Articles Posted in Constitutional Law

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Pursuant to Section 230 of the Communications Decency Act, no provider of an interactive computer service may be treated as the publisher of information provided by another information content provider. See 47 U.S.C. § 230(c)(1). The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Generally, holding a website operator as the publisher of an allegedly libelous statement by a third party violates the Act. See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998). Accordingly, the standard pursuant to Zeran is that when an online service provider receives a retraction demand regarding statements the service provider did not write, the demanding party should be re-directed to the third-party originator (i.e., the person who originally wrote the defamatory statement).

California’s Retraction Statute under Cal. Civ. Code § 48a states that:

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A defamatory statement is one that injures the reputation of another. The common-law torts of libel and slander punish the publication of statements that are both defamatory and false. Generally, a libelous statement is a false and defamatory statement published in writing. A slanderous statement is a false and defamatory statement expressed orally. False and defamatory oral statements broadcasted over the radio or television are now widely considered libel, rather than slander. In some cases, money damages may be awarded to compensate the victim of libel or slander for the reputational injury caused by publication of the false and defamatory statement.

However, in recent years there has been significant tension between the common-law protections of reputation and the mandate of the First Amendment to the Constitution that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

To ensure that debate on public issues remains “uninhibited, robust and wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270 (1964), the United States Supreme Court has found that the First Amendment limits the circumstances under which a speaker or publisher may be punished for making false and defamatory statements: “Neither lies nor false communications serve the ends of the First Amendment . . . [b]ut to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968).

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In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court ruled that the First Amendment limits common-law defamation claims brought by public officials. The Court held that to recover for publication of a defamatory falsehood, a public official must prove that the challenged statement was “of and concerning” the public official plaintiff, that the statement was false, and that the defendant acted with “actual malice.” The Court defined “actual malice” as publication with knowledge that the statement was false or with reckless disregard of whether the statement was false or not.

Later, the Supreme Court extended the standard announced in New York Times Co. v. Sullivan to defamation cases brought by “public figures.” Public figures include individuals who voluntarily inject themselves into public controversy, as well as those who are involuntarily thrust into the limelight, even if only with respect to a particular activity or incident.

A private-figure defamation plaintiff can recover damages based on the defendant’s negligence (or a more speech-protective standard, under the law of some states). In no instance, however, can a private-figure plaintiff recover damages for defamation without a showing of fault amounting to, at least, negligence. Any lesser standard, the Supreme Court concluded, would unduly burden free speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). And, at least when the speech relates to an issue of public concern, a private-figure plaintiff must bear the burden of proving falsity; the defendant speaker is not obligated to prove the truth of the challenged statements. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768 (1986).

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On July 20, 2011, according to the leaders of the Senate Armed Services Committee, the Defense Department has failed to deliver to Congress a report on cyber warfare policies which may clarify the legal authorities and rules of engagement to be used in the event of a cyber attack.

Senators Carl Levin, a Michigan Democrat, and John McCain, an Arizona Republican, in a letter to Defense Secretary Leon Panetta wrote as follows:

“The continued failure to address and define the policies and legal authorities necessary for the Pentagon to operate in the cyberspace domain remains a significant gap in our national security that must be addressed.”

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The FBI is in the beginning stages of its probe of News Corp. (NasdaqGS: NWSA) as investigators evaluate whether United States charges can be brought over claims employees hacked into a rival’s website and sought access to phone records of victims of the 9/11 attacks, a person who is familiar with the facts recently mentioned.

The Federal Bureau of Investigation plans to permit the Scotland Yard take the lead on a parallel investigation already under way in Britain. The FBI is not planning to mount an aggressive investigation into allegations that News Corp.’s payments to U.K. police officers a decade ago violated a U.S. overseas bribery law, said the officials, who prefer not be identified since they are not permitted to discuss the Justice Department’s investigation.

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Civil Rights – Social networking website was not “place of public accommodation” within meaning of Title III of Americans with Disabilities Act (“ADA”).

Plaintiff Karen Beth Young brings this action against Defendant Facebook, Inc., alleging violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Unruh Civil Rights Act, Ca. Civ. Code § 51, et seq., the California Disabled Persons Act, Cal Civ. Code § 54, et seq., and state-law contract and negligence claims. Although Young’s amended complaint describes vividly her personal experience of losing access to her online social community and the challenges she faced attempting to obtain redress through Facebook’s automated customer care systems, it does not state a legal claim upon which relief may be granted. Accordingly, Facebook’s motion to dismiss will be granted.

Young opened a personal account with Facebook in February 2010.[1] She subsequently created additional Facebook pages for the “Cancer Forum,” “Cartesian Plane For The Cure,” “Karen Beth Young ,— Public Figure,” and “Join Karen Petition Facebook Say No to 5000 Friends.” Young sent “friendvites” to others she believed were interested in cancer-related issues and developed “genuine and heartfelt” relationships with those she met online. Young’s personal page grew to include approximately 4,300 “friends.”

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The campaign to persuade the judiciary to apply personal privacy principles to corporations has suffered two recent body blows.

On March 1st, the U.S. Supreme Court held in Federal Communications Comm. v. AT&T, Inc., 2011 U.S. LEXIS 1899 (2011) that the exemption in the Freedom of Information Act for matter within one’s personal privacy was not available to business entities.

A trade association of AT&T competitors requested documents relating to an F.C.C. investigation of AT&T. The F.C.C. refused to apply on behalf of the corporation an exemption for “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Third Circuit reversed, and the U.S. Supreme Court in turn unanimously reversed the Third Circuit.

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California Supreme Court Holds that ZIP Codes are “Personal Identification Information”

In a broadly-worded unanimous ruling, the California Supreme Court recently overruled lower court decisions to hold that businesses cannot request and record ZIP codes as a condition to credit card transactions, because ZIP codes are “personal identification information” under the Song-Beverly Credit Card Act of 1971 (the “Credit Card Act”). Pineda v. Williams-Sonoma Stores, Inc., S178241 (Cal. Supreme Court, Feb. 10, 2011). More generally, the Court implicitly recognized the impact on consumers of aggregating and matching their personal data from vast databases.

To read more go to: http://twitter.com/calbarsections

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Critics of “three-strikes” laws think society risks disenfranchising large segments of the population, especially with outdated copyright laws more relevant to a world before digital distribution.

In an age of growing attempts by copyright holders to implement so-called “three-strikes” legislation to deal with online piracy, some think Internet disconnection for accused file-sharers could raise concerns over the “right to freedom of expression.”

“It’s a social inclusion question,” says Cyberspace Law and Policy Centre executive director David Vaile.

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Is text-messaging protected against surveillance by an employer? Currently, it is if the employer is a governmental entity. But for how long? The Supreme Court recently agreed to review the Ninth Circuit’s panel opinion in Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008), cert. granted sub. nom. City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 1011, 175 L.Ed.2d 617 (Dec. 14, 2009).

The central issue in Quon was whether a policeman who was issued a text message pager by the city for police business had a reasonable expectation that his personal messages sent over the pager would remain private. The city argued that there was no reasonable expectation of privacy in personal messages, because it had a written policy that personal use of city computer equipment and software for personal use was considered a violation of city policy, and that use of the Internet and the email system outside the course of business was expressly deemed not confidential. Quon had acknowledged in writing having read the policy. Quon had also been informed that text messages were considered email and would be subject to audit.

The Ninth Circuit disagreed and found Quon did have a reasonable expectation of privacy in personal messages, on the ground that the foregoing city policy was not actually followed. Officer Quon’s immediate superior had told Quon that, if Quon paid for overruns on his monthly allotment of characters, his text messages would not be audited. But in the fullness of time, Officer Quon’s messages were audited when he continued to exceed his monthly limit, and it was discovered that many of his text messages were personal. Officer Quon sued, alleging that the police department and City employees who reviewed the text messages violated Quon’s rights under the Fourth Amendment of the U.S. Constitution and similar provisions of the California constitution. The District Court and the Ninth Circuit found that Officer Quon was entitled to rely on his superior’s assurances that his text messages would remain private on the conditions stated.

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