First Amendment – Page 7 – Attorney Evan Brown

July 25, 2005 First Amendment, Spam

Spam filters and storage limits okay under First Amendment

Plaintiff de Mino, a part-time faculty member at the University of Houston Downtown, filed suit against the University, claiming that various restrictions placed on the use of school e-mail accounts violated the First Amendment right to free speech.

Specifically, de Mino complained of the University’s practice of shutting down e-mail accounts for adjunct professors during the summer, when they were not under contract to teach. He further complained of the inability to transmit e-mail after his account had reached its data storage limit. De Mino had other problems with the e-mail system when he failed to designate his personal e-mail address as legitimate, thus certain messages he had sent to other faculty had been caught in the system’s spam filter. De Mino contended that he was denied access when he tried to communicate with other faculty regarding University policies.

The court granted summary judgment in favor of the University, and dismissed the lawsuit. In deciding on de Mino’s First Amendment claim, the court looked primarily to two tests used to analyze such claims in the education context.

Under the Perry test (Perry Educ. Assn v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)), educational authorities may reserve an internal mail system for its intended purposes, so long as there is no discrimination on the basis of viewpoint and the limitations imposed are reasonable in light of the purpose of the forum. Under the Tinker test, (Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)), teacher communications may be suppressed only when the expression or its method of exercise materially and substantially interferes with the activities or discipline of the school.

In this case, the court held that the restrictions on de Mino’s e-mail account satisfied these tests. The limited duration of adjunct accounts, as well as the spam filters and storage limits were not content- or viewpoint-based restrictions, and were reasonable in light of the need to preserve the integrity of the IT system. Doing away with such restrictions (and allowing open access to spam and unlimited data storage) would have been a substantial interference with the activities of the school.

Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116 (S.D.Tex., July 13, 2005).

June 22, 2005 Computer Crime, First Amendment, Trade Secrets

Court rejects constitutional argument in Microsoft trade secret prosecution

New York federal court holds that Economic Espionage Act of 1996 not unconstitutionally overbroad or vague.

In February 2004, defendant Genovese posted a message on his website that the source code for Windows 2000 had been “jacked,” and offered to provide copies of it via FTP to anyone willing to pay a small fee. After Microsoft investigated Genovese’s claims and successfully obtained one of the “jacked” copies, it notified the FBI. Genovese was arrested and charged under the federal Economic Espionage Act of 1996, 18 U.S.C. §1832 et seq. (“EEA”).

Genovese moved to dismiss the indictment, arguing that the EEA was facially overbroad and unconstitutionally vague as applied to him. The court rejected his arguments, and denied the motion to dismiss the indictment.

In holding that the statute was not overbroad, the court determined that Genovese’s alleged conduct, namely, distributing the source code “with intent to convert a trade secret…to the economic benefit of anyone other than the owner thereof” was not protected speech under the First Amendment.

On the question of whether the statute was unconstitutionally vague, the court concluded that the term “trade secret” was defined with “sufficient definiteness” so that an ordinary person in Genovese’s position would understand that trafficking in the Windows source code was prohibited by law. Genovese’s own conduct demonstrated that he knew the source code derived value from not being generally known (namely, by referring to it as “jacked” and by charging a fee for access to it.) Furthermore, the court found that one could infer Genovese knew the code was proprietary and that protective measures taken by Microsoft had been circumvented. Thus, Genovese could “reasonably understand” that his conduct was proscribed by the Act.

U.S. v. Genovese, 2005 WL 1439860 (S.D.N.Y., June 21, 2005).

UPDATE: Genovese pleads guilty. [More here.]

March 31, 2005 First Amendment

Change in mail delivery policy moots prisoner’s First Amendment complaint

In the case of West v. Frank, decided on March 25, 2005 by the U.S. District Court for the Western District of Wisconsin, the court dismissed a prisoner’s complaint that a prison policy prohibiting mail delivery of information printed from the Internet was unconstitutional. The court held that the issue became moot after the policy was amended to allow delivery of such materials.

Plaintiff, an inmate in a Wisconsin prison, suffered from liver disease and desired information about the liver transplant process. After he was unable to acquire such information from the prison’s medical staff, plaintiff asked family members to send him information through the mail. On three occasions, family members printed out information from medical websites and sent them through the mail to the plaintiff. Prison officials did not deliver the materials to the plaintiff, however, citing the prison’s policy which prohibited inmates from receiving printed Internet materials.

Plaintiff brought a civil rights action against various prison officials alleging that the policy violated his First Amendment rights. At the summary judgment stage, the matter was dismissed. The court found that the prison’s change in policy to allow inmates to receive printed materials on the Internet made the First Amendment question moot. The parties to the action no longer had “an interest in the outcome that the law recognize[d] as actionable.” Further, it was “absolutely clear that the allegedly wrongful behavior [of the prison] could not reasonably be expected to recur.”

West v. Frank, 2005 WL 701703 (W.D. Wis., March 25, 2005).

March 19, 2005 Defamation, First Amendment, Litigation, Privacy

Time Warner ordered to identify sender of offensive e-mail

In the case of Fitch v. Doe, the Supreme Court of Maine has held that while the Cable Communications Policy Act of 1984 generally prohibits a cable operator’s disclosure of subscriber information, an exception provided in the Act allows disclosure to nongovernmental entities pursuant to court order, so long as the subscriber has received notification thereof.

On Christmas Eve 2003, an anonymous person sent an email under Plaintiff Fitch’s name with a derogatory cartoon attached. Fitch filed suit in Maine state court against the unknown sender of the email (John or Jane Doe). Fitch then sought an order directing Time Warner (the ISP of the account from which the message was sent) to disclose Doe’s identity. Doe’s counsel objected to the disclosure, arguing that the disclosure was forbidden by the Cable Communications Policy Act of 1984, 47 U.S.C.A. § 551 (the “Act”), and that Doe did not consent to allow Time Warner to disclose his identity. The trial court ordered disclosure, finding that Doe’s agreement with Time Warner provided such consent.

Doe appealed to the Maine Supreme Court, but the lower court’s decision to order disclosure was affirmed. Although the court concluded that the lower court erred in determining Doe had consented to disclosure, such disclosure was authorized under an exception found in the Act.

The Act restricts cable providers from releasing information about their subscribers without the consent of the subscriber concerned. Section 551(c)(2)(B) of the Act authorizes disclosure of personally identifiable information if the disclosure is, “subject to subsection (h) of [Section 551], made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Section 551(h) provides that when a governmental entity is seeking disclosure, it must show by clear and convincing evidence that criminal activity is reasonably suspected. Doe had argued that the reference to Section 551(h) served to “meld” the entire exception into one applicable only when the government seeks information about a subscriber. Because Fitch was not a governmental entity, Doe argued that the exception to the restriction of disclosure should not apply.

The court disagreed, and held that 511(h) served merely to impose a higher standard when the government seeks disclosure of information about a cable subscriber. Because Fitch was not a governmental entity, Time Warner was permitted to release the information in response to a valid court order, so long as it had given notice to Doe. The record established that Doe had received such notice, thus the Act did not bar Fitch’s access to the requested information.

Fitch v. Doe, — A.2d —-, 2005 WL 627569 (S.Ct. Me., March 18, 2005).