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? 

Technology has certainly changed the media landscape.  Broadcast networks are no longer king as cable and satellite television and the Internet have equaled or exceeded broadcast television’s pervasive presence in our lives.  Only about 10% of households do not subscribe to cable or satellite television and rely solely on over-the-air broadcast signals.  Additionally more viewers are relying on the internet to view broadcast TV shows.  The notion broadcast television is an intrusion into a home is no longer applicable.  People pay to have broadcast television content beamed directly to their big screen TV’s or laptops.  During Tuesday’s oral arguments, Justice Kagan questioned if viewers today could even distinguish between broadcast TV and cable TV networks.

Although broadcast TV is no longer uniquely pervasive, the potential exposure of questionable content to children is still possible.  Without regulation, would the networks become unwatchable “filth” to families?  Basic cable tells us no.  The cable networks regulate themselves and most do not allow profanity on air.  It is unlikely broadcast networks would change course.  The market dictates what content is acceptable to audiences and basic cable demonstrates profanity doesn’t sell to the masses. (Or maybe it does.  See The Sopranos).

One of the strongest arguments put forward by the television networks is the seemingly arbitrary way the policy is being enforced.  In one instance curse words broadcast during an airing of the movie Saving Private Ryan were deemed acceptable.  But the commission deemed profanity broadcast during a documentary by Martin Scorsese to be indecent.  See this previous Suffolk Media Law article examining the vagueness of the FCC policy.

Although the enforcement of the policy has been questionable, it does not mean the FCC doesn’t have the power to restrict indecent speech from broadcasts.  Could the Supreme Court find the policy too vague?  Probably.  But will it overturn Pacifica and give the networks free reign?  Probably not. 

Go here for a transcript of the oral arguments.

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

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.

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.

One of those bills is Illinois HB 1716 which would significantly alter that state’s Freedom of Information Act by increasing fees for certain record requests and by imposing less favorable deadlines and fees on repeat requesters. It would also entitle Illinois agencies to additional exemptions and redactions before disclosure.

“Instead of trying to limit FOIA, government agencies and municipalities throughout Illinois should be putting their time and energy into transparency efforts that make them more accessible to and candid with the taxpayers who are funding them,” wrote Andy Shaw, president of the Better Government Association. “Limiting taxpayers’ access to information about their government, and deciding that some are more worthy of receiving the information than others, is simply bad policy.”

Other examples of proposed legislation include House Bill 347 in New Hampshire that would exempt police reports of car crashes involving undercover police, House Bill 1 in Ohio that exempts the publicly-funded JobsOhio agency from all public records and open meeting requirements, and House Bill 883 in Missouri that could make violent crime scene photographs or videos confidential.

Unfortunately, for many state officials, transparency is just an election day pitch. Gov. LePage’s pre-election pledges are prime examples. According to the Reporters Committee for Freedom of the Press, LePage devoted an entire section of his campaign website to open government. LePage “will fight for stronger laws to protect and expand Maine citizens’ right to access information from state and local government,” the site advertised. “When Paul is governor, open government will be a reality, not a talking point.” Then, just months after being elected governor, LePage signed an executive order exempting a business advisory council from the state’s Freedom of Access Act.

LePage is not alone in breaking such promises. Fla. Gov. Rick Scott proclaimed that “without transparency, there is no accountability” and then, in the opinion of local media members, avoided the press more than any other governor before him. Ohio Gov. John Kasich said that his “bias is towards openness,” and then replaced his Department of Development with JobsOhio, the private non-profit group he intends to exempt from the state’s FOI laws. Wis. Gov. Scott Walker actually pledged to “run the most open, transparent gubernatorial administration in the history of the universe.” He later faced a lawsuit by members of Wisconsin media after refusing to release emails referred to in his speeches.

“What you see is people running for public offices, governors certainly among them, embracing transparency in a sort of abstract way when they are on the campaign trail, without probably giving much thought to what it means when you are governing,” explained Charles Davis, the former executive director of the National Freedom of Information Coalition.

A study published last summer provides a timely lesson to these officials looking to cloud their state’s sunshine laws. Essentially, it quantifies what FOI advocates already know: The more open a government, the more deterrence of corruption. According to the study’s authors:

“One of the most important changes in the relationship between public officials and the press in recent years has been the widespread adoption of FOIA laws at multiple levels of government. These laws provide clear guarantees regarding the rights of individuals and organizations to access information about government activities, and they make it easier for members of the press and members of the public at large to hold those in power accountable for their actions.”

To find that accountability, the study examined the connection between states strengthening their FOI laws and the proceeding corruption convictions for state and local government officials. It found that conviction rates rise substantially after the change in law and then decline for as long as 15 years. In summary,

“[t]he enaction of a strong FOIA law leads to a substantial increase in the rate at which corrupt acts are convicted. Depending on the specification, the rate approximately doubles, or perhaps slightly more than doubles. If taken at face value, this obviously has important policy implications. States can substantially increase the probability that corrupt officials will be unmasked and prosecuted by enacting strong FOIA laws.”

It should be no surprise then that of the 12 states proposing bills this year to narrow their sunshine laws, only four were ranked in the top half of the Better Government Association’s 2008 Alper Integrity Index. That’s strong evidence to support the rhetoric most often used by FOI advocates. It goes to the heart of why sunshine laws are necessary: To prevent corruption.

Gov. LePage may be wary of the public inspecting his grocery bill, but it’s a small price to pay for the confidence of constituents. By griping over potential culinary oversight, he opened the door to far more dangerous FOI exemptions. Citizens of other states should take note. While some legislatures are preserving their sunshine laws — some even strengthening them! — many are not. That’s a troubling sign for accountability, a principle that deserves more than mere lip service by our elected officials.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of “Whoopie pies” used courtesy of Flickr user joyosity under a Creative Commons BY NC 2.0 license.)

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.

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.

Apparently undercover police are easy to spot, so why the concern? Because when it comes to the surveillance of First Amendment protected activity, this country has a troubled past. It seems the more power given to law enforcement, the more likely it is to exceed that authority. Known government surveillance of political activity peaked in the mid-1950s with the creation of an FBI program called COINTELPRO, an acronym for Counter Intelligence Program. This program intended to disrupt domestic political organizations through covert and often illegal surveillance. Targets included anti-war and civil rights groups. After documents describing the COINTELPRO operations became public, a U.S. Senate committee convened to investigate. In its 1976 final report, it found that:

“[t]he Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone “bugs”, surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens… The Constitutional system of checks and balances has not adequately controlled intelligence activities.”

Following the investigation into COINTELPRO, several important court decisions led to the overhaul of how major city police departments gathered information. Many of these departments agreed to strictly limit or prohibit outright the investigation of political activity. The New York City Police Department, for example, agreed not to investigate political and religious groups unless they had “specific information” that the organization had committed or was about to commit a crime. See Handschu v. Special Services Div., 605 F.Supp. 1384 (S.D.N.Y. 1985). In contrast, the U.S. Supreme Court found in Laird v. Tatum, 408 U.S. 1 (1972), that the undercover surveillance of political activity alone did not violate the federal constitution. The claim that First Amendment rights are chilled by covert data-gathering lacked ripeness in absence of objective harm or threat of specific future harm. Id. So, these decrees tied the overreaching hands of law enforcement in ways the federal constitution did not.

After 9/11, the decrees changed, or at least weakened. Various courts whittled away the protections granted in the agreements. New York police, for example, no longer needed “specific information” but instead could begin an investigation on facts that “reasonably indicate” a future crime. The repercussions spread quickly in that state where police began to pose as activists and sympathizers of various infiltrated groups. Perhaps most publicized is the NYPD’s collection of data on those planning to protest at the 2004 Republican National Convention in New York City.  According to an August 2010 report by the American Civil Liberties Union, many other states engaged in similar tactics.

“United States law enforcement agencies, from the FBI to local police, have a long history of spying on American citizens and infiltrating or otherwise obstructing political activist groups,” according to the report. “Unfortunately, it appears that these old tendencies have once again come to the fore. Law enforcement agencies across America continue to monitor and harass groups and individuals for doing little more than peacefully exercising their First Amendment rights.”

The ACLU detailed cases in 33 states and the District of Columbia where “Americans have been put under surveillance or harassed by the police just for deciding to organize, march, protest, espouse unusual viewpoints, and engage in normal, innocuous behaviors such as writing notes or taking photographs in public.” The concern in these cases is best explained by Justice Douglas in his dissent inLaird.

“The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.” Laird, 408 U.S. at 29

Unfortunately, this was the losing argument. While some are lobbying to ban the practice, police seem able to monitor First Amendment protected activity with impunity. Under Laird, there is no chilling effect. That doesn’t necessarily mean, however, that those speakers are prohibited from reviewing the surveillance of them. If a protestor cannot stop police from taking notes, a current lawsuit in Massachusetts may at least help that protestor find out what’s being written.

The plaintiffs in ACLU v. Davis seek the disclosure of information about the Boston Police Department’s surveillance operations, including its monitoring of political activities. The ACLU of Massachusetts and the local National Lawyers Guild filed the complaint in August under the state’s public record law and on behalf of several political groups and activists, separate from the Occupy movement.

“We brought this suit because we believe the public should know what information is being collected about political activities, how it is being used, and what policies — if any — are in place to protect privacy and individual liberty,” according to the ACLU. “When police become agents of surveillance, keeping track of political activities, there is a chilling effect on people’s ability to express their political views in public.”

If Justice Douglas’s dissent in Laird is to be believed, an ACLU win in Davis and a more transparent view of government surveillance will help keep speech from being chilled. The spying of those practicing their First Amendment freedoms becomes more palatable if the public knows what is being recorded — or in Nashville, knows that the undercover police are focused more on the magnolia tree than the podium.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of “saucer magnolia tree” used and modified courtesy of Flickr user a_soft_world under a Creative Commons BY NC 2.0 license.)

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.

“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.

There is generally no expectation of privacy in public places. This incident, however, occurred in Massachusetts which recognizes a legal claim for publication of private facts. For the couple to prevail with such a claim, they would need to show that their conversation was of a “highly personal or intimate nature” and was “of no business to the public.” Their conversation about divorce probably qualifies on both accounts. But given the couple’s insistence on having the conversation in public — consider, for example, the husband’s statement, “Let’s do this here. Everyone needs to know what kind of a wife you are” — it’s not likely they would succeed. Their actions show an intent to make their comments public. They were hardly being discreet. See Cefalu v. Globe Newspaper Co., 391 N.E.2d 935 (Mass.App.Ct. 1979) (“The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects.”)

Another point of concern is the Massachusetts wiretapping statute. MGL Ch. 272 § 99, makes it a crime to secretly record an in-person conversation without the consent of all parties to the conversation. In addition to taking a photo, Boyle recorded a video of the couple, in which their voices can be heard. Though the statute has come under scrutiny in the recent Glik case, the fact pattern here is very different than in Glik (which involved recording cops), and could well expose Boyle to civil or criminal liability.

Legality aside, #BurgerKingBreakup poses interesting questions about how social norms will change — or how they have already changed — due to the unprecedented ease of publishing seemingly private affairs. Will we become a world of Andy Boyles or will we demand the same level of anonymity that existed prior to online media and smartphones? Or, as some believe, are we now creating new social boundaries that recognize the ability to publicize while discouraging the live broadcast of daily trials experienced by us all?

To David Pell at Gizmodo, Boyle’s actions confirm the worst. The day Boyle began tweeting the couple’s conversation was “the day privacy died.” Pell wrote:

[If] Andy Boyle’s actions are an indication of a broader trend, we are entering the age of the unintended celebrity, where the new rules state that we all run the risks associated with fame without necessarily enjoying any of its benefits. There’s a new reality show and you’re the star, whether you like it or not. Someone should follow you around all day yelling, “action!”

While I can understand Pell’s fear of producing a million Truman Shows, he himself acknowledged that “almost everyone I’ve talk to is repulsed by what took place at Boyle’s Burger King table… The curiosity about someone else’s life was outweighed by a disgust with the messenger.” I too felt that disgust, though only because of the photo.

It’s one thing to satisfy your inner voyeur through reading a conversation by an anonymous couple, it’s another thing altogether to link that conversation with a photo of those speaking. That photo permanently connects the couple to a transcript of their argument, perhaps acceptable to them if heard by a small room of strangers but maybe less so if available to the world. It’s uncomfortable for me to read the tweets knowing that the photo could have easily been one of my wife and I during a rare public meltdown. As Kashmir Hill of Forbes wrote, “I love a good overheard conversation, but I suggest saving ‘Internet shaming with photos’ for people who deserve it.”

Hill’s suggestion may already be resonating. A study published last year on privacy expectations found that of those surveyed, 86 percent believed that permission should be given before another person uploads a video or photo of them. Most surprisingly, those who grew up with the Internet and who are now shaping our future sense of privacy felt the same way. Of those between 18 and 24 years old, 84 percent believed their image should not be posted online unless they give consent.

Even younger Internet users value their privacy, though their definitions of such privacy may differ. Researchers Danah Boyd and Alice Marwick wrote in a study earlier this year that “there’s a widespread myth that American teenagers don’t care about privacy. The logic is simple: Why else would teenagers share so much on Facebook and Twitter and YouTube?… [P]articipation in such networked publics does not imply that today’s teens rejected privacy as a value. All teens have a sense of privacy, although their definitions of privacy vary greatly.” For the youngest generation of Internet users, privacy isn’t dead. It’s just changing. We are adjusting to new technology and reconsidering the social norms many now consider vulnerable.

Attorney and author Stewart Baker explained last week, in a panel assembled by The Wall Street Journal, that our collective sense of what should be private has been changing since, well, Justice Louis Brandeis himself declared privacy as a legal right.

The man who invented the right to privacy, Louis Brandeis, was appalled that ordinary newsmen could snap his picture and print it in the paper without so much as a by-your-leave. And most of us can sympathize, if we remember the shock of seeing ourselves in a photo, looking quite different than we imagined. But no one today thinks that photography is a privacy violation. We’ve adjusted to the new technology.

In his book Public Parts, Jeff Jarvis endorsed a specific social adjustment that would allow a public life while encouraging a more thoughtful consideration of what ultimately should be publicized. There is a growing inclination to shed anonymity in favor of showing one’s authentic identity, faults and all, Jarvis wrote. The risk of exposing oneself — through unflattering Facebook photos, for example — is that others are likely to ridicule you, even though they too have similar skeletons. While the couple at Burger King did not voluntarily post information about themselves, the following from Jarvis is equally pertinent in regard to sharing information about others:

What needs to change is not so much our behavior, our rules, or our technology but, again, our norms: how we operate as a society and interact with each other. When presented with someone’s public face, which may differ from our own, is our response to disapprove, condemn, ridicule, and snipe, or is it to try to understand differences, offer empathy, overlook foolishness, offer freedom, and share in kind? … [B]ecause we are all more public, we will soon operate under the doctrine of mutually assured humiliation: I’ll spare you making fun of your embarrassing pictures if you’ll do the same for me.

I believe this is where we are headed. Ultimately fewer people will be throwing stones, because we now all live in glass houses. This isn’t to say that privacy is dead or dying, it’s only a reminder that our sense of privacy is offended by people’s actions, not the technology that allows such action. If we are to follow that “doctrine of mutually assured humiliation,” it won’t matter that there is a camera in every Burger King. The quarreling couple’s photo will never be taken.

Boyle has since removed the tweet linking to the couple’s photo. I emailed him and asked why. He didn’t respond. My guess is that in hindsight he found a social boundary not evident when he first began to tweet the now infamous Burger King Breakup. I don’t believe he should be demonized for not seeing clearly that which is not clearly defined. As Boyd and Marwick found in their research, privacy is changing. Though unlike some who see a future where all things private are public, I’m more optimistic that despite our ability to make it so, we won’t.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of Photography on Twitter used courtesy of Flickr user marc.benton under a Creative Commons BY NC SA 2.0 license.)

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.

The public needs and deserves to watch how the Court deals with these issues. As former Judge Kenneth W. Starr wrote recently in advocating for opening up the Supreme Court to cameras, “[d]emocracy’s first principles strongly support the people’s right to know how their government works.” Kenneth W. Starr, Open Up High Court to Cameras, New York Times, Oct. 3, 2011. That right extends to the business of the Supreme Court, a court that “issues decisions that profoundly affect the nation.” Id.

Quite simply, the entire nation shares an interest in how the Court will resolve the thorny, yet fundamental issues raised by the Affordable Care Act. Thousands of Americans, if not more, would have a great interest in watching this momentous argument, yet the Court has seating for only approximately 250 visitors. In a matter of this magnitude, citizens should have the opportunity to assess the arguments themselves and in real time, rather than being forced to rely upon later news reports. Please let the nation share a front-row seat by opening up the hearing to cameras.

Very truly yours,

American Booksellers Foundation for Free Expression

American Society of News Editors

Arizona Newspapers Association, Inc.

Association of Capitol Reporters and Editors

Chief Justice Roberts

Citizens for Responsibility and Ethics in Washington

CREDO action

Defending Dissent Foundation

Ellen Smith, Legal Publication Services

Erwin Chemerinsky

Feminists for Free Expression

Government Accountability Project

Health Care for America NOW

isolon.org

Liberty Coalition

National Freedom of Information Coalition

OMB Watch

OpenTheGovernment.org

Project on Government Oversight

Society of Professional Journalists

Suffolk Media Law

The Woodbury Fund

Washington Coalition for Open Government

William A Wise Law Library,

University of Colorado School of Law

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.

The Norfolk District Attorney’s Office and attorneys from the Committee for Public Counsel Service represent the parties that are requesting the videos not be posted.  They argue inter alia that the project should not be viewed as presenting a prior restraint conflict because the audio supplied for the webcast comes from the court’s in house audio feed.  The audio feed should be viewed like a court document and remain in the control of the court.  

Does that argument hold water?  The SJC isn’t expected to decide for weeks, but on its face it doesn’t appear an audio feed is a record.  An audio feed is fleeting, not a documentation of an occurrence.  The actual recording is done by OpenCourt and not the district court as in the case of a stenographer’s transcript.   Additionally the argument leaves open the inference that if OpenCourt used its own microphones it would not be subject to court restrictions.  OpenCourt likely has the technology to do this, but probably chose to use the court’s audio feed for its clarity and to avoid an additional set of unnecessary microphones at each speaking position.

Since Chandler v. Florida was decided 1981, states have the freedom to allow recording devices in court rooms but are not required to do so.  Courts are also given the discretion to impose reasonable restrictions.   In Massachusetts, Supreme Judicial Court Rule 1:19 allows for the broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public, subject to limitations found here.

You can read the briefs each party submitted to the SJC here and here.

Image “Court Drama” courtesy of Flickr user Erin Nealy licensed under a Creative Commons BY-NC- SA 2.0 license.