And Then... A NY Court Says No To Police GPS Tracking

from the a-difference-of-opinion dept

On Monday, we wrote about the Wisconsin ruling that police didn't violate anyone's rights in putting a GPS device on the car of someone they were tracking. It didn't take long for a different court in a different case to disagree. A bunch of folks have sent in the news that a court in NY had tossed out a similar case, claiming that the GPS evidence was illegally obtained. The ruling lays out many of the reasons why such technologies aren't the same as simply observing what someone does in public:

"What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits."

I expect that we'll be seeing many more such cases in the next few years until this is settled either by the law or the Supreme Court.

Filed Under: first amendment, gps tracking, law enforcement, privacy

More Troubling Proposed Anti-Social Networking Laws: CA Wants Photo Removal Law

from the get-over-it dept

It's amazing what sort of laws politicians will come up with when they overreact to something that new technology allows, without bothering to understand the issue. It appears some California state politicians are upset about the fact that people are uploading photos and videos to social networking sites, and those photos may reveal something the subject of the photo wouldn't like. So, they want to require any site that allows uploads of images or videos to be required to take down that content on request of a subject in that content. Yes, even if the photo or video were taken in public.

In looking over text of the bill (warning: pdf), it looks like the original idea was worse: that social networking sites would be required to prevent anyone from copying an image off of a website. It looks like someone explained to the bill's sponsor how that's impossible. However, even though the bill claims that it's aimed at photos of people who had an expectation of privacy, that doesn't appear to be anywhere in the actual text. Instead, sites would be required to take down content on the request of anyone in the image. Sites would also be responsible for verifying that the takedown request came from the person actually in the photo, though there's no mechanism to determine how. It's also not clear how to deal with photos that involve multiple people.

But, honestly, what's most unclear... is why such a law is needed in the first place? It seems like a major hassle for no good reason whatsoever -- especially in an era where taking photos and sharing them has become the norm for many people.

Filed Under: california, first amendment, photos, social networks

Supreme Court Says FCC Can Fine Fleeting Expletives... For Now

from the next-up,-first-amendment-question dept

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.

Filed Under: fines, first amendment, fleeting expletives, free speech, supreme court
Companies: fcc, fox

Yahoo Removing Your Stock Board Comments Is Not A Violation Of Your First Amendment Rights

from the freedom-to-post? dept

Eric Goldman points us to the latest silly lawsuit against Yahoo. This time, it's a guy who posted a bunch of comments on various stock forums, and when Yahoo appears to have canceled his account, he sued the company for violating his First Amendment rights. You can read the full lawsuit below: Of course, the First Amendment has nothing to do with this whatsoever. It is entirely focused on what Congress can do, not what some company can do. Congress can't make a law preventing this guy from sharing his thoughts -- but Yahoo has every right to remove his comments. The guy's other complaints are that in removing his posts, Yahoo is "aiding and abetting" stock pumpers, but he provides little evidence to back that up (and, again, simply removing his posts hardly seems like aiding and abetting.) Oh, right, and then there's the claim that this somehow violates the guy's civil rights. At some point people might realize that companies have no obligation to let you say whatever you want...

Filed Under: first amendment, stock forum
Companies: yahoo

Copyright And The First Amendment

from the congress-shall-make-no-law... dept

There is a growing number of scholars questioning how to align the First Amendment's rule that "Congress shall make no law... abridging the freedom of speech...." with intellectual property law that often does, in fact, abridge freedoms of speech. I'm in the middle of reading an entire book on the subject -- which I'll be reviewing here shortly. And, just recently, we saw a court (for the first time) note that parts of copyright law were unconstitutional due to the First Amendment. Law professor Peter Friedman points us to the latest of many recent treatises on the subject, by Christina Bohannan, entitled Copyright Harm and the First Amendment, which questions why copyright law does not require any showing of "harm" to get around the First Amendment issue.

Other laws -- such as defamation -- require that in order to adbridge the freedom of speech, harm needs to be shown. And that seems like a reasonable condition. Bohanan agrees and suggests, not just that copyright law should be changed to include a burden on those declaring infringement to show that actual harm has been done, but that the First Amendment requires this. In fact, she finds it troubling that rather than putting the burden on the accuser to show harm, it's often flipped around, and the burden is placed on the defendant to prove a lack of harm -- which creates the chilling effects so many people warn about. It is these "chilling effects" that seem to go entirely against the First Amendment.

This article argues that copyright law, at least as it is applied in many cases, is unconstitutional. When there is no harm to the copyright holder's incentives, copyright law burdens speech without serving any countervailing governmental interest. Thus, the First Amendment requires proof of harm in copyright infringement cases. Consistent with the government interest in encouraging innovation, the harm requirement would allow a finding of infringement only where the copyright holder can show that the defendant's use is likely to cause real harm to the copyright holder's incentives to create or distribute copyrighted works. As such, the harm requirement would allow restrictions on speech only when necessary to keep the "engine of free expression" running. Although the harm requirement is no panacea for all speech issues in copyright law, it would help courts to identify and eliminate cases involving false conflicts between the First Amendment and copyright -- that is, cases in which there is arguably a speech interest in allowing the defendant's use and no speech interest in prohibiting it.

It's definitely a worthwhile read. Combined with some other recent scholarship, it seems likely that these issues are likely to get tested in court in the relatively near future. It would be great to see the courts recognize that copyright law has expanded so far as to violate the First Amendment in more and more situations.

Filed Under: copyright, first amendment, harm, speech

Well, That's One Argument Against Metered Broadband

from the grasping-at-straws dept

There's been quite a bit of uproar over some ISPs' boneheaded plans to introduce broadband traffic caps and charge customers based on the amount of data that travels across their broadband connection. Already, the pushback against Time Warner's plans to expand its use of the caps has led another ISP, Frontier Communications, to reconsider its plans to introduce them, illustrating how competition could take care of this issue. Still, some politicians see it as a chance to wade in and drum up some publicity, such as a New York congressman, who (among other things) says the caps raise "broad and sweeping First Amendment issues." Erm, well, these caps aren't so impressive, but to imply they're unconstitutional seems like a bit of a stretch. But the rhetoric is -- unfortunately -- typical of politicians' positions on these issues. The rep says he'll take "a leadership role in stopping this outrageous, job killing initiative", which is nice and sure to grab some headlines in his hometown paper, but it ignores the real issue at play: a lack of true competition in the broadband market. Politicians jump on whatever hot internet issue pops up, whether it's these caps, or something like net neutrality, talking about the need for new laws and rules. If they'd do more to engender actual, meaningful competition in the broadband market, all of these issues would take care of themselves. But that doesn't make for nearly as great a sound bite, apparently.

Filed Under: first amendment, metered broadband

Court Rules Part Of Copyright Act Unconstitutional

from the wow dept

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain--Section 514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

Filed Under: copyright, first amendment, golan, larry lessig, public domain

West Virginia Looks To Criminalize Online Harassment

from the don't-be-a-jerk dept

There's been an increasing effort among some to make being a jerk online some sort of criminal activity, even though that almost certainly violates the First Amendment. The latest is an effort in West Virginia to create a new misdemeanor for posting false information about someone online, which could result in fines and jailtime. Now, as you probably already know, we already have laws against defamation -- though that's a civil issue, where the defamed party can take the defamer to court. In this case, the law would do two things: (1) make it a criminal issue, getting the government involved in determining who to prosecute and (2) lower the standard for what breaks the law. Specifically, defamation has required not just the spreading of false information, but that it be done with malicious intent, if you wanted any kind of punitive damages. Yet, this law in West Virginia has no such requirement, meaning that simply spreading false information, even if not for malicious intent, could get you brought up on criminal charges. That seems to go against the First Amendment, but since when has that ever stopped lawmakers from pushing bills?

Filed Under: defamation, first amendment, harassment, malice, west virginia

Ding Dong, COPA Is Dead

from the dead,-dead,-dead dept

The federal government has been trying to pass a law to "protect the children" online for ages. First there was the CDA, the Communications Decency Act, which was struck down as unconstitutional. Then, there was COPA -- the Child Online Protection Act. It tried to be more narrow... but was still a very questionable law, with rather vague wording. It bounced around the courts for years, including hitting the Supreme Court twice -- which sent it back to lower courts both times. Last summer, the appeals court knocked it down again, and today the Supreme Court refused to hear the appeal... meaning that COPA is about as dead as can be. This is definitely a big win for free speech online.

But, of course, just as COPA followed the CDA, have no fear that politicians looking for headlines and photo ops about how they "protect the children" are working hard on new legislation -- such as DOPA -- the Deleting Online Predators Act -- and will continue to push the boundaries of what sort of speech is allowed online. All this really does is waste taxpayer money on unconstitutional attempts to restrict free speech. And, for what? Recent studies have shown time and time again that the threat to children online is relatively small compared to the hype -- and the best response is educating children, rather than restricting speech for all. Somehow, though, I doubt politicians will recognize that any time soon -- especially when lobbyists for companies that sell filtering tools keep beating down their doors with stories of the horrors of online content.

Filed Under: appeals court, cda, copa, dopa, first amendment, free speech, supreme court

Fox News Uses DMCA To Take Down Videos Used In Commentary

from the notice-and-takedown-is-broken dept

The DMCA has plenty of problems, but one of the more ridiculous is the whole concept of the "notice and takedown" procedure that service providers need to follow. Basically, if a copyright holder feels that its copyright is being infringed, it sends a DMCA notice to the service provider. In order for that service provider to keep its safe harbors that protect it from being liable for the content, the content has to be quickly taken down. At that point, the user can file a counternotice, but there's an extended period of time during which the service provider can consider the counternotice and decide whether or not to put the content back up. The reason it's set up this way is because the content companies who were pushing for the law convinced Congress that copyright violations online could be so damaging that content needed to be taken down immediately to prevent any "harm." The only "concession" to the fact that this process was likely to be abused was that filing a false takedown notice can get you in trouble as well. However, the process is still regularly abused to stifle speech.

Take for example, the latest example, presented by the EFF, who notes that Fox News has used the DMCA takedown process to pull down three clips from Fox News that were being used by a group called Progress Illinois who was using the videos as part of commentary on current events -- a common and valid fair use of content. However, since YouTube had to quickly pull down the videos and is now taking time to review the counternotification, it makes it nearly impossible for Progress Illinois to use the videos in a timely manner.

This is yet another example of how copyright is used to stifle free speech. This isn't just about "protecting" content or creating incentive to create more content. There's no commercial loss to Fox News to allow these videos to be used in this way. Forcing the immediate takedown serves only one purpose: to stifle free speech. In fact, you could make a decent argument that the DMCA violates the First Amendment with this policy (you know, "Congress shall make no law... abridging the freedom of speech...."). Given the seriousness of how such a process can stifle free speech, it's difficult to come up with a compelling reason why the DMCA shouldn't at least allow a "notice and notice" procedure, whereby the user accused of infringement is at least given a chance to respond before the content is taken down.

Filed Under: copyright, dmca, first amendment, free speech, takedown
Companies: fox news