By Brian Lynch

Janet Jackson’s relevance in pop culture has likely faded, but her 2004 Super Bowl performance has had a lasting impact on broadcasting.  That performance of course featured the infamous wardrobe malfunction in which Miss Jackson barred her breast on live television.  The incident resulted in more than 500,000 complaints to the Federal Communications Commission and led to the stepped up enforcement of the FCC’s policy against fleeting expletives and images.

On Tuesday the United States Supreme Court heard oral arguments concerning the enforcement of the policy in FCC v. Fox Television Stations, Inc.  The question before the Court: Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.  More specifically, do the rules have a chilling effect on free speech and are rules unconstitutionally vague?

The commission’s power to restrict speech stems from the FCC v. Pacifica Foundation decision in 1978.  In Pacifica the Court ruled against the radio broadcast of George Carlin’s infamous seven filthy words comedy bit and gave the commission the power to restrict profane language from broadcast television and radio.  The reasoning behind the decision was to protect children from the intrusion of profanity into a home via radio and television.  The Court noted:

“Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”

Does that reasoning still fly today? 

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By Brian Lynch

Here’s a look back at the some of the top media law stories from 2011:

INTERNET PIRACY REGULATION

New Version of ‘Stop Online Piracy Act’ as Controversial as Ever | The Hollywood Reporter   

Fight the Blacklist: A Toolkit for Anti-SOPA Activism Created by the Ever-vigilant EFF | EFF

Harvard Law Professor Explains Why Felony Streaming Provisions Do Put Justin Bieber At Risk Of Jail | Tech Dirt

SOPA Supporter: If You Use DNSSEC You Can Ignore SOPA/PIPA | Tech Dirt

Compromise: SOPA | Future of Internet

The Good and the Bad of the New OPEN Bill From Wyden And Issa | Tech Dirt

Lawmaker Opposition to SOPA Grows | Washington Post 

More And More People Speak Up Against SOPA | TechDirt 

Why Can’t PROTECT IP Supporters Just Admit that It’s about Censorship? | Tech Dirt

OCCUPY WALL STREET COVERAGE

Occupy Wall Street, the NYPD and the Media: Reconsidering the ‘Press Pass’ in a Digital Age | Mediaite 

Media Can Avoid NYPD Arrest by Getting Press Pass They Can’t Get | Wired

Know Your Rights & Protect Yourself: A Cell Phone Guide for Occupy Wall | EFF

Does the NYPD Really Think That Shooting Photos/Videos of Protests is ‘Disorderly Conduct?’ | Techdirt

NEWS OF THE WORLD PHONE HACKING SCANDAL

Quick guide to the News Corp hacking scandal | Reuters

News Corp. Scandal | Bloomberg

News Corp: Phone-Hacking Scandal Could ‘Impair’ Business | Guardian

Tipping points: How the News Corp. scandal blossomed | Washington Post

ONLINE PRIVACY

FTC Proposes Settlement to Address Facebook’s Failure to Keep Privacy Promises to Users | Federal Trade Commision

Facebook’s Settlement with FTC Confirmed: Privacy Changes Must be Opt- In | TechCrunch

Facebook Agrees To Submit To Independent Privacy Audits For The Next 20 Years | TechDirt 

Examination Of Privacy Policies Shows A Few Troubling Trends | TechCrunch

Amazon to Congress: No, Silk Won’t Invade People’s Privacy | Ars Technica

Kindle Fire Draws Privacy Slam from Congressman | Information Week

FTC Privacy Czar To Entrepreneurs: “If You Don’t Want To See Us, Don’t Collect Data You Don’t Need”  

Facebook Accused of Violating US Wiretap Law | The Register

Report: Apple, Google Collecting Location Data on Users | USA Today

NET NEUTRALITY

Why Net Neutrality Is Better for Business | PC World

D.C. Court Will Hear Net Neutrality Lawsuits | National Journal

Public Interest Groups Across Spectrum Oppose Net Neutrality Regs | Technology Liberation Front

The FCC’s Net Neutrality Rules: A Tale of Two Internets | New Media Rights

FCC Finalizes Net Neutrality Rules; Sets Start Date of Nov. 20 | Reuters 

CAMERAS IN THE COURTROOM

Suffolk Media Law Joins the Call to Televise Heathcare Law Arguments | Suffolk Media Law

Internet Video Archive of Court Proceedings Challenged in Massachusetts | Suffolk Media Law

Arrested for Videotaping Inside New Hampshire Courthouse (video) | Pixiq

CAMERAS ON THE POLICE

Chicago Police Investigated for Seizing Camera, Deleting Video Footage of Arrest | RCFP

N.H. Judge Upholds Right to Record Police in Public | The New American

Milwaukee Police Chief Says He’ll Meet Media Following Photographers’ Arrests | Journal Sentinel

A Victory for Recording in Public! | Citizen Media Law Project

Police Sued for Wrongfully Arresting Bystander Videotaping Officers | Suffolk Media Law

RIGHTHAVEN 

Righthaven Loses (Big Time) In Colorado As Well | Tech Dirt

Righthaven’s Copyright Trolling is a Bankrupt Idea | Citizen Media Law Project

Copyright Troll Righthaven Goes on Life Support | Wired

Court Slams Righthaven (Again); Refuses to Let It Back into Democratic Underground Case | Tech Dirt 

Righthaven Rocked, Owes $34,000 After “Fair Use” Loss | Ars Technica  

Righthaven Facing Class Action Lawsuit Over Its Sham Copyright Transfer And Lawsuits | Techdirt

The Sound of Fury in Recent Righthaven Cases | CMLP

By Brian Lynch

Communication Law Internship Funding:

The Federal Communications Bar Association Foundation is now accepting applications for funding of unpaid communications related legal internships.  The Foundation will award several stipends to law students employed as unpaid summer interns in positions with the FCC and other Federal, state and local government agencies with a connection to the communications industry.

For more information and an application, click here FCBA.org.

Internet Policy Fellowship:

The Google Policy Fellowship program offers undergraduate, graduate, and law students interested in Internet and technology policy the opportunity to spend the summer contributing to the public dialogue on these issues, and exploring future academic and professional interests.  Fellows will have the opportunity to work at public interest organizations at the forefront of debates on broadband and access policy, content regulation, copyright and trademark reform, consumer privacy, open government, and more.

For more information and an application,click here google.com.

By Justin Silverman

Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov. Paul LePage believes it’s none of the public’s business. When it comes to his meals, what’s eaten in the governor’s mansion stays in the governor’s mansion — the state’s Freedom of Access Act be damned.

“We have received requests for all grocery receipts from the Blaine House,” LePage wrote earlier this year. “I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

In a July letter to Maine’s right-to-know advisory committee, LePage expressed concern over a prying public interested in matters beyond government business and political foes making “incredibly broad requests” merely to overwork his staff. The committee responded earlier this month by approving a plan to exempt all the governor’s “working papers” from the state’s Freedom of Access Act. As critics of the proposal lament, it’s not clear what documents are considered “working papers” or how the exemption addresses the governor’s initial concerns over grocery receipts. Still, the proposal makes Maine the latest of several states to have recently considered narrowing their respective FOI laws.

According to the Sunshine Review, 12 states this year proposed a total of 39 bills that, if made law, would at least partially narrow their FOI statutes. Some of these bills died before passage, though many remain active and are just a governor’s signature away from becoming law.

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by Rasheed Townes

In the past week a long-simmering feud between the online file-sharing system, Mega Upload and the music industry boiled over when a music video touting the online “file-locker” went viral, and was then promptly taken down on YouTube.  A video news segment that contained a video within its report on the controversy saw the entire news report removed because it contained said music video.   MegaUpload filed an injunction in federal court against Universal Music Group (UMG), the firm behind the video removal, which then had to explain the takedown requests via court filings.  The confusion stems from the fact that the music video seems to contain all original content, even if the MegaUpload file service allows users to share copyrighted material MegaUpload does not own.  One report was that the music video used the image of an UMG artist without permission.   The judge denied the restraining order request after MegaUpload admitted that its request was moot.  MegaUpload retains the right to file for a preliminary injunction and for discovery, meaning that this case between MegaUpload and UMG is not finished.

This process has caused many to consider the confusing ramifications of UMG’s act and the takedown process in general.  The worry is that this is an attempt by UMG to censor the media and any rival firm it does not like.   Many bloggers, like tech website Ars Technica, believe that this gives firms like UMG the power to remove objectionable content from the internet if they have a separate contract with the website hosting the video.  UMG argues that it does not have to follow the process outlined in the Digital Millennium Copyright Act (DMCA) if such a contractual relationship exist, meaning that they believe a firm does not have to prove that it owns the copyrighted material it claims is being exploited.   The DMCA aimed to protect copyright holders and disallow them from blocking videos they have not rights to, but it appears that the DMCA has weak protections against such takedown abuse.  While the DMCA contains damages against copyright holders who abuse the process, it does not allow courts to prevent copyright holders from sending such wasteful takedown orders.

Since the exact criteria for taking down videos, as it is laid out in the contract between You Tube and media companies like UMG is unknown, it could very well be that UMG might prevail in its case against MegaUpload.  It appears that the video has been restored, or that too many people have uploaded the video overwhelming the attempted takedown.  For its part YouTube said that it does not allow its business partners broad discretion videos they do not like.

Yet the problem remains. Despite YouTube’s claims to the contrary, what is to stop a media company from using their contractual relationship to frustrate a rival media company for producing material it does not like?  For example, take this article  by Courtney Love back in 2000 at the online magazine Salon on the economics of the music industry.  Expansive in scope, the article, by one of the most successful rock musicians of the 2000s, explains every legal and financial decision a musician makes to explain where the inequities of the system lie.  One might think that in the year 2000, her main concern would be Napster and other technological disruptions.  Instead her problem was with the record companies, the laws they lobbied for, and the economic system that reduces her profit and economic impetus to remain a professional musician.  Would this article be written a decade later?  What if it was a video blog posted to YouTube or Vimeo or some other website?  What is stopping UMG or some other record company from using their contractual relationships to take it down because they find her opinion too objectionable?  Nothing much, so it seems.

By Justin Silverman

In response to local Occupy protests, Tennessee Safety Commissioner Bill Gibbons said in October that “we don’t have the resources to go out and, in effect, babysit protesters.” But as the Nashville Scene recently reported, that’s exactly what police officers did — and they did so while undercover.

According to the Scene, which received the officers’ correspondence from the Tennessee Department of Safety and Homeland Security, state troopers covertly infiltrated the Occupy Nashville encampment for about a month and emailed their observations to superiors.

The Scene’s Jonathan Meador wrote that while the emails show “troopers repeatedly comment[ed] on the peaceful and friendly nature of the protesters” at the start, by Oct. 25 the state government was far more focused on, shall we say, bodily functions. Wrote State Capitol Facility Administrator David Carpenter, quoting an unnamed legislative staff member:

“There is an orgy going on out on the plaza. Celeste just saw a girl give a guy a ——job [sic] right in front of her window. She banged on the window and they just looked at her and kept going. The smokers are saying the smell of urine is so strong out on the WMB plaza that it’s unbearable. These people have been smoking pot, defecating and urinating all over the place and from what we understand out security has it’s [sic] hands tied….”

The reconnaissance mission turned into a daily log of citations for public urination, sanitation offenses, and what Connie Ridley, director for the Office of Legislative Administration, called one couple’s “inappropriate relations behind the magnolia trees.”

Such intelligence gathering is a far cry from that of communist-era Red Squads and the methods of these troopers appear to be on the right side of the law. Still, with the proliferation of Occupy protests, covert government surveillance of political assemblies may be spreading. It’s happening in Nashville, New York, Oakland and presumably other major cities. It’s taking the form of undercover agents, unmarked police cars and attempts to access secure chat rooms.

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By Brian Lynch

Within the Communication Decency Act lies the best friend of many websites, the §230 safe harbor which immunizes websites from liability for content posted by the site’s users.  Plaintiffs harmed by online messages are often left to either track down anonymous posters or attempt to get around §230 and go after the website host.  Not surprisingly the broad immunity granted to websites by §230 is controversial and has proponents on the both sides of the immunity spectrum.  One thing is clear though, plaintiffs will continue to try and beat the safe harbor with workarounds.

In the recent lawsuit Levitt v. Yelp!, several advertising clients of the review site Yelp! claimed Yelp! removed user reviews to create fraudulent star ratings of the businesses.  The plaintiffs accused Yelp! of using the lower ratings to extort higher advertising rates in exchange for a higher user rating.  Although the allegations were deemed speculative, the court held the action of removing user reviews was an acceptable editorial function that would not preclude the safe harbor, regardless if done in bad faith. 

In another recent case, Hopkins v. Doe #1, the plaintiff argued a similar angle claiming fraud by the defendant should trump the safe harbor.  The plaintiff brought a defamation lawsuit against several anonymous posters and the website where the messages were posted.  The plaintiff attempted to get around §230 by claiming the host site fraudulently violated its promise of policing content in a timely manner.  The court rejected the assertion of a violation noting the defendant’s terms of use also “expressly disclaimed liability for any content that is provided or posted by [users] or others and has stated that it is not responsible for any failure or delay in removing any content.”

Nice try, but no dice.

Image “Keyboard in Action” courtesy of Flickr user “lapideo” licensed under Creative Commons BY-NC-ND 2.0 license.

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

“I’m listening to a marriage disintegrate at a table next to me in this restaurant,” he wrote. “Aaron Sorkin couldn’t write this better.” He then proceeded to quote the unwitting actors at length, concluding with an exterior photo of the now very public stage, or as he called it, “the restaurant of broken dreams.”

While tweeting the anonymous conversations of others is not uncommon (read yesterday’s account of an irate plane passenger, courtesy of comedian and fellow traveler Patton Oswalt), Boyle added to his narrative a photo of the couple and instantly sparked a much-needed conversation on privacy, ethics, and online etiquette, now known as#BurgerKingBreakup. In the words of @HuffingtonPost, the Twitterverse exploded.

@dcborn61 Even if a private discussion of that nature is taking place in public, don’t think it is right to tweet the conversation.

@flutefemme When you kill your marriage in such public place, why, then, are you surprised it got tweeted all over the internet?

@NewsEnthusiast Tweeting abt the breakup would have been ok if pic were not involved

@Dre86inSD It’s one thing to tweet, “I saw a couple arguin inside BK!”, it’s another thing to play-by-play. Mind ya bidness.

This is just a small sampling of the conversation, a dialogue on privacy among those who typically set their social default to “public.” Though I find this debate the most interesting part of the story, let me briefly address the legal issues involved in Boyle’s broadcast of the breakup.

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By Brian Lynch

The Supreme Court of the United States recently announced it would hear oral arguments in three cases involving the Patient Protection and Affordable Care Act, also known as Obamacare.  Likely in recognition of the fierce debate over the law, the Court has allotted five and one-half hours for the arguments.  Citizens for Responsibility and Ethics in Washington is urging Chief Justice Roberts to allow televising of the arguments due to the importance of these cases.  Suffolk Media Law has joined the call to grant citizens access to the process and signed on to the letter.

Dear Chief Justice Roberts:

As organizations and individuals dedicated to transparency in government, we write to urge you to allow televising of oral arguments in the three cases before the Court addressing the Patient Protection and Affordable Care Act, Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393, Florida v. U.S. Dep’t of Health & Human Serv., No. 11, 400, and U.S. Dep’t of Health & Human Serv. v. Florida, No. 11-398. These cases present some of the most significant issues to come before this Court in modern times, and the Court’s resolution of these matters will have an enormous impact on our entire country.

The importance of these cases to the American public cannot be denied. Indeed, the Court at least implicitly recognized their gravity by scheduling five and one-half hours for oral argument. The issue of access to affordable health care strikes at the core of our relationship with our government, especially in this time of great economic turmoil. Further, the cases involve weighty questions regarding the right of the federal government to mandate both state and individual action.

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By Brian Lynch

OpenCourt is a project run by WBUR that live streams court proceedings from the Quincy Massachusetts District Court over the web.  The project states its mission is “to experiment with how digital technologies can foster the openness of the American courts with the idea that more transparent courts make for a stronger democracy.”   In addition to the live stream, the videos are archived and available for viewing by registered users of OpenCourt.

Two parties from separate cases before the district court objected to the videos out of concern sensitive information would be available on the web.  One party was abducted as a teen and forced into prostitution.  She fears posting her identity on the internet will cause her to be victimized again.  The other party is a criminal defendant who believes video from a pretrial hearing would prejudice him at trial.  This week the Supreme Judicial Court heard arguments asking the court to impose limitations on the OpenCourt project.

The SJC is being asked to decide if the proposed restrictions violate OpenCourt’s First Amendment rights by preventing it from publishing information it has lawfully gathered, in deference to the victim’s privacy rights and the defendant’s due process rights.  The Boston Globe reported Justice Ralph Gants remarked; “[If] we are going to be ordering BU not to publish. … How is that not prior restraint?”  Prior restraint is the government’s restriction of speech prior to publication and is presumed unconstitutional.

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