Social Media

California Judicial Council Recommends Repeal of Law Criminalizing Juror Internet Use

In August 2011, California adopted a statute making it a crime for jurors to use social media and the Internet to do research or disseminate information about cases. Now, two years after the law went into effect, the state's Judicial Council has recommended that the statute be repealed.

Subject Area: 

Jurisdiction: 

Massachusetts v. D'Ambrosio

Threat Type: 

Criminal Charge

Date: 

05/01/2013

Party Receiving Legal Threat: 

Cameron D'Ambrosio

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Lawrence District Court (District Court Department of the Trial Court of Massachusetts)

Legal Counsel: 

Geoffrey DuBosque, The Law Offices of Geoffrey DuBosque, PC

Publication Medium: 

Social Network
Other

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff, an 18-year old who aspires to be a rapper, posted lyrics on his Facebook page referencing the Boston Marathon bombings two weeks after the bombings occurred. D'Ambrosio also posted that the White House was a "federal house of horror." While his Facebook page has since been removed, in one line of the rap, D'Ambrosio wrote, "everyone you will see what I am going to do, kill people." D'Ambrosio also recorded a Youtube video and sent text messages that referenced the content of this rap.

On May 1, 2013, D'Ambrosio did not attend school, and at least one student, who had seen the Facebook post, notified school officials, who then notified police. D'Ambrosio was arrested one week after the Facebook post and charged with Communicating a Terrorist Threat under Mass. Gen. Laws c. 269, section 14, a felony charge that can bring up to 20 years in prison. According to Chief Solomon of the Methuen Police Department, D'Ambrosio did not make threats against particular individuals or the school in his rap. Judge Lynn Rooney of Lawrence District Court originally set D'Ambrosio's bail at $1,000,000 but this was subsequently revoked, and D'Ambrosio was held without bail.

On May 2, 2013, D'Ambrosio was arraigned in Lawrence District Court and, represented by his attorney Geoffrey DuBosque, plead not guilty on charges of making a bomb threat.

After D'Ambrosio's arrest, Fight for the Future and the Center for Rights posted a petition on their website entitled "Free Cameron D'Ambrosio!" The website detailed D'Ambrosio's arrest and argued for protection of D'Ambrosio's First Amendment privileges and freedom of speech on the internet. The petition received over 90,000 signatures.

On June 6, 2013, a grand jury refused to indict D'Ambrosio on a charge of making terrorist threats and Judge Rooney ordered that he be released on personal recognizance. On June 27, 2013, the charges against D'Ambrosio were officially dropped.

Content Type: 

Jurisdiction: 

Subject Area: 

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: 

Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

Dan Booth (Booth Sweet LLP), Zachary C. Kleinsasser, Michael J. Grygiel (Greenberg Traurig, LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

  • no statements attributed to Newman could sustain a defamation claim;
  • the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
  • on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
  •  "there is no such thing" as common-law copyright infringement;
  • Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
  • on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
  • punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

Content Type: 

Jurisdiction: 

Subject Area: 

Misidentifications Past and Present: Terror, Suspicion & the Media

The DMLP blog has been on an unplanned break for a while as a result of the Boston Marathon bombings and subsequent manhunt. Like many in the Boston-Cambridge-Watertown area, we have had our past two weeks disrupted both with our personal attempts to come to terms with this senseless act of violence and by last Friday's "shelter-in-place" request by law enforcement.

Subject Area: 

Jurisdiction: 

FTC Clarifies Obligations of Product Reviewers, But Does Not Ease Concerns

On March 12, 2013, the Federal Trade Commission released a new guidance paper entitled ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." The new FTC guidance updates a prior FTC release from 2000 relating to disclosures in online advertising.

Subject Area: 

Jurisdiction: 

Iowa Retains Media/Non-Media Distinction, Leaving Bloggers Vulnerable

I've already written several posts about the overblown predictions that a ruling involving an Oregon blogger (now on appeal) would have dire consequences for bloggers in that state.

Subject Area: 

Jurisdiction: 

Heads Up, Online Radicals -- You're Next

For me, thinking about one of the Obama administration's latest initiatives to keep us all safe online is like one of those pattern recognition puzzles (you know, like "What is the next term in this sequence: O, T, T, F, F, S, S, E, N, __?").  Here, the sequence is:

cyber bullies, scammers, gangs, sexual predators, ________?

Subject Area: 

Jurisdiction: 

@Parody or @Crime? AZ Bill May Blur the Line

Arizona State Representative Michelle Ugenti (R-Scottsdale) introduced Arizona House Bill 2004 in December, which would amend Arizona’s criminal code and make it a class 5 felony to impersonate somebody online, including, specifically, on a social networking site. A class 5 felony carries in Arizona a presumptive sentence of a year and a half imprisonment. Rep.

Subject Area: 

Jurisdiction: 

Study Finds Significant Juror Interest In Internet, But No Use -- Yet

A survey of jurors from 15 trials has found that jurors generally understand instructions not to use the Internet or social media to research or communicate about trials, but also that many jurors wish they could use technology to do some sort of research about

Subject Area: 

Jurisdiction: 

Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and corporate use of fan pages and social media generally?  A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

  • Using Images of Identifiable People
  • Fair Use and Images
  • Trademarks: When is a “Fair Use” Argument Strongest?
  • Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson.  They are no longer.  Can the Company continue to post a photo of the old sponsor to Pinterest? Short Answer: If the contract with the sponsor expressly permits it, yes.  Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period.  But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer: Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service.  Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

Subject Area: 

Jurisdiction: 

The Feds Try Again, But Just Won't Say Why

The federal courts have revised the jury instructions released in 2010 to address jurors' use of the internet and social media. But while the revised version is more specific about what activities jurors should avoid, they are still inadequate.

Subject Area: 

Jurisdiction: 

Service of Process, 2.0

The judicial system in the United States has kept up with technological change in many ways. We have electronic filing, websites for federal courts, and Internet streaming court coverage. But there is one way that courts have not been as quick to adapt electronically – service of process.

Jurisdiction: 

Subject Area: 

Content Type: 

Charles Carreon v. Matthew Inman, et al.

Date: 

06/15/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Matthew Inman, Indiegogo, Inc., National Wildlife Federation, American Cancer Society, and Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

3:2012-cv-03112

Legal Counsel: 

Attorney Venkat Balasubramani (for Defendant Inman); Attorney Sarah T. Grilli (for Defendant American Cancer Society); Attorney Richard L. Grossman (for Defendant American Cancer Society); Attorney Mark Allan Lemley (for Defendant Indiegogo, Inc.); C

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Charles Carreon is an attorney, who was retained by FunnyJunk, LLC, on matters related to the website FunnyJunk.com. On June 2, 2012, Carreon sent a letter on behalf of FunnyJunk to Matthew Inman, creator of TheOatmeal.com, which threatened legal action and demanded $20,000 on the basis of a blog post. For more information about this correspondence, see FunnyJunk, LLC vs. TheOatmeal.com.

On June 12, 2012, Inman posted an informal response to the June 2 letter on TheOatmeal.com. The post, inter alia, announced that Inman planned to raise $20,000 in donations, and that he would donate the money to the National Wildlife Federation and the American Cancer Society. A link at the bottom of the post directed readers to a page on Indiegogo.com, a fundraising website. By its conclusion, the fundraising effort generated $220,024. 

On June 15, 2012, Carreon filed a lawsuit against Inman, Indiegogo, Inc., the National Wildlife Federation, the American Cancer Society, and 100 anonymous Internet users based on the fundraising effort and other events allegedly caused by Inman. 

According to Carreon's initial complaint, he suffered a number of online attacks as a result of Inman's actions, including an attempt to reset the password to his website, and the creation of a Twitter account with the handle @Charles_Carreon. 

Carreon alleged several causes of action including trademark infringement, unfair competition, impersonation, and incitement to commit cybervandalism. Carreon also alleged that Inman and Indiegogo, Inc. had failed to file forms required by Cal. Gov. Code §§ 12580, et seq. and Cal. B&P Code §§ 17510, et seq., and were thereby conducting the fundraising effort unlawfully. Carreon further sought to impose a trust on the proceeds of the fundraising effort. 

Carreon alleged that the tweets published by an unknown user from the @Charles_Carreon account were a violation of the trademark he holds on his name, and that the attempt to reset the password to his website constituted a trespass to chattels. He claimed that Inman had incited cybervandalism through the fundraising campaign and other postings. 

On June 18, 2012, an anonymous individual registered the username "Modelista" on Ars Technica and commented on an Ars Technica post that he or she ran the @Charles_Carreon Twitter account. 

On June 25, 2012, Carreon filed an amended complaint. In the amended complaint, Carreon named California State Attorney General Kamala Harris as a party to the case to facilitate judgment on his claim for imposition of a trust. Carreon also named "Modelista" as the Doe defendant responsible for the @Charles_Carreon Twitter account.

On June 30, 2012, Carreon filed a motion for a temporary restraining order in an effort to prevent the disbursement of the funds generated by the fundraiser to Inman or any other entity, as well as a memorandum in support of the motion.  

On July 1, 2012, Indiegogo, Inc. filed an opposition to the motion stating that funds had been disbursed to the American Cancer Society and the National Wildlife Fund by check on June 29, 2012 and that this rendered Carreon's motion for a temporary restraining order moot.  

On July 2, 2012, the court entered an order requiring that Inman file proof of the delivery of the checks to the two charities. 

On July 3, 2012, Carreon filed a notice of voluntary dismissal.  

Subject Area: 

Jurisdiction: 

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