Month: January 2007

January 25, 2007 Privacy

New Jersey gives nod to right of “informational privacy”

In contrast to federal right, state recognizes legitimate privacy interest in data held by third parties.

A New Jersey business owner began to suspect that one of his employees had, without authorization, accessed the company’s computer system to modify shipping and other customer information. The business owner knew someone with a Comcast IP address had accessed the system, and a police detective went to the local municipal court, to have the administrator issue a subpoena to Comcast. The ISP complied, and the information provided implicated the suspected employee. She was arrested, and before trial, successfully moved to suppress the evidence linking her identity with the IP address. The state sought review of the suppression of the evidence, and the appellate court affirmed. Pro-privacy advocates should applaud the court’s opinion.

The appellate court first looked at the validity of the subpoena that the administrator of the municipal court issued. For a number of reasons particular to New Jersey criminal procedure, the subpoena was invalid. (For example, the offense being investigated was one that would have been outside that court’s subject matter jurisdiction.)

The court then examined whether the invalidity of the subpoena really mattered. The lower court judge’s decision to suppress the evidence “might still be subject to reversal if [the] defendant had no privacy interest in the information obtained from Comcast. If there were no constitutionally protected privacy interest, it would not matter how the police obtained the information.”

Making no effort to conceal the fact that its decision departed from “uniform” federal jurisprudence on the issue, the court ruled in favor of the defendant’s “informational privacy.” Even though the U.S. Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” the New Jersey court continued a trend apparent in a number of past New Jersey cases which provide an individual with the right to control “the acquisition or release of information about oneself.” In New Jersey, this right to informational privacy is derived from an implied right of privacy found in the state’s constitution, and has manifested itself in past decisions involving a right to privacy in telephone records, bank records, and garbage left out for pickup.

Because the defendant had a reasonable expectation of privacy in her identity linked to the Comcast IP address, the state was required to get a valid subpoena before obtaining that information. Without the valid subpoena, the defendant’s rights were violated, and the evidence was properly excluded.

So does this mean that Internet subscriber information held by ISPs in New Jersey can never be revealed to law enforcement? No. But the court instructed “that information concerning the identity of an internet user can only be obtained by law enforcement through some means of judicial process.” All it takes is a valid subpoena.

State v. Reid, — A.2d —-, 2007 WL 135685 (N.J.Super.A.D., Jan. 22, 2007)

January 24, 2007 Copyright

Ninth circuit rejects efforts to liberate “orphan works”

“Orphan works” are works that are protected by copyright, but for which it is difficult, if not impossible, to locate the copyright owner. These works usually have little or no commercial value, but some argue that the uncertainty surrounding their ownership needlessly discourages subsequent creators and users from incorporating them into new creative efforts.

Works created before the effective date of the Copyright Act of 1976 (i.e., under the 1909 Act) were subject to copyright protection for 28 years. That duration could be extended if the copyright owner renewed the copyright for another 28 years. Accordingly, the old system has been characterized as an “opt-in” system, in that to extend the duration of copyright ownership, the owner had to take certain affirmative steps.

The Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, eliminated the renewal requirements for works created between 1964 and 1977. The Sunny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998), extended the term of copyright ownership to the life of the author plus 70 years (in the case of works authored by individuals). The present framework has been described as an “opt-out” system, in that copyright protection attaches automatically, unless a person takes some affirmative act to convey the work to the public domain.

The opt-out system and longer terms of copyright mean a larger number of orphan works. Some say that orphan works “probably comprise the majority of the record of 20th century culture.”

Brewster Kahle, founder of the Internet Archive, along with a number of other plaintiffs, sought to fix the present situation of orphan works by challenging the constitutionality of the Copyright Renewal Act of 1992 and the Sunny Bono Copyright Term Extension Act. They filed a declaratory judgment action in federal court in California, emphasizing the increased possibilities for archiving and disseminating content over the Internet. When the court granted the government’s motion to dismiss, the plaintiffs sought review. On appeal, the Ninth Circuit affirmed the dismissal of the action.

[Aside: Check out this interesting interview that Dr. Moira Gunn did with Brewster Kahle last year.]

The plaintiffs raised two arguments. First, they argued that the change from an “opt-out” system to an “opt-in” system “altered the traditional contour of copyright” and therefore, under the holding of Eldred v. Ashcroft, 537 U.S. 186 (2003), should be subject to First Amendment review. The second argument was that the current copyright term — providing what the plaintiffs characterized as a term that is “effectively perpetual” — violated the Constitution’s “limited Times” prescription, found at Article I, Sec. 8, Clause 8.

The court rejected each of these arguments. Relying on the Eldred case, the court held that the Copyright Renewal Act of 1992 and the Sunny Bono Copyright Term Extension Act both served to “lengthen the term for [certain works], but in doing so they simply placed existing copyrights in parity with those of future works.” In Eldred, the act of creating “parity” survived constitutional scrutiny. And so it did in this case too.

As for the second argument, namely, that the current term of copyright — in many instances well over a century — was too long, the court relied again on Eldred. Noting that the decision of Congress to extend the term of copyright was subject to rationality review, the court looked to the “rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works.” In other words, Congress had undertaken an appropriate balancing test between encouraging creativity and bringing works into the public domain.

Kahle v. Gonzalez, (Slip Op.), —F.3d—-, No. 04-17434 (9th Cir., Jan. 22, 2007).

January 24, 2007 About This Site

New Terms and Conditions for Internet Cases

Website terms and conditions are a strange animal. And they’re sometimes even more puzzling when they’re on a lawyer’s website. I’ve been thinking about what the terms and conditions for this site should say, and so I’ve come up with the following. Sure I could make it all legalese and complicated, but I’m trying a more conversational approach. Here goes.

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January 23, 2007 First Amendment

Sixteen-year-old girl criminally liable for child pornography

A state appellate court in Florida has affirmed the decision of a trial court that adjudicated a 16-year-old girl, A.H., a delinquent based on her violation of the state’s anti-child pornography statute. The law in question, Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.

The charges against A.H. were based on digital photos A.H. and her 17-year-old boyfriend took of themselves “engaged in sexual behavior.” The photos were never shown to a third party, but A.H. e-mailed them to the boyfriend’s personal account.

At the trial court level, A.H. moved to dismiss the charges, arguing that the Florida statute was unconstitutional as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the photos was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest.

The trial court ruled that there was a compelling state interest in preventing the production of the photographs and criminal prosecution was the least intrusive means of furthering the state’s compelling interest. The appellate court agreed, and further determined that the privacy provision of the state constitution did not protect A.H.’s behavior.

At the heart of the case was the court’s determination that A.H. had no reasonable expectation of privacy in the photographs. First, the decision to take the photographs and to keep a record that may be shown to people in the future weighed against a reasonable expectation of privacy. Second, because the persons in the photos were minors, they had no reasonable expectation that the photos would not be shared with others. The court stated that “[m]inors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally.” Third, the fact that they had kept the photos private was immaterial: “The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.”

The court went on to hold that even if A.H. had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The court concluded that prosecution of the participants, regardless of their age, was the least intrusive means of furthering that compelling interest. Moreover, the court observed that “the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.”

The court also addressed the significance of the fact that A.H. had e-mailed the photos to the boyfriend (who, you’ll remember was the other participant in the photos), concluding that that act would contribute to the widespread distribution of the photos:

Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date.

One of the judges on the three-judge panel lodged a vigorous dissent, arguing that the application of the statute against A.H. violated her constitutional right to privacy. Citing to the Florida constitution and previous case law, the dissenting judge noted the “clear constitutional mandate” of privacy giving rise to a right that applies to both adults and children alike.

The dissenting judge also criticized the majority opinion’s emphasis on the fact that A.H. had e-mailed the photos to the boyfriend:

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

So the case is problematic for a number of reasons. It certainly complicates the analysis as to what kind of privacy rights minors have. But it also raises a fundamental question as to how laws should be enforced to effectuate their purposes. If anti-child pornography statutes are intended to protect minors from exploitation, doesn’t it seem at least a bit anomalous to prosecute the very persons who are being exploited?

A.H. v. State, (Slip Op.) — So.2d —-, 2007 WL 120008 (Fla.App. 1 Dist. Jan. 19, 2007)

January 22, 2007 Anonymity

Another court adopts the Cahill standard for unmasking anonymous online defendants

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed. [Read more here.]

Public Citizen represented the anonymous defendant, and issued this press release which explains the case in more detail, and provides a link to the court’s opinion.

See also Techdirt’s commentary on the case.

McMann v. Doe, Case No. CV 2006-092226, Maricopa County Superior Court, January 18, 2007.

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