INFORMATION LAW OUTLINE FALL 2015

I.

Introduction
1. Basics of Internet Technology
Digital:
o Compression
o Greater signal clarity
Circuit switch v. Packet switch
o Circuit switch can be analog or digital: fixed increment of transmission capacity is held
open, on pre0determined path
o Packet switch: digital, no dedicated fixed circuit, dynamic routing
Modularity or Layering
o Physical layer: copper wire
o Logical layer
o Applications layer
o Content layer
o Firms can compete independently at each layer without worrying about entering market
for services at other layers
TCP (transmission control protocol)
IP (Internet protocol)
o TCP and IP enable each packet in transmission to tell packet switches where to head and
enable each end to confirm that message transmitted and received
End-to-end design: packets delivered on first come first serve basis without regard to content,
origin or destination
HTML: establishes transmission procedures between a Web server and clients
URL: server address and file location where a particular webpage can be found
Internet Engineering Task Force: Since 1986 sets standards of Internet
o Open and loosely self-organized group of people who contribute to the engineering and
evolution of internet technologies
World Wide Web Consortium (W3C): sets standards for Web-oriented protocols
2. Who is the best regulator of information flows?
Technologists, Innovators/Entrepreneurs, Users/Consumers, Elected Officials, Governmental
Agencies
3. Design Norms
John Perry Barlow: A Declaration of the Independence of Cyberspace
o Governments of the Industrial World, you weary giants of flesh and steel, I come from
Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave
us alone... You have no sovereignty where we gather.Your legal concepts of property,
expression, identity, movement, and context do not apply to us. They are based on matter.
There is no matter here.
Yochai Benkler: The Wealth of Networks
o The Internet has instigated a series of economic, social, and cultural adaptations that
make possible a radical transformation of how we make the information environment we
occupy as autonomous individuals, citizens, and members of cultural and social groups.

II.

Governance
A. Public Ordering
i. Sovereignty
1. Yahoo v. LICRA (ND California District Court 2001)

 Yahoo seeks declaratory judgment that the French order requiring Yahoo to block French citizens
access to Nazi material for sale on US site cant be enforced b/c violates 1 st Amendment Free
Speech. French defendants say US Court lacks personal jurisdiction.
Lower court case denied enforcement of the order. Held French parties purposely availed
themselves of California law, action arose from French parties forum-related conduct and CA
courts exercise of personal jurisdiction was reasonable.
District Court Held: Personal jurisdiction over defendants in US Courts upheld.
o Yahoo made sufficient prima facie showing of (1) purposeful availment under effects
test. An act of filing a suit may be proper in a foreign jurisdiction but still wrongful in
US if primary purpose or intended effect is to deprive US resident of constitutional rights.
o Uses but-for test to show (1) plaintiffs claims arising out of defendants forum-related
conduct. But for defendants filing of French lawsuit, there would be no need to declare
that the French order was unenforceable.
o When purposeful availment established, Defendant has burden of showing compelling
case of (3) unreasonableness:
- Defendants acts aimed at Yahoo in California when mailed a demand letter to
them
- No burden in litigating in CA
- CA has an interest in providing effective legal redress for residents
- Chilling effect: defendants approach would force provider to wait indefinitely
for determination of legal rights, cause others to adopt potentially
unconstitutional restrictions on content
th
2. Yahoo v. LICRA (9 Cir. 2002)
Held: No personal jurisdiction over the defendants under the specific jurisdiction doctrine.
Yahoo chose not to pursue appeal in France of the court order and its right to appeal expired.
French courts determination the Yahoo was in violation of French law cannot be reviewed in any
US court
Jurisdiction may be obtained and 1st Amendment claim can be heard once LICRA asks the US
District Court to enforce the French judgment which they have yet to do.
Do not have general jurisdiction because do not have continuous and systematic contacts with the
forum state
Different from Bancroft & Masters which held that express aiming requirement in Calder was
satisfied when defendant is alleged to have engaged in wrongful conduct targeted at plaintiff who
the defendant knows to be resident of forum state
o LICRA and UEJF were acting to uphold their legitimate rights under French law
Yahoo has commercial advantage from fact that users located in France have access to site ads
in French to users identified as French
3. Dow Jones v. Gutnick (High Court of Australia 2002)
Gutnick brought defamation claim against DJ for publication of Barrons article accusing him of
money laundering. DJ claims the publication of the article occurred where its servers are located
in NJ.
Held: Victoria court has jurisdiction over DJ to hear case.
Gutnick lives in Victoria, business headquarters there, social life there
Austrian tort law: choice of law rule to be applied is claim to be governed by place of
commission of tort
In Australia defamation is a tort of strict liability: doesnt matter if no injury to reputation was
intended and defendant acted with reasonable care
o Harm to reputation is done when defamatory publication is comprehended by reader
o Publication is bilateral act: publisher makes available and third party has it available for
his comprehension
o Rejects single publication rule: every communication of defamatory matter is a separate
cause of action
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Restatement of Torts 577A: Single and Multiple Publications

(1) Each of several communications to a third person by the same defamer is a separate
publication
(2) Single communication heard at same time by 2 or more third persons is a single
communication
(3) Any one edition (of audiovisual work, print work) is a single publication
(4) As to any single publication:
(a) only one action for damages can be maintained
(b) all damages suffered in all jurisdictions can be recovered in one action
(c) a judgment for or against plaintiff on merits of any action for damages bars
any other action for damages between the same parties
Single publication rule turned into decision of choice of law Victoria court rejects
Those who post info on WWW do so knowing that information they make available is available
to all without geographic restriction
Fact that plaintiff has to show damage to reputation occurred in a particular location precludes DJ
being subject to every jurisidiction
4. ICANN, New Generic Top-Level Domains:
1998: US created a non-profit, non-governmental org to regulate stable and resolvable domain
names
5. Securing the Protection of our Enduring & Established Constitutional Heritage Act
To determine if US courts have jurisdiction to hear case must show:
o Foreign law has as much protection for speech and press under 1 st Amendment
o Defendant would be liable in US Court
o Comity: notwithstanding own values will respect rules of other countries

ii.

Public Regulation

Agencies that Regulate Info Networks

o Federal Communications Commission
- Title VI: Provision added for Cable
- 1996: Provisions added for broadband
o Federal Trade Commission
- unfair and deceptive practices
o Copyright Office
- Congress hasnt given authority to regulate with force of law
o Commerce Department
- National Telecommunications & Info Admin
Entered into agreement with ICANN
Authority under US law to regulate internet
Can make a grant in broadband
o Justice Department
- Criminal law enforcement
i.e. credit card fraud
- Regulation of mergers and combinations
o Agriculture Department
- Rural Utilities Service
o Health and Human Services
- Food and Drug Administration
o Securities Exchange Commission
- Disclosure requirements of company to public

FCC Regulation of Cable and Broadband Networks

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1. U.S. v. Southwestern Cable (US 1968)

Midewest claims that CATV systems transmitted signals of LA broadcasting stations into the
San Diego area and adversely affected Midwests San Diego station. M wanted order
limiting CATVs carriage of those signals. FCC restricted cable signals pending its own
hearings.
9TH Cir. held that FCC lacks authority under Communications Act to issue order.
47 USC 151 Communications Act:
o FCC created for the purpose of ensuring access to wire and radio communications
o Title II: Wire
o Title III: Radio
47 USC 152: Applies to all interstate and foreign transmissions and communications by
wire and radio
Held: FCC has authority to regulate cable under its 152(a) ancillary power to regulate
television broadcasting
1959: FCC found that even though cable related to interstate transmission, it was neither a
common carrier or broadcaster so was not within the regulatory categories created by the
Communications Act.
Since 1960: FCC gradually asserted jurisdiction over cable
1965: FCC after hearings held that the Act gives them authority over all cable systems
FCC attempted to accommodate interests of cable and broadcasting by:
o Cable was required to transmit the signals of any station into whose service area they
brought competing signals
o Cable forbidden to duplicate programming of such local stations for period of 15
days before and after a local broadcast
Legislative history: Congress could not in 1934 foreseen the development of CATV and left
the FCCs powers intentionally broad, and gave it unified jurisdiction
FCC has been given authority to allocate broadcasting zones/areas to provide regulations as it
may deem necessary to prevent interference among various stations (47 USC 303(f), (h)
o To fulfill obligation to provide radio/television service with fair, efficient, and
equitable distribution of service among states and communities 307(b)
o FCC reasonably found that to achieve goals of ensuring wider use of available
channels and creation of educational community programs must regulate growth of
cable
FCC distinguishes
(1) local market from national one
(2) ensures station can benefit from re-broadcast
Southwestern held to be subject to FCC regulation but cable practices are continued to be
allowed
2. Communications Act:
Title I: Precatory language (purposeful, aspirational). Includes broadband language
Title II: Wireline, Telephony (mainly phones)
Title III: Regulate Technical interference
Title VI: Authority to regulate cable, competition regulations addressed to locality
3. Late 1950s: FCC says it doesnt have authority to regulate cable and asks Congress to address
Brown v. Williamson: Legislative authority through acquiescence
4. Comast v. FCC (DC Cir. 2010)
Question whether FCC has authority to regulate the internet. Comcast was caught degrading
P2P networking. FCC sanctions in adjudication citing FCCs Internet Policy Statement
could have used non-discriminatory means.
Held: FCC doesnt have authority to regulate ISPs network management.
Deep Packet Inspection: Comcast can see what data is being seen through the infrastructure
o Argues that it was necessary to interfere to manage scarce network capacity
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FCC publishes an Internet Policy Statement

o Consumers entitled to access lawful Internet content of their choice and run
applications and use services of their choice
o Services cant discriminate based on data
o Based on layer structure open internet
o Comcast under notice from FCC statement
47 USC 230(b): It is the policy of the US to:
(1) to promote the continued development of the Internet and other interactive computer
services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the
Internet and other interactive computer services, unfettered by Federal or State
regulation;
(3) to encourage the development of technologies which maximize user control over what
information is received by individuals, families, and schools who use the Internet and
other interactive computer services
47 USC 1302 / 706(a): FCC has affirmative duty to deploy advanced telecommunications
capability
o The Commission and each State commission with regulatory jurisdiction over
telecommunications services shall
- encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans (including, in particular,
elementary and secondary schools and classrooms) by:
- utilizing, in a manner consistent with the public interest, convenience,
and necessity:
- price cap regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other regulating
methods that remove barriers to infrastructure investment
FCC made earlier order saying it couldnt regulate broadband under 706 as it doesnt
constitute an independent grant of authority and never reversed
American Library Assn v. FCC: Two-part test derived from Midwest Video I and II and
Southwest Cable:
o FCC can exercise ancillary jurisdiction only when:
1) FCCs general jurisdictional grant under Title I covers the regulated subject
and
2) Regulations are reasonably ancillary to the Commissions effective
performance of its statutorily mandated responsibilities
Southwestern Cable: found FCC had ancillary authority because FCC has express delegation
of authority under Title III to regulate broadcasting
o FCC cannot act on policy statements alone i.e. 47 USC 230(b): US policy to
continue development of Internet....stating FCCs purpose is tot make availablea
rapid, efficient, nationwide world wide wire and ratio communication service.
FCC has the authority for regulatory forbearance (choose not to enforce provisions of statute)
under 706
o Realizes needs to engage in public rulemaking that promulgates traditional Laird
stack approach
o virtuous cycle of innovation: encourage applications and servicesmore users
subscribemore broadband providers invest

FTC Adjudication of Data Breach

1. FTC v. Wyndham (3d Cir. 2015)
FTC brought action under 5(a) of Federal Trade Commission Act (15 USC 45(a)) against
Wyndam alleging it engaged in unfair or deceptive acts or practices in or affecting commerce,
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by failing to maintain reasonable and appropriate data security for consumers sensitive
personal information.
Hackers accessed Ws computer systems on three occasions and accessed customers credit
card info. After two first breaches, W did not take appropriate steps within a reasonable time
frame to prevent future attacks.
Wyndham didnt have a firewall, didnt encrypt data, used the same username and password
repeatedly
Held: FTC has authority to sanction Wyndham in adjudication for failure to take reasonable
measures to protect consumers from data breaches.
Federal Trade Commission Act 5/45:
o (a)(1) Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
o (n) The Commission shall have no authority under this section . . . to declare
unlawful an act or practice on the grounds that such act or practice is unfair unless
the act or practice causes or is likely to cause substantial injury to consumers which
is not reasonably avoidable by consumers themselves and not outweighed by
countervailing benefits to consumers or to competition
FTC argues Congress purposely gave it broad powers under 5 and its decision to enforce Act
in data-security context is entitled to deference. FTC never disavowed unfair practices
authority over data-protection.
Wyndam gives no evidence that giving FTC authority would lead to result incompatible with
recent legislation and would plainly contradict congressional policy (Brown & Williamson)
Other statutes (i.e. COPPA) gives different standards for injury in certain circumstances that
grant FTC additional enforcement tools same as subsequent data-security legislation
FCC has the discretion to choose between rulemaking or by individual adjudication
o Circuit Courts have affirmed FTC unfairness claims without preexisting rules or
regulations addressing the conduct at issue
o Court not persuaded by argument that since no court has, no court can
- Especially considering how quickly digital age and data security world is
moving

Copyright Offices Regulation of Online Video Streaming

1. WPIX v. Ivi (2d Cir. 2012)
WPIX (and other television networks) sued ivi for streaming their copyrighted television
programming over the Internet live and without their consent. District court granted a
preliminary injunction.
Ivi justified operations on ground that it was a cable system entitled to compulsory license
under 111 of the Copyright Act.
Held: District court did not abuse discretion in finding that WPIX deserved injunction b/c (1)
Ivi retransmission would substantially diminish value of programming (2) plaintiffs losses
hard to measure and (3) Ivi would be unable to pay damages
Copyright Act gives television broadcasters the exclusive rights to authorize the public
display of their copyrights content including retransmission of their broadcast signals
o 111: exception that allows cable systems to publicly perform and retransmit signals
of copyrighted television programming provided it pay royalties at government
regulated rates and bide by statutes procedures
17 USC 111(f)(3): Cable system defined:
o a facility, located in any State, territory, trust territory, or possession of the United
States, that in whole or in part receives signals transmitted or programs broadcast by
one or more television broadcast stations licensed by the Federal Communications
Commission, and

makes secondary transmissions of such signals or programs by wires, cables,

microwave, or other communications channels to subscribing members of the public
who pay for such service.
Chevron test applied to the Copyright Office
1) Did Congress clearly speak on issue of Internet retransmission in 111?
o Congressional intent not clear b/c unclear whether the Internet is a facility as
it is not a physical/tangible entity but global network of interconnected
computers
2) Is the agencys interpretation reasonable?
o Legislative history of 111: Congress wanted to balance societal benefits of
allowing cable to give greater geographical access while offering protection
to broadcasters to incentivize continue creation of programming
- Satellite tech was given separate provision in 119
- 1999 Congress noted compulsory license provision should be read narrowly
- 1994: Congress expressly included microwave as acceptable
communications channel for retransmissions
- History shows that if Congress wanted 111 to apply to internet
transmissions would have done so expressly.
o Copyright Office does not have express delegated authority to make rules
carrying force of law but may influence court b/c charged with applying the
statute
- Copyright Office has consistently concluded that Internet
transmission services are not cable system and do not qualify for
111 license
- CO held satellites not under 111 because not local but nationwide
service
- CO has held that 111 other communication channels should not
broadly include future unknown services
17 USC 111(c)(1):
secondary transmissions to the public by a cable system of a performance or display of a
work embodied in a primary transmission made by a broadcast station licensed by the [FCC] .
. . shall be subject to statutory licensing upon compliance with the requirements of subsection
(d) where the carriage of the signals comprising the secondary transmission is permissible
under the rules, regulations, or authorizations of the [FCC].
17 USC 101:
Definition of Perform
o To perform a work means to recite, render, play, dance, or act it, either directly or
by means of any device or process or, in the case of a motion picture or other
audiovisual work, to show its images in any sequence or to make the sounds
accompanying it audible
Definition of performing or displaying publicly:
o (1) to perform or display it at a place open to the public or at any place where a
substantial number of persons outside of a normal circle of a family and its social
acquaintances is gathered; or
o (2) to transmit or otherwise communicate a performance or display of the work to a
place specified by clause (1) or to the public, by means of any device or process,
whether the members of the public capable of receiving the performance or display
receive it in the same place or in separate places and at the same time or at different
times.
Cable Act (1984)
Cable Act (1992)
Retransmission consent
Must-carry
o

2.

3.

4.
5.

Turner Broadcasting v. FCC (1994, 1997)

1999 Amendments: 47 USC 325: require good faith negotiations b/twn
broadcasters and Multichannel Multipoint Distribution Service (MVPD)
o Bars unfair methods of competition by MVPD
6. Copyright Office
Administers 111: filing forms and content
Gives advice to Congress: new developments
Limited interpretive and legislative rulemaking (i.e. WPIX v. Ivi)
7. FCC
Rulemaking and adjudication
o Good faith negotiations
o Must-carry
o Definition of MVPD
o Definition of Multichannel Multipoint Distribution Services
o
o

Interacting Agency Authority

Fortnightly v. UA (1968):
o FCC has ancillary/supplemental powers to regulating broadcast (can apply to cable)
o Cable re-transmission of network broadcast an infringement on public performance
right? (1909 Copyright Act)
o Holding: Does not apply because re-transmission was equal to user-end action
receiving broadcast (viewer function)
o Cable drawing audiences away preventing that information from being monetized
Teleprompter:
o 1976 Copyright Act 106: enumerates bundle of exclusive rights:
o Rights to distribution, public performance, display, record
- Expanded to audiovisual works
o 111: Secondary transmissions to the public, subject to statutory licensing
- Amendment meant to make cable transmissions and licensing easier
Copyright Office: determined rates based off of areas of competition that already existed
between cable and broadcast
o (f)(3): Definition of cable system
o 101: Perform definition: by means of any device or process
o Publicly: perform or display in public whether members of public capable of
receiving the performance or display receive at same or separate place or
same/different times
o Copyright office administered within Library of Congress and independent agency
o 111 administerial role
- collects info from broadcasters and determines rates based on market
- advise congress on state of market including new developments i.e. Judge
Chin
o Limited interpretive and legislative rulemaking powers
Federal Communication Commission is independent
o Broader authority to make rules and adjudicate
The Communication Act of 1934:
U.S. v. Southwestern Cable (1968):
o 1984 Cable Act: Title I, II (telephony), III (radio/broadcasting) VI
o 1992 Cable Act: Provisions addressed to broadcasting
- Must carry provision: Public interest requires news stations to be carried by
cable operators
- cable operators are franchisors of local broadcasters
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retransmission consent: broadcasters at whim of negotiation with cable

operator
- good faith negotiation
Programming provision: bars unfair methods of competition by MVPDs
FCC currently under rulemaking for Sky Angel
Agency authorities interacting but not conflicting.
-

Agency Threats
1. FDA Warning Letter DICLEGIS
21 USC 352: misbranded drugs and devices brief summary of side
effects (twitter post violated statute)
2. FCC and Copyright Office Regulation of Video Distribution
3. FCC and FTC Regulation of Consumer Privacy
FTC has authority to regulate unfair or deceptive acts (misstatements, misrepresentations)
o Reporting authority (telling Congress what to do)
o Guidelines and tools for Business and consumers
o Protects privacy and data security:
- Do not Track, Do not Spam, Do not Call
- Data breach
- Unfair/deceptive practice
- Exposition of credit and finance information
FTC, In re Snapchat, Decision and Order (2014)
o Snapchat disseminated or cause to be disseminated to consumers a statement on its
websites FAQs page that images expire after the timer runs out.
o Several methods exist where recipient can use outside tools to save both photo and
video messages, allowing them to access indefinitely
- Application shores in location outside apps sandbox
- Third party developers built apps that connect to Snapchats application
programming interface (API)
o Snapchat ordered to establish, implement and maintain a comprehensive privacy
program that is reasonably designed to:
(1) address privacy risk related to development and management of new and existing
products for consumers and (2) protect the privacy and confidentiality of covered
information
- Designate employees to be accountable for privacy program
- Identify reasonably foreseeable and material risks internally and externally
- Design and implementation of privacy controls and procedures, regular
testing/monitoring
- Retain and select service providers capable of maintaining security practices
- Evaluate and adjust privacy program
FCC, In re AT&T Services, Consent Decree (2015)
o FCC investigated data breaches into AT&T call centers in Mexico, Columbia and
Philippines which allowed hackers to get sensitive personal information including SS
numbers.
o Common carriers have a statutory duty to protect customers proprietary information,
and prompt disclosure of data breaches to law enforcement authority.
o FCC relies on Communications Act 222 (47 USC 222):
(a) Every telecommunications carrier has a duty to protect the confidentiality of
proprietary information of, and relating to, other telecommunication carriers,
equipment manufacturers, and customers, including telecommunication carriers
reselling telecommunications services provided by a telecommunications carrier.
(c) Except as required by law or with the approval of the customer, a
telecommunications carrier that receives or obtains customer proprietary network
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information by virtue of its provision of a telecommunications service shall only use,

disclose, or permit access to individually identifiable customer proprietary network
information in its provision of (A) the telecommunications service from which such
information is derived, or (B) services necessary to, or used in, the provision of such
telecommunications service, including the publishing of directories.
Local, State, Federal Governments
1. Broadband Localism
Open Public Internets Infrastructure
o Backbone
o Middle mile
o Last Mile: Transmission from cable central office to box in residence
o Last 100 feet
FCC, States and Local governments regulate the Last Mile and Last 100 Feet (Collectively
Broadband)
Fiber for Communities: Google builds fiber optic infrastructure in applicant cities.
o Promise 1 Gig of service at a cheaper rate.
o Claim that cable operators are overcharging and not investing in infrastructure.
o Local governments also disrupting broadband market.
o SEC preempted municipalities from investing in broadband as a result of cable
company lobbying.
National and International
1. World Intellectual Property Organization (WIPO) Copyright Treaty (1996)
Article 11: Obligations concerning Technical Measures
o Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are used
by authors in connection with the exercise of their rights under this Treaty or the
Berne Convention and that restrict acts, in respect of their works, which are not
authorized by the authors concerned or permitted by law.
Article 12: Obligations concerning Rights Management Info
o Contracting Parties shall provide adequate and effective legal remedies against any
person knowingly performing any of the following acts knowing . . . that it will
induce, enable, facilitate or conceal an infringement of any right covered by this
Treaty
- (i) to remove or alter any electronic rights management [info] [w/o]
authority;
- (ii) to distribute, import for distribution, broadcast or communicate to the
public, without authority, works or copies of works knowing that electronic
rights management [info] has been removed or altered without authority.
2. Digital Millennium Copyright Act of 1998
Title I: WIPO Treaty Implementation:
o Makes certain technical amendments to U.S. law, in order to provide appropriate
references and links to the treaties.
- Creates two new prohibitions in Title 17 of the U.S. Code
Circumvention of technological measures used by copyright owners to
protect their works and
Tampering with copyright management information
- Adds civil remedies and criminal penalties for violating the prohibitions.
Library of Congress Rules 17 USC 1201
o (a)(1): No person shall circumvent a technological measure that effectively controls
access to a work protected under this title.
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(a)(2): No person shall manufacture, import, offer to the public, provide, or

otherwise traffic in any technology, product, service, device, component, or part
thereof, that
(A) is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work protected under
this title;
(B) has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a work
protected under this title; or
(C) is marketed by that person or another acting in concert with that person with
that persons knowledge for use in circumventing a technological measure that
effectively controls access to a work protected under this title
3. Universal City v. Corley (2d Cir. 2001)
Defendant posted decryption code online for pirated music/video
Is posting means to circumvent security measure a violation of the DMCA?
Court separates the function of code from expression of code and remands to lower court
o

iii.

Agency Reports, Guidelines and Compliance Plans

1. FTC Childrens Online Privacy Protection Act (COPPA) Compliance Plan
1998: Congress drafts COPA, enacted in 2000
1303(a)(1): Generally prohibits operator of website/online service directed to children or
operator that has actual knowledge from collection of personal information from child
(2) Operator of website or online service or operators agent are not liable for disclosure
made in good faith and following reasonable procedures in responding to request for
disclosure of personal info to parent of child
o gives power to federal agencies to enforce the statute
(b) Commission (FTC) can promulgate rules under APA 553 (notice and comment)
COPPA requires (1) Notice on website (what info collected, how operator uses info,
operators disclosure practices) and (2) verifiable parental consent
Notice and consent rule: service has to provide notice that info shared and consent to have it
shared
1303(b)(1)(B): Must provide to parent all notification
1303(b)(1)(D): operator required to establish and maintain reasonable procedures to protect
confidentiality, security and integrity of personal information collected from children
2. FTC Protecting Consumer Privacy: Recommendations
16 CFR Part 312: Compliance Plan for Business
o Limited exception: data must be deleted if consent not given within a reasonable
time
o 2012 Report on Era or Rapid Change
- No omnibus law on how to protect personal identifiable info
- FTC guideline on how to minimize amount of info you are allowed to collect
- Can only collect data that is related to service you provide
- Privacy by design: implement code to protect privacy
3. NYS Attorney General Report on AirBnB
AG Schneiderman subpoenaed info for all short term use of Airbnb to create report
Shaming action reveals potential for enforcement against a particular company
NY laws: multiple dwelling laws, taxes

Fair Credit Report act

iv.

Open Government
Freedom of Information Act
1. Milner v. Dept. of Navy (US 2011)
Milner filed FOIA request to get a map of Navys explosives.
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FOIA Exemption 2: protects from disclosure material related solely to the internal personnel
rules and practices of an agency
Lower courts upheld Exemption 2 denial because of High 2 case law
o High 2: Exemption allowed if predominately internal record and disclosure would
significantly risk circumvention of federal agency functions
Held: Lower court decision reversed and Exemption 2 does not apply. Legislative history and
origin of FOIA show it was meant to open internal memos to the public
Justice Kagan looks to the plain meaning of the statute and found Exemption 2 must be read
narrowly
o Personnel rules and practices: concern conditions of employment in federal agencies
o If Exemption 2 was meant to reach all internal rules and practices then would render any
other FOIA exemptions moot
Whether the map can be exempt under Exemption 7 is to be addressed on remand
Navy could claim Exemption 1 or 7 instead
Dissent: Breyer upheld the broad reading of Exemption 2
2. Freedom of Information Act, 5 USC 552
(b) This section does not apply to matters that are
(1) subject to privilege specifically pursuant to Exec Order
(2) related to personnel rules and practices of agency
(3) exempted by statute
(4) trade secrets
(5) interagency memos
(6) personnel and medical files (ie, privacy)
(7) law enforcement related
(8) related to regulation of financial institutions
(9) geological info and data, including maps and wells
Open Data
May 2013: Obama signed EO that made open and machine-readable data the new default for
government information
2012: New York City Council approved Local 11: requires all city agencies to open their data by
2018
E-Government
Peer to Patent: initiative by US Patent and Trademark Office that opens patent examination
process to public participation
o Enables public to supply Office with information relevant to assessing claims of pending
patent applications

B. Private Ordering
i. Self-Regulation

Lawrence Lessig: Behavior can be regulated through market (private ordering even without
government interference)
Four ways to regulate
o Government law
o Norms
o Market (price mechanism)
o Code
Why Private ordering?
o High cost of information
o Government is not the best suited to know info about certain industry/area
o Norms are slowly becoming law (first in time)
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o Profit
Why Standards?
o Integrity of Business
o Interoperability and modularity: can use different providers
o Consumer advantages
o Companies reliance on government rules: compliance
Video Game Ratings
1. Entertainment Software Ratings
Developed in 1994 by industry stakeholders
3 person panel of experts (not gamers, not affiliated with industry, confidential)
$1 million fine if mislabeled
Different sanctions for physical violations vs. digital copies
o Physical violations more costly, time consuming to recall/change physical copies
2. Video Software Dealers Assn v. Schwarzenegger (9th Cir. 2009)

CA statute defines violent video game reasonable person considering the game as a whole
would find it:
o Appealing to deviant or morbid interest of minors
o Patently offensive to prevailing standards in community of what is suitable for minors
o Lacks serious literary, artistic, political or scientific value for minors
All violent video games imported/distributed in CA must be labeled 18 on package
Company associations seek to invalidate statutes because violates 1 st and 4th Amendment.
Held: Act violates rights protected by 1st Amendment because State has not demonstrated
compelling interest or tailored restriction to interest and there are less-restrictive means that
would further them.
o Also unconstitutionally compelled speech because does not require disclosure of purely
factual information but compels carrying of States controversial opinion
CA statute is a content-based regulation so subject to strict scrutiny
o Compelling interest of state required
o Must be least restrictive means of achieving interest
Video games found to be a form of expression protected by 1 st Amendment which is not contested
Ginsburg doesnt apply:
o Ginsburg found that rational basis test applied because statute at issue was within a subcategory of obscenity which is obscenity as to minors which is not protected by 1 st
Amendment
o Supreme Court limited obscenity to sexual content
o Matters of violence are subject to strict scrutiny
Court has recognized that there is a compelling interest in protecting the physical and
psychological well-being of minors
Court rejects argument that video games are harmful to childrens psychology
o Compelling interest does not include controlling minors thoughts
o Some research suggests there is not psychological effect of video games do not require
scientific certainty but its social studies evidence are all criticized correlation not
causation
Found that there are less restrictive alternatives
o Least restrictive means not most effective way
i.e. ESRB standards which are more responsive to shifts in the market
Act invalid so the States forced label would convey false information that certain conduct is
illegal
Consumer Privacy
1. FTC, Self-Regulation and Privacy Online: Report to Congress (1999)
13

1998 Report: Self-regulation is least intrusive and most efficient

What service providers should think about
o Awareness
o Consent
o Access/Participation
o Data security
Seal programs: Program members need to abide by standards to get seal
o Trust e: accepts third party monitoring of how data is used, awards certified privacy seal
o Better business bureau: post privacy policy online, have process for customer dispute
resolutions, customer survey
2. Interactive Advertising Bureau, Privacy Guidelines (2008)
Requires:
o Meaningful notice
o Consumer choice
o Data security measures
o Consumer accountability
o Education

ii.

Standards
Intellectual Privacy Generally
1. European Telecommunications Standards Institute
Defining use of essential intellectual property right
Essential standard: vital to particular technology
FRAND: fair, reasonable and non discriminatory terms
Standardize implementation of first in time convenience
o ETSI allows right to be adequately rewarded for first in time
o Prohibits exploiting first in time position for extracting superrents
2. FTC, In re Negotiated Data Solutions (2008)
15 USC 45(a)(1): Unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
FTC found that N-data Lock-in was against standards setting organization and was an unfair
act or practice that violated the FTC Act
FTC found the lock in might create harm to consumers in the long run
o Process of establishing a standard displaces competition, therefore bad faith or
deceptive behavior that undermines the process may also undermine competition in
an entire industry, raise prices to consumers and reduce choices
o Firms fail to disclose their intellectual property until after industry lock-in is
unacceptable
Copyright
1. Sega v. Accolade (9th Cir. 1992)
Accolade made video game cartridges that were compatible with Sega consoles by reverse
engineering Sega cartridges. Sega brought copyright violation for duplicating cartridge and
invoked Lanham Act claim against display of Segas trademark.
Held: Use of copyrighted computer work to gain understanding of unprotected functional
elements was fair use and use of initialization code by competitor that triggered screen display of
computer manufacturers trademark to gain access to competitor console was not trademark
infringement.
1976 Copyright Act: innovation vs. property owners interest
o Created fair use defense
o 102(a): original works fixed in tangible medium is copyrightable

14

102(b): copyright protection does not extend to an idea, procedure, process, system,
method of operation, concept, principle, or discovery regardless of the form in which
it is described, explained illustrated or embodied in such work
o 106: Exclusive rights to copyright holders
- reproduction, derivation, sale, display, performance
Accolade claims disassembly of code in copyrighted computer program isnt copyright
infringement:
o Intermediate copying does not infringe unless end product of copying is substantially
similar to copyrighted work
o Ideas and functional concepts cant be copyright protected
o 117: entitles lawful owner of copy of computer program to load into computer
- does not preclude fair use defense for any other use of computer program
o Fair use
Court holds that intermediate copying of computer code may infringe on exclusive rights granted
to copyright owner in 106 regardless of whether the end product of the copying also infringes
those rights
o Copy: must be fixed in some tangible form from which the work can be perceived,
reproduced or otherwise communicated wither directly or with the aid of machine or
device
1980 Amendments of Copyright Act unambiguously extend copyright protection to computer
programs
o work does not have to be directly accessible to humans to be eligible for copyright
protection
Fair use defense upheld 107:
(1) purpose and character of the use including whether for commercial or nonprofit
educational purpose
- Copying for commercial work weighs against fair use
- Accolade copied only to discover functional requirements which are not
protected by copyright
- Commercial aspect of Segas code use is of minimal significance
- Public benefit of encouraging more creative expression base on
dissemination of other creative works
(2) nature of the copyrighted work: idea vs. function
- Subroutine test:
o Allow user to interact with video game
o Allow game cartridge to interact with console
- If disassembly of copyrighted code was per se unfair use then owner of
copyright gains de facto monopoly over functional aspects of work against
Copyright Act policy
(3) amount and substantiality of the portion used in relation to work as whole and
- Copying entire work does not preclude fair use per se
- Factor is of little weight where ultimate use is limited
(4) effect of the use on potential market for or value of the copyrighted work
- Video game users typically purchase more than one game
Court must keep in mind the immediate effect of copyright law: secure a fair return for authors
creative labor but ultimate aim is to stimulate artistic creativity for the general public good
Trademark claim:
o Sega should have known its trademark screen ran risk of violating prohibition against
false labels not the intention but effect of the display matters (designed to create a
monopoly)
o Burden on Sega to prove that Accolade could have reasonably designed around the
trademark display
o

15

C. Mixed Regimes
i. Co-Regulation
1. US-EU Data Privacy Safe Harbor
EU privacy directive implemented by the US Department of Commerce
Comprehensive approach to data security across sectors
US approach is sectoral, differs by industry, no omnibus privacy law
EU Principles: Notice, Choice, Access to info, Data security
Co-regulatory approach meant to bridge incompatible regulatory regimes

ii.

Multi-stakeholderism
1. The Role of Multi-stakeholder Organizations
The Economist: the Internet mostly works. And the shambles is a lot better than the alternative
which nearly always in this case means governments bringing the Internet under their control.
Participation from representatives from all sectors/industries
o Less susceptible to capture
o Ex: ICANN: US-based, responsibilities delegated from Department of Commerce
- Bottom-up representation
- Consensus-based decision making
- Alternative: UN administers

III.

Innovation & Competition

A. Public Ordering
i. Communications

Telecommunications: transmission of information by means of electromagnetic signals: copper

wires, coaxial cable, fiber-optic strands, airwaves

Wireline Communications
Facilities-based communications associated with telepathy (doesnt mean cable)
1. Antitrust regulation of Bell Co. and AT&T (1913-1996)
AT&T developed concept of universal service: one company provides service for public benefit
AT&T first to patent telephony and telephone industry was a natural monopoly
Network effects: the more customers buy into service the more valuable the service is
o Justify the entry level cost of laying infrastructure with every additional user (high entry
level cost for telephone industry)
Monopoly rent-seeking: lower rates to price out competition
Kingsbury commitment 1918: First attempt at government intervention with AT&T
o Imposes interconnection requirement to address AT&Ts anti-competitive practices
- AT&T threatened to not connect local operators to AT&T network customers
unless they entered deal with AT&T
Telephone content and applications:
o AT&T leased phones to connect them to network and others created a hush phone
attachment
- AT&T claimed it affected the quality of sound that AT&T wants to provide and
therefore disrupts service
- Court rejects and says this is anti-competitive to ban them
o Developer creates the Carter phone, a speaker phone appliance
- AT&T tries to block but court rejects saying AT&T cant develop terms on
custom products unless they actually affect the integrity of the service
- Cannot leverage their market monopoly to interfere with data products (i.e.
physical equipment attachments)
MCI: microwave technology emerges as alternative competition in long distance market
16

AT&T voluntarily allows MCI to connect to their networks (local provider through the
Bell system)
AT&T was forced to break up b/c practiced:
1) Cross-subsidization: leveraged long distance dominance to lower local prices for local
services
2) Privileged AT&T long distance services over other long distance services
2. Telecommunications Act 1996: Enforces Anti-trust law
Implements interconnection requirements
Subsidizes universal service: taxes by users get funneled into universal service fund
706(a)/ 47 USC 1302: FCC has affirmative duty to deploy advanced telecommunications
capability:
shall encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans (including, in particular, elementary and
secondary schools and classrooms) by utilizing, in a manner consistent with the public interest,
convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other regulating methods that remove
barriers to infrastructure investment
3. Verizon v. Trinko (US 2004)
Class action suit brought by customers who receive local telephone service from LEC allege
Verizon breaches the Telecommunication Act duty to share its network with competitors and is in
violation of the Sherman Antitrust Act 2
Verizon like other incumbent LECs have exclusive franchise within local service area and
obligated under 47 USC 251(c) to share its network with competitors including access to
individual elements of network on unbundled basis
o Verizon signed interconnection agreement with AT&T and others
o Competitive LECs complained their orders with Verizon were going unfulfilled.
o Plaintiffs allege that Verizon filled rivals orders on a discriminatory basis as part of
anticompetitive scheme to discourage customers form becoming or remaining customers
of competitive LECs
Held: Plaintiffs fail to state a claim under the Sherman Act b/c no evidence of unlawful
monopolization.
Savings clause in Telecom Act: does not interfere with Anti-Trust laws
Sherman Act: Firm shall not monopolize or attempt to monopolize. Requires willful acquisition
or maintenance of that monopoly power distinguished from growth/development as result of
superior product, business acumen or historic accident
Aspen case: Evidence that refusal to connect services showed an anti-competitive intent
exception to proposition that there is no duty to aid competitors
o In Verizon, services allegedly withheld are not otherwise marketed or available to the
public
o Verizon alleged insufficient assistance in the provision of service to rivals is not a
recognized antitrust claim under existing refusal to deal precedents
Anti-trust law does not reach all discriminatory monopolistic activity
o FCC already regulates and is in better position to regulate Verizons commitments to
providing access as antitrust court is unlikely to be effective day-to-day enforcer of
sharing obligations
o Sherman Act only seeks to prevent unlawful monopolization
Concurrence: AT&T is better suited to bring claim against Verizon as harm against customer is
derivative
o

Spectrum Administration
1. Wireless Localism
Congress enacts radio act on theory that spectrum access is scarce and need to narrow access
Spectrum can be low-high frequency
17

ii.

Wi-fi travels at high frequency

FCC only regulates a small portion of the spectrum
1996 Act: creates an auction regime to displace command and control regime
o Coase: make market determine the costs of the spectrum not the government
o Also innovation and competition: more than one player competing for frequencies
o Auction process: designed to ensure more players that can get access to spectrum licenses
- Favors small businesses
- Makes bids anonymous

Copyright

Copyright law: US Constitution, Article I, 8, Cl. 8:

o To promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries
- Progress of Science: copyright
- Authors & respective writings: originality
- Useful Arts: patents & invention
- Exclusive rights: monopoly
Copyright Act of 1976 (17 USC 101)
o 111: Statutory license for secondary transmissions of broadcast content by cable
systems
o 204: Transfer rights: written instruments of conveyance of bundle of rights of
copyright holders
o 302: Term of protection is:
- Life of Author plus 70 years
- 95 years for pre-1976 works-for-hire

Facts, News, and Fair Use

1. Feist v. Rural Telephone Service Co. (US 1991)
Communication Act: telephone providers have to provide a phone book with its service
monopoly
Rural claims that it has a copyright in their telephone book and Feist infringed their copyright by
copying the information in the book
Held: (1) Names, towns and telephone numbers of utilitys subscribers are uncopyrightable facts
and (2) this information was no selected, coordinated or arranged in an original way and does not
meet constitutional or statutory requirements for copyright protection.
Art I, 8, cl.8 constitutional requirement originality in order to be copyrightable:
o respective writings means the work needs to be attributable to a specific author
(originator/maker)
- Copyright Act 1976 102(a): original works of authorship
- writings liberally construed (engraving, prints)
o Facts are not copyrightable, modicum of creativity needed
- Act 102(b): no facts
Copyright Act allows copyright of compilations:
o Compilation definition: work formed by the collection and assembling of preexisting
materials or of data that are selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship. The term
compilation includes collective works
o 103(b): The copyright in a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect or enlarge the scope,
18

duration, ownership, or subsistence of, any copyright protection in the preexisting

material.
Requires: (1) collection and assembly of pre-existing material
(2) selection, coordination or arrangement of those materials
(3) creation by virtue of particular selection, coordination or arrangement of an
original work of authorship
Harper & Row: Ford could have copyright to his subjective descriptions of history but not
historical facts
o A compiler remains free to use facts contained in anothers work to aid in preparing
completing work as long as does not feature same selection and arrangement
o Requirements for establishing copyright infringement:
(1) ownership of a valid copyright
(2) copying of constituent elements of the work that are original
Constitutional purpose of copyright is to Promote the Progress of Science and useful Arts
Rejects sweat of the brow theory
Nothing creative about arranging names alphabetically in phone book
Copyright rewards originality not effort
2. Fox News Network v. TVEyes (SDNY 2014)
TVEyes creates a searchable database of TV news clips. Fox claims violation of their
copyright for Fox news clips. TVEyes claims fair use.
TVEyes is not analyzing the news content but just putting it in a searchable database
o Clips limited to 10 mins, for 32 days
o TVEyes allows subscribers to email the clip or link from its websites to anyone
o All subscribers sign contractual limitation in User Agreement to only use for internal
purposes
o Fox features live stream through its own platforms 16% of its broadcast available
online
o Fox licenses to third party websites and to cable companies
Held: TVEyes service is fair use, although part of service that allows users to save, archive,
download, email and share clips of programs and time/date search function shall be remanded
to lower court for more evidence of necessity towards transformative purpose.
107 Fair Use preamble:
o purposes such as criticism, comment, news reporting, teaching, scholarship or
research is not copyright infringement
o 4 factor test for fair use should be weighted together in light of the purposes of
copyright on case-by-case basis
Purpose and character of use:
o Authors Guild v. Hathitrust (2d Cir. 2014): Search database of scanned books which
shows number of times a term appears in books and what page is fair use
- Full-text searchable database is quintessentially transformative use and result of
word search is different in purpose, character, expression, meaning and message
from book
o Authors Guild v. Google (SDNY 2013): Google books database was held to be
highly transformative and fair use:
- Google book was not a replacement of hard copies of books but added value by
creating new information
o AP v. Meltwater (SDNY 2013): Searchable database that allowed users to see
number of times and where keywords used and computer program crawled internet
for news and extracted and downloaded all content based on search terms.
- District court held that although search engines are transformative, Meltwater
failed to prove that their customers used the service to improve access to
underlying news stories
19

Serves a public interest: is a publicity tool which is not interested in the content but in the
amount of mentions of a particular topic
TVEyes provides a new service that Fox News does not provide creates database of
everything that television channels broadcast
Unrealistic to say that a subscriber would watch 10 minute clips end to end to see all of Foxs
programming
The more transformative the new work, the less significant are the other fair use factors
Hot news doctrine and misappropriation claim:
o Exists in NY law
o If claim is same as the copyright act claim then the hot news/misappropriation claim
is pre-empted
(1) generates or collects information at some expense
(2) value of information is highly time sensitive
(3) defendants use of information constitute free-riding on plaintiffs efforts
(4) defendants use of info is in direct competition with a product or service offered
by plaintiff
(5) ability of other parties to free ride would reduce incentive to produce the product
or service that its existence or quality would be substantially threatened

Code: Idea/Expression Distinction

1. Computer Assocs. Intl Inc. v. Altai (2d Cir. 1992)
Former CA employee went to Altai and brought with him copies of Adapter source code in
violation of employment agreement, then developed OSCAR 3.4 for Altai using the Adapter
source code. As legal counsel then made them rewrite code for OSCAR 3.5 removing
Adapter code.
Held: Sufficient similarity between Oscar 35 and Code that Computer Associates developed
and misappropriation state claim for trade secrets was preempted by Copyright Act.
Copyright Act 101: Computer program definition: a set of statements or instructions to be
used directly or indirectly in a computer in order to bring about a certain result
Plaintiff can prove defendants copying by direct evidence or showing:
(1) defendant had access to plaintiffs copyrighted work
(2) defendants work was substantially similar to plaintiffs copyrightable material
Copyright Act 17 USC 102(a):
o Copyright protection subsists, in accordance with this title, in original works of
authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
o Works of authorship include (1) literary works
o 101: Literary works definition: are works, other than audiovisual works, expressed
in words, numbers, or other verbal or numerical symbols or indicia, regardless of the
nature of the material objects, such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards, in which they are embodied
- Non-literal structures of literary works are protected by copyright and similarly
as computer programs are considered literary works, their non-literal structures
are protected by copyright
- Literal elements: source code, language
- Non-literal: structure, content of the literal work
Idea v. creative expression of program: 102(b)
o Expression adopted by programmer is copyrightable
o Actual processes or methods (functional/utilitarian) not protectable under copyright
Sufficient similarity based on three part analysis:
1) Abstraction: Dissect the copied programs structure and isolate each level of abstraction
contained within it
20

2) Filtration:
o Merger doctrine: when there is only one way to express an idea, the idea and
expression are inseperable and no copyright protection
- Efficiency indicative that merger doctrine applies
o Scenes a faire doctrine: standard techniques employed dictated by external
factors
3) Comparison (most important factor)
o Golden nugget: core of protectable expression
o Was this core copied and how important was copied portion to overall program?
Rejects the disincentive argument for broad copyright protection of computer programs
(chilling effect)
General rule: limit use of expert opinion in determining whether works substantially similar
and up to triers of fact but may be different when it comes to technical computer programs
Pre-emption of state misappropriation claim:
o Extra element text: unfair competition and misappropriation claims grounded solely
in copying of plaintiffs protected expression are prempted by 301
2. Oracle v. Google (US Court of Appeals, Fed. Cir. 2014)
Oracle filed suit against Google claiming that its Android mobile operating system infringes
on Oracles patents and copyrights. Google admitted to copying 37 APIs verbatim for its
Android.
o District court found that the API packages is creative and original but is a system or
method of operationthat is not entitled to copyright protection
Held: The Java APIs are entitled to copyright protection and Googles fair use defense will
be determined on remand.
Baker principles adopted to computer programs in Altai:
1) Copyright protection extends only to expression not ideas, systems or processes and
2) Those elements of computer program that are necessarily incidental to its function are
unprotectable
Literal element: source code (spelled out human commands) and object code (binary
commands)
Non-literal elements: programs sequence, structure, organization and programs user
interface
- Non literal copying is paraphrased or loosely paraphrased rather than
word for word
Court treats questions regarding originality as questions of copyright ability and merger and
scenes a faire as affirmative defensive
o Unique arrangement of computer program expression does not merge with process as
long as alternate expressions available
o Copyrightability and scope of protectable activity are to be evaluated at time of
creation no infringement
o Java has many alternatives to creating code so expression does not merge with idea
Cannot apply short phrase doctrine in this case, nor does scene a faire doctrine b/c must be
evaluated by circumstances presented to creator not copier
Googles interoperability argument is only relevant to fair use analysis not copyrightability
Operator's copying of developer's software was not de minimus
Just becomes method of operation does not preclude copyright agrees with 2 nd Circuit three
prong analysis
Just something is patentable doesnt preclude copyright protection
Question presented to Supreme Court (denied certiorari):
o Whether Section 102(b) precludes copyright protection for original software code
that defines and organizes a set of functions that are useful in writing computer
programs
21

17 USC 101: Computer program definition:

o a set of statements or instructions to be used directly or indirectly in a computer in
order to bring about a certain result

Secondary Copyright Liability in Distribution of Music and Video

Role of intermediaries: developers of devices that afford copyright infringement
Could have duties based on DMCA and 1st Amendment
Secondary liability:
o Vicarious liability: based on control
o Contributory liability: based on knowledge
1. Sony v. Universal City Studios (US 1984)
Justice Stevens majority opinion
Universal is suing Sony for making Betamax VTR claiming for contributory copyright
infringement of its television programs.
Copyright Act statute doesnt expressly mention contributory infringement liability but Patent
Act does
o 271(b): liability for contributory infringers
o Still can find contributory copyright infringement
o Kalem Co. v. Harper Brothers (US 1911): Unauthorized film dramatization of Ben
Hur
- Ongoing relationship between direct infringer and contributory infringer when
infringing conduct occurred
- District Court: no evidence that Sony encouraged infringement
Patent Act 271(c): sale of staple article or commodity of commerce suitable for substantial
non-infringing use is not contributory infringement
o Sony Safe Harbor aka staple article defense
Need to find usually that disputed article is within the monopoly of the patentee for
contributory infringement
Dawson Chemical Co. v. Rohm & Hass Co. (US 1980): patentee can only have claim over
unpatented articles if they are unsuited for commercial non-infringing use
- Balance between copyright holders demand for protection of statutory monopoly
vs. other to freely engage in substantially unrelated areas of commerce
Authorized time-shifting
o Plaintiffs copyrighted material represents 10% of market share. Other producers of
content might find that allowing time-shifting enlarges their audiences and doesnt
mind risk of copyright infringement
o Mr. Rogers testified for allowing time-shifting home taping for noncommercial use
o Does not justify complete ban of Betamax recording equipment just because some
individuals make unauthorized reproductions of plaintiffs work some broadcasters
like allowing time shifting
For contributory infringement of copyright then copyright holder only prevails if relief affects
only his programs or he speaks for virtually all copyright holders with interest in outcome
Fair use claim:
o Viewer already invited to view the entire program free, so entire reproduction of
work does not have same weight in fair use factor
o Time-shifting expands public access to freely broadcast television programs
beneficial to society
o Copyright holder needs to demonstrate likelihood of harm to have infringement claim
2. A&M Records v. Napster (9th Cir. 2001)
Napsters users are accused of direct infringement of A & M copyrighted music and Napster
of contributory copyright infringement
22

Holding: Lower courts finding that Napsters service is not a fair use and is infringement is
affirmed. Not transformative use. Napster also is liable for contributory copyright
infringement (actual knowledge that specific infringing material is available) and vicarious
liability
Not sampling: still a commercial use even if the user eventually purchases the music.
Usually publishers free samples are timed out or are a portion of the song. Napster is the
entire song and permanent download.
Napster has huge effect on market for recording companies in both CD and digital space
Space-shifting: Diamond (9th Cir. 1999) (Rio MP3 player found to be fair use space shifting)
and Sony do not apply because dont involve simultaneously distributing copyrighted to the
general public
Other uses like permissive reproductions are not contested
Contributory copyright infringement:
o One who with knowledge of infringing activity induces, causes or materially
contributes to the infringing conduct of another (Gershwin Publg Corp. v. Columbia
Artists Mgmt. Inc. (2d Cir. 1971)
o Knowingly (actual and constructive) contributed: dont need to point out specific
acts
o If computer system operator learns of specific infringing material available on his
system and fails to purge it from the system, the operator knows of and directly
contributes to infringement Religious technology center v. Netcom online
communication services (ND Cal 1995)
o Abides by Sony cant enjoin a computer network just because it allow infringing
use
Vicarious copyright liability (respondeat superior)
o Defendant has right and ability to supervise the infringing activity and also has a
direct financial interest in such activities
o Napster had financial benefit: availability of infringing material acts as draw for
customers
o Napster had limited controls and patrols of its premises
Modify preliminary injunction: requires plaintiffs to provide Napster of copyrighted works
and those files on Napster system and Napster must disable access to that content. Napster
also must police the system within its limits.
3. MGM v. Grokster (US 2004)
Justice Souter majority opinion
Grokster (Fastrack supernode computers) and Streamcast (Morpheus, Gnutella technology
direct peer to peer) distributed free software that enables P2P filesharing. MGM claims its
is liable for third party copyright infringement.
Holding: One who distributes a device with the object of promoting its use to infringe
copyright (clear expression or other affirmative steps to foster infringement) is liable for
resulting infringing acts of third parties.
Both G and S advertised themselves or voiced their objective to be the next Napster and knew
it was encouraging copyright infringement.
No evidence that either company made any attempt to filter out copyrighted material
District Court and Court of Appeals:
o Read Sony case saying that distribution of commercial product capable of substantial
non-infringing uses doesnt make distributor contributory liable unless they knew of
specific instances of infringement and didnt act on that knowledge.
o Also did not find vicarious liability b/c defendants didnt monitor or control use of
software and had no independent duty to police infringement.
MGM provided evidence that 90% of the content being shared were copyrighted works

23

Sonys staple article rule does not displace the theory of liability that considers intent
inducement rule: liability on purposeful, culpable expression and conduct (does not
discourage innovation or compromise legitimate commerce)
Grokster didnt editorialize content, provide serarch
4. ABC v. Aereo (US 2014)
Aereo offers an online live streaming service of broadcast tv programs on demand from users.
At users request, the program is downloaded onto Aereos servicers over a personal antenna,
then streamed directly to user
Held: Aereo liable for direct infringement through reproduction and public performance.
Does Aereo perform?
o Copyright Act 106(4): copyright owner has exclusive right to perform the work
publicaly
o 101: to perform means to transmit a performance of the work to the public
o Congress amended Copyright Act in 1976 to overturn Courts decision in Fortnightly
Corp. v. United Artist Television Inc. (US 1968) (broadcasters not viewers perform and
CATV provider is a viewer just amplifying signal)
o Teleprompter v. CBS (US 1974): distance between broadcasting station and ultimate
viewer and CATV choice in selecting programs to transmit doesnt matter, CATV not
infringing
o 101 Amendment: performing an audiovisual work means to show images in any
sequence or to make sounds accompanying it audible both broadcaster and viewer
perform
o Transmit clause: entity performs publicly when transmits a performance to the public (to
communicate it by any device or process whereby images or sounds are received beyond
the place from which they are sent)
o 111 compulsory licensing scheme under which cable can retransmit broadcasts
o Fact that cable companies constantly stream programs and Aereo is on a on demand
individual basis does not outweigh overwhelming similarities to cable service
Does Aereo perform publically?
o When entity communicates same contemporaneously perceptible images and sounds to
multiple people, it transmits a performance regardless of the number of communications
does not matter if at demand and only streamed to one viewer
o Public: non owners or possessors of underlying work, beyond friends and family
o Public does not need to be situated together spatially or temporally
Very narrow holding that does not contemplate all technologies (i.e. cloud computing, DVRs)
b/c definition of public implies that distributor has an underlying relationship with the work.
Copying occurs when the signal is transmitted and transcoded.
Scalia dissent: Need to take into account volitional-conduct requirement for third party
infringement liability
o Providers system is indifferent to the content being transmitted
o VOD is different because the provider chooses the content Aereo does not choose
content and thus doesnt perform
o Aereo is a copy shop that provides patrons with a library card
o Looks like cable approach is too ad hoc totality of circumstances that creates confusion
o Claim of direct infringement but at most Aereo is secondarily liable
5. Communications Act
47 USC 325(b): Retransmission consent
47 USC 522(13): Multichannel video program distributor
47 USC 534-535: Must-carry
47 USC 548: Program access

B. Private Ordering
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1. Fashion Originators Guild of America v. FTC (US 1941)

FOGA made up of garment manufacturer members whose designs are not copyrighted or
patented. To fight against copyists FOGA boycotted and declined to sell products to retailers
who dont follow the FOGA boycott. Members of National Federation of Textiles agreed to
sell products only to garment manufacturers who agree to sell products to cooperating
retailers.
FTC ordered FOGA to cease and desist from practices that constitute unfair methods of
competition tending to monopoly violating Sherman, Clayton and Federal Trade Commission
Acts.
Held: Upheld FTC findings. Arrangement will tend to create a monopoly. The aim is anticompetitive and doesnt matter if anti-competition is not proved or has not occurred yet still
a violation.
Sherman Act:
o 1: prohibits every contract, combination or conspiracy in restraint of trade or
commerce among several states
o 2: prohibits every combination or conspiracy which monopolizes or attempts to
monopolize any part of that trade or commerce
Not determinative in Sherman Act that FOGA has yet to achieve a complete monopoly
o Combination of sufficient power and control in businesses to exclude from industry
those who do not conform to FOGAs rules and regulations tend to create a monopoly
Purpose and object of combination, potential power, tendency to monopoly, coercion it
practiced on rivals brought it within the policy of Sherman and Clayton Acts
Combination is an extra-governmental agency which prescribes rules for regulation and
restraint of interstate commerce, extra-judicial tribunals that metes out punishments
2. FTC, Antitrust Guidelines for Collaborations Among Competitors (2000)
Identifies potential areas of collaboration
o Exclusive terms in distribution
o Set prices
Going to look at collaborations on case-by-case basis
Per se illegal collaborations: activities that tend to create monopoly
Rule of Reason:
o Anti-competitive harm: look to prices/output
o Pro-competitive benefit: claimed business purpose
Difference between merger and collaboration: agreement that is short-term or permanent
o 10 years: sufficient permanence
3. Center for Copyright Information
Started in 2011
ISPs and content providers have capacity to monitor infringing activity but content producers
have the burden of monitoring
4. Graduated Response Systems and Market for Copyrighted Works (2007)
1) Initial education
2) Acknowledgments
3) Mitigation (suspension of service)
4) Post-mitigation
5. Social Media as Art
Richard Prince: remove tweets from copyright protection by adding commentary
Response from tweeters was to sell copies of their own tweets themselves and undercut
Princes work
o Art regulating art
6. Other methods of private ordering copyright infringement:
Shaming: ads that create shame associated with copying
Embedding services, devices with code that makes it difficult to copy
25

Market mechanisms: function of contract imposing obligations on members to pass

obligations on to ISPs and other gateway providers

C. Mixed Regimes

i.

Joint obligations by public and private stakeholders

Intermediary liability: respondeat superior
1) Within scope of employment
2) Least cost avoider
3) Foreseeability

DMCAs 512 Notice-and-Takedown

1. Religious Technology Center v. Netcom (ND Cal. 1995)
Erlich distributing excerpts of Diametrics on BBS Usenet which is connected by Netcom.
Religious Tech brings copyright infringement claim against Netcom.
Held: Not direct infringement by Netcom. Vicarious liability is not found b/c no evidence of
financial benefit. There are questions of fact of contributory liability.
Netcom does not create or control content available to its subscribers or monitor messages as
they are posted. Netcom does suspend accounts of subscribers who violate its terms and
conditions.
Court finds that Netcoms system which automatically and uniformly creates temporary
copies of data sent through it is like a owner of a copying machine which lets public make
copies
o Must be some element of volition or causation to find direct copyright infringement
Vicarious liability: (1) right and ability to control infringers acts (2) receives a direct
financial benefit from the infringement
o Does not need knowledge
o Netcom does have a right to restrict activity b/c prohibits copyright infringement and
requires that subscribers indemnify it for any damage to third parties
o Netcom has suspended subscribers accounts over a thousand times and can delete
specific postings
o Plaintiffs failed to show Netcom received financial benefit
Contributory liability: (1) knowledge of infringing activity (2) substantial participation
causes or materially contributes to infringing conduct
o If it can be proven that Netcom knew of infringing activity then could be held liable
for not canceling the infringing messages as Netcom has the power to do that
2. DMCA 512 Notice & Takedown Safe Harbor
(a) Safe Harbor for passive conduits
(c) Storing materials on behalf of users at direction of users (volition of users)
o Service provider shall not be liable for monetary relief, injurnctive or other equitable
relief
(d) Information location tools
o (c) and (d) frame intermediaries duties
- unaware of presence of infringing material
- did not receive any financial benefit
- expeditiously takedown when receive notice
(1)(a) Safe harbor from contributory infringement claim:
i.
Does not have actual knowledge
ii.
Not aware of facts or circumstances
iii.
Acts expeditiously to remove
Safe harbor from vicarious infringement:
o (1)(b): Service Provider doesnt receive financial benefit and right/ability to control
such activity
o (1)(c): Upon notification expeditiously remove material
26

- if like gatekeeper then will give service provider protection

512(c)(2): Need registered DMCA agent
o (g): counter notification process
o (i)(1)(A): Service providers have an obligation to terminate service after users
repeat infringement
o (m): No obligation of service providers to monitor but burden of content producers
512(k)(1)(B): Service provider is a provider of online services or network access or
facilitates access
3. Viacom v. Youtube (2d Cir. 2012)
Viacom brought suit against Youtube for intentional vicarious and direct infringement of
works copyrighted by Viacom. V claims that Youtube had actual knowledge that these works
were on their website but did nothing about it. After Youtube received DMCA takedown
notices all infringing clips were swiftly removed.
Under 512(c)(A)(i): service provider needs actual knowledge not just general knowledge
o Content owner has to show that service provider had specific knowledge of specific
infringement, mere knowledge of prevalence of such activity in general is not enough
512(c)(1)(A)(ii): red flag test: service provider doesnt need to monitor its service or
affirmatively seek facts of infringing activity but if aware of red flag then will lose safe
harbor if it takes no action
o subjective awareness: whether service provider was aware of red flag
o objective awareness: whether infringing activity would have been apparent to a
reasonable person
o backed by Senate Report that says safe harbor not contingent on monitoring
Decline to shift burden on service provider because not in position to determine if content use
has been licensed by owner or fair use
Not like Grokster because Youtube does not exist solely to provide the site and facilities for
copyright infringement
Senate Report: by limiting the liability of service providers the DMCA ensures that
efficiency of the Internet will continue to improve and that the variety and quality of services
on the Internet will continue to expand
UMG Recordings Inc. v. Veoh Networks (CD Cal 2008): If providing access could trigger
liability without DMCA immunity then service providers would be greatly deterred from
basic, vital and salutary function: providing access to information and material for the
public

iv.

Open Internet

FTC cant regulate common carriers only FCC can

Zero rating: prominent in global south, only allows access to affiliated content
Communications Act:
o Title I: Ancillary authority of FCC to regulate
- Southwestern Cable: cable not explicitly mentioned as under FCC purview but
jurisdiction over interstate communications via wire or radio
- Ancillary to authority over broadcasting
o Title VI: Passed to cover cable explicitly
o Nothing in Communications Act that covers broadband or the internet
o Title II: Telephony: all common carriers
- Service providers make services available to all users and local providers
o Title III: Radio, broadcasting, wireless
FCC has authority to regulate broadband/internet based on Laird Stack theory
o Laird stack: Content & Applications
Transmission Logic
Infrastructure
27

1.

2.

3.

4.

o Information services (content & applications) Title I

o Telecommunications (Infrastructure) Title II/III
Different approaches:
o Regulatory: traditional approach of telephony pro-competitive
o Engineering: develop communication networks that are sustainable
FCC Advances Services Order 1998
DSL service is decided to be a telecommunications service and all telephone company rules
applied to DSL companies
o Before this FCC forebore from regulating DSL
2002: FCC decides cable/modern service would be an information service
o free to manage broadband traffic under Title I affirmed by NCTA v. Brand X (2005)
FCC Broadband Services Order (2005)
Enforcement action against local service provider discriminating against FCC says violates
Communications Act
Promulgates Internet Policy Statement: consumer protection document to maximize
consumer choice only if lawful
FCC Internet Policy Statement (2005)
Four consumer protection principles:
o Access to lawful Internet content of choice
o Ability to run applications and use services of choice
- subject to law enforcement needs
o Ability to connect legal devices of choice
- without harming the network
o Competition among network providers, application and service providers, and
content providers
o fn 15: subject to reasonable network management
Verizon v. FCC (US 2014)
FCC tries to compel broadband providers to treat all Internet traffic the same regardless of
source net neutrality
Chevron test applied to see if FCC has duty to regulate broadband service by treating it as a
common carrier
o Fails Chevron step 2: Agency can regulate but its regulation is not otherwise
permissible by the statute
o Common carrier regulations are only available to telecommunications providers only
to an extent that it is engaged in providing telecommunications services
Transparency rule survives b/c not unique to common carriers but everything else (blocking,
discrimination) shut down
Dissent: Not enough substantive evidence that without intervention there would be lack of
infrastructure investment
o Not shown that agency has authority under 706(a) or (b)
o No market power analysis: Agency has not shown that service providers have market
power (consumers can find another SP)
o How are SPs abusing/exploiting users? Need to make a claim under APA rules
o Verizon has incentive and ability to block and throttle
After case: FCC reclassifies broadband service as a telecommunications service that can be
regulated under Title II
o Rules that Comcast and Time Warner can be regulated under common carrier rules
but FCC says its going to forebear and regulate with a light touch
Common carrier rules:
o Privacy
o Universal service
o Narrow range of access rules
28

5. 706(b) (47 USC 1302(b)): FCC duty to inquire into deployment rate
Commission shall annually initiate notice of inquiry concerning availability of advanced
telecommunications capability to all Americans
Shall determine whether advanced telecommunications capability is being deployed to all
Americans in reasonable and timely fashion
o If not, required to take immediate action
- accelerate deployment of such capability by removing barriers to infrastructure
investment
- by promoting competition in the telecommunications market.
6. 47 USC 153(51): Telecommunications carrier definition:
o means any provider of telecommunications services, except that such term does
not include aggregators of telecommunications services. . . A telecommunications
carrier shall be treated as a common carrier under this chapter only to the extent
that it is engaged in providing telecommunications services, except that the
Commission shall determine whether the provision of fixed and mobile satellite
service shall be treated as common carriage.
7. Open Internet Order II (2015)
Three broadly accepted Internet norms
o Transparency and disclosure (47 USC Part 8, 8.3)
- fixed and mobile
o No blocking: (47 USC 8.5) A person engaged in the provision of fixed broadband
Internet access service, insofar as such person is so engaged, shall not block lawful
content, applications, services, or non-harmful devices, subject to reasonable network
management.
- fixed: no blocking content, apps, services, and devices
- mobile: no blocking website and voice or video apps/services
o No unreasonable discrimination (8.11 unreasonable interference/disadvantage
standard for internet conduct)
- applied to fixed
- not to mobile
o No throttling: (47 USC 8.7) A person engaged in the provision of broadband
Internet access service, insofar as such person is so engaged, shall not impair or
degrade lawful Internet traffic on the basis of Internet content, application, or service,
or use of a non-harmful device, subject to reasonable network management
o No paid prioritization: (47 USC 8.9)
- A person engaged in the provision of broadband Internet access service, insofar
as such person is so engaged, shall not engage in paid prioritization.
- Paid prioritization refers to the management of a broadband provider's network
to directly or indirectly favor some traffic over other traffic, including through
use of techniques such as traffic shaping, prioritization, resource reservation, or
other forms of preferential traffic management, either;
(1) In exchange for consideration (monetary or otherwise) from a third party, or
(2) To benefit an affiliated entity.
Reasonable network management: A network management practice is reasonable if it is
primarily used for and tailored to achieving a legitimate network management purpose, taking
into account the particular network architecture and technology of the broadband Internet
access service.
8. FCC Commission, Decline in Investment Following Title II Order
Data implies investment in infrastructure has gone down
o Capital expenditures have been flat
o Title II has slowed innovation
Edge providers can invest in their own infrastructure:
o Peering: partnering with third party vendors to reach users faster
29

IV.

Interconnection arrangements last mile

- FCC disclaims authority over these arrangements but still could regulate
through adjudication

Freedom & Public Rights

First Amendment: Congress shall make no law . . . abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances
Gitlow v. New York (US 1925): incorporates First Amendment against state governments
through Fourteenth Amendment
Judicial review of Freedom of Speech challenges:
o content-based regulations
- strict scrutiny:
- narrowly tailored to compelling state interest
o content-neutral but incidental effect on content:
- intermediate scrutiny:
- substantially related to important or legitimate government interest
o Everything else:
- Rational basis

A. Public Ordering
i. The Duty to Carry Content
1. Miami Herald v. Tornillo (US 1972)
Miami Herald criticized Tornillo and declined to print Tornillos reply. Tornillo brought suit
based on Floridas right to rely statute. MH claims the statute is void on its face b/c violates
1st Amendment by regulating newspaper content.
Floridas right of reply statute: candidates in election must be given right to reply to print
editorial criticism for free
o Positive regulation: doesnt restrict speech but compels carrying of certain speech
Held: ROR statute violates the 1st Amendment
o Costly to enforce
o Threat to editorial decision making and chills speech
o Plaintiff (Tornillo) has freedom to exercise his freedom of speech
o Interest to maintain newspaper autonomy for accountability 1 st amendment purposes
Newspapers claimed to be surrogates to the public that carries fiduciary obligation
o Statute made because of entry into marketplace of ideas served by print is almost
impossible
o Marketplace of ideas is monopoly controlled by owners of market
Florida statute operates in same way as forbidding Herald to publish a specified matter
o Penalty for printing criticism is fronting cost, expending resources and space to print
the reply
30

Newspapers would avoid printing controversial things and political and electoral
coverage would be chilled
Statute intrudes on function of editors
Newspaper more than passive receptacle or conduit for news comment and advertising
o choice of material that goes into newspaper etc. are subject to exercise of editorial
control and judgment
2. Red Lion Broadcasting v. FCC (US 1969)
Red Lion broadcast series where host that accused Cook of corruption and Cook demanded
free reply time from RL who refused. FCC declared that RL had failed to meet its obligation
under the fairness doctrine which was upheld by Court of appeals.
FCC adopted rules making personal attack aspect more precise and readily enforceable and
7th Cir. held rules unconstitutional in RTNDA litigation.
Held: FCCs regulations and enforcement of fairness doctrine are authorized by state and
constitutional b/c of rights of those who would not be able to access frequencies to express
their views without government intervention.
FCC has imposed fairness doctrine requirement on radio and television and Communications
Act 315 that equal time be allotted to all qualified candidates for public office.
Federal Radio Communications Commission regulates scarce amount of radio waves and
need to prevent interference
o Broadcasters operate gatekeeping functions
o Scarcity issue: due to the nature of the technology, broadcasting needs more
regulation
o Scarcity is not a thing of the past advances in technology leads to more efficient use
of frequencies but uses for those frequencies have also increased
Fairness doctrine: broadcasters have obligations a public trustees
o Must carry public issues
o Coverage must be fair and both sides addressed
o Must be done at broadcasters own expense if no sponsorship
- Interest to protect viewers
Court finds the chilling political speech argument speculative
o No proof that fairness doctrine would lead to censorship
Government has propriety interest in frequencies and can control who uses these frequencies
and manner of use
o Licensee has no constitutional right to monopolize radio frequency at exclusion of
federal citizens and government can require licensee to share his airwaves
For purposes of 1st Amendment it is rights of views and listeners not the right of broadcasters
that is paramount
o Public has right to receive suitable access to social, political, esthetic, moral and
other ideas and experiences
3. 47 USC 326: Nothing in this chapter shall be understood or construed to give the Commission
the power of censorship over the radio communications or signals transmitted by any radio
station, and no regulation or condition shall be promulgated or fixed by the Commission which
shall interfere with the right of free speech by means of radio communication.
4. FCC Fairness Doctrine Report
No longer believes that fairness doctrine as a matter of policy serves the public interest
Diversity of viewpoints is set by the marketplace and government intrusion unnecessarily
restricts the journalistic freedom of broadcasters
Fairness doctrine actually inhibits the presentation of controversial issues of public
importance to the detriment of the public and in degradation of the editorial prerogatives of
broadcast journalists
Doctrine may no longer be permissible as a matter of constitutional law
o

31

Do not eliminate or restrict the scope of the doctrine because proposals pending before
Congress to repeal it leave up to legislature
Chills speech org can successfully pressure broadcasters into refusing to sell ads on ballot
issues
Broadcasters are not lawyers and are uncertain as to boundaries of regulatory scheme and
compliance
Fairness doctrine itself is a regulation that favors orthodox viewpoints
o Must determine what view is significant enough to warrant coverage under fairness
doctrine
Increases in signal availability alternative electronic voices
First Amendment forbids government intervention in order to protect print journalists and
believe that broadcast journalists need same protection
5. Syracuse Peace Council (FCC 1987)
To date Court has determined that government regulation of broadcast is subject to more
lenient standard of review under 1st Amendment than applicable to print media
Fairness doctrine reduced diversity in viewpoints and imposes burdens on broadcasters
chilling effect thwarts the very purpose of the doctrine
Not narrowly tailored to achieve a substantial government interest
o Places substantial burden on editorial discretion of journalists
o Technological developments render it unnecessary to ensure public access to
viewpoint diversity
Supreme Court has repeatedly emphasized that its constitutional determinations in First
Amendment law in electronic media are closely related to the technological changes in
telecommunications market
o FCC v. League of Women Votes in CA (US 1984): with cable and satellite TV
technology the scarcity doctrine is obsolete
o Because scarcity no longer applies should not treat broadcast and print media
differently Fairness doctrine should be subject to strict scrutiny
1st Amendment: rights of views and listeners to receive diverse viewpoints is achieved by
guaranteeing them the right to receive speech unencumbered by government intervention
o Adopted to protect people not from journalists but from government
Role of electronic press in society is same as in printed press
FCC concluded: will continue to enforce fairness doctrine but encourages Congress to revise
1980s: Strong movement towards deregulation led to birth of talk radio in the US
Fairness doctrine never rescinded but just not enforced then discontinued in 2011
o FCC Chairman: Our extensive efforts to eliminate outdated regulations are rooted in
our commitment to ensure that FCC rules and policies promote a healthy climate for
private investment and job creation
6. 47 USC 325(b): Retransmission consent: MPVD cannot retransmit a broadcasters signal without
broadcasters explicit permission
recognizes IP right in signal that is independent from the copyrighted content it transmits
534-535: Must Carry obligations: broadcasters have right to insist that their signals be
carried without charge on local cable system
o applies to local commercial television stations (network affiliates and independents)
and noncommercial educational television stations
338: Carry one, Carry all: If DBS operator carries a local broadcaster pursuant to a
statutory compulsory license, it must carry all the local stations
7. Turner Broadcasting System v. FCC (US 1994)
Cable Television Consumer Protection and Competition Act of 1992 4-5: require cable
television systems to devote a portion of their channels to transmission of local broadcast
television stations
District Court held that the provisions are consistent with 1 st Amendment
32

ii.

Held: Intermediate scrutiny applies because must-carry is content-neutral, but not enough
facts presented to determine if it passes review.
1992 Cable Act enacted after Congress found that cable was endangering over the air
broadcast television stations and their operating revenues
Increased vertical integration in cable makes it harder for broadcasters to secure carriage b/c
cable favors their affiliated programmers
Horizontal integration: many cable operators have shared ownership
Advertising revenue for broadcast continues to erode and jeopardizes broadcasts ability to
originate quality local programming
Scarcity doctrine doesnt apply to cable so more heightened level of scrutiny needed for
must-carry provisions
o Provision does not depend on cables programming (content)
o Not strict scrutiny but intermediate applies
Cable operators act as bottleneck, gatekeeper and controls all of the television programming
that is channeled into subscribers home
o Government can take steps to ensure private interests dont restrict free flow of
information/ideas
Concur: Should affirm must-carry b/c industry does not need to be in death throes before
Congress can act. Scheme unpredictable so dont need entirely complete ex ante justification
Dissent: Must-carry provisions do privilege one class (broadcasters) over others and also is
based on content (preferential treatment to educational programming) must be strict
scrutiny
o Localism is not a compelling interest
o For private speakers and listeners and not government to decide what fraction of their
media should be local
o Act no sufficiently tailored
o Impermissible restraint on cable operators editorial discretion and speech

Speech: Open Internet

1. Rumsfeld v. Forum for Academic and Institutional Rights (US 2006)
Law schools challenged constitutionality of Solomon Amendment which required the
Department of Defense to deny federal funding to high education institutions that prohibited
military representatives to access and assistance for on campus recruiting.
Held: Congress could require law schools to provide equal access to military recruiters
without violating schools freedom of speech and association therefore the Solomon
Amendment does not violate the 1st Amendment.
Solomon Amendment regulates conduct not speech and the compelled speech in providing
recruiters assistance is plainly incidental to regulation of conduct
Law school recruiting service lacks expressive quality no implication that law school agrees
with speech by recruiters and law school is not restricted in saying what they want about
militarys policies
Does not violate 1st Amendment rights of association because allowing military recruiters oncampus does not make them part of the school
Unconstitutional conditions doctrine: government may not deny a benefit to a person on a
basis that infringes his constitutionally protected freedom of speech even if he has no
entitlement to that benefit
o Funding condition cannot be unconstitutional if it could be constitutionally imposed
directly
Solomon Amendment: regulates conduct and affects what law schools must do (equal access
to law schools), not speech (what they may or may not say)
Court has limited governments ability to force one speaker to host or accommodate another
speakers message
33

But complaining speakers own message was affected by the speech it was forced to
accommodate
First Amendment protection for conduct is only given when it is inherently expressive
o Purpose for requiring military interviews to be conducted on undergraduate campuses
instead is not overwhelmingly apparent
10 USC 983(b)(1):
o No [federal agency] funds . . . may be provided . . . to an institution of higher
education . . . if the Secretary of Defense determines that that institution . . . has a
policy or practice . . . that either prohibits, or in effect prevents . . . the Secretary of a
military department or the Secretary of Homeland Security from gaining entry to
campuses
- for purposes of military recruiting in a manner that is at least equal in quality and
scope to the access to campuses and to students that is provided to any other
employer . .
2. US Telecom v. FCC (DC Cir)
[M]arket position gives cable operators the power and the incentive to harm broadcast
competitors. The power derives from the cable operators ability, as owner of the
transmission facility, to terminate the retransmission of broadcast signal, refuse to carry new
signals, or reposition a broadcast signal to a disadvantageous channel position. The
incentive derives from the economic reality that cable television systems and broadcast
television stations increasingly compete for television advertising revenues
Alamo Broadband Brief
o Open Internet is conduct rule that violates 1st Amendment
o Broadband providers are speaker that engage in speech and exercise same editorial
control as cable
o Subject to strict scrutiny because compel providers to carry all speech including
political speech which providers disagree
o 706 instructs FCC and Sate to use preexisting authority to encourage deployment of
advanced telecommunications no independent authority delegated to FCC
o 201(b): forecloses ban on paid prioritization by authorizing just and reasonable
practices and different charges for different classes of Internet service
o 303(b) doesnt authorize FCC to invalidate licensees prioritization arrangements
with 3rd parties
FCC Brief
o Broadband providers are not acting as speakers but are conduits for speech of others
therefore open internet rules do not impair broadband providers first amendment
rights
- Telecommunications service is transmission of users speech without change in
form or content no editorial judgment or discretion
o Similar to FAIR: Open Internet rules regulate conduct not speech because address
what broadband providers must do not what they may or may not say
o Common carriers do not engage in 1st Amendment activity
o Different from cable and newspapers:
- No technological obstacles to prevent broadband providers form allowing customers
to access all lawful Internet content at all times
- No tradition of exercising editorial control over Internet content
o Open Intenet serves 3 governemnt interests:
- Public has access to multiplicity of information sources by promoting widest
possible dissemination of information from diverse and antagonistic sources
- Ensure a level playing field by limiting power of broadband providers to
prefer or disadvantage edge providers
- Advance timely and widespread broadband deployment
o

34

iii.

Broadband providers exercise gateway control over Internet access open internet
rules only apply to mass market retail broadband providers who are common carriers

Speech: Indecency and Obscenity

1. Ginsburg v. New York (US 1968)
NY Criminal obscenity statute prosecuted owners of store for selling girlie mags to 16 year
old boys.
Held: NY statute upheld because rational relation to government interest
Government interest behind statute is the well being of children
Limitation of access to these material are justified by:
(1) parents and others who have primary responsibility for childrens well being are entitled
to the support of laws designed to aid discharge of that responsibility
- Prohibition against sales of girlie mags does not prevent parents who would want to
purchase them for their children
(2) State has independent interest in well being of its youth
- safeguard them from abuses
Rational for NY state to decide that exposure to obscene materials is abuse
o Although not scientific fact that exposure impairs the development of youth obscenity is
not a protected expression
o Just need to find that it was rational for legislature to think exposure to material is
harmful to minors no scientific disproval of causal link
o Rational basis analysis
2. FCC v. Pacifica Radio (US 1978)
Cohen v. California: man walks into courthouse with jacket that says fuck the draft
o Court strikes down the conserving the peach statute that bans this type of speech
o one mans obscenity is another mans lyric
George Carlins Filthy Words monologue was aired on Pacifica
FCC litigates the case pursuant to policy in statutory scheme
o 47 USC 326: bars censorship in broadcasting
o 18 USC 1464: bars use of any obscure, indirect, or profane language by means of
radio communications
o 47 uSC 503(b)(1)(D): authorizes forfeiture for violation of 1464
FCC says falls under profane speech (patently offensive):
o Exposes children to language
o Offensive measured by:
- contemporary community standards for broadcast
- sexual or excretory activities and organs
- at times of day when there is a reasonable risk that children may be in the
audience
but Pacifica claim in context was political speech so protected
Miller v. CA: unsolicited porn set by mail
o Court has 3 pronged test when something is obscene
1) Average person would consider it so, applying contemporary community
standards
2) Finds offensive
3) No political, literary or emotional value
Broadcast medium: pervasive, invasive technology
Invokes Red Lion: broadcasters have public obligation
Court mentions first blow: cant control exposure, harm has been done even if you could
change the channel
o Holding against Pacifica is very narrow: fact and context specific
35

As result of case: FCC would excuse fleeting expletives (only bars repeated nature of
utterances) but later in Fox case FCC barred even those (2004 Golden Globe Order)
3. Sable Communications v. FCC (US 1989)
Dial a porn service operated by Pacific Bell
Sable sought declaratory judgment that 1988 Amendments to 223(b) is unconstitutional
under the 1st and 14th Amendment.
223(b) of Communication Act: unlawful to make any obscene or indecent communication
for commercial purposes which is available to any person under 18 years of age or to any
other person without that persons consent.
o Required FCC to promulgate regulations laying out means by which deal a porn
sponsors could screen out underage callers
o Amended in 1988 to prohibit indecent and obscene interstate commercial telephone
communications directed at any person regardless of age
Statute was overbroad and court vindicates adults access to these materials
o Sexual expression which is indecent but not obscene is protected by 1 st Amendment
o Pacifica different b/c not a total ban on indecent language but sought to channel to
times of day when children wouldnt listen to it
o No captive audience problem here b/c callers are all willing listeners
Legislative deference doesnt disclose the courts independent judgment of the facts bearing
on constitutional issues
o No findings on congressional record that would justify that there are no less
restrictive means short of a total ban to achieve the govts interest in protecting
minors.
4. Renton v. Playtime Theaters (US 1986): Zoning ordinance that prohibits adult film theater
from being located within 1000 feet of residence, school, park, church
District Court concluded that the ordinance is not aimed at the content of the films but rather
the secondary effects of the theaters on the surrounding community predominate intent
Court of Appeals: if a motivating factor in enacting ordinance was to restrict respondents
exercise of the 1st Amendment right then ordinance would be invalid, no matter how small a
part factor played
Court here goes with District Court approach
Ordinance consistent with definition of content neutral speech regulations
Held: Aimed at content based restriction but for content neutral objective (secondary effects).
Intermediate scrutiny applies which it does meet.
Substantial government interest: citys interest in attempting to preserve the quality of urban
life (found by court to be an internet that must be accorded high respect)
Ordinance allows reasonable alternative avenues of communication
o Cities may regulate adult theaters by dispersing them or concentrating them
o Ordinance is narrowly tailored to affect only that category of theaters that have
unwanted secondary effects
o Ordinance leaves open more than 5% of Renton land to use for adult theaters
Court distinguishes aim at content of adult films and aim at secondary effects
Zoning law valid if (1) does not unduly restrict adult access to the material and (2) minors
have no 1st Amendment right to read or view the banned material
5. Reno v. ACLU (US 1997)
Telecommunications Act of 1996 Title V Communications Decency Act of 1996
Communications Decency Act 223
(a)(1)(B): bars knowing interstate/foreign transmission through telecommunication of
obscene or indecent materials knowing that recipient is under 18 years old regardless of
whether maker of communication placed call or initiated communication
(2) or knowingly permits any telecommunications facility under his control to be used for
any of the activity in (1) with intent it be used for that activity
36

(d) bars knowingly using an interactive computer service to send or display patently
offensive (As measured by contemporary community standards, sexual or excretory activities
or organs) material in manner available to people under 18 years old or specifically to
someone under 18 years old
o 223(3): affirmative defenses:
- good faith effort to restrict access to minors
- providing method of verifying proof of age (verified credit card, adult
identification number or code)
ACLU challenges CDA violates 1st Amendment, overly broad
o Also violates 5th Amendment for vagueness
o Violates all peoples access to the material
District Court enjoined Government from enforcing 223(a)(1)(B) to extent it refers to
indecent communications but allows government right to investigate/prosecute obscenity or
child pornography activities.
CDA subject to most stringent review b/c unlike other precedents:
o Ginsburg: CDA in contrast doesnt allow access either through parents consent or
participation, doesnt have commercial transaction limitation, lacks definition for
indecent, omits that patently offensive lacks serious literary, artistic, political or
scientific value
o Pacifica: relied on context that broadcast has the most limited 1 st Amendment
protection, designated when rather than whether airing such program was permissible
and regulated with agency with long history of regulating that medium, also FCCs
order did not have criminal sanction, also unlike radio, risk of encountering indecent
material on Internet by accident is remote
o Renton: CDA applies broadly to entire universe of internet not just zoning and aimed
at content of speech rather than just secondary effect of speech
Internet never before has subject to heavy government supervision or regulation and also less
invasive than broadcast
Internet no considered a scarce expressive commodity
Vagueness is problematic for 1st Amendment rights:
o Indecent and patently offensive are not defined in statute and creates uncertainty
which chills free speech, made even worse by fact that its a criminal statute
Government interest in protecting children doesnt justify unnecessary broad suppression of
speech addressed to adults
Sable: Court does not need to defer to congressional judgment that nothing less than total
ban would be effective in preventing youth from getting indecent communications
o Practically would be expensive for online speakers to verify that their users are adults
will curtail adult communication on internet
Less restrictive more effect means available user based software that parents can use,
indecent material could be tagged,
Governments time, place and manner argument that that type of speech is still feasible
despite restrictions because its a content based regulation
Risk of criminal sanctions hovers over each content provider like the proverbial sword of
Damocles
Sable: Burning the house to roast the pig
CDA casts far darker shadow over free speech, threatens to torch a large segment of the
Internet community.
6. Ashcroft v. ACLU (US 2004)
Congress passes Communication Online Protection Act and Court strikes it down
District Court concluded statute was overbroad and enjoined enforcement subject to strict
scrutiny
Supreme Court upholds DC decision because there are plausible less restrictive alternatives to
COPA need to inquire to ensure that legitimate speech is not being chilled
37

iv.

Primary alternative is blocking and filtering

o Impose selective restrictions on speech on the receiving end
o Promoting use of filters doesnt condemn any category of speech and potential chilling
effect eliminated
o Filters can prevent minors from seeing all porn including that overseas (40% is overseas
originating)
o Verification systems can be circumvented
o Filters can be applied to all forms of internet communication
Governments burden is not merely to show that a proposed less restrictive alternative has
some flaws but that it is less effective then the disputed measure
o Government cant show this so statute doesnt survive strict scrutiny
Congress can act to encourage the use of filters held that Congress can give strong
incentives to schools and libraries to use them
US v. Playboy: obligation for carriers to scramble image. Court says there are less
restrictive means to do this and instead could implement opt-in.
o Court should not assume a plausible less restrictive alternative would be ineffective and
court should not presume parents given full information will fail to act
o The starch in our constitutional standards cannot be sacrificed to accommodate the
enforcement choices of the Government

Government Surveillance

4th Amendment: persons, houses, papers & effects real and chattel property
o bar against unreasonable searches and seizures: commands warrant to be received,
only obtained through probable cause
o The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized
Marissa Mayer, President/CEO, Yahoo:
o The virtual world follows the physical world. There are very few things you can do
anonymously in the physical world. I think that over time, on the Internet, there will be
less anonymity. And I actually think thats good; I think it creates, you know, more
accountability, people acting more responsibly
Vinton Cerf: Privacy may be an anomaly
Content Data
1. Olmstead v. US (US 1928)
Federal officers wire tapped the telephones of suspects by inserting wires along their telephone
lines without trespassing the suspects property (in streets near the house).
The 4th Amendment cant be extended to include telephone wires b/c they are not part of the
suspects residence.
The Legislature can choose to protect the secrecy of telephone messages by making them
inadmissible evidence in trials but court cant extend the 4 th Amendment to do so
Reasonable view: someone who installs telephone n their house intends to project their voice
outside
Search and Seizure means: taking physical thing and actual physical invasion of house
Dissent: Interpretation must meet modern conditions
o In Ex Parte Jackson held that sealed letter is protected by the Amendments public
service by government
o Tapping telephones is even greater invasion of privacy b/c invades privacy of not just
person whos line is tapped but everyone he talks to
o Should look at the underlying purpose of the Amendments not the literal words
38

Immaterial where physical connection with wires was made or that intrusion was in aid of
law enforcement
2. Katz v. US (US 1967)
Wiretapped phone booth and recorded conversations re: gambling by attaching listening
device to the outside
4th Amendment protects people not places what person knowingly exposes to the public
(Even in own home/office) is not subject to the 4th Amendment, but when seeks to keep it
private even in area accessible to public it is protected
Vital role of public telephone in private communication: when enter booth and shuts door,
expect privacy
Recognizes Olmsteads trespass only approach is inadequate
o Court has held that 4th Amendment governs not only seizure of tangible items but
extends to recording of oral statements overheard w/o any technical trespass
Violated the privacy of booth user upon which he justifiably relied
Searches conducted w/o warrants have been held unlawful notwithstanding facts
unquestionably showing probable cause impartial judgment of judicial officer required
o Doesnt matter that they practiced restraint in their search
Concurring: Subjective standard of privacy and objective view (societal standard)
3. Kyllo v. US (US 2001)
Thermal imaging device aimed at private home from a public street to detect amount of heat
within the home in order for law enforcement to see if suspects growing marijuana. Probable
cause for warrant obtained by info gathered this way.
Dow Chemical v. US: enhanced aerial photography of industrial complex was not invasion
of privacy, if area not immediately adjacent to private home where privacy expectations most
heightened
Katz test of subjective/objective privacy is unpredictable
Held: Obtaining by sense-enhancing technology any information regarding interior of home
that could not otherwise been obtained w/o physical intrusion into constitutionally protected
areas is a search at least when technology is not in general public use
Court should rule taking into account more sophisticated systems that are already in
use/development
Homes are prototypical space of privacy that requires protection
o 4th Amendment protection of the home has never been tied to measurement of quality
or quantity of info obtained
o Silverman: any physical invasion of the structure of the home by even a fraction of
an inch was too much
Take long view of 4th Amendment based on the original meaning of the 4th Amendment when
it was adopted
Dissent: Indirect observations from off-the-wall surveillance distinction between
through-the-wall surveillance and inferring from information in the public domain
o Should allow sensory enhancing technology unless provides user with functional
equivalent of actual presence in area being searched
o Dog sniffing as example
4. Warshak v. US (6th Cir. 2007)
Feds obtained an order from the SD Ohio Judge to get from NuVox Communications any info
regarding Warshaks e-mail account (including wire/electronic communications
placed/stored in directories or files owned/controlled by W) who they suspected of fraud and
other federal offenses. Issue ordered under SCA. NuVox ordered to keep this order and
investigation secret until allowed by Court.
Constitutionality of Stored Communications Act (18 USC 2703)
o A court order for disclosure . . . may be issued by any court that is a court of competent
jurisdiction and shall issue only if the governmental entity offers specific and articulable
facts showing that there are reasonable grounds to believe that the contents of a wire or
39
o

electronic communication, or the records or other information sought, are relevant and
material to an ongoing criminal investigation
o (b) to obtain messages stored for over 180 days must have search warrant, administrative
subpoena or obtain a court order
- administrative subpoena/court order requires advance notice to subscriber
- in absence of notice must have search warrant
District Court held that e-mails held by ISP are like sealed letters which sender has some
expectation of privacy
DC found that if hearing is required and e-mail account holder is given an opportunity in
court to resist the disclosure of information, then more like a subpoena then a search warrant
so a lower standard of specific and articulable facts to show reasonable grounds to believe
contents are relevant and material to an ongoing criminal investigation allowed (4 th
Amendment general reasonableness standard)
o Standard for a warrant is probable cause
o User can contest subpoena if demonstrates legitimate expectation of privacy attaching to
records obtained
If can show that had reasonable expectation in privacy re: the ISP, then probable cause
standard controls the e-mail seizure, otherwise reasonableness standard
o Distinction between Smith (PEN register) and Katz is content of communication
disclosed
o Who was communication meant to be shared with/disclosed from?
- ISPs are intermediary that merely has ability to access information not
intended recipient
o What is the info that disclosure is sought?
- Cannot bootstrap intermediarys limited access to one part of communication
(i.e. phone number) to allow it access to another part (the content of
conversation)
- Compelled disclosure of subscriber information and related records through
ISP might not undermine subscribers 4th Amendment interest
- Heightened protection for content of communication
E-mails are increasingly important as mode of private communication and has reasonable
expectation of privacy attached like telephones in past
Heckenkamp (university network) and Simons (government employee user agreement):
where user agreement explicitly provides that e-mails and other files will be monitored or
audited then users knowledge of this may extinguish reasonable expectation of privacy
User service agreement here only provide access to info in limited circumstances rather than
whole sale inspection, auditing, monitoring of e-mails
o Fiduciary relationship that ISP owes to user
- Limited to storage and dissemination of e-mail normal course of business
- ISPs right to access e-mails are reserved for extraordinary circumstances in the
agreement
Government made no showing that e-mail content regularly accessed by ISP or users aware
of such access to content
o Fact that screening for indecent content or viruses does not diminish privacy
expectation of content of e-mails
Could have SCA order and only notice to ISP alone if user waived expectation of privacy
with ISP in TOS or e-mail content directly to ISP
FCC has not yet designated ISP a common carrier
Katz analysis: identifies nature of technology to decide if there is an expectation of privacy
5. US v. Ahrndt (9th Cir. 2012)
Child porn shared on iTunes. Police connected to As network, accessed his shared library
and opened the files in the same manner that triggered the original law enforcement
complaint.
40

Court here applies reasonable expectation of privacy test subjective expectation of

individual that society prepared to recognize as reasonable
iTunes is capable of detecting files that were shared by other programs on As computer like
Limewire
Insufficient evidence that A took affirmative actions to enable sharing in this manner and no
evidence that he installed iTunes
Court remands the case and wants lower court to answer if:
o Ahrndt intentionally shared files what was his expectation of privacy
o Did Arndt install iTunes (agree to their terms of service)?
o Is sharing files over wireless network broadcast of those files contents? Or were
wireless signals sent into As home to communicate with his router/computer?
o Ultimately the lower court excludes evidence because they find A had an expectation of
privacy
Non-Content Data
PEN/TRAP: non-content related surveillance
Foreign Intelligence Surveillance Act: tasks FISC to adjudicate question of 4 th Amendment and
National security
3 hopper rule: NSA as long as have target could search up to 3 rd removed communication
NSA telephone surveillance and PRISM program struck down as unconstitutional
1. ACLU v. Clapper (2nd Cir. 2015)
Patriot Act: reasonable grounds to believe relevant to ongoing investigation
o FBI application must include a statement of facts showing that there are reasonable
grounds to believe that the tangible things sought are relevant to an authorized
investigation . . . to obtain foreign intelligence information not concerning a United States
person or to protect against international terrorism or clandestine intelligence activities
o Acts sunset provision took effect in 2014
Meta data: non-content data
4th Amendment: refers to real, chattel property, protects against unreasonable searches and
seizures
o government must get warrant that particularizes material
2. Smith v. Maryland (US 1979)
Victim was robbed and received threatening calls, and got the license plate number of a
suspicious car. The police ran license and got a pen register installed at the telephone company to
record the numbers dialed from the telephone at the car owners home. One of the calls was
dialed to the victim. On this evidence and others police got a search warrant where they found a
telephone book turned to the victims number.
Pen register does not record sound so cant determine if an actual communication existed
o Only search if he has legitimate expectation of privacy on numbers he dialed on the
phone
- People dont generally have actual privacy expectation for phone numbers
- PEN registers are used regularly by the company to conduct business, check for
defective dial or check for overbilling
- Most people oblivious to PEN particularly but have some awareness of its
common use which is to aid in identifying people making annoying/harassing
calls usually info found in Consumer information section of phone books
Doesnt matter that he dialed the numbers in his house, that only shows he meant to keep contents
of his call private not as the numbers he dialed
Court has held before that person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties
o Miller: bank depositor has no legitimate expectation of privacy in financial info
voluntarily conveyed to banks and exposed to employees in ordinary course of business
- Depositor assumed risk of disclosure to the government by the intermediary
41

3. Electronic Communications Privacy Act (1986): Title III (USA Patriot Act)
o 3121: Imposes prohibition on use of PEN, Trap & Trace device without obtaining court
order
o 3123(a) Could be available to federal and state prosecutors on showing that info likely
to be obtained by such installation and use is relevant to an ongoing criminal
investigation
(b) Specificity requirement in the order
(c) 60 day limit on use of pen register/trap and trace device, can get extension for another
60
o 1327(3) Pen register: device or processonline or electronic communication that does
not include content
- doesnt include device or process needed for billing or incidental to operation of
business
o 1327(4) Trap & Trace: capturing incoming electronic impulses identifying originating
number, or other dialing, routing, addressing and signaling info reasonably likely to
identify the source of a wire or electronic communication.shall not include contents of
communication (substance, purport or meaning)
o In emergencies can use pen/trap as long as acquire order within 48 hours
In SCA: government can receive basic subscriber information: users name, address, length of
service, types of service, telephone number, temporary IP address, payment info. Local and long
distance telephone records or records of session times and durations
o Can also receive any other info pertaining to subscriber no including contents if provider
given warrant or order
United States v. US DC ED of Michigan (US 1972): President lacks power to engaged in
warrantless electronic surveillance against a purely domestic group alleged to threaten national
security. Standards different from those of conventional search warrants
Foreign Intelligence Surveillance Act (1978): requires government officials who wish to use
electronic surveillance to gather foreign intelligence information regarding foreign power/agent
to present a request to a special court, FISC.
AGS adopted guidelines to limit information sharing between counterintelligence and criminal
investigators/prosecutors in FBI and Justice Department- want to make clear primary objective
was foreign intelligence information
USA PATRIOT Act: amended FISA to only require a significant purpose of surveillance was to
obtain foreign intelligence info
Terrorist Surveillance Program: can acquire communications occurring in US but targeting
persons outside US 2008 Congress amended FISA that require request for surveilling non-US
targets to be submitted to FISC but with less specificity in application & immunity for service
providers from civil liability for doing so.
Data mining: Collection sources and algorithms used to create data sets are generally proprietary
can be bought/sold
4. US v. Miller (US 1976)
Fed brought two subpoenas to banks where Miller had accounts to produce his records (checks,
deposit slips, financial statements, monthly statements) which were maintained by banks in
compliance with Bank Secrecy Act. Banks did not give notice to Miller.
Documents in this case were not Millers private papers:
o Banks are not neutrals in transactions involving these instruments but parties to them
with substantial stake in their continued availability and acceptance bank itself party
o Need to examine nature of documents to determine if they was a legitimate expectation of
privacy concerning their contents
- Checks negotiable instruments in commercial transactions
- All other info conveyed only contain voluntary information given to banks and
exposed to their employees in ordinary course of business
42

Depositor takes risk that in revealing affairs to another that information will be
given to the government
5. US v. Jones (US 2012)
A GPS tracking device was put on a car registered to Jones wife and the agents obtained warrant
prior but installed the GPS a day after warrant expired. Used it to track car for 28 days. District
Court suppressed data collected when car was at Jones house but allowed evidence obtained
when car on public streets.
Held: Governments attachment of GPS and use of the device constitutes a search under 4 th
Amendment
Court found that the Katz reasonable expectation of privacy test was added onto but not
substituted the common law trespassory test
Government physically occupied a private property for purpose of obtaining information search
4th Amendment text re: in their persons, houses, papers and effects emphasize 4 th Amendment
connection to property
18th century guarantee against unreasonable searches provides at a minimum the degree of
protection it afforded when adopted
Transmissions involving merely transmission of electronic signals without trespass would remain
subject to Katz
Visual observation does not constitute search so person travelling on public streets has no
reasonable expectation of privacy in movements
Concurrence introduces novelty of short-term vs. long-term monitoring
Concurring: 4th Amendment protects non-content data
o Sotomayor invokes mosaic theory: can get sense of person by piecing together bits of
information about a person
o Physical intrusion now unnecessary to many forms of surveillance
o Technology shapes the societal privacy expectations prong of the Katz test
o Awareness that government is watching chills associational and expressive freedoms
o Attributes of GPS monitoring should be taken into account when considering reasonable
societal expectation of privacy in sum of ones public movements would enable
government to ascertain political and religious beliefs, sexual habits etc.
o Might not be appropriate to allow executive branch w/o oversight to control such a
surveillance tool
o Questions third-party doctrine in digital age all information voluntarily disclosed to
some member of public for limited purpose is not disentitled to 4 th Amendment protection
o Alito: disagrees with trespass approach and should use reasonable expectation of privacy
approach
o Disconnect b/c if attach GPS for short period of time, then a search but if follow a car
physically on public streets for a long period of time not a search
o If based on common law trespass then varies from state to state
o Legislature best suited to gauge changing public attitudes, draw detailed lines and
balance privacy and public safety in comprehensive way
o Short term monitoring is expected but not longer term monitoring in most investigations
Congress is best at knowing what is an objective expectation of privacy
6. US v. Davis (11th Cir. 2015)
Court order issued authorizing under SCA the production of MetroPCS telephone business
records showing historical cell tower location information. This information was used to
coordinate with Davis phone records showing that he was within the scene of the crime for most
of the robberies he was accused of.
Government court orders were historical and tailored to crimes under investigation
Did not seek to obtain any GPS or real time information or content of calls
Historical cellphone location data vs. real-time data
o Not sort of information that requires warrant
-

43

v.

o No proprietary interest on part of defendant/consumers in that data

Metro PCS: stores location data on its own but is not statutorily mandated
o Were telephone companys own records of transactions to which it is a party (business
records definition of 5th Cir)
o Does not belong to Davis even though it concerns him
No subjective expectation of privacy b/c user knows that must connect to cell tower nearby to
make call and info is not recorded unless user makes/receives call knows conveying location
information
o Third-party doctrine controls
Congress has crafter a legislative solution to balancing privacy vs. public safety, adapting to
technology through the SCA
Up to legislature to change policy if dont want third parties to keep these records or disclose
them
Jones leaves third party doctrine untouched
Judicial system does not engage in monitoring or search when it compels the production of
preexisting documents from a witness
Reasonableness of search or seizure evaluated by assessing degree on which it intrudes on
individuals privacy and degree to which it is needed for promotion of legitimate government
interest
o Compelling interest to apprehend/prevent criminals from committing future offenses and
exonerating innocent suspects
o Strong presumption of constitutionality because authorized by statute

Information Inequalities
1. Network Equality
Gender inequality i.e. nonconsensual porn
Electioneering
Online search
Supreme Court has expanded speech to access to info as well
47 USC 151: FCC required that wire and radio communication is available to all people in US
without discrimination
o FCC is created [f]or the purpose of regulating interstate and foreign commerce in
communication by wire and radio so as to make available, so far as possible, to all the
people of the United States, without discrimination on the basis of race, color, religion,
national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio
communication service with adequate facilities at reasonable charges

B. Private Ordering
i. Non-Consensual Porn & Online Moderation
1. Reddit Privacy Statement: Digital privacy: narrow definition to images showing sexual
conduct/nudity as protected under users rights to privacy will remove when notified
2. Google Public Policy: Narrow policy restricting revenge porn
Recognizes that revenge porn predominately affects women
Images of nude or sexually explicit images without persons permission

ii.

Social Media Electioneering

1. Facebook voting app increased voting behavior in users
o Does not provide social behavioral information in study to public

iii.

Privacy Torts & Algorithmic Prediction

1. Restatement (Second) Torts, 652
2. Prossers Privacy Law (2010)
Four torts
44

1) Intrusion on seclusion
2) Public disclosure
3) False light
4) Misappropriation of name/likeness
Criticism of Prosser tort of privacy:
o Blurred line between private and public in modern society
o Courts antiquated idea of tort harm
o Better understanding needed between free speech and tort based privacy remedies
o Court weeds to recognize new duties and sources of tort law
3. In re Doubleclick Privacy Litigation (SDNY 2001)
Electronic Communications Privacy Act and Wiretap Act
Doubleclick leads users to websites that place cookies on users computers and shares
information with affiliated sites.
o GET info: query string
o POST info: voluntary info inputted by user
o GIF info: how user views affiliated web site
Individual users claim violation of Title II of ECPA: cookies put on hard drive is an intrusion
of privacy without user consent
2701(a)(1) Intentionally accessingwithout authorization
(a)(2) Intentionally exceeding beyond authorization given
o And thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such system
shall be punished as provided in subsection (b) of this section
2701(c)(2) Exception with respect to conduct afterward by a user of that service with
respect to a communication of or intended for that user
o Defendants claim affiliated web sites are users therefore fall under exceptions
o Plaintiffs say websites are not active
Court held that Doubleclick affiliate sites are users and sites have given sufficient
authorization to Doubleclick to access plaintiffs communications to those sites
o 2510(13): Definition of user: any person or entity
o 2510(17): Electronic storage: (A) any termporary or intermediate storage of a wire
or electronic communication incidental to electronic transmission and (B) any
storage of such communication by an electronic communication service for purposes
of back up protection
o permanent cookies so not within the meaning of the statutes
Lay users have voluntarily provided information:
o Constructively allowed affiliated third parties to gain access to this information
Wiretap claim rejected because only unlawful if committing tortious act
o 18 USC 2511(2)(d): not unlawful for a person not acting under color of law to
intercept a wire, oral or electronic communication where such person is party to
communication where one of the parties has given prior consent to interception
unlesspurpose is for any criminal or tortious act in violation of the Constitution or
laws of the US or any State
4. Laws passed in CA creating a new kind of tort against revenge porn

iv.

Privacy & Commercial Surveillance

1. Sectorial approach to privacy: no standardized privacy law/regulation, different sectors implement
their own regulations
2. Jaffe v. Google (9th Cir. 2013): Google collected images for street view and basic information of
unprotected WiFi networks it passed (netork name, unique number assigned to router, signal strength
and if network encrypted), and also gathered and stored payload data (personal e-mails, usernames,
passwords, video and docs) if Wi-Fi unencrypted.
o Plaintiffs who had info taken claims violation of the Wiretap Act
45

Held: Pay load data transmitted over a WiFi network is not a radio communication therefore it
does not qualify for exemption under the Wiretap Act
Wiretap Act: liability on person who intentionally intercepts any wire, oral or electronic
communications
o Two exemptions:
2511(2)(g)(i): Exempts Intercepting electronic communication made through
an electronic communication system if it is configured so that it is readily
accessible to general public
2510(12): Electronic communication includes communication by radio
2510(16(A): Readily accessible to general public means with respect to radio
communication
2511(2)(g)(ii): Exempts intercepting radio communications by any station for
use of general public by certain governmental communication systems readily
accessible to general public, etc.
Preface to definitions in 18 USC 2510 is as used in this chapter which directs that they apply
to entire statute
o 2511(2)(g)(i): readily accessible to public means in relation to radio communications
according to definition
o Cant say it applies to exemption (ii) and not exemption (i)
Even though renders (ii) superfluous, Congress sometimes drafts provisions that are duplicative
of others to make sure
If Wifi considered a radio communication then qualifies for exemption
Statute doesnt define radio communication so given ordinary meaning:
o Googles technical meaning of radio communications is not the same as common
understanding when Congress enacted the Act
o Congress specifically separated out satellite video communication even though under
Googles definition (transmitted on radio frequency) would make it a radio
communication
o Act defines other communications but not radio communications which means that it
wanted to give it an ordinary meaning

C. Mixed Regimes
i. Online Search
1. Search King v. Google (WD Ok 2003)
Google internet search engine is controlled by an algorithm which produces a PageRank which
shows the significance of the result to the search query. Highly ranked sites can charge a
premium for ad space. Search King acts as middleman charging clients fee for locating highlyranked web sites who are looking for advertisers. PageRank lowered Search Kings score and
they sued for tortioius interference with contractual relations, claiming Google lowered rank b/c
had a competing business.
First Amendment protection to PageRank used as a defense by Google.
Jefferson County (10th Cir 199): a statement of opinion relating to matters of public concern
which does not contain a provably false factual connotation will receive full constitutional
protection
o Even when speaker or writer is motivated by hatred or ill will his expression is protected
by the 1st Amendment
Search King argues that Lawrence Page of Google holds patent to the PageRank system and ideas
are not patentable and other occasions the system has been described by Google as objective,
mechanical.
Held: PageRank is a constitutionally protected opinion and is a publication which is per se lawful
under OK law precluding tort liability based on intentional/malicious manipulation of Page Rank.
Process involving the application of the PageRank algorithm is objective but result which is the
numerical representation of the relative significance of website is subjective.
46

Every algorithm is different between search engines and what is in dispute is the subjective result
of Page Rank
Googles statements on objectivity cannot turn subjective representations into objective verifiable
fact
Court finds PageRanks relate to matters of public concern and does not contain provably false
connotations no way to prove ranks are false
Constitutionally protected speech cannot be consider unlawful so cant be basis for tort claim
Google makes the results subjective by changing the algorithm inputs
o Algorithm is objective but result of algorithm of how to implement is subjective
Eric Schmidt, Exec. Chairman, Google: Googles search results are ultimately a scientific
opinion as to what information users will find most useful. Our scientific process is designed to
provide the answers that consumers will find most useful.
2. Jian Zhang v. Baidu (SDNY 2014)
NY residents sue Baidu contending that the search engine unlawfully blocks search results in US
about the Democracy movement in China.
Baidu is response uses Free Speech as a defense against imposition of requirement that Baidu
carry certain websites - search results are constitutionally protected
Baidu has more than 70% share of the Chinese language market
Miami Herald Publishing: Held that Florida statute requiring newspapers to provide political
candidates with a right of reply to editorials critical of them violated First Amendment
o Imposed impermissible content-based burden on newspaper speech
o Right to exercise editorial control and judgment
Hurley v. Irish_American GLB (US 1995): Mass cant require private citizens who organize
parade to include among marchers a group imparting message the organizers dont want to
convey
o First Amendment: one who chooses to speak may also decide what not to say
o Speaker has autonomy to choose content of his own message
o Private speaker doesnt forfeit right by combining various voices or failing to edit to
exclusive matter of subject nor requires speaker to generate each item in communication
originally
Government may not interfere with editorial judgments of private speakers on issues of public
concern
Rule not restricted to press
1st Amendment protections apply whether or not speaker articulates or even has a coherent or
precise message and whether or not he generated underlying content in first place
Search engines editorial judgments is much like other editorial judgments i.e. newspapers
o Fact that search engines often communicate facts not opinions doesnt alter analysis
o Algorithms are written by people and inherently incorporate the search engine companys
engineers judgments about what material users are most likely to find responsive to
queries
Held: Baidus censorship was a content-based decision that requires protection by 1 st Amendment
subject to strict scrutiny
Baidu is not merely infrastructure or platform (like cable companies in Turner) that delivers
content in neutral way b/c it censors certain info
Unlike the cable companies in Turner therefore intermediate scrutiny does not apply b/c:
o Baidu more than passive receptacle
o Search engine operators lack physical power to silence anyones voices no matter their
market share
o Regulations are not content-neutral defendants want government to tell Baidu what
content to include
First Amendment protections extend to private suits for money damages based on the content of
speech
47

ii.

Commercial speech: expression related solely to the economic interests of the speaker and its
audience
o Search results in this case relate to matters of public concern
o Fact that Baidu has profit motive doesnt deprive it of right to free speech any more than
it does to newspapers
Texas v. Johnson: Bedrock principle of 1st Amendment is the government may not prohibit the
expression of idea simply because society finds it offensive or disagreeable

CDA Immunity
1. Cubby v. Compuserve (SDNY 1991)
Subscribers to CompusServe Information Service pay a membership fee and online time usage
fee and gain access to special interest forums. Journalism Forum features Rumorville USA which
is a daily newsletter that provides reports about journalists published by DFA. Compuserve
doesnt review contents and receives no part of fees DFA charges or pay DFA to provide the
newsletter.
Plaintiffs created Skuttlebut which was a Rumorville competitor and R wrote bad things about
them. Ps sued both DFA and Compuserve for libel under NY law for false and defamatory
remarks. Compuserve moves to dismiss.
Held: Compuserve not liable b/c no evidence that they knew/reasonably knew of remarks and
acted like distributor
Compuserve makes DFA available automatically and has no more editorial control then a public
library, book store or newsstand and is not feasible for it to examine every publication it carries as
distributor
Computerized database is like a more traditional news vendor and if treated as otherwise then
would be undue burden on free flow of information
Appropriate standard of liability for Compuserve: if they knew or had reason to know of the
allegedly defamatory Rumorville statements
o Plaintiff did not set forth any specific facts showing there is issue of whether C knew/had
reason to know
2. Stratton Oakmont v. Prodigy (NY Sup. Ct. 1995)
Prodigy had computer bulletin board called Money Talks that posted statements alleging SO
and president criminal and fraudulent acts. Prodigy contracts with board leaders who participate
in board discussions and use promotional efforts to encourage usage/increase users.
o Prodigy executives made statements holding itself out as online service that had editorial
control over content of messages posted more like newspaper
o Content guidelines created requesting refrain from posting insulting, harassing etc. notes
which will be removed if brought to Prodigys attention
o Used software screening program for offensive language, used Board Leaders for
enforcement of guidelines and had emergency delete buttons they could use
Held: Prodigy is a publisher not a distributor and could be found to be held liable for the
libel claim against it.
Publisher (editorial control and liable) vs. Distributor (passive conduit and not liable unless
aware of defamatory content)
Different from Cubby b/c: 1) Prodigy held itself out to public and members as controlling
content of its computer bulletin boards 2) Prodigy implemented control through automatic
software screening program and Guidelines which Board Leaders are requested to enforce
3. Communications Decency Act (47 USC 230)
230(a): Congressional findings:
o services offer users a great deal of control over the info that they receive
o Internet and other interactive computer services flourished to benefit of all Americans
with minimal government regulation
48

230(b): Policy of US:

o promote the continued development of Internet
o preserve the vibrant and competitive free market
o encourage the development of tech which maximize user control
o remove disincentives for development and utilization of blocking and filtering
technologies
o ensure vigorous enforcement of Federal criminal laws to deter/punish trafficking in
obscenity, stalking, harrassment
230(C): Protection for Good Samaritan blocking and screening of offensive material
(1) No provider/user of Interactive computer service will be treated as publisher or speaker
of any information provided by another information content provider
(2) Good Samaritan provision: no provider or user of an interactive computer service shall
be held liable on account of
o (A) any action voluntarily taken in good faith to restrict access to or availability of
material that the provider or user considers to be . . . objectionable . . . or
o (B) any action taken to enable or make available to information content providers or
others the technical means to restrict access to material described in paragraph (1).
230(e): Nothing in provision affects application of criminal, IP law, state law not
inconsistent with provision, communications privacy law
230(f): Definitions of (2) Interactive Computer Service and (3) Information Content
Provider: responsible in whole/part for creation or development of information provided
through the Internet
Objectives of CDA: ensuring vibrant communication environment and incentivize selfregulation
o Findings that internet flourished with minimal regulation and want to continue not
interfering with self-regulation
o Legislative history show that sponsors sought to overturn result in Stratton Oakmont
4. Zeran v. AOL (4th Cir. 1997)
OKC bombing shirts advertised on AOL bulletin board but fraudulently implicated Zeran as
the person behind it. Z called AOL employee who said they would remove it but against
policy to post retraction. Prankster did it again, AOL said it would deactivate the account but
not before the local radio station urged public to harass Z.
Held: AOL not liable because 230 provides immunity for computer service providers for
information that originates from third parties
Purpose behind immunity is to prevent chilling effect threats of tort-based law suits posed
to freedom of speech in new Internet medium and a form of intrusive government regulation
of speech
o Want to keep intrusion from medium to minimum
o Policy choice not to deter harmful online speech through importing liability on
company intermediaries
o Impossible for service providers to screen each of their millions of postings for
possible problems
230 enacted by Congress to remove disincentives created by Stratton Oakmont decision to
not regulate offensive materials on their services
o forbids imposition of publisher liability on service provider for the exercise of its
editorial and self-regulatory functions
Distributor liability is a subset or a species of publisher liability and therefore also foreclosed
by 230
Negligent communication of defamatory statement and failure to remove statement both
constitute publication
o Distributors are considered to be publishers for purposes of defamation law
intentionally make contents available to others
49

Liability as distributors upon notice would reinforce service providers incentives to

restrict speech and abstain from self-regulation
- Sheer number of postings online would make this an impossible burden
- SPs could just remove postings upon notification to avoid liability w/o
assessing first would have chilling effect
Court will not assume that Congress intended to leave distributor liability upon notice intact
b/c of probable effects on Internet speech and self0regulation are contrary to 230 purpose
o

5. Blumenthal v. Drudge (DDC 1998)

Drudge had license agreement with AOL where D would create, edit, update and manage
content of Drudge Report and AOL able to remove content it reasonably determined to
violate AOLs TOS. D would e-mail new Report to AOL then AOL would post new editions
on AOL service. D sent post to AOL accusing Blumenthal of abusing his wife AOL posted.
Then D posted retraction after receiving notice from Bs attorney and AOL posted that too.
Held: AOL is immune from liability because it is clear under 230 that Congress intended it
to be so (even though it doesnt deserve it)
Plaintiffs provide no factual support that AOL had some role in writing or editing material in
Report
If no CDA then Court would agree with plaintiff:
o AOL had editorial rights over Ds content including right to change/remove it and
affirmatively promoted D as new source of gossip on AOL, paid D a salary
o AOL is not a passive conduit like a telephone service
o Congress made different policy choice
Through CDA, immunity given to service providers even when SP has active even aggressive
role in making available content prepared by others
Found better to have ISP Self-police the Internet for obscenity and other offensive material
Congress made no distinction between publishers and distributors in liability immunity
6. Batzel v. Smith (9th Cir. 2003)
Factfinding remanded to lower court to figure out if tipster intended e-mail to be published
Held: If third party or entity that created/developed information furnished it to the
provider/user under circumstances where reasonable person in position or service
provider/user would conclude that info was provided for publication then immune from
liability under 230(c)(1)
o If Smith provided e-mail then website immune
Congressional purpose behind 230(c)(1) to determine whether anothers information was
provided to provider or user of an interactive computer service for publication
o Want to avoid chilling effect
o Focus on service providers or users reasonable perception of information providers
intentions or knowledge
7. Anthony v. Yahoo (ND Cal 2006)
Yahoo did generate contact by having employees create false profiles in Yahoo personals
8. Chicago Lawyers Committee for Civil Rights Under Law v. Craigslist (7th Cir. 2008)
Lawyers Committee for Civil Rights sues Craigslist for violating Fair Housing Act for
discriminatory posts by third parties
Fair Housing Act: unlawful to make, print or publish discriminatory preference for housing
Held: Craigslist is immune under 230 because it is a passive conduit for user generated
content
Courts regularly enforce this provisions against newspapers and other publishers
Would be expensive and futile for online service to hire and vet postings every month more
than 300 million posts go on Craigslist
50

Committee argues that unless Information Content provider uses some form of filtering that
all of 230(c) is irrelevant (safe harbor)
230(c)(1) says information content system cant be liable as publisher but only as publisher
can C be liable under the Fair Housing Act
o Not author of the ads and cant be treated as the speaker of the posts
C also does not play a causal role in the discriminatory content as required by the Fair
Housing Act
o C provides forum but nothing in its service induces anyone to post any particular
listing or express a preference for discrimination
o Plays passive conduit role
Lawyers have other ways and can hold other people accountable for housing discrimination
of Craigslist
9. Fair Housing Council of San Fernando Valley v. Roommates.com (9th Cir. 2008)
Roomates.com required user of website to register personal information (sex, sexual
orientation, children) to create profile and also cite preferences of same criteria before they
could use site, use drop down menus. Also allows users to fill out Additional Comments.
Based on profile, certain selective listings would be e-mailed to users or pop up in their
search. Fair Housing Council says this violates Fair Housing Act and CA anti-discrimination
laws.
Grant of immunity in 230(c) applies only if the interactive computer service is not also
information content provider
o Website operator can be both service provider and content provider may be immune
from liability for some of the content it displays but subject to liability for other
o Fact that users are information content providers doesnt preclude Roommate from
also being an information content provider by helping develop at least in part the
information in the profiles (definition of info content provider in CDA, Batzel v.
Smith)
o SP is a developer if materially contributes to the contents alleged unlawfulness
CDA passed in response to Stratton Congress sought to immunize removal of user
generated content not the creation of content
Enabled illegal conduct discrimination would not occur but for Roommates.com
architecture
o If such questions are unlawful when posed face to face or by telephone they dont
become lawful when asked electronically online and CDA was not meant to
Profiles are collaborative effort b/twn Roommates and user
Roommate also not entitled to CDA immunity for operation of search system which is based
on discriminatory criteria
o If housing website allowed users to specify whether they will or will not receive emails by means of user-defined criteria then website would be immune as long as
doesnt require that criteria
Roommate not liable for Additional Comments section doesnt provide any guidance in this
section, passively displayed by Roommates
Approach consistent with policy of 230: preserve free-flowing nature of Internet speech and
commerce without unduly prejudicing the enforcement of other important state and federal
laws
Dissent: Expansion of Internet SPs liability creates chilling effect
o Majority of websites use sorting, searching and drop-down menus
o CDA intended to make things that would be illegal in real life, legal on the Internet
o Doesnt give SPs bright lines on when they would be liable
o Congress should decide if 230 trumps the Fair Housing Act not Court
o Roommate just provides a form with options for standardized answers- user provides
information
51

iii.

CDA does not withhold immunity for the encouragement or solicitation of

information (Blumenthal)

Section 230 Immunity (Non-Consensual Porn)

1. Barnes v. Yahoo (9th Cir. 2009)
Barnes ex-boyfriend posted nude photos of her that she did not know about and posing as her
online solicited strangers for sex. B was harassed and she complained to Yahoo to take it
down. Yahoo said it would but never did. Then day before a local news program was to air
her story, Yahoo Director of Communications said she would personally take care of it.
Never did. Then two months later when Barnes filed lawsuit the profiles were taken down.
Two claims: tort for negligence of service that caused/worsened harm and violation of
contract claim that Yahoo promised to act and Barnes relied on that promise to her detriment
If the claims require that Yahoo be treated as a publisher or speaker then Yahoo immune
under CDA
o Dictionary definition of publisher: reproducer of work intended for public
consumption, one whose business is publishing
Restatement (Second) Torts 323: One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary for the protection of the
other's person or things, is subject to liability to the other for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking, if
o His failure to exercise such care increases the risk of such harm, or
o The harm is suffered because of the other's reliance upon the undertaking.
Tort of negligence: Removing content is action of publisher (editorial decision) therefore
immune under 230 in CDA
o Really a defamation claim that is dressed as a negligence tort
Statutes plain meaning is controlling not legislative intent behind policy
o 230(c)(1): shields from liability all publication decisions whether to edit, remove or
to post content made by 3rd parties
o 230(c)(2): for any interactive computer service that is not covered by (1) i.e. b/c
developed content, then can be immune if act to restrict access to the content b/c they
consider it obscene or otherwise objectionable
Restatement Contracts 90: promissory estoppel claim upheld
o Duty apart from publication action Barnes seeks to hold Yahoo liable as a counterparty to contract
o Difference between undertaking (in tort) and promising (in contract)
230 doesnt create general blanket immunity only immunity against publishing claims
2. Jones v. Dirty World (6th Cir. 2014)
Dirty World allows users to anonymously upload comments, photos, videos which Richie
selects and publishes along with his own distinct editorial comments. Comments on anyone,
non-public figures. Jones brought claim for defamation, libel per se, false light, intentional
infliction of emotional distress.
Held: Under CDA Richie and Dirty World were not creators or developers of content that
was published on website
Richie or staff selects and edits 200 submissions a day, only deletes portions (obscenity,
nudity, racial slurs etc.) then Richie adds one lien comment.
Does not materially change, create or modify any part of user generated submission or factcheck submissions for accuracy
230 immunity has been understood to merit expansion courts construe broadly (prevent
death of 1,000 duck bites)
230 immunity only applies to extent that ISP is not also information content provider of
content at issue
52

Is Richie/Dirty World a developer of content under 230(f)(3)?

o District court uses encouragement test: website owner who intentionally encourages
illegal or actionable third party postings to which he adds his own comments
ratifying or adopting the posts becomes creator or developer of content not entitled to
immunity
o Court adopts Roommates material contribution test: development refers not merely
to augmenting content generally but to materially contribute to its alleged
unlawfulness
o Encouragement test inflates the meaning of development to point of eclipsing
immunity from publisher-liability that Congress established in 230
o Material contribution easier to determine then encouragement
o Also rejects ratification/adoption theory
Policy of CDA
o Maintains robust nature of internet/keeps government interference to medium to
minimum
o Protect against hecklers veto: dont want to put burden on edge handlers
o Encourages ISP self-regulation
Note: Different types of speech has different level of protection under 1 st Amendment
o At heart of protection is interest in preserving political debate
o Public regarding speech as most protection
3. GoDaddy.com v. Hollie Toups (Texas ND 2014)
Claim against GoDaddy that it was aware that it hosted websites with revenge porn and failed
to remove those sites. P say claims are not precluded by CDA b/c their state law intentional
tort causes of action stem from GoDaddys knowledge of illegal content and refusal to
remove and also content was unlawful and not entitled to 1 st Amendment protection.
Undisputed that GoDaddy acted only as a hosting company and did not create or develop 3 rd
party content on websites
Court sees plaintiffs claims as actually defamation claims restated as negligence claims not
allowed under Barnes
o All claims stem from GoDaddys publication of the content, its failure to remove or
its violation of Texas Penal Code for the same content
o Clearly falls under 230
Plaintiffs cant circumvent CDA by couching their claims as state law intentional torts
No provision in CDA that limits its application to suits involving constitutionally protected
material.
Policy provisions support a broad application of the provisions without regard to the nature of
the content at issue
o Plain language of statute: nothing in 230 shall be construed to impair enforcement
of 223 or 231 which relates to obscenity or 110 relating to sexual exploitation of
children
- Clear that the statute contemplates the immunity being applied to such
obscene or pornographic content
o Bates: 230 does not provide that an intentional violation of criminal law should be
an exception to the immunity from civil liability given to ISPs
4. Jane Doe No. 14 v. Internet Brands (9th Cir. 2014)
Jane Doe went on Model Mayhem and posted information about herself on website. Two
rapists used the website to lure her to a fake audition where they drugged her, raped her and
recorded her for a porn. Jane filed action against Internet Brands that owns MM for
negligence based on a failure to warn. Internet Brands bought MM from the original
developers and after purchase learned that the rapists were using the website for this purpose
and sued the developers for failing to disclose the potential for civil suits.
Held: CDA does not bar the duty to warn claim b/c doesnt depend on treating Internet
Brands as a publisher
53

iv.

Duty to warn claim:

o Tarasoff: CA imposes a duty to warn when person has a special relationship to either
the person whose conduct needs to be controlled or to the foreseeable victim of that
conduct
Jane Doess claim doesnt seek to hold Internet Brands as a publisher or speaker of the
rapists content or failure to remove content
Posting or e-mailing a warning might be considered content, but CDA 230 only immunizes
website from 3rd person content not its own content
Imposing tort liability on Internet Brands as a interactive computer service could have a
marginal chilling effect b/c would make operating website marginally more expensive but
broad policy argument does not justify baring failure to warn claim
o CDA is not an all purpose get out of jail free card
Remedy: obligation of site to alert users and monetary damages

News Reporting & Public Matter Speech

1. NY Times v. Sullivan (US 1964)
Sullivan is Commissioner of Montgomery brought civil libel action against NY Times and
Alabama clergyman and won monetary damages in Circuit Court. Full page ad were signed
Committee to Defend MLK and Struggle for Freedom in the South alleging that police were
violent against protestors doesnt mention anyone by name but claim that police refers to
Sullivan b/c he was Commissioner and oversaw police. Ad were not accurate description of
events.
Sullivan claims ad was per se libel because not true, did not show actual damage from ad
Alabama has libel per se law:
o Words tend to injure a persons reputation and bring him into public contempt
o NY Times guilty if found that they published ad and they were of and concerning
the plaintiff
o Legal injury implied from bare fact of publication itself, falsity and malice presumed
o general damages are presumed if per se liable
o punitive damages if actual malice: may be awarded by jury even though amount of
actual damages neither found/shown
NY Times says law abridges freedoms of speech and press guaranteed by 1 st and 14th
Amendments
o Libel: written and published defamation claim
o Slander: spoken defamation claim
Held: If allegedly libelous statements would otherwise be constitutionally protected from
judgment then do not forfeit protection b/c published as paid ad
Ad was not commercial b/c communicated info, expressed opinion, recite grievances,
protested claimed abuses and sought financial support on behalf of movement that has
objective of highest public interest/concern
o Important outlet for info/ideas of those who dont have access to publishing facilities
otherwise
o Purpose of 1st Amendment: national commitment to principle that debate on public
issues should be uninhibited robust and wide open
Libel claim not immune from 1st Amendment protection
o NAACP v. Button: Constitutional protection does not turn on the truth, popularity or
social utility of ideas and beliefs which are offered
54

Court has held for judicial officers that concern for their reputation cant justify
punishment for criticizing judge even if contains half-truths, misinformation same
applies to government officials
Alabama law allows truth as a defense and good motives and belief in truth as mitigating
factors in calculating punitive damages
o Still not allowable under Constitution because of its chilling effect
- Rule compelling critic of official conduct to guarantee truth of all factual
assertions on threat of libel judgments to unlimited amounts will lead to selfcensorship
o Criminal statute for libel requires more proof beyond reasonable doubt but less
punitive amount in damages allowed
If target public official then will uphold speech unless actual malice is proved (knowledge it
was false or reckless disregard of whether it was false or not)
Court does not find actual malice in this case
o Times employees thought ad was substantially correct
- Even though names of the people who endorsed the ad in testimony submitted with
ad say never authorized use of name and Times did not fact-check ad, court says at
best negligence
Also no proof that ad was of and concerning plaintiff
o Plaintiff never mentioned by name or position
o Cant hold prosecutions for libel on government b/c every criticism of government
would then be imputed to all members that make up government
2. Branzburg v. Hayes (US 1972)
Courier Journal had story by Bthat described observations of weed growers that never
revealed their identity. Jefferson County subpoenaed B to reveal identity but he cited his
state reporters privilege, 1st Amendment and Kentucky Constitution which was rejected.
Also refused to identify subjects in his story of drug use.
In re Pappas: Journalist claimed that the 1st Amendment allowed him to not reveal
confidential sources for his story of being embedded with Black Panthers. Court rejected
saying he had now reporters privilege or constitutional privilege to refuse to reveal to grand
jury things he witnessed first hand, including identities.
o Any adverse effect on free dissemination of news by virtue of reporter being called to
testify at court or grand jury was indirect theoretical and uncertain
United States v. Caldwell: Court held that every person in jurisdiction of court is bound to
testify but said 1st Amendment gave reporter privilege to refuse to disclose confidential
information unless there was showing by Government of compelling and overriding national
interest requiring testimony which cant be served by alternative means
Reporters claim should not be forced to appear or testify before grand jury or trial unless
sufficient grounds shown that relevant to a crime that is being investigated, info unavailable
from other sources and sufficiently compelling need to override 1 st Amendment
Prevailing view: press is not free to publish everything and anything it wants to
o 1st Amendment doesnt guarantee press right of special access to info not available to
public generally
1st Amendment protection claim: would chill speech if privilege not given
o Court holds that this claim is too speculative
o Evidence fails to demonstrate that there would be significant burden on flow of news
to public if forced to reveal info/sources
o Grand juries secret proceedings, law enforcement know how to handle informers
o Informants never had protection and journalism still flourished
Compelling state interest in protecting against criminal activity
o Controls and restrictions on speech never created exceptions for journalists
o 1st Amendment interest is outweighed by general obligation of citizen to appear
before grand jury or trial pursuant to subpoena and give info
55
o

Protection of informants who participated in criminal conduct is not deserving of

constitutional protection
Freedom of press is not confined to newspapers and periodicals but is a personal right any
author can assert that he is contributing to flow of info to public and then claim reporters
privilege
Official harassment of press undertaken not for purposes of law enforcement but to disrupt
reporters relationship with news sources have no justification recognizing news gathering
1st Amendment protection
States are free to recognize reporters privilege whether qualified or absolute
Dissent: Court has recognized right to publish w/o prior government approval, right to
distribute info, right to receive printed matter
o News cant be cut off at source b/c without freedom to acquire info the right to
publish is compromised
o Right to newsgather implies right to confidential source
o Danger of self-censorship cant be proved by scientific precision
(1) rational connection between cause/effect and (2) would effect occur with some
regularity, would not be de minimis?
o Must have probable cause and alternative means reuqirements
3. Snyder v. Phelps (US 2011)
Westboro protestors are in public space and obtain license from city to protest the funeral of a
military vet, against the militarys acceptance of homosexuals.
Snyder alleges right to privacy claims and intrusion upon seclusion, civil conspiracy, IIED
This type of speech was at the core of 1st Amendment protection of speech:
o Public regarding speech on public property
- Matter of public import
- Signs were designed to reach as broad an audience as possible
- Spoke to broader public issues
- Displays on public land next to public street
- Westboro has history of this type of speech and views
o Whether public or private concern determined by all the circumstances
-public: be fairly considered as relating to any matter of political, social or other
concerns of the community, subject of legitimate news interest (subject to general
interest and value and concern of public)
-private: Dun: individuals credit report not public interest sent only to 5
subscribers who were bound not to further disseminate
Harm has to be alleged Snyder claims harm to him and his family
Captive audience doctrine: Constitution doesnt allow government to decide which types of
otherwise protected speech are sufficiently offensive to viewer rather burden normally falls
on view to avert his eyes
o Snyder cant recover under civil claims for torts of IIED or intrusion on seclusion
Held: 1st Amendment protects this public speech
Dissent: Vicious verbal assault aimed at hurting Snyder family a personal attack
4. Brandeis/Warren: Formulation of privacy: right to be left alone should be clearly defined in tort
Trying to fix the problem of yellow journalism, gossip
5. Google Maps Hypo: Google v. Barig: Court held that there was an absence of harm and no
colorable argument that personally injured. Only trespassing claim survives
o

V. Cybersecurity
A. Public Ordering
i. Hacking & Data Breach
1. John Perry Barlow, Declaration of the Independence of Cyberspace:
56

Governments of the Industrial World, you weary giants of flesh and steel, I come
from Cyberspace, the new home of Mind... You have no sovereignty where we
gather
o Your legal concepts of property, expression, identity, movement, and context do not
apply to us. They are based on matter. There is no matter here
2. Computer Fraud & Abuse Act (18 U.S.C. 1030)
Driven by concern with hacking addressed to national security
1030(a)(2): obtaining information from unauthorized access or that exceed authorized access
and thereby obtains
o information contained in a financial record of a financial institution
o information from any department or agency of the US or
o information from any protected computer
o Protected computer: government and bank computers, affecting interstate or foreign
commerce
(a)(4): knowingly and with intent to defraud (more than exceeding authorization or against
authorization)
o whoever . . . knowingly and with intent to defraud, accesses a protected computer without
authorization, or exceeds authorized access, and by means of such conduct furthers the
intended fraud and obtains anything of value . . . shall be punished as provided in
subsection (c) of this section
(a)(5): prohibitions on viruses
o graduated scheme of mens rea suggests this is a criminal statute
o knowingly causes transmission of virusintentionally causes damage
o intentionally accesses protected computeras result recklessly causes damage or
o intentionally accesses a protected computer.as result causes damage and loss
(e)(6): defines exceeds authorized access:
o to access a computer w/authorization and to use such access to obtain or alter
information in the computer that the accesser is not entitled so to obtain or alter
(g): civil remedy compensatory, injunctive or other equitable relieve
o 2 years statute of limitation
o not for negligent design of software/firmware
3. U.S. v. Morris (2d Cir. 1991)
MIT student conducted research project that released a worm through the internet programmed
to be undetectable replicates quickly and causes damage on government computers. He didnt
anticipate the high rate of reinfection and tried to send an e-mail telling people how to shut down
worm but it was not received because system was broken down by worm.
Computer Fraud and Abuse Act of 1986 (18 USC 1030(A)(5)(A)):
o Punishes anyone who intentionally accesses without authorization a category of
computers known as federal interest computers and damages or prevents authorized use
of info to such computers causing loss of $1,000 or more
Held: CFA Act does not require government demonstrate that D intentionally prevented
authorized use of the computer and thereby caused loss and that there was sufficient evidence that
Morris acted without authorization.
Morris claims that he had no intention to use these other computers and only to exceed authorized
access, not unauthorized access was authorized to used computers on the Internet
Court looks at congressional intent:
o Senate Report: 1030(a)(3) applies when offender is completely outside the government
or where the offenders act of trespass is interdepartmental in nature
o Congress contemplated that individuals with access to some federal interest computers
would be subject to liability
Morris had right to use certain applications but abused that right by using them in way that was
not related to intended function
o

57

Claims not punishable under (a)(5) but only (a)(3)

o (a)(3): computers of a department or agency of the US
o (a)(5): any federal interest computers including those used exclusively by US Morris
claimed only applies to people who have completely no access to federal computers
o If violated (a)(3) then violated (a)(5) because both require a person who accesses without
authorization certain computers
o (a)(5) aimed at outsiders according to senate report, but that doesnt mean its coverage is
limited to them
4. U.S. v. Nosal (9th Cir. 2012)
Nosal quit Korn/Ferry and got employees at Korn/Ferry to copy source lists, names and content
info from confidential database on KFs computer to help start a competing company violating
non-compete/non-disclosure agreement.
Government indicted N under 1030(a)(4) violation for aiding and abetting his former colleagues
to exceed their authorized access with intent to defraud
Held: Nosals accomplices had permission to access the company database and obtain that info
so government does not prove exceeding authorized access under 1030(a)(4).
CFAA defines exceeds authorized access: to access a computer with authorization and use such
access to obtain or alter information in the computer that the accessor is not entitled to obtain or
alter
o Court finds entitled is used as synonym for authorized
Government wants to broaden CFAA from anti-hacking statute to misappropriation statute
o CFAA was enacted by Congress to address the growing problem of computer hacking
o Would expand its scope to criminalize any unauthorized use of information obtained from
a computer
Cant base criminal liability on violations of private computer use policies
o Most people dont know TOSs would commit crimes all the time
o Using Facebook at work would be considered a crime
o Rejects other circuit courts basing liability under CFAA on violations of corporate
computer use restrictions or violations of duty of loyalty
Brekka: plain language of CFAA targets unauthorized procurement or alteration of information
not its misuse and misappropriation
Uses absurdity analysis to narrow scope:
Definition of exceeds authorization needs to be applied to entire statute. Broadest provision
imposes criminal liability for just exceeding authorization without requiring any intent to do
anything
Rule of lenity criminal case so reading statute narrowly
Dissent: person with requisite mens rea and specific intent to defraud can violate provision by
accessing w/o authority or exceeding its authority
o Authorization depends on actions taken by employer
o Does not advance issue if consider parade of horribles
5. AOL v. LCGM (ED Va. 1998)
AOL alleges that the defendants sent spam to AOL customers against AOLs Unsolicited Bulk Email Policy and its Terms of Service. Ds admitted to using AOL account and using AOL collecter
and e-mail pro/stealth mailer extractor programs to collect e-mail addresses of AOL members in
chat rooms. AOL claims that Ds actions injured AOL by taking up capacity on their computers
and damaging AOLs good will with its consumers (lost customers and revenue).
Violated CFA 1030(A)(2)(C) which prohibits intentionally accessing computer without
authorization or exceeding authorized access and obtain info from any protected computer if
involved interstate or foreign communications.
o Using e-mail extraction program and having AOL membership to harvest other members
e-mails was against AOLs TOS therefore was unauthorized under CFA
o AOL claims e-mail addresses were information under meaning of act b/c proprietary in
nature and damage exceeded $5,000 (statutory requirement)
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 Damage found to AOLs reputation, goodwill and use of AOLs resources

6. EF Cultural Travel v. Explorica (1st Cir. 2001)
Former VP of info at EF was Exploricas VP, Gormley that hired Zefer to design a computer
program called the scraper to use Gs knowledge of tour codes used by EF to obtain EFs
pricing information from its website. Scraper then put the pricing info on a spread sheet.
Explorica used this info to systematically undercut EFs prices. EF claimed violation of CFAA.
District Court said was a violation using the reasonable expectations standard: Explorica used
EFs website in a manner outside the reasonable expectations of both EF and its ordinary users.
o Loss was reduced business, harm to its goodwill and cost of diagnostic measures to
evaluate possible harm to EFs systems
o Copyright, contractual and technical restraints on the EF website should have sufficiently
notified Explorica that scraper was unauthorized
- EF had copyright symbol on website page w/ link directing users with questions
to contact the company
- Violated confidentiality agreement between Gormley and EF
- Reasonable person would assume no presumption of open acess
Was unauthorized access based on the confidentiality agreement between Gormley and EF
o Record of two communications between Gormley and Zefer conveying information that
G only knew as former employee
o G was heavily involved in conception of scrapper program
o Spreadsheets include tour codes which EF says is proprietary information codes alone
mean nothing to uninformed reader
o Broad confidentiality agreement that prohibited disclosure of any info which might
reasonably be construed to be contrary to interests of EF
Note: Court of Appeals rejected the reasonable expectations test after Zefer appealed from
preliminary injunction
7. Restatement 217: dispossessing anothers chattel or using/intermeddling with chattel in possession
of another
o 218: subject to liability if dispossess chattel impair, deprived of substantial use, harm
caused by a person or thing
o Examples:
1) Ebay: claimed possessory interest in material through terms of service which
prohibits scrappers
o Notice does a lot of work in trespass of chattel claim
o Early 90s courts didnt know how to handle aggregators so look to traditional
chattel claim
2) Intel: Former Intel employee and spams other Intel employees about questionable
employee practices.
o No breach of security found, no physical damage
o Rejects the trespass to chattel claim but intentional meddling in ITs time
3) Ticketmaster v. Tickets.com: Terms of use that only personal use of the Ticketmaster
website is permitted. Tickets.com extracts facts on Ticketmaster website. Court
rejects trespass to chattel claim because no evidence of harm.
8. EMV, Chip Cards: Remedy by private action resulting from contract
o Banks have interest in securing networks

B. Mixed Regimes
i. Public-Private Cooperation
1. Executive Order: Improving Critical Infrastructure Cybersecurity (2013)
Section 1: Policy:
o The cyber threat to critical infrastructure . . . represents one of the most serious national
security challenges we must confront. The national and economic security of the [US]
depends on the reliable functioning of the Nations critical infrastructure in the face of such
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ii.

threats. It is the policy of the [US] to enhance the security and resilience of the Nations
critical infrastructure and to maintain a cyber environment that encourages efficiency,
innovation, and economic prosperity while promoting safety, security, business
confidentiality, privacy, and civil liberties. We can achieve these goals through a partnership
with the owners and operators of critical infrastructure to improve cybersecurity information
sharing and collaboratively develop and implement risk-based standards
Section 2: Critical Infrastructure:
o As used in this order, the term critical infrastructure means systems and assets, whether
physical or virtual, so vital to the United States that the incapacity or destruction of such
systems and assets would have a debilitating impact on security, national economic security,
national public health or safety, or any combination of those matters

Cyberwarfare
1. The DOD Cyberstrategy (2015)
2. Presidential Policy Directive: US Cyber Operations Policy (2012)

VI.

Global Dimensions
A. Competition
1. European Commission: Objections to Google (2015)
Google shopping preferences its own shopping websites
Google has exclusive rights to make apps for Android phones
Example of Microsoft case: remedy was to making opt-in window for making Microsoft the
default browser for Windows users
2. Trans-Pacific Partnership (2015)
12 countries signed as partners
Agreement over telecommunications, electronic commerce, IP, competition, cooperation and
capacity building and regulatory coherence, transparency and anti-corruption
Telecommunications
o Equal access to government administered communication resources
o Freedom to innovate across telecom technologies
o Keep roaming rates low in bilateral agreements
o Network Access Rules
Electronic Commerce
o Consumer protection
o Limits on force disclosure of software source code
o Openness
o Limits on data localization: Needs to rest in country which residents use service
- Against Balkanization
o Cybersecurity cooperation

B. Freedom & Rights

i. Speech & Privacy
The Right to be Forgotten
1. Google Spain v. Gonzalez (CJEU 2014)
Tension of free flow of information v. privacy
Distinction between core speech (public regarding speech) and other types of speech
EU Data Protection Directive: omnibus vs. secretarial approach
Gonzalez had debt and property seized and Spanish law required notice to be published in
newspaper
Court asks the questions:
1) Was there personal data, processing, dissemination?
2) Scope of privacy interest?
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3) Relationship between Google Spain and Google that justifies the claim against
Google Spain?
EU Directive Preamble: Data processing services is designed to serve man
Article 2: Processing of personal data means: collection, recording organization and storage
2(d): Controller defined: determines the purposes and means of processing of personal data
o EU says Google is making decision of displaying results
4(1)(a): National law applicable: Google on book through Google Spain
o mingling of search operations and advertising ops in Spain
Google has duty to examine merits of each complaint and up to individuals to decide what
information about themselves online is relevant and what isnt
2. Martin v. Hearst (2d Cir. 2015)
Charge against Martin were nolled prosecution didnt decide to pursue charges
CT has Erasure Statute: requires all records of charges will be erased
Martin claimed b/c of Statute, Hearsts articles online that described charges against Martin
were false and qualified as defamation claims of libel, false light, negligent infliction of
emotional distress and invasion of privacy by appropriation.
Court held that nollment is legal fiction separate from real history which the news coverage
reflects
Erasure statute appears in criminal procedure title of the CT general statutes not title dealing
with Civil action therefore not intended for defamation suits
o Only requires certain official records be erased
Claims for libel and false light fail because articles arent false, negligent infliction of ED
fails b/c nothing negligent about publishing true/newsworthy article, invasion of privacy fails
because newspaper doesnt improperly appropriate name/likeness merely by publishing
article that brings their activities before public
Publication that implies something false and defamatory by omitting or strategically
juxtaposing facts can be defamatory but in this case no false implications made
People in US assumes reports of arrest is just a report not true that Martins reputation
damaged

ii.

Data Protection & Security

ECJ on Privacy
1. Schrems v. Data Protection Commission (CJEU 2015)
Commission: executive power that promulgates policy, implements by decision
Parliament: legislative power
Counsel: leaders of Member States, policy setting-advisory role
Schrems requests under Data Protective Directive to get all info that Facebook has on him
receives 1200 documents
S brings complaint to commission about Facebook and Commisison rejects. S then brings to
High Court where claims brought against Facebook subsidiary in Ireland.
Participation in EU-US Safe Harbor is not mandatory but voluntary and not enforced by
anyone depends on self certification
o Other agencies help administer i.e. FTC in Q&A interprets safe harbor law implemented
in US
Court held that member states have the prerogative to make decisions about the adequacy of
data protection and EU High Court has the authority to examine
Data Protection Agents have authority to monitor data protection in their jurisdiction can
investigate intervene, engage in legal proceedings
Can Ireland High Court decide whether US compatible with EU policy? Yes and EU-US
Safe Harbor were not compatible with EU Directive
Potential US Cybersecurity Legislation
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