Web Restrictions Not The Answer to Juror Online Research

Juror use of the Internet to do research or communicate about trials is a growing and persistent problem. So, what can a judge do? For several years now courts have been giving jurors more detailed admonitions and jury instructions against educating themselves about cases online, to little effect.

A few judges have taken a different approach, ordering web sites with information on specific cases to remove the information from the Internet. But in a pair of recent decisions, appeals courts have said this method of limiting juror online research is an unconstitutional prior restraint.

Fifth Circuit

In Lafayette, Louisiana, several former and current city police officers maintained a website (, no longer online but archived here) that supported their civil rights lawsuit against the city for allegedly barring them from discussing or reporting what they allege is corruption of the city's police chief. Among the items posted on the site were audio recordings of a meeting discussing possible charges against officers who were in a bar after hours.   read more »

Boston Police Charge Two Journalists With Felonies For Doing Their Jobs

This is a well-known story to DMLP readers, but it bears repeating today. On October 1, 2007, a lawyer named Simon Glik saw members of the Boston Police arresting a suspect on the Boston Common in a way that he thought was excessive, and began recording the police from several feet away. The police didn't notice him at first, but eventually approached him and asked him if his phone was recording audio along with the video. When he informed them that it was, he was arrested and charged for aiding the escape of a prisoner, disturbing the peace, and unlawful recording under the Massachusetts wiretap act.   read more »

Ice Roads and Chilled Speech: ECHR Tags News Portal for Reader Comments

The Chamber of the First Section of the European Court of Human Rights held unanimously on October 10 that making a news portal liable for defamatory comments posted by its readers does not violate article 10 of the European Convention of Human Rights protecting free speech.

This decision, Delfi v. Estonia, may have negative effects on freedom of expression on the web as sites may become concerned about the responsibilities they could face if they keep their digital soap boxes open to the public.

Here are the facts of the case. Applicant Delfi, one of Estonia's largest news portals, allowed visitors to post comments about articles published on the site. About 10,000 comments were published every day, most of them anonymously. Delfi did not edit or moderate the comments, but those including obscene words were deleted automatically through a word-based filter. Also, users could flag insulting or hate-inciting comments, which were then removed. Victims of defamatory comments could contact Delfi, which deleted such comments immediately.

In January 2006, Delfi published an article about an Estonian ferry company whose decision to change ferry routes had caused some public ice roads to break. These roads are opened every winter by the Estonian government on some parts of the frozen Baltic Sea to allow traffic between the mainland and various islands. They can be used for free instead of paying a fee to the ferry company, and this is why many irate readers published inflammatory comments about the ferry company and about L., its sole majority shareholder.   read more »

DMLP Staff Presenting at CLE Events in New York and Georgia this Week

For the lawyers in our readership, we'd like to let you know that later this week the DMLP will be headed down the East Coast to bar association events in Georgia and New York:

  • On Thursday, Andy will be in New York City at the New York Chapter of the Copyright Society of the USA to discuss news aggregation in a luncheon panel entitled "Content Aggregation: Fair Use or a Use Too Far?" The event is from noon to 2pm at the Princeton Club, 15 West 43rd St., Manhattan. Discount rates for students and CSUSA members, and the event counts for an hour of New York Professional Practice credit. Info on registration can be found here.
  • On Friday, Jeff will be in Atlanta speaking at the day-long Technology Law Institute, hosted by the Technology Law section of the State Bar of Georgia. Jeff will be keynoting the event with a presentation called "Beyond Citizen Journalism:  Technology, Speech and Civic Participation in the Digital Age." The event will be held from 7:45am to 4pm at the State Bar of Georgia's headquarters, 104 Marietta St. NW, in Atlanta. The event counts for 6 Georgia CLE hours, including 1 Professionalism Hour. Registration information can be found here.

Hope to see you there!

Cash Cutoff for Mugshot Sites A Dangerous Idea

If you're arrested, your arrest is public information: your name, your address, what you're accused of. Many news organizations publish this information on a daily basis for their communities, as part of their news coverage.   read more »

So Close, Yet So Far: FBI Access to Silk Road Bitcoin Fortune May be Blocked by the Fifth Amendment

bitcoinThe government's quest for a password-protected bitcoin fortune from the Silk Road shutdown may lead to a Fifth Amendment battle over whether a constitutional right against self-incrimination can protect the website's founder from compulsion of data.

Last week, the government managed to link the illegal drug purchasing website, Silk Road, to the so-called mastermind Ross Ulbricht. The site allowed purchasers to retain anonymity by making illegal drug transactions using bitcoin currency. During the takeover, the FBI seized 26,000 bitcoins (which translates into about $3.2 million dollars) from the site's servers in the form of files comprised of long lists of "digital signatures of previous owners." Although it is unclear as of yet how the government managed to find the site's servers, some say that the FBI's hacking into Silk Road's servers is unprecedented, and that's it's unlikely that the FBI gained entrance by placing pressure on insider administrators.    read more »

Massachusetts Considers a New, Robust Shield Law

The DMLP would like to highlight a recent post by our friend and colleague Rob Bertsche, a parter at Boston law firm Prince Lobel Tye LLP. Rob reported from the Massachusetts State House, where earlier this week the Joint Committee on the Judiciary debated H.1553, the proposed Massachusetts reporters' shield law.

Read his account for details, but as a quick highlight, here's Rob's description of the general contours of the bill, as it applies to identity of sources:   read more »

The Government Responds to the DMLP Amicus Brief in United States v. Auernheimer

On Friday, the Department of Justice filed its appellee brief before the U.S. Court of Appeals for the Third Circuit in United States v. Auernheimer. We expect to see a lot of commentary on the case from others – the brief has already been called out for being almost double the limit allowed under the Federal Rules of Appellate Procedure – but I wanted to specifically mention the government's comments concerning the amicus brief that the DMLP filed in this case with help from our good friends at the Cyberlaw Clinic.   read more »

A Click is Worth a Thousand Words: Fourth Circuit Sees the Value of a "Like"

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Bland v. Roberts, a case that made waves last year when a district court judge ruled that a Facebook “like” was “insufficient speech to merit constitutional protection.” But never fear, Facebook fans: the expressive value of a “like” has been reaffirmed.

The case arose after six employees in the Sheriff’s Department of Hampton, Virginia, were terminated from their jobs, allegedly for supporting Sheriff B.J. Roberts’s opponent during the Sheriff’s 2009 re-election campaign.  This support took many forms, including a bumper sticker, a comment to a co-worker about the Sheriff’s campaign material, attending a campaign cookout for the Sheriff’s opponent, and, notably, the aforementioned Facebook “like.” The six employees filed suit in federal court for wrongful termination, and the Sheriff responded by denying that their termination was retaliatory, and arguing that even if it was he had the right to terminate them for disloyalty due to their positions of responsibility.

But he also made the curious claim that the various expressions of support at issue (including the "like") were not speech, e.g.:

Carter’s and McCoy’s action of simply adding their names to Adams’ Facebook page is not sufficient evidence of constitutionally protected expression. There is no “speech.”   read more »

Senate Shield Bill Is Actually Pretty Broad

An amended bill passed Sept. 12 by the Senate Judiciary Committee to protect journalists from being forced to reveal confidential sources in federal court includes a relatively broad definition of who would be covered by the law; a definition that would include most bloggers.

As I've noted before, the question of whether bloggers are covered by shield laws has been a prominent one recently. Last month a New Jersey trial court judge published her prior decision holding that a blogger is covered by that state's shield law (h/t Eric Goldman); in May, Hawaii's shield law actually expired after legislators could not agree on its application to bloggers.

Senators had been debating the language of the shield law bill for a while, with many expressing concern that sites like Wikileaks should not be included. In the end, the Judiciary Committee accepted an amendment which would provide coverage under the statute to
  read more »

DMLP Announcement: New Media Credentialing Survey Launches Today

Today, the Digital Media Law Project launched a new research study on media credentialing practices. Developed with Free Press, the National Press Photographers Association, Journalist's Resource, the Investigative News Network, and the Nieman Journalism Lab, this new study is designed to learn more about how federal, state, and private organizations issue media credentials to newsgatherers and journalists of all types.

Even as the very concept of journalism evolves to accommodate dramatic new ways of gathering information, the idea of media credentials remains deeply embedded in the practice of journalism in the United States. Dozens of laws at both the state and federal levels condition the right to engage in newsgathering activity on the receipt of credentials. Police departments use press identification to separate journalists from protestors subject to arrest. Political parties limit access to vital aspects of the democratic process to those approved by candidates and their campaigns.

As a result, the question of "who is a journalist" is in many cases left up to the discretion of individual agencies and organizations. While many of these organizations attempt to exercise this discretion in a manner that is fair and serves the public interest, credentialing standards can nevertheless vary significantly. Worse, this discretion can be abused to deny credentials to newsgatherers whose investigations threaten the standing of politicians, government employees, and others who control access. And yet, there is little understanding of the scope of this issue.   read more »

Federal Court Finds Stored Communications Act Applies to Facebook Wall Posts

[Ed. note -- We are pleased today to share with you a blog post by attorney Lindsay Burke of Covington & Burling LLP. This post originally appeared at]

A New Jersey federal court recently held that an employee’s Facebook wall posts were protected by the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., in one of the first cases to analyze the SCA’s application to the Facebook wall.  Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-3305 (WMJ) (D.N.J. Aug. 20, 2013).  An important factor in the court’s ruling was the fact that the employee had configured her privacy settings to restrict her posts to her Facebook “friends.”

The court found that the employer had not violated the SCA by viewing the employee’s wall, however, because a co-worker, who was one of her Facebook friends, showed the post to their employer without any prior prompting by the employer.  

This ruling provides further reason for employers to avoid unauthorized access to an employee’s social media activities.  The court’s holding is consistent with the passage by 11 states of laws prohibiting employers from demanding social media passwords from employees.  But employers that learn of social media activity by employees through passive means may still be able to take action based on that information.   read more »

A Win for Opinion: Sixth Circuit Tackles Website Top-Ten Lists

As our friends at the Harvard Law School Cyberlaw Clinic have reported, on Wednesday, the U.S. Court of Appeals for the Sixth Circuit issued a decision that placing a particular hotel at the top of an online list of the "Dirtiest Hotels in America" was protected under the First Amendment and Article I, Section 19 of the of Tennessee Constitution as a statement of opinion. The Sixth Circuit's decision is a triumph for consumer ratings websites and their ability to build upon the data submitted by their users. However, the Court's articulation of the doctrine of opinion arguably underestimates the potential value of that same information.

The case, Seaton v. TripAdvisor LLC, arose after online travel website TripAdvisor published its "2011 Dirtiest Hotels" list based upon hotel cleanliness ratings provided by the site's users. #1 on the list was the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, owned by plaintiff Kenneth Seaton. Seaton sued, claiming that TripAdvisor's rankings were false because they did not accurately reflect the underlying user data. TripAdvisor in turn argued that the list constituted a statement of opinion that could not be proven true or false, because the rankings on the list and the concept of the "dirtiest" hotel were inherently subjective. A federal district court in Tennessee dismissed Seaton's claims, and Seaton appealed.   read more »

Blurred Boundaries: When Copyright and FOIA Collide

Technology has given citizens the ability to interact with government information in a way never before possible. Some exploit this data for commercial gain; others use new analysis techniques to uncover layers of meaning previously unrecognized; still others collate and publish government records to simplify access for everyone else. But what happens when there is an assertion that vital government records are subject to copyright restrictions?

Section 105 of the U.S. Copyright Act explicitly states that works created by the U.S. government are not eligible for copyright protection, but allows the federal government to hold copyrights assigned by others, and does not address the work of third-party contractors hired by the government. Meanwhile, the law regarding copyright ownership for state governmental entities is unclear; Section 105 does not mention state government works, and while some states follow the federal model, others allow their agencies to assert copyright control over their works. Resulting from uncertain standards and various levels of copyright protection, the intersection of public records laws and copyright can be complicated, as recent events have shown.   read more »

Vote for the Digital Media Law Project's Section 230 Panel at SXSW!

The SXSW Panel Picker is now live, and the Digital Media Law Project is pleased to announce that we have a session proposal in the mix

We have put together a fantastic session to be led by DMLP Director Jeff Hermes, discussing Section 230 of the Communications Decency Act -- arguably the most important United States law for anyone who communicates online. Joining Jeff will be Internet law scholar and Section 230 guru Eric Goldman of the High Tech Law Institute at the Santa Clara University School of Law, and Ari Shahdadi, General Counsel at Tumblr.

From our panel's description:

Section 230 of the federal Communications Decency Act is responsible for the shape of the Internet as we know it today, by freeing website operators from needing to conduct a legal review of each and every user communication that crosses their systems.

And yet, the protection granted by Section 230 is both controversial and fragile. Judges are uncomfortable with the idea that websites can publish revenge porn, pay-to-remove mugshot galleries, and prostitution ads with impunity. State attorney generals have demanded that Congress amend Section 230 to give them broad new powers to bring criminal charges against social media sites, to use them as a choke point to cut off illegal content involving child trafficking. But what would limiting Section 230 mean for the future of peer-to-peer communication?   read more »

Instagram: Uncharted Territory for Courts and Journalists

As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.

The famous rapper The Game -- known for such hits as "My Life" and "Hate It Or Love It" -- posted a photo of his children's former babysitter on his Instagram account alongside the caption: "Beware if this person is watching your children, she is a very dangerous baby sitter." The post was one of several that concerned The Game's ex-babysitter, Karen Monroe.   read more »

After On-Air Mishaps, Embarrassed Newscasters Turn to Copyright Law

Whether we consider the purpose of copyright to be to protect economic rights or moral rights, copyright is a powerful yet dangerous instrument. Abuse of copyright, particularly using the Digital Millennium Copyright Act's takedown notice system, is hardly new; the Chilling Effects database contains ample evidence of efforts to silence legitimate speech.

But this summer, we saw a trend of abusers using copyright to save face and reduce criticism from an unexpected type of copyright holder: news organizations. It is troubling to see those who typically support stronger First Amendment rights actively partaking in censorship. Now, we've seen a news organization use copyright to eliminate criticism before, in the case of Newport Broadcasting using the DMCA to silence Free Press's "Change the Channels" campaign, but it is disturbing to see a resurgence in this particular form of publicity control.    read more »

Real or Fake, It's Protected by the First Amendment: Court Awards Fees in "Storage Wars" Case

StorageA California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment.

The plaintiff, Dave Hester, was a cast member for three seasons on A&E’s hit reality show Storage Wars. The show centers around the lives of a handful of bidders who compete in auctions for abandoned self-storage lockers across the country. The rules of the show are simple: the lockers are up for grabs to the highest bidder, but each prospective bidder may only look at the locker from the outside—which means that no one is allowed to probe through the inner contents of the storage unit. The show's talent—Hester and several other storage bidders—are portrayed with robust, outlandish personalities that cause them to get into frequent disputes with one another on-air, creating the perfect conflict-riddled brew for prime reality television.

The cast members of Storage Wars are not strangers to legal drama. Even Hester's infamous bidding technique, which consists of hollering out a loud "YUUUP!" has been under legal dispute. This time, however, one of Hester's legal claims against the show's network and production company was SLAPPed down in an order granted by the Superior Court of Los Angeles.   read more »

An Increase in Infringement or the Promotion of Censorship? The Growing Tension of VPN Use

In the days of unwarranted government surveillance and elaborate data collection, people increasingly rely on anonymizing services to keep their online activities private, such as proxy servers, encrypted cloud storage, and virtual private networks. Virtual private networks, or VPNs, route online communications through a secure and encrypted private network to a remote server (sometimes in a jurisdiction with greater protection for freedom of speech or weaker law enforcement). That computer in turn accesses content on the Internet and passes it back through the private network to the user. From outside the network, the only visible traffic is to and from the remote server, leaving the user anonymous. This ability to anonymize, however, can be used for multiple purposes, including to increase secrecy in unlawful actions but also to allow for unhindered expression and freedom from censorship.   read more »

Adding up to 105: The Charges Against Barrett Brown

In December 2011, hacktivist collective Anonymous (in)famously hacked intelligence analysis firm Stratfor Global Intelligence, collecting over 2.7 million emails, including data for over 50,000 credit card numbers, 80,000 email addresses, and more. The group's stated goal was to use this data to give donations to charities at Christmastime. In February 2012, WikiLeaks began publishing these emails. Caught in the middle of this was freelance journalist Barrett Brown, who has written for The Guardian, The Huffington Post, Businessweek, and is also affiliated with Anonymous as a spokesperson. Brown linked to a zip file of these leaked emails in his IRC (Internet Relay Chat) channel, #ProjectPM (a crowd-sourced think tank that focuses on government intelligence contractors).   read more »

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