Justia Communications Law Opinion Summaries

Apple introduced the iPad in 2010. To send and receive data over cellular networks (3G), customers had to purchase a data contract from AT&T and register on an AT&T website. AT&T prepopulated the user ID field on the login screen with customers’ email addresses by programming servers to search for the user’s Integrated Circuit Card Identifier to reduce the time to log into an account. Spitler discovered this “shortcut” and wrote a program, the “account slurper,” to repeatedly access the AT&T website, each time changing the ICC-ID by one digit. If an email address appeared in the login box, the program would save that address. Spitler shared this discovery with Auernheimer, who helped him to refine the account slurper, which collected 114,000 email addresses. Auernheimer emailed the media to publicize their exploits. AT&T fixed the breach. Auernheimer shared the list of email addresses with Tate, who published a story that mentioned some names of those whose email addresses were obtained, but published only redacted email addresses and ICC-IDs. Spitler was in California. Auernheimer was in Arkansas. The servers t were physically located in Texas and Georgia. Despite the absence of any connection to New Jersey, a Newark grand jury indicted Auernheimer for conspiracy to violate the Computer Fraud and Abuse Act, 18 U.S.C. 1030(a)(2)(C) and (c)(2)(B)(ii), and identity fraud under 18 U.S.C. 1028(a)(7). The Third Circuit vacated his conviction. Venue in criminal cases is more than a technicality; it involves “matters that touch closely the fair administration of criminal justice and public confidence in it.”View "United States v. Auernheimer" on Justia Law

Elonis’s wife left their home with their children. Elonis began experiencing trouble at work at an amusement park, reportedly leaving early and crying at his desk. An employee Elonis supervised, Morrissey, claimed sexual harassment. In October Elonis posted on Facebook a photograph taken for his employer’s Halloween Haunt. The photograph showed Elonis in costume holding a knife to Morrissey’s neck. Elonis added the caption “I wish.” Elonis’s supervisor saw the posting and fired Elonis. Days later, Elonis began posting statements on Facebook about having “keys for the fucking gates … sinister plans for all my friends,” and, concerning his wife, “would have smothered your ass … dumped your body … and made it look like a rape and murder” that their son “should dress up as matricide for Halloween … head on a stick” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Following issuance of a state court protective order, Elonis posted statements concerning shooting at his wife’s house, using explosives, and “I’m checking out and making a name for myself … hell hath no fury like a crazy man in a kindergarten class.” After being visited by federal agents, he posted statements about blowing up SWAT members. Elonis was convicted of transmitting in interstate commerce communications containing a threat to injure the person of another, 18 U.S.C. 875(c). The Third Circuit affirmed, rejecting an argument that he did not subjectively intend his Facebook posts to be threatening. A 2003 Supreme Court decision, Virginia v. Black, did not overturn its prior holding that a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat. View "United States v. Elonis" on Justia Law

The plaintiffs deal in silver and gold jewelry, ingots, numismatics, and other related items. They challenged the facial constitutionality of the Precious Metals Dealers Act, Ohio Rev. Code 4728, alleging violation of the commercial speech rights of businesses dealing in precious metals, vagueness, and violation of the Fourth Amendment by imposing overly burdensome retention, reporting, and record-keeping requirements. The district court granted a preliminary injunction, finding that the Act violated the First Amendment because only those engaged in commercial speech are subject to its licensing requirement. The injunction prohibited the state from requiring licenses or fining those, like plaintiffs, who previously violated the statute. The Sixth Circuit reversed, applying “rational basis” review. The Act does not burden the commercial speech rights of unlicensed precious metals dealers. Such dealers do not have a constitutional right to advertise or operate a business does not comply with reasonable requirements of Ohio law and cannot “hold themselves out” to the public without a license, regardless of whether they advertise. The issue is not advertising, but whether a business holds itself out to the public, which can occur by posting a sign, placing goods in a window, or simply conducting business in a manner that is visible to the public. The court noted the public interest in the statutory scheme .View "Liberty Coins, LLC v. Goodman" on Justia Law

Plaintiffs filed suit against Google under the Wiretap Act, 18 U.S.C. 2511, after the antennas and software installed in Google's Street View cars collected basic identifying information transmitted by Wi-Fi networks, as well as gathered and stored "payload data" that was sent and received over unencrypted Wi-Fi connections. On appeal, Google challenged the district court's denial of its motion to dismiss based on the Wiretap Act's exemption for electronic communication that was readily accessible to the general public. The court held that the phrase "radio communication" in section 2510(16) excluded payload data transmitted over a Wi-Fi network. Consequently, the definition of "readily accessible to the general public [] with respect to a radio communication" in section 2510(16) did not apply to the exemption for an "electronic communication" that was "readily accessible to the general public" under section 18 U.S.C. 2511(2)(g)(i). The court also held that payload data transmitted over an unencrypted Wi-Fi network was not "readily accessible to the general public" under the ordinary meaning of the phrase as it was used in section 2511(2)(g)(i). Accordingly, the court affirmed the district court's judgment.View "Joffe v. Google, Inc." on Justia Law

Since 2001, Callaghan has worked part-time at the South Portland Library. Edwards works for the Parks and Recreation Department about four hours per week. Both are subject to a personnel policy, which, following 2010-2011 amendments, provides that city employees may not seek or accept nomination or election to any South Portland elective office; use the influence of their employment for or against any candidate for city elective office; circulate petitions or campaign literature for any city elective office; solicit or receive subscriptions, contributions or political service from any person for or against any candidate for any city elective office; or use city property to assist or advocate for or against any candidate. Callaghan has served on the School Board since 2007. When Callaghan sought reelection in 2011, the City Clerk stated that the personnel policy amendments prevented placement of her name on the ballot. Edwards had served on the Board for 18 years. In 2010, Edwards expressed interest in filling a vacancy on the Board. After the City Clerk questioned whether Edwards could be appointed given his city employment, Edwards did not pursue the appointment. Edwards and Callaghan filed a complaint, 42 U.S.C. 1983, asserting that the policy was an unconstitutional restraint on political speech. The trial court entered partial summary judgment for the employees and an injunction barring enforcement of a prohibition on any city employee seeking election to or serving on the School Board or, on their own time, from circulating petitions or campaign literature and soliciting or receiving contributions or political service for or against candidates in School Board elections. The Maine Supreme Court affirmed as to the employees, but vacated the judgment to the extent that it invalidates the policy as to employees who were not parties.View "Callaghan v. City of South Portland" on Justia Law

T-Mobile filed suit under the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B), challenging the Board's denial of T-Mobile's application for permits to build two telecommunications towers in Loudoun County - one disguised as a bell tower and one disguised as a silo on a farm. The district court concluded that the Board improperly denied T-Mobile's application for the silo tower and affirmed the Board's decision denying permits for the bell tower. The court concluded that the Board's decision to deny T-Mobile's Bell Tower Site application was supported by substantial evidence; did not have the effect of prohibiting the provision of personal wireless services in view of the possibility of other alternatives; and was not made on the basis of health concerns about radio frequency emissions. In regards to the Silo Site, the court concluded that while the aesthetic concerns that the Board gave for denying T-Mobile's application were supported by substantial evidence, its decision to base the denial of T-Mobile's application on improper environmental concerns about radio frequency emissions was prohibited by the Act. Accordingly, the court affirmed the judgment of the district court. View "T-Mobile Northeast LLC v. The Loudoun Cty. Bd." on Justia Law

Trusts that owned fifty percent of the common stock of nominal defendant IMS alleged that two of the company's three most senior officers mismanaged the company in breach of their fiduciary duties. Trusts moved to compel IMS to produce the senior officers' work email accounts. The senior officers asserted the attorney-client privilege but did not invoke the work product doctrine. The court concluded that the In re Asia Global Crossing, Ltd. factors weighed in favor of production, absent a statutory override that could alter the common law result. Because IMS conducted its business in Maryland, the federal government and the State of Maryland were the sovereigns whose laws IMS must follow when dealing with its employees' email. The Federal Wiretap Act, 18 U.S.C. 2510 et seq.; the Federal Store Communications Act, 18 U.S.C. 2701; the Maryland Wiretap Act, Md. Code, Cts. & Jud. Proc. 10-401 to 10-414; and the Maryland Stored Communications Act, Md. Code, Cts. & Jud. Proc. 10-4A-01 to 10-4A-08, did not change the common law privilege analysis. Accordingly, the court granted the motion to compel.View "In re Info. Mgmt. Servs., Inc. Derivative Litigation" on Justia Law

A business that manages commercial real estate and its owners were sued in a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227, for having paid a “fax blaster” (Business to Business Solutions) to send unsolicited fax advertisements. Aggregate statutory damages would be more than $5 million or, if the violation is determined to be willful or knowing, as much as three times greater. The Seventh Circuit denied leave to appeal class certification in the suit, which is more than five years old. The court noted that it had no knowledge of the value of the defendant-business and that, even if the defendants could prove that they will be forced to settle unless class certification is reversed, they would have to demonstrate a significant probability that the order was erroneous. Rejecting challenges concerning individual class members, the court noted that no monetary loss or injury need be shown to entitle junk‐fax recipient to statutory damages. The adequacy of the class representative was not challenged. View "Wagener Equities, Inc. v. Chapman" on Justia Law

Bray is an antiabortion activist and wrote a book, A Time to Kill. In 1985, Bray was convicted for a felony relating to physical damage to abortion centers. He spent four years in prison. Planned Parenthood (PPCW) was a plaintiff in a 1995 suit against antiabortion activists (including Bray) for intimidation by threat of force under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248. In 2005, PPCW sought to collect its $850,000 judgment and obtained a writ of execution authorizing seizure of specified property. The Bray family filed a “Bivens” suit, claiming that U.S. Marshals conspired with PPCW to seize their property in an unconstitutional manner. The complaint alleged that during a “surprise raid” Bray was required to sit on his couch while flak-jacketed Marshals, advocates for political positions that Bray despised, plus unknown persons, seized the books, papers, computers and cameras, of Bray and his family, excepting only children’s books and Bibles. Bray was not allowed to leave the couch or to call his lawyer. Eventually a Marshal called Bray’s lawyer. The district court dismissed. The Sixth Circuit affirmed, noting that Bray had settled with all defendants, except the Marshals, who were entitled to qualified immunity in carrying out a presumptively valid federal court order, even by “highly questionable ways.” The unconstitutionality of certain actions was not then clearly established with sufficient specificity. If the alleged facts are true, the incident was “more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect” in the U.S., even if Bray’s ideas are “repugnant.”View "Bray v. Planned Parenthood Columbia-Willamette, Inc." on Justia Law

Clark was indicted under 720 ILCS 5/14-2(a)(1)(A) for having used an eavesdropping device to record a conversation between himself and attorney Thomas without her consent and having used a device to record a conversation between himself, Judge Janes, and Thomas while Janes was acting in the performance of official duties, without the consent of either. Defendant stated that he was in court and attorney Thomas was representing the opposing party; there was no court reporter nor was there any recording device, so he made recordings to preserve the record. He claimed he had a first amendment right to gather information by recording officials performing their public duties. The circuit court dismissed, holding that the statute is unconstitutional on substantive due process and first amendment grounds. The Illinois Supreme Court affirmed, reasoning that if another person overhears what we say, that person may write it down and publish it, but if that same person records our words with a recording device, even if it is not published in any way, a criminal act has been committed. The statute goes too far in its effort to protect individuals’ interest in the privacy of their communications and burdens substantially more speech than necessary to serve interests it may legitimately serve. It does not meet the requirements necessary to satisfy intermediate scrutiny.View "People v. Clark" on Justia Law