Friday, May 3, 2013
Florida High Court Rules That Police May Not Search Photos On Arrestee's Cell Phone Incident To Valid Arrest Without Reasonable Belief That Phone Contains Evidence of Crime
The Florida Supreme Court has ruled that a police officer may not search the photographs on an arrestee's cell phone at the time of a valid arrest without a reasonable belief that the cell phone contains evidence of a crime. The Court adopts the Ohio Supreme Court's analysis in State v. Smith (124 Ohio St. 3d 163 (2009)).
In addition, the Court held that once the officers removed the cell phone from the arrestee's possession, they needed to obtain a warrant before "access[ing] and search[ing}" the phone." The case is Florida v. Smallwood, No. SC11-1130 (decided May 2, 2013).
[T]he Ohio Supreme Court held that the search of a cell phone incident to arrest is unconstitutional when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances. In reaching its decision, the state court first concluded that a cell phone is not the same as a "closed container" in this context for Fourth Amendment purposes:Objects falling under the banner of "closed container" have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, "container" means "any object capable of holding another object." New York v. Belton. . . . One such example is a cigarette package containing drugs found in a person's pocket, as in . . . Robinson. . . ....The court then concluded that, given the ability of modern cell phones to be the database for and provide access to tremendous amounts of private data, they are entitled to a heightened expectation of privacy.... Based on these conclusions, the Ohio Supreme Court ultimately held:
We acknowledge that some federal courts have likened electronic devices to closed containers. . . . Each of these cases, however, fails to consider the Supreme Court's definition of "container" in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone's contents, police must then obtain a warrant before intruding into the phone's contents.
Id. (emphasis supplied). We agree with and adopt the rationale of the Ohio Supreme Court.
Christophe Geiger, Centre for International Intellectural Property Studies, University of Strasbourg; Max Planck Institute for Intellectual Property and Competition Law, has published The Social Function of Intellectual Property Rights, or How Ethics can Influence the Shape and Use of IP Law, in Intellectual Property Law: Methods and Perspectives (G. B. Dinwoodie (ed.), Cheltenham, UK/Northampton, MA, Edward Elgar, (2014, Forthcoming)) Here is the abstract.
The social function is inherent to any legal rule. It allows for the rights of individuals to be weighed against competing rights. Being part of a broader legal system, these rights must always be put in context with other rights of equal value and with collective interests. Insisting on the social function of intellectual property rights thus amounts to identifying a need for moderation and balance in their conception and implementation - a need that has sometimes been lost sight of in recent developments. Therefore, taking into closer consideration the social function of intellectual property rights might help counter and mitigate certain expansionist tendencies in current legislation. In a time when intellectual property rights are facing a serious crisis of legitimacy, the restoration of their social function puts universal ethical principles at the heart of the debate, which can only in the long term contribute to re-establishing their public acceptance.
Download the essay from SSRN at the link.
Thursday, May 2, 2013
Tina Brown, editor in chief of popular online media site The Daily Beast, announced that the publication is terminating its relationship with Howard Kurtz, Washington Bureau Chief who is also a CNN host (Reliable Sources). Mr. Kurtz wrote a blog post about NBA player Jason Collins, suggesting that Mr. Collins did not "come clean" about his sexuality in a Sports Illustrated story in which he discussed his relationship with women, including a woman to whom he was engaged. The Daily Beast has retracted the post, saying,
The Daily Beast sincerely regrets Kurtz’s error—and any implication that Collins attempted to hide or obscure the engagement.
Alexander Bussey has published The Incompatibility of Droit de Suite with Common Law Theories of Copyright in volume 23 of the Fordham Intellectual Property, Media & Entertainment Law Journal (2013). Here is the abstract.
Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is incompatible with standard theories of intellectual property law. This paper discusses how droit de suite works in practice, providing a detailed analysis of its failures and an explanation of why attempts to further promulgate the right in common law nations should be quashed.
Download the full text of the Article from SSRN at the link.
Woodrow Hartzog, Samford University School of Law; Stanford Law School Center for Internet and Society, has published The Fight to Frame Privacy at 111 Michigan Law Review 1021 (2013). Here is the abstract.
The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. This Review describes Solove’s polemic as a strong and needed collection of frames that counterbalances the “nothing to hide” argument and other security-biased refrains so often used in privacy disputes. It also suggests additional frames that could contour this debate, including confidentiality, obscurity, and the commonalities between privacy and security.
Download the full text of the essay from SSRN at the link.
Caroline Mala Carbin, University of Miami School of Law, is publishing Compelled Disclosures in the Alabama Law Review (forthcoming). Here is the abstract.
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that recent appeals court decisions have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
Download the article from SSRN at the link.
PepsiCo has pulled an ad for its popular drink Mountain Dew after viewers objected to it, calling it racist and misogynistic. The ad, which was created by the rapper Tyler, the Creator, features a woman who looks as if she has been battered, attempting to identify someone in a police lineup. All the suspects are African American men except for a goat. The goat keeps uttering threats to the victim. Finally the woman gives up and runs off.
A number of viewers and critics have labeled this commercial "arguably the most racist in history."
Tuesday, April 30, 2013
Genevieve Lakier, University of Chicago Law School, is publishing Sport as Speech in the University of Pennsylvania Journal of Constitutional Law (forthcoming). Here is the abstract.
Sports play a tremendously important role in American public culture, yet games of spectator sport are not generally recognized as expression protected by the First Amendment. This is notwithstanding the extension in recent years of First Amendment protection to a wide variety of other kinds of nonverbal art and entertainment. This Article argues that the denial of free speech protection to spectator sport is wrong both doctrinally and when considered in light of the aims and purposes of the First Amendment. Drawing upon an extensive body of social scientific research examining the practice and cultural significance of spectator sports, it argues that games communicate the sorts of messages to which First Amendment protection extends. In providing viewers dramatic spectacles of victory and defeat, and in offering fans a symbol around which to rally around, spectator sports also reflect and help shape public attitudes and beliefs about individual excellence, political community and identity, race, gender, and sexuality — even competition itself. The Article argues that the same justifications that support the extension of First Amendment protection to art and entertainment therefore support extending protection to spectator sport, and that the exclusion of spectator sports from the category of expressive conduct furthers none of the purposes of the First Amendment. Instead, it merely distorts the doctrine, by relying on an ultimately unjustifiable distinction between artistic and athletic performance, and live and mediated speech.
Download the full text of the article from SSRN at the link.
Monday, April 29, 2013
Jonathan C. Augustine, United Theological Seminary, has published Religion, Race and the Fourth Estate: Xenophobia in the Media Ten Years after 9/11 at 1 Tennessee Journal of race, Gender & Social Justice 1 (2012). Here is the abstract.
September 11, 2011 marked the tenth anniversary of the most horrific attacks in the United States. In the decade after the September 11, 2001 attacks (9/11), matters of race and religion maintained an awkwardly prominent role in American culture, with the media arguably fueling perceptions. This interdisciplinary Article’s thesis is that media elites, most of which are large corporations, threaten American democracy with xenophobic influence in an age of unmediated communication. Thus, the frequent imagery of “us” versus “them” has exasperated religious tensions between Judeo-Christian faith groups and religious minorities.
In the wake of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, corporate media entities are now able to control the news and the newsmaker, with free speech that has become very costly. Indeed, empirical studies and research show that media has misused its trusted status as the proverbial “fourth branch of government,” because of capitalism and consumerism. Moreover, in an effort to increase ratings and associated advertising dollars, media has reinforced stereotypes by marketing and essentially selling fear as part of the War on Terror. The authors seek to prove their thesis by emphasizing the historical significance of the First Amendment’s individual protections, examining deregulation and the media’s profit-making interests, and criticizing the Citizens United decision as creating an inherent conflict of interest for media corporations, considering their proven interest in “selling” news for pecuniary gain.
Download the full text of the article from SSRN at the link.