internetcases turns 10 years old today

Ten years ago today, somewhat on a whim, yet to fulfill a need I saw for discussion about the law of the internet in the “blogosphere” (a term we loved dearly back then), I launched internetcases.

What started as a one-page handwritten pamphlet that I would mimeograph in the basement of my one-bedroom apartment and then foist upon unsuspecting people on street corners has in ten years turned into a billion dollar conglomerate and network. internetcases is now translated into 7 languages daily and employs a staff of thousands to do the Lord’s work fighting Ebola and terrorism on 4 continents. Or it’s a WordPress install on some cheap GoDaddy space and I write when I can.

All seriousness aside, on this 10th anniversary, I want to sincerely thank my loyal readers and followers. Writing this blog has been the single most satisfying thing I’ve done in my professional life, and I am immensely grateful for the knowledge it has helped me develop, the opportunities for personal brand development it has given (speaking, press, media opportunities), but most of all, I’m grateful for the hundreds of people it has enabled me to connect with and get to know.

Blogging (and the web in general) has changed a lot in 10 years. And the legal issues arising from the internet continue to challenge us to stretch our thinking and amp up our powers of analysis. It’s great to have a platform on the web from which to share news and thoughts about the role that technology plays in shaping our legal rules and our culture.

Thanks all.

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

Court allows class action plaintiffs to set up social media accounts to draw in other plaintiffs

Some former interns sued Gawker media under the Fair Labor Standards Act. The court ordered the parties to meet and confer about the content and dissemination of the proposed notice to other potential class members. Plaintiffs suggested, among other things, that they establish social media accounts (Facebook, Twitter, LinkedIn) titled “Gawker Intern Lawsuit” or “Gawker Class Action”. Gawker objected.

The court permitted the establishment of the social media accounts. It rejected Gawker’s argument that the lack of evidence that any former intern used social media would make the notice ineffective. The court found it “unrealistic” that the former interns did not maintain social media accounts.

Gawker also argued that social media to give notice would take control of the dissemination out of the court’s hands. Since users could comment on the posted content, Gawker argued, the court would be “deprived” of its ability to oversee the message. The court likewise rejected this argument, holding that its “role [was] to ensure the fairness and accuracy of the parties’ communications with potential plaintiffs – not to be the arbiter of all discussions not involving the parties that may take place thereafter.”

Mark v. Gawker Media LLC, No. 13-4347, 2014 WL 5557489 (S.D.N.Y. November 3, 2014)

When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

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