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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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Often times legal disputes can involve foreign entities or even foreign laws.  Where these disputes also deal with the United States, domestic laws will come into play.  In 1958, the United Nations adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is also called the New York Convention.  It requires contracting state courts to give effect to agreements to arbitrate and to recognize arbitration awards.  Indeed, parties can enforce international arbitration awards in the United States through federal courts.  However, as Toho Towa, Ltd. v. Morgan Creek Productions demonstrates, state procedural laws can help parties collect international awards.

What Did the Court Hold in Toho Towa, Ltd. v. Morgan Creek Productions?

In this case, the Second District Court of Appeal applied an international arbitration award and allowed the claimant to enforce the award against a parent company that did not participate in the initial arbitration.  The claimant in this case was Toho Towa, Ltd., a Japanese corporation.  Morgan Creek International B.V., a Dutch entity, and Morgan Creek International Ltd., a Bermuda corporation were the original respondents.  The dispute involved an agreement among Morgan Creek International BC, the signatory; Morgan Creek International, Ltd., the guarantor; and Toho Towa, Ltd.  The agreement dealt with the right to distribute the movie “The Good Shepherd” in Japan.  The original arbitration award rewarded over $5 million to the claimant.  Toho Towa then petitioned a California state court to confirm the award.  According to California law, (Code of Civil Procedure § 1287.4) the international arbitration award effectively became a court judgment.  However, Toho Towa soon learned that the subsidiary companies did not have the resources to satisfy the judgment.  Once again, Toho Towa petitioned the California courts to add the parent company, Morgan Creek Productions, as a debtor on the judgment.  This meant that the parent company would now be liable for the full judgment.

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The expansion of social media networks has helped connect people and ideas all over the world. However, it has also raised substantial privacy concerns as more people store personal information on the web. Congress has enacted legislation in an effort to circumvent the dangers associated with online networks–for example, the Electronic Communications Privacy Act, the Child Online Privacy Protection Act, and the Stored Communications Act. States have also passed their own legislation to help protect cyber activity within their jurisdiction. For example, California passed “Do Not Track” legislation in November 2013 requiring websites to disclose their tracking practices. These laws, along with several others, work to protect individuals, entities, and their related private information as they continue to operate and conduct business over the Internet. Recently, a federal court applied the Stored Communications Act and found that it is applicable to a user’s wall posts.

What Are The Provisions of the Stored Communications Act?

In 1986, Congress passed the Stored Communications Act (“SCA”) which is codified under 18 U.S.C. §§ 2701 et seq.  The SCA aims to protect privacy interests implicated throughout electronic communications. Various court holdings have interpreted the SCA to apply to non-public electronic communications that take place over electronic communication services in an electronic storage medium. Violations of the SCA may carry potential criminal penalties, including serving time in prison. The penalties and liabilities will generally depend on the circumstances of the violation. The SCA does allow Internet service providers to share “non-content” with another person or entity. This includes log data and recipients’ email addresses. Still, this is a limited exception to the general rules and the SCA is still prohibited with sharing any information with a government entity. The government may compel Internet service providers to provide stored information. For electronically held communications, the government is required to have a probable cause and obtain a search warrant. For communications stored remotely, the government only needs a subpoena or a court order. Hence, remotely stored data enjoys a lower level of protection since it is easier to submit a subpoena rather than to obtain a search warrant.

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In recent years, electronic spam has become a public nuisance. In response, several states, including, but not limited to, California, have enacted statutes to prevent electronic spam. As with most legislation that deals with the constantly-changing nature of the web, these statutes struggle to define the extent of their application while staying current with trends. Therefore, courts are charged with the responsibility of interpreting the intent of these laws.

What Are The Provisions of California’s Anti-Spam Statute?

In fact, California’s Business and Professions Code section 17529.5 prohibits any person or entity from sending commercial email advertisements, or spam, in three defined circumstances. First, spam is prohibited if an email advertisement uses a third-party domain without the third-party’s permission. Second, the statute prohibits email advertisements that use misrepresented information in the header. Finally, it is unlawful to use a subject line that is reasonably likely to mislead a recipient about the content or subject of the message. This section applies if the email is sent from California or if it is sent to a California email address. Accordingly, the reach of California’s legislation into other jurisdictions is also an issue for courts to interpret. Furthermore, a party bringing suit may recover both actual damages and liquidated damages. Liquidated damages are limited to $1,000 for each unlawful email and may go up to $1,000,000.

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In general, both copyright and patent laws provide different levels of protection for computer software. Additionally, depending on the aspects of software that an owner wants to protect, these two areas of law will apply differently. Furthermore, securing a patent is a more rigorous process. However, a patent does provide a greater degree of protection. On the other hand, obtaining a copyright is less difficult, but it also provides a thinner veil of protection.

What Protection Does Copyright Law Provide For Computer Software?

The Copyright Act of 1976 is codified under 17 U.S.C. sections 101 et seq. Traditionally, copyright has been the common form of protection for computer software. However, copyrights only protect the expression of a work, and not its underlying idea. Copyrights have been instrumental in preventing software piracy and infringement of related works. The protection applies to software because the underlying computer code is similar to the types of writings the law protects. So, copyright holders can protect their software much like other literary works (e.g., books, scripts). Copyright protection essentially provides broad protections for software. It grants the typical copyright authority depending on the nature of the software. The courts have grouped software with other literary works and provided copyright protection accordingly. There also exist inconsistencies in court decisions applying the Copyright Act to software. This difficulty arises because the legal community often lacks the technical expertise necessary to properly classify software. For instance, where a judge cannot understand the program’s code, he or she cannot determine whether another infringing program’s code is substantially similar. It is necessary to establish substantial similarity to find copyright infringement. Therefore, the lack in technical background has led to unclear definitions as to what constitutes software copyright infringement.

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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 a recent case, Petronas v. Godaddy.com, the Ninth Circuit held that “contributory cybersquatting” was not a valid theory for relief. This case addressed the issue of whether the Anti-Cybersquatting Consumer Protection Act (“ACPA”) allows for secondary liability.

What Are the Facts?

Plaintiff, Petroliam Nasional Berhad (aka “Petronas”) is a Malaysian government-owned entity. Petronas holds the American trademark “PETRONAS.” The entity also owns the Petronas Towers in Malaysia. Defendant, Godaddy.com, is the world’s largest domain name registrar. The case revolves around a third party who registered the domain names petronastower.net and petronastowers.net in 2003. In 2007, the party began using Godaddy’s domain forwarding services to direct the domain names to an adult website. Petronas sued Godaddy for cybersquatting and contributory cybersquatting. In general, cybersquatting is the act of holding a trademark hostage in the form of a domain name and forcing the trademark owner to negotiate an unreasonable price for the domain. Although Godaddy did investigate the alleged cybersquatting, ultimately, they did not take any action.

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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 2013, Edward Snowden, a former CIA employee, and National Security Agency (“NSA”) contractor, leaked top secret documents to the public. These documents detailed the NSA’s controversial electronic surveillance practices and procedures, sparking a debate about wiretapping and privacy laws. Snowden revealed that the government employed questionable electronic surveillance programs. The controversy circles around the potential privacy violations surrounding government agency practices to monitor communications. Since then, the Obama Administration has been under pressure to address individual privacy concerns. Last month, President Obama addressed the nation and introduced proposed changes to current electronic surveillance practices.

What Are the Current Wiretapping Laws, Before President Obama’s Proposed Amendments?

Wiretapping has been possible since the invention of the telephone. The procedure gets its name from earlier methods, which required officials to physically place electrical taps on telephone lines. Wiretapping is a constitutional and legal practice. In most cases, officials must secure a warrant from a judge beforehand. However, federal intelligence agencies can apply to the Foreign Intelligence Surveillance Court (“FISA”), under secret proceedings, for court approval. In some circumstances, these agencies can proceed with approval from the United States Attorney General, without court approval. In the event that the agency does need to secure a warrant before wiretapping, courts typically apply a very strict standard of review before granting approval. For instance, the judge will look to ensure there are no other less intrusive methods to gather information. In general, the courts look at wiretapping as a last resort. Alternatively, if a party who is participating in a call, records the call and produces it to a government agency, the agency does not need prior court approval. The agency is then at liberty to use the contents of the recorded phone call for its purposes.

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