Justia Communications Law Opinion Summaries

In 2017, New Jersey replaced its system of pretrial release, which had long relied on monetary bail, based on a finding that the system resulted in the release of defendants who could afford to pay for their release, even if they posed a substantial risk of flight or danger to others, and the detention of poorer defendants who presented minimal risk and were accused of less serious crimes. Following a constitutional amendment, the New Jersey Criminal Justice Reform Act, 3 N.J. Stat. 2A:162–15, created a new framework that prioritizes the use of non-monetary conditions of release over monetary bail. The Reform Act establishes a multi-step process the court must follow when deciding to release or detain an eligible defendant after considering multiple factors. Plaintiffs challenged the Act as a violation of the Eighth Amendment, the Due Process Clause, and the Fourth Amendment, seeking a preliminary injunction to prevent the state “from taking any actions to enforce statutory provisions [of the Act] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” The Third Circuit affirmed the district court, finding that there is no federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release. View "Holland v. Rosen" on Justia Law

When a phone connects to a cell site, it generates time-stamped cell-site location information (CSLI) that is stored by wireless carriers for business purposes. The FBI identified the cell phone numbers of robbery suspects. Prosecutors obtained court orders to get the suspects’ CSLI under the Stored Communications Act, which requires “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation,” 18 U.S.C. 2703(d), rather than a showing of probable cause. With CSLI for Carpenter’s phone, the government cataloged Carpenter’s movements over 127 days, showing that Carpenter’s phone was near four robbery locations at the time those robberies occurred. After denial of his motion to suppress, Carpenter was convicted. The Sixth Circuit affirmed. The Supreme Court reversed, holding that the acquisition of Carpenter’s cell-site records was a Fourth Amendment search. The Fourth Amendment protects expectations of privacy “that society is prepared to recognize as reasonable” so that official intrusion generally qualifies as a search and requires a warrant supported by probable cause. Historical cell-site records give the government near-perfect surveillance, allow it to travel back in time to retrace a person’s whereabouts. Rejecting an argument that the third-party doctrine governed these “business records,” the Court noted the “world of difference between the limited types of personal information” addressed in precedent and the “exhaustive chronicle of location information casually collected by wireless carriers.” CSLI is not truly “shared” because cell phones are an indispensable, pervasive part of daily life and they log CSLI without any affirmative act by the user. The Court noted that its decision is narrow and does not address conventional surveillance tools, such as security cameras, other business records that might reveal location information, or collection techniques involving foreign affairs or national security. View "Carpenter v. United States" on Justia Law

Soon after Tara Grinstead went missing from Irwin County in October 2005, her disappearance attracted significant media attention. The Georgia Bureau of Investigation and other law enforcement agencies investigated her disappearance for more than eleven years, and throughout the course of that investigation, news organizations continued to show an interest, reporting from time to time on her disappearance and developments in the investigation. When Ryan Duke was arrested in 2017 and charged with Grinstead’s murder, his arrest was the subject of extensive media coverage. Media coverage was most intense in Irwin County and surrounding areas of central and south Georgia. To a lesser extent, the record showed that Duke’s arrest also was covered by television stations and newspapers in Atlanta, as well as some national news organizations. The Georgia Supreme Court granted certiorari to review a gag order instituted in this case, which restrained the lawyers, the defendant and the lawyers in a related case, court personnel, and current and retired law enforcement personnel from making extrajudicial, public statements on certain subjects related to the murder case for so long as it remained pending. The Supreme Court held gag orders like this one may be constitutionally permissible in exceptional circumstances, but the record here did not reveal circumstances sufficiently exceptional to warrant such a restraint. For that reason, the Supreme Court vacated the gag order. View "WXIA-TV v. Georgia" on Justia Law

In the underlying operative complaint, plaintiff Dalia Rojas pleaded two causes of action against defendants HSBC Card Services Inc. and HSBC Technology & Services (USA) Inc. (together HSBC) based on HSBC's alleged violations of Rojas's right to privacy under the California Invasion of Privacy Act (Privacy Act). Rojas alleged that HSBC intentionally recorded certain of her confidential telephone conversations in violation of: section 632(a), which prohibited one party to a telephone call from intentionally recording a confidential communication without the knowledge or consent of the other party; and section 632.7(a), which prohibited the intentional recording of a communication using a cellular or cordless telephone. Rojas appealed the grant of summary judgment in favor of HSBC. The Court of Appeal agreed with Rojas that, because HSBC did not meet its initial burden under Code of Civil Procedure section 437c (p)(2), the trial court erred in granting HSBC's motion for summary judgment. Accordingly, that judgment was reversed and the matter was remanded with directions to enter an order denying HSBC's motion. View "Rojas v. HSBC Card Services" on Justia Law

In the underlying operative complaint, plaintiff Dalia Rojas pleaded two causes of action against defendants HSBC Card Services Inc. and HSBC Technology & Services (USA) Inc. (together HSBC) based on HSBC's alleged violations of Rojas's right to privacy under the California Invasion of Privacy Act (Privacy Act). Rojas alleged that HSBC intentionally recorded certain of her confidential telephone conversations in violation of: section 632(a), which prohibited one party to a telephone call from intentionally recording a confidential communication without the knowledge or consent of the other party; and section 632.7(a), which prohibited the intentional recording of a communication using a cellular or cordless telephone. Rojas appealed the grant of summary judgment in favor of HSBC. The Court of Appeal agreed with Rojas that, because HSBC did not meet its initial burden under Code of Civil Procedure section 437c (p)(2), the trial court erred in granting HSBC's motion for summary judgment. Accordingly, that judgment was reversed and the matter was remanded with directions to enter an order denying HSBC's motion. View "Rojas v. HSBC Card Services" on Justia Law

Believing nonpublic content of the victim's Facebook account might provide exculpatory evidence helpful in preparing for trial, real-party-in-interest Lance Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim's Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Touchtone was awaiting trial for attempted murder. On the public portion of his Facebook page, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) prohibited disclosure of the victim's account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim's account for in camera inspection by a certain date. Facebook seeks a writ directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion to quash. Facebook contends the trial court abused its discretion by denying the motion to quash and ordering production of documents for in camera inspection because the SCA prohibits Facebook from disclosing the content of its users' accounts in response to a subpoena. Facebook further contends that compelling it to disclose the contents of the victim's account is not necessary to preserve Touchstone's constitutional right to a fair trial because Touchstone can obtain the contents directly from the victim or through the prosecutor via a search warrant. The Court of Appeal granted Facebook’s application and granted a writ of mandate, vacating the trial court’s order and effectively quashing the subpoena duces tecum. View "Facebook v. Superior Court" on Justia Law

North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen. Stat. 14–202.5(a), (e). The state has prosecuted over 1,000 people under that law. Petitioner was indicted after posting a statement on his personal Facebook profile about a positive traffic court experience. State courts upheld the law. The Supreme Court reversed. The statute impermissibly restricts lawful speech in violation of the First Amendment. Today, one of the most important places to exchange views is cyberspace, particularly social media. Even if the statute is content-neutral and subject to intermediate scrutiny, the provision is not “narrowly tailored to serve a significant governmental interest.” While social media will be exploited by criminals and sexual abuse of a child is a most serious crime, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” The statute “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” The state did not establish that this sweeping law is necessary to keep convicted sex offenders away from vulnerable victims. View "Packingham v. North Carolina" on Justia Law

Roby Lowery Stapleton was murdered in 1963. Her murder remains unsolved. In 2013, through the Keech Law Firm, Stapleton’s family made a formal written request to the Department of Arkansas State Police (ASP) for a copy of the case file and other materials relating to ASP’s investigation into Stapleton’s murder. ASP denied the request. Keech then filed a complaint against ASP asking the circuit court to compel disclosure under the Arkansas Freedom of Information Act (FOIA) . ASP maintained that the material was exempt under FOIA because it was the subject of an open and ongoing investigation into Stapleton’s murder. The court ordered ASP to turn over the file, concluding that the case was not an “open and ongoing” law enforcement investigation and, therefore, the claimed exemption did not apply. The Supreme Court affirmed, holding (1) the circuit court’s finding that this investigation was not open and ongoing was not clearly erroneous; and (2) this case falls squarely within the purpose of FOIA. View "Department of Arkansas State Police v. Keech Law Firm P.A." on Justia Law

Defendant moved to suppress the fruits of the search that led to his arrest on the ground that the probable cause for the search was provided by the warrantless use of a drug-sniffing dog in violation of the Fourth Amendment. The circuit court denied the motion to suppress and found Defendant guilty of felony possession with intent to distribute. After Defendant’s conviction became legal, the United States Supreme Court decided Florida v. Jardines, which announced that use of a drug-sniffing dog on a homeowner’s porch constitutes a search within the meaning of the of the Fourth Amendment. Thereafter, Defendant filed a petition for a writ of habeas corpus in the circuit court, alleging that Jardines confirmed that the search of his home was invalid and that Jardines was retroactively applicable to cases on collateral review. The habeas court dismissed the petition, concluding that Jardines introduced a new rule and was not retroactive. The court also denied a plenary hearing. The Supreme Court affirmed, holding (1) Jardines does not apply retroactively to convictions such as Defendant’s because it announced a new rule of constitutional law; and (2) the habeas court did not abuse its discretion in denying Defendant’s request for a plenary hearing. View "Oprisko v. Director" on Justia Law

Relators filed this original action in mandamus seeking the release of video from a camera worn by an officer who shot a motorist after a traffic stop. Relators asserted that Respondent, the prosecuting attorney, violated the Public Records Act by failing either to make the body-camera video available for inspection and copying or to prove that it was exempt from disclosure. The prosecutor released the video two days after the complaint was filed. The Supreme Court dismissed the writ of mandamus as to certain relators because the relators failed to request the record from the prosecutor’s office and denied the writ as to other relators because the body-camera video had already been produced. Because the video was produced within a reasonable amount of time, the request for statutory damages and attorney fees was also denied. View "State ex rel. Cincinnati Enquirer v. Deters" on Justia Law