Court lifts injunction off of Wikileaks

Court Lifts Injunction Against Web Site Accused of Posting Confidential Banking Documents

Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F.Supp.2d 980, 2008 WL 554721 (N.D.Cal. February 29, 2008)

Switzerland-based Bank Julius Baer sued the Web site Wikileaks.org and the registrar of the domain name, and sought an injunction against the publication on the site of allegedly forged and confidential records of Bank Julius Baer customers. The court initially entered a permanent injunction agreed to between Julius Baer and the registrar, which called for a lockdown of the domain name’s registration. The court also, at first, entered a temporary restraining order (TRO) against the Web site, restraining the “display, use or dissemination of the property identified by [Bank Julius Baer] as private, personal banking information of its clients.”

In the days following the entry of injunctive relief, numerous parties seeking to be amicus curiae provided the court with additional information concerning the matter. This additional information led the court to reconsider the entry of the permanent injunction and the TRO. In an order dated February 29, 2008, the court dissolved both orders and denied Julius Baer’s motion for entry of a preliminary injunction.

Among the factors guiding the decision were the First Amendment and the efficacy of any injunction concerning the allegedly confidential banking information. The court noted the important free speech issues implicated, including the right to receive information as “a necessary predicate to . . . meaningful exercise” of free speech. It expressed concern that the previous publication of confidential information meant that “the cat is out of the bag,” and thus an injunction would be ineffective in protecting the privacy rights of the bank’s clients.

Further, the court found that the injunction in place was not the least restrictive means to achieve the plaintiff’s goals, and thus should be dissolved. On this point, the court suggested that a constitutionally-permissible injunction would call for limited redaction of information, while permitting the non-confidential parts of the documents to be displayed online.

Court rejects constitutional challenges to obscenity statutes in prosecution of adult website owner

U.S. v. Little, No. 07-170, 2008 WL 151875 (M.D. Fla. January 16, 2008)

The operator of the Max Hardcore website was indicted under 18 U.S.C. §§1462 and 1465 for distributing allegedly obscene video files which agents downloaded in Tampa, Florida. Max Hardcore moved to dismiss the indictment, raising a number of constitutional challenges to the prosecution. The court rejected each of the defendant’s arguments and denied the motion.

Statutes not facially unconstitutional

The court declined to accept the defendant’s argument that because of the evolving nature of substantive due process law, prior Supreme Court decisions upholding the federal obscenity statutes were no longer valid. It also refused the defendant’s argument that the constitutional right to privately posses obscene materials should translate into a corresponding right to distribute such material.

Statutes not unconstitutional as applied

The defendant also launched a couple of challenges to the application of the Miller test, set forth in the Supreme Court’s decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). Under the Miller test, the finder of fact determines whether material is obscene by applying the following test: (a) Whether “the average person, applying contemporary community standards’” would find that the work taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Max Hardcore’s challenge to the Miller test dealt with the requirement that the works at issue be “taken as a whole.” The defendants argued that because of the interconnected nature of the Web, it would be impossible to know what the term “taken as a whole” means, and it would similarly be impossible to determine the community standards against which the works should be evaluated. At the very least, the defendant argued, the entire Max Hardcore site should be considered the work “taken as a whole,” and not just the individual video files.

With little analysis, the court sided with the government, holding that the individual files – and not the whole website – should be the works “taken as a whole.” And the court concluded that the absence of a universal community standard was okay. Citing to U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982), it held that “[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”

Arizona state court adopts three part test for unmasking anonymous online speakers

Test adds an additional “balancing of the competing interests” element to the Cahill test

Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007)

Plaintiff filed suit in Washington state court against an anonymous (“John Doe”) defendant which it accused of violating the Computer Fraud and Abuse Act and the Stored Communications Act. Doe allegedly accessed the plaintiff’s computer system and obtained a copy of an “intimate” email which he forwarded to a number of people.

Plaintiff served a subpoena on Doe’s Arizona-based email provider, seeking to uncover Doe’s true identity. The email provider and Doe individually, through counsel, objected, but the Arizona court ordered that Doe’s identity be revealed. The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.

Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.

Massachusetts can’t prosecute posting of illegal web video

The recent case of Jean v. Massachusetts State Police addressed the question of whether the First Amendment prevents law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded.

Mary T. Jean operated a website critical of her community’s former district attorney. One of the visitors to her site contacted her, and sent a videotape of eight Massachusetts state police officers conducting a warrantless search of the visitor’s home. The video was made by a “nanny cam” in the home.

After Jean was threatened with criminal prosecution under the state’s wiretap law, she sought a temporary restraining order against the police and the attorney general, to prevent her from being arrested. The lower court granted the motion, relying on the Supreme Court case of Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).

It held that Jean had demonstrated a likelihood of success on the merits of her First Amendment claim, that irreparable harm would result from the absence of an injunction, and that the balance of burdens and public interests weighed in her favor. The court noted that although the tape may have been recorded in violation of the state law, Jean played no part in the recording of the video, she had “obtained the tape lawfully,” and the videotape related to a “matter of public concern.”

On appeal, the U.S. Court of Appeals for the First Circuit affirmed the entry of the temporary restraining order. It found the case “materially indistinguishable” from Bartnicki, concluding that publication of the video was entitled to First Amendment protection.

Jean v. Massachusetts State Police, — F.3d —-, 2007 WL 1793126 (1st Cir. June 22,2007)

Student’s First Amendment rights violated in conviction over MySpace postings

State v. A.B., No. 67A01-0609-JV-372 (Ind. App. April 9, 2007) [Download the opinion.]

A middle school girl in Greencastle, Indiana created a bogus MySpace profile impersonating her school’s principal. She invited one of her classmates, A.B., to be a “friend,” and A.B. posted an obscenity-laced (yet surprisingly grammatically accurate) comment that was critical of the school’s policy against certain types of body piercings. A.B. also created a group on MySpace that was likewise critical of the principal, and posted content there.

The State filed a delinquency petition against A.B., alleging several violations of the state’s harassment statute, Ind. Code § 35-45-2-2(a)(4). The trial court issued an order adjudicating A.B. to be a delinquent child, and gave her nine months of probation.

A.B. sought review, arguing, among other things, that the web content she created was political speech protected by the First Amendment. On appeal, the court agreed and reversed the adjudication of delinquency.

The court applied a two-part test to review the constitutionality of the application of the harassment statute. It determined (1) whether state action had restricted A.B.’s expressive activity, and (2) whether the restriction constituted an abuse of the right to speak. The court answered both of these questions in the affirmative.

In determining that the restriction was an abuse of A.B.’s right to speak, the court did “not engage in speculation as to what the speaker might have meant,” but employed an objective standard to determine that the speech was to be understood as political speech.

This form of speech is to be protected, absent some “particularized harm analogous to tortious injury or readily identifiable private interests.” The court found that the state presented no evidence of this sort of particularized harm, thus the constitutional right to speak had been contravened.

Josh Wolf freed from jail

For the past several months the controversy around video blogger Josh Wolf has swirled, as he served time in a federal corrections center for contempt of court. Wolf chose to be incarcerated last year rather than turn over to the feds footage of a San Francisco political demonstration. The story has placed the idea of citizen journalism at front and center. (I mentioned Wolf’s situation in a piece I did for Viral on Veoh which you can view here.)

Yesterday, Wolf and the federal prosecutors worked out a deal where Wolf turned over the footage and was released from custody. Read more about Wolf’s story and release here.

COPA held unconstitutional (yet again)

In 1997, the Supreme Court struck down portions of the Communications Decency Act [Reno v. ACLU, 521 US 844 (1997)] which sought to put strict prohibitions on the distribution of pornography on the Intenret. The following year, Congress passed the Children’s Online Protection Act (“COPA”), which was another attempt to cut off Internet pornography at its source.

Shortly after COPA was passed, the ACLU and others challenged it on constitutional grounds. The entry of a preliminary injunction made it all the way up to the Supreme Court, which affirmed. Discovery in the matter before trial led to last year’s privacy maelstrom surrounding the request of the Government for Google to turn over massive amounts of search data. [More on that topic here.]

The case proceeded to trial in November of last year, and earlier today, Judge Reed, at the end of an 84 page opinion, issued a final adjudication, which reads as follows:

AND NOW, this 22nd day of March, 2007, upon consideration of the evidence, testimony of the witnesses and experts, and the arguments of counsel presented during the trial of this matter and the pre and post-trial submissions by the parties … , it is hereby ORDERED, that based upon the Findings of Fact and Conclusions of Law detailed above:

(1) The Child Online Protection Act, 47 U.S.C. § 231, is facially violative of the First and Fifth Amendments of the United States Constitution; and

(2) Defendant Alberto R. Gonzales, in his official capacity as Attorney General of the United States, and his officers, agents, employees, and attorneys, and those persons in active concert or participation with defendant who receive actual notice of this Order are PERMANENTLY ENJOINED from enforcing or prosecuting matters premised upon 47 U.S.C. § 231 at any time for any conduct.

This is a FINAL ORDER and this case is CONCLUDED.

S/ Lowell A. Reed, Jr.
LOWELL A. REED, JR., S.J.

Download the entire opinion here.

Sixteen-year-old girl criminally liable for child pornography

A state appellate court in Florida has affirmed the decision of a trial court that adjudicated a 16-year-old girl, A.H., a delinquent based on her violation of the state’s anti-child pornography statute. The law in question, Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.

The charges against A.H. were based on digital photos A.H. and her 17-year-old boyfriend took of themselves “engaged in sexual behavior.” The photos were never shown to a third party, but A.H. e-mailed them to the boyfriend’s personal account.

At the trial court level, A.H. moved to dismiss the charges, arguing that the Florida statute was unconstitutional as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the photos was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest.

The trial court ruled that there was a compelling state interest in preventing the production of the photographs and criminal prosecution was the least intrusive means of furthering the state’s compelling interest. The appellate court agreed, and further determined that the privacy provision of the state constitution did not protect A.H.’s behavior.

At the heart of the case was the court’s determination that A.H. had no reasonable expectation of privacy in the photographs. First, the decision to take the photographs and to keep a record that may be shown to people in the future weighed against a reasonable expectation of privacy. Second, because the persons in the photos were minors, they had no reasonable expectation that the photos would not be shared with others. The court stated that “[m]inors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally.” Third, the fact that they had kept the photos private was immaterial: “The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.”

The court went on to hold that even if A.H. had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The court concluded that prosecution of the participants, regardless of their age, was the least intrusive means of furthering that compelling interest. Moreover, the court observed that “the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.”

The court also addressed the significance of the fact that A.H. had e-mailed the photos to the boyfriend (who, you’ll remember was the other participant in the photos), concluding that that act would contribute to the widespread distribution of the photos:

Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date.

One of the judges on the three-judge panel lodged a vigorous dissent, arguing that the application of the statute against A.H. violated her constitutional right to privacy. Citing to the Florida constitution and previous case law, the dissenting judge noted the “clear constitutional mandate” of privacy giving rise to a right that applies to both adults and children alike.

The dissenting judge also criticized the majority opinion’s emphasis on the fact that A.H. had e-mailed the photos to the boyfriend:

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

So the case is problematic for a number of reasons. It certainly complicates the analysis as to what kind of privacy rights minors have. But it also raises a fundamental question as to how laws should be enforced to effectuate their purposes. If anti-child pornography statutes are intended to protect minors from exploitation, doesn’t it seem at least a bit anomalous to prosecute the very persons who are being exploited?

A.H. v. State, (Slip Op.) — So.2d —-, 2007 WL 120008 (Fla.App. 1 Dist. Jan. 19, 2007)

Seventh Circuit: explicit video game law unconstitutional

Ban of sale to minors and labeling requirements not narrowly tailored to meet compelling state interest.

In August 2005, the Illinois State Legislature enacted the Sexually Explicit Video Game Law (“SEVGL”), which criminalized the sale of “sexually explicit” video games to minors, and required purveyors of such games to conspicuously label any sexually explicit game with a four square inch label reading “18”, and provide relevant signage within the stores where games are sold.

The Entertainment Software Association, among others, filed suit against the State of Illinois the day after the SEVGL was enacted, claiming that the law violated the First Amendment. The district court permanently enjoined enforcement of the law, and the State of Illinois sought review. On appeal, the Seventh Circuit affirmed the lower court’s holding that the statue was not narrowly tailored.

An integral part of the court’s analysis was its concern that the statute would criminalize the sale of material “without concern for the game considered in its entirety or for the game’s social value for minors.” As a case in point, the court looked to the game God of War, which tracks the Homeric epic Odyssey in content and theme. Although that game shows exposed breasts, the court held that “there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.”

As for the unconsitutionality of the labeling and signage requirement, the court similarly held that such a requirement was not narrowly tailored. The government had not shown that an educational campaign about the video game rating system would not have been just as effective as labeling. The requirement of a sticker that covers a substantial portion of the box was also unjustified.

Entertainment Software Association v. Blagojevich, No. 06-1012, — F.3d —-, (7th Cir., November 27, 2006).

Suit over drop in search engine placement dismissed

(This case came out a couple of weeks ago and has been written about quite a bit, but here’s my take on it anyway.)

Plaintiff Kinderstart.com LLC, the operator of an online directory and search engine for information about the care of young children, filed suit against Google after a “cataclysmic fall” in the number of visitors that the Kinderstart site received. It claimed that Google wrongfully blocked search results for Kinderstart, and intentionally lowered the site’s number in Google’s PageRank system. In an unpublished and noncitable opinion, the United States District Court for the Northern District of California dismissed Kinderstart’s complaint, and granted leave to amend.

Kinderstart alleged a number of causes of action, including violation of the First Amendment right to free speech and unlawful monopolistic behavior in violation of the Sherman Act. The court held that Kinderstart failed to allege facts sufficient to entitle it to relief.

In dismissing the First Amendment claim, the court held that Google is not a state actor. Although the Ninth Circuit employs a number of tests to determine whether state action exists, Google did not meet any of those tests. Kinderstart did not show that Google performed a public function, nor did it show that Google was involved in any joint action with the government. The complaint did not sufficiently allege that Google was in any way compelled or coerced by the government, or that there was any nexus or entwinement between Google’s actions and the government’s actions. No facts in the complaint pointed to any “symbiotic relationship” – a necessary element in a special Ninth Circuit test for state action – between Google’s conduct and the financial success of any governmental entity.

The court also rejected Kinderstart’s First Amendment argument that by making the search engine “freely available to anyone with an Internet connection,” Google had created a private space dedicated to public use in which the alleged restrictions violated free speech. On this point, Kinderstart’s own allegations of Google’s vast monetization – to the tune of $3.1 billion in 2005 – contradicted assertions that the sole function of Google is to promote open and free communication.

Another of Kinderstart’s claims was that by blocking links to the Kinderstart site in its search results, Google had engaged in anticompetitive behavior that is prohibited under Section 2 of the Sherman Act (15 U.S.C. §2). To succeed on this claim, Kinderstart would have had to allege a specific intent on Google’s part to destroy competition, conduct directed toward accomplishing that purpose, a dangerous possibility of succeeding at destroying competition, and resulting antitrust injury.

The court held that Kinderstart failed to allege enough facts to support this claim. There was no sufficient allegation that Google had denied access to an essential facility or refused to deal. Kinderstart did not explain how Google’s alleged conduct demonstrated the required intent for a Sherman Act violation. Moreover, noting that there generally is “no duty to aid competitors,” the court concluded that Google’s alleged removal of a competing search engine from its results was merely legitimate competitive action.

Kinderstart.com, LLC v. Google, Inc., No. 06-2057, (N.D. Cal., July 17, 2006) (Not selected for official publication).

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