Tuesday, December 31, 2013
Extensive coverage of the NSA surveillance story, from the Guardian, here. A very big media law story in 2013.
Two important and contradictory rulings in the past month bear on NSA surveillance of US citizens.
In Klayman v. Obama, decided December 16, 2013, U.S. District Judge Richard Leon found the NSA program "likely unconstitutional."
In ACLU v. Clapper, decided December 27, 2013, U.S. District Judge William Pauley dismissed a lawsuit against the government, finding that the NSA program is subject to sufficient oversight under two branches of the government. The suits are very likely to end up in the appellate courts, and from there, possibly in the Supreme Court.
Saturday, December 28, 2013
More here from Bloomberg Businessweek about the early history of AT&T and its relationship with independent phone systems and with the government.
The A&E Network has reversed itself on the decision to suspend Phil Robertson from the "Duck Dynasty" television show. Mr. Robertson will return to the program in the new season. A&E had suspended Mr. Robertson over comments concerning gays and African-Americans he had made in an interview with GQ magazine. A&E took the position that the comments were at variance with its corporate policies.
A&E's reversal of the Robertson suspension seems to be an acceptance of fan reaction, which was swift and substantive, and manifested itself powerfully through social media. However, A&E has indicated that it will issue PSAs to promote "unity, tolerance and acceptance among all people."
Saturday, December 21, 2013
The Guardian reports that Chinese reporters will have to pass examinations testing ideology in order to keep their press credentials, beginning in early 2014. Reporters will be tested on the contents of a 700-page manual which contains Communist party directives.
Friday, December 20, 2013
A&E's suspension of Phil Robertson's from the hit show "Duck Dynasty" has caused massive fallout all over the media. Louisiana Governor Bobby Jindal and Ted Cruz have weighed in on Mr. Robertson's behalf, defending his right to free speech and condemning A&E's action. Fans are flocking to Mr. Robertson's side. NPR devoted airtime to the controversy on November 19. A CNN piece on the "Duck Dynasty" family reaction to the suspension had nearly 9000 comments by this morning.
Wednesday, December 18, 2013
A & E has suspended "Duck Dynasty" star Phil Robertson over remarks he made to a GQ interviewer that have now appeared in the January 2014 issue of the magazine. The remarks pertain to Mr. Robertson's views on homosexuality and African-Americans. In the interview, Mr. Robertson expressed his anti-gay sentiments. He also told the GQ interviewer that prior to the civil rights movement in Louisiana, he never saw "the mistreatment" of any African American. In a statement released to the media, A & E said it was "extremely disappointed" to read Mr. Robertson's views, which "do not reflect those of A+E Networks". More here from the Los Angeles Times.
GLAAD has issued a statement condemning Mr. Robertson's comments. Read it here.
Monday, December 16, 2013
U. S. District Court Judge Richard Leon has ruled that the NSA program under which the agency collects metadata consisting of the phone records of US citizens is "an apparent violation of privacy rights," according to this account from CNN. Judge Leon has stayed his order so that the Administration can appeal. Link to the decision here. Additional coverage from the Fort Worth Star-Telegram here. More here from Slate. A similar case, filed by the ACLU, is pending in the Southern District of New York.
The Russian Supreme Court has ordered a review of the lower court ruling against two members of the punk band Pussy Riot, who were jailed for "hooliganism" more than a year ago. The court found that the lower court did not fully consider the defendants' personal circumstances when it convicted them. A third member of the band gained her release some time ago. More here from Aljazeera, The Journalist.
Here's a review of the Pussy Riot case from the Russian Legal Information Agency (RAPSI).
Mark Strasser, Capital University Law School, has published What's It to You: The First Amendment and Matters of Public Concern at 77 Missouri Law Review 1083 (2012). Here is the abstract.
In Snyder v. Phelps, the United States Supreme Court reaffirmed that the First Amendment protects discussions on matters of public concern, thereby underscoring the importance of the distinction between matters of public concern and matters of mere private interest. Yet, the Court has never offered clear criteria by which to determine which speech falls into one category and which falls into the other. This article traces the development of the “matters of public concern” doctrine, explaining the role that the concept has played in cases ranging from defamation to employment termination to publication of (allegedly) private facts. The current jurisprudence cannot help but cause confusion and inconsistent results in the lower courts and can only undermine the very purposes the First Amendment is designed to serve.The full text is not available from SSRN.
The FCC is accepting public comments on its proposal to expand access to mobile wireless services on aircraft in flight. According to a press release dated December 12, 2013, the FCC has
initiated a proceeding to consider a proposal that would permit airlines to install equipment on aircraft that could safely expand the availability of in-flight mobile wireless services to passengers. The Commission will now seek to solicit public input on the proposal, and will carefully review input from consumers and stakeholders before taking any final action. The proposed rules, if adopted after a period of public review and comment, would expand the existing default ban on the use of cellphones in-flight to include frequency bands not previously subject to the prohibition. However, if an airline chooses to equip its aircraft with specialized onboard equipment that would prevent harmful interference with wireless networks on the ground, the airline would have the ability to enable in-flight wireless broadband access to passengers. The new systems could allow airlines to offer an array of new choices to the flying public, including Internet, e-mail, text and potentially voice services. The new technology also would provide airlines with a high level of control over the in-cabin communications environment. The proposal would not require airlines to install onboard access systems or to provide mobile wireless services to passengers on their fleets. Under the proposal, the use of mobile wireless devices would still be prohibited as a default, unless an airline installs an onboard system to manage the service. Since 1991, the FCC has prohibited in-flight mobile cellular use due to concerns about harmful interference to wireless networks on the ground. In the past two decades, technology and engineering has evolved, and specialized onboard systems that can effectively prevent interference with wireless networks on the ground have been designed and successfully deployed internationally. In addition, while consumer use of mobile phones for voice has declined in recent years, use of tablets and smartphones for wireless data has exploded. Global mobile data traffic is predicted to increase thirteen fold by 2017. Consumers are ever more dependent on reliable, high speed connectivity at all places, at all times – including when flying. Foreign airlines have used onboard mobile access technology during the last five years in jurisdictions across Europe and Asia. The Commission believes that these systems can be successfully deployed in the United States, and that the time has come to examine reforms to the agency’s outdated rules with respect to mobile wireless service onboard aircraft.
Under the proposal, individual airlines would be free, consistent with the Commission’s rules and relevant Federal Aviation Administration (FAA) and Department of Transportation (DoT) rules, to make their own decisions about whether to offer mobile wireless services at all, and, if so, which services to offer. If an airline chooses to install new onboard equipment, consumers would be able to use their mobile devices’ full wireless data capabilities in addition to the current choice of access to Wi-Fi on some flights. Airlines would be in total control of what types of mobile services to permit onboard, including whether to permit Web surfing, emailing, and texting, but not voice calls. Specifically, the Commission’s Notice of Proposed Rulemaking seeks comment on the following proposals to: Remove existing, narrow restrictions on airborne use of mobile devices in the 800 MHz cellular and Specialized Mobile Radio (SMR) bands, replacing them with a more comprehensive framework encompassing access to mobile communications services in all mobile wireless bands; Harmonize regulations governing the operation of mobile devices on airborne aircraft across all commercial mobile spectrum bands; Add the authority to provide mobile communications services on airborne aircraft across all commercial mobile spectrum bands to existing Part 87 aircraft station licenses; Allow mobile communications services on airborne aircraft only if managed by an Airborne Access System certified by the FAA, which would control the emissions of onboard portable electronic devices (PEDs) by requiring them to remain at or near their lowest transmitting power level; and Limit authorization for mobile communications services to aircraft travelling at altitudes of more than 3,048 meters (approximately 10,000 feet) above the ground. The Notice also seeks comment on alternative authorization frameworks, the potential impact of the proposals on public safety and national security, and issues related to the use of voice services onboard aircraft. The Commission looks forward to reviewing input from American consumers and stakeholders on this issue as the next step forward in this process. Frequently-asked questions about this item can be found at http://www.fcc.gov/document/qa-proposals- expand-consumer-access-inflight-mobile-services. Official FCC blog posts about this issue are available at http://www.fcc.gov/blog.
Here is a link to the FCC's Q&A on the issue.
Here is a link to the Notice of Proposed Rulemaking, dated December 13, 2013.
Monday, December 9, 2013
Christine Suzanne Davik, University of Maine, has published We Know Who You Are and What You're Made Of: The Illusion of Internet Anonymity and Its Impact on Genetic Discrimination, at 64 Case Western Law Review 17 (2013).
Adam B. Schniderman, University of California, Irvine, Department of Criminology, Law and Society, has published Neutralizing Negative Pretrial Publicity: A Multi-Part Strategy in volume 25 of The Jury Expert (November 2013). Here is the abstract.
Cable news, the internet, twenty-four hour news cycles, social media websites including Facebook and Twitter, newspapers, expert and not-so-expert television commentators, interviews of and media releases by participants and observers -- some of whom may have agendas which extend beyond the case at hand -- have significantly increased the amount of information, speculation, and theories made available to the public, and thus potential jurors, about pending cases. This is all the more true with high profile cases. Consultants and lawyers have long intuitively known what psychological research shows -- pretrial publicity can have significant impact on jury verdicts.
The law makes an incorrect assumption that potential jurors can compartmentalize the influence of outside information and set it aside. On this assumption, the law has, through statute and/or judicial opinions, constructed a standard for acceptance/dismissal for cause of a juror based on a juror’s self-assessment of whether he/she can set aside facts, views, and opinions and decide the case solely on the basis of the evidenced admitted at trial. This article explores the issue of pretrial publicity (PTP) and juror bias, briefly discusses the psychological literature on the realities of bias and decision-making, and offers a multi-part suggestion for addressing PTP prior to trial, during voir dire and during the trial.
Download the article from SSRN at the link.
Ronan Ó Fathaigh and Dirk Voorhoof, both of Ghent University, Faculty of Political and Social Sciences, have published Belpietro v. Italy: Does Parliamentary Privilege Extend to the Press? in 14 European Human Rights Cases. Here is the abstract.
In Belpietro v. Italy, the European Court of Human Rights reviewed the conviction of a newspaper editor for publishing a defamatory article written by an Italian senator targeting a number of public officials. Criminal proceedings against the senator were dropped as the newspaper article was considered to be covered by parliamentary immunity. The European Court held that the editor’s conviction did not violate the right to freedom of expression; however, the Court did hold that the sanctions imposed (including a suspended four-month prison sentence) were disproportionate. While the Court’s ruling on the sanctions point is correct, this article questions whether the Court’s main ruling on the editor’s criminal liability is consistent with the Court’s prior case law. Further, the issue of parliamentary immunity is explored, and in particular, whether this immunity should extend to protecting editors from criminal prosecution.
Download the article from SSRN at the link. Download the ruling here (French text).
Thursday, December 5, 2013
The UK's Attorney General, Dominic Grieve, will begin warning Twitter users that they might be in contempt of court if they make prejudicial comments about pending or ongoing judicial proceedings and thus cause mistrials in those proceedings. The Attorney General noted that tweets that run afoul of legal rules are likely to be those sent out by non-attorneys. "Blogs and social media sites like Twitter and Facebook mean individuals can now reach thousands of people with a single tweet or post....In days gone by, it was only the mainstream media that had the opportunity to bring information relating to a court case to such a large group of people that it could put a court case at risk...That is no longer the case....".
The Attorney General said that he is not trying to limit people's freedom of speech. He points out, however, that several tweeters have already been gotten into trouble for revealing information that a court had ordered kept private, including Peaches Geldof, the daughter of rock musician Bob Geldof, who revealed the names of the mothers of two infant victims of child abuse.
Attorney General Grieve also published (in February) a discussion of the problems raised by the growing conflicts between speech on the Internet and the right to a fair trial.
Wednesday, December 4, 2013
Tuesday, December 3, 2013
João Pedro Quintais, University of Amsterdam, Institute for Information Law (IViR), has published On Peers and Copyright: Why the EU Should Consider Collective Management of P2P, in volume 14 of Nomos (2012). Here is the abstract.
This book analyzes the E.U.’s approach to P2P, a digital age technology that highlights the tensions between the Internet and a territorial and fragmented copyright law. It aims at providing the necessary legal qualification and context to understand why the E.U., while following an economic and socially onerous path, has thus far failed to achieve its deterrence goals. It is argued that a solution to this conundrum must be based on the use of copyright law and policy as tools for market organization and innovation growth, with respect for rights holders and users (sometimes) opposing interests and the existing legal framework. The best answer to mass online P2P uses seems to be that of collective rights management, as it offers an organized licensing and remuneration system compatible with the interests of stakeholders. This is especially true in the E.U., home to a developed and sophisticated market of CMOs, subject to numerous ECJ and Commission decisions, as well as varying E.U. institutional approaches, all pointing towards a preference for multi-territorial and pan-European licensing models. In this context, this book tests the compatibility of several non-voluntary and voluntary approaches to P2P with international treaties, the acquis or simply strategic policy considerations.
The full text is not available from SSRN.
Monday, December 2, 2013
The Ron Burgundy phenon rolls on, and real media continues to roll along with it. CNN New Day discusses Ron (Will Ferrell)'s anchoring of local news station's KXMB's (Bismarck, ND) newscast on November 30. Ah, yes. We went to a movie, and the news broke out.
Want more Ron? Here he is, selling cars.
Adam Tucker, University of York Law School, has published Press Regulation and the Royal Prerogative. Here is the abstract.
On 30th October 2013 the UK government intervened in press regulation through the granting of a Royal Charter under the Royal Prerogative. This short paper argues that this intervention is ultra vires and hence unlawful. My argument can be summarised very simply. The law requires a precedent for the exercise of prerogative power. This intervention represents an unprecedented use of the prerogative. It is therefore unlawful. Section I outlines the law’s hostility to novel prerogatives and the novelty of the Press Regulation Charter. Section II canvasses and rejects what I take to be the three most plausible foundations for the new charter. Section III tackles two sources of scepticism about my argument. Section IV places the argument in a slightly wider context and suggests a lawful way of achieving the aims of the charter.
Download the paper from SSRN at the link.
Read the DDPA press release here. Said the DDPA in part:
In brief, the CNIL concluded that Google:
1. is acting in breach of its obligation to provide information, especially in respect of ‘passive’ users;
2. has no legal ground for the combining of data from various services for a number of specific purposes;
Read the complete findings of the DDPA (in an unofficial translation) here. Read the original here; Annex here. Read a letter to Google from the EU Data Protection Article 29 Working Party here. Read the Working Party's recommendations here. More about the Working Party here.
Hat tip to Jurist.