Tag Archives: law

“Internal evidence of harm has a lot to do with freedom of speech”

“Remember that privacy harm is not only a question of reputation – that’s external harms – but internal harm. if you’re concerned about your reading or watching habits could be watched, you could be chilled. To me, knowing that other people might know, we might say it’s a privacy invasion that could be chilling.

Internal evidence of harm has a lot to do with freedom of speech. If we don’t have a right to read or watch something in a way that can’t be monitored, it goes to free speech.” –Danielle Keats Citron, Professor of Law, University of Maryland School of Law, commenting on an iTunes privacy hole.

[Image Credit: Rob Pongsajapan]

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Supreme Court rules on workplace sexting, upholds 1987 decision on electronic privacy

The Supreme Court of the United States

The Supreme Court of the United States

The Supreme Court released an important decision on electronic privacy in the workplace today, which I’ve embedded below.

In the case of City of Ontario, California v. Quon, the court unanimously upheld a 1987 decision that recognized the workplace privacy rights of government employees.

“The case involved the use of text pagers issued to officers by the city police department,” said Jim Dempsey, the Center for Democracy and Technology’s vice president for public policy.

“When one officer consistently went over the allotted limit on messages, his supervisors obtained stored text messages from the service provider and found that many were personal, not work-related.  The officer claimed that the search violated the Fourth Amendment.  The Supreme Court held that the police department’s actions were reasonable, and thus did not violate the constitutional rights of the police officer.

“What is significant about the Supreme Court’s opinion is what did not happen,” said Dempsey. “Faced with an opportunity to curtail workplace privacy (or electronic privacy generally), the Court noted, applying a 1987 precedent, that government employees generally retain their Fourth Amendment privacy rights, and it assumed that government employees may have a reasonable expectation of privacy even in communications they send during work hours on employer-issued devices.

The case could have had very far-reaching implications because of the way in which work-related and personal communications have become so interwoven, in both the government and the private sectors, as employers expect workers to be always available by cell phone, text and email.  The Court recognized this trend, but declined to set any new rules.”

The New York Times also has published analysis of the ruling,” Justices Allow Search of Workplace Pagers.”

“This ended up as a workplace privacy case for government employees,” said Dempsey. “The message to government employers is that the courts will continue to scrutinize employers’ actions for reasonableness, so supervisors have to be careful. Unless a ‘no privacy’ policy is clear and consistently applied, an employer should assume that employees have a reasonable expectation of privacy and should proceed carefully, with a good reason and a narrow search, before examining employee emails, texts or Internet usage.”

The Supreme Court opinion is online at http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf.

CDT and other privacy advocates filed an amicus brief, cited by the Court in its opinion, urging the Court to tread carefully and avoid casting any doubt on the privacy of new communications technologies. PDF: http://www.cdt.org/files/pdfs/08-1332_bsac_Electronic%20Frontier_Foundation_et_al.pdf.


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Federal court rules against @FCC in Comcast case, lacks authority to regulate net neutrality

As reported by the Associated Press, the U.S. Court of Appeals in the District of Columbia has ruled against the Federal Communication Commission (FCC) failed to show it had the Title 1 authority under the Communications Act of 1934 to tell Comcast what to do to enforce network neutrality rules over broadband Internet providers. The ruling is a significant victory for Comcast Corporation, which had been involved in a dispute with the FCC over network filtering of P2P filesharing software after its customers complained that the cable giant was interfering with P2P apps.

“The commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any statutorily mandated responsibility,” stated a three-judge panel of the DC U.S. Court of Appeals.”

The FCC made the following statement:

 “The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies — all of which will be designed to foster innovation and investment while protecting and empowering consumers — on a solid legal foundation.
“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.”


Today’s decision followed a January hearing where the federal court judges showed skepticism of the FCC’s authority to require broadband Internet providers to give equal treatment to packets as they moved over telecom networks. As Karl Bode writes at DSLreports, before Comcast’s win over the FCC:

Again, no FCC fine was levied, no new rules were imposed, and Comcast barely saw a wrist slap for lying to consumers and the press multiple times, in both filings and in print, about throttling all customer traffic, 24/7 using user packet forgery.

Comcast ultimately shifted to a clear 250 GB monthly cap and a more intelligent and less blunt force method of targeting network congestion. Still, Comcast never much liked the precedent the FCC’s actions set, so Comcast lawyers have spent the last few years trying to argue that the FCC never had the authority to dictate how Comcast manages its network. The FCC found themselves on uncertain legal footing because the rather flimsy network neutrality principles (pdf) created by previous FCC administrations were painfully vague.

The decision creates a roadblock in the FCC’s path towards moving forward with elements of its national broadband plan. The decision might mean, for instance, the FCC lacks the necessary powers it requires to shift spectrum from TV companies to wireless providers.

As a result of the ruling, Comcast and other broadband service providers may reasonably be expected to filter P2P filesharing again. As Cecilia Kang reports at the Washington Post the FCC’s loss in the court “comes just days before the agency accepts final comments on a separate open Internet regulatory effort this Thursday. And the agency will be faced with a steep legal challenge going forward as it attempts to convert itself from a broadcast- and phone-era agency into one that draws new rules for the Internet era.”

The full text of the Comcast vs FCC ruling is embedded below. As comment from the FCC and Comcast becomes available, I’ll post it here.


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SupremeCourt.gov relaunched: Fresh design, old PDFs, broken links, still no video. [#Gov20]

There’s a new .gov on the block: after years of a decidedly dated website, the Supreme Court has a new look — and address — at SupremeCourt.gov. The Supreme Court announced the new site without a great deal of fanfare, sending a release which SCOTUSblog.com posted as a PDF.

As Orin Kerr observes at the Volokh Conspiracy,  the new site replaces the old supremecourtus.gov and drops “us” from the URL. Users still have to enter “www” in, however, which is less than ideal. C’est la vie.

My Supreme Court preview for 2009-2010 has been a constant source of traffic to this blog, demonstrating a continued interest from the online audience in the cases before the highest court in the land.

Despite the “updated and more user-friendly design,” that the release promised, some users may be frustrated.

There’s a separate concern for the rest of the Web, however: as clicking on the links that post show, SupremeCourt.gov webmasters have not forwarded many old URLs to new ones. Many links simply default to the home page. I suspect a few law librarians around the world may have a headache tomorrow.

It’s going to be a grimace-inducing issue for a few newspapers, too, if redirects aren’t rolled into place. The most-debated ruling of recent months, “Citizens United vs. Federal Election Commission,” in which the Justices rejected campaign spending limits?

That’s now a default link to the SupremeCourt.gov home page from the New York Times SCOTUS story on it. (Google also hosts a PDF of the decision, if a searcher is clever enough to find the cached version.) “Citizens United vs. Federal Election Commissionis up at SupremeCourt.gov. It’s just a new URL. SCOTUSblog.com has the same issue with links to opinions. These broken links are going to be a huge headache for organizations of all stripes if the redirects don’t get implemented.

Better calendar, decisions listed, external resources absent

On the positive side, an interactive “argument calendar” is now up on the front page. Clicking on a day brings up the cases to be argued. Another click brings the visitor to a page with a list of the actions that have been taken, along with a link to “Questions presented.”

For those who visit SupremeCourt.gov in search of recent decisions, one click will bring the searcher to a list of Supreme Court decisions from the current term, rendered in chronological order. If you want to go back further, search away – but good luck going very far back in time. A search for another famous case, “Bush v. Gore,” for instance, turns up very little on the new site. The case is just a click away elsewhere, at Supreme.Justia.com, for instance, or at Oyez.org, where audio of Bush v. Gore may be heard. Given the rich resources that exist elsewhere on the Web, it is unfortunate for information-seekers that internal search doesn’t point elsewhere. Even though legal concerns about endorsements of third-party commercial media concerns may pertain, stated website policies would appear to insulate the court against some of those concerns.

Searching for an individual case is improved over the previous function. The search field is clearly viewable on the top right. For those interested in visiting the court, that information is clearly presented and organized. And a FAQ provides a wealth of information for those “frequently asked questions.”

PDFs aplenty, no XML “in site”

It’s also worth observing that most documents on SupremeCourt.gov remain in .PDF format. On the one hand, that may allow it to be spidered by Google. On the other, PDF is definitely not a machine-readable format. Clay Johnson has made a strong case for why that PDFs are problematic for government. I’m not inclined to disagree, although I’d much rather see cases, briefs and other documents posted as PDFs than not at all. Given the continued reliance on PDFs, however, don’t expect enterprising “lawhackers” to create mashups like the ones surrounding data.gov.

Given the improvements to other federal websites, in particular WhiteHouse.gov and the launch of the FCC’s Reboot.gov, I can’t help feel disappointment. The fact that there is no video or audio of cases remains a standing frustration, given the careful questioning and deliberation the justices display and the long hours of preparation counsel undergo to argue cases before the Supreme Court.

The release regarding the new launch further reports the following

Tthe Supreme Court has now assumed management of its own website, retrieving it from the Government Printing Office.” The Court received funding in its FY20 10 appropriation to make the transition from GPO to in-house management. That transition will enable the Court to integrate the Web site with the Court’s other operations, improve the quality of the site, and expand services for the public’s benefit. The Court received funding in its FY20 10 appropriation to make the transition from GPO to in-house management. That transitionwill enable the Court to integrate the Web site with the Court’s other operations, improve thequality of the site, and expand services for the public’s benefit.

SupremeCourt.gov does provide access to opinionsordersdocketCourt calendarstranscriptsschedulesrulesvisitors’ guidescase-handling guidespress releases and other general information.

If the public is to benefit further by leveraging the Internet to gain insight into the Supreme Court’s operations, the webmasters of SupremeCourt.gov might do well to focus their efforts in the rest of the 2010 towards implementing further improved functions as well as that fresh design. If they can fix those broken links and supplement existing case pages with external resources, like the Supreme Court Database, perhaps that livestream of oral arguments can wait for a few more months.

UPDATE: For more coverage on the new SupremeCourt.gov, see:


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Supreme Court preview for the 2009-2010 session from ACS

The Supreme Court of the United States

The Supreme Court of the United States

What cases coming before the Supreme Court will be the “most interesting and have the most impact” on the American people? That’s a matter of considerable interest before the Justices hold their opening conference next Monday.

According to the lawyers assembled for the American Constitution Society for Law and Policy yesterday, the court will consider the constitutionality of life sentences for juveniles, free speech, campaign finance and corporations, revisit  elements of Miranda rights, and hear a case on antitrust on the NFL.

Quite a docket.

The Supreme Court will also, in what Michael Carvin called the “most important separation of powers case in 20 years,” take a hard look at the Public Accounting Oversight Board (PCAOB).  Is the PCAOB, established by the Sarbanes-Oxley Act (SOX),  a “5th branch” of government?

Michael Carvin was just one of an estimable collection of legal minds on the panel, moderated by one Thomas C. Goldstein. Goldstein, along with arguing some 21 cases before the Court, is principally responsible for SCOTUSblog. Goldstein and Carvin were joined by Pamela Harris, executive director of the Supreme Court Institute at the Georgetown Law Center, Doug Kendall, founder and president of the Constitutional Accountability Center, Lisa Kung, director of the Southern Center for Human Rights, Deanne Maynard, partner at Morrison & Foerster and Paul Smith, partner at Jenner & Block.

In the spirit of legally-inspired disclaimers on accuracy of interpretation, I should note before I go any further that, while I have a parent who is a lawyer and am romantically involved with a law professor, I have no formal legal training and came to panel as a journalist and observer.

Campaign Finance

Up to until now, says Doug Kendall, the rule has been to limit corporate participation. The court upheld election communications rule before hand within 30 days. The case before the Court is one that has attracted gallons of media ink, due in no small part to the involvement of a well-known citizen: Secretary of State Hillary Clinton. Consideration of campaign finance is already underway and received additional attention given that it was the first that newly-sworn in Justice Sotomayor has heard.

Doug Kendall brought up the 1990 precedent of “Austin v Michigan” as way of exploring the issue of free speech by a corporation vs speech by an individual. The argument that he put forward goes back to the language of the U.S. Constitution, which refers to persons and people – but not businesses. Kendall argued that the distinction is consistent with first principles. If Austin is overruled, he said, it would unleash corporate campaign expenditures.

Mike Carvin, in a rebuttal that evidenced his considerable experience in courtroom oratory, brought up the example of corporate media outlets like MSNBC or the Washington  Post endorsing a candidate. He questioned whether that would be any different than corporation buying advertising space endorsing a candidate. “Doesn’t think eliminating core political speech rights is consistent,” he said.

Carvin asserted that  26 states don’t regulate speech in this way and don’t operate any differently.  “It would be one thing if we were eviscerating rights for free speech,” said Carvin. “Are we doing this in the name of preserving McCain-Feingold?” He strongly suggested that free speech rights should not “be sacrificed on such slim evidence.”

Kendall observed that the “First Amendment also includes something about the freedom of the press” –  different than, say, Exxon Mobil. “This case raises fundamental questions about what at its core our constitutional protects,” he said, positing the analogy of  “We the people vs We the corporations.”

After that exchange, the substantive issues of whether video depictions of animal cruelty are protected under the First Amendment or national monuments on private land felt positively quotidian, despite the rigorous analysis of the precedents and relevance of the matters.

Miranda,  separation of powers and revisiting federalism

Harris explained that two different cases will be relevant to revisiting Miranda, one of which will address whether a citizen has the right to counsel during questioning. As she pointed out, these cases are “the first real cuts” for Roberts and Alito at the issue.

Another case will visit the question of whether you “deprive employer of honest services” by using business equipment – like, say a computer – on the job for personal or family business. That’s a serious question, given  both the open language and vagueness of the law in question and the way it could impact millions of people who conduct personal business online daily.

Harris also indicated that the case raised questions regarding the separation of powers – classic federalism issues.

Another case, Melendez v Diaz, will focus upon the 6th Amendment, involving the Confrontation Clause. At issue is whether  lab reports represent testimoniasl, which goes to the question of their introduction in trial. Is it enough for a defendant to call the analyst as his own witness? Or does the state need to do so? It “seems like the question is answered,” said Harris.  “What’s different?” The answer is practical: a new Justice. The practical concerns of bringing in analysts each time lab results are presented are significant – doing so would slow process. Given her self-identification as a legal pragmatist, will Sotomayor be more receptive than Souter was?  Harris doesn’t think so.

Separation of powers is also at issue with regards to the Public Accounting Oversight Board (PCAOB), as referenced above. The PCAOB, said Carvin, is “outside of government and presidential control” – that’s a  separation of powers issue.  The defense of agency is “unprecedented in American history,” he said.  The President can appoint or remove chairmen from institutions within the so-called “4th branch,” like the  SEC, FCC or Federal Reserve. In Carvin’s view, PCAOB is a 5th branch,”  with the SEC holding limited ability to influence regulations coming from it.

Criminal matters

According to Lisa Kung, Troy, Alabama has the highest number of capital convictions in the state. The case  of Hollywood v. Allen has raised issues around a  “cut & paste” judicial process at play there, where decisions are showing up with typos from drafts, like “proposed” making it through or misspellings of judges’ names. The question of the case? “What kind of deference does a federal court pay to this kind of judicial…nonsense,” said Kung, focusing less on the minutiae of mistakes and more on the quality of decisions.

Kung also discussed the case of Sullivan vs Ford, where the Supreme Court will decide on the issue of juvenile life without parole. The young man in question was sentenced at 13 years old to life in prison with no chance of parole. “Will it extend Roper?” Kung asked. That care is relevant  to the application of the death penalty under 18. Will Kennedy’s reasoning apply?

Kung brought up a case in which prosecutors were caught acting badly in Iowa by fabricating evidence. The relevant question is how much immunity should the law give to a prosecutor?

Business Docket

A case involved the NFL and antitrust law is coming up, specifically the use of the NFL’s intellectual property by others. The decision and  reasoning behind it could apply to any sort of joint venture down the road.

There’s also a patent case, examining what represents an eligible process. At issue in the Bilsky case is a business method, specifically a theory of hedge fund risk management.

Merck is also on the docket. That’s “part of trend where court taking cases cutting back on plaintiff’s bar,” said Deanne Maynard. “At what point does the plaintiff know enough that it should file?” In this case, the issue is over the troubled pain reliever, Vioxx.

Finally, there’s an issue over property, a case of “classic takings mode,” says Carvin. In Florida, if you own a beach house, the law says that you own the sand down to the high water mark. Like many coastal communities, Florida’s beach homes have been losing land due to erosion. Local governments have tried shoreline replenishment on the beaches in the state, which added 75 feet.  That’s the crux of the issue; the state then asserted that land is public. Home owners disagree.

Carvin, who argued  Bush v. Gore in front of the Florida Supreme Court, pointed out that this case may be memorable, in terms of how that court might change the law.  In essence, he said the court seems to have changed property rights by reinterpretation.

Parting thoughts: SupremeCourt.gov and finding information on cases

I was lucky to hear this preview of the cases coming up. I’m hopeful that the ACS will be releasing video of the session to the public. My observation after some searching online is that, despite SCOTUSblog and other watchers, resources that enable citizens to easily find out what cases are being heard aren’t easy to come by. The court’s website, SupremeCourtus.gov, provides information on recent decisions but the docket page is out of date and relies on the visitor knowing case numbers. Hearing lists are blank. The calendar page is a PDF that doesn’t indicate when individual cases are being heard.

I’m far from the first person to feel some angst over this issue. According to Fast Company, the court’s staffers know the site can use a redesign. The Sunlight Foundation’s Daniel Schuman confirms that in a post on redesigning the Supreme Court: “The Justices appear to agree. They’ve recently asked Congress for money to move control of the site in-house, taking over responsibility from the GPO.”

You can see the Sunlight Foundation’s mockup of what such a redesign might look like, below. The Foundation’s other suggestions, if implemented, would go a long way to making the Court’s cases, decisions and operations more transparent to the American people. I hope they are taken up, along with the long list of cases above.

The Sunlight Foundation's mockup of a new Supreme Court website

The Sunlight Foundation's mockup of a new Supreme Court website

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