Justia Communications Law Opinion Summaries

In 2012, Rad and others were charged with acquiring penny stocks, “pumping” the prices of those stocks by bombarding investors with misleading spam emails, and then “dumping” their shares at a profit. Rad was convicted of conspiring to commit false header spamming and false domain name spamming under the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), 15 U.S.C. 7701(a)(2), which addresses unsolicited commercial email. The PSR recommended raising Rad’s offense level to reflect the losses inflicted on investors, estimating that Rad realized about $2.9 million in “illicit gains” while acknowledging that because “countless victims” purchased stocks, the losses stemming from Rad’s conduct could not “reasonabl[y] be determined.” Rad emphasized the absence of evidence that any person lost anything. Rad was sentenced to 71 months’ imprisonment. The record is silent as to how the court analyzed the victim loss issue. The Third Circuit affirmed. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), which renders an alien removable for any crime that “involves fraud or deceit” “in which the loss to the victim or victims exceeds $10,000.” The IJ and the BIA found Rad removable.The Third Circuit remanded. Rad’s convictions for CAN-SPAM conspiracy necessarily entail deceit under 8 U.S.C. 1101(a)(43)(M)(i). The second element, requiring victim losses over $10,000, however, was not adequately addressed. The court noted that intended losses, not just actual ones, may meet the requirement. View "Rad v. Attorney General United States" on Justia Law

When a Google employee views a digital file and confirms that it is child pornography, Google assigns the file a hash value (digital fingerprint). It then scans Gmail for files with the same value. Google learned that a Gmail account had uploaded files with hash values matching child pornography and sent a report to the National Center for Missing and Exploited Children (NCMEC). NCMEC’s systems traced the IP address to Kentucky. A local detective connected Miller to the Gmail account.The Sixth Circuit affirmed Miller’s convictions. The Fourth Amendment restricts government, not private, action. A private party who searches a physical space and hands over paper files to the government has not violated the Fourth Amendment. Rejecting Miller’s argument that the detective conducted an “unreasonable search” when he later opened and viewed the files sent by Google, the court reasoned that the government does not conduct a Fourth Amendment search when there is a “virtual certainty” that its search will disclose nothing more than what a private party’s earlier search revealed. A hash-value match has near-perfect accuracy, creating a “virtual certainty” that the files in the Gmail account were the known child-pornography files that a Google employee had viewed. The admission of NCMEC’s report at trial did not violate Miller’s Sixth Amendment right to confront “witnesses.” The rule applies to statements by people. NCMEC’s automated systems, not a person, entered the information into the report. View "United States v. Miller" on Justia Law

Royal employed Kraft and Matthews (Defendants) in its sales team. Royal’s employee handbook prohibited using company equipment for personal activities; unauthorized use, retention, or disclosure of any of Royal’s resources or property; and sending or posting trade secrets or proprietary information outside the organization. Royal’s “GPS Tracking Policy” stated, “[e]mployees may not disable or interfere with the GPS (or any other) functions on a company-issued cell phone,” nor may employees “remove any software, functions or apps.” The Defendants resigned to become employed with one of Royal’s competitors. Royal discovered that, shortly before his resignation, Kraft forwarded from his Royal email account to his personal one quotes for Royal customers and Royal paystubs; contacted a Royal customer through Royal’s email server to ask the customer to send “all the new vendor info” to Kraft’s personal email account; then deleted and reinstalled the operating system on his company-issued laptop, rendering its data unrecoverable. Matthews did much the same and announced her resignation on social media, sharing a link to the song, “You Can Take This Job and Shove It.”Royal sued, citing the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, which refers to one who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.” The district court concluded that the Defendants did not “exceed[]” their “authorized access,” under CFAA. The Sixth Circuit affirmed. While their conduct might violate company policy, state law, perhaps another federal law, the employees were authorized to access the information in question. View "Royal Truck & Trailer Sales & Service, Inc. v. Kraft" on Justia Law

After unfavorable comments were posted about Test Prep, the company and its owner filed suit against several defendants, including Allnurses and its founder and a user. Test Prep alleged claims sounding in defamation, contract, and fraud, as well as other theories of liability asserting that Allnurses had induced users to post negative comments. The district court granted Allnurses' motion for judgment on the pleadings and dismissed the suit against the user for lack of personal jurisdiction.The court held that Allnurses was immunized under Section 203 of the Communications Decency Act from liability arising from the posts on the message board. The court held that Test Prep failed to plausibly allege that Allnurses was the "information content provider" of the posts at issue. In this case, the sum total of the complaint's factual allegations pleaded no more than a "sheer possibility" that Allnurses was wholly or partly responsible for creating or developing the posts made by the message board users. Furthermore, in the absence of any contractual relationship between Test Prep and Allnurses, there is no basis for the complaint's allegation that Allnurses had certain obligations to Test Prep including to take down defamatory or libelous posts. The court also held that an individual user plaintiff failed to plead facts sufficient to establish a breach of the terms of the service contract; the district court properly granted judgment in favor of Allnurses on the promissory estoppel claim; claims of fraud and claims based on other theories of liability rejected; the district court did not err in granting the user's motion to dismiss for lack of personal jurisdiction; and the district court did not err in granting Test Prep's motion to transfer the case. View "East Coast Test Prep LLC v. Allnurses.com, Inc." on Justia Law

The Pennsylvania Attorney General (OAG) charged Walker with forgery and computer crimes. The prosecutor and the lead investigator requested that Penn State produce Walker’s emails from her employee account. At Penn’s request, they obtained a subpoena. The subpoena was missing information regarding the date, time or place where the testimony or evidence would be produced, or which party was requesting the evidence. The subpoena was incomplete and unenforceable. The prosecutor offered the subpoena to Penn’s Assistant General Counsel, who instructed an employee to assist. After the OAG obtained Walker’s emails, the pending criminal charges were dismissed with prejudice. Walker filed suit under 42 U.S.C. 1983. The district court dismissed, citing qualified immunity because Walker did not have a clearly established right to privacy in her work emails. A Third Circuit panel affirmed, reasoning that Penn produced the emails voluntarily, rather than under coercion resulting from the invalid subpoena and was acting within its legal authority and through counsel.The Third Circuit affirmed the dismissal of Walker's amended complaint, alleging violations of the Stored Communications Act, 18 U.S.C. 2701 (SCA). The SCA is inapplicable because Penn does not provide electronic communication services to the public. Penn acted within its rights as Walker’s employer in voluntarily disclosing her work emails. Penn’s search of its server to produce Walker’s emails is not prohibited by the SCA, regardless of whether its counsel was induced by deceit or knowingly cooperative. It is the law of the case that Penn consented to disclose Walker’s emails. View "Walker v. Coffey" on Justia Law

The defendants were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each defendant served a subpoena duces tecum on one or more social media providers (Facebook, Instagram, and Twitter, collectively “Providers”), seeking public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers repeatedly moved to quash the subpoenas on the ground that the federal Stored Communications Act (18 U.S.C. 2701) barred them from disclosing the communications without user consent. The trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the motions to quash, and ordered Providers to produce the victim’s and witness’s private communications for in camera review. The court of appeal granted mandamus relief, concluding the trial court abused its discretion by not adequately exploring other factors, particularly options for obtaining materials from other sources, before issuing its order. The trial court focused on defendants’ justification for seeking the private communications and the record does not support the requisite finding of good cause for the production of the private communications for in camera review. View "Facebook, Inc. v. Superior Court of the City and County of San Francisco" on Justia Law

In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation.The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.” View "West v. Charter Communications, Inc." on Justia Law

Officers executed a search warrant at Rawls’ residence, yielding an iPhone 6 and a Mac Pro Computer with attached external hard drives, all protected with encryption software. With a warrant, forensic analysts discovered the password to decrypt the Mac Pro but could not determine the passwords for the external hard drives. The Mac Pro revealed an image of a pubescent girl in a sexually provocative position, logs showing that it had visited likely child exploitation websites and that Rawls had downloaded thousands of files known to be child pornography. Those files were stored on the external hard drives. Rawls’ sister stated that Rawls had shown her child pornography on the external hard drives. A Magistrate ordered Rawls to unencrypt the devices. Rawls cited the Fifth Amendment privilege against self-incrimination. The court denied Rawls’ motion, reasoning the act of decrypting the devices would not be testimonial. Rawls decrypted the iPhone, which contained 20 photographs that focused on the genitals of Rawls’ six-year-old niece. Rawls stated that he could not remember the passwords for the hard drives. The Third Circuit affirmed a civil contempt finding.Rawls, incarcerated since September 2015, moved for release, arguing that 28 U.S.C. 1826(a) limits the maximum confinement for civil contempt to 18 months. The Third Circuit ordered his release, rejecting the government’s argument that Rawls was not a “witness” participating in any “proceeding before or ancillary to any court or grand jury.” The proceedings to enforce the search warrant fall within the statute’s broad description of any “proceeding before or ancillary to any court or grand jury," the Decryption Order is “an order of the court to testify or provide other information,” and section 1826(a) applies to the detention of any material witness, even if that person is also a suspect in connection with other offenses. View "United States v. Apple Mac Pro Computer" on Justia Law

The Ninth Circuit filed an order withdrawing its prior opinion and replacing the opinion with an amended opinion, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc. The panel also filed an amended opinion reserving the district court's dismissal, as barred by section 230 of the Communications Decency Act (DCA), of claims under New York law and the Lanham Act's false advertising provision.Enigma filed suit alleging that Malwarebytes Inc. has configured its software to block users from accessing Enigma's software in order to divert Enigma's customers. The panel distinguished Zango Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 (9th Cir. 2009), from this case and held that the parties here were competitors. The panel heeded the warning in Zango against an overly expansive interpretation of section 230 that could lead to anticompetitive results. The panel held that the phrase "otherwise objectionable" does not include software that the provider finds objectionable for anticompetitive reasons. In regard to the state-law claims, the panel held that Enigma's allegations of anticompetitive animus were sufficient to withstand dismissal.In regard to the federal claim, the panel held that section 230's exception for intellectual property claims did not apply because Enigma's false advertising claim did not relate to trademarks or any other type of intellectual property. The panel remanded for further proceedings. View "Enigma Software Group USA, LLC v. Malwarebytes, Inc." on Justia Law

The DC Circuit declined to vacate the FCC's 2018 Order in its entirety, which classified broadband internet access services as an information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996. Specifically, the 2018 Order classified broadband internet as an "information service," and mobile broadband as a "private mobile service." In the Order, the Commission adopted transparency rules intended to ensure that consumers have adequate data about Internet Service Providers' network practices, and the Commission applied a cost-benefit analysis, concluding that the benefits of a market-based, "light-touch" regime for Internet governance outweighed those of common carrier regulation under Title II.The court held, under the guidance of National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980–981 (2005), that the Commission permissibly classified broadband Internet access as an "information service" by virtue of the functionalities afforded by DNS and caching. The court also held that, even though petitioners' reading of a functional equivalence in 47 U.S.C. 332(d)(3) was not foreclosed by the statute, the agency's interpretation of that term, and its application to mobile broadband, were reasonable and merit Chevron deference. Furthermore, the court held that the Commission's rationales in favor of its reading of Section 706 of the Telecommunications Act was reasonable, and agreed that the transparency rule was authorized by 47 U.S.C. 257. Therefore, the court upheld the 2018 Order with two exceptions. The court held that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission "repealed or decided to refrain from imposing" in the Order or that is "more stringent" than the Order. Accordingly, the court vacated that portion of the Order. The court also remanded the Order to the agency on three discrete issues regarding public safety, pole attachments, and the Lifeline Program. View "Mozilla Corp. v. FCC" on Justia Law