Articles Posted in Constitutional Law

Trademarks are a vital part of how your business is branded and how you appeal to clients and consumers.  What about those trademarks that push the boundaries on what is socially acceptable?  Generally, the government may not protect those marks that are beyond what is socially acceptable.  What is socially acceptable now?  Can the same standards apply and restrict what you can trademark?  To what extent can you push the boundaries in your branding?

How did the court rule in In Re Tam?

In recent times, the United States Patent and Trademark Office (USPTO) has ceded the restrictions on demeaning and offensive marks.  This is in response to the recent “Slants” case, where Simon Tam, a musician, filed a trademark application for his band’s name “The Slants.”  His trademark application was then denied under Section 2(a) of the Lanham Act.  This section prohibits the use of immoral, deceptive, or scandalous marks that may disparage living or dead people.  This section is infamous for the reason why the Washington Redskins trademark was cancelled.  However, Mr. Tam contested the refusal of his trademark, claiming that he wanted to take back the word “Slants” for his band, resting his argument on the First Amendment.  In doing so, through a long legal battle, the Federal Circuit eventually found for Tam, in an en banc hearing, stating that Section 2(a) violated his First Amendment right.  Furthermore, while the ruling had only applied to the disparaging part of the section, the USPTO ceded that the “scandalous and immoral” aspects of the legislation were likely to be unenforceable for similar reasons.

It is common knowledge that travelers have to take their laptop out of their suitcase upon arrival at airports.  However, not all people know the extent to which electronic devices can be confiscated and searched at the borders whether the traveler is a United States citizen or not.

Why and when can customs officials search your electronic device?

Once electronic devices enter the United States, the Fourth Amendment protects against unreasonable searches and seizures.  However, there is an exception to the Fourth Amendment protection at the borders.  In United States v. Ickles, the court confirmed that customs officials are allowed to search any cargo at the borders. In this case, a search of a vehicle’s cargo revealed a videotape focusing excessively on a young ball boy at a tennis match. A more thorough search uncovered drug paraphernalia, pornographic photographs, computer, and computer discs. The computer was confiscated after the defendant was arrested and searched, revealing child pornography. The defendant requested that the electronic evidence be suppressed claiming that the warrantless search of his electronic devices was protected by his First and Fourth Amendment rights. The court ruled that the search was justified because the border search doctrine indicates that reasonable suspicion and probable cause can be justification for searches without a warrant in order to protect against criminal activity. The First Amendment claim was ruled to be invalid as well because the content of a computer may be searched regardless of how expressive the discovered material may be in order to protect national interests.  The most recent case on this topic was United States v. Kim, which was heard and decided this year. This case was about a foreign national leaving the United States whose electronic devices were searched at the border. The search of his computer was found unlawful because although he may have committed a crime in the past, however, the crime had already occurred, and there was no reasonable suspicion or probable cause to search for imminent criminal activity.

During the course of history, the United States Constitution has been amended in order to achieve the best interests of the nation and citizens. However, technological advancements have posed as obstacles to the changes as internet and human rights have recently become issues.

What is the relation between the Internet and Human Rights?

As of now, approximately 40% of the world’s population has access to the Internet. Because of its extensive reach, the Internet has become a basic component of human life. It encompasses an individual’s freedom of expression, freedom of association, privacy, and other fundamental factors. Civil liberty and human right groups have expressed their concerns regarding the increase in government’s control and power. For example, on April 21, 2015, Senate Bill 1035 was introduced, which seeks to reauthorize Section 215 of the Patriot Act for five additional years. This means that there would be continued data collection and surveillance programs. As such, groups like Human Rights Watch have expressed their concern towards NSA’s violation of privacy rights.

On June 1, 2015, the Supreme Court of the United States ruled in favor of Anthony Elonis in Elonis v. United States, regarding free speech limitations as implemented via social media platforms. This ruling was the first time the Supreme Court raised implications of free speech related to social media.

Under what circumstances was Elonis indicted?

Anthony Elonis was convicted on four separate counts for postings on social media, specifically Facebook. The federal statute he was convicted under, 18 U.S.C. § 875(c), states as follows: “Whoever transmits…any communication containing…any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Elonis sparked concern after posting graphic threats involving the rape and murder of his ex-wife, detonation of bombs in the presence of law enforcement, and shooting up an elementary school, all under an alias. Elonis did not dispute that the statements were posted, but declared that they were merely expressions of his frustration. He claimed that the trial court incorrectly instructed the jury on the standard of a “true threat” in which the expressions were interpreted as more serious under the context.

With technological advances rendering complex cellular devices increasingly affordable, the majority of the world population is now using smartphones. Further, applications that employ global positioning system (GPS) tracking allow these worldwide smartphone users to take advantage of location-specific information and social networking. In addition, GPS technologies have aided law enforcement agencies in gathering evidence during criminal investigations. However, this convenience, and potential for enhanced public safety, brings the risk of sacrificing the privacy guaranteed to U.S. citizens by the Fourth Amendment protection against unreasonable searches and seizures.

In particular, courts have been concerned with whether a warrant should be required for the government to search cell phones to obtain location data. The statistics regarding police cell phone tracking practices—compiled in an American Civil Liberties Union (ACLU) report—convey the extent and significance of this issue. Of the hundreds of local law enforcement offices surveyed throughout the nation, nearly 95% reported tracking suspects via cell phone GPS data such as international calls, text messages, and emails. Although, some jurisdictions required a search warrant before engaging in this type of GPS tracking, however, some did not.  In any event, the applicable legal standards lacked consistency or clarity.

What are the Legal Concerns?

In recent years, global positioning system (“GPS”) technology has increased in usage on various GPS-enabled devices (e.g., cars, smartcards, handheld computers, and cell phones).  This technology brings value to its users, however, it has caused a significant decrease in privacy. Private and public organizations are able to collect and use the information for different purposes. For example, private organizations may collect data for marketing. Naturally, there are proponents who argue for governmental or non-governmental collection and use of information for different reasons (e.g., national security, emergencies). There are also proponents who argue that the collection and use of information leads to abuse (e.g., unauthorized access, invasion of privacy). Therefore, we need clear and uniform legal standards to control when anyone can collect and use information about an individual.

At this time, there is no law that restricts the government’s collection or use of GPS tracking information against individuals. However, some states have enacted legislation that restricts the commercial use of GPS. The Fourth Amendment limits the use of GPS technology, but its protection from unreasonable search and seizure is less effective due to recent technology advancements.

The main issue is privacy.  In today’s highly-technological world, most individuals carry their cell phones all the time. So, wireless network providers (a/k/a cell phone carriers) are able to track the individual’s movements. On a side note, GPS technology has been used to save lives in emergencies. The Federal Communications Commission (“FCC”) mandates wireless network providers to submit the cell phone location for emergency 911 calls (“E911”) that have been made from cell phones. The law on this issue is relatively clear. It permits cell phone carriers to provide information to third parties (e.g., FBI, NSA, or Police) for E911 emergency calls only. However, they need the cell phone owner’s consent in any other situation.

In recent times, a significant amount of business is conducted online.  The Internet connects a business to customers anywhere in the world. What happens when a dispute arises between a business in one state and a customer in another? If the customer wants to bring legal action against the business because of a transaction that occurred online, where does the customer file the action? The answer may depend on the type of website. The courts have created the distinction between active and passive websites. When a transaction occurs through an interactive website, the business may be subject to the jurisdiction of the state where the customer accessed it. Is your business developing a website? Did you know that an interactive website may subject you to the jurisdiction of any state? If so, then you must understand the difference between active and passive websites, and how they may affect your legal rights.

What Is the Active and Passive Distinction?

An interactive or active website is one where business transactions can occur through the website or information can be exchanged to solicit business. On the other hand, a passive website is one that is used to post information for potential customers, but it does not allow for interaction. A passive website is similar to an advertisement. The distinction is crucial because courts will confer personal jurisdiction over companies that maintain active websites in the state where the consumer is located. Active websites include sites that foster online sales, sites that take measures to solicit business in a particular forum, and the use of a third-party site to sell an item. Not every website fits neatly into these two categories, and issues arise when the website falls between the two.

In a decision released June 25, 2014, the United States Supreme Court held that law enforcement officials could not search a suspect’s cell phone or electronic devices as part of an arrest. In Riley v. California, the Supreme Court maintained that the officials would need to secure a warrant to look through those devices. This holding is especially monumental because it establishes the country’s highest court’s position that electronic devices enjoy privacy protection under the Constitution. Indeed, the Court notes several times throughout the decision that since electronic devices contain so much of users’ most private data, these devices must enjoy a heightened level of privacy.

At the Law Offices of Salar Atrizadeh, we are fully knowledgeable and experienced in the practice of electronic privacy protection for individuals and businesses. Our office handles all civil matters dealing with violations of cyber privacy. Indeed, by speaking to an attorney, you can take precautionary steps to help protect your privacy and personal data.

How Will Riley v. California Impact Individual Privacy Rights?

The European community has been making great strides to establish and protect individual privacy in the globalized cyber community. On May 13, 2014, the European Court of Justice (“ECJ”) issued a decision that European Union (“EU”) citizens had a right to ask search engines to remove search results about themselves.  The ECJ defined this as a “right to be forgotten.”  Google, which is upset about this holding, has set up a form for users to request information removal. American counterparts, and officials within Google, have expressed concern about the implications of this ruling—both for the search engine and the threat to the flow of information.  Ultimately, the ECJ has established that the right to privacy supersedes the right to information.

What Are the Terms of the 2014 Ruling?

In issuing the decision, the ECJ was enforcing a 1995 EU directive on privacy that defines and regulates search engines as data collectors. European regulators have historically been more concerned with personal privacy than the United States. Accordingly, European government agencies have taken greater steps to enforce protections. Both the EU and members states have adopted provisions to protect privacy and family life. For instance, in 2010, the European Commission declared the right to be forgotten as a foundational aspect of its Data Protection Regulation.

One of the fundamental constitutional protections is the freedom of press.  Under the First Amendment of the United States Constitution, the press (i.e., journalists, reporters, newspapers) enjoys freedom from government censorship.  However, this right must be balanced against the individual right to privacy.  Furthermore, as an added protection for privacy, state laws provide protections against defamation.  Generally, defamation proceedings have included claims against traditional journalists—namely, journalists working for newspapers and other printed publications.  However, since a 2011 Ninth Circuit decision, the free press standards have been expanded to include bloggers as well as traditional print journalists.  The growth of the Internet empowers more people to discuss and spread the news.  Therefore, this expanded protection will need to continue balancing free press considerations with individual privacy considerations.

What Are the Principles Considerations for a Defamation Claim?

To establish a claim for defamation, a party must show a: (1) knowing, (2) publication, (3) of a false statement of fact, (4) concerning the party, (5) that tends to harm the party’s reputation.  Generally, there must also be evidence that the publication was a result of negligence or malice.  For example, a claim for defamation likely would not stand if the party did not know that the information was actually false.  There are two forms of defamation—libel, which applies to written defamation, and slander, which applies to oral defamation.  Defendants who are accused of defamation may raise a defense if the publication is true.  However, it is often difficult and expensive to litigate and prove truth since it requires extensive discovery into the facts of the publication.  Additionally, publications that are opinions may also be free from the threat of defamation.  Still, simply labeling a publication an “opinion” will not automatically protect it from defamation.  The courts will look to see whether a reasonable reader or listener would consider the publication as fact or opinion.  As this example demonstrates, defamation claims often turn on the specific circumstances of the cases—i.e., the nature of the statement, the parties involved, whether the truth of the statement can be proven, and how a reasonable person would perceive the statement.