Monthly Archives: April 2012
I am beginning to think that Facebook scares judges because they just don’t know what to do with it. There is next to no case law on free speech and the internet. Facebook is so vacant from the judicial records that when I went to look up “facebook poke” on Lexis, I received no results.
Now comes a ruling from the United States District Court for the Eastern District of Virginia. In order to dismiss a complaint by plaintiff’s against their former employer, Judge Raymond Jackson has ruled that “liking” something on facebook is not constitutionally protected free speech.
The case of Bland v. Roberts stems from an incident where two Hampton’s Sheriff’s employees were fired, ostensibly for not supporting the re-election campaign of Sheriff B.J. Roberts. In fact they went so far as to “like” the facebook page of Robert’s opponent, Jim Adams. The two plaintiff’s in this case did not have their contracts renewed, along with 4 others out of a total of twelve, who in some way shape or form expressed support for Robert’s opponent. A few things to note. The First Amendment guarantees, amongst other things, two very important freedoms, freedom of speech and freedom of association. Supreme Court rulings have sided with both to where an individual cannot be fired for their political affiliation, and a person cannot be fired for engaging in political speech. In this case, the two plaintiff’s political speech was limited to “liking” Adam’s campaign on facebook. The judge said that this does not amount to free speech guarantees under the first amendment. In his opinion you have to do more than that.
However, the Sheriffs knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court’s conclusion that merely “liking” a Facebook page is in sufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protection sex tended to Facebook posts, actual statements existed within the record. For example, in Mattingly v. Milligan, Mattingly posted on her Facebook wall referring directly to the firing of various employees.
So in other words, if you just like the opponents campaign, you can get fired. If you say something to support the opponent on their facebook wall, that speech is constitutionally protected. Ironically, I am pretty sure they merely “liked” the campaign because they were afraid if they did anything more they would get fired. So I guess, with your politics, be loud and proud and in your face, then you will be afforded constitutional protection… at least by Judge Jackson.
The Cyber Intelligence Sharing and Protection Act (CISPA) has been a dominating news topic in the world of internet law since the House of Representatives passed their version last week. Most of the coverage has been dominated by rhetoric of one sort or another by differing sides of the debate. Most of the argument has concerned overarching principals, but very little of it has discussed how it affects individuals. Is it the 300lb gorilla that would reduce individual liberty to a mere shaddow of an ideal? Does it affect the type of cyber security necessary to protect our national security as a whole?
What does CISPA require you to do?
In the most simplest terms, absolutely nothing. CISPA creates no obligation whatsoever for anyone using the internet for personal or business purposes. It does not even require corporations to report potentially threatening internet activity. Internet service providers are not required to limit bandwidth of possible copyright offenders. Google is not required to keep internet search records (yeah they do anyways). No one is required to do anything at all?
Wait, how then does CISPA affect me?
While CISPA does not require anyone to do anything, it allows corporations to gather information on users, analyze them (yes they often do this for commercial purposes anyways), and share any of this information, including intellectual property information, for building of internet infrastructure. Any information that that pertains to protecting their network may also be shared with the National Security Agency. On top of that, the bill affords protection against privacy lawsuits for companies who engage in this activity. Say, for example, you sign up to use a social networking product, and the licensing agreement states that the social network site will not use your information for their benefit (no social network company would do this in their right mind, but lets just say this for hypothetical purposes). If the company sells your information for the purpose of “affording protection of their network”, or decides to leak a picture to the government of you downing a fifth of Jack Daniels at a Las Vegas beach party for “security reasons”, you would probably lose a lawsuit against them for invasion of privacy and breach of contract, even though it goes against the specific terms of the licensing agreement.
How come, if the purpose of the bill is for enforcement of cyber security, is this a possible affect?
The Bill is worded fairly vaguely to where the cyber security purpose of the bill is overshadowed by the privacy implications of the bill.
President Obama has threatened to veto the bill. A White House press release states:
H.R. 3523 fails to provide authorities to ensure that the Nation’s core critical infrastructure is protected while repealing important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality, and civil liberties safeguards.
I came home yesterday to the good news that a Cook County judge threw out the Illinois Amazon Tax stating that the tax was unconstitutional.
Last year, Illinois Governor Pat Quinn signed into law the Amazon Law, which was designed to tax out-of-state goods bought on the internet. The Amazon tax is just a bad idea that would cause a decrease in revenue and cause businesses to leave Illinois. According to ABC news this is exactly what happened.
”We’ve built a home here for seven years,” said Lauren Boukas of CouponCabin.com. “The last thing we want to do is leave Chicago. “We’re all Chicagoans and love living here, but we have to do what’s best for the business.”
But leave they did. Internet retailer Coupon Cabin moved to northwest Indiana after the online sales tax law passed.
The legislation even required giants Amazon and Overstock.com to collect Illinois sales tax if they partnered with Illinois-based companies. At the time, Amazon, for one, said it would simply cut ties with Illinois firms.
As a result of the Amazon Tax, a suit was filed by the Performance Marketing Association. Cook County Judge Robert Lopez Cepero ruled on that case yesterday and stated that the Illinois Amazon Tax was unconstitutional because it violated the Commerce Clause of the Constitution.
Amazon Tax, the Dormant Commerce Clause, and the “Click-thru” Nexis
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 constitutional 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 is a principal that says 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 Amazon law that is constitutionally dubious, and has costed taxpayers tons of money. The law states 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 there has been no legal ruling on this issue until yesterday.
This is the first time a court has decided 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, Judge Cepero was correct in his ruling 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 of Quill 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.
That said, this is the very first step in a long series of litigation that will likely make it up to the Supreme Court, costing the taxpayers millions in litigation costs.
Couple gets $14million after unmasking internet troll: or why it is so hard to unmask an internet troll
I don’t know why I have to find a source in the UK to get a story as juicy as this. News outlets in the states really need to get on the ball. This type of story doesn’t happen every day. It should be in every newspaper because it is interesting, and it makes you want to cheer! Instead we hear that the Kardashian’s signed on with E! for $40million over the next three years. December 21, 2012 cannot come fast enough. But I digress.
A Texas couple has won a $14million dollar judgment after unmasking an internet troll who was defaming them by calling them amongst other things, child molesters, drug pushers and sexual deviants on a Topix.com message board. From The Daily Mail:
The Lesher’s lawsuit investigation led to six parties being named as defendants in an amended petition….
They were Shannon Coyel, the couple’s accuser from the original criminal trial in 2008, her husband Gerald Coyel and his brother James Coyel.
Finding in the Lesher’s favour the court has ordered Jerry Coyel to pay Mark Lesher $5.1 million for mental anguish and loss of his reputation.
It also ordered Shannon Coyel and Charlie Doesher to pay $1.7 million to Mr Lesher, according to the jury.
Furthermore, Jerry Coyel was ordered to pay Rhonda Lesher $3.169 million for mental anguish, loss of her reputation and the loss of her beauty salon business in Clarksville.
Also, it compelled Shannon Coyel and Charlie Doesher to pay Mrs Lesher $1.056 million each.
Neither the Coyels or the Doeshers could be reached for a comment.
The jury in the defamation lawsuit heard that since the ultimately unfounded rape allegations were heard in 2008, a total of 25,000 comments on 70 threads on Topix message boards were posted onto the Internet.
This case illustrates how difficult it is to go after anonymous trolls. First you have to find out who the troll is. If the troll is linked to a domain name, you can look them up on Whois.com, however, if they have any savvy whatsoever, they used a third party source to register the domain name. Third party sources are often under confidentiality not to reveal their sources. The only way to get them to do so is via a court order.
Yes, at the very outset, even before you know if you can get a judgment from the defendant, you need to go to court to find out who the defendant is, and going to court can get expensive. This is why I only take these types of cases when I am paid at least something up front.
The attorney files a lawsuit with an unnamed “John Doe” defendant. It is then up to the attorney to find out who the defendant is, and often times there is only a window of opportunity to do so. The attorney can get a court order to compel the domain name registrar, or the third party source to reveal the name of the party. However, you now have jurisdictional issues if say, the case is filed in Oklahoma, and the third party registrar is in, say Arizona.
If the anonymous source is merely an IP address it can get even harder. The lawyer then has to hire a computer forensics expert to search for the defendant, and that too can get very costly. By the way, the cost for the forensic expert would need to be paid upfront as well.
This is pretty much why it is difficult to see this sort of case to then end. It can be very difficult and very expensive. But if you can get a $14million judgment out of it, more power to you!
Here we have yet another reason why bloggers need advocacy.
A blogger writing a blog on his personal experiences combating diabetes using the “paleo-diet”, is threatened with a government mandate which could send him to jail for “practice of dietetics or nutrition” without a license. The blog, Diabetes-Warrior.net, was started as a result of the blogger, Steve Cooskey changing his lifestyle in his fight against diabetes after he was hospitalized in 2009.
The complaint comes from the state diatetics and nutrition board, which regulates the dietician profession. In order to avoid jail he needs to virtually shut down and delete his blog. This is in spite of the fact that he placed this disclaimer on every post ““I am not a doctor, dietitian, nor nutritionist … in fact I have no medical training of any kind”.
From the Carolina Journal:
Declan McCullagh, a CBSNews.com correspondent who writes about online free speech, says the board probably is violating Cooksey’s First Amendment rights.
“The First Amendment says state and federal governments ‘shall make no law’ abridging freedom of speech,” McCullagh said. “It doesn’t say ‘except for what annoys the North Carolina Board of Dietetics and Nutrition.’”
McCullagh pointed to a sentence in Cooksey’s blog the board didn’t approve of: “I do suggest that your friend eat as I do and exercise the best they can.”
“If that language appeared in a book or a magazine article, do you think the board would complain?” McCullagh asked. “How about if someone said that to a friend over dinner at a restaurant? Of course not. But because it’s on the Web, they seem to think that the First Amendment no longer applies.”
A couple of key points. If Cooskey was offering paid services then the state would have a case. However, blogging would have nothing to do with the paid services, the paid service itself would be the violation. Anyone can offer lay opinion. News editorials offer lay opinion on legal issues all the time (and they are more often than not wrong). Are they practicing law without a license? Clearly not. Their activity is covered by the first amendment. The same applies here.
On my blog, on posts where I opine on legal situations, I always include a disclaimer stating that the information contained is not legal advice, and that the reader should consult a lawyer before doing anything. If Cooskey’s disclaimer is not enough, then what is to say my disclaimer is enough, should someone decide to act on the advice given?
I recently spoke on a panel discussion on legal issues facing bloggers at BlogCon 2012 in Charlotte, NC, generously sponsored by FreedomWorks, and the Franklin Center for Government and Public Integrity. I intended to discuss a very important case currently being litigated in the United States District Court for the District of Oregon, but ran out of time.
In my opinion, this case shows the need for first amendment issue advocacy on behalf of bloggers, and also expressly shows why it is important for bloggers to have insurance.
The facts of the case are simple. The defendant made statements on her blog which may have been defamatory. The Plaintiff filed a defamation suit against the defendant. The judge dismissed on summary judgment all but one of the issues contained in the complaint (a summary judgment is where a judge rules that there is no issue that needs to be brought to trial, and that as a matter of law, the case is decided in one way or another). On the one issue that remained, the judge ruled very strongly against the first amendment rights of bloggers.
While the court stated that shield laws did not apply, due to the information being allegedly defamatory, the Court also opined on how shield laws should apply to bloggers.
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
So, shield laws do not apply to bloggers because they are not “media” because they are not affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, etc. etc. This is an important factor to think about. Is it a requirement under the law to be “affiliated” with a news service to be considered “media”? This is particularly interesting because the law cited in the previous paragraph states that the “Medium of Communication” is broadly defined, and is not limited to “News papers, magazine, periodical, etc.”. So is the court here narrowing the scope of the definition of “Media” to explicitly exclude bloggers?
Anti-SLAPP and the First Amendment
Oregon has an anti-SLAPP law. The defendant made the mistake of not attaching the anti-SLAPP motion at the outset, however the judge said that this didn’t matter because in this case the First Amendment protections did not apply in the first place. If the plaintiff is a public figure, then in general, the plaintiff has to prove that the defendant had “actual malice” in stating the false or defamatory statement (see. New York Times v. Sullivan, 376 U.S. 254 (1964)). In this case the judge ruled that the plaintiff was not a public person or even a limited public person, so actual malice is not the standard. This is not the important part. If the person is not a public person, then the plaintiff still needs to show that the defendant was at least negligent in their publication of the false or defamatory comment (Gertz v. Welch 418 U.S. 323 (1974)). The court ruled that Cox was not a media defendant, and so Gertz did not apply, therefor not allowed the First Amendment protections afforded to the media.
Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
Again, we have the court applying a test to define what is and what is not considered “media”. The court stated that the defendant showed no evidence to define her as media. But, should she have to? Shouldn’t the court rule in favor of First Amendment protections, and leave it to the defense to prove in front of a jury that she is somehow “not” media? How can this be a ruling as a matter of law?
Need for Advocacy
Cases like this are likely to come up, and judges are likely to rule in the very same matter. This is why bloggers need advocates. They need advocates to reform legislation to specifically mention “bloggers” as media because the nature of media is changing, and the courts are slow to recognize this. With the shuttering of many small market newspapers and the shift of the remaining groups away from expensive investigative reporting, it has been up to bloggers and online media groups to pick up the slack. They cannot do it alone, there needs to be cohesion amongst bloggers to protect their first amendment rights. There needs to be active advocacy on behalf of bloggers.
Need for Insurance
As I stated last week at BlogCon, bloggers need insurance, and this case is a prime example of why. Originally the defendant defended herself pro se, and I speculate she did so because she could not afford legal representation. This was largely a mistake and she lost largely because she did not have the necessary legal training. But more importantly the amount in controversy is $2.5 Million. $1.5 Million to the Finance Group, and $1 million to the named plaintiff. This types of lawsuits have the potential to render many bloggers destitute for merely exercising their first amendment rights. Insurance could have the effect of both helping to pay litigation costs, and making payouts in the event the defendant loses. Like I stated before, insurance programs for bloggers are in development. In the mean time, bloggers need to check to see if they are covered under their existing insurance programs
The entire court opinion can be read here.
First there was the cumbersome named and even more cumbersome acronym, Combating Online Infringement and Counterfeits Act (COICA). This bill died in committee. Then there was the more simply named and Stop Online Piracy Act (SOPA) and its brother in the Senate, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA- originally PROTECT IP). SOPA was referred to committee on the House floor, PIPA was placed into permanent suspended animation in the Senate.
Now comes the Cyber Intelligence Sharing and Protection Act (CISPA). It doesn’t have the teeth of COICA, nor the cool acronym of SOPA and PIPA, but could it pass? It seems that every new version of this bill erodes the power and control of the federal government in exchange for either greater support or less opposition by corporate interests and digital rights advocates.
There are differences between SOPA and CISPA. First, CISPA does not put onus of enforcement on internet service providers. Under SOPA, ISP’s were required to strangle bandwidth from sites suspected of violating copyright. Instead the responsibility for protecting copyright is on the copyright holders themselves. CISPA also does not create a necessarily antagonistic relationship between internet companies and the government. Instead it encourages information sharing for the sake of increased cyber security. While shifting balance between privacy and cyber security will always be controversial, it may be necessary given the increase in cyber attacks over the past five years.
It maintains to be seen whether or not this bill can attain what SOPA and COICA couldn’t, enough bi-partisan support to pass and amend the national security act.