Mar 242015

A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.

The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).

But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.

It’s also simply not a good idea that serves the public interest.
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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.

California creates new unit to fight cybercrimes

 Analysis/commentary, Jurisdiction, Other regulation  Comments Off on California creates new unit to fight cybercrimes
Dec 142011

The New York Times reports that California has established a division to investigate and prosecute cybercrimes such as identity theft, Internet scams, computer theft, online child pornography and intellectual property theft. The unit already has been handling several dozen cases and joins Texas, Florida and Louisiana in having such units, although California’s scope and mandate will be much broader. (Texas’s and Florida’s cybercrime units focus almost exclusively on online child pornography.)

Per the article, this move was prompted by the difficulty in prosecuting these types of multi-jurisdictional crimes at the local level.

Take the case of George Bronk, a Sacramento-area man, who was sentenced to four years in prison in July for hacking into the e-mail and Facebook accounts of women and blackmailing them with indecent pictures and videos. His victims spanned at least 17 states. Initial attempts to report the blackmail to local law enforcement often proved futile because it could not be tied to any one jurisdiction.

“The unique aspect of technology is that it knows no jurisdictional boundary,” [State Attorney General Kamala] Harris said in an interview Tuesday. “We want to ensure Internet crimes don’t drop off simply because it wasn’t clear for local law enforcement, or the consumer, where to go because an incident occurred in the cloud.”

There appear to be some considerable upsides to this new arrangement: resources can now be allocated more efficiently to deal with crimes that impact more than one area, and the knowledgebase necessary to properly investigate and prosecute them can also be developed in a central location. Also, at least in theory, it may lessen abuse: I know of at least one example, although one from another state, where police in one county deliberately lured defendants into their jurisdictions through online “stings” (I use the word “sting” lightly, as from all accounts “entrapment” would have been more accurate) in order to be able to prosecute them. Having these enforcement powers centralized and more visible would help alleviate similar risk in California.

On the other hand, as the cited example shows, cybercrimes are often Internet crimes, and the Internet is not contained within the state of California. It may be an open question as to the extent California has a duty or right to enforce some of these matters.