Sep 162014
 

In addition to the amicus brief in Smith v. Obama, a few weeks earlier I had filed another one on behalf of the National Association of Criminal Defense Lawyers in Jewel v. NSA, another case challenging the NSA’s telecommunications surveillance.

Unlike Smith v. Obama and other similar cases, which argued that even collecting “just” telephonic metadata violated the Fourth Amendment, in Jewel the surveillance involved the collection of communications in their entirety. It didn’t just catch the identifying characteristics of these communications; it captured their entire substance.

The Electronic Frontier Foundation originally filed this case in 2008 following the revelations of whistleblower Mark Klein, a former tech at AT&T, that a switch installed in a secret room at AT&T’s facilities were diverting copies all the Internet traffic passing through their systems to the government. This, the EFF argued in a motion for summary judgment, amounted to the kind of “search and seizure” barred by the Fourth Amendment without a warrant.

Like in Smith v. Obama, this surveillance necessarily implicates the Sixth Amendment in how it violates the privacy of communications between lawyers and their clients. But because the surveillance involves the collection of the content of these communications it also inherently violates the Fifth Amendment right against self-incrimination as well. Continue reading »

Sep 152014
 

Last week Durie Tangri and I filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in the appeal of Smith v. Obama. Smith v. Obama is one of the many lawsuits being brought against the government following revelations of how the NSA has been spying on Americans’ communications. Like several of the others, including First Unitarian Church of Los Angeles v. NSA and Klayman v. Obama, this case is about the government’s wholesale collection of telephonic metadata – or, in other words, information reflecting whom people called, when, and for how long (among other details).

In the Klayman case, which is now on appeal at the D.C. Circuit Court of Appeals, the district court judge found that this wholesale, warrantless, collection of people’s call records indeed violated the Fourth Amendment. In Smith v. Obama, however, the district court had reached the opposite conclusion. Despite finding the reasoning in Klayman persuasive, the district court judge here felt bound to follow the precedent set forth in a 1979 Supreme Court case called Smith v. Maryland.

In that case the Supreme Court held that it did not violate the Fourth Amendment for the government to acquire records of people’s calls. The government only violates the Fourth Amendment when it invades a “reasonable expectation of privacy society recognizes as reasonable” without a warrant. But how could there be an expectation of privacy in the phone number a person dialed, the Supreme Court wondered. How could anyone claim the information was private, if it had been voluntarily shared with the phone company? Deciding that it could not be considered private, the court therefore found that no expectation of privacy was being invaded by the government’s collection of this information, which therefore meant that the collection could not violate the Fourth Amendment.

The problem is, in the Smith v. Maryland case the Supreme Court was contemplating the effect on the Fourth Amendment raised by the government acquiring only (1) specific call information (2) from a specific time period (3) belonging only to a specific individual (4) already suspected of a crime. It was not considering how the sort of surveillance at issue in this case implicated the Fourth Amendment, where the government is engaging in the bulk capturing of (1) all information relating to all calls (2) made during an open-ended time period (3) for all people, including (4) those who may not have been suspected of any wrongdoing prior to the collection of these call records. What Smith is arguing on appeal is that the circumstances here are sufficiently different from those in Smith v. Maryland such that the older case should not serve as a barrier to finding the government’s warrantless bulk collection of these phone records violates the Fourth Amendment.

In particular, unlike in Smith v. Maryland, in this case we are dealing with aggregated metadata, and as even the current incarnation of the Supreme Court has noted, the consequences of the government capturing aggregated metadata are much more harmful to the civil liberties of the people whose data is captured than the Supreme Court contemplated back in 1979. In U.S. v. Jones, a Fourth Amendment decision issued in 2012, Justice Sotomayor observed that aggregated metadata “generates a precise, comprehensive record” of people’s habits, which in turn “reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations.” One of the reasons we have the Fourth Amendment is to ensure that these associations are not chilled by the government being able to freely spy on people’s private affairs. But when this form of warrantless surveillance is allowed to take place, they necessarily will be.

While it’s bad enough that any associations are chilled, in certain instances that chilling implicates other Constitutional rights. The amicus brief by the Reporters Committee for Freedom of the Press addressed how the First Amendment is undermined when journalists can no longer be approached by anonymous sources because, if the government can easily discover evidence of their conversations, the sources effectively have no anonymity and will be too afraid to reach out. Similarly, the brief I wrote discusses the impact on the Sixth Amendment right to counsel when another type of relationship is undermined by this surveillance: that between lawyers and their clients. Continue reading »

May 212014
 

Earlier this week I published an op-ed at Al Jazeera America on the latest news from the Oracle v. Google litigation. Of note, a few weeks ago the Court of Appeals for the Federal Circuit ruled that Google had infringed on copyrights Oracle apparently had in its APIs for Java. My column explains in more depth what’s so problematic about this ruling – particularly as it bears on future innovation – but I want to highlight one particular point I made in more depth here:

[T]he court left open the question of whether Google’s use of the APIs was permissible under the doctrine of fair use. But having to hope that fair use might provide a defense for copyright infringement creates a chilling amount of uncertainty for the innovator. As noted copyright academic Lawrence Lessig famously observed, “Fair use is the right to hire a lawyer.” In other words, the costs to innovate dramatically expand when you need to defend what you’ve developed on the basis of fair use. It is much better for all who depend on APIs to innovate for them not to be copyrightable at all, as there will never be a need to defend one’s use against claims of infringement for something that couldn’t be infringed in the first place. (emphasis added here)

I decided I wanted to hammer home this point after I saw this post I saw at the Volokh Conspiracy analyzing whether posting cease and desist letters potentially violated copyright. The problem was that the analysis went from this:

A. Letters are indeed presumptively protected by copyright. Generally speaking, pretty much anything that’s at all original (not necessarily innovative, but just the author’s own writing) and longer than several words is indeed copyrighted the moment it’s written down.

immediately to this:

B. But this presumption can be rebutted if the person copying the work shows (among other things) that his use is a “fair use” of the work. Here’s a quick run-through of the four fair use factors, and how they apply to such uses of cease-and-desist letters…

My point here is not to pick on Eugene Volokh. His ultimate conclusion of non-infringement is reasonable and well-supported by his fair use analysis. The problem, though, is that in getting to that conclusion I think he made a mistake many others are inclined to make: fair use does not rebut a presumption of copyrightability; it only potentially rebuts a presumption of infringement.

This distinction between presumptions of copyrightability and infringement is important because, as the op-ed says, if there is no copyright there can be no infringement. Thus it’s extremely important not to short circuit that initial analysis as to the former. Copyright can be an extremely potent weapon, but only when it actually exists. Failing to fully consider whether it does would be as foolish as defending against a gunman it turns out is only armed with a twinkie. Although as Volokh suggests copyright can very easily apply to many if not most original works, as the Oracle case discussed, it definitely doesn’t apply to all of them. Like the lower court had found in that case, copyright statute and doctrine explicitly exempt certain original works from copyright and for very good reasons, reasons that we undermine when we presumptively credit a work with more copyright than it may deserve.

Apr 162014
 

On Monday I filed an amicus brief in a case sometimes referred to as “Garcia v. Google.” The case is really Garcia v. Nakoula, with Garcia being an actress who was duped by the defendant to appear in a film he was making – a film that, unbeknownst to her, turned out to be an anti-Islam screed that led to her life being threatened by many who were not happy with its message and who sought to hold her accountable for it.

There’s little question that Nakoula wronged her, and likely in a way that the law would recognize. Holding him accountable is therefore uncontroversial. But Garcia didn’t just want to hold him accountable; Garcia wanted all evidence of this film removed from the world, and so she sued Google/YouTube too in an attempt to make it comply with her wish.

Garcia is obviously a sympathetic victim, but no law exists to allow her the remedy she sought. In fact, there are laws actively preventing it, such as 47 USC Section 230 and the Digital Millennium Copyright Act (DMCA), and, believe it or not, that’s actually a good thing! Even though it may, in cases like these, seem like a bad thing because it means bad content can linger online if the intermediary hosting it can’t be forced to delete it, such a rule helps preserve the Internet as a healthy, robust forum for online discourse. It’s really an all-or-nothing proposition: you can’t make case-by-case incursions on intermediaries’ statutory protection against having to take down “bad” content without chilling their ability to host good content too.

And yet that is what happened in this case when Garcia sought a preliminary injunction to force Google to delete all copies of it from YouTube (and prevent any new copies from being uploaded). Not at the district court, which denied her request, but at the Ninth Circuit Court of Appeals earlier this year when two out of three judges on the appeals’ panel chose to ignore the statutes precluding such an order and granted it against Google anyway.

Google has now petitioned for the Ninth Circuit to review this decision, and a few days ago nearly a dozen third parties weighed in with amicus briefs to persuade the court to revisit it. Most focused on the method by which the court reached its decision (i.e., by finding for Garcia a copyright interest in the film unsupported by the copyright statute). I, however, filed one on behalf of two intermediaries, Floor64 Inc. (a/k/a Techdirt.com) and the Organization for Transformative Works, intermediaries who both depend on the statutory protection that should have prevented the court’s order, arguing that by granting the injunction in contravention of these laws preventing it, the court has undermined these and other intermediaries’ future ability to host any user-generated content. As the saying goes, bad facts make bad law, and tempted though the court may have been in this case with these facts, if its order is allowed to stand the court will have made very bad law indeed.

For more detailed analysis read the brief and the TechDirt article about it. Additional amicus briefs and relevant case filings are also archived here, and Eric Goldman has a nice summary of the briefs as well.

Feb 202014
 

The following was posted on Project-Disco.org earlier this week:

What would the Internet be without its intermediaries? Nothing, that’s what. Intermediaries are what carry, store, and serve every speck of information that makes up the Internet. Every cat picture, every YouTube comment, every Wikipedia article. Every streamed video, every customer review, every online archive. Every blog post, every tweet, every Facebook status. Every e-business, every search engine, every cloud service. No part of what we have come to take the Internet for exists without some site, server, or system intermediating that content so that we all can access it.

And yet, if we’re not careful, we can easily lose all the benefits these intermediaries bring us. Thankfully, in the United States we have some laws that help ensure they can exist, chief among them 47 U.S.C. Section 230. As my recent paper on the state of the law regarding intermediary liability explains, this law stands for the proposition that intermediaries are only responsible for what they themselves communicate through their systems – not what others use them to say. For example, newspapers that post articles online are only responsible for the content of the articles they publish, not the comments readers then post to them. Similarly consumer review sites are only responsible for the information they supply to their sites, not the user reviews themselves. This same principle also means that people who link to content (as search engines do) are not legally responsible for that content, even if that content should happen to be illegal in some way (like by being potentially defamatory).

The reason Section 230 has been so helpful in allowing the Internet to thrive and become this increasingly rich resource is that by relieving intermediaries of liability for the content passing through their systems it has allowed for much more, and much more diverse, content to take root on them than there would have been had intermediaries felt it necessary to police every byte that passed through their systems out of the fear that if they didn’t, and the wrong bit got through, an expensive lawsuit could be just around the corner. Because of that fear, even if those bits and bytes did not actually comprise anything illegal intermediaries would still be tempted to over-censor or even outright prohibit scads of content, no matter how valuable that content might actually be.

Continue reading »

Jan 182014
 

I wrote the following for the Electronic Frontier Foundation’s blog as part of “Copyright Week” – a push to raise awareness of the key principles that should guide a healthy, constructive, and effective copyright policy.

People sometimes treat copyright law as though it’s a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that’s not the case at all, and it’s important to remember this when we think about what’s gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren’t slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the “Statute of Anne,” a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as “[a]n Act for the Encouragement of Learning.” While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a “copy right” so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won’t create if it won’t ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it’s worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there’s no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it’s sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It’s also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it’s not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public’s access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it’s time to reshape it into something that does. It’s time to fix copyright law so that it can finally get the job done that it was always intended to do.

Sep 292013
 

This past week California passed a law requiring website owners to allow minors (who are also residents of California) to delete any postings they may have made on the website. There is plenty to criticize about this law, including that it is yet another example of a legislative commandment cavalierly imposing liability on website owners with no contemplation of the technical feasibility of how they are supposed to comply with it.

But such discussion should be moot. This law is precluded by federal law, in this case 47 U.S.C. Section 230. By its provisions, Section 230 prevents intermediaries (such as websites) from being held liable for content others have posted on them. (See Section 230(c)(1)). Moreover, states are not permitted to undermine that immunity. (See Section 230(e)(3)). So, for instance, even if someone were to post some content to a website that might be illegal in some way under state law, that state law can’t make the website hosting that content itself be liable for it (nor can that state law make the website delete it). But that’s what this law proposes to do at its essence: make websites liable for content others have posted to them.

As such, even aside for the other Constitutional infirmities of this law such as those involving compelled speech for forcing website owners to either host or delete content at someone else’s behest (see a discussion from Eric Goldman about this and other Constitutional problems here), it’s also constitutionally pre-empted by a prior act of Congress.

Some might argue that the intent of the law is important and noble enough to forgive it these problems. Unlike in generations past, kids today truly do have something akin to a “permanent record” thanks to the ease of the Internet to collect and indefinitely store the digital evidence of everyone’s lives. But such a concern requires thoughtful consideration for how to best ameliorate those consequences, if it’s even possible to, without injuring important free speech principles and values the Internet also supports. This law offers no such solution.

Jul 282013
 

I was asked to write the “Posts of the Week” for Techdirt this past weekend and used it as an opportunity to convey some of the ideas I explore here to that audience. The post was slightly constrained by the contours of the project — for instance, I could only punctuate my greater points with actual posts that appeared on Techdirt last week — but I think they held together with coherence, and I appreciated the chance to reframe some of the issues Techdirt was already exploring in this way.

In any case, I’ve decided to cross-post my summary here, partly because I always like to host a copy of my guest blog posts on one of my sites, and partly because it gives me a chance to update and annotate those ideas further. Please do go visit Techdirt though, which was kind enough to ask me to do this, to read more about the items described below.
Continue reading »

Jul 072013
 

There is so much to say about the emerging news about the data capture programs run by the NSA it’s hard to know where to begin. Part of the issue is that there are multiple programs and multiple statutes in play, and details about everything are continuing to emerge, which makes analyzing any respective legality complicated. Ostensibly some of these programs may in fact be “legal” under some of these statutes, although there are credible arguments that many of these programs transcend even what these laws might purport to authorize.

But even if these programs are consistent with either their enabling statutory language or previous Fourth Amendment case law, it is not at all clear that they are consistent with either the spirit or bare language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over time, on a case by case basis specific to the facts before them, courts have whittled away at what we might understand the Fourth Amendment to protect. Which is unfortunate, because on its face it would appear to protect quite a bit of personal privacy from government intrusion, except under very narrow circumstances. But as we learn more about these surveillance programs we see how, even if “legal,” they intrude upon that privacy, and in a way that essentially destroys all vestiges of it for everyone, criminal (or foreign) or not.

Which is what the rest of this post intends to focus on, albeit in a more humorous than purely analytical manner. But such flippancy shouldn’t discredit its overall point, and indeed, humor is often an excellent vehicle for illustrating policy shortcomings. In this case what follows highlights the problem with Section 215 of the Patriot Act, a post-9/11 law that allows government authorities to access, without a warrant and only with the questionable oversight of the itself apparently unaccountable Foreign Intelligence Surveillance Court, all sorts of “tangible things.” By accounts, it seems the NSA has used this provision to underpin at least one of its programs.

Because everything this court does is shrouded in secrecy, no one knows exactly what “tangible things” applies to. But we can make some reasonable suppositions, and the following articulates a few of them. Sung to the tune of The Sound of Music’sMy Favorite Things,” here is a modern update:

“My Tangible Things.” Continue reading »