Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 10, 2016

Espino @MMaysEspino on Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones

Meredith Mays Espino, Journal of Information Technology & Privacy Law, has published A Tale of Two Phones: A Discussion of Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones. Here is the abstract.

At first blush, the Apple versus the United States Government fight may appear to be a marketing ploy or yet another means the government is maliciously overstepping. Neither view is correct. Both parties have valid arguments. The government, in its view, means to give law enforcement all tools it can to protect US citizens. Apple is concerned with protecting its customers’ data and privacy. The question used to be security versus privacy. Now, with so much of ourselves in digital form floating about on cables and servers, the question is what kind of security do we want. Are we more concerned with security in the more traditional sense or are we more concerned with security that delves from our online lives? How far are we willing to go for each and what will we give up? Are millions around the world to give up the liberty of privacy for a little safety in a relatively few criminal cases? That is a question for our elected representatives, not for law enforcement and certainly not through the courts via the All Writs Act.

Download the article from SSRN at the link.

June 10, 2016 | Permalink

Thursday, June 9, 2016

Manning on Hyperlinks and Copyright Law

Colin Manning, Cork Institute of Technology, has published Hyperlinks & Copyright Law. Here is the abstract.

Reconciling the desire for wide distribution with the desire for control has proven challenging for the law. Deep linking is a good illustration of how applying print and broadcast era concepts to the challenges of the digital era can result in uncertainty and unintended consequences. In the Svennson decision, the court not only failed to acknowledge the distinction between linking and embedding, but it explicitly permitted embedding of content from other sites. This could have implications for how content is distributed, and may ultimately harm user privacy.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Tsesis on Terrorist Speech on Social Media

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Terrorist Speech on Social Media in volume 70 of the Vanderbilt Law Review (2017). Here is the abstract.

The presence of terrorist speech on the Internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and destruction. Terrorist advocacy on the Internet raises special problems because it contains elements of political declaration and self-expression, which are typically protected by the First Amendment. However, terrorist organizations couple these legitimate forms of communication with calls to violence, recruitment to training, and indoctrination to belligerence. Incitement readily available on social media is sometimes immediate or, more often, calibrated to influence and rationalize future dangerous behaviors. This is the first article to analyze all the Supreme Court free speech doctrines that are relevant to the enactment of a constitutionally justifiable anti-terrorism statute. Such a law must grant the federal government authority to restrict dangerous terrorist messages on the Internet, while preserving core First Amendment liberties. Legislators should develop policies and judges should formulate holdings on the bases of the imminent threat of harm, true threats, and material support doctrines. These three frameworks provide the government with the necessary constitutional latitude to prosecute dangerous terrorist speech that is disseminated over social media and, thereby, to secure public safety, without encroaching on speakers’ right to free expression.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Casarez on the Synergy of Privacy and Speech

Nicole B. Casarez. University of St. Thomas, University of Houston Law Center, is publishing The Synergy of Privacy and Speech in volume 18 of the University of Pennsylvania Journal of Constitutional Law (2016). Here is the abstract.

With the passage of the USA FREEDOM Act in June 2015, Congress supposedly curbed NSA's ability to spy on ordinary Americans by taking the agency out of the domestic metadata collection business. In truth, however, the new law leaves untouched the NSA's ability to capitalize on the global nature of modern communications networks to collect and analyze most of those same communication records under other legal authorities, including Executive Order 12333. Accordingly, the Freedom Act does nothing to resolve the great constitutional metadata debate. The law leaves intact the government's theory that when the NSA collects metadata associated with U.S. -person communications, and uses it to map out our contacts and social networks, the agency resides in a constitution-free zone. Covert government surveillance programs that collect Americans' communication records implicate both the right to privacy and the right of free expression. Given the development of the law and the constraints of precedent, however, neither the Fourth nor the First Amendment alone will provide citizens with sufficient protection against the government. Instead of viewing the two Amendments in isolation, I argue that the First Amendment value of communications privacy must be factored into the determination of whether a government surveillance program violates the Fourth Amendment. When considered in tandem this way, the two Amendments mutually reinforce each other and create a synergy that extends the protections of each. This approach, demonstrated by the Court in United States v. U.S. District Court (the "Keith" case) provides a path for the Court to reevaluate and limit the third party doctrine with respect to dragnet government collection of communications metadata, without overruling the doctrine entirely. Whether a constitutional challenge to bulk incidental collection of domestic metadata under EO 12333 will ever be heard by the Supreme Court is another matter, given the current state of the law of standing. I agree with others who have argued that, in the context of massive government surveillance programs, the Court should loosen standing requirements to ensure that those programs do not escape judicial review. In the meantime, I conclude by sketching out Congressional and executive branch reforms that would provide meaningful privacy protections to American communications records that the government currently harvests from abroad. These reforms would bring the NSA's incidental collection of domestic communications metadata under EO 12333 more in line with the Fourth and First Amendments.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Wednesday, June 8, 2016

A New Book on the Early Supreme Court and the Sedition Act of 1798

Wendell Bird, Visiting Scholar at Emory Law School, and partner, Bird, Loechl, Brittain, and McCants, Atlanta, Georgia, has published Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent (Oxford University Press, 2016). Here is a description of the book's contents from the publisher's website.

The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided. The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms. The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions. The book summarizes the recognized fourteen prosecutions of newspaper editors and other opposition members under the Sedition Act of 1798. It sheds new light on the recognized cases by identifying and confirming twenty-two additional Sedition Act prosecutions. At each of these steps, this book challenges conventional views in existing histories of the early republic and of the early Supreme Court justices.

     Bird book

June 8, 2016 | Permalink

Keck, Price, and Metroka on the Judicial Protection of Anti-Judicial Speech

Thomas M. Keck, Syracuse University, School of Citizenship and Public Affairs, Richard S. Price, Weber State University, and Brandon Metroka, Syracuse University School of Citizenship and Public Affairs, have published The Judicial Protection of Anti-Judicial Speech. Here is the abstract.

The willingness of constitutional courts to extend free speech protection to anti-judicial speech (i.e., speech that criticizes the performance and/or character of courts and judges) could be a more widely used benchmark for assessing the commitment of various democratic jurisdictions to free expression. In a democracy, political institutions (and the leaders who occupy them) must tolerate criticism of their decisions (and their competence and character); this rule applies to courts no less than to legislatures and executives. Indeed, this rule is a key indicator of courts’ democracy-reinforcing character. In this paper, we trace the emergence of this commitment in American contempt-of-court case law and then offer a preliminary assessment of whether and to what degree constitutional courts in other jurisdictions have followed a similar path.

Download the article from SSRN at the link.

June 8, 2016 | Permalink

Tuesday, June 7, 2016

Froomkin on Building Privacy Into the Infrastructure

A. Michael Froomkin (@mfroomkin), University of Miami School of Law, has published Building Privacy into the Infrastructure: Towards a New Identity Management Architecture as University of Miami Legal Studies Research Paper No. 16-26. Here is the abstract.

We are at risk of becoming digitally transparent to both government and the private sector. As it is increasingly obvious that US law is not going to prevent the destruction of personal privacy, we urgently need better privacy tools, baked into the way we do transactions. A partial, but significant, privacy enhancement would be a new Identity Management Architecture (IMA) enabling multiple privacy-protective transaction-empowered digital personae per user. Each persona (or ‘nym if you prefer) would have the ability to communicate, and at least a limited ability to transact, in a manner that would not be linkable, or least very difficult to link, to the real identity of the user. By using a variety of personae for online transactions, reading, and communication, users would defeat — or at least vastly reduce the effectiveness — of commercial and perhaps also governmental profiling. The problem is that an IMA that enables privacy enhanced personae is most unlikely to reach wide acceptance unless it is designed in a manner that makes it easy to use. It will not receive US governmental acceptance unless it also reduces the extent to which the personae can be used to break laws and evade contractual obligations. This paper thus discusses the legal and political considerations that might inform a requirements document for such an IMA with special reference to US law and likely US government reaction. It includes a survey of laws that parties engaging in or enabling anonymous or pseudonymous transactions should consider, and concludes with discussion of several critical design decisions including transnational credentials, the possibility of identity escrow for transactional personae, and speculation as to how personae might fare in the marketplace. The timeliness of this proposal is demonstrated by David Chaum’s recent announcement of new privacy protocol, PrivaTegrity, that contains most of the features needed to engineer a privacy-enhanced IMA that might be acceptable to law enforcement. The need for some action, whether based on PrivaTegrity or otherwise, is very great — so critical that it may time to accept the previously unthinkable, and accept some form of identity escrow as part of the IMA.

Download the article from SSRN at the link.

June 7, 2016 | Permalink

Menell, Lemley, and Merges on Intellectual Property in the New Technological Age

Peter S. Menell, University of California, Berkeley, School of Law, Mark A. Lemley, Stanford Law School, and Robert P. Merges, University of California, School of Law, have published Intellectual Property in the New Technological Age: 2016 - Chapters 1 and 2. Here is the abstract.

Rapid advances in digital and life sciences technology continue to spur the evolution of intellectual property law. As professors and practitioners in this field know all too well, Congress and the courts continue to develop intellectual property law and jurisprudence at a rapid pace. For that reason, we have significantly augmented and revised "Intellectual Property in the New Technological Age. The 2016 Edition reflects the following principal developments: ● Trade Secrets: Congress passed the Defend Trade Secrets Act of 2016, one of the most momentous changes in the history of trade secret protection. The new law opens up the federal courts to trade secret cases, provides for ex parte seizures of misappropriated trade secrets in “extraordinary circumstances,” and establishes immunity for whistleblowers. ● Patents: The past several years have witnessed some of the most significant developments in U.S. patent history — from the establishment of the new administrative review proceedings at the Patent Office to important shifts in patent-eligibility and claim indefiniteness at the Supreme Court and means-plus-function claim interpretation and infringement doctrine at the Federal Circuit. We have restructured the patent chapter to illuminate these areas. We have also significantly expanded coverage of design patents in response to the growing importance of this form of protection. ● Copyrights: The Supreme Court issued important decisions addressing the public performance right and the first sale doctrine. The past few years also witnessed important developments in the Online Service Provider safe harbor, fair use, and state protection for pre-1972 sound recordings. We have also integrated the digital copyright materials into a unified treatment of copyright law and substantially revamped the fair use section to reflect the broadening landscape of this important doctrine. ● Trademarks: We have integrated important cases on federal registrability of disparaging marks, merchandising rights, likelihood of confusion on the Internet, and remedies. ● Other State Protections: We have updated material on the right of publicity, an active and growing area. We have also reorganized the chapter and focused it on IP regimes.

Download the chapters from SSRN at the link.

June 7, 2016 | Permalink

Bambauer on the Relationships Between Speech and Conduct

Jane R. Bambauer, University of Arizona College of Law, is publishing The Relationships between Speech and Conduct in volume 49 of the UC Davis Law Review (2016). Here is the abstract.

In his new article, Information Fiduciaries, Jack Balkin argues that existing or prospective laws imposing confidentiality and other speech-related restrictions on Internet firms should be able to withstand First Amendment scrutiny (if they are designed well enough) because they protect consumers in fiduciary relationships. His article makes an important contribution to the growing literature on professional speech, and it offers privacy scholars a credible path through the constitutional landscape. The article also makes a less obvious contribution to debate on the boundaries of free speech. It argues that some regulations of speech — perhaps quite a lot of it, even — is best understood as the government management of relationships between the speakers and key interested parties. And, like other boundary zones of free speech, challenges to these types of regulations will require analysts and courts to take great care before concluding that they burden protected speech. In this essay, I begin to roll out the implications of Balkin’s relational approach to free speech. Part I will show that the management of relationships can explain puzzles in free speech case law that go well beyond fiduciaries, and it may provide helpful guidance in future free speech controversies. Part II argues that even when the relationship approach to free speech is embraced, its implications are somewhat limited in the context of Internet services.

Download the article from SSRN at the link.

June 7, 2016 | Permalink

Monday, June 6, 2016

Media Coverage of the Heard/Depp Divorce

From the Hollywood Reporter: a discussion of the media attention surrounding the Amber Heard/Johnny Depp divorce. Of particular interest, the number of leaks to media concerning Ms. Heard's allegations about Mr. Depp's violence toward her. More here from THR. 

June 6, 2016 | Permalink

The Economist Examines Free Speech

The June 4, 2016 cover story of the Economist is devoted to the question of freedom of expression. Similarly, Newsweek discusses the question of hate speech on college campuses in a recent issue.

 

June 6, 2016 | Permalink

Griffiths on Exhaustion and the Alteration of Copyright Works in EU Copyright Law

Jonathan Griffiths, Queen Mary University of London, School of Law, has published Exhaustion and the Alteration of Copyright Works in EU Copyright Law – (C-419/13) Art & Allposters International BV v Stichting Pictoright at ERA Forum 1 (May 2016). Here is the abstract.

The Judgment of the Court of Justice in (C-419/13) Art & Allposters International BV v Stichting Pictoright concerned a claim that the transfer of an image from paper poster to artist’s canvas infringed copyright in that image. It is argued here that, while the case sheds little light on the potential application of the Usedsoft principle to copyright works more generally, its significance extends well beyond the relatively specialist practices with which the national proceedings were concerned. Following an outline of the Judgment, the article goes on to consider its implications for our understanding of the reproduction, distribution and adaptation rights in EU copyright law.

Download the article from SSRN at the link.

June 6, 2016 | Permalink