Articles Posted in Constitutional Law

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In recent times, a significant amount of business is conducted online.  The Internet connects a business to customers anywhere in the world. What happens when a dispute arises between a business in one state and a customer in another? If the customer wants to bring legal action against the business because of a transaction that occurred online, where does the customer file the action? The answer may depend on the type of website. The courts have created the distinction between active and passive websites. When a transaction occurs through an interactive website, the business may be subject to the jurisdiction of the state where the customer accessed it. Is your business developing a website? Did you know that an interactive website may subject you to the jurisdiction of any state? If so, then you must understand the difference between active and passive websites, and how they may affect your legal rights.

What Is the Active and Passive Distinction?

An interactive or active website is one where business transactions can occur through the website or information can be exchanged to solicit business. On the other hand, a passive website is one that is used to post information for potential customers, but it does not allow for interaction. A passive website is similar to an advertisement. The distinction is crucial because courts will confer personal jurisdiction over companies that maintain active websites in the state where the consumer is located. Active websites include sites that foster online sales, sites that take measures to solicit business in a particular forum, and the use of a third-party site to sell an item. Not every website fits neatly into these two categories, and issues arise when the website falls between the two.

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In a decision released June 25, 2014, the United States Supreme Court held that law enforcement officials could not search a suspect’s cell phone or electronic devices as part of an arrest. In Riley v. California, the Supreme Court maintained that the officials would need to secure a warrant to look through those devices. This holding is especially monumental because it establishes the country’s highest court’s position that electronic devices enjoy privacy protection under the Constitution. Indeed, the Court notes several times throughout the decision that since electronic devices contain so much of users’ most private data, these devices must enjoy a heightened level of privacy.

At the Law Offices of Salar Atrizadeh, we are fully knowledgeable and experienced in the practice of electronic privacy protection for individuals and businesses. Our office handles all civil matters dealing with violations of cyber privacy. Indeed, by speaking to an attorney, you can take precautionary steps to help protect your privacy and personal data.

How Will Riley v. California Impact Individual Privacy Rights?

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The European community has been making great strides to establish and protect individual privacy in the globalized cyber community. On May 13, 2014, the European Court of Justice (“ECJ”) issued a decision that European Union (“EU”) citizens had a right to ask search engines to remove search results about themselves.  The ECJ defined this as a “right to be forgotten.”  Google, which is upset about this holding, has set up a form for users to request information removal. American counterparts, and officials within Google, have expressed concern about the implications of this ruling—both for the search engine and the threat to the flow of information.  Ultimately, the ECJ has established that the right to privacy supersedes the right to information.

What Are the Terms of the 2014 Ruling?

In issuing the decision, the ECJ was enforcing a 1995 EU directive on privacy that defines and regulates search engines as data collectors. European regulators have historically been more concerned with personal privacy than the United States. Accordingly, European government agencies have taken greater steps to enforce protections. Both the EU and members states have adopted provisions to protect privacy and family life. For instance, in 2010, the European Commission declared the right to be forgotten as a foundational aspect of its Data Protection Regulation.

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One of the fundamental constitutional protections is the freedom of press.  Under the First Amendment of the United States Constitution, the press (i.e., journalists, reporters, newspapers) enjoys freedom from government censorship.  However, this right must be balanced against the individual right to privacy.  Furthermore, as an added protection for privacy, state laws provide protections against defamation.  Generally, defamation proceedings have included claims against traditional journalists—namely, journalists working for newspapers and other printed publications.  However, since a 2011 Ninth Circuit decision, the free press standards have been expanded to include bloggers as well as traditional print journalists.  The growth of the Internet empowers more people to discuss and spread the news.  Therefore, this expanded protection will need to continue balancing free press considerations with individual privacy considerations.

What Are the Principles Considerations for a Defamation Claim?

To establish a claim for defamation, a party must show a: (1) knowing, (2) publication, (3) of a false statement of fact, (4) concerning the party, (5) that tends to harm the party’s reputation.  Generally, there must also be evidence that the publication was a result of negligence or malice.  For example, a claim for defamation likely would not stand if the party did not know that the information was actually false.  There are two forms of defamation—libel, which applies to written defamation, and slander, which applies to oral defamation.  Defendants who are accused of defamation may raise a defense if the publication is true.  However, it is often difficult and expensive to litigate and prove truth since it requires extensive discovery into the facts of the publication.  Additionally, publications that are opinions may also be free from the threat of defamation.  Still, simply labeling a publication an “opinion” will not automatically protect it from defamation.  The courts will look to see whether a reasonable reader or listener would consider the publication as fact or opinion.  As this example demonstrates, defamation claims often turn on the specific circumstances of the cases—i.e., the nature of the statement, the parties involved, whether the truth of the statement can be proven, and how a reasonable person would perceive the statement.

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In recent years, social media networks have proven to be an outlet for individuals to share personal views and opinions with the world.  However, Twitter’s new censorship laws could dramatically change whether individuals can actually express their viewpoints over this social media site.  Early in 2012, Twitter announced that it would allow for country-specific censorship laws.  Accordingly, Twitter content would be censored based on the country the individuals are located when reading content.  This will allow Twitter to comply with local government requests to remove or block content based on that country’s laws.   So, what censorship laws apply to the material on the web?  Interestingly, the law of the jurisdiction where material on the web is read, not written, governs the content.  This is the basis of Twitter’s new censorship laws.  They aim to cater to individual countries’ internet laws.

How Will This Affect American Laws and the Freedom of Expression?

The freedom of expression allows for a broad right for individuals to voice ideas and opinions in public without the fear of retaliation from opponents or the government.  Twitter argues that this new standard does not implicate the constitutional right freedom of expression.  Under Twitter’s new system, a tweet that is erased for breaking a law in one country may still be accessible in another country where the same legal standard does not apply.  Nonetheless, commentators point to how helpful Twitter has been during international crises (e.g., civil war in Syria).  Allowing governments to censor these posts may threaten lives.  This controversial policy deals with the conflicts of domestic and international laws.  Indeed, the fear is that the differences in laws will lead to high degrees of censorship in some regions.  Unfortunately, this will result in overall digression in the freedom of expression that societies have worked hard to protect.

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On September 23, 2013, Governor Jerry Brown signed Senate Bill 568 (“SB 568”) into law, which requires social media sites to permit children to permanently erase online posts. These websites, including, but not limited to, Facebook, Twitter, and Tumblr, will have to provide options for users under the age of 18 to delete texts, photos, and videos. However, this option will not extend to content that a third party uploads regarding the minor. Hence, as California works to implement this new law, public debate circles around its effects and whether it will actually be helpful in protecting children online.

What Are The Provisions Of California’s New Digital Erase Law?

The law addresses websites that are directed to minors and have actual knowledge that a user is a minor. The websites include ones created specifically for the purpose of targeting minors rather than adults. These websites must provide a method for underage users to remove public posts about them. Alternatively, these users may ask the website to remove the content. However, if a minor received any compensation (i.e., marketing benefits, rewards) for a post, then the post is not subject to this law. In theory, websites may provide minimal compensation to minors to circumvent this law and avoid having to take down any posts. Furthermore, the law is ambiguous in some areas. For example, it is unclear whether minors are required to erase the content while they are still minors or whether they retain the right to erase any content they posted as minors. These details will need to be clarified to ensure proper enforcement.

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In general, lawsuits involve harmed parties and controversial facts. However, in some cases, the facts are especially sensitive, posing serious detrimental consequences for one or more parties. This threat exists regardless of how the court decides the case. These cases include matters involving, among others, child victims, sexual abuse, and hate crimes. To help protect privacy interests, courts will sometimes allow a party to appear anonymously under a pseudonym–for example, John Doe or Jane Doe.

What Is the Basis of A Party’s Right to Anonymity in Court Proceedings?

According to Federal Rule of Civil Procedure 10(a), parties to a lawsuit are required to include their names in their court filings. To determine whether the option to file anonymously is appropriate, courts will balance the related competing interests between the parties. The Fifth Circuit Court of Appeals first introduced this test in Doe v. Stegall, a case involving prayer in public schools. The court explained that the issue of party anonymity required a balancing of interests in full disclosure against the party’s right to privacy. The courts apply this test on a case-by-case basis. Although, there are no firm factors to help guide this analysis, a review of the different policy interests will help reach a conclusion. However, allowing a party to file a case anonymously violates two fundamental principles of the judicial process. First, an accused party has a constitutional right to confront the accuser. This is a principle contained in the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, which guarantees the right to face and question an accuser. Second, central to the American judicial system is the right of the public to have access to court documents. Where parties remain anonymous, the public is deprived of its right to access court documents.

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In recent years, online transactions, such as activities on social media networks, have exposed personal privacy to greater risks. With so much personal information available over the Internet, it is increasingly important to be aware of the applicable laws, so that your privacy is better enforced and protected. The risks can include identity theft, and data, medical, financial, or workplace breaches.

In the United States, there are overarching federal privacy laws that apply to the states. Also, each state has its own privacy laws. In general, the states can provide greater privacy protection than federal laws, but they cannot provide less protection. Privacy right violations can lead to both civil and criminal penalties, depending on the extent of the violation and the applicable laws.

What are the applicable privacy laws in California?

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A celebrity’s image is the most vital marketable quality in the business of entertainment. Indeed, this image, like other forms of intellectual property, is very much the product that a famous personality offers into the economy for a profit. However, while other forms of intellectual property enjoy protection under copyright and trademark laws, an image is vulnerable to all sorts of cyber attacks that can cause severe and irreparable damage. Nonetheless, a celebrity can prepare and prevent cyberspace threats by speaking with an attorney to establish a plan to monitor online activity and prevent harm. Furthermore, acting immediately at the first sign of an attack can prevent on-going and permanent harm to reputation.

What is the Threat to Celebrities In Cyberspace?

Since a famous personality’s name, image, and reputation make up the underlying fame and fortune, any attack can harm the ability to work successfully. However, taking steps to secure a reputation is especially difficult in the case of public figures. For example, First Amendment free speech protections allow for public discussions involving public figures. Accordingly, it can be even more difficult to bring defamation claims where the victim of offensive remarks is in the public eye. Unfortunately, this harmful publicity can limit a celebrity’s capacity to secure future employment. Musicians face the added threat of the unauthorized use of their work product, especially over the Internet. While some use, even though it is unauthorized, provides free publicity over the Internet, this use can prove to be harmful to economic viability. Also, leaking new music allows users to learn about an artist’s new work, but it takes away from the artist’s ability to make a profit.

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On March 19, 2013, the Supreme Court reached a decision in Kirtsaeng v. John Wiley & Sons, Inc. In this case, respondent John Wiley & Sons, Inc. (“Wiley”), a publisher, brought suit against Petitioner Supap Kirtsaeng alleging violation of the Copyright Act, under Title 17 U.S.C. §§ 101-810. Kirstaeng a student in the United States, studying mathematics at Cornell University and the University of Southern California, sold textbooks to help pay for his education and living expenses. Kirtsaeng’s relatives would buy these textbooks in Thailand, where they live, and ship them to Kirtsaeng, who would sell the textbooks in America once he was done using them for his classes. Wiley’s subsidiaries in Thailand manufactured these textbooks.

Wiley contended that by selling foreign manufactured textbooks in America, Kirtsaeng was violating Title 17 U.S.C. § 602(a)(1) of the Copyright Act. According to 17 U.S.C. § 602(a)(1), a copyright owner’s exclusive distribution right encompasses the importation of copyrighted work into the United States. Importing copyrighted work into the United States without the consent of the copyright owner constitutes a violation of copyright law. Under copyright law, a copyright owner has the exclusive right to distribute copies of a copyrighted work to the public. However, Kirtsaeng argued that the First Sale Doctrine protects him from any liability because according to the doctrine the copyright owner loses an exclusive interest in copyrighted work after the first sale. The First Sale Doctrine, which is codified under Title 17 U.S.C. § 109, limits copyright owners’ distribution right to the first sale of the copyrighted work. Once the work is transferred, the copyright owner no longer retains an interest in the work.

In its opinion, the Supreme Court held that copyright law, and specifically the First Sale Doctrine, applies to copyrighted works manufactured abroad. Accordingly, copyright owners, such as the publisher in this case, lose their distribution rights and interests in a foreign manufactured copyrighted work after the first sale of the work. As such, Wiley lost its exclusive distribution right in the textbooks when its subsidiaries first sold the textbooks to Kirtsaeng’s relatives in Thailand. When the relatives then sent the textbooks to Kirtsaeng, who proceeded to resell the textbooks in America, Wiley no longer retained a copyright interest in the textbooks.

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