Archive for the 'Intellectual Property' Category

Understanding Facebook’s Data Breach: The Legalities and Action Taken

Facebook has been in hot water after it came to light that as many as 87 million users had had their private data scraped, sold, amalgamated, and run through machine learning devices to create profiles all without their knowledge and right under Facebook’s nose. The story has been everywhere, but the details go as follows. Back in 2013, a Cambridge University researcher made an app for use on Facebook called “thisisyourdigitallife.”

The app was a basic personality quiz and was taken by about 270,000 users. However, the app permissions settings policies in Facebook were much more permissive back then. The researchers simple quiz had permissions, after you installed it, to scrape the data off your entire Facebook profile and-more dangerously-the Facebook profiles of the people on your friends list.

Some 30 million of these profiles were purchased in 2014 by Cambridge Analytica–a company run by Donald Trump’s former campaign manager and adviser Steve Bannon. The information run through machine learning devices to create larger profiles for each individual and chart trend among them. This information was used by the Trump campaign in their marketing after Jared Kushner hired Cambridge Analytica in 2016.

This is far from the first bit of criticism Facebook has faced in recent years, the fake news issues for instance. However, this also isn’t the first time it has come out that Facebook had not taken the best care of its users’ private data. It’s not even the first time in the last decade that an app has been misused to mine data for a presidential campaign-the Obama for America app did something similar back in 2012.

The whole situation has led to massive legal and media blockback for Facebook and its CEO Mark Zuckerberg. Zuckerberg has spoken before Congress in the last couple days and has been called to speak before MPs, the UK Parliament, and more. The situation has given rise to lawsuits, potential legal and legislative action from the U.S. government, state governments and even governments abroad.

facebookLegal Issues of the Breach Itself

There is an enormous amount of law that could be discussed here, so we’re going to focus on only the most immediately relevant to the situation. One of the central issues here, in terms of understanding Facebook’s legal duties to monitor the actions and content from their user’s posts revolves around a law that far pre-dates Facebook itself-the 1996 Communications Decency Act (CDA).

The CDA makes it so that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This shields Facebook, and all ISPs and similar websites from liability when it comes to the statements and posts of third parties. There are obviously several exceptions to this.

For instance content which infringes copyright gives rise to separate Digital Millennium Copyright Act safe harbor issues. However, it means that websites such as Facebook are generally immune to many legal claims over the actions of their users as they are not treated “as the publisher or speaker” of that third-party information.

The goal behind this is to help preserve a more robust internet as the reality of the situation is that it is very difficult for a large website to track the actions of all its users. However, it also provides a great deal of legal shelter to a site such as Facebook.

The CDA applies to activities which occur on the internet, the defendant is a “provider or user of an interactive computer service” (this includes websites), and the defendant website isn’t the source of the posted content. It provides protection to websites for essentially any user posting of information online. It also requires the website to not encourage illegal content or design their site to require the input of illegal content.

There are some additional complications to this. However, suffice it to say, social media websites benefit quite a bit from these sort of protections. While there are state by state privacy laws, there’s very little law limiting use of private data at a federal level.

Unless something illegal is happening, the CDA will cover a site such as Facebook when it comes to quite a bit of potential legal issues. Instead, most of the obligations of a site such as Facebook are self-imposed through their privacy policies and terms of service.

These rules have seen some recent changes with the FOSTA-SESTA Acts. However, these changes will have a minimal effect on Facebook’s overall duties to monitor and filter its user’s posts. FOSTA-SESTA mostly acts as a bit of an overbroad attempt to fight online sex trafficking by adding duties on the part of online platforms to police their users, a bit of an odd choice as there is already law on the books which serves the same purpose.

Private Legal Action Against Facebook

Even with protections such as the CDA in mind, there has already been private legal action against Facebook. A class action lawsuit was brought against Facebook, Cambridge Analytica, and Mark Zuckerberg himself on March 22nd.

The lawsuit has six counts including fraud and deceptive practices, breach of contract, negligence, intrusion upon seclusion, and charges under the Stored Communications Act (SCA)–part of the Electronics Communication Privacy Act, one of the few federal privacy laws.

To make a very complicated law simple, the SCA makes it a crime to access without authorization and share with the government the contents of a communication stored online–after a 2010 court case this includes social media messages but not posts on a wall or similar public communications.

The action alleges that Cambridge Analytica mined data with the intent of influencing the 2016 election and Facebook, despite recorded warnings from entities such as the Irish government as early as 2011, irresponsibly let it happen under their nose.

Federal Investigation and Potential Action

At a federal level, we’ve obviously already seen Mark Zuckerberg testify before Congress. However, that is far from the full extent to which the federal government can-and in fact is likely to-go. From potential fines to litigation, there is quite a bit still in movement here.

We already mentioned that this isn’t the first time Facebook has been in trouble over their privacy practices. There is no simpler example of this than the 2011 settlement they reached with the FTC over charges that Facbook had deceived its users by not following its own privacy practices. Under the settlement, Facebook must give it users “clear and prominent notice” and obtain user consent before sharing the user’s information.

They also threw in the most obvious bit, Facebook had to promise not to make any further deceptive privacy claims. Now the question will become whether the FTC will come after Facebook for violating this settlement-known as a consent decree in situations such as this. The fine for such a violation, under the agreement, could be as much $40,000 per user per day–considering this is 87 million users over the course of months that number could end up astronomical.

This has the potential to be the largest fine levied in the history of government regulation, it could even break a trillion dollars. In comparison, the current largest government fine of all time was an approximately $13B fine levied on JP Morgan Chase over its subprime mortgage practices before the recession.

This was followed by a $4B fine levied against BP after their enormous oil spill in the Gulf. This fine, if the FTC chooses to act, has the potential to dwarf both of those combined. This being said, there is little indication of where the FTC plans to go with, so we’ll just have to wait and see where this ends up in the coming days.

Additional federal action could come in the form of new legislation adding additional privacy requirements on online actors, something the U.S. has historically been extremely hesitant to do-especially in light of the push and pull between privacy and the First Amendment. This being said, there are already bills under consideration which may get another look from Congress in light of current events.

A bipartisan bill known as the Honest Ads Act was introduced late last year and would have required social media and other media to disclose which group is running a political advertisement in an effort to increase transparency. The bill has seen little action since its introduction, sitting in the Senate Rules Committee without action. However, it has been backed in recent days by a number of high profile entities such as Twitter and even Facebook itself. This may lead to Congress revisiting the provisions.

State Action in Light of Facebook’s Breach

Individual states have also begun to take action in like of recent events. For instance, California has already put an initiative on the ballot–opposed by Facebook and essentially all broadband providers–that would require companies to disclose what information they gather, how they sell it, and allow people some measure of input over what a given business can do with their data. They’re also seeking to introduce a law which would require social media platforms to identify bot accounts.

Action Taken Abroad

There has been enormous movement on privacy abroad recently, although not really in response to the Facebook situation. The EU has introduced what is almost certainly the most sweeping and powerful privacy protection law ever passed in the world–the General Data Protection Regulation or GDPR.

Taking effect May 25th, the GDPR has had online companies doing business in the EU moving quick to ensure they meet the law’s stringent privacy requirements. With substantial fines for failure to comply, the GDPR applies to all companies doing business in the EU and–among an enormous number of provisions too detailed to even scratch the surface of here–requires companies to maintain full transparency about what information they gather and why.

The users themselves have the power to access this data and can tell companies how they may use it and even have the companies delete that data.

What is Facebook Doing in Light of This Scandal?

As of now, Mark Zuckerberg has said in his testimony to Congress that Facebook will provide apps less access to data and require more transparency as to what data individual apps gather. They have already changed their political advertising policies and, again according to Zuckerberg, will be beefing up their security measures.

However, by Zuckerberg’s own admission, the issue will be a difficult one to completely address. Regardless of what steps are taken, the reality is that the road to eliminating data sharing and breaches is an extremely difficult one just based on the sheer scope of data out there, number of users, and the ever-shifting nature of security threats

As to legal steps on the issue within the U.S., there is a push and pull between limiting the dangers from the content on Facebook and ensuring the proper First Amendment speech protections when it comes to the government creating laws on this issue.

That being said, Facebook is completely free to limit speech, methods of use, etc. through its platform in essentially any way it sees fit through its privacy policies and terms of use. As a private corporation, they are not subject to the First Amendment limitations that the government is. Privacy protections in law are woefully lacking, but complicated to effectively craft. This is an issue should not be rushed, but getting it right is crucial to the ongoing existence of a healthy internet.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Pepe the Frog Meme Creator Suing Infowars Over Using His Character

When it comes to symbols of hate groups–the Nazi swastika and the like–it seems almost silly to bring a cartoon frog into the conversation. However, the cartoon Pepe the Frog has seen a sad development over the years into a common symbol of both White Nationalist movements and the “Alt-Right.” This change is much to the chagrin of Pepe’s creator, “Boy’s Club” cartoonist Matt Furie.

Furie has described Pepe as a character about “peace, togetherness, and fun.” However, the way Pepe has been used after being adopted by several online communities certainly hasn’t been in line with this. To put it in perspective, the Anti-Defamation League included it in its hate symbol database in 2016–although they did go out of their way to say that most of its uses were not hate speech.

The infamous interview where Richard Spencer–to be polite a controversial figure of the Alt-Right–was punched in the face had him explaining the meaning of his Pepe pin before a man clocked him and interrupted. Furie has repeatedly expressed frustration in the media over what had been done with his character, his publisher has also condemned these uses of the character–calling them illegal and repulsive. Furie’s frustrations even led him to publish a comic in 2017 in which he killed Pepe.

Recently, Furie has taken more substantial steps to take back his character–he’s started bringing lawsuits. Most recently, this has meant going after Alt-Right “entertainer” (he himself has made it clear that he isn’t actual news) Alex Jones and Infowars. However, this is only the most recent lawsuit he has brought. Let’s look at the actions Furie has taken and his chances in his case against Infowars.

Furie’s Earlier Lawsuit

Last year, Furie threatened a copyright infringement lawsuit against the self-published children’s book of an assistant principal by the name of Eric Hauser. This sounds bad, until you hear the content of fine Mr. Hauser’s book. Hauser published “The Adventures of Pepe and Pede,” a children’s book starring Pepe the Frog, his best friend a centipede, and quite a few bizarrely hyper-conservative themes as well as what is quite arguable outright racism and bigotry against Islam.

The lawsuit ended well before the end of 2017 and before it really even got started, ending in a favorable settlement for Furie before his lawyers even had time to file a complaint. This settlement required Hauser to withdraw “The Adventures of Pepe and Pede” from publication and donate the profits from the book–a whopping $1,521 and 54 cents–to the Council on American-Islam Relations. This is a win for Furie when it comes to reclaiming his character. However, it is small potatoes compared to what he can expect if he wins his lawsuit against Infowars.

infowarsThe Suit Against Infowars

Furie’s lawsuit against Infowars was filed just recently in a District Court in California. The central claim of the lawsuit accuses Alex Jones and Infowars of copyright infringement over the sale of a $29.95 “Make America Great Again” poster on their site which features Pepe the Frog alongside Alex Jones himself, Donald Trump, Milo Yiannopoulos, Ann Coulter, and other high-profile alt-right figures.

Neither Furie nor his publisher ever gave permission for the sale of this poster, they say that the unauthorized use infringes their copyright. Furie also makes it clear that he does not approve of the association of Pepe with the people listed above or their message.

For Infowars and Alex Jones part, they bemoan the lawsuit as frivolous and apparently yet another in a long string of attempts to victimize them. For the most part, Infowars argument–and the argument which has been discussed in the media–is that the poster is protected under the fair use rules in copyright law. They’ve still removed the poster from their store.

Infowars Lawsuit: What are Furie’s Chances?

Right off the bat, this lawsuit is not frivolous in any sense of the word. A valid copyright provides a number of exclusive rights to its owner.  These rights include–among other things–the exclusive ability to reproduce, distribute, prepare derivative works.

Derivative works are works based on a copyrighted work. Copyright protection applies to any original creative work fixed in a tangible medium–such as when a cartoon is drawn on a page or as a file on a computer. The protection attaches immediately on fixation; however, registration is required to bring lawsuits for anything more than a basic injunction and actual damages.

There are some other types of limitations on what can receive copyright protection. For instance, characters generally need physical and conceptual qualities that are especially distinctive and recognizable wherever it appears to be protected outside the context of the work they come from. However the image itself of Pepe is certainly protected and that image has been exactly reproduced in Infowars’ poster–this verbatim copying is clear infringement.

From there, the question is just whether Infowars has any clear defenses they can bring–such as fair use. Alex Jones himself has said the lawsuit is frivolous because his posters are transformative and thus fair use. Unfortunately for him, this is a woefully under informed opinion on how fair use works–transformativeness is only one element of many in reaching a fair use decision.

Fair use provides a defense to certain limited, transformative uses of a copyrighted work. The defense is extremely fact specific, so much to make it nearly impossible to declare something fair use without knowing the exact circumstances of the use.

In making the determination, courts balance four quite complicated factors:

  1. The purpose and character of the use (was it commercial, educational, transformative?);
  2. The nature of the work (e.g. fictional v. non-fictional);
  3. How much of the work was used and how important was the part used; and
  4. How the use effects the market for the copyrighted work.

It is true that transformativeness has particularly heavy weight in the fair use analysis. In fact, courts have ruled that the more transformative a work the less weight the other factors carry. However, it is still the first factor among many. Whether a work is considered transformative, a fact that makes the first factor of a fair use analysis weigh particularly heavily in favor of fair use, look to several things.

First, where the changes add new expression or meaning they are more likely to be transformative.  Second, where the changes add new value by creating new information, aesthetics, insights or understandings—most notably through parody or criticism—this also weighs in favor of the use being transformative.

There is a non-trivial argument that using Pepe in the context of the Alt-Right, especially given how clear Furie has been that Pepe does not represent those values, provides a transformative understanding of the characters meaning. This would weigh in favor of part of the first element of fair use–the purpose of the use. This being said, no one factor is determinative, and every other factor here weighs against Infowars on a fair use defense or is a non-factor.

A commercial use weighs heavily against fair use, although it isn’t enough to definitively bar something from fair use or vice versa, and this poster was clearly made for commercial sale. The entire work, the cartoon image of Pepe, was taken wholesale with no modifications–another factor weighing against fair use.

The final element, how it effects the market for the work, is an interesting discussion. It is unlikely Furie would target the Alt-Right market, however his image becoming a symbol of this market–or a hate symbol for that matter–drastically undercuts the market for Pepe.

This means that the use by Infowars will need to be quite transformative to succeed in a fair use defense. However, it’s hard to see the use reaching that level. The context of the use is transformative to some extent in terms of interpretation.

The actual image is not transformative at all. There is no change, the extent of the transformativeness will to rely on verbatim copying the image into this new context. This seems like a weak argument because every other element weighs against them.

The Case is Far from Over

Fair use is an extremely complex bit of law, so much so that it is impossible to guarantee an outcome in these types of cases. This is true of law in general to some extent, there are no slam dunk cases. However, fair use is so fact specific that two different courts with the same case can easily and reasonably come to completely opposite decisions.

The facts look bad for Infowars here, but there’s a lot of case left to litigate. Furie will certainly be happy to start taking these steps to take back his character–especially considering his lawyers have taken his case on pro bono. For now, we’ll just have to keep an eye on this case to see whether Alex Jones’ claims of a “frivolous lawsuit” are just fake news.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

How do the Courts Handle Emojis, Part 2: Emoji Law

Earlier this week, we discussed how the courts have handled emojis and emoticons in the past. They’re well equipped to interpret these issues–from smiley faces to champagne and squirrels. Despite the complications inherent to the medium of emojis and emoticons we discussed last time, they’ve consistently found a way to work out their meaning. Perhaps most importantly, the courts clearly do not discount emojis and emoticons when determining the meaning of evidence.

So how does this background translate when it comes to individual questions of law? The answer is quite complicated as how “emoji law” works varies substantially from topic to topic. However, we’ll address one of the most common questions related to emojis–can sending an emoji be sexual harassment? We’ll turn from there to what is likely the most complex issue when it comes to emojis and emoticons–their intellectual property treatment.

emoji_1Can Emojis Be Sexual Harassment?

Is sending a suggestive emoji–such as a kissy face or eggplant (commonly used to represent a phallus)- sexual harassment? This is a common question to hear but the answer to this is very simple–yes it absolutely can. However, like all evidentiary issues it will be a matter of interpretation for the courts.

Sexual harassment requires serious or pervasive conduct, because of the plaintiff’s gender, that is unwelcome. This means that if a boss (or even a coworker) sends a kissy face text to an employee every day after work, that could likely qualify.

Even one sufficiently suggestive string of emojis could rise to the level of sexual harassment. The cause of action does not require economic or psychological harm to succeed, just a situation which a reasonable person would consider creating a hostile work environment.

This means it’s a case by case issue and the court will need context to rule on the issue. However, it’s a safe policy to adopt to not send flirtatious emojis to coworkers or employees.

Intellectual Property and Emojis

We’ve talked about situations where emojis and emoticons come into play as evidence to interpret. However, in the realm of intellectual property the emojis and emoticons themselves become the center of attention as they can be protected by both copyright and trademark law. But the protections available to both are justifiably quite limited. This is an issue which has been deeply discussed by Santa Clara Professor Eric Goldman.

Copyright protection applies to any minimally original work of authorship as soon as it is fixed in a tangible medium–regardless of registration. This means that, while registration is necessary for an infringement lawsuit, copyright protection theoretically attaches to individual emojis and emoticons as soon as they are made. The originality standard is quite low and 2D art is explicitly included in copyright law. Indeed, around 100 emoticons and emojis have already received the protection of copyright law.

This means that emojis and emoticons presumptively qualify for copyright in most situations. However, since they are so simplistic their protection is incredibly minimal.

Type on a page is generally not protected at all, which rules out the simplest of emoticons such as a basic smiley face. More complex emoticons such as “putting on sunglasses” (•_•) / ( •_•)>⌐■-■ / (⌐■_■) may clear this threshold. Even still, there are many more protected emojis than emoticons with emojis more than tripling the number of successful copyrights that emoticons have received.

However, both emojis and emoticons have issues which limit the strength of their marks. Since they are so simple, merger doctrine limits them. This means that, because there are a very limited number of ways of expressing what they represent, they only get protection against near identical representation. For example, there are dozens of variations of the gun emoji between platforms and its unlikely any of them could enforce a copyright against another.

What’s more, scènes à faire is a doctrine like merger which holds that copyright does not protect stock characters, settings, or events that are common to a subject matter or medium because they are commonplace and lack originality. This means that nobody can have the full rights to the idea of a smiley face, a gun, a car, etc.

While copyright protection does exist for emojis and emoticons, it is likely that it is generally so thin as to protect against only virtually identical reproductions. What’s more, no matter the protection on emojis, personal non-commercial use of emojis is very likely fair use.

Fair use is an equitable defense for de minimis use of something protected by copyright. However, fair use is an evidence heavy multiple factor test. This means results are hard to nail down with absolute certainty. However, a fair use defense in a situation like the one discussed above would be quite strong.

Even beyond copyright protections, there is the potential that somebody could seek to get trademark protection on an emoji or even turn their own branding into an emoji for public use as part of a sort of viral advertising campaign.

Experts on the issue, such as Santa Clara Law Professor Eric Goldman, fear the potential of somebody getting a trademark on a common emoji and using that mark to hunt down use–similar to how patent and copyright trolling works.

Goldman himself acknowledges that such lawsuits and the underlying marks are unlikely to be particularly strong. Trademarks protect against consumer confusion and must identify a good or service to be confused with before an issue arises.

Use in conversation certainly wouldn’t qualify. To even have a small chance, and this is a very small chance, the emoji would have to be a particularly unique one and the defendant would have to use it in some sort of marketing or advertising to promote their own goods or services.

However, as is common with patent trolls prosecuting a weak patent, an “emoji troll” might threaten the lawsuit then seek a quick settlement for less than the usual costs of the initial phases of a lawsuit.

One additional issue with branding using emojis–or turning your logo itself into and emoji–is the issue of genericide. We’ve discussed this issue a few times before and the issue here is much the same as why business owner’s are typically advised not to use their brand names as verbs.

Genericide is where your brand name is such common parlance that it is not specifically associated with your brand anymore–Kleenex for example. Google has faced genericide claims a number of times over the phrase “googling,” although it has never lost these arguments in court.

If you make your mark an emoji, it might take on a totally different meaning in the public’s eyes and undercut your trademark protection. This is speculative and no court has ever addressed this issue, but it is something to keep in mind. There are certainly more than a few emojis that have taken on a meaning in common conversation that one would not normally expect–for instance you should probably be careful about using snake and eggplant emojis.

A Growing Issue Worldwide

The use of emojis as evidence has skyrocketed in the last two years, both here in the U.S. and abroad. Courts have dealt with the issue as far away as Israel and New Zealand. However, the issue is only going to continue to grow. Fortunately courts are well equipped to interpret something like an emoji or emoticon–even if the meaning of the emojis themselves can be hard to pin down.

Emoji use is likely going to continue to grow and evolve. This means we’ll only see more cases like this in future. For now, be careful how you use your emojis. You may accidentally be entering a contract with that flamenco dancer!


Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

The Battle for the Internet: State Action on Net Neutrality

After the FCC ruling on net neutrality, several states have taken independent action to make these requirements a part of their state law and give you back the consumer protections that go along with net neutrality rules. For those unfamiliar with the situation, the FCC has recently repealed requirements that internet service providers (ISPs) not provide preferential treatment to different types of internet traffic, throttle users, or outright blocking content it doesn’t like. This repeal of consumer protections, despite substantial public outcry against the move from people of both political parties, opens the door for ISPs selling the internet in bundles like cable, censoring content by slowing it down or blocking it, and putting businesses over a barrel to force paid prioritization. The move incensed many politicians, as well as the public, and some have acted on the issue.

States which have taken legislative steps in the last week or so include New York, Washington, and California with California having two different laws to help maintain your protections. Several state attorney generals have also begun the process of bringing lawsuits challenging the FCC ruling. These laws and the lawsuits will both face serious challenges–both legal and political–if they hope to make any real headway. Let’s look at these recent steps and the stumbling blocks they will face as they move forward.

net neutralityProposed State Net Neutrality Laws

In California, lawmakers have approached net neutrality from two different angles. First, State Senator Scott Wiener out of San Francisco has proposed SB 822, was introduced on this last Wednesday–January 3rd–and approaches the issue as a regulatory issue through the California Public Utilities Commission. Another California Senator, Kevin de León out of Los Angeles, has introduced SB 460 which outright reenacts the consumer protection requirements of net neutrality as a state law requirement to operate in California. Since their recent proposal, quite a few lawmakers have asked to ask as co-authors to these laws.

Currently SB 822 is fairly simple, perhaps too much so to be effectively enforced. However, it will likely see substantial changes if it is ultimately passed. As it stands, it provides new duties to the California Public Utilities Commission (PUC). The PUC would oversee ISPs and ensure that they comply with the net neutrality provisions previously enforced by the FCC. Where the ISPs do not comply, the law would prevent them from receiving any state contracts, renewing California state franchises, or use any utility poles owned by California as part of their network. Taken together, these rules would represent both an extreme expense to ISPs and, in some situations, make operation within the state extremely logistically difficult.

SB 460, on the other hand, takes a more direct tact. It would outright make it illegal for ISPs to violate net neutrality provisions such as requiring businesses to pay for prioritization either to avoid throttling or to be given a internet “fastlane.” It would also make it illegal for ISPs to mislead the public as to their compliance with net neutrality rules, something that nearly every ISP has got in trouble for doing at some point or another.

As mentioned, these laws are simple at this point. However, both Senators associated with the bills have mentioned that they will take their time to ensure that the laws are thorough and address any current issues in their original drafts. These California senators are not alone. A Democratic Senator out of New York and a Republican out of Washington have both introduced similar laws in their respective states. New York has also considered rules denying state contracts to all ISPs who are not compliant with net neutrality rules.

The Difficulties These Laws Will Face

If passed, these laws will all face legal challenge–end of story. If not from the Trump administration and the FCC itself, the ISPs will sue. It would be ironic for Republicans, ostensibly the party of state rights, to come down on these laws. However, it seems very likely that these laws will face conservative judicial challenges. Conservative political interests and the Trump Administration have cracked down repeatedly on state laws such as sanctuary laws and legalized marijuana. This will very likely be the case for state net neutrality laws.

Once challenged, all these laws have a serious obstacle to overcome–the FCC ruling repealing net neutrality also specifically pre-empts state or local measures that would act contrary to the FCC ruling. This means that the FCC says that its own rules win in any conflict between its rules and laws like the ones that have been proposed. The FCCs pre-emption ruling covers both “requirements that [the FCC] has repealed or decided to refrain from imposing.” This basically covers all net neutrality provisions.

This pre-emption is likely to be enforceable in the courts. Federal law generally pre-empts state law. Broadband services are difficult for states to regulate where they cross state lines. Even when state laws deal entirely with in-state behaviors, their implications will effect multiple states and enter the realm of the federal and the FCC.

With the way the FCC net neutrality pre-emption policy is worded, such a challenge to these laws would be an uphill battle for the states. However, such a battle would not be impossible. These states will have to argue that the FCC does not have the power to pre-empt them as they have. This position has some support. Just last year the 6th Circuit ruled that the FCC did not have the power to pre-empt Tennessee and North Carolina laws restricting the expansion of smaller ISPs–instead allowing larger ISPs such as Comcast to maintain their ironclad grip on territory. While this ruling is not necessarily for the best for consumers, it does establish the precedent that the FCC does not have blanket authority to pre-empt the states.

The court, looking the Telecommunications Act which governs the powers of the FCC, argued that the act had not delegated the power of pre-emption over the states to the FCC in clear enough terms to support such a power. This ruling supports the premise that the FCC cannot stop these state net neutrality laws.

Lawsuits Challenging the FCC Ruling

While lawsuits may be forthcoming once these state net neutrality laws are passed, there have already been lawsuits filed on behalf of a number of State Attorney Generals challenging the validity of the FCC’s recent net neutrality repeal. With substantial fraud in the comment process on the FCC net neutrality ruling–apparently both dead people and Obama himself opposed net neutrality all along–several states such as New York have brought lawsuits arguing that the FCC’s administrative process and decision making–both the speed with which a decision was reached and the reasoning behind the decision–in repealing net neutrality was so poor that it was “arbitrary and capricious.”

This arbitrary and capricious language is not out of nowhere, it is the standard by which FCC rulings would be judged by the courts. Unfortunately, this also means that these lawsuits are quite unlikely to succeed, arbitrary and capricious means the states would need to show that the FCC ruling essentially no rational explanation before the courts will decide to overturn the FCC. To say this is an incredibly low standard is an understatement.

The Loss of Net Neutrality Has Damaged Consumers

While broadband providers touted the business advantages of removing net neutrality restrictions–creating jobs, lowering prices, and promoting increased investment in infrastructure–none of this has occurred. Comcast fired 500 employees right before Christmas, both Comcast and Dish Network increased their prices in the last few weeks, and the announced infrastructure investment for the next year is essentially the same as last year. All that the FCC’s net neutrality repeal has done is take away your consumer protections. The states are taking steps to bring those protections back. Any successes will be a long fought battle–we’ll have to wait and see if they end in victory.

What’s Going on With The “Banned” Words at the CDC?

The last week has seen an uproar over news that, according to a Centers for Disease Control and Prevention (CDC) source, the Trump administration had banned the words vulnerable, entitlement, diversity, transgender, fetus, evidence-based, and science-based from being used. The outrage has subsided somewhat as more facts have come out more fully explaining the situation.

It is not completely clear what has happened here, but it appears the orders regarding the words were not a ban but a suggestion from higher ups at the CDC–not political appointments but career scientists at the CDC. The idea behind these suggestions was apparently that, with budget requests negotiations ongoing in D.C., it would be easier to get funding for projects that didn’t have words that would draw ire from politicians approving budget requests. If true, this is nearly the opposite situation to what was originally believed. This is an attempt to preserve funding for critical programs.

Even if the situation has changed from what was originally reported, it’s easy to see why the anger to the announcement came so thick and fast. The Trump administration has removed and censored information on climate CDCchange, requiring a change in the narrative and outright deleting tax-payer funded studies on the issue, many times throughout the year and as recently as November. The idea that the Trump administration may be using censorship to push a message is fresh in the minds of many. This raises the question, could the Trump administration legally ban an agency from using certain words?

Can the Government Do This?

The idea of the government censoring the CDC by banning words likely immediately suggests the protections of the First Amendment right to free speech.  Targeting speech in this way certainly rubs many the wrong way. However, while free speech protects against the government curtailing the speech of others, the reality of free speech when it comes to government agencies and government employees is more complicated than the usual free speech analysis.

First and foremost, the CDC is an executive agency of the U.S. government under the auspices of the Department of Health and Human Services. While the government is limited in how it limits the speech of others–generally required to stay neutral on how it governs speech of a certain viewpoint–the limits change substantially when the speech comes from the government itself or from a government employee.

The government speech doctrine says that the government itself has no requirement to stay neutral in its own speech. This means that a government agency can, and often does, take on the position of the executive–in this case Trump.

When it comes to limiting the speech of government employees, such as those who work at the CDC, the situation is a bit more complicated. Normally, a private employer has very little limitations on suppressing the speech of their employees as the First Amendment protects against government action curtailing speech. However, when the employer is the government, the situation changes.

As a government employee, under a test further developed in the 2006 Supreme Court case of Garcetti, an employee must both 1) be speaking as a citizen and 2) on a matter of public concern before they receive the protections of free speech. This means that when a statement is made as part of their official duties, there is no protection whatsoever.

From there, the question becomes whether they are speaking on a “matter of public concern.” As with most things in law, this is a complicated analysis and usually revolves around whether the matter has scientific, political, artistic, social or legal importance. It particularly protects speech around issues of public debate, political demonstration, and the like.

Even then, the analysis is not complete. Before taking action to protect a government employee’s speech, the courts look to whether the interests of the government outweigh the employees free speech interests, whether the protected speech was the true cause of any adverse action against the employee, and whether the government would have taken action against the employee regardless of the speech.

Some examples include a case where a government employee was fired in 1987 for saying, after the Reagan assassination, that she hoped they got him next time. The Supreme Court said that an opinion on the president was a matter of public concern that didn’t impact the constable office she worked at in any way. They ended up saying that her free speech rights had been violated when she was fired. However, in more recent years courts have been much more reluctant to protect the speech of government employees. For instance, in an amusing (if a bit too extreme to be fully useful) fact pattern, a police officer fired for making pornographic videos in his uniform failed a free speech claim after a court said the videos were not “a matter of public concern.”

This trend culminated with the Garcetti case discussed above where the courts said that an attorney fired for questioning whether a search warrant was valid had no free speech rights because what he said was part of his duties. Since this case, it has quite rare for a plaintiff to succeed in a free speech employment argument. The exception to this seems to be in the academic context, Garcetti does not generally apply to academic speech. What’s more, in 2014 the Supreme Court supported a college administrator in a free speech claim after he was fired for truthful testimony in court over financial wrongdoing at the school that employed him.

The takeaway here is that it is very difficult in today’s day and age to win a free speech retaliation case as a government employee, the courts tend to defer to the government’s judgment and reasoning for firing such an employee. So could the Trump administration ban certain words from use at the CDC? Absolutely when it comes to employee’s official duties. As firing them from using the speech on their own time, the situation is more complicated. While any case would depend on its individual facts, an employee challenging such a firing would face an uphill battle.

Banning Words for the CDC: a Ridiculous Situation

There is still some debate as to whether this is a political move within the agency or a strategy to help secure funding. Regardless of the reason behind the CDC not using these words, and the legal situation regarding the government regulating the speech of its agencies and employees, the fact that such a situation exists in the first place is patently ridiculous. To think that it is necessary to tailor budget requests in such a drastic way says a great deal about the Trump administration and their approach to both scientific research and policy. From destroying important research on topics they oppose to requiring code speak to get funding for crucial research, the situation is unacceptable.  Forcing self-censorship to pursue such important scientific pursuits is a regrettable reality.