Justia Communications Law Opinion Summaries

The Illinois Cable and Video Competition Law requires operators to obtain statewide authorization and become a “holder” and requires anyone who wants to provide cable or video service to obtain permission from state or local authorities and pay a fee, as a condition of using public rights of way. In recent years traditional cable services have been supplemented or replaced by streaming services that deliver their content through the Internet. East St. Louis, contending that all streaming depends on cables buried under streets or strung over them, sought to compel each streaming service to pay a fee. None of the defendants were “holders.” A magistrate dismissed the complaint, concluding that only the Attorney General of Illinois is authorized to sue an entity that needs but does not possess, “holder” status.The Seventh Circuit affirmed, first concluding that it had jurisdiction under 28 U.S.C. 1332(a). Normally the citizenship of any entity other than a corporation depends on the citizenship of its partners and members but, under section 1332(d), part of the Class Action Fairness Act, an unincorporated entity is treated like a corporation. The court then held that the statutory system applies to any “cable service or video service” and the defendants do not offer either. If “phone calls over landline cables, electricity over wires, and gas routed through pipes are not trespasses on the City’s land— and they are not—neither are the electrons that carry movies and other videos.” View "City of East St. Louis v. Netflix, Inc." on Justia Law

Liapes filed a class action against Facebook, alleging it does not provide women and older people equal access to insurance ads. The Unruh Civil Rights Act prohibits businesses from discriminating against people with protected characteristics (Civ. Code 51, 51.5, 52(a)). Liapes alleged Facebook requires all advertisers to choose the age and gender of users who will receive ads; companies offering insurance products routinely tell it to not send their ads to women or older people. She further alleged Facebook’s ad-delivery algorithm discriminates against women and older people.The trial court dismissed, finding Facebook’s tools neutral on their face and concluding that Facebook was immune under the Communications Decency Act, 47 U.S.C. 230. The court of appeal reversed. Liapes has stated an Unruh Act claim. Facebook, a business establishment, does not dispute women and older people were categorically excluded from receiving various insurance ads. Facebook, not the advertisers, classifies users based on their age and gender via the algorithm. The complaint also stated a claim under an aiding and abetting theory of liability An interactive computer service provider only has immunity if it is not also the content provider. That advertisers are the content providers does not preclude Facebook from also being a content provider by helping develop at least part of the information at issue. View "Liapes v. Facebook, Inc." on Justia Law

The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. ("Twitter") to produce information to the government related to the Twitter account "@realDonaldTrump." The search warrant was served along with a nondisclosure order that prohibited Twitter from notifying anyone about the existence or contents of the warrant. Although Twitter ultimately complied with the warrant, the company did not fully produce the requested information until three days after a court-ordered deadline. The district court held Twitter in contempt and imposed a $350,000 sanction for its delay. On appeal, Twitter argued that the nondisclosure order violated the First Amendment and the Stored Communications Act, that the district court should have stayed its enforcement of the search warrant, and that the district court abused its discretion by holding Twitter in contempt and imposing the sanction.   The DC Circuit affirmed. The court held that it affirmed the district court's rulings in all respects. The court wrote that the district court properly rejected Twitter's First Amendment challenge to the nondisclosure order. Moreover, the district court acted within the bounds of its discretion to manage its docket when it declined to stay its enforcement of the warrant while the First Amendment claim was litigated. Finally, the district court followed the appropriate procedures before finding Twitter in contempt of court - including giving Twitter an opportunity to be heard and a chance to purge its contempt to avoid sanctions. Under the circumstances, the court did not abuse its discretion when it ultimately held Twitter in contempt and imposed a $350,000 sanction. View "In re: Sealed Case (AMENDED REDACTED OPINION)" on Justia Law

The 1996 E-Rate program (Schools and Libraries Universal Service Support program, Telecommunications Act 110 Stat. 56), is intended to keep telecommunications services affordable for schools and libraries in rural and economically disadvantaged areas. The program subsidizes services and requires providers to charge these customers rates less than or equal to the lowest rates they charge to similarly situated customers. Heath brought a qui tam action under the False Claims Act, 31 U.S.C. 3729, alleging that Wisconsin Bell charged schools and libraries more than was allowed under the program, causing the federal government to pay more than it should have. The district court granted Wisconsin Bell summary judgment.The Seventh Circuit reversed. While Heath’s briefing and evidence focused more on which party bore the burden of proving violations than on identifying specific violations in his voluminous exhibits and lengthy expert report, Heath identified enough specific evidence of discriminatory pricing to allow a reasonable jury to find that Wisconsin Bell, acting with the required scienter, charged specific schools and libraries more than it charged similarly situated customers. It is reasonable to infer that government funds were involved and that if the government knew of actual overcharges, it would not approve claims. View "Heath v. Wisconsin Bell, Inc." on Justia Law

A 2017 terrorist attack on an Istanbul nightclub, committed on behalf of ISIS, killed Alassaf and 38 others. Alassaf’s family sued Facebook, Twitter, and Google (which owns YouTube) under 18 U.S.C. 2333, which permits U.S. nationals who have been injured by an act of international terrorism to sue for damages. They alleged that the companies knowingly allowed ISIS and its supporters to use their platforms and “recommendation” algorithms for recruiting, fundraising, and spreading propaganda and have profited from the advertisements placed on ISIS content. The Ninth Circuit reversed the dismissal of the complaint.A unanimous Supreme Court reversed. The 2016 Justice Against Sponsors of Terrorism Act, section 2333(d)(2), imposes secondary civil liability on anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The Court concluded that it is not enough for a defendant to have given substantial assistance to a transcendent enterprise. A defendant must have knowingly provided substantial assistance in the commission of the actionable wrong—here, an act of international terrorism. The allegations do not show that the defendants gave ISIS such knowing and substantial assistance that they culpably participated in the attack. There are no allegations that the platforms were used to plan the attack; that the defendants gave ISIS special treatment; nor that the defendants carefully screened content before allowing users to upload it. The mere creation of media platforms is no more culpable than the creation of email, cell phones, or the internet generally.The allegations rest primarily on passive nonfeasance. The plaintiffs identify no duty that would require communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. The expansive scope of the claims would necessarily hold the defendants liable for aiding and abetting every ISIS terrorist act committed anywhere in the world. The Ninth Circuit improperly focused primarily on the value of the platforms to ISIS, rather than whether the defendants culpably associated themselves with the attack. View "Twitter, Inc. v. Taamneh" on Justia Law

In 2015, ISIS terrorists unleashed coordinated attacks across Paris, killing 130 victims, including Gonzalez, a 23-year-old U.S. citizen. Gonzalez’s family sued Google under 18 U.S.C. 2333(a), (d)(2). They alleged that Google was directly and secondarily liable for the terrorist attack that killed Gonzalez, citing the use of YouTube, which Google owns and operates, by ISIS and ISIS supporters.The Ninth Circuit affirmed the dismissal of the suit, finding most of the claims were barred by the Communications Decency Act of 1996, 47 U.S.C. 230(c)(1). The sole exceptions were claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system. The court held that these potential claims were not barred by section 230, but that the allegations nonetheless failed to state a viable claim. The complaint neither plausibly alleged that “Google reached an agreement with ISIS,” as required for conspiracy liability, nor that Google’s acts were “intended to intimidate or coerce a civilian population, or to influence or affect a government,” as required for a direct-liability claim.The Supreme Court vacated. The complaint. independent of section 230, states little if any claim for relief. The Court noted its contemporaneously-issued “Twitter” decision and held that the complaint fails to state a claim for aiding and abetting. The Court remanded the case for consideration in light of the Twitter decision. View "Gonzalez v. Google LLC" on Justia Law

DirecTV and Dish Network (“Defendants”) provide video services in part through the Internet. The City of Creve Coeur filed this class action in Missouri state court on behalf of local government authorities, seeking a declaratory judgment that Defendants are liable under the Video Services Providers Act (“VSPA”) and implementing local ordinances, plus injunctive relief, an accounting of unpaid fees, and damages. Defendants removed the action based on diversity jurisdiction and the Class Action Fairness Act (CAFA). After the state court entered an interlocutory order declaring that VSPA payments are fees, rather than taxes, DirecTV filed a second notice of removal, arguing this order established the required federal jurisdiction. The district court granted Creve Coeur’s motion to remand.   The Eleventh Circuit affirmed on different grounds. The court explained that the district court’s remand order plainly stated that the remand was based on comity principles as articulated in Levin, not on “state-tax based comity concerns.” Comity as a basis to remand was raised and fully argued in the first remand proceeding. Federal courts have long precluded two bites at this apple. Second, the Supreme Court in Levin emphatically stated that the century-old comity doctrine is not limited to the state-tax-interference concerns that later led Congress to enact the TIA. Third, the state court’s December 2020 Order addressed, preliminarily, only the VSPA fee-or-tax issue under state law. It did not address the broader considerations comity addresses. The state court order in no way overruled or undermined the basis for the district court’s first remand order. Therefore, DirecTV failed to establish the essential basis for a second removal. View "City of Creve Coeur v. DirecTV LLC" on Justia Law

YouTube, a video-sharing website, places “advertising restrictions” on certain videos to prevent the user who posted the video from realizing advertising revenues. Network administrators and individual subscribers can also elect to limit user access to YouTube videos using “Restricted Mode.” YouTube considers whether the content involves drugs, alcohol, sex, violence, tragedies, inappropriate language, and whether the content is "gratuitously incendiary, inflammatory, or demeaning towards an individual or group.” YouTube uses an “automated filtering algorithm.” Users whose videos have been restricted or demonetized may request human review. Prager has posted more than 250 YouTube videos and has been prohibited from monetizing over 50 of its videos. In some cases, other users have posted videos identical to Prager’s restricted videos; the copycat videos have not been restricted. Prager claims the restrictions are based on its political identity or viewpoints.After a district court dismissed its federal lawsuit, Prager sued in state court. The court of appeal affirmed the dismissal of the suit, citing immunity under the Communications Decency Act, 47 U.S.C. 230, for interactive computer service providers acting as “publishers or speakers” of content provided by others. The challenged conduct is the exercise of a publisher’s traditional editorial functions, The court rejected arguments that the defendants are themselves information content providers, that their terms of service and public pronouncements subjected them to liability notwithstanding the Act, and that the Act, in immunizing defendants from Prager’s state law claims, is unconstitutional. View "Prager University v. Google LLC" on Justia Law

In 2016, McLaughlin, the head of a business, was arrested based on an alleged domestic dispute with his former girlfriend, Olivia. In 2018, an Illinois court ordered all records in that case expunged, and the destruction of McLaughlin’s arrest records and photographs. McLaughlin sought an order of protection against Olivia. The terms of the parties’ subsequent settlement were incorporated in a judgment, which was sealed. Doe nonetheless posted multiple Twitter messages about McLaughlin’s arrest with McLaughlin’s mugshot, tagging McLaughlin’s business contacts and clients, and media outlets. Twitter suspended Doe’s accounts. The Illinois court issued a subpoena requiring the production of documents related to Doe’s Twitter accounts and issued “letters rogatory” to the San Francisco County Superior Court. Under the authority of that court, McLaughlin's subpoena was to be served on Twitter in San Francisco, requesting information personally identifying the account holders. In a motion to quash, Doe argued he had a First Amendment right to engage in anonymous speech and a right to privacy under the California Constitution. Doe sought attorney fees, (Code of Civil Procedure1987.2(c))The court of appeal affirmed orders in favor of McLaughlin. No sanctions were awarded. Doe failed to establish he prevailed on his motion to quash or that “the underlying action arises from [his] exercise of free speech rights on the Internet.” Doe presented no legally cognizable argument that McLaughlin failed to make a prima facie showing of breach of the settlement agreement. View "Doe v. McLaughlin" on Justia Law

Popa browsed the website of Harriet Carter Gifts, added an item to her cart, but left the website without making a purchase. She later discovered that, unbeknownst to her, Harriet Carter’s third-party marketing service, NaviStone, tracked her activities across the site. Popa sued both entities under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (WESCA), 18 Pa. C.S. 5701, which prohibits the interception of wire, electronic, or oral communications. The district court granted the defendants summary judgment, reasoning that NaviStone could not have “intercepted” Popa’s communications because it was a “party” to the electronic conversation. Alternatively, it ruled that if any interception occurred, it happened outside Pennsylvania, so the Act did not apply.The Third Circuit vacated. Under Pennsylvania law, there is no direct-party exception to WESCA liability, except for law enforcement under specific conditions. The defendants cannot avoid liability merely by showing that Popa directly communicated with NaviStone’s servers. NaviStone intercepted Popa’s communications at the point where it routed those communications to its own servers; that was at Popa’s browser, not where the signals were received at NaviStone’s servers. The court noted that the district court never addressed whether Harriet Carter posted a privacy policy and, if so, whether that policy sufficiently alerted Popa that her communications were being sent to a third-party company to support a consent defense. View "Popa v. Harriet Carter Gifts Inc." on Justia Law