CJEU Advocate General Finds No Right to be Forgotten by Search Engines under EU Law

On June 25, 2013, the Opinion of the Advocate General Niilo Jääskinen (AG) in case C-131/12, Google Spain v. Agencia Española de Protección de Datos, was published. This case, which is pending at the Court of Justice of the European Union (CJEU), is being closely watched because one of the questions presented to the court is about the right to be forgotten by search engines. This question implicates the proper balance of freedom of expression and protection of personal data and privacy under EU law.

The case is also interesting because it is the first time that the CJEU is asked to interpret the 1995 Data Protection Directive vis-à-vis search engines. When the CJEU finally reaches a decision in this case, it will be binding not only in the Spanish Courts, but in all the national courts of the 28 Member States of the European Union.

Facts of the Case

In 1998, a Spanish newspaper published, both off-line and online, information about a court-ordered foreclosure auction to pay social security debt. In 2009, the debtor, who had since paid his debt, discovered that ‘googling' his name led to a link to the online notice.

He asked the newspaper to take the information down, but the editor refused as the publication had originally been made by order of the Ministry of Labor and Social Affairs. He then asked Google Spain to stop referencing the link in its search results and also complained to Spain's Data Protection Authority, the Agencia Española de Protección de Datos (AEPD).   read more »

Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)   read more »

Metadata Surveillance, Secrecy, and Political Liberty (Part One)

(Following on from Rebekah Bradway's post last week regarding government-created metadata as public records, we are pleased to present a two-part post from Bryce Newell on the role of metadata in government surveillance. -- Ed.)   read more »

Metadata as a Public Record: What it Means, What it Does

The failure to comply with a records request for email metadata will cost a Washington city more than half a million dollars in statutory and attorney's fees, a Washington Superior Court judge recently decided. On June 28, 2013, the judge ordered the City of Shoreline to pay $538,555 after the Washington Supreme Court ruled that metadata associated with public records is subject to disclosure under the state's open records law.
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911, What's Your Emergency? Public Access to 911 Calls in California and Maine

PhoneAs California delays public access to prank celebrity 911 phone call records, a court in Maine has kicked things up a notch, pulling from one of over 500 exceptions to Maine's Freedom of Access Act (“FOAA”) to block public access to a 911 record in connection with an ongoing criminal trial.

In California, public access to 911 calls has caused a stir for news organizations seeking access to 911 records. The public's enduring fascination with celebrity 911 calls is nothing new, but a few pranksters in California have taken things to another level. California police have recently been having a lot of trouble with "swatting" -- an inside joke among pranksters, who phone in fake emergencies and bring police rushing en masse, sometimes with SWAT team divisions, to celebrity homes. For example, during a swatting incident in January of this year, pranksters sent over half of the Beverly Hills' emergency resources rushing to Tom Cruise's house, only to discover that nothing was apparently amiss at his mansion.   read more »

Distinguishing Fact from Opinion: The Second Circuit Rules on Scientific Articles

In a recent case before the Second Circuit, the Court of Appeals held that conclusions in scientific articles are akin to statements of opinion for defamation purposes and cannot give rise to actionable claims of false advertising under the Lanham Act or state statutory equivalents. In the Court's words, "the line between fact and opinion is not always a clear one" - and this recent decision has muddled that divide even more. Although the Court admirably applied opinion doctrine to scientific speech, its merit-based distinctions unnecessarily complicate this doctrine.

ONY, Inc. v. Cornerstone Therapeutics, Inc., No. 12-2414 (2d Cir. 2013), involves a 2011 article published in the leading journal in neonatology, the Journal of Perinatology, regarding surfactants, compounds whose name comes from "surface acting agents" and which can be produced naturally by the human body. The article detailed a study of "in-hospital mortality in preterm infants with respiratory distress syndrome," examining the relative effectiveness of three surfactants used to treat a condition in which the lungs of infants produce insufficient natural surfactants. The article ultimately suggested that use of the surfactants manufactured by defendant Chiesi led to a lower infant mortality rate than that manufactured by plaintiff ONY. ONY alleged that this article contained many factual errors and selectively included results that favored Chiesi's product in a way that deceived and misled readers.   read more »

"Dirty" Verdict Sets Up Section 230 Appeal

A federal jury's verdict awarding $338,000 to former Cincinnati Bengals cheerleader and high school teacher Sarah Jones over postings on website may lead to a re-examination of the scope of the law that web site operators have widely invoked to claim immunity from legal liability for postings by users.

Jones sued over postings on the site in 2009 which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones has had other problems: last year, she pleaded guilty to charges stemming from a sexual relationship with with one of her students. She was sentenced to five years probation and barred from teaching; she is now engaged to her former student.)   read more »

As State Shield Laws Play Tug-of-War, the Dream of a Federal Shield Law Resurfaces

Shield LawA recent challenge to a subpoena for a New York reporter's confidential source highlights the risks journalists face when different state shield laws clash. Although uniform state shield laws would reduce uncertainty for reporters on the state court level, a solution to varying federal court tests may appear in the form of a federal shield law.

Fox News reporter Jana Winter has been subpoenaed in connection with her report on the Aurora, Colorado movie theatre shooting of July 2012. Winter was one of the first to report on a notebook owned by suspect James Holmes that allegedly contains details of Holmes's planned attack. Winter's report included allegations that the notebook was sent to a physiatrist prior to the tragic mass shooting. In December 2012, Holmes's defense attorneys accused Winter of violating a gag order that had been put in place to avoid any leaks that may negatively affect their client's case.   read more »

Reputation vs. National Security: The Supreme Court Takes on an Airline Defamation Case

The Supreme Court has granted certiorari to the first defamation case it's heard since 1990, and in it, the Court will be balancing injury to reputation against -- what else? -- national security.

In Air Wisconsin Airlines Corp. v. Hoeper, the Colorado Supreme Court upheld a $1.4 million defamation suit against an airline after an Air Wisconsin employee reported a potential security threat to the TSA. In affirming the lower court, the court denied the airline immunity under the Aviation and Transportation Security Act (ATSA), an act giving broad immunity to airlines when reporting possible safety risks -- and acknowledged this case as the first reported case rejecting this immunity.   read more »

DMLP files brief seeking First Amendment scrutiny in United States v. Auernheimer

Yesterday the Digital Media Law Project, with help from the Cyberlaw Clinic, filed an amicus brief in the United States Court of Appeals for the Third Circuit in United States v. Auernheimer, arguing that the First Amendment prohibits the government from punishing Auernheimer’s disclosure of true, newsworthy information. The case is on appeal from the United States District Court for the District of New Jersey, which found Andrew “Weev” Auernheimer guilty of felony charges under the Computer Fraud and Abuse Act (“CFAA”) and federal identity theft law.

Auernheimer was indicted after he and a partner discovered that AT&T was posting the email addresses of iPad customers on publicly-accessible websites. The two developed a script to copy all of the emails that AT&T exposed and then reported to Gawker and other members of the media the existence and evidence of the vulnerability, including the email addresses. The prosecution in this case determined that such action was punishable by the CFAA’s provisions prohibiting unauthorized access to computers, which is normally a misdemeanor, but the prosecution escalated the charge to a felony by claiming that the access was committed in furtherance of the New Jersey state equivalent to the CFAA. The only difference between the two laws is that New Jersey’s law also requires that the defendant disclose the information obtained. Therefore, the punishment of Auernheimer went from a maximum of one year to a maximum of five years because he disclosed what he found to the public. Auernheimer was sentenced to over three years in prison.   read more »

Are Social Media Password Privacy Statutes #necessary?

(DMLP Intern Rebekah Bradway contributed to this post.)

As we live more of our life online each day, the wealth of information available on social media sites like Facebook and Twitter grows endlessly. It is no surprise, then, that this information may also be useful in informing hiring and other employment practices. Though employers' actual desire for and use of this social media information is questionable, there is a growing trend towards legislating to protect the privacy of individuals participating in social media sites. Social media password privacy statutes have become prevalent, as about a dozen such statutes have been signed into effect and similar statutes have been (at least) introduced in 36 states.    read more »

Congratulations to Nevada on its New and Improved Anti-SLAPP Law!

As of October 1, 2013, those targeted with frivolous lawsuits in Nevada designed to chill speech will enjoy substantially stronger protection, thanks to Nevada's new and improved anti-SLAPP statute.

The brainchild of First Amendment attorney and friend of the Digital Media Law Project Marc Randazza (pictured at right with Nevada Governor Brian Sandoval), Nevada's revised statute significantly improves upon the state's prior anti-SLAPP law. The revisions will grant defendants in Nevada courts some of the best and broadest protections for speech adopted by other states in their anti-SLAPP statutes since the passage of Nevada's original law.

Nevada's original anti-SLAPP statute, Nev. Rev. Stat. 41.637 et seq., was adopted in 1993. Like many other first-generation anti-SLAPP laws (such as those passed by Massachusetts and New York), its protections were limited to speech "in furtherance of the right to petition" the government on issues of public concern. Thus, it did not protect the broader range of speech among citizens on public issues, despite the critical role that such speech plays in civic life and in gathering support for petitioning. As such, Nevada's law fell out of step with anti-SLAPP laws passed by other states such as Washington, California, and Texas, which recognized that petitioning activity starts not with speech to government, but speech among peers.   read more »

Aghast at Ag-Gag Legislation: Silencing Speech for What it Reveals

Ag-gag cowWith the ubiquity of smart phones and digital communication, most of us whisk our phones out to record anything we find significant without giving it a second thought. But when one Utah woman did this in early February, she was charged as a criminal -- solely because the activities she recorded took place on agricultural land.

In a Washington Post opinion article, Amy Meyer explained how she stood outside a slaughterhouse in Draper, Utah, and witnessed acts she labeled as "inexcusable animal abuse." Meyer described a sick cow being "carried away from the building by a tractor as though it were nothing more than rubble" and wrote about cows struggling to "turn around once they smelled and heard the misery that awaited them." She said there were "piles of horns" and flesh scattered throughout the property. When she used her cellphone to film her observations, an employee of Dale T. Smith and Sons Meat Packing Co. approached Meyer and told her she couldn't record any operation of the slaughterhouse. Although Meyer was allowed to leave after being questioned by police, a report was filed.   read more »

The Podcast Patent: Ripping Through, and Ripping Up, the Airwaves

PodcastA Texas company is causing a stir with a claim that it has a patent on podcasting, which may lead frightened podcasters to shut down. However, the patent's breadth has led many to challenge it, including the Electronic Frontier Foundation (EFF) and the Berkman Center's Cyberlaw Clinic

Jim Logan, through his company, Personal Audio,  appears to be going after podcasters, claiming patent infringement on an idea he invented back in 1996. Personal Audio holds a 1996 patent for a device that  would allow users to select from a variety of audio programs. The 1996 patent contains diagrams of how  such a device might work; Logan claims his patented device is akin to today's podcasting system available on most mobile devices. The patent creates a "negative right" to exclude others from infringing on the patent's activity, and in Logan's case, gives him the ability to stop podcasters in their proverbial audio tracks.   read more »

DMLP Announcement: Video from Cambridge Community Television Event Goes Live

In May, the DMLP, with our good friends at the Harvard Law School Cyberlaw Clinic and the MIT Center for Civic Media, helped to produce an event celebrating the 25th Anniversary of Cambridge Community Teleivsion. Entitled Filling the News Gap in Cambridge and Beyond, participants in the event explored the quickly expanding world of citizen journalism: how technology is fueling its growth; how that growth is changing the way we see our world, enact change, and disseminate the news; and how people in communities around the world are taking the initiative to share stories that are left untold by the mainstream media.

We are pleased to announce that video of the event sessions has now gone live on  CCTV's website. The video is available to the public, so if you were unable to attend the event -- or if you were there and want to hear parts of it again -- we invite you to check it out.  In particular, the DMLP and the Clinic presented in a session addressing legal issues facing newsgatherers, so if you'd like to put some faces and voices to the names you see mentioned around our site, this is your chance!   read more »

The NSA's Spying Powers: Reading the Statute

[Ed. note -- We are pleased to feature a guest post today by Kit Walsh of the Harvard Law School Cyberlaw Clinic. More information on Kit and Kit's practice can be found here.]

In the midst of confusion over the NSA's spying powers, even members of Congress who voted for the applicable laws claim surprise at how they are playing out in practice. With defenders of spying saying to “read the statute” to understand its privacy protections, I thought I'd do just that.

Say I'm the NSA and I want to legally justify a court order giving me access to private emails of Occupy activists (so I can join in the FBI and DHS surveillance of peaceful protesters, for example). It's a domestic political movement, so that sounds as if it should be pretty hard, right? Let's see...   read more »

A Response to Sandy Hook: Privacy Trumps Transparency in New Connecticut Bill

At a time when citizens increasingly call for government transparency, the Connecticut legislature recently passed a bill to withhold graphic information depicting homicides from the public in response to records from last December's devastation at Sandy Hook Elementary School. Though secret discussions drafting this bill reportedly date back to at least early April, the bill did not become public knowledge until an email was leaked to the Hartford Courant on May 21, 2013. The initial draft of what became Senate Bill 1149 offered wide protection specifically for families of victims of the December 14 shootings, preventing disclosure of public photographs, videos, 911 audio recordings, death certificates, and more.   read more »

British Ruling Sets Standards for Twitter Libel

A British judge's decision that a tweet by Sally Bercow (wife of the Speaker of the House of Commons, John Bercow) libeled Lord Robert Alistair McAlpine (former Deputy Chairman and Party Treasurer of the Conservative Party and an aide to Prime Minister Margaret Thatcher) shows -- if anyone still had doubts -- that tweets can indeed be libelous. In doing so, the ruling provides a good model for analyzing Twitter posts to determine whether they are defamatory.

The case stemmed from a Nov. 2, 2012, BBC report on alleged sexual abuse at a foster care home in Wales in the 1970s and 1980s. A victim of the abuse alleged that one the abusers was a "leading Conservative from the time." The abuser was also referred to as "a leading Conservative politician from the Thatcher years," "a senior public figure," "a shadowy figure of high political standing," and "a prominent Tory politician at the time." While the BBC report did not name the alleged abuser, the identity of the alleged abuser was leaked to the political editor of Britain's Channel 4, who tweeted that the alleged abuser -- also without identification -- denied the claims. 

But speculation was rampant on social media, with many naming Lord McAlpine as the alleged abuser. Bercow's tweet, "Why is Lord McAlpine trending? *Innocent face*," was sent two days after the BBC report aired.    read more »

Who is a Journalist? Here We Go Again…

In the wake of the Associated Press and James Rosen incidents, the call for statutory protection for journalists and their sources has started anew. The Obama administration has called on Sen. Chuck Schumer to re-introduce a federal media shield law, reviving a concept which floundered in 2009 in the wake of the Wikileaks disclosures and raising questions over the sufficiency of that proposal. Just as in 2009, one of the issues that will inevitably be raised is the question of who will receive the protection of such a law. This question is well known to those who practice media and Internet law as the “who is a journalist?” problem. But this is – and in some ways always has been – the wrong question.

The “who is a journalist?” problem has been with us for quite a while. The great Supreme Court defamation cases of the post-Sullivan/pre-Internet era were largely fought by the institutional media, and this is often reflected in the language of the Court. For example, in Philadelphia Newspapers, Inc. v. Hepps, the critical 1986 First Amendment ruling stating that plaintiffs have the burden to prove falsity in defamation actions, the Court held specifically that:   read more »

Massachusetts Courts Mull Right of Access to Deceased Family Members' E-mail

A case in the Massachusetts Court of Appeals, Ajemian v. Yahoo!, Inc., decided on May 7, is the latest case dealing with ownership of digital assets after death.

Plaintiffs, Marianne Ajemian and Robert Ajemian, are co-administrators of their brother John Gerald Ajemian's estate. In 2002, Robert opened a Yahoo! account for John. Robert was a co-user of the account, but used it infrequently; rather, John was the primary user. John was killed in an accident in 2006. By that time, Robert had forgotten the password to the account. Plaintiffs tried to access the account to help them locate his assets and contact John's friends to inform them of his death.

However, Yahoo! refused to let them access the account and its content, claiming that it would be a breach of the Stored Communications Act (SCA), 18. U.S.C. §§ 2701 et seq. The SCA provides a cause of action against someone who "intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage."

After negotiation with Yahoo!, Plaintiffs filed a declaratory judgment action in Probate Court seeking a declaration that they were entitled to access the subscriber records of John’s email account (including subscriber information and e-mail header data, but not the e-mails themselves). Yahoo! agreed not to oppose that action, and a probate judge granted access to those records.   read more »

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