Steve Jobs is currently holding a press conference to talk about the iPhone 4 antenna issue. Its a carefully crafted message, as are all of his presentations – but its a lesson in how to deal with product issues. Admit there is a problem. Put the problem in perspective by giving some numbers on complaints, [...]
A federal appellate court has issued a swift ruling, in a high profile reporter’s privilege case, that requires a filmmaker to surrender some of his unpublished footage to a powerful oil company.
Last week I wrote about a brewing court battle between filmmaker Joe Berlinger and the oil company Chevron over 600 hours of outtakes from his documentary, “Crude: The Real Price of Oil” (“Crude”). Chevron and its attorneys had argued in federal district court in the Southern District of New York that they wanted the footage because it might be useful to them in their pending lawsuits in Ecuador, which arose out of charges of widespread oil pollution in the country. Crude covers the underlying class-action civil lawsuit against Chevron.
A day after a standing room only hearing in New York—attended by the media, filmmakers, rainforest activist Trudie Styler (wife of the musician Sting) and even a large group of high school students on a field trip—a three-judge panel of the Second Circuit Court of Appeals issued a tentative ruling on the status of Berlinger’s outtakes. In their 2-page ruling, Judges Pierre N. Leval, Barrington D. Parker Jr. and Peter W. Hall ruled on Thursday that Berlinger has to hand over some footage to the Chevron parties, subject to the following terms:
The appellate court’s order compelling disclosure of only certain footage appears to have narrowed the ruling of the district court judge, Lewis A. Kaplan, who required disclosure of all of Berlinger’s outtakes. The appellate panel also seems to have rejected the costly and time-consuming proposal raised in the July 14 hearing of having a special master review and process for relevance the hundreds of hours of material that did not fit into the three categories of footage identified by the court and the parties.
Already, both sides of the controversy are claiming victory.
In a statement to the Wall Street Journal, Berlinger noted he was particularly pleased with the order because it barred Chevron from using his footage in “their public relations campaigns, a goal that was extremely important to me.” He also told the New York Times blog that he thought the order “preserved the basic standards [of protection] for non-confidential material.” Maura J. Wogan, a lawyer for Berlinger, echoed, to some degree, her client’s sentiment to the same Times blog, noting that the order “from what we’ve seen so far, is certainly a narrowing of Judge Kaplan’s broad order.”
Meanwhile, Randy M. Mastro, a lawyer representing Chevron, said in statement to the same Times blog that he was pleased with the Second Circuit for responding “so swiftly to Chevron’s emergency need for this evidence to defend itself against a travesty of justice in Ecuador.”
Mastro should certainly be satisfied given that, by his own calculation, plaintiffs’ counsel was in 70 percent of Crude. The outtakes could be similarly dominated by plaintiffs’ counsel’s presence, leading to a possible production of almost 420 hours of footage. Such a forced disclosure arising out the ruling must surely, in the words of Karen Hinton, spokesperson for the plaintiffs in the Ecuadorean suit against Chevron, undermine "investigative journalism during a time when more inquiry is sorely needed in the oil industry."
Still, famed First Amendment lawyer Floyd Abrams noted to the Los Angeles Times that no victor in this case should be declared until the full ruling of the panel is published. It will be troubling if the panel merely memorializes what was essentially a settlement reached in open court without disturbing the lower court’s analysis. Despite the unusual factual circumstances of this case, the lower court’s opinion is arguably a weakening of the key reporter’s privilege case in the Second Circuit, Gonzales v. National Broadcasting Company, 194 F.3d 29 (2d Cir. 1999). As I wrote last week, the end result could be more burdensome subpoenas on the press, which would divert their limited resources and attention. But, this all ultimately depends on what rationale the court offers for its decision in the weeks to come.
(Itai Maytal is a media law attorney in New York and was the 2009 First Amendment Fellow at The New York Times Company.)
It is a good thing to want to protect children from the vulgarity of the world. Accordingly, states have adopted prohibitions on exhibiting or selling harmful material to minors. These laws make sense, in that we usually don’t want sex shops selling pornography to kids. But occasionally the legislature goes a bit insane and decides that, in order to fully protect the children, we need to criminalize or block off whole sections of the Internet.
Massachusetts recently changed its “harmful to minors” law (Mass. Gen. Laws ch. 272, § 31) to include information hosted on the Internet:
“Matter”, any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.
2010 Mass. Acts ch. 74, § 2. The ACLU has already challenged the law. I predict that Massachusetts is about to get spanked on its inviting, taut little buns (in case the law remains in effect, I mean spanked in a non-sexual way — if you are a minor please do not turn me in).
This definitional expansion was not a good idea for many, many reasons:
First off, this approach threatens to criminalize huge swaths of the Internet because there is no easy way to ensure that one’s risqué material is not viewed by minors. See failed attempts to require the use of real names or other identifiers online (that is, outside of South Korea). The only way to be safe would be to make sure that your content was rated PG (and I don’t know about you but I sometimes enjoy the occasional swear or comment on taut buns, see supra). This PG restriction of course would amount to censorship of constitutionally protected speech.
Secondly, it seems to me that the Supreme Court already hinted in Reno v. ACLU, 521 U.S. 844 (1997), that this sort of thing is unconstitutional. There, the Court struck down sections of the Communication Decency Act of 1996, which imposed criminal sanctions on anyone who:
knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.
Thirdly, the Massachusetts legislature has apparently misunderstood the scope of the Internet. Whereas the previous “harmful to minors” language contemplated sex shops with physical locations serving Massachusetts minors, the new law reaches the entire country. Surely, Massachusetts does not have the right to regulate businesses located in other states, especially provided that those businesses are not specifically targeting Massachusetts residents.
Fourthly, the law will provide another tool for bogus takedowns of otherwise lawful content, à la the DMCA. If I don’t much care for the content of your site, it would be virtually costless for me to turn you in and exclaim loudly “Won’t someone please think of the children!”
Lastly, this law comes at a time when the United States is exerting pressure on her allies to refrain from adopting similar “protect the children” Internet prohibitions. The Australians recently delayed turning on their giant Big Brother is Watching You Internet Filter for a least one year, due in part to extraordinary condemnation from the U.S. government and businesses. (Good job not being evil Google).
As always, I try to ascribe these sorts of bills to carelessness or stupidity rather than hubris. The inclusion of “text messages” makes me think that this law is actually an anti-sexting law along the lines of the prohibitions in Ohio and Illinois. If this is the case, the legislature might want to withdraw the insanely swollen language in favor of a more tailored, form fitting, and supple solution to this problem.
(Andrew Moshirnia is a rising third year at Harvard Law School. He believes that parts of the human body, practical as they may be, are evil!)
That’s the title of my Slaw post for today. It reads as follows. Whether you are an Apple fan or not, the apparent flaw with the iPhone 4 external antenna gets interesting on many levels – including the tech itself, why it wasn’t found during pre-launch testing, Apple’s reaction, customer relations, and testing by various [...]
In re Anonymous Online Speakers, — F.3d —, 2010 WL 2721490 (9th Cir. July 12, 2010) Quixtar (which used to be Amway) sued Signature Management TEAM (“TEAM”) for tortious interference and other claims, alleging that TEAM engaged in a smear campaign against Quixtar on the internet. In his deposition, TEAM’s online content manager refused to [...]
Hypertouch, Inc. v. Azoogle.com, Inc., 2010 WL 2712217 (9th Cir. July 9, 2010) Pleading in federal court is generally a straightforward matter. Federal Rule of Civil Procedure 8 requires only that the plaintiff set forth a short and plain statement as to why that party is entitled to relief. But in cases involving fraud, there [...]
The Information Commissioner’s Office has published a code of practice for the collection of personal data online. In a “major speech” on privacy protection, Christopher Graham (the Information Commissioner) said action would be taken against those breaching the Data Protection…
An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).
According to prosecutors, William White’s overthrow.com site (archived here) featured racist and anti-Semitic articles, and promoted the American National Socialist Workers Party,
which billed itself as "America’s only organization advocating for the interests of the white
working class."
Among the topics discussed on overthrow.com was the trial of leader of the white supremacist organization World Church of the Creator Matt Hale, who was convicted in 2005 and received a 40-year prison sentence for soliciting the murder of a federal
judge in 2003.
The judge, U.S. District Judge
Joan Lefkow, presided over
a trademark case involving the name of the church that Hale purported to lead. While Lefkow actually initially granted summary judgment to Hale’s group (TE-TA-MA Truth Foundation — Family of URI, Inc. v. World Church of
the Creator, 2002 WL 126103, 2002 U.S.Dist. LEXIS 1478 (N.D.Ill.
Jan. 31, 2002)), she was reversed by the 7th Circuit (Te-Ta-Ma Truth Foundation Family of Uri Inc v. World Church of the
Creator, 297 F.3d 662 (7th Cir. 2002), cert. denied, 537 U.S. 1111 (2003)), and then followed the appeals court’s remand instructions ordering judgment against Hale’s group. (Lefkow’s husband and mother were killed in 2005 by a man whose medical malpractice lawsuit — unrelated to the Hale trademark case — the judge had dismissed. Lefkow was also threatened by a New Jersey blogger over the Hale case; federal and state cases are pending against that blogger for other threats.)
On September 11, 2008, a posting on the home page of overthrow.com titled “The Juror Who Convicted Matt Hale” revealed the identity; home address; and home, work and cell phone numbers of the jury foreperson in the Hale case, along with the name of the juror’s significant other and the juror’s cat. The site also displayed (through a link) a photograph of the juror; when the site hosting the photo removed it, the following day overthrow.com posted the picture on its own server.
A federal grand jury indicted White on October 21, 2008, on one count of soliciting a crime of violence, in violation of 18 U.S.C. § 373, and on February 10, 2009 returned a superseding indictment on the same charge.
White moved to dismiss both indictments, claiming that his article
was protected under the First Amendment.
Judge Lynn Adelman of the Eastern District of Wisconsin — presiding over the case after White moved for recusal of judges from the Northern District of Illinois — granted White’s dismissal motion in a July 21, 2009 order.
Defendant’s posts regarding Juror A do not expressly solicit or endeavor to persuade another person to harm Juror A. Rather, they disclose personal information about Juror A and comment on his/her sexual orientation and attitude toward race. Although the posts may be reasonably read as criticizing Juror A’s vote to convict Hale, nowhere in them does defendant expressly advocate that Juror A be harmed.
Scrutiny and criticism of people involved in the investigation and prosecution of crimes is protected by the First Amendment.
U.S. v. White, Crim No. 08-851 (N.D. Ill. July 21, 2009), slip op. at 13-14.
The government appealed the dismissal to the Seventh Circuit, which reversed. The appeals court held that the superseding indictment was sufficient to allege violation of 18 U.S.C. § 373, and that the potential First Amendment concern in the case "is addressed by the requirement of proof beyond reasonable doubt at trial, not by a dismissal at the indictment stage." U.S. v. White, No. 09-2916 (7th Cir. 2010), slip op. at 8.
[T]he First Amendment may still have a role to play at trial. Based on the full factual record, the court may decide to instruct the jury on the distinction between solicitation and advocacy, and the legal requirements imposed by the First Amendment…. After the prosecution presents its case, the court may decide that a reasonable juror could not conclude that White’s intent was for harm to befall Juror A, and not merely electronic or verbal harassment. But, this is not a question to be decided now. We have no idea what evidence or testimony will be produced at trial…. The question of White’s intent and the inferences that can be drawn from the facts are for a jury to decide, as the indictment is adequate to charge the crime of solicitation. The indictment is legally sufficient and should not have been dismissed.
U.S. v. White, No. 09-2916 (7th Cir. 2010), slip op. at 13-14.
White’s attorney said that he would seek en banc review of the decision by the full Seventh Circuit.
For the London Free Press – July 12, 2010 Read this on Canoe So-called ‘cloud computing’ can be valuable — but it can also come with risks Cloud computing – essentially providing computer services over the Internet – is a growing trend. Ontario’s privacy commissioner recently released a report dealing with privacy issues that arise [...]
In my most recent post I contrasted the approaches of the UK and Finland towards access to broadband. Whilst reading a little further around the topic, I came across some interesting discussion of the controversy surrounding the Digital Economy Act….