***HONORABLE MENTION*** 2015 Nissenbaum Internet Law Scholarship Essay – SARA A. SIWIECKI (Chapman University- Anticipated Graduation Date: 2018)

How Can The American Legal System Improve Its Approach To Policing And Regulating Digital Technology Without Unduly Stifling Innovation And Civil Liberties?

A person is staring at you from outside your bedroom window. When people do this, we usually call the police and report a stalking incident. A different situation: A person is not staring at you directly from your bedroom window, but from a security camera at the building across the street, or maybe even the camera on your laptop, or the camera on your Xbox or PlayStation gaming system. This is just as scary as the person physically standing outside your window. However, the government is the person stalking you. It would not make sense to call the police on this one because the police are connected to the government. So, what do we do? The government has access to all of our calls, texts, emails, and even cameras in certain situations. Is this ethical? Who knows. Meanwhile, you are also terrified of a bomb being dropped on top of your house or someone coming to your town and shooting thousands of people. So, the government solves this problem by monitoring our digital technological devices in attempt to find information about planned attacks and prevent them from happening. No one likes to feel constantly monitored, but everyone wants to feel safe and secure, here lies the problem with digital technology. This problem can be somewhat fixed by improving the use of drones, Internet laws, and number of cameras and ridding of the tracking and storage of information without warrants.

One way that the government monitors its citizens is with the use of drones. Instead of using up lots of time and money to send people up in a helicopter on surveillance missions, search and rescue missions, and other activities, drones are more efficient because they do not need people to physically be in the craft and are able to fly faster than a helicopter. However, drone utilization can be abused when the government uses them without warrants and retains information that violates privacy liberties. Drones should not be used without warrants or without any probable cause. Flying drones around randomly is not an efficient use of technology. Drones also should not capture and retain unnecessary information that has nothing to do with crimes. They should not retain pictures or conversations without search warrants or other good reason because that is invading people’s privacy and inefficient for the government because they can get this information from conversations elsewhere, like phone calls or the Internet. The government can improve upon this regulation of digital technology by setting clear guidelines as to when drones need to be used and retain the information they capture in order to protect people’s civil liberties and improve upon efficiency of the legal system. Drones should be used with purpose and not for overbearing worry.

Another surveillance tactic that the government uses is the monitoring of the Internet. The Internet is used by basically everyone nowadays and people are willing to document their whole lives on the Internet in applications such as: Facebook, Instragram, and Twitter. Specifically on social media, many things that are said and done would not be acceptable in face-to-face life. The government should make what I like to call “Internet laws” that say what people can and cannot do/say on the Internet. Currently, there are some laws like this called “Netiquette”, but they are not very circulated on the Internet and few know about these etiquette rules. Threats are made online that go unnoticed and lots of bullying happens on the Internet that would not be tolerated if it were said out loud. While the government and police do take Internet threats seriously, there should be clear laws about what is and is not allowed, like how in real life people cannot shout “bomb” in an airport or “fire” in a crowded room, or pose as people they are not, such as a police officer or government official. If laws were laid out clearly, then the government could do a better job at tracking key words to catch people committing crimes and deter people from posting inappropriate things online, while not invading everyone’s privacy.  This could prevent many crimes from happening, including human trafficking, online prostitution, and imposters. These Internet laws can be implemented on TV public service commercials and ads on the Internet. Also, in terms and conditions of certain websites, it should be made clear that by going online, a person is submitting himself/herself to be monitored by the government so that everyone knows they are being tracked. The Internet is a useful tool for many, a tool of proactivity and entertainment, but also a tool that should be taken seriously.

Lastly, the government can improve on its use of cameras. If there are more cameras placed in high-violence areas, then it might deter many from committing crimes in that area and it would allow more evidence for crimes that are committed. While this might seem that it brings more of the “stalking” I referred to earlier and violates many civil liberties since we would literally be constantly watched, as long as there are postings of camera surveillance so the public is aware of it, it would actually be violating less liberties. If there are more cameras outside in public, then less private information, like texts, calls, and emails would need to be monitored because the government would have sufficient evidence from cameras to convict people of crimes and would have no real need to monitor private information. More cameras would prevent crime, provide more evidence for crimes that happen, and protect people’s personal information.

One thing that the government can completely rid of to protect people’s civil liberties and improve the efficiency and reputation of the government is the constant tracking of private information without warrants. The government can continue to monitor public information, like what people post on public social media pages, but abstain from viewing people’s private information, like texts, calls, and emails, unless they have a search warrant or other plausible reason. The police are not allowed to just open anyone’s mailbox at any time and read their mail, so they should not be able to monitor and store people’s information online. Also, the government should not have constant access to people’s personal medical files or other incredibly personal data that a person may not want shared. Only information collected after a warrant should be monitored constantly. The warrant allows the government to go back and retrieve the evidence they want, rather than constantly monitoring everyone all of the time. To be efficient and not stifle innovation, the government should only track and store information from people who have committed crimes previously or who are suspicious and have probable cause to track and store information has been established. People deserve to have their liberties respected in a country that was founded upon personal freedom.

To improve the status of the American legal system without defacing civil liberties and averting innovation, the government needs to use drones efficiently, establish clear Internet laws, create zones of high camera surveillance, and abstain from storing people’s personal information without probable cause.  America was founded on freedom and this freedom should be protected at all times. However, living in a safe country is as important as being free. All in all, it is nearly impossible to have a safer security system without sacrificing liberties. While some liberties may be sacrificed, innovation can be the way to find ways to make bigger and better technology that protects citizens yet allows for freedoms so that all will benefit. Perhaps someday we can even invent this technology that finds a way to protect everyone’s personal information by making that information only available to robots that protect America’s security. The future of innovation is imminent.

***HONORABLE MENTION*** 2015 Nissenbaum Internet Law Scholarship Essay – KELLY WALDO (Boston College Law School- Anticipated Graduation Date: 2018)

How Can The American Legal System Improve Its Approach To Policing And Regulating Digital Technology Without Unduly Stifling Innovation And Civil Liberties?                                                                                                                         

When the World Wide Web was created in 1990, even Tim Berners-Lee could not have predicted how much it would progress during the next twenty-five years. The Internet advanced rapidly and continues to advance rapidly to this day. The Internet is a place where individuals can communicate on a universal scale, where businesses can develop and grow, where economic development occurs, where people can act politically and create real change, and where somebody can share a photograph of what they prepared for dinner. With something so multi-dimensional and so far-reaching, it is no surprise that the Internet and the digital technology related to it is extremely complicated to regulate.

When addressing the issue of how to improve America’s regulation of digital technology, one must first speak to whether digital technology even needs to be regulated at all. The Internet serves as a level playing field. One individual has as much of a right to post on the Internet as any other individual. If one decides to compete with Google, he or she has every opportunity to try and create something that will compete. It initially appears that without regulation, the Internet would be truly open and free.

However, recent cases involving the FCC, Verizon and Comcast display a need for regulation. Internet Service Providers, such as Comcast, currently have a monopoly on the cable market. Because Internet is currently combined with cable access, companies like Comcast are able to charge additional fees to access certain areas of the Internet and have attempted to charge certain companies on the Internet additional fees. For example, Comcast stated that because more people access Netflix than a blog, that Comcast could charge Netflix additional fees. This action clearly hurts Netflix’s freedom to operate on the Internet and impairs the openness of the Internet.

The ability of an ISP to control the speed of certain websites and the amount of fees that certain websites must pay is a stifle on the civil liberties of these website owners. This ability opens the door for Comcast or Verizon to arbitrarily decide which websites they will allow and because of their monopolies on the market, ISPs would have an unseemly amount of control over the Internet. With the control of a monopoly over something so powerful and widespread, an abuse of power is almost guaranteed.

Another example of how regulation, better regulation at that, is needed is through the recent situation involving Instagram photographs. According to the Washington Post, Richard Prince, a controversial artist, printed out screenshots from other Instagrams, made slight adjustments, and sold the photographs in an art gallery for $90,000 each. Prince had the ability to profit so much from another person’s work without his or her permission because the Instagram copyright laws apply solely to the Instagram world. While Prince could have been successfully sued if he had taken the photographs and put them on his own Instagram, he cannot be successfully sued by using the photographs outside of Instagram.

Many individuals were unaware of their loss of possession of their photographs until Prince’s gallery, and many individuals think that this suppresses their liberties. One’s loss of ownership of his or her photographs appears to make it so that less people would post photographs and less people would share.

Even by just examining these two examples, it comes into light that many companies and individuals are attempting to and succeeding in profiting from information shared on the Internet, without actually having much ownership over it. While there are certain aspects of deregulation that seem principal, issues of property ownership and the fight for control of the Internet necessitate being addressed with regulation.

The current regulation on the Internet stifles civil liberties and stifles innovation in many ways. Website owners fear that they will be controlled with arbitrary fees by one authority. Many individuals fear that they cannot claim ownership to anything they discover or create if they put it on the Internet. This fear is detrimental because with a network so universally accessible, not sharing ideas could inhibit many types of beneficial progress that this world needs.

The Internet and its digital technology in America should be regulated like its government. As with America, one entity cannot control nor have the power to regulate something as significant and expansive as the Internet. As seen in the recent cases with Verizon and Comcast, allowing one organization to regulate the Internet leads to the opportunity to abuse power.

There should be three organizations, or “branches” used to regulate the Internet. Each group would have the ability to draft and create regulation, examine cases about the Internet and supposed infringement of rights and vote on both of these aspects. Each group is subject to checks and balances by the other groups. The organizations would work separately but together in their attempt to keep the Internet as deregulated as possible, but to create fair regulation where necessary. These three organizations, which currently do serve as the main authorities on Internet regulation should only be able to pass regulation through a system of debate and voting.

The FCC, ICANN, and the Internet Society are potential organizations that could serve as the main three groups that have the power to regulate the Internet within the United States. The ISOC also contains the groups, IAB, IESG, and the IETF among others within it.

However, although framed after the government, it is necessary that these three groups do not become political. The Internet cannot become another political venture where if liberals make up the majority of the organizations that the Internet will be censored more so for conservatives and vice versa. Politicizing the Internet would stifle civil liberties and the right to speak freely.

One requirement of these groups is to keep regulation on the Internet as transparent and comprehensible as possible. With the world at almost every single individual’s fingertips, it is essential that each individual be aware of the legal framework surrounding the Internet and have the ability to access these laws whenever necessary. It is crucial that these organizations look at the rules involving certain Apps such as Instagram to see if their rules are worthy to be laws applicable on all other forms of media or outside of media. It is imperative that ownership of one’s ideas and property be sustained in certain ways so that innovation and invention can continue to flourish.

The American legal system can improve its approach to policing and regulating digital technology by creating an actual system, with checks and balances. This system is essential for increasing the clarity of Internet regulation and allowing access and transparency to Internet law.

These groups, with the authority to regulate, should attempt to keep the Internet as deregulated as possible, but should create law where the ability of one organization to control or infringe on one’s rights is probable. It is clear because of the recent attempts by monopolies to control the Internet and the success of some in gaining the rights to other’s creations that a comprehensible organization needs to be created to ensure the fairness of the Internet. A three- organization system with checks and balances would hopefully allow minimal regulation to be created so that stifling innovation and civil liberties is avoided.

May A Producer Of Adult Content Sue Users Who Jointly Download Using BitTorrent?

There have been a number of cases in which federal courts have been addressing the issue of peer to peer downloads of adult content. Most of the cases allege copyright infringement on a joint basis, i.e., that all the defendants who downloaded the content should be considered joint defendants.
This approach has been rejected by several federal judges. Most notably, Judge Faith Hochberg, U.S.D.J. addressed that issue in Amselfilm Productions GMBH v. SWARM 6A6DC (Fed. Dist. Ct., DNJ, October 10, 2012). She determined that the 187 defendants would not be joined because there was no appropriate showing that they were related in any manner. The mere fact that they all used the same peer to peer network was insufficient.
This trend was followed recently in Malibu Media v. John Does 1-19 (Fed. Dist. Ct., DNJ, 12-CV-6945, March 28, 2013) in a similar case involving the peer to peer network, BitTorrent. The Court determined that joinder of copyright causes of action against anonymous defendants was improper.
These cases generally take into account the fact that the defendants are downloading adult content. Therefore, the plaintiff’s threat to disclose their identities is frequently tantamount to extortion. In other words, they are more prone to settle to protect their identity rather because they believe that the cause of action against them is meritorious.

Do internships at profit-making industries need to be paid?

Do internships at profit-making industries need to be paid? That question is currently being considered by the United States Court of Appeals for the Second Circuit.
The matter is on appeal from the decision of the Federal District Court for the Southern District of New York in Glatt v. Fox Searchlight Pictures, Inc., 293 F.R.D. 516, 532 (S.D.N.Y. 2013). [READ CASE HERE]
The lower court in Glattruled that the unpaid interns involved in the movie “The Black Swan” should have received at least minimum wage. It based its decision in part upon the six factor test set forth by the Department of Labor See U.S. Dep’t of Labor Fact Sheet #71 (April 2010) (“DOL Intern Fact Sheet”). As the Court stated,
 [T]he Fact Sheet notes that “[t]he Supreme Court has held that the term `suffer or permit to work’ cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.” It enumerates six criteria for determining whether an internship may be unpaid:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Internships provide students or potential workers training, mentoring, network opportunities and experience. These reasons, along with the increasing competitiveness in the job market, are why interns are willing to work so hard for little or no pay. However, there is a line between that and a company hiring interns to essentially become unsalaried workers.

The Second Circuit should be rendering its decision later this year. 

Can You Be Sued For Your Social Media Posts?

What would you change about your Facebook™, Twitter™, Instagram™ or other social media sites if you knew you could be sued for using them? A case that could forever change the way we think about social media is currently before the Los Angeles Superior Court. It all started with the following tweet by Courtney Love. @CourtneyLoveUK: “@noozjunkie I was fucking devastated when Rhonda J Holmes Esq of san diego was bought off @fairnewsspears perhaps you can get a quote.”
Love’s former attorney, Rhonda J. Holmes, Esq. is suing for defamation based upon that tweet because it stated that Holmes was “bought off.”  This referred to the way Holmes’ handled her retention to pursue a fraud case against the executors of Love’s late husband, Kurt Cobain’s, estate. Love has raised the defense that she thought the tweet was only being sent to two people. She also has taken the position that it was not defamatory because it was an expression of opinion, not fact.
Generally, defamation has four key elements:
  • a false statement concerning another person or entity;
  • publication or communication of that statement to a third person;
  • intent:
    • malice (intent or reckless disregard) concerning the fact that the statement was untrue if it was about a public figure, or
    • negligence by the party making the statement concerning the fact that the statement was untrue if it was about a non-public figure; and
  • harm caused to the person or entity who is the subject of the statement (unless a limited exception applies in which harm is presumed).
Defamation is a civil wrong that can manifest itself in the form of libel or slander. Libel is the written form and slander is the verbal form.
Judge Michael Johnson ruled against Love and has sent the case to trial. If the jury finds Love guilty of defamation, it would be precedent-setting. The very nature of using Twitter is that the posts are abbreviated and immediate. Nevertheless, based upon this ruling the common law of defamation applies in those situations, as well as the more considered verbal or written statement. The take away is that people using social media should keep in mind that a tweet could result in a lawsuit.
Clearly, the law is adapting to the new challenges of social media.

May a Website That Provides a Link to an Article be Liable for Defamation Based on the Article’s Content?

Can you hyperlink yourself into a lawsuit? Do you need to fact check every article you reference in an Internet posting?

In In re Philadelphia Newspapers v. Vahan H. Gureghian. 11-3257, 2012 WL 3038578 (3d Cir. July 26, 2012), the Philadelphia Inquirer (“Defendant”) wrote an online column about the Plaintiff that included links to a website. The website contained alleged defamatory material about the Plaintiff. Defendant did not author the alleged defamatory material, which was published more than a year ago. Plaintiff sued Defendant for defamation because Defendant provided those links within his column.

In an attempt to avoid tolling the 1-year statute of limitations (“Statute of Limitations”) that applies to defamation claims, Plaintiff argued that the links amounted to republication. The reason is that republication of a defamatory statement can begin a new Statute of Limitations. As a result, a violation of the original Statute of Limitations would not have barred Plaintiff from filing suit against the Defendant. 

In its analysis, the Court considered two important legal doctrines: the “single publication rule” and the “doctrine of republication.”  

Single Publication Rule

For a plaintiff to succeed in a defamation suit, the defendant must have published the defamatory material. Under the “single publication rule” a defendant is considered to have published the material only if he or she is the original publisher. The “single publication rule” enables only the original printing of the defamatory material – and not the circulation of the material –  to trigger the Statute of Limitations. Otherwise, the Statute of Limitations would start over every time one re-circulated defamatory material.  This could result in an effectively meaningless Statute of Limitations because it would potentially never end.

Doctrine of Republication

The “single publication rule” is limited by the “doctrine of republication.” The “doctrine of republication” states that “republishing” material will restart the Statute of Limitations. This raises the important question: when does a “republishing” occur? The Court analyzed this issue as follows:

An exception to the single publication rule is the doctrine of republication. Republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations. Restatement (Second) of Torts § 577(A); Davis v. Mitan (In re Davis), 347 B.R. 607, 611 (W.D. Ky. 2006). Traditional principles of republication thus require the retransmission of the allegedly defamatory material itself for the doctrine to apply. However, courts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication). See Davis, 347 B.R. at 611-12.

Additionally, the Court cited Salyer v. Southern Poverty Law Center Inc., which held that a link is not a republication under similar facts. Salyer v. Southern Poverty Law Center Inc., 701 F.Supp.2d 912 (W.D.Ky.2009).  In Salyer, the defendant provided links to defamatory material and referenced that material several times in articles posted on its website. The Salyer court explained that, although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication. Therefore the Salyer court held that the posting of links did not amount to republication.

In accordance with the Salyer precedent, the Philadelphia Newspapers Court held that links do not amount to republication. Therefore Plaintiff was barred by the Statute of Limitations from proceeding against the Defendant for defamation. The Court expressed the concern that, if it were to hold otherwise, the Statute of Limitations could be triggered endlessly because websites are constantly linked and updated. Allowing each link or technical change to restart the Statute of Limitations would effectively eliminate the Statute of Limitations.

The take away from this analysis is that under certain limited circumstances, linking or referencing defamatory material that you did not write may be grounds to restart the Statute of Limitations. While there are facts in which that will not be the case, it is wise to avoid linking to web pages contain defamatory statements, regardless of how long ago the statement was made.

© 2013 Nissenbaum Law Group, LLC

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