Articles Posted in Constitutional Law

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This month, we’re looking at various constitutional issues and tangential actions. Of these, there’s a recent hot-button issue regarding the purpose of “freedom of speech” online. From fake news to political speech on websites, the notion of “what is allowed” and “what should be allowed” is still raised by people.  So, what can a website do to maintain the balance between free speech rights and acceptable community standards? Is there any responsibility to allow negative views? What is the risk, if any, towards censorship?

Freedom of speech online

In the wake of 2016, there’s a new question of online service providers that if they allow people to express themselves then they should either act as a gate keeper or grant carte blanche to all users.  Most notably, there’s been the Facebook “fake news” complaints, as well as the actions of a Reddit executive towards supporters of Donald Trump. In the case of Facebook, there were both complaints that it was discriminatory not showing stories from every end of the political spectrum, and negligent that it was not taking action to curtail “fake news” and their influences.  For Reddit, an executive had made edits to statements by Trump supporters to change comments critical of him to individuals that were managing the Reddit group.

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In general, Section 230 of the Communications Decency Act is not only one for defamation, but entails a few exceptions where liability can be imposed on an interactive computer service (e.g., Facebook, Twitter, Tumblr).  So, there are situations where an online business may be held responsible for another individual’s actions.  How can we know whether we will be held liable for a third party’s actions?  How can we avoid potential liabilities?

What can an interactive computer service be held liable for?

From a practical perspective, Section 230 is not an absolute shield for interactive computer services.  There are certain cases where an exception has been applied by the courts.  First, there is an exception for certain types of information.  Specifically, there is an exception for intellectual property.  For example, Section 230(e) determines the effect on other laws, including, an explicit omission of coverage for intellectual property protections.  In essence, liability for defamation may not carry over, but liability for any copyright infringement may carry over, as well as any issue of criminal law, such as obscenities.  Similarly, this can be demonstrated in Gucci America Inc. v. Hall & Associates, where the court determined, from the plain meaning of the statute, that it would not bar plaintiff’s trademark infringement claims against defendants.

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In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.

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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.

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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.

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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.

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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.

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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?

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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.

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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.

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