Court Limits, But Doesn't Eliminate, Secrecy Of National Security Letters

from the partial-win dept

The Patriot Act, among other things, allows law enforcement to issue "National Security Letters" to ISPs and telcos to obtain certain information about individuals. The letters are, as the name implies, designed for situations where national security is at stake, and a more thorough process of going through legal channels to gain approval would be a serious threat to national security. Except, of course, that's not how things have worked in practice. The FBI was found to have engaged in "serious misuse" of NSLs on a regular basis, issuing tens of thousands of them. Even worse, part of the rules surrounding NSLs are that they must be kept entirely secret. This raises very serious First Amendment questions. While a lower court agreed that the secrecy on NSLs violated the Constitution, an Appeals Court, that had initially seemed skeptical has allowed the secrecy to continue, though with some limitations.

Rather than saying secrecy was okay, if revealing the NSL would create "interference with diplomatic relations, or danger to the life or physical safety of any person" (the old rule), the court has said the rule should be that secrecy is allowed if revealing the NSL "may result in an enumerated harm that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities." It is certainly more of a limitation, though some may note that it may not make much of a difference in actual application. NSLs are still likely to be abused, and it's unlikely that most ISPs or telcos on the receiving end of such NSLs will feel concerned enough to challenge them.

Filed Under: fbi, first amendment, gag orders, national security letters, nsls

Judge Orders Newspaper Not To Report On Lawsuit Brought By The Newspaper

from the freedom-of-the-press...-except... dept

Romenesko points us to the news that a judge overseeing a lawsuit between the OC Register (the newspaper) and newspaper delivery workers has barred the newspaper from reporting on any testimony in the case. Of course, the newspaper reported on that ruling, and it also dug up a bunch of constitutional scholars, who pointed out the unconstitutionality of such a ban.

Filed Under: first amendment, freedom of the press, reporting
Companies: oc register

Judge Says School Can Suspend Student For Fake MySpace Page Of Principal

from the questionable-reading-of-the-legal-tea-leaves dept

Just about a month ago we wrote about a principal losing a lawsuit against some students for posting a fake MySpace page pretending to be the principal. However, in a different case, a court has ruled that a school has every right to suspend students for creating a fake MySpace page of a principal. The two cases are different in a few ways, as the first one involved the principal suing the student, rather than just suspending the student. That said, the ruling by the court in this case seems problematic, and I'd be surprised if it was upheld on appeal (assuming the student appeals). The Supreme Court's famous Tinker v. Des Moines case established the precedent that schools can't punish students for protected free speech -- especially if that speech takes place off of the school campus. The court said that other Supreme Court rulings applied over Tinker, but both of the cases it cites in support involve disruptive actions at school events. A MySpace page created at home doesn't seem to qualify. Either way, if the principal's intent was to get the pages hidden so people didn't talk about them, this resulting lawsuit seems to have created the opposite situation.

Filed Under: fake profile, first amendment, free speech, students, teachers

Virginia Supreme Court Changes Its Mind: Anti-Spamming Law Is Unconstitutional

from the on-second-thought... dept

Well, here's a surprise. Just a few months ago, the Virginia Supreme Court ruled that the state's anti-spamming law was constitutional. The case involved Jeremy Jaynes, who was convicted under the law and sentenced to nine years in prison. He appealed, claiming that the law was unconstitutional. As we noted when the Va. Supreme Court ruling came down, there were some big questions raised by the split court in determining whether this really was a violation of free speech rights -- and Jaynes' lawyers convinced the court to rehear the case -- and, in a rather surprising move, the court has changed its mind.

The court has ruled that the anti-spamming law is, in fact, unconstitutional, as it's a restriction on free speech. As we noted after the original ruling, it still seems like Jaynes could be brought up on charges of fraud, trespass, identity fraud, false advertising and many other charges, but for now, it appears that Virginia's anti-spam law has been judged to go too far.

Declan McCullagh has a good analysis of why this is probably the right decision, even if it's personally distasteful to let a spammer off.

Filed Under: constitnutional, first amendment, free speech, jeremy jaynes, spam, virginia

Judges Question Whether National Security Letters Need To Come With Gag Orders

from the where's-that-copy-of-the-constitution? dept

The Patriot Act allows the FBI to issue "National Security Letters" to ISPs and other organizations, seeking information on users of those service providers -- with an automatic gag order forbidding the service provider from telling anyone that they have received an NSL. Not surprisingly, this resulted in the NSLs being widely abused, with the FBI issuing them in many, many cases when they were not appropriate. But, of course, since no one could complain, there was no incentive for the FBI to actually follow the rules. A panel of judges is now reviewing the overall constitutionality of the gag order on NSLs -- and, so far, they seem skeptical. It seems ridiculous that the FBI should be allowed to impart an automatic gag order without any sort of judicial overview -- especially when it's already been shown that the FBI can and does abuse this power quite often.

Filed Under: fbi, first amendment, gag orders, national security letters, nsls

Judge Lets MIT Students Share Their Research On Boston Subway Vulnerabilities

from the first-amendment-wins-again dept

While it took about a week and a half, a judge has now lifted the gag order that had prevented some MIT students from sharing a presentation about vulnerabilities in the Boston subway system. The judge refused to ban the students from talking about it for a period of five months (which the MBTA insisted it needed to fix the system). This is definitely a win for free speech, though I'm sure the debate over how and when to disclose security vulnerabilities will continue for a long, long time.

Filed Under: boston, first amendment, free speech, gag order, research, subway, vulnerabilities
Companies: mbta

Senator Introduces Unconstitutional Bill To Ban Sale Of Certain Video Games To Minors

from the apparently-wants-to-challenge-the-constitution dept

We were just talking about how New York State was about to become the latest in a long line of states to waste taxpayer money fighting for an unconstitutional law requiring video games to be labeled and also banning the sale of certain video games to children. Nearly a dozen states have tried to introduce similar legislation, and every time they've been rejected by courts as unconstitutional. Every time. There is simply no excuse for politicians to introduce another one of these laws. The courts have been clear that those laws aren't just unconstitutional, but can even be harmful to children.

Now we've got the federal government getting in on the game as well. I was just looking over some of the latest bills introduced in Congress via the always excellent Washington Watch and what do I see, but a newly introduced bill in the Senate that would require "age-based content rating labels" and ban the sale or rental of games with adult content to minors. Of course, video games are already rated via a voluntary rating system (same as movies), and most video game stores already ban the sale of such games to kids. Plus, oh yeah, there's that whole First Amendment issue.

So, what, exactly does Sen. Roger Wicker hope to accomplish in introducing such a bill, other than to potentially waste taxpayer money in a lawsuit that will clearly be lost?

Filed Under: bans, first amendment, roger wicker, senate, video games

Once Again: Court Says That COPA Anti-Porn Law Is Unconstitutional

from the and-again-and-again-and-again dept

After the Supreme Court rejected most of the Communications Decency Act as being unconstitutional, Congress tried again with the more friendly sounding Child Online Protection Act. It sounds nice. Who doesn't want to "protect the children," right? But it was basically the same thing as the CDA, and court after court has struck it down as unconstitutional. The Supreme Court has already weighed in on some aspects of the law, kicking the case back down to the district level, where the judge noted the law was unconstitutional. The government appealed (of course), and subpoenaed data from just about everyone. You may recall the legal fuss over the government's demand that pretty much every search engine hand over their logs? That was part of the case the government was trying to make -- and about the best they could do was to prove that (gasp!) there's some porn online.

Of course, since porn is legal, proving that there's porn online is hardly a rationale for restricting free speech -- which is what COPA would do. It would require sites to make sure that either no adult content showed up anywhere on their site, or verify the age of everyone who visited their site. That is quite an extreme limitation on free speech, which is exactly what court after court after court has said. And, now we can add to that the Appeals Court who has now struck down COPA yet again, pointing out that it's a clear violation of the First Amendment and chilling to freedom of speech. It also noted that there's simply no reason that parents can't deal with themselves through the use of filters:

"It is apparent that COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,'... and thus is overbroad. For this reason, COPA violates the First Amendment. These burdens would chill protected speech."

Interesting that this comes at the same time that Andrew Cuomo and NY State are bullying ISPs to effectively do what COPA would have demanded. Hopefully Comcast will send Andrew Cuomo a copy of the Appeals Court decision. In the meantime, the Justice Department is indicating that it will appeal to the Supreme Court -- so this case is still not over.

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

Kentucky Agrees To Stop Selectively Blocking State Employees From Reading Critical Blogs

from the hearing-what-your-critics-say-is-a-good-thing dept

A couple of years ago, we wrote about the fact that the state of Kentucky had started blocking certain political blogs from the computers of state employees. The interesting part was that the state was only blocking blogs that were critical of state officials. The group Public Citizen filed a lawsuit saying that the selective blocking was a First Amendment violation. It looks like that issue won't get settled in court any time soon, as a new administration in Kentucky has decided that it is changing that policy and won't block critical sites, leading Public Citizen to drop the lawsuit.

Of course, without a court ruling, it's now not clear if the original actions were legal -- and there's nothing to stop a future administration from reversing the policy yet again. In the meantime, what kind of politician actually thinks it's a good thing to block out those who disagree with them rather than hear what they have to say? Talk about sticking your head in the sand...

Filed Under: blogs, first amendment, kentucky

Is A Fake Facebook Profile Illegal?

from the down-in-the-legal-weeds dept

Remember the guy who was arrested and sent to jail for creating a fake Facebook profile of a Moroccan prince? While it's unlikely that anyone will land in jail, more such disputes have been ending up in the courtroom. It seems to be most popular in high schools, where teachers and administrators are suing students for setting up fake profiles of them. It's not difficult to see why these adults are upset -- as the profiles are usually quite unflattering. But, it's an open question as to whether or not the profiles are illegal. Even more to the point, Facebook has a clear policy that it will delete fake profiles when it becomes aware of them, so it seems like quite a bit of overkill for teachers to sue students rather than just having Facebook take down the profiles.

Filed Under: fake profile, first amendment, free speech, identity fraud, students, teachers
Companies: facebook, myspace