Week of February 12, 2010 [1]

Welcome to the Citizen Media Law Brief, a weekly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website. You are receiving this email because you have expressed interest in the CMLP or registered on our site, www.citmedialaw.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.citmedialaw.org/newsletter/subscriptions.

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The latest from the Citizen Media Law Project blog...

Andrew Moshirnia proposes giving the conspiracy addicts something to really worry about.
Does This Look Infected to You? Government Virus as Counter-Proposal to FBI's URL Demands [2]

Justin Silverman warns about the dangers of making access policy based on emotional reactions.
The Catsouras Photos: Will a Family's Privacy Interest Impede Press Access? [3]

Eric Robinson discusses a recent effort to social media–proof federal courtrooms, at least for jurors.
Federal Courts to Jurors on Social Media: Don't Do It [4]

Arthur Bright reports that the IOC has given a green light to Twittering athletes.
Olympic Athletes Can Tweet to Their Hearts' Content [5]

Andrew Moshirnia ponders whether ACTA might goad Congress into reasserting its treaty power.
Let's Make A Deal! Will ACTA Force an End to Executive Agreements? [6]

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Recent threats added to the CMLP database...

Robinson v. Albero [7]
Posted Feb. 11th, 2010

American Federation of Teachers v. AFTexposed.com [8]
Posted Feb. 9th, 2010

USA Technologies v. Yahoo! [9]
Posted Feb. 9th, 2010

USA Technologies v. Doe [10]
Posted Feb. 9th, 2010

[11]

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Other citizen media law news...

Menino condemns online harassment
The Boston Globe [12] - Fri. 02/12/10

Dumb Labels, Laws (Not Google) To Blame for Music Blog Deletions
Wired/Epicenter [13] - Fri. 02/12/10

Iceland aims to become offshore haven for journalists and leakers
Nieman Journalism Lab [14] - Thurs. 02/11/10

Judge tosses subpoena seeking identities of paper's Web site posters
Recordonline.com [15] - Tues. 02/09/10

Bloggers Face Death Sentence in Iran; Some Escape to France
MediaShift [16] - Tues. 02/09/10

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The full(er) Brief...

"So here is a nice and scary development. It appears that the FBI wants Internet Service Providers (ISPs) to keep a log of the url's visited by consumers. Wait it gets better. This log would be retained for two years. AND, a complete url listing would require deep packet inspection, which is a no-no under the Wiretap Act. The FBI says not to worry, we won't collect this information without a warrant. This of course would inspire more confidence if the FBI had not been caught repeatedly violating the warrant requirements of the Wiretap Act and other domestic spying restrictions. . . . [I]n light of the fact that the government is eager to engage in mass spying, I'm willing to meet the FBI halfway here. At least one court has okayed the government's use of a key-logging virus on a suspect's computer. Surely a wiretap authorized url-logging virus (think of it as a really nasty cookie) could be cooked up. While that approach does not thrill me, it could allow the government to observe online criminal behavior without involving ISPs or countless innocent individuals. . . ."
Andrew Moshirnia, Does This Look Infected to You? Government Virus as Counter-Proposal to FBI's URL Demands [2]

"[Nikki] Catsouras and the photos taken after her fatal car accident in 2006 [is a case] ripe with moral and legal debate. Because the photos are so gruesome, the visceral reaction of most is to punish anyone who distributes them. An opinion last month by the 4th District Court of Appeals essentially does just that by allowing family member privacy rights in the death images of a relative. . . . [Nikki's parents] sued the Department of the California Highway Patrol, for among other things, invasion of privacy. They claim the two officers, Thomas O'Donnell and Aaron Reich, invaded their privacy by disclosing private facts. Despite no current law recognizing such familial rights in the private facts of others, the 4th District Court of Appeals deemed the claim actionable. On its face, allowing privacy rights to family of the deceased seems like a reasonable resolution. The family does have an interest in the body of their loved one so it can be easy to find an invasion of their privacy when photos of that loved one are released to the public. It's a novel concept in some jurisdictions, however, because privacy rights do not extend to the dead and the photos in question are only of the deceased. But the concept of family privacy rights is gaining traction. Two Florida courts recently allowed surveillance videos of a murder and a fatal car accident to be restricted under the state's normally liberal access laws. Florida's public record laws do not include an exception for the privacy of family members yet those courts allowed the state to limit access anyway. . . ."
Justin Silverman, The Catsouras Photos: Will a Family's Privacy Interest Impede Press Access? [3]

"Following the approach taken by several state courts, in late January the U.S. Judicial Conference—which sets policies for all federal courts except the Supreme Court—sent all federal district judges suggested jury instructions on ‘juror use of electronic communication technologies' during trial. The message of the instructions, in a word, is ‘Don't!'. . . While only a few state courts have declared mistrials in cases where jurors did independent online research into cases, juror use of social media during trial has been a growing dilemma. And jury instructions admonishing jurors to not use such technologies are necessary. . . . The minor [problem] is that by listing the specific technologies—blogs, Facebook, My Space, LinkedIn, etc.—the suggested instruction could easily become stale and out-of-date as new technologies and platforms emerge. . . . The more major concern is that, aside from a quick statement . . . , the suggested instructions do not explain why jurors should not do their own investigations of the case, or communicate with others about it. . . ."
Eric Robinson, Federal Courts to Jurors on Social Media: Don't Do It [4]

"Rejoice, all ye Olympian fans, the International Olympic Committee ('IOC') has said that its athletes can use Twitter! Apparently there's been some confusion among Olympic athletes as to whether they were allowed to 'tweet,' as the kids call it. . . . Well, the IOC has since itself tweeted that Twittering (Tweeting?) is an acceptable activity for athletes, ‘as long as it is about your own personal experience at the Games. . . .' The rules are still pretty strict, of course. Some of the rules are obvious—no advertising, no exclusivity, no using the word 'Olympic' in your website's name. But also verboten are the use of any sound or video of the Games, and photos are only acceptable where the athlete is pictured and not involved in any 'sporting action' or official ceremonies, including medal presentations. . . . Of course, there are some logical flaws in the rules too. The Guidelines specifically distinguish 'blogs' from 'journalism,' which strikes me as more than a bit odd. Bob Condron, the Director of Media Services for the US Olympic Committee, told Wired that the blogging athlete 'can't act as a journalist' if she's not one. 'You need to do things in a first person way. . . .'"
Arthur Bright, Olympic Athletes Can Tweet to Their Hearts' Content [5]

"Things aren't looking good for the American public.... [T]he negotiators hammering out the details on the Anti-Counterfeiting Trade Agreement (ACTA) have placed a three-strikes Internet ban on the agenda. This move essentially threatens users with Internet death if anyone uses their connection for ill. . . . Perhaps even more telling, when the USTR was questioned about these secret policies, he issued a jejune non-denial, claiming that there is a 'misperception that this agreement will focus mostly or exclusively on copyright infringement in the digital environment.' This seems deliberately obtuse. If ACTA is an end-around to introduce draconian IP policies, I don't much care if the draconian provisions make up only a small percentage of the agreement. Instead, I am worried that these provisions exist at all. . . . [L]et's explore the mechanism that the USTR and the administration will use to force the provisions of ACTA onto an unwilling populace—the Executive Agreement. Let's also ponder the potential reaction this procedure will arouse. . . ."
Andrew Moshirnia, Let's Make A Deal! Will ACTA Force an End to Executive Agreements? [6]

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