Justia Communications Law Opinion Summaries

Plaintiff and Church United filed suit against Vimeo, alleging that the company discriminated against them by deleting Church United’s account from its online video hosting platform. Plaintiffs claimed that Vimeo discriminated against them based on sexual orientation and religion under federal and state law. The district court concluded that Vimeo deleted Church United's account because of its violation of one of Vimeo's content policies barring the promotion of sexual orientation change efforts (SOCE) on its platform.The Second Circuit affirmed the district court's dismissal of plaintiffs' claims, agreeing with the district court that Section 230(c)(2) of the Communications Decency Act provides Vimeo with immunity from suit. The court concluded that, under Section 230(c)(2), Vimeo is free to restrict access to material that, in good faith, it finds objectionable. In this case, plaintiffs' conclusory allegations of bad faith do not survive the pleadings stage, especially when examined in the context of Section 230(c)(2). The court explained that Section 230(c)(2) does not require interactive service providers to use a particular method of content restriction, nor does it mandate perfect enforcement of a platform's content policies. Indeed, the fundamental purpose of Section 230(c)(2) is to provide platforms like Vimeo with the discretion to identify and remove what they consider objectionable content from their platforms without incurring liability for each decision. View "Domen v. Vimeo, Inc." on Justia Law

Murphy, a journalist with approximately Twitter 25,000 followers, had a Twitter “verification badge,” which “lets people know that an account of public interest is authentic.” Murphy “writes primarily on feminist issues, including the Me Too movement, the sex industry, sex education, third-wave feminism, and gender identity politics.” Murphy argues “that there is a difference between acknowledging that transgender women see themselves as female and counting them as women in a legal or social sense.” Murphy posted several tweets critical of transgender women. Twitter removed her posts and informed her she had violated its hateful conduct rules. After she posted additional similar messages, Twitter permanently suspended her account.Murphy filed suit, alleging breach of contract, promissory estoppel, and violation of the unfair competition law. The trial court dismissed the complaint, concluding Murphy’s suit was barred by the Communications Decency Act of 1996, 47 U.S.C. 230, under which interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. The court of appeal affirmed. Each of Murphy’s causes of action seeks to hold Twitter liable for its editorial decisions. Murphy also failed to state a cognizable claim under California law. The Hateful Conduct Policy was in place when Murphy began posting her deleted tweets; Twitter expressly reserved the right to remove content, and suspend or terminate accounts “for any or no reason.” View "Murphy v. Twitter, Inc." on Justia Law

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