated with a request to establish a communication is “modified to cause the communication to be established via a path that includes a recording agent.”
Such modification may include “adding, changing and/or deleting data within the data.”
That modified data is then passed to a protocol entity that uses it to establish a communication session using a path that includes the recording agent, which is “then able to silently record the communication,” the application says.
Communications that can be intercepted may be conducted over computers, laptops, set-top boxes, programmable consumer electronics devices, personal digital assistants (PDAs), smartphones, gaming devices, printers, computing devices in automobiles and home media centers, the application states.
The applications of this type of software are unending. However the principals of law rooted in the fourth amendment remain constant. No unreasonable searches and seizures. No doubt civil liberties groups will keep close watch on this sort of development, and will be mindful towards any possible violations of privacy rights. However, this type of software does provide an increase of power for Big Brother. In the 1984 Superbowl, the one where the L.A. Raider handed the Washington Redskins their own perforated asses 38-9, perhaps the most boring game ever, the highlight was a commercial produced by Apple for the launch of their new computer system called Macintosh. The commercial famously showed an Orwellian universe where workers were being fed propaganda by Big Brother. Our hero, a muscular blonde woman, launches a sledgehammer into the screen, which destroys the image of Big Brother. The famous caption read “On January 24th, Apple Computers will introduce Macintosh. And you’ll see why 1984 won’t be like “1984″. Now it is looking like 2011 and beyond will be more and more like “1984″, with this technology. I doubt Steve Jobs would even care, he maybe has already bought into the system. However, in the whole Microsoft v. Apple world that exists at least in the mind of the consumer, perhaps it is time for Apple to launch another metaphorical sledgehammer into Big Brother.
I wrote an article a few weeks ago about a new Tennessee law which would criminalize Internet “Harassment”. The main point of the article is that the new law would not pass constitutional muster. I included a rather long section about obscenity, the first amendment and “void for vagueness”. Seems like I was pretty much on point with all of my arguments. The American Civil Liberties Union (ACLU) is poised to sue the state once the law goes into effect on July 1, 2011. From the Daily News Journal:
This new law, which goes into effect on July 1, would make it a crime to post any image online that causes “emotional distress” to any individual.
“This new law creates a chilling effect on expressive political, artistic, and otherwise lawful speech and also turns political activists, artists and others into criminals,” said Hedy Weinberg, ACLU-TN executive director, in a press release. “In addition, anyone with an online presence, such as social media users, becomes vulnerable.”
The “offensive images” law was intended to curtail Internet harassment but provides no criteria for determining what is offensive or disturbing. The new law’s overly broad and vague language leaves everyone with an online presence vulnerable to prosecution, the ACLU press release said.
There are times when I agree with the ALCU, there are times where I disagree vehemently with the ACLU. This is one point where I am in agreement, not for any moral or libertarian reason, but because I believe the law to be objectively unconstitutional. The purpose of the doctrine is for lawyers, jurists, and especially laymen to understand what conduct is and is not lawful conduct, and this law fails at this miserably. I do agree that internet harassment is a problem, and there it needs to be curtailed, but this is will not work.
The end result, the law will probably be enjoined at the outset, and Tennesseans will immediately be able to go back to doing disgusting things on chatroulette. Don’t know what chatroulette is, and what it is for? Ask Jon Stewart.
The use of Google searches in investigations have been in the news lately. I really do not care about the Casey Anthony trial. If there is a news report on it, I turn off the TV or radio. However, I was intrigued by once piece of evidence, Google searches for the word “Chloroform”. Anyone who has ever watched a cloak and dagger movie knows that chloroform is what the bad guys use to knock the good guys out. Interesting to think how investigators were able to get the information they needed. It turns out that Google complies with information requests from the United States, 94% more than any other country. From the Forbes Magazine’s blog “The Firewall“:
Google received 4,601 requests for data from the U.S. government during those six months, more than twice as many as from any other country. But its report doesn’t differentiate within those requests between criminal investigations and emergency requests in other cases, in which Google is not legally bound to hand over the data.
In many other countries, the Internet giant is far less likely to comply with the government’s demands. Google only gave the Brazilian government information in 76% of the 1,804 cases in which the country requested it, and for only 72% of the U.K.’s 1,162 requests. It took an even stronger line against countries like Poland, Hungary and Turkey, giving over data in only 33 times out of the 272 in which Poland requested it, and in none of the 45 Turkish or 68 Hungarian requests.
The article does mention that Google is currently under investigation for anti-trust violations. This may help explain Google’s willingness to cooperate. It still makes you wonder how often Google complies with requests from China.
I was an undergrad student at Harper College and the University of Illinois in the late 90′s. Without admitting any wrong-doing, I was a big fan of Napster. Who wasn’t? By “networking” with “friends”, you could download any album you wanted via the filesharing network. Theoretically, you were doing nothing wrong. It was just copying and sharing, like making a mixtape for your girlfriend except, instead of your girlfriend it was some random dude in his mother’s basement, and instead of a mixtape, it may have been 5% of the new song by Green Day. Still, Free Music! It was great. We didn’t think of the consequences, like putting Tower Records out of business (My local Tower Records was featured on the cover of the 1994 Toad the Wet Sprocket Album “Acoustic Dance Party. It closed in 2004 and is now an REI).
I sometimes yearn for those blissful times when we were free to do what we wanted with the internet. Ever since the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have started to crack down on piracy, it is a lot less fun, and a lot more difficult to get free music and video. Now they have enlisted a new warrior in the fight against pirates, your ISP. As reported by CNET Comcast, AT&T and other large Internet Service Providers will now assist in tracking individuals who illegally download. Why was this dead struck? In theory, ISP’s were facilitating piracy by providing the means for individuals to illegally download music and videos. This leaves them open to liability for those actions. As a result they have been pressured to enter into this deal with the music and movie industry. Who is facilitating this? None other than the White House. From the CNET article:
In addition to the NCTA, the White House was also instrumental in encouraging the parties to reach an agreement, the sources confirmed. President Obama has said intellectual property is important to the country’s economy and has vowed to step up the fight against piracy and counterfeiting. His administration has lobbied Congress the past several years to pass new pro-copyright legislation while instructing federal law enforcement to make antipiracy a priority….
As a result of those efforts, it’s tough to deny that most of the momentum in the online copyright wars appears to be with content creators. In the past year, a federal court ruled that the top music file-sharing service LimeWire induced copyright infringed and ordered the network be shut down. In recent months, the U.S. Immigrations and Customs Enforcement (ICE) agency has seized domain names from dozens of sites accused of trafficking in pirated content or counterfeit goods. In the U.S. Senate, lawmakers are expected to pass legislation that would enable the government to block U.S. Internet users from accessing alleged pirates sites based overseas.
Skyles Law Group, LLC, focuses its practice on Internet Law. I have experience with cases similar to this one. Either side could have come to me and I would have given good advice, but they didn’t. Oh well, here is what I have to say.
News sites and blogs are buzzing today about a cease and desist letter sent to a California blogger by the retail chain, Forever 21. Here is the breakdown. Rachel Kane owns and runs a blog called WTForever21, with the URL http://www.WTForever21.com. The blog name and URL are obviously amalgamations of the retail chain “Forever 21″ and the internet chat acronym, which is short for “What the (Fiddlesticks)”. Put them together you have WTForever 21. The blog is a satirical look at the products and the business practices of Forever 21. To fulfill its satire, it uses images of products from the website, to criticize the products. I have very little personal knowledge of Forever 21, and its product line. My wife tells me that most of the stuff they sell is crap knockoffs of designer fashion, which in itself might be an infringement on intellectual property, but I digress.
The blogger received a cease and desist letter from Forever 21, which was reprinted by Jezebel.com. The letter basically states that the URL, the website name, and the use of images from their website all infringe on Forever21′s trademark and copyright. This is a classic SLAPP suit, or Strategic Lawsuit Against Public Participation. A SLAPP suit is one designed to keep people from saying something about a company, individual or organization. They are usually initiated by wealthy groups or individuals against critics with less resources, with the intent of keeping them silent due to the high costs of fighting the suit. Even if there is an infringement, Forever 21 may not be able to prevail in a law suit, because Rachel Kane has a defense rooted in the First amendment.
I recently worked on a similar case on the plaintiff’s side. A client had a website which posted information. An individual who was not happy with the information being posted decided to put up a fake site whose name was identical, and url was almost identical, except for a few dashes between words, and other modifications. If read out loud, the URLs would be identical. The site was not a satire, but one which attempted to “expose the truth” about the writer behind my client’s site, the site also claimed asked for donations to their fake organization. I sent a cease and desist letter telling him to take the site down, that the site infringed on copyright and trademark, that they were fraudulently representing themselves as an organization and soliciting for donations. Lastly, because they were committing fraud, if they were sued and had a judgment against them, they would not be able to discharge through bankruptcy. It was a pretty harsh letter. After some sabre rattling, the person took the site down, and the situation was over.
This situation is very different. First, the standard for trademark infringement is that the mark must create a “likelihood of confusion” that the average person would mistake it for the real mark. In other words, a reasonable person must be dumb enough to think that WTForever 21 is actually Forever 21. In the case I worked on is distinguishable because there was an actual likelihood of confusion. The URLs were almost identical, and would sound the same if read outloud. The use of WTF diminishes the possibility of confusion both because of the satirical tone, and the disimilar look and sound.
Secondly the content, and use of images is covered by fair use. Fair Use is defense to copyright and trademark infringement covered by the Copyright Act of 1976, 17 U.S.C. § 107, which states:
Section 107. Limitations on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
This horse has not just been beaten to death, it has been fully processed into dog food. However, I just wanted to bring your attention to a great post by Alexanda Petri on the Washington Post’s ComPost blog. She makes some great points concerning “privacy” or the non-existence thereof, on the Internet, and why these sorts of scandals will never go away. I think this paragraph really sums up the article.
But if the Weiner scandal were good for anything — and it won’t be, because as long as we view his sin as Getting Caught After Idiotically Sending The Picture To Everyone Rather Than Just Someone, we won’t mend our ways — it would be for puncturing the delusion that we can get away with things online that we could not get away with in real life. Sure, online sins are comparatively venial. The Internet, as Shakespeare’s porter said of drink, provokes the desire but takes away the performance. But they are infinitely more public. Before, we only heard what you had done. Now we have pictures, and added to the thrill of watching Weiner fall is our thrill at not being caught. “How dare he do that?” we laugh knowingly. “The fool! Who sends such lewd images?” More people than you’d think. Married. Single. In-between. On the Webcam network ChatRoulette, one in four cameras is aimed at the same anatomical region that Weiner favored.
I am not going to embed or post a link to copyrighted material posted unlawfully on youtube, but please feel free to go to youtube and do a search for “The Internet is for Porn”, and listen to the delightful sesame street parody, which illustrates the entire point of this post, and why in the age of the internet, political and celebrity sex scandals will never disappear.
In the alternative, I will post a video signifying that this indeed, will be the “last post” on the subject of the Weiner scandal. (Unrelated, but related to the video, God Bless all our veterans, who served our country with more honor and dignity than a certain ex-congressman from Queens, NY.)
A few days ago I wrote about an article about a proposed bill in Tennessee that would make it illegal to share, of all things, sharing your Netflix password. Now, Tennessee is cracking down on pictures you post on twitter, and facebook. It seems to me that Tennessee is the state now at the forefront at regulating how we use the internet.
At the end of last month Tennessee Governor Bill Halsam signed into law, HB 300 , a bill whose stated purpose is to crack down on cyberstalking. However, the vague language of the bill make it appear to do much more. It essentially makes illegal sexting, posting a potentially distressing images on facebook, even tweeting a picture of your private parts in your underwear.
From Volokh Conspiracy:
Friday, a new Tennessee law was changed to provide (new material italicized):
(a) A person commits an offense who intentionally:
(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:
(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or
(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
Under the vague language of this law, it is possible that disgraced, soon-to-be-former congressman, Anthony Weiner, could have broken the law in Tennessee if there was any indication that the recipient of his tweets, with nothing more than reckless intent, if the viewer was intimidated by the image.
It seems though, that this law would most likely be void for vagueness, in that it would be impossible to enforce given the first amendment implications. The void for vagueness doctrine was articulated by Justice Sutherland in the case, Connally v. General Construction Co., 269 U.S. 385 (1926), where he states:
[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
In this case, the most vague term is “without legitimate purpose”, in that the law does not explain what a legitimate purpose is, or isn’t. There are no guidelines, so the individual is forced to “guess” on how to define it. If the law does not specifically enumerate what is and what is not allowed, then it is constitutionally void for vagueness, and the court will nullify the law.
The first amendment implications are vast, particularly if the image transmitted was of a pornographic nature. The test for describing whether or not an image is obscene comes from the case of Miller v. California, 413 U.S. 15 (1973). Miller creates a three pronged approach for determining whether an image is obscene:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
If any of the three items is missing, then the image or content is protected by free speech. In practice, the Miller test has lead to a opening wide the prevalence of pornographic imagery because it is difficult to create a law that sets standards which do not run afoul of void for vagueness. Laws which are upheld tend to deal with child pornography and beastiality.
All things considered it is very likely that the new Tennessee Law will run afoul of both free speech interests and void for vagueness.
Let me start off by saying, unless Senators Amy Klobuchar, and Christopher Coons want to ensure that the Democratic Party is labled the anti-net-freedom party, this bill will never get out of committee (Yes Republican John Cronyn is also a co-sponsor, but he’s such a luddite, he may think the internet is a series of tubes). In short, the bill attempts to reconcile existing civil and criminal copyright law to extend to embedding videos on Youtube and other sites, where individual views may be considered considered “performances”. From Tech Dirt:
Supporters of this bill claim that all it’s really doing is harmonizing US copyright law’s civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing — but not performing. So, supporters claim, all this does is “harmonize” copyright law and bring the criminal side into line with the civil side by adding “performance rights” to the list of things.
If only it were that simple. But, of course, it’s not. First of all, despite claims to the contrary, there’s a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.
The penalties for infringement are very harsh, according to the article, 10 “performances” could land an individual 5 years in prison. The definition of “performance” is ambiguous, but it could mean that if you post a copyrighted video on youtube, and it gets 10 “views”, it may be enough to get 5 year term. You can view the full text of the bill here.
It appears the a new version of the Texas “Amazon Law” is on its way to the desk of Governor Rick Perry for signature. If signed, Texas will join Illinois, New York, California, Colorado and Iowa in attempting to tax out of state goods purchased on the internet. Governor Perry has vetoed a similar measure before, and it would be wise for him to do it again for two reasons. The law will face a difficult constitutional challenge. Texas business will suffer and it will have the unintended effect of decreasing revenue, in spite of an increase of Taxes.
Amazon Law, the Dormant Commerce Clause, and the “Click-thru” Nexis
In a response to a decrease in sales tax revenue, states have recently attempted to in act so-called, Amazon Laws, which are designed to tax out-of-state goods bought on the internet. As stated in a previous post, these attempts to collect-out of-state revenue have run into trouble through a difficult and complicated aspect of constitutional law known as the Dormant Commerce Clause. The dormant commerce clause is probably one of the most difficult concepts of constutional law, it is the bane of every law students existence. Constitutional law courses will spend three or more classes and a hundred pages of boring case law on this aspect of law, and in the end, the average law student will still have no clue what it means. In a nutshell, as applied to taxes, the dormant commerce clause states that states cannot initiate a tax that would hurt interstate commerce. Currently the principal case on the issue is Quill Corp. v. North Dakota , 504 U.S. 298 (1992). The holding from the United States Supreme Court states that here has to be some substantive nexus with the state in order for the state to collect taxes. In English, this means there the company has to have some sort of “presence” in the state.
Here is the part of the bill that is constitutionally dubious, and will end up costing millions of tax payer dollars in litigation. The bill, and similar bills to it, state that a nexus is created when Amazon enters into an agreement with an in-state company, or “affiliate”, to refer customers via a “click-thru” in exchange for commission or revenue sharing. In English, it is like this. You see those banner ads on websites that have advertising on them? When you click on them, they send you to an e-commerce site. The website that is hosting the banner add collects advertising revenue from the e-commerce site, based on the number of clicks. The law states that if Amazon, or any other e-commerce site, creates this type of agreement with a website, then the nexus between Amazon and that state has been created, and the burden is on Amazon to show that one has NOT been created. This is the legislature’s attempt satisfy the holding of Quill with regards to out-of-state internet commerce, the problem is that none of this has been litigated.
For the next decade, the courts will litigate whether or not affiliating with an in-state company will create the logical nexus necessary to satisfy the holding of Quill; or whether there needs to be some physical presence of a company in state to satisfy Quill. From my opinion, it does not look good for the states because the purpose of the Dormant Clause, and the holding of Quill is to encourage interstate commerce. Quill did not anticipate the advent of e-commerce, it was decided in an era when Prodigy was the “new big thing” and users had to put their phone receivers on the modem to connect. Quill focused on catalog services. However the principals still apply. If I were to make an analogy, it would be like a New Hampshire catalog company being charged Illinois state sales tax because they use a printing press in Illinois. It is difficult to believe that Quill would allow for this situation.
Loss of Revenue
As was done in Colorado, and is threatened in Illinois, Amazon will respond to this by closing its distribution in Texas, nullifying a physical nexus. It will then cancel its affiliations in Texas. Amazon is so big, that losings its affiliates in Texas will not hurt Amazon. Amazon will still be able to sell in Texas and collect money from Texas consumers without being taxed. This will hurt Texas because Texas companies will not be collecting “click-thru” revenue from e-commerce companies that remove their affiliation with Texas businesses. Not only will this affect Texas companies ability to collect money, it will also decrease the amount of taxable revenue for the State. The end result is less jobs, and less revenue, the exact opposite of the desired effect.
These attempts at gaining revenue are bad news, and Governor Perry should strongly consider vetoing the bill as he did before.