Justia Communications Law Opinion Summaries

Tennessee and North Carolina municipalities that provide broadband service would like to expand their networks beyond their current territorial boundaries to underserved nearby areas. State laws either forbid or put onerous restrictions on such expansion by municipal telecommunications providers. The Federal Communications Commission (FCC), citing its statutory mandates to remove barriers to broadband service and to promote competition in the telecommunications market, issued an order purporting to preempt these state statutory provisions. The Sixth Circuit reversed the order, which “essentially serves to re-allocate decision-making power between the states and their municipalities.” No federal statute or FCC regulation requires the municipalities to expand or otherwise to act in contravention of the preempted state statutory provisions. This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation. Section 706 of the Telecommunications Act of 1996, cited by the FCC, states that the FCC “shall” take action to promote broadband deployment, but “falls far short of such a clear statement.” View "State of Tenn. v. Fed. Commc'n Comm'n" on Justia Law

O’Kroley googled himself and found “Texas Advance Sheet,” followed by “indecency with a child in Trial Court Cause N . . . Colin O’Kroley v Pringle.” O’Kroley was never involved in an indecency case; his case was listed immediately after such a case, on a service that summarizes judicial opinions. If users clicked the link they would see that the cases were unrelated. Claiming “severe mental anguish,” O’Kroley sued Google for $19,200,000,000,000, asserting “libel,” “invasion of privacy,” “failure to provide due process,” “cruel and unusual punishment,” “cyber-bullying,” and “psychological torture.” The court dismissed, citing the Communications Decency Act, which insulates interactive computer services from certain lawsuits, 47 U.S.C. 230. The Sixth Circuit affirmed. Google is an interactive computer service, providing “access by multiple users to a computer server,” not the publisher or speaker of the allegedly defamatory content. A separate “entity [was] responsible . . . for the [content’s] creation.” Google cannot be held liable for merely providing access to, and reproducing, the allegedly defamatory text. “ Google performed some automated editorial acts on the content, such as removing spaces and altering font, and kept the search result up even after O’Kroley complained; these acts come within “a publisher’s traditional editorial functions.” View "O'Kroley v. Fastcase, Inc" on Justia Law

Microsoft appealed from the district court's order denying its motion to quash a warrant issued under section 2703 of the Stored Communications Act (SCA), 18 U.S.C. 2701 et seq., and holding Microsoft in contempt of court for refusing to execute the warrant on the government’s behalf. The warrant directed Microsoft to seize and produce the contents of an e‐mail account - an account believed to be used in furtherance of narcotics trafficking - that it maintains for a customer who uses the company’s electronic communications services. Microsoft produced its customer’s non‐content information to the government, as directed. That data was stored in the United States. But Microsoft ascertained that, to comply fully with the warrant, it would need to access customer content that it stores and maintains in Ireland and to import that data into the United States for delivery to federal authorities. The court concluded that Congress did not intend the SCA’s warrant provisions to apply extraterritorially. The focus of those provisions is protection of a user’s privacy interests. Accordingly, the SCA does not authorize a United States court to issue and enforce an SCA warrant against a United States‐based service provider for the contents of a customer’s electronic communications stored on servers located outside the United States. Therefore, the court concluded that the district court lacked authority to enforce the warrant against Microsoft. The court reversed the denial of the motion to quash because Microsoft has complied with the warrant’s domestic directives and resisted only its extraterritorial aspect; vacated the finding of civil contempt; and remanded with instructions to the district court to quash the warrant insofar as it directs Microsoft to collect, import, and produce to the government customer content stored outside the United States. View "Microsoft v. United States" on Justia Law

Petitioners challenge the Commission's 2015 Open Internet Order, which reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act, 47 U.S.C. 201. The Commission determined that broadband service satisfies the statutory definition of a telecommunications service: “the offering of telecommunications for a fee directly to the public.” In accordance with Brand X, the Commission's conclusions about consumer perception find extensive support in the record and together justify the Commission’s decision to reclassify broadband as a telecommunications service. See National Cable & Telecommunications Ass’n v. Brand X Internet Services. The court rejected petitioners' numerous challenges to the Commission's decision to reclassify broadband, finding that none have merit. The court concluded that the Commission adequately explained why it reclassified broadband from an information service to a telecommunications service and its decision was not arbitrary and capricious. US Telecom never questions the Commission’s application of the statute’s test for common carriage, and US Telecom cites no case, nor is the court aware of one, holding that when the Commission invokes the statutory test for common carriage, it must also apply the NARUC test. See National Ass’n of Regulatory Utility Commissioners v. FCC. Where the Commission concluded that it could regulate interconnection arrangements under Title II as a component of broadband service, the court rejected US Telecom's two challenges to the Commission's decision. The court rejected mobile petitioners’ arguments and find that the Commission’s reclassification of mobile broadband as a commercial mobile service is reasonable and supported by the record. In the Order, the Commission decided to forbear from numerous provisions of the Communications Act. The court rejected Full Service Network's procedural and substantive challenges to the Commission’s forbearance decision. The Commission promulgated five rules in the Order: rules banning (i) blocking, (ii) throttling, and (iii) paid prioritization; (iv) a General Conduct Rule; and (v) an enhanced transparency rule. The court rejected Alamo's challenge to the anti-paid-prioritization rule as beyond the Commission’s authority and rejected US Telecom's challenge to the General Conduct Rule as unconstitutionally vague. Having upheld the FCC’s reclassification of broadband service as common carriage, the court concluded that the First Amendment poses no bar to the rules and the court rejected Alamo and Berninger's challenges. Accordingly, the court denied the petitions for review. View "United States Telecom Assoc. v. FCC" on Justia Law

Attorney Hassell obtained a judgment holding Bird liable for defamation and requiring her to remove defamatory reviews she posted about Hassell on Yelp.com. The judgment contained an order requiring Yelp to remove Bird’s defamatory reviews from its site. Yelp, who was not a party in the defamation action, moved to vacate the judgment. The court of appeal affirmed denial of that motion, but remanded. The court concluded that Yelp is not “aggrieved” by the defamation judgment against Bird, but is “aggrieved” by the removal order; Yelp’s motion to vacate was not cognizable under Code of Civil Procedure section 6632; Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate; Yelp’s due process rights were not violated by its lack of prior notice and a hearing on the removal order request; the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and Yelp’s immunity from suit under the Communications Decency Act, 47 U.S.C. 230, does not extend to the removal order. View "Hassell v. Bird" on Justia Law

Plaintiffs filed a class action alleging that defendants, who run internet advertising businesses, placed tracking cookies on the plaintiffs’ web browsers in contravention of their browsers’ cookie blockers and defendant Google’s own public statements. Essentially they claimed that the defendants acquired the plaintiffs’ internet history information when, in the course of requesting webpage advertising content at the direction of the visited website, the plaintiffs’ browsers sent that information directly to the defendants’ servers. They cited the Wiretap Act, 18 U.S.C. 2510; the Stored Communications Act, 18 U.S.C 2701; the Computer Fraud and Abuse Act, 18 U.S.C. 1030; and, against Google, violation of the privacy right conferred by the California Constitution, intrusion upon seclusion, the state Unfair Competition Law, the California Comprehensive Computer Data Access and Fraud Act, the California Invasion of Privacy Act, and the California Consumers Legal Remedies Act. The district court dismissed. The Third Circuit affirmed as to the federal claims, stating that fraud or deceit does not amount to wiretapping; the alleged conduct implicated no protected “facility” under the Stored Communications Act; and the plaintiffs alleged no damages under the Fraud Act. The court vacated dismissal of the state law claims against Google. View "In Re: Google Inc Cookie Placement Consumer Privacy Litig." on Justia Law

Hunter and Sullivan were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each served a subpoena duces tecum on Facebook, Instagram, or Twitter, seeking both public and private content from user accounts of the murder victim and a witness. The companies moved to quash the subpoenas, citing the federal Stored Communications Act, 18 U.S.C. 2702(a), which provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions). Defendants responded that the requested information is necessary to properly defend against the pending charges, and that any statutory privacy protections afforded a social media user must yield to a criminal defendant’s constitutional rights to due process, presentation of a complete defense, and effective assistance of counsel. The trial court denied the motions to quash and ordered the companies to produce responsive material for in camera review. The court of appeal directed the trial court to issue an order quashing the subpoenas. View "Facebook, Inc. v. Super. Ct." on Justia Law

Munroe was an English teacher, generally considered to be effective and competent. The District granted Munroe tenure in 2010. In 2009, Munroe began a blog, using the name “Natalie M.” She did not expressly identify where she worked or lived, the name of the school or the names of her students. According to Munroe, her blog was meant to be viewed by friends that she had asked to subscribe. There were fewer than 10 subscribed readers, but no password was required for access. Most of the blog posts were unrelated to her school or work. Some postings included complaints about students, her working conditions, and related matters. The District administration first learned of Munroe’s blog in February 2011 when a reporter from a local newspaper began to ask questions; students apparently were commenting on social media.” Munroe was placed on paid suspension and, later, fired. The District had no regulation specifically prohibiting a teacher from blogging on his or her own time. The Third Circuit affirmed dismissal of Munroe’s 42 U.S.C. 1983 suit; under the Pickering balancing test, Munroe’s speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and did not rise to the level of constitutionally protected expression. View "Munroe v. Central Bucks Sch. Dist." on Justia Law

Plaintiff filed suit under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, and the Stored Communications Act (SCA), 18 U.S.C. 2701 et seq., alleging that defendant, her former boyfriend, had gained access to her e-mail and Facebook accounts without her permission and therefore in violation of the CFAA and the SCA. Plaintiff discovered that she could not log on to her AOL e-mail account on or about August 1, 2011 and plaintiff discovered that she could not log into her Facebook account on February 24, 2012. The district court granted defendant's motion to dismiss the complaint as untimely. While the CFAA and the SCA provided a civil cause of action, the statute of limitations to file under each statute is two years. The court concluded that plaintiff's claims relating to defendant's alleged unlawful access to her e-mail account are time-barred because she filed suit on January 2, 2014, after the two year statute of limitations had expired. However, the court concluded that plaintiff's claims relating to the alleged unlawful access of her Facebook account were timely filed, less than two years from the date they accrued. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "Sewell v. Bernardin" on Justia Law

Elonis used the Web site Facebook to post lyrics containing graphically violent language and imagery concerning his wife, co-workers, children, and law enforcement, interspersed with disclaimers that the lyrics were “fictitious” and that Elonis was exercising his First Amendment rights. His boss fired him. His wife obtained an order of protection. Elonis’s former employer contacted the FBI. The agency monitored Elonis’s Facebook activity and charged him under 18 U.S.C. 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” Elonis requested a jury instruction that the government was required to prove that he intended to communicate a “true threat.” The district court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis was convicted. The Third Circuit affirmed. The Supreme Court reversed and remanded. The instruction, requiring only negligence with respect to communication of a threat, is not sufficient to support conviction under Section 875(c). Mere omission from a criminal enactment of any mention of criminal intent does not eliminate that requirement. Wrongdoing must be conscious to be criminal. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement would not protect an innocent actor, the statute must be read to require specific intent. The crucial element separating legal innocence from wrongful conduct under Section 875(c) is the threatening nature of the communication, so the mental state requirement must apply to the fact that the communication contains a threat. The requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court did not address whether a mental state of recklessness would also suffice or First Amendment issues. View "Elonis v. United States" on Justia Law