Brief for August 2013 [1]
Welcome to the Digital Media Law Brief, a monthly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Digital Media Law Project's website, as well as upcoming events and other announcements. You are receiving this email because you have expressed interest in the DMLP or registered on our site, www.dmlp.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.dmlp.org/newsletter/subscriptions [2].
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News from the Digital Media Law Project...
We've been so busy this summer we haven't had a chance to say hello! Greetings again from the Digital Media Law Project. No sooner did the summer come it was gone again, and this week we are saying goodbye to our fantastic team of summer interns. Kristin Bergman (rising 3L, William & Mary Law), Rebekah Bradway (rising 2L, University of Utah S.J. Quinney School of Law), and Samantha Scheller (rising 2L, UNC School of Law) have been hard at work all summer updating our legal resources for online journalists. We have new and updated sections in our legal guide [3] addressing subjects as varied as anonymous speech in Michigan [4], recording law in Tennessee [5], and forming journalism cooperatives in Texas [6], Ohio [7], and Florida [8]. We also have posted descriptions and court documents for a number of the most significant recent legal threats to online free expression in our threats database [9], and have seen each of our interns contribute several posts to our blog [10]. We wish all three of them the best of luck as they head out! (And, while we are sad to see them go, we are also looking forward...if you are a law student in the greater Boston area and are interested in working with us during the fall semester, you can find out more about internship positions here [11].)
The DMLP has also been focused for the past several months on issues of journalism around network security, both as a subject of media coverage as how journalists can protect their own data. Last month the DMLP filed an amicus brief in United States v. Auernheimer [12], addressing the punishment theory pursued by the government, which treated Auernheimer's obtaining of email addresses from a public AT&T website as a felony instead of a misdemeanor because Auernheimer disclosed the vulnerability and the addresses he obtained to media organizations. The DMLP is also partnering with the Cyberlaw Clinic [13] to develop educational materials to help journalists understand their technical and legal ability to protect journalism work product and source identities. We have also been working with a coalition of journalism organizations on an exciting initiative involving media credentialing -- much more to come!
We're also coming up on a significant milestone for the Online Media Legal Network [14], as we near our 500th legal referral. In the fall we plan to take a look back at the clients and matters that have gone through the OMLN, using our referral network as a lens for examining the legal issues currently confronting online media, and what ways we can evolve our resources in order to meet those needs. As part of our deeper thinking in this space, Jeff is off in the fall to meet with media lawyers from around the world at the National Law University, Delhi [15], and at the MLRC London conference [16]. Our day-to-day work with our network still continues, of course, and we are always looking for media, intellectual property, and business law attorneys to join us [17].
By the way, if you're in the Boston area later this month be sure to see Jeff and Andy at the NLGJA conference [18], where they will be talking about legal pitfalls and perils when publishing online. And as always, much more to follow, so stay tuned!
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The latest from the Digital Media Law Project blog...
Marie-Andrée Weiss gives us the latest on the "right to be forgotten" in light of a recent EU case.
CJEU Advocate General Finds No Right
to be Forgotten by Search Engines under EU Law [19]
Metadata Surveillance, Secrecy, and Political Liberty (Part One [20] | Part Two [21])
Eric Robinson reviews a case headed to the Sixth Circuit regarding Section 230 of the Communications Decency Act.
"Dirty" Verdict Sets Up Section 230 Appeal [22]
Samantha Scheller looks to the caselaw and history leading up to the current call for a federal reporters' shield law.
As State Shield Laws Play Tug-of-War, the Dream
of a Federal Shield Law Resurfaces [23]
Rebekah Bradway takes a look at Air Wisconsin Airlines v. Hoeper, which will be the first Supreme Court defamation case since
1990.
Reputation vs. National Security: The
Supreme Court Takes on an Airline Defamation Case [24]
Jeff Hermes explains why Nevada's new anti-SLAPP law could be a model for the nation.
Congratulations to Nevada on its New and Improved Anti-
SLAPP Law! [25]
Kit Walsh walks through an application of the Foreign Intelligence Surveillance Act to show its power and breadth.
The NSA's Spying Powers: Reading the Statute [26]
Kristin Bergman examines the uncomfortable precedent in government transparency following the Sandy Hook shooting.
A Response to Sandy Hook: Privacy Trumps
Transparency in New Connecticut Bill [27]
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Threats recently added or updated in the DMLP Threats Database...
United States v. Auernheimer [28]
Posted August 6, 2013
In re Search of Email Account [Redacted]@gmail.com [29]
Posted August 5, 2013
Small Justice LLC et al. v. Xcentric Ventures LLC [30]
Posted July 30, 2013
Goren v. Doe [31]
Posted July 30, 2013
Massachusetts v. D'Ambrosio [32]
Updated July 29, 2013
Rodriguez v. Widener University [33]
Posted July 29, 2013
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Other media law news and commentary...
Lavabit, Email Service Snowden Reportedly Used, Abruptly Shuts Down
Boing Boing [34] - 8/8/13
Rationalizing (?) the Hart and Keller v. EA Sports Publicity Rights Rulings
Technology & Marketing Law Blog [35] - 8/5/13
Extend First Amendment to Whistleblowers
Deutsche Welle [36] - 8/1/13
Electronic Chatter Among Officials at Public Meetings in N.H. Raises Issues of Transparency
New England First Amendment Center [37] - 7/25/13
Ban on Internet Cafes Struck Down
The Volokh Conspiracy [38] - 7/23/13
Local Newscast Uses DMCA to Erase Air Crash Reporting Blunder
Wired [39] - 7/22/13
Justice Department Revises Rules for Investigations Involving Journalists
LA Times [40] -
7/12/13
For Banning Twitter from Courtroom, the Muzzle Goes to Judge Peter Lauriat
WGBH News [41] - 6/27/13
Reporting, or Illegal Hacking
Columbia Journalism Review [42] - 6/13/13
A Call To Service: Pro Bono FOIA Litigation & Legislative Reform–Help Preserve Our Democracy
ABA Communications Lawyer [43] - 5/31/13
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The full(er) Brief...
"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."
Marie-Andrée Weiss, CJEU Advocate
General Finds No Right to be Forgotten by Search Engines under EU Law [19]
"Many might have expected that such extensive surveillance was occurring, both domestically and globally, prior to Edward Snowden’s
release of classified information in June 2013. Indeed, we’ve known about the existence of government driven metadata surveillance and
international intelligence cooperation and data-sharing for years. The UKUSA Agreement, which links intelligence agencies in the United
States, United Kingdom, Canada, Australia and New Zealand, was declassified by the NSA in 2011, but its existence was reported much
earlier. What we haven’t known, perhaps, are some of the specifics . . . brought to light by the recent revelations – or much about the
legal analysis and oversight to which such surveillance activities are subjected to in practice. The fallout from Snowden’s disclosures
has not been limited to the U.S. either. News media in both Canada and the U.K. have released documents indicating that agencies in
these countries are also conducting similar programs. . . . Not only are we confronted with difficult questions about how we ought to
define reasonable expectations of privacy in relation to metadata or regulate government surveillance for national security purposes
(which is admittedly a highly complex and difficult question), but we also live in a world where information knows no borders."
Bryce Newell, Metadata Surveillance, Secrecy, and Political Liberty (Part One [44] | Part Two [21])
"A federal jury's verdict awarding $338,000 to former Cincinnati Bengals cheerleader and high school teacher Sarah Jones over
postings on thedirty.com 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." . . . Section 230 of the Communications
Decency Act, 47 U.S.C. § 230, provides that operators of "interactive computer services," including web sites, cannot be held liable for
material contributed (posted) by someone other than the site operator. Thedirty.com attempted to get Ms. Jones' case dismissed under
section 230, but the trial court denied the motion, and the Sixth Circuit Court of Appeals rejected an appeal of this decision based on
the interlocutory nature of the trial court's order. . . . In thedirty.com's reaction to the verdict, the site's lawyer states that "it
is the first time since 1996 that a website owner has been held responsible for content posted on the site by an unrelated third party,"
and that thedirty.com will appeal on the basis of section 230."
Eric Robinson, "Dirty" Verdict Sets Up Section 230 Appeal [22]
"To date, 49 states and the District of Columbia have passed some form of a shield law or recognize some level of privilege for
reporters. While this majority number may seem comforting to American journalists, great disparity among the protection afforded by these
state shield laws has led to conflict -- as demonstrated by [Jana] Winter's being caught between jurisdictions. An analysis of New York's
shield law and Colorado's shield law highlights how conflicts could be avoided by more uniform state shield laws across the country. Both
New York's shield law and Colorado's shield law pull from the leading U.S. Supreme Court case in this area, Branzburg v. Hayes,
which held that reporters have a duty to respond to relevant questions put to them during a grand jury investigation and the First
Amendment may not be used as a defense for reporters summoned to testify in court. Justice Powell's often-cited concurrence emphasizes
the importance of balancing freedom of press and the obligation of all citizens to give testimony. In placing the two side-by-side, it is
clear that New York's shield law -- which provides absolute protection for confidential information and related material gathered by a
journalist -- provides its journalists more protection than Colorado's shield law. . . . But at least on the federal level, some level of
uniformity may be created by the enactment of a federal shield law."
Samantha Scheller, As State Shield Laws Play
Tug-of-War, the Dream of a Federal Shield Law Resurfaces [23]
"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. . . . The Supreme Court's grant of certiorari is limited to the following issue: whether immunity under the ATSA
may be denied without a determination that the air carrier's disclosure was materially false. Air Wisconsin's petition for certiorari
stated that the Colorado Supreme Court 'committed serious error in interpreting and applying the ATSA's immunity provision [when it] held
that the truth or falsity of a report to TSA has no bearing on the immunity inquiry. But the idea that a true report could subject an
airline to suit is inimical to the ATSA's goal of encouraging prompt disclosure of threat information; it is also the sort of absurd
result that statutory interpretation must avoid.'"
Rebekah Bradway, Reputation vs. National
Security: The Supreme Court Takes on an Airline Defamation Case [24]
"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 . . . , 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. With the signing of Senate Bill 286 into law on June 3, 2013, that will
now change. When the revisions take effect in October, Nevada's anti-SLAPP law will include a wide array of important improvements that
enhance protection for speech, including: protection for "the right to free speech in direct connection with an issue of public concern,"
and not merely communications intended to procure or influence government action; the right to an immediate appeal of a denied anti-SLAPP
motion; expedited consideration of anti-SLAPP motions; and discretionary awards of up to $10,00o (on top of attorneys' fees) to a
successful anti-SLAPP movant."
Jeff Hermes, Congratulations to Nevada on its New and
Improved Anti-SLAPP Law! [25]
"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..."
Kit Walsh, The NSA's Spying Powers: Reading the Statute [26]
"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. Since then, there has been a whirlwind of activity in Connecticut. After a
Fox reporter brought to the attention of Newtown families a blog post by Michael Moore suggesting the gruesome photos should be released,
parents of children lost in the terrible shooting banded together to write a petition to 'keep Sandy Hook crime scene information
private.'"
Kristin Bergman, A Response to Sandy Hook:
Privacy Trumps Transparency in New Connecticut Bill [27]
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