Privacy

French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions.

Jurisdiction: 

Subject Area: 

Content Type: 

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.

Subject Area: 

Jurisdiction: 

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.

Jurisdiction: 

Subject Area: 

Content Type: 

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.

Subject Area: 

Jurisdiction: 

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.)

Jurisdiction: 

Subject Area: 

Content Type: 

Rodriguez v. Widener University

Date: 

03/13/2013

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Miguel Rodriguez

Type of Party: 

Individual
Government
School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:13-cv-01336-JP

Legal Counsel: 

Lewis P. Hannah, Clinton L. Johnson

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Miguel Rodriguez is a U.S. Navy veteran, who attended Widener University under the G.I. Bill as a student in the Biology Pre-Med Program, and worked as a tutor and Advisor and Operations Manager at the University. In a complaint filed March 13, 2013 in the Eastern District of Pennsylvania, Rodriguez brought eight causes of action against Widener University, the City of Chester, David Coughlin, Denise Gifford, Patrick Sullivan, and Matthew Donohue, claiming civil rights and privacy violations arising out of events that  transpired after Defendant Sullivan, Widener's Director of Campus Safety, allegedly gained access to and printed images from Rodriguez's Facebook account without authorization on March 16, 2011.

According to the complaint, as a result of the unauthorized access Widener University and Chester Police Officer Matthew Donohue brought Rodriguez in for interrogation and temporarily suspended him. According to Sullivan, he was suspended because "he was perceived to be a threat to the community and . . . displayed weapons on Facebook." At the end of this interrogation, Rodriguez was involuntarily sent to Crozer Chester Medical Center for one week, during which Rodriguez was forced to miss a medical school admissions interview. When he was cleared by the Medical Center, the suspension was continued due to a small amount of marijuana and a knife found when the Chester police searched his book bag during the investigation process. The University then made readmission contingent upon a positive assessment by Dr. Beth Howlett in Widener's Office of Disabilities Services. During this time, David Coughlin, Rodriguez's advisor, allegedly made false statements to the campus and Chester police about Rodriguez, claiming he was restricted from campus and had been making threatening calls. On March 25, 2011, Rodriguez was expelled from Widener University and his employment with the University was terminated.

Rodriguez claimed the Defendants violated the Civil Rights Act, 42 U.S.C. § 1983, arguing that the unwarranted dismissal and termination, as well as interrogation and involuntary admission to the hospital, violated his rights under the Fourth and Fifth Amendment. This claim was accompanied by a § 1985 claim for conspiracy to interfere with civil rights. Rodriguez similarly claimed a violation of his equal protection rights, asserting that the Defendants discriminated against him based upon his disability, race, and/or status as a  "class of one;" and that the Defendants violated the Rehabilitation Act by dismissing Rodriguez as a student and terminating his employment rather than providing accommodations for his mental disability. The complaint also asserted several privacy-related claims, including an invasion of privacy under the Fourth Amendment when the Defendants accessed information on Rodriguez's Facebook page and obtained medical information from the hospitals he was admitted to without his consent. Rodriguez also argued that accessing his emails and Facebook page and using the photos found therein without his authorization constituted a violation of the Electronic Communications Privacy Act and the Stored Communications Act. Lastly, under Pennsylvania's common law, Rodriguez argued that he had a reasonable expectation of privacy with respect to his Facebook account, which was violated by the Defendants' unauthorized access of the account.

In response, the Widener Defendants moved to dismiss the complaint on April 4, 2013. First, the Widener defendants argued that they are not state actors for the purposes of 42 U.S.C. §§ 1983 and 1985 or under the U.S. Constitution, and that therefore the Civil Rights Act, equal protection, and Fourth Amendment-based privacy claims should be dismissed. The Defendants also maintained that Rodriguez could not pursue a cause of action under the Rehabilitation Act as he had never disclosed the disability to the University or sought accommodation for the disability prior to his suspension. Lastly, as Rodriguez's Facebook posts were accessible to the public generally and/or forwarded to the Defendants by concerned students who had been permitted access to his Facebook page, the Defendants moved to dismiss the ECPA and SCA claims, as well as the Pennsylvania privacy claim, as these all rely on improper access.  

On April 25, Rodriguez opposed this motion. First he argued that despite being private parties, the Widener Defendants are state actors, as they "willfully participated in a joint conspiracy with state officials to deprive a person of a constitutional right acts ‘under color of state law'" by bringing in the Chester police. He also alleges that the Defendants were aware of his mental disability, made particularly clear during the interrogation, and perceived Rodriguez as disabled, sufficient to sustain a claim under the Rehabilitation Act. As to those claims that rely on unauthorized access to Rodriguez's Facebook account, Rodriguez reasserted that he did not post them publically, though it remains to be determined how the Defendants obtained the images.  

The District Court granted in part and denied in part the Widener Defendants' motion to dismiss in an order on June 17, 2013. The Court dismissed Rodriguez's first four claims, which relied on finding the Widener Defendants to be state actors. The Court concluded that Rodriguez failed to plausibly allege state action, such that the Civil Rights Act and Fourth Amendment claims could not be properly sustained. In addition, the Rehabilitation Act count was dismissed, as the Court held that Rodriguez failed to establish that Widener University should have been aware that he was entitled to any accommodations or that he ever requested such accomdations. Discussing the ECPA and SCA claims together, the Court concluded that to the extent that these statutory claims were based on improper access to Rodriguez's Facebook images, the claims may proceed. Judge Padova's opinion noted that there was no factual basis for the Defendants' assertion that Rodriguez's Facebook images were generally available to the public, whereas the emails in question had been sent by Rodriguez himself to some of the Defendants. With respect to the common law invasion of privacy claim, the Court narrowed the claim down to the two theories of privacy that could possibly be plausible:  publication of private facts and false light. Because Rodriguez failed to allege the elements a privacy claim under either theory, this claim was also dismissed. 

Following the Court's order dismissing most of Rodriguez's claim, on July 2, 2013, the Widener Defendants answered the complaint regarding the surviving SCA and ECPA claims. Their defenses emphasized the public nature of Rodriguez's Facebook postings, arguing that they were generally available to the public, or in alternate, permissbly accessible to third parties who in turn shared the information with the Widener Defendants. 

The City of Chester and Officer Donohue also filed a 12(b)(6) motion to dismiss on July 15, 2013. The parties stipulated that of the many claims made by Rodriguez, the only claim against the Chester Defendants was for false arrest in violation of the Fourth Amendment under 42 U.S.C. § 1983. The Chester Defendants argued that they did not directly cause a constitutional deprivation and that Rodriguez's complaint made no allegation that his constitutional rights were violated by policies or customs of the municipality of Chester or Officer Donohue as its agent. 

Content Type: 

Subject Area: 

Jurisdiction: 

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.)

Jurisdiction: 

Subject Area: 

Content Type: 

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.

Subject Area: 

Jurisdiction: 

Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit.

Jurisdiction: 

Subject Area: 

Content Type: 

The Journal News Fallout: Limiting the First Amendment to Protect the Second

A Special Deal Just For You: The Value of Big Data Continues to Elude Consumers

For a while now, one of the main causes of concern for privacy advocates has been "Big Data," that is, the collection, aggregation and analysis of data, on a, well, BIG scale. This post takes the opportunity to review some specific issues and recent developments in this area.

Jurisdiction: 

Subject Area: 

Content Type: 

Honni Soit… French Republic Protects the Privacy of Commoners and of Kings

On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit.

Jurisdiction: 

Subject Area: 

Content Type: 

Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

Content Type: 

Subject Area: 

CMLP Notes: 

AFS created post and edits through 1/3/12

Jurisdiction: 

Pages

Subscribe to RSS - Privacy