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In the Wake of a National Tragedy…
Before I was a licensed attorney, I worked in journalism, not as a reporter, but as an analyst. I am very well aware of the ethical standards that “should” apply to the media profession, but often doesn’t. Today we are in mourning for innocent lives lost in Connecticut, but in the rush to get a story, the media botched items up big time. In attempting to identify the shooter, the media identified and broadcasted the name and image of the wrong man. Fox News, CNN and CBS named the shooter as “Ryan Lanza”, when in reality it may have been this man’s younger brother “Adam Lanza”.
This man is not a murderer. He is a victim of a press without scruples.
Apparently, according to Business Insider, Mr. Lanza took to his facebook account to vent his frustration.
This man may have lost his father, his mother, and his brother today, along with the feeling of being associated with one of the worst cases of mass murder in history. His name has been broadcast as the perpetrator of a horrible crime at the same time. Above everything, he needs to have our sympathy and prayers. The media really screwed up big time today. There are several causes of action Mr. Lanza could have against the agencies that reported this blatantly irresponsible information. Among them, invasion of privacy- false light, and defamation. Mr. Lanza did not ask to be thrusted into the situation. He was put there by grossly negligent actions of several large news agencies.
While I can never feel what he’s going through I can sympathize. A few years ago, a friend of mine had a sibling (who I had only met once), who was involved in a mass school shooting. The press was not sympathetic to her either, but at least they didn’t accuse her.
If Mr. Lanza reads this, I am more than willing to take on the case, free of charge, and I will work as hard as possible to see that he receives a just and fair result.
Both GOP and Democrats include anti-PIPA/SOPA in Party Platforms
It appears both the Democrats and the Republicans agree that PIPA/SOPA is a bad idea, a conclusion they probably came to when the internet blew up earlier this year in the wake of both pieces of legislation working their way through congress. Now it seems that both parties have decided to oppose the measures in their respective party platforms.
First it was the Republicans, spearheaded by Senator Marco Rubio R-Fla, who has been at the forefront of this issue since this past January, and played a large influence in forming the plank on the GOP platform. From the Washington Post:
GOP adopts Internet freedom plank: Part of the platform the Republican party adopted Tuesday night included language to protect Internet freedom, something that lawmakers and interest groups on both sides of the aisle have been calling for in recent months….
The Republican plank is focused on removing regulation around technology businesses, as well as language that would protect personal data online from the government. The platform language also says that the party will “resist any effort” to move Internet governance away from its current multistakeholder model in favor of international or “intergovernmental” organizations.
President Obama has also come out in favor of including and Anti-SOPA/PIPA plank on the Democratic Party platform after it was included on the GOP platform. From deathandtaxes:
Yesterday, during his Reddit AMA, President Obama stepped up and joined the call for internet freedom, saying that it would also be in the DNC’s platform at the upcoming Democratic National Convention, and writing, “Internet freedom is something I know you all care passionately about; I do too. We will fight hard to make sure that the internet remains the open forum for everybody.”
Where the two parties differ is over the issue of Net Neutrality, with Democrats supporting Net Neutrality and Republicans opposing it Net Neutrality is the principal that government should regulate internet service providers by preventing the ISP’s from limiting bandwidth as a means of edging out competitors. It is a major sticking point between those who want internet regulation to keep the internet open for consumers, and those who feel that ISP’s should not be regulated.
No matter how you look at it, Net Neutrality is government regulation of the internet, even if it is merely regulating the actions of ISP’s. As much as it appears like a good thing on the surface, it opens the door for more government regulation of online activity. If this is the major conflict related to internet regulation, I for one, welcome the debate.
Federal Laws take aim at Amazon Tax Issues
Sorry I have not been writing for a while. Skyles Law Group is getting off to a great start, and I have been preparing to move offices. This, combined my obligations to actually practice law, means I have not had any time to blog, and there has been a lot of news lately. I have not been writing about the changes in ICANN , or the legislative activities involving PROTECT-IP and SOPA, (aka. Lucifer and Beelzebub), even though they have been in the news lately. This will change.
Continuing with previous themes, there has been developments in the Federal Amazon Law. The Venerable Declan McCullagh over at CNET has written a comprehensive article on the subject. In short, while Amazon.com has endorsed one of the two bills going through congress, others are not on board and are preparing to fight. Here is an exherpt.
“It (Ebay) is the largest retailers that are growing,” Cohen will tell a House of Representatives committee tomorrow, according to remarks obtained by CNET. “And not surprisingly, those giant retailers are lined up united in proposing a change in remote sales tax law.”…
eBay’s remarks represent an escalation in the war of words between it, Amazon.com, and big box retailers. An excerpt from Cohen’s (Tod Cohen, Ebay’s General Counsel) remarks:
The largest retailer on the Internet, Amazon, is a business with a national network of facilities, and is growing fastest. The giant “Brick & Click” retailers are also growing their market share online. In short, while small business retailers are active online and are adopting technology, they are not winning the race under the status quo…
The face of retail has changed dramatically over the past four decades. At the heart of the story has been the expanding dominance of giant retailers at the expense of small business. Giants have grown more dominant in retail; small independent retailers have been pushed to the edges. To illustrate, big-box discount retailers accounted for 42 percent of total retail sales in 1987. As of July 2010, their market share had jumped to 87 percent… The retail giants make up 18 of the Top 25 retail websites today…
The article addresses the main problem with the state Amazon laws, namely the Quill decision. It accurately states however, that Congress could step in, and that is exactly what Congress is doing in this case. More to come I am sure.
Supreme Court Refuese to Hear ASCAP Appeal Over Downloading
Today, the Supreme Court refused to review a ruling by the United States Court of Appeals for the 2nd Circuit over the 
issue of whether or not legally downloading a music file is considered a “performance” for the purpose of copyright law. The Court of Appeals said “no”, and by refusing to hear the case (legal term: grant certiorari) the Supreme Court has let the previous ruling stand by default.
At stake were potentially hundreds of millions of royalties which would have been paid to composers if a digital download were to be considered a “performance”.
The suit was brought by the American Society of Composers, Authors and Publishers (ASCAP), a non-profit organization who’s primary purpose is to collect performance royalties for its roughly 400,000 members. They are the ones responsible for the scenario:
You’re at a restaurant, somebody is celebrating their 40th birthday. All of a sudden the wait staff comes out clapping and carrying a big cake covered with sparklers. You expect a rousing rendition of “Happy Birthday”, but instead, it is some drab awful sounding birthday cheer, chanted by a gaggle of overworked and underpaid waiters and waitresses, who would rather be at home playing Xbox. This scenario is brought to you by ASCAP. They own the copyright to “Happy Birthday” and will not allow the restaurant staff to sing it, without paying them a performance royalty.
Two years ago, the Court of Appeals ruled that downloads are not considered performances under the Copyright Act simply because nothing is played: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener”. Instead, it is considered a “reproduction” and would not be subject to performance royalties under the act.
The Supreme Court issued its ruling without comment. (ASCAP v. United States, No. 10-1337)
Your ISP may be gaming you for money
On August 4th, Reese Richman LLP, a New York Law Firm, filed a law suit against an as-of-yet undisclosed Internet Service Provider, alleging that the ISP is hijacking search queries for profit. How? allegedly, they are hijacking the search queries to gain affiliate dollars by driving traffic to specific sites. From Search Engine Watch:
According to Reese Richman, here’s how it works: Paxfire developed and patented a technology that would allow local ISPs to take control of a user’s search query when the user was targeting specified terms. Instead of connecting the search query as normal, the ISPs take users directly to a related site.
Why? The “related site” is typically an affiliate link related to the search term.
On the defense, as always, is the Electronic Frontier Foundation, and Peter Eckersley. They have developed an add-on to FireFox valled HTTPS Everywhere. HTTP is known the beginning of every address accessed vis-a-vis a search engine (as opposed to “file” or “ftp”, which are accessed through a direct connection with a particular computer or server). It stands for “Hypertext Transfer Protocol”. HTTPS is what appears when you are on a secured website, such as one where you enter in credit card information service. It stands for “Hypertext Transfer Protocol Secured”. What “HTTPS Everywhere” does is secure all the websites searched through the browser where the add-on is attached, as if it were the type of secured site you could send extremely personal information, ie- not hijack-able.
So in short, the advice of the day is, download FireFox, use it exclusively, add add onto it “HTTP Everywhere”, from our friends at the Electronic Frontier Foundation.
ACLU Plans to Sue Tennessee Over Internet “Harassment” Law
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.
Search the Internet in Private? Not on Google
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.
Reigning in the Wild West: ISP’s to Target Pirates
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 R
ecords 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.
Last Post on the Weiner Scandal
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.)
So long!
Tennessee “cyber-bullying” Law Won’t Pass Constitutional Muster
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.
James Skyles
