TechLaw

Ninth Circuit: Obscenity in E-Mail Messages Judged by National Community Standards

The U.S. Court of Appeals for the Ninth Circuit decided United States v. Kilbride a couple days ago, producing an opinion that interpreted criminal provisions in the CAN-SPAM Act and also discussed at length whether in a prosecution for transmission of allegedly obscene e-mail messages the contemporary community standard should be a local or national one.

Community Standards and E-Mail Communications

In a nutshell, the defendants used spam to promote adult websites.

The court ruled that the appropriate standard for e-mailed obscenity is a national community standard, due in large part to the fact that e-mail senders lack the ability to control which communities will receive their messages. The court reached this result by threading through the five opinions written in the U.S. Supreme Court's decision in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case involving the constitutionality of a federal statute prohibiting the commercial online transmission of indecent speech. The problem, of course, is that subjecting e-mail speech to the community standards of the least tolerant community in the country may have an unconstitutional chilling effect on protected speech.

The Ninth Circuit wrote that, in light of Ashcroft, the application of a local community standard to e-mail speech was unconstitutional. However, the Ninth Circuit added, the application of a national community standard may also present constitutional problems. What? In a footnote, the court remarked that the application of local community standards "raises grave constitutional doubts" whereas the application of national community standards "does not raise grave constitutional doubts." Just to make sure that the reader understood that the court was not putting a stamp of approval on a national community standard, the court added that a First Amendment challenge to a national community standard will not necessarily be found meritless. Figure that one out, First Amendment lawyers.

(Personally, and this is probably an embarrassing confession of ignorance, but I have trouble understanding how a juror can determine what a "national community standard" looks like. Presumably, different communities have different sensibilities about artistic expression and obscene speech. How does a person deduce a national standard from a collection of varying local standards? Take an average? That can't be right. It's like asking, "What color is a rainbow?" A rainbow can't be reduced to a single color, can it. Same thing with community standards.)

Along the way, the court rejected the government's argument that e-mail speech is not entitled to the same First Amendment protection as the Internet communications at issue in Reno v. ACLU, 521 U.S. 844 (1997). "[F]or purposes of the First Amendment concerns raised by Defendants, Defendants' email communications are analogous to other Internet communications," the Ninth Circuit wrote.

Meaning of `Materially Falsifies' in CAN-SPAM Act

To carry out their spam operations, the defendants created several nonsense domain names, fake originating e-mail addresses, and fictitious names for e-mail senders. They also supplied false information when they registered their domain names. They argued on appeal that the definition of "materially falsified" in the criminal liability portion of the CAN-SPAM Act, 18 U.S.C. 1037(a)(4), was unconstitutionally vague -- raising both facial and as-applied challenges.

The court rebuffed these challenges. However, as it did so, the court remarked that domain name registrants who use private registration services that conceal the registrant's true identity have materially falsified their registration information. The court wrote:

[P]rivate registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.” Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.

It is important to note that the CAN-SPAM Act requires proof "material falsification" plus an intent to send unlawful spam messages. Nevertheless, this court's belief that use of privacy-enhancing domain registration services -- a very common practice -- is a "material falsification" that helps create criminal liability is something e-mail senders should be aware of.

Selective Outrage in Rocky Mountain Bank Case

I am a little bit mystified at the expressions of shock and outrage (yes, "outrage") at the news that Judge Ware has granted Rocky Mountain Bank's request for a TRO deactivating a Gmail account to which the bank had carelessly e-mailed detailed financial information on 1,325 bank customers.

Apparently this development alarms the many people out there in cyberspace who have the same attachment to their e-mail accounts as the National Rifle Association does to firearms.

The victims here are the bank customers, whose personal information is now certainly residing on several Google servers and possibly countless other online locations. The reasoning in the bank's motion for a temporary restraining order and the declaration of its president strikes me as unassailable.  The bank has a duty to do what it can to safeguard the personal, financial information of its customers.

The bank's customers are presently at risk of identity theft. The bank's shareholders are at risk of seeing their investment wiped away by a nasty data breach incident. Inaction, not action, is what should provoke "outrage" in these circumstances.

Google is also doing the right thing, following its privacy policy and the Electronic Communications Privacy Act by insisting on a court order before turning over information about its users. Now it has just such an order. Google's lawyer, Al Gidari of Perkins Coie in Seattle, filed an appearance in the case this afternoon. In another case, Google offered only token opposition, see the "Skanks of NYC" ruling, a precedent that may be relevant here.

As for the owner of the Gmail account, who has not yet been identified and who did not respond to the bank's subsequent attempts to contact him or her via the Gmail account, it is very difficult to see what rights might have been infringed by the bank's action against the account. Speculation about whether computer users have First Amendment claims against private computer network operators is interesting but fanciful.

Here are three cases that say computer users have no First Amendment rights against network operators:

• Kinderstart.com v. Google Inc., No. 06-2057 (N.D. Cal., July 13, 2006) (Google has no First Amendment duty to protect free speech rights of websites it indexes);
• Howard v. America Online Inc., 208 F.3d 741 (9th Cir. 2000)(interactive computer network is not a common carrier under Communications Act, not a state actor for First Amendment purposes);
• Estavillo v. Sony Computer Entertainment, No. 09-3007 (N.D. Cal., Sept. 22, 2009)(Sony Playstation 3 Network owed no First Amendment duty to user terminated for allegedly violating terms of use).

I'm not aware of any cases going the other way, or cases remotely suggesting that the owner of the Gmail account at issue in the Rocky Mountain Bank case has been denied due process or any other constitutional or statutory right. Hey, he or she has already gotten more due process than you get at Twitter.

Venkat has more to say here.

Nasty E-Mail Messages Breached the Peace, Aren't Worthy of First Amendment Protection

In most cases, when a court reaches a bad decision, the lawyers are at fault. Hysterical rhetoric, poor research, failure to acknowledge the legitimacy of the opponent's arguments, failure to appreciate the logical consequences of one's own arguments, or the absence of legal representation on one side of the case. I am going to put the case of Nebraska v. Drahota, No. 08-628 (Neb. Ct.App., June 16, 2009), into the last category. An intermediate state court in Nebraska, without appearing to think too hard about the issue, held that a student was lawfully convicted of breach of the peace based on a pair of e-mail messages (okay, profane rants) he sent to a professor. The court also held, again without too much analysis, that the student's e-mails were constitutionally unprotected insulting or "fighting words," citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), in support.

The defendant represented himself.

This case involved (1) a student, (2) writing about politics, (3) via e-mail. It is difficult to imagine how this sort of communication can disturb the peace or why it would not be subject to the most stringent First Amendment protection. This guy (who has a strained take on reality) should have hired an attorney. Now we're all stuck with this court's opinion.

South Carolina AG Signs Off on Craigslist Injunction

Sort of a fait accompli in light of statements made earlier this week, but the South Carolina Attorney General's office formally agreed this afternoon "to refrain from initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website." The consent order is available here.

U.K. Lawmakers Weigh Need for Greater ISP Liability

An ad hoc group of Parliament ministers, the All Party Parliamentary Group on Communications (apComms), has opened a public inquiry into a handful of pressing Internet policy issues. Among them: net neutrality, privacy issues relating to behavioral advertising and deep packet inspection, and child abuse.

The main objective of the inquiry, it seems to me, is to decide whether Internet service providers should be given a measure of legal responsibility for rooting out bad behavior on the Internet. From the inquiry announcement:

Existing European legislation provides ISPs with some key immunities for "mere conduit" along with protections for "hosting" and "caching". Almost a decade after they were decided upon, are these immunities still appropriate? Should they be recast to reflect the way in which modern networks operate?

The apComms group is seeking public comment on five specific questions:

1. Can we distinguish circumstances when ISPs should be forced to act to deal with some type of bad traffic? When should we insist that ISPs should not be forced into dealing with a problem, and that the solution must be found elsewhere?

2. Should the Government be intervening over behavioural advertising services, either to encourage or discourage their deployment; or is this entirely a matter for individual users, ISPs and websites?

3. Is there a need for new initiatives to deal with online privacy, and if so, what should be done?

4. Is the current global approach to dealing with child sexual abuse images working effectively? If not, then how should it be improved?

5. Who should be paying for the transmission of Internet traffic? Would it be appropriate to enshrine any of the various notions of Network Neutrality in statute?

Comments are due May 22. Public hearings are scheduled for June 15-17, 2009, in Westminster. The apComms group is chaired by MPs John Robertson Derek Wyatt.

Blogs: Second-Class Citizens Under the First Amendment?

Technorati's latest report on blogging trends indicates that blogs are fast becoming part of the mainstream news media. Technorati's most recent data (Q4 2006) shows that 22 blogs made its list of the 100 most popular Web sites. Blogs like Engadget and Boing Boing surpassed Web sites belonging to "mainstream media" like Business Week, The Economist, The New York Post, and Bloomberg. Blogs operated by Gizmodo, TechCrunch, Lifehacker, and The Huffington Post all outpaced dozens of established mainstream media outlets.

According to Technorati, the reflects a spike in blog interest from the previous three-month period, when just 12 blogs were among the Web's 100 most popular sites.

According to Technorati founder Dave Sifry:

Information not shown in our data but revealed in our own user testing in Q1 2007 indicates that the audience is less and less likely to distinguish a blog from, say, nytimes.com -- for a growing number of users, these are all sites for news, information, entertainment, gossip, etc. and not a 'blog' or a 'MSM site.

What's this have to do with cyberlaw you say?

In Kentucky, at least, the distinction between blogs and mainstream media continues to have meaning. Web filtering software on state-owned computers prevents employees from reading blogs while permitting them to read Web sites published by mainstream media. Defending this policy against a First Amendment challenge brought by a blog publisher, Mark Rutledge, Commonwealth Office of Technology Commissioner, cited the popularity of blogs among state employees. Prior to the installation of filtering software, "reports revealed that employees were frequently visiting the following Web site categories, which appeared to have a tenuous connection or no connection at all to any legitimate business purpose: entertainment/motion picture, auctions/classified ads, humor/comics and newsgroups/blogs."

Rutledge added that the commonwealth's filtering software did not block blogs operated by established news publishers, such as the Lexington Herald-Leader and local television stations.

Governments have considerable leeway in setting Internet access policies, though the First Amendment  presents some constraints. State-owned Internet access is a "non-public forum" where restrictions need only be reasonable and viewpoint neutral in order to satisfy the First Amendment.

Nevertheless, Kentucky's policy appears to raise a few non-trivial questions. Is it reasonable to distinguish between blogs and mainstream media? According to Technorati's data, distinctions between these two categories are quickly eroding. Is it reasonable to distinguish between online materials that are popular (blogs) and those that are less so (mainstream media)? Is it reasonable to permit a mainstream media outlet's blog to be read by state employees but not an independent blog? None of these distinctions are based on the content of the material. These distinctions are interesting, to say the least.

In a recent ruling, Judge Karen C. Caldwell tentatively approved Kentucky's Web filtering policy. Her March 30 opinion denied the blogger's request for a preliminary injunction. Judge Caldwell seemed untroubled by the commonwealth's decision to cast all blogs into a single basket of content unfit for state employee consumption, just the same as comics, classified ads and celebrity gossip. "This policy is reasonable and consistent with the purpose of the Internet on state-owned computers, which is to conduct state business," Judge Caldwell wrote.

The case is Nickolas v. Fletcher, No. 3:06-CV-00043 (E.D. Ky. March 30, 2007).