TechLaw

Courts, Press Grappling with New Media, New Forms of Journalism

A few days ago several prominent federal judges and attorneys in the Ninth Circuit participated in a conference to discuss the legal system's evolving relationship with the news media and how new online communication technologies are affecting the administration of justice. BNA's Silicon Valley reporter, Joyce Cutler, was there, and she filed the following story for us. The discussion that took place reflected an acute awareness of the changes taking place in the news industry, the pervasiveness of digital devices and user-generated content, the public's growing desire for more information about the legal system, and the need on the part of the judicial system to resolve new policy questions raised by all of these phenomena. Reading through the story, I was struck by the extent to which each district and sometimes each judge is, by necessity, arriving at his or her own conclusion as to what technologies and public disclosures should be permitted in the courtroom. I thought Joyce's article should reach a wider audience, so I am sharing it here.

Courts, Press Grappling with New Media, New Forms of Journalism

SAN FRANCISCO -- At a time the news industry and even Congress are struggling to arrive at a definition of journalism, the judicial system finds itself faced with that same question and several others. Judges and lawyers, who have not yet fully digested the last wave of communications technologies such as television and radio, must now -- by necessity -- resolve a host of new policy issues raised by the next technological revolution: widespread, cheap and tiny information-capturing devices powered by social media.

UPDATE: A few days after this post was written, but before the panel discussion reported here, a federal district court in Georgia, in United States v. Shelnutt, ruled that twittering from inside a courtroom was "broadcasting" forbidden by Rule 53.

The decades-long debate over whether to increase public access to the courts through use of televised proceedings has thus been fused into a new debate over whether and how to allow live-blogging or real-time filing of 140-character Twitter updates in the courtroom, panelists said Nov. 4 at the Northern California federal courts media conference.

The conference, sponsored by the U.S. District Court for the Northern District of California and the Public Information and Community Outreach Committee (PICO) of the U.S. Court of Appeals for the Ninth Circuit, offered insights into what reporters, bloggers, scholars, and judges are grappling with as communication technologies evolve.

Many on the bench are "blissfully ignorant" of what is going on in the media industry and the processes of getting information out in other means than newspapers, Chief Judge Vaughn R. Walker said. "We need to explain what we do, explain our decisions, explain the entire process in a way that people can understand and can have access to."

The Ninth Circuit is unique among the federal circuits in having a public information committee.

Cell Phones In, Video and Still Cameras Out, Everything Else in Play

While most courts now allow cell phones into the courtroom, the rules are different from district to district, said Judge Susan Illston, in the Northern District. Rules on laptop computers, which allow real-time communication, vary "very much from courtroom to courtroom," Illston said.

Illston added that she has no prohibition about laptops in her courtroom "provided the keys aren't noisy" and disruptive.

Taking photographs is still prohibited across all federal courts.

The variation in rules can be problematic, said Peter Scheer, executive director of the First Amendment Coalition. The federal rule prohibiting broadcast television from courtrooms is so broad that it includes ordinary tape recording, he said. "But politically things are changing in Washington," and there is considerable sentiment to change the rule if the judiciary does not act, Scheer said. He predicted that the ban would be "greatly relaxed" within the next two years. "At the moment, unfortunately, people can't learn nearly as much about important cases as they should be able to," Scheer said.

Federal courts are still where they were 30 years ago when broadcast television at its zenith, he said. Legal blogs, including SCOTUSBLOG and Ninth Circuit Blog, follow the courts and show how quickly information can get to the public, said Melissa Griffin, who runs Sweet Melissa blog covering San Francisco politics and law.

Eric Goldman, a professor at the Santa Clara University Law School, said blogging is "both a complement and a substitute for what law professors have done in the past." Goldman blogs about cases involving the internet and intellectual property. "Really, the point is if we have an open courtroom where people are allowed in, they're all potential bloggers and there is no security through obscurity any more. Those days are over. That information will leak out one way or another, and you'll have to approach the information accordingly," Goldman said. "Kick out the Blackberries, that's fine. I will take my notepad and my pen and I will blog about it after the trial or after the courtroom. The point isn't just how you kick out the technology from the courtroom. That strikes me as really a non sequitur. The real issue is the control of information in the courtroom," Goldman said.

Shrinking Media Presence in Courtroom

Given the current-day realities of the newspaper industry, "we have fewer and fewer people covering the courts, and so the idea that your local newspaper is going to have a reporter in the courtroom covering a proceeding, those days are gone," said Kelli Sager, a partner with Davis Wright Tremaine in Los Angeles and a member of the Ninth Circuit PICO Committee.

The court has to be more proactive about making information available quickly, said Sager, noting that PICO is working on more alternatives to increase availability of information. But, she cautioned, "there is going to be a period of time when we just have less coverage of the courts by the media unless we make it easier."

Even with the decline in newspapers, mainstream media is still the primary presence in the courtroom, Scheer said.

Illston, who is overseeing the Barry Bonds prosecution involving allegations that he lied to a grand jury about steroid use, said that her court worked to ensure the process was "as media friendly as it could be." The court wired audio and video into the ceremonial courtroom down the hall so people could listen and see the proceedings. "The advantage of course there is you're in private effectively so if you want to clatter on your computer that's OK, if you want to be noisy, that's OK, if you even want to second-guess the court's rulings, that's OK as long as you don't put it in your articles," Illston said.

The same system has been used in the Ninth Circuit for high-profile oral arguments. The "nightmare vision" was if more people want to come in than there is space, raising a host of issues, including who is a journalist, she said.

"Those are really tough questions today," Illston said.

Is It Necessary to Define Who is a Journalist?

Access is an issue when police departments provide press passes that allow journalists to cross police lines because not all reporters need to be on the scene of a disaster, Griffin noted. And the distinction of who is a journalist is arbitrary, she said. The problem of defining a journalist arises "when you have to ration space," said Scheer, noting the problems that arose when Scooter Libby was on trial in the case over who leaked CIA operative Valerie Plame's name to the media.

In the Libby case, the court allocated a journalist seat for a blogger, Sager said. "There is no recognized, neutral credentialing authority," Scheer said, "and there are many kinds of people using different kinds of technology who call themselves and are generally viewed as journalists than was the case a few years ago."

"The courts don't want to be in the business and shouldn't be in the business of drawing lines and deciding who is a journalist and who is not," Scheer said. "I would let people decide for themselves whether they're journalists, and the only question is whether they are willing to abide by the basic rules" of the court, Scheer said.

"Credentialing is not the answer," Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, said. "First of all, I don't think credentialing can be constitutionally done." Also, Granick said, courts and lawyers do not have much interest in the job of credentialing journalists.

Blogger Griffin remarked that one possibility might be to credential journalists based on circulation or whether they are regularly engaged in the activity.

"It's going to evolve. It has to evolve. Sadly, the courts are being put in the unfortunate situation," Griffin said. "They may have to be on the forefront of this because of the ability to make reasoned inferences based on multiple pieces of information that other organizations may not be able to do. The court may find itself stuck doing this but I think ultimately there's going to have to be a third way of doing this because it's getting more and more complicated."

A proposed federal shield law (S. 448, awaiting action in the Senate Judiciary Committee) defines journalists as those who are regularly engaged in gathering and disseminating information to the public regardless of whether they are getting paid. This definition covres freelancers and online journalists.

Sager said that her "perfect solution" is to stream the information over the internet or on CSPN and make it available to everyone. "Then you don't have to fight about those issues about who's a journalist and who's not," she said.

News Media Influence on Jurors

Electronic communication has also changed the way the judge admonishes the jury about rules of evidence, said Illston. The warning not to read anything in the newspaper "is now the beginning of a very long paragraph of things they're not supposed to be doing" that includes telling them not to blog or Twitter or search the internet to research the case, Illston said.

"Really, it's an effort to sequester without sequestering the jury," Illston said. "And what we do then is to rely on their good faith in doing what we ordered them to do. And mostly it works."

Judge Jeremy Fogel of the Northern District said that he spends about 10 minutes on the list of prohibited activities, including blogging, e-mailing, Facebook entries, and Twitter. "I think the problem is things are moving so fast that there's so many ways for people to get information that we just can't anticipate all the problems we're going to have," Fogel said.

Judge Howard Matz, of the Central District of California, remarked that no juror in fact reaches a decision in vacuum. "There is no simple solution to immunizing jurors from extraneous influences," Matz said. Without explaining to jurors very specific information about what fairness in a jury trial requires, "I think we're going to have decisions badly warped. This has already begun to happen with jurors twittering about their ongoing experiences. And not necessarily about the evidence but about the dress of the lawyers or whether a particular lawyer is 'hot,' " Matz said.

Judicial Response to Public Access Issues

Four years ago, the Northern District published General Order No. 58, a local rule that defines an electronic device and establishes limitations on their use. The is rule is now "completely obsolete," Fogel said. Having been written before the iPhone, before Twitter and Facebook, the rule "has nothing to do with the world we in which we live," Fogel said.

"Technology has expanded and exploded so fast that while [Order No. 58] is an interesting artifact, it really doesn't mean anything," Fogel said.

Granick praised the Public Access to Court Electronic Records (PACER) system as really making a difference and allowing individuals to follow other people's cases. The downside of PACER, she added, is it is behind a pay wall and has fragmented search that does not allow for tracking of cases by subject matter. Granick commented -- and the panel agreed -- that more documents are filed under seal than ever before out of caution about the material available in the record and fears about what information would be reported upon.

Fogel said that his court, which is based in his San Jose, Calif., regularly deals with disputes involving valuable intellectual property. "If somebody reports on something they're not supposed to report, it can lead to stock price manipulation, the loss of proprietary rights that could cost people hundreds of millions of dollars," he said. "So the stakes are high. And my concern isn't keeping the media out because I'd like the media to be in. It's a question of how to think about the problems in a way that doesn't overly restrict but nonetheless protects the interests of people," Fogel said.

By Joyce E. Cutler

Craigslist Eludes Sheriff Dart, Thanks to CDA Section 230 Immunity

A federal district court in Chicago yesterday summarily dismissed Cook County Sheriff Thomas Dart's lawsuit alleging that online classified ad service Craigslist facilitated prostitution and created a public nuisance through the operation of the "adult" (formerly "erotic") services section of its website.

The court held that the sheriff's claim was barred by Section 230 of the Communications Decency Act. The court said that the sheriff's claim essentially sought to hold Craigslist liable as a publisher or speaker of third-party online content -- the kind of claim for which CDA Section 230 gives broad immunity to online publishers.

The case is Dart v. Craigslist Inc., No. 09-1385 (N.D. Ill., Oct. 20, 2009).

More later certainly.

Takeaways for Social Media Advertisers in the FTC's New Endorsement Guides

Blogging late about a news event is a mixed blessing. The blogger has the benefit of reading everyone else's hastily keyed impressions and thus can seem oh-so-much smarter with several days to think about issues others gave about five minutes' thought to (sort of reminds me of law school, actually). The downside is that after a couple days the news event is essentially played and now the late blogger must try to place something interesting on top of a pile of prior opinion that is already gathering dust. Blogosphere, I make you this deal: I won't poke holes in your snap judgments, and you won't expect me to be smart or interesting.

That said, the Federal Trade Commission's Monday release of its Guides Concerning the Use of Endorsements and Testimonials in Advertising (warning: big PDF) is another example of the government attempting to place old media rules on new social media. These developments throw off the sort of fascinating policy discussions that make my job so enjoyable. Cyberspace exceptionalism. Notice or norms? It's a conversation, it's not "media." Any market failures here? You can't regulate the Internet. Government paternalism.

Early campfire stories from CNET, where the web welkin is always falling, Yes, new FTC guidelines extend to Facebook fan pages, and the Guardian, America's memo to bloggers: don't lie or we'll fine you, conjure up scary images of FTC lawyers hunting down tweeters and Facebook "fans" of Corporate America. Censorship and naivete in Washington are eloquently decried by Jeff Jarvis at BuzzMachine, FTC regulates our speech, and Dan Gillmor at Mediactive, A Dangerous Federal Intervention in Social Media. The most entertaining take I've read on the new endorsement guides is this post from Edward Champion at Reluctant Habits, Interview With FTC's Richard Cleland, in which a dogged interviewer bests an FTC official in a game of reductio ad absurdum.

Bloggers, Tweeters, Fans: Type With Confidence

Since 1980, the FTC has had guidelines in place concerning the use of testimonials and endorsements to sell a product or service. Rules on substantiation, and rules calling for disclaimers on typicality and paid sponsorship, were a part of those guidelines. (For my non-lawyer readers, the endorsement guidelines are detailed descriptions of advertising techniques that FTC staffers believe run afoul of the FTC Act, 15 U.S.C. 45, which forbids unfair and deceptive trade practices.)

The new guidelines extend existing guidance to social media advertising, by setting out several circumstances where FTC staffers believe that disclosures about compensation should be made.

The intended audience for the guidelines is advertisers, not bloggers. The FTC is chasing its traditional nemesis -- marketers -- who have lately taken to social media to hawk products and services. It's no secret that marketers are turning to social media in a big way. That's where the eyeballs are. Moreover, social media is well-suited to advertising, see Robert Cialdini's book Influence (Disclosure: This is not an affiliate link and I am not being compensated by Cialdini, his publisher, or Amazon.com). Social proof is powerful; marketers want to tap into it.

Bloggers, tweeters, fans: The FTC is not targeting you. They are targeting the companies who are impersonating you. Just like the mighty humpback whale that travels north in search of krill and herring off the Alaska coast, the FTC is following advertisers' migration into social media. Bloggers, you're more like the puffins. The FTC is not really interested in you.

The guidelines cover only "endorsements," a category of speech that addresses an infinitesimally small percentage of cyberspace. At least I hope so. The guidelines define an "endorsement" as:

any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.

Presumably, a blogger/tweeter/fan will know whether he or she has received a cash payment or freebie. If the blogger/tweeter/fan writes an "endorsement," he or she must disclose the cash payment or a freebie. This doesn't happen very often, and the burden seems slight. The FTC will not be targeting bloggers who violate the guidelines.

Homework for Lawyers and their Marketer Clients

The flip side of this coin is that the FTC will be looking hard at companies who use social media to advertise their products and services. Which means that lawyers will have new compliance advice to sell to companies using social media for advertising. A cottage industry in compliance/avoidance strategies has been created.

Here are the FTC examples that specifically pertain to  social media marketing. I've (helpfully) bolded the portions that advertisers should linger on.

Example 5:

A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger’s endorsement. The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services.

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

Example 7:

A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.

Example 8:

An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

The foregoing examples suggest at least three new compliance obligations that advertisers need to immediately take on:

• Monitoring: Endorsers who receive payments or freebies must be monitored to ensure that endorsers are making required disclosures and to ensure that endorsers are not making unsubstantiated claims.
• Training: Endorsers who receive payments or freebies must be given training in the new FTC guidelines, to minimize the chance that endorsers will make unsubstantiated claims or will fail to disclose their connection to the advertiser.
• Workplace Social Media Policies: Advertisers must have in place policies for employees that require them to disclose their status as an employee when making endorsements in social media and other online venues.

Beyond these obvious initiatives, there are a lot of other gray areas for lawyers and their advertiser clients to discuss:

• How permissive will the FTC be with promotional messages that fall short of an endorsement of a specific product? Could Coca Cola sponsor social media messages about the benefits of carbonated sugar water without making a disclosure?
• What does "clear and conspicuous" mean? Would "ADV" work for a tweet?
• With a blog, would it be sufficient for the endorser to publish -- much like a privacy policy -- a one-time message indicating that the endorser frequently receives gratis goods in exchange for reviews? Or would the blogger need to make disclosures on a case-by-case basis (e.g., "This review is positive, so it needs a disclaimer," "This review is negative, so I don't have to run a disclaimer.")
• To what extent will endorsers be allowed to downplay the connection to the advertiser? Will a terse "Promotional consideration received" be sufficient? Will an icon be sufficient?

Finally, I wonder if any of this applies to lawyer communications in social media. Would a lawyer who has AT&T as a client be able to post, without disclosing the attorney-client relationship, "I just love my iPhone and I don't mind being locked-in to a two-year contract at all" on a blog or message board? That's just nuts, right? I withdraw the question.

Loose Change

A few other random thinking-out-loud notions that arose while going through the FTC guidelines.

First, the FTC was not impressed with arguments made by several commenters that (1) self-regulation is the best policy route and (2) that regulation would adversely affect the growth of social media. These arguments have prevailed in Washington since the dawn of the commercial internet, particularly in the area of privacy, so it was surprising to see the commission reject them, and pointedly so. "The Commission disagrees ... with those who suggest that there is not yet an adequate basis to provide guidance in this area." Whether or not this kind of thinking translates into other areas where self-regulation is king remains to be seen.

Second, it was disappointing to see the commission draw a line between user-generated media and traditional media. That seems to be an untenable distinction in 2009, and it promises to create mischief. I personally don't agree with the commission's reasons for requiring user-generated endorsements to contain disclosures (the internet has a way of sorting this stuff out on its own), and I certainly don't agree with its reasons for not saddling traditional media with similar disclosure obligations. Does this mean that Engadget.com must run a disclaimer but the Washington Post's tech toy reviewer need not? This may turn out to be unimportant in the long run, however, because traditional media seem to be embracing the idea that transparency is an attribute with commercial significance.

Third, if an when these guidelines are challenged on First Amendment grounds, how will social media speech be categorized? We are already seeing in the FTC's new guidelines how marketers who venture into social media spaces have brought along their federal regulators. Will they also bring the lesser protections that the First Amendment accords to commercial speech?

(Image: Marydoo)

Minor Win for Bloggers in Fourth Circuit's GHF Ruling

En route to tossing out a $2.9 million jury verdict for invasion of privacy and intentional infliction of emotional distress against the author of a hateful screed at <godhatesfags.com>, the U.S. Court of Appeals for the Fourth Circuit slipped in a goodie for bloggers at footnote 13:

[W]e believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Similar statements rejecting a distinction, for First Amendment purposes, between official "media" and non-media speakers were made in Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000), and In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986), both of which the Fourth Circuit cited.

The case is Snyder v. Phelps, No. 08-1026 (4th Cir., Sept.24, 2009).

Seventh Circuit Affirms Dismissal as Sanction for Wikileaked Leak

Like civil disobedience, leaking information to the news media can carry a high price. So can leaking to the new media. Witness Jorge Sanchez, an attorney who succeeded in getting his client's case tossed out of court as a sanction for -- among other things -- causing a document obtained during pretrial discovery to be leaked to the Wikileaks website. Call it Justice 1.0.

In Salmeron v. Enterprise Recovery Systems Inc., No. 08-3375 (7th Cir., Aug. 27, 2009), the Seventh Circuit affirmed the trial court's dismissal order, summarizing Sanchez's conduct like this:

On June 24, defendants USA Funds, Sallie Mae, and ERS learned that a scanned copy of the confidential document containing the Guarantee Services Agreement between Sallie Mae and USA Funds had been posted on a website known as Wikileaks.org ("Wikileaks"). Also posted was a summary of the document and 13 inflammatory questions about the possible "criminality" of the arrangement. Two days later, the Chronicle of Higher Education published an online article about the leaked document captioned "Contract Raises New Concern over Sallie Mae's Ties to Guarantor." The Chronicle claimed it had obtained the document several days before it appeared on Wikileaks and denied providing it to Wikileaks. Both the copy of the Guarantee Services Agreement leaked to Wikileaks and the copy provided to the bore Bates stamps conclusively demonstrating that they originated from USA Funds's document production during this lawsuit.

...

In his response to the motion to dismiss, Sanchez stated that the document "apparently ha[d] been leaked and published without plaintiff's counsel's knowledge or approval." At a hearing the next day, the district judge questioned Sanchez about how the document could have been leaked without his knowledge when the version of the Guarantee Services Agreement published on Wikileaks had the same Bates numbering as the version released during discovery. While denying giving the Guarantee Services Agreement to Wikileaks, Sanchez nevertheless backtracked and admitted that he had leaked the document to three different, unauthorized sources: his client, another attorney whom he was thinking about bringing on as co-counsel, and a reporter for the Chronicle.

No protective order was in place at the time of the disclosures, although Sanchez attorney had agreed, orally, that the documents were being shared with him on an "attorney's eyes only" basis. Sanchez never admitted to sharing the Guaranteed Services Agreement with Wikileaks. Nevertheless, both the trial court and the appellate court agreed that sharing the document three times in violation of the "attorney's eyes only" understanding, including once to a member of the press, was the same thing as sharing it with the world:

A reasonable person should know that giving a sensitive document to a member of the press, particularly one whose interest in the document was so keen that Sanchez repeatedly had to "put him off," almost inevitably will lead to its publication. That alone is more than sufficient to support the district court's finding of willfulness.

The leaks were not the entire source of the courts' ire, but they were definitely the last straw.

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Follow me on Twitter at @bnatechlaw

Real Judges Shouldn't Have Blogs

It calls into question their impartiality.

That's the teaching of Stengle v. Office of Dispute Resolution, No. 06-cv-1913 (M.D. Pa. April 27, 2009), a case involving a blogger whose passionate writing about special education issues cost her her job as a hearing officer for disputes arising within Pennsylvania's special education system.

Turning back the plaintiff's First Amendment challenge to her firing, the court said that even if her blogging was not an administrative headache (state officials were dealing with real and threatened recusal motions that questioned the plaintiff's impartiality), and even if the plaintiff was in fact impartial regarding the special education issues she was called upon to decide, these facts would be irrelevant for First Amendment purposes.

The First Amendment permits the state to restrict the plaintiff's speech if it has "some potential" to affect the state's operations, the court said.

Similarly, the court said, even if the plaintiff was able to "firewall" her blogging so that it did not interfere with her duty to impartially decide special education disputes, "the public perception was that such a feat was impossible." This is a case in which the public perception about the plaintiff became reality, it said. "No matter how many reassurances she uttered, in the minds of the public and bar there arose a fundamental conflict between the Plaintiff's blogging activities and her duties as a hearing officer that could not be resolved."

In a footnote, the court said that same analysis would apply to blogging by higher-ranking members of the judiciary as well:

Consider if a Pennsylvania Supreme Court Justice created a blog to discuss important legal issues of the day, some of which were involved in cases before the Court. Problems similar to those in the case sub judice would arise in this instance. Lawyers practicing in front of the Supreme Court would be obligated to read the Justice’s blog and identify any biases that would materially affect his ability to remain impartial in a particular case. If one was located, the lawyer might properly move for recusal of that Justice. If such a sequence occurred with regularity, not only would the efficiency of the Pennsylvania Supreme Court be adversely effected, but the prudence of retaining the Justice would also be called into question.

Does this mean that lawyers practicing in the Seventh Circuit are obligated to read the Becker-Posner blog?

Federal Circuits Heading Toward Busiest Cyberlaw Year Yet

Seems like recent weeks have produced a blizzard of cyberlaw output from federal circuit courts. Van Alstyne and iParadigms from the Fourth Circuit, In re Sony BMG Music Entertainment and Noonan v. Staples from the First Circuit, and then the big one, Rescuecom v. Google, from the Second Circuit.

Of course, there should be more cases, as online communications become pervasive in our business dealings and personal affairs. Looking back through this year's BNA Electronic Commerce & Law Report, I counted 22 federal circuit-level decisions with cyberspace relevance decided so far this year. That's quite a few relative to prior years. For example, in 1999 we published accounts of just 38 federal circuit-level court opinions (I had a "big tent" view of cyberlaw back then, so the number is likely a little inflated.).

If the current pace keeps up, the circuits should put in their busiest year ever in cyberlaw, surpassing 2003, when I found 91 circuit-level decisions to write about. The data for the past 10 years is set out in the table below:

Year	Decisions
1999	38
2000	49
2001	57
2002	70
2003	91
2004	62
2005	77
2006	56
2007	75
2008	84
2009	23
TOTAL: 682

For whatever reason, a lot of cyberlaw cases were decided in 2003. The year started out with the Ninth Circuit's Kremen v. Cohen on Jan. 3 and ended 90 federal circuit decisions later, on the other side of the country, with the D.C. Circuit's Recording Industry Association of America v. Verizon Internet Services on Dec. 13. Five years later, we are finally creeping back to 2003's high-water mark. The federal circuit court decisions with cyberlaw significance so far in 2009, by my reckoning, are listed below. I've included a link and a summary for the most important decisions.

Friskit Inc. v. RealNetworks Inc. (Fed. Cir. Jan. 12, 2009)

Pitt County NC v. Hotels.com (4th Cir. Jan. 14, 2009)

Doe v. AOL LLC (9th Cir. Jan. 16, 2009)(Forum selection clause designating Virginia as the forum to adjudicate disputes between America Online and its members violates California public policy because it diminishes California residents' right to bring class actions)

Quon v. Arch Wireless Operating Co. (9th Cir. Jan. 27, 2009)(Text messaging service provider may not, consistent with the Stored Communications Act, surrender transcripts of messages sent without the consent of either the sender or the recipient)

United States v. Lewis (1st Cir. Feb. 2, 2009)

Internet Solutions Corp. v. Marshall (11th Cir. Feb. 10, 2009)

Verizon Calif. v. FCC (D.C. Cir. Feb. 10, 2009)

Oldfield v. Pueblo de Bahia Lora SA (11th Cir. Feb. 12, 2009)

Noonan v. Staples Inc. (1st Cir. Feb. 13, 2009)(Company could face defamation liability for publishing a mass e-mail containing true statements about a former employee if it acted with “ill will”)

National Cable & Telecommunications Assoc. v. Federal Communications Commission (D.C. Cir. Feb. 13, 2009)

Video Software Dealers Assoc. v. Schwarzenegger (9th Cir. Feb. 20, 2009)(California law prohibiting the sale of violent video games to minors does not survive strict scrutiny under the First Amendment)

United States v. Siegelman (11th Cir. March 6, 2009)

In re Yahoo! Inc. (5th Cir. March 11, 2009)(Forum-selection clause in an agreement between Yahoo! Inc. and American Airlines, through which American Airlines purchased sponsored advertising, did not control in trademark lawsuit not arising from advertising agreement)

Internet Specialties West Inc. v. Milon-DiGiorgio Enterprises Inc. (9th *Cir. March 17, 2009)

Van Alstyne v. Elec. Scriptorium Ltd. (4th Cir. March 18, 2009)(Former marketing executive who discovered that her boss accessed her personal e-mail account during and after her employment must show she suffered actual damages in order to obtain statutory damages under the Stored Communications Act)

Levesque v. Doocy (1st Cir. March 19, 2009)

Consulting Engineers Corp. v. Geometric Ltd. (4th Cir. March 23, 2009)

Chalk v. T-Mobile USA Inc. (9th Cir. March 27, 2009)

Rescuecom Corp. v. Google (2d Cir. April 3, 2009)(Google's sale of trademarks as sponsored links is an actionable use in commerce for purposes of the Lanham Act)

Beltronics USA Inc. v. Midwest Inventory Distribution LLC (10th Cir. April 9, 2009)(In trademark infringement action, the first sale defense is not available to infringers when they resell trademarked goods with a warranty different from the manufacturer's and do not sufficiently disclose the difference to consumers)

Southern Co. v. Dauben Inc. (5th Cir. April 15, 2009) (Trial court court abused its discretion by issuing a preliminary injunction under the Anticybersquatting Consumer Protection Act without considering domain name registrant's fair use defense)

A.V. v. iParadigms (4th Cir. April 16, 2009)(Web site's act of copying student papers for purpose of detecting plagiarism was non-infringing fair use, despite commercial motivation and fact that entirety of papers were copied)

In re Sony BMG Music Entertainment (1st Cir. April 16, 2009)(Federal district court exceeded its discretion in allowing streaming Internet coverage of a hearing in a recording industry case against a university student alleged to have illegally downloaded and shared copyrighted music files over the Web)

If you think I've left off a case, please send me an e-mail.

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Cinderella Stories

When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.

Last night when I finally finished filling out my NCAA basketball tournament brackets (I have Michigan defeating Memphis in the title game), it occurred to me (it was late!) that the way I think about the basketball tournament -- my love of the underdog and my selective memory -- is similar to the way a lot of us view tech policymaking. And that's a bad thing. We tend to cast tech policy matters in terms of win-lose affairs, deluding ourselves into thinking that they will be close, hard-fought close contests. Emotionally, it is satisfying to entertain the idea that the underdog will win. Marketers vs. Privacy Advocates. "Innovators" vs. Telco Operators. IP Owners vs. Fair Use Advocates. But these are never close contests. The same teams always win. What a facile way to look at law.

In sports, as in much of life, we love to root for the underdog. Hoosiers, Rudy, Rocky. It's all the same. Somebody we can identify with lands the big punch, makes a long run, hits the last-second shot and in the process pulls off an improbable yet emotionally satisfying victory.

This is a psychological booby trap that can kill you at tournament time. And in handicapping politics.

That's why they call it March Madness. Delusion is a form of madness. Very few of us possess the hard data necessary to pluck out the best teams among this year's 64 entrants. We have only our emotions. When it comes to filling out our tournament brackets, the exploits of underdogs past loom large in our memories. We remember the underdogs, not the winners.

Not many people remember who won last year's tournament. But everybody remembers Davidson's Stephen Curry draining threes against Gonzaga, Georgetown, and Wisconsin, en route to a two-point loss to Kansas in the Midwest Regional Final.

In 2006, the role of Cinderella was played by George Mason, a small school just south of Washington, D.C., which made it to the Final Four that year, stunning college basketball bluebloods Michigan State, North Carolina, and Connecticut along the way.

Cherished memories of the underdog's rare victory obscures the fact that, in nearly every contest, the favorite wins. David's late, lucky shot against trash-talking Goliath has totally overshadowed the fact that the Philistines dominated the Jews for a generation before that.

The favorite always wins. Three-quarters of the time, anyhow. Perhaps you'll recognize this list of recent tournament winners: Kansas (2008), Florida (2007), Florida (2006), North Carolina (2005), Connecticut (2004), Syracuse (2003), Maryland (2002), Duke (2001), Michigan State (2000), Connecticut (1999), and Kentucky (1998). Not an underdog in the bunch.

Just for facile fun, I've made up a list of the 16 teams I'd put in a hypothetical Tech Policy Bracket. And I've ranked them -- "seeding" in tourney jargon -- according to who has the better record and best prospects for success this year. This list isn't about who I want to win but who has actually been winning these games. All games will be played in Washington, of course.

(1) AT&T. Perennial top seed. Plodding, methodical team. Likes to Big Foot opponents, offense consists mostly of dunks.

(2) IP Owners. Recruits some of the best talent in the country, players have a reputation for flopping. Always pleading with the NCAA for rule changes.

(3) Business Lobbyists. Persistent, in-your-face defensive specialists. Along with AT&T and IP Owners, among the largest donors to the Referee Retention and Retirement Fund. Tends to get the close calls.

(4) Google. Literally came out of nowhere, boasts a "Beat us if you can" attitude. Relationship with referees will be key.

(5) Amazon. Like Google, made it to the Big Dance on hustle alone. Will shoot from anywhere on the court.

(6) Online Marketers. Rarely defeated, they still play with a chip on their shoulder. They love to run up the score on inferior opponents.

(7) White House. Story here is Barack Obama. Lit it up last fall, untested on the big stage.

(8) Apple. Flashy, high-scoring, can beat you with hardware or software. Rabid fans.

(9) Free Software. Fundamentally sound. International fan base. Plays to sellout crowds, possibly due to free ticket promotions.

(10) Bloggers. Reputation for trash-talking and making long shots, players frequently play in their pajamas.

(11) Federal Trade Commission. Fundamentally sound with lots of offensive firepower, but very rarely uses it.

(12) State Legislatures. Historically a powerhouse, lately has fallen on hard times. Resourcefulness is going to be key to victory.

(13) Newspapers. Coping with deteriorating training facilities and loss of alumni support, this year's team is wearing uniforms purchased in 1989.

(14) ICANN. Getting it done with smoke and mirrors, this team often plays abroad. Spends a lot of time on public relations.

(15) Internet User Advocates. Talented but underfunded, the players on this team have not yet learned to play together.

(16) Internet. A hardy opponent, often taken for granted.

(Going to the NIT this year: Microsoft, Yahoo!, Dell, Research in Motion)

Looking to the first round games, I see AT&T (1) easily getting past Internet (16) with a combination of throttling, traffic management, and content deals. The Apple (8) - Free Software (9) matchup is too close to call, I could go either way on it, but I would love to see Apple meet AT&T in the second round. Amazon (5) is going to have a lot of trouble with State Legislatures (12), and I don't see them being able to turn back State Legislatures' need for tax revenues, especially in these tough economic times. Google (4) has been killing Newspapers (13) for years now; that should continue in this game.

The Online Marketers (6) matchup against Federal Trade Commission (11) is game you'd think would be a close one. But historically Online Marketers have won every time. I see them getting through to the next round in easy fashion. It's also a safe bet that Business Lobbyists (3) will crush ICANN (14) in what I see as a low-scoring, defensive battle. I'll be very surprised if ICANN gets makes any of its new gTLD shots.

White House (7) versus Bloggers (10). It's a shame they had to meet in the first round, since Bloggers were so instrumental in Obama's win last fall. I'm going to give this one to White House. Having the Commander in Chief on your team has got to count for something.

The final first round game, IP Owners (2) vs. Internet User Advocates (15), is shaping up to be another walkover. Internet User Advocates didn't score a single point in the Copyright Term Extension Game and scored just a handful of points in the Digital Millennium Copyright Game. No matter how much publicity is given to this game, the fact is that if it wasn't constitutionally required IP Owners and Internet User Advocates wouldn't even be on the same court together.

My Final Four is AT&T, Google, Business Lobbyists, and IP Owners. After that, I don't see Google getting past AT&T. Maybe next year. In the other semi, IP Owners' greater experience and depth, combined with an overwhelming need to win, should get them through to the final. An AT&T-IP Owner final is really too close to call. I've been hearing for years that, if they had the opportunity, they'd cut a deal and share the title. Not this year. My pick: AT&T.

Go Blue.

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Web Host/Kiddie Porn Impresario Isn't Entitled to CDA 230 Immunity

A very interesting case involving online publisher immunity under Section 230 of the Communications Decency Act came out of Michigan earlier this month in the case of People v. Gourlay, No. 271214 (Mich. Ct. App. March 3, 2009)(unpublished). The CDA 230 issue arose in the context of a criminal prosecution for child pornography tucked inside an ineffective assistance of counsel claim. But even at that procedural distance the court's exploration of how CDA Section 230 might apply to hosting unlawful content is worth reading.

It's a weird case, involving an underage boy who was "self-publishing" over the Internet videos of himself engaged in sexual acts. This was before he came to the attention of defendant Gourlay. After the defendant saw the videos on the Internet, he contacted the boy and together they hatched a plan to take the boy's Web site to "the next level." The defendant involved himself in the boy's activities by registering a new domain name, hosting the site, supplying some computer programming to permit the Web site to supply video streaming of the boy's activities via a premium, members-only portion of the site. The defendant also allegedly advised the boy how to use the camera and "act" for maximum effect. Together, they developed two Web sites.

The defendant was tried and convicted of three state-law child pornography offenses. On appeal, he argued that he was entitled to a new trial because his attorney had failed to request a jury instruction advising the jury that, under CDA Section 230, "an Internet service provider does not create pornography by providing bandwidth or by providing technical or artistic assistance."

The appellate court accepted the defendant's arguments that he was an interactive computer service provider for CDA Section 230 purposes, and that CDA Section 230 potentially immunized him from state-law criminal prosecution. At this point, the court could have -- but didn't -- simply ruled that the defendant was an "information content provider" not entitled to immunity because he had involved himself in the creation of the child pornography being streamed via the boy's Web site. CDA Section 230(f)(3) defines an "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet ...."

Instead, the court looked at the elements of the criminal offenses that the defendant was convicted of and compared them to the activities of a hypothetical interactive computer service provider. At least that's what I think the court was doing here. The charged offenses required proof that the defendant actively and intentionally directed the child to engage in sexual activity for the purpose of producing child pornography. Other charges for distributing or promoting child porn required proof that the defendant promoted or distributed child pornography with criminal intent. In other words, the court said, the prosecution alleged and proved that the defendant was a knowing, active participant in the creation of the two Web sites. These activities do not fit the definition of an interactive computer service provider, the court reasoned, so the defendant was not entitled to a jury instruction on CDA Section 230.

Along the way the court remarked that it could imagine a child porn prosecution in which a Web host was entitled to a CDA Section 230 defense, such as might be the case if a Web host continued to make available child porn even after it had received notice that the material was available on its network. "However," it said, "the prosecution of defendant for distributing or promoting child sexually abusive material was not based on such a theory."

Who knows what to make of this case? I don't think it stands for the proposition that a Web host distributing user-generated pornography is in danger of losing its CDA Section 230 immunity. The defendant recruited the boy to go into business with him, so he was actively involved in the creation of the unlawful material. The court made no mention of whether the defendant was making money off the site other than a hosting fee (unfortunately, though the statute seems indifferent to this fact). And, as for his claim that the programming, domain name registration, and other hosting services he offered to the boy were standard Web hosting services, the court noted that the defendant failed to present any evidence at trial that he provided similar services to other customers.

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