Tag Archive for 'internet'

The Right of Free Speech vs. Online Business Reputations

SLAPP Lawsuits and the Internet

In the mid-90’s, Oprah Whinfrey dedicated an entire episode of her talk show to the topic of mad-cow disease spreading around several countries, including the United States. Cattlemen in Texas formed a coalition, claiming that the show negatively affected future beef sales, and sued her in federal court on a tortious interference with business reputation claim. After spending an exuberant amount of money defending the suit, Whinfrey ultimately won, with the court finding that the cattleman failed to show she had made any false statements.

anti-slapp internet free speechSimilarly, in 2010, a towing company sued 21-year-old Justin Kurtz for creating a Facebook page dedicated to criticizing the company for wrongfully towing his car. This was a fairly unique lawsuit at the time because the comments were made on the Internet by a member of the general public, as opposed to a public figure with significant influence on traditional media.

Both of these suits are called SLAPP-suits. These types of lawsuits have triggered much state legislation aimed at protecting the general public under the 1st amendment right to free speech and the right to petition the government for unfair practices of big business.

These relatively new suits, targeting the general public for their negative comments on Internet sites like Yelp and Facebook, are the brain-child of a three decade old problem of lawsuits being filed by big business entities. Critics argue that these lawsuits against the everyday citizens are an attempt to silence them from exercising their right of free speech or their right to petition the government. These suits are called SLAPP suits, which stands for “Strategic Lawsuits against Public Participation.”

Since the real motive of a SLAPP suit is to punish and deter criticism, the lawsuits have been successful in “chilling” free speech and discouraging the public from making future complaints against the company. There are many documented cases where defendants found it easier to remove their posts and remain silent.

States Have Tried to Protect Individual Free Speech with Anti-SLAPP Legislation

Public outcry against these suits resulted in many states enacting anti-SLAPP legislation. The purpose was to prevent an entity from filing a suit when the result would chill free speech. For example, California’s version of anti-SLAPP legislation is California Civil Procedure Code, section 425.16, which states that a person is protected from a suit if “any act of that person in furtherance of the person’s right to petition or free speech under the United States or California Constitution in connection with a public issue.” If the person is sued anyway, they will lose. However, a relatively small number of states have legislation as broad as California and only about one half of the states have legislation at all.

Is the Internet Considered Media?

When a state legislature is drafting Anti-SLAPP legislation, they often leave out protections that would cover the media. The First Amendment does not protect the media for defamatory or libelous statements, for publishing information not of public concern, or for a statements that are false and published with actual malice. These restrictions don’t apply to the general public. A member of the general public would be protected for making statements about the same or similar subject matter. Remember, Oprah won her suit only because the court found the statements were true.

When the Internet became widespread, a federal statute called the Communications Decency Act was passed. Although its original wording restricted free speech on the Internet, the Supreme Court struck down those sections and included wording that ultimately protects sites like Yelp and YouTube. Unfortunately, only the owners of the sites are protected from a defamations suit resulting what other people post. The individuals is not explicitly protected.

Has the Internet Transformed the General Public into the Media?

The question stands, if a person voices their opinion on the Internet, which has become the new mass medium, have they transformed into an agent for the media, and thereby deserving of less protection? If so, what protections should they be awarded when it comes to potential SLAPP suits?

An increasingly popular view is that an individual retains their status as such, and is therefore not an agent of the media and is protected by Anti-SLAPP legislation. In fact, there have been a number of California cases where complaints for defamation arising from Internet postings were successfully defended by using the state’s anti-SLAPP statute.

Some of the protections for Internet postings have remained the same as those for which the traditional anti-SLAPP laws were established: to protect the general public. These protections include the right to free speech (online speech in this case), the fact that the cases have no legal merit, and the fact that the lawsuit creates a “chilling effect”, as explained earlier. The courts have also found that people on the Internet have the right to remain anonymous when posting criticism. Businesses have attempted to issue subpoenas to compel the person to reveal their identity, which has been successful in some cases and found to be a valid defense in others.

The fact remains, however, that there has failed to be consistent rulings regarding Internet use and the protections individuals are awarded. The problem remains that everyday citizens are often not financially equipped to defend lawsuits brought by big business and their criticisms are often silenced.

Modern Technology Calls for Broader Constitutional Rights

Since the states vary in the broadness of their anti-SLAPP legislation, further protection is sorely needed. This type of protection can only come from a broadly defined federal statute, which will force the states to protect their citizens. Recently, many have been advocating for a federal anti-SLAPP law to protect people in states that either do not have laws or have laws that are too broad to adequately protect an individual’s right to free speech.

As a strong supporter of First Amendment rights, my view remains: it is no longer valid that the media should be limited in protection. In a sense, we have all become the media because of the ease in which individuals can widely disseminate information on the Internet, creating just as much influence as traditional media. Therefore, if the goal of traditional anti-SLAPP legislation is to protect individual rights and to protect those who do not have the resources to defend themselves against big business, those protections should be expanded to the media. This would quell the controversy and prevent needless litigation. Most importantly, it would protect the constitutional rights that make the United States unique.

A Glimmer of Hope for Net Neutrality

On April 24, 2014 the regulations that the Federal Communications Commission (FCC) had been using for decades to keep the Internet “open” were deemed unconstitutional. This has led many to speculate that Internet Service Providers (ISPs) will start to pick and choose types of content and discriminate against sites that took up more bandwidth (think videos versus pictures; videos require more bandwidth to stream in a higher definition) and favor those that did not, or, alternatively, charge a “premium” to higher bandwidth sites. Even worse, commentators fear that ISPs could slow down websites on the basis of content the ISP did not endorse, such as peer-to-peer file and information sharing.

Tom Wheeler FCC Net NeutralityThere is a glimmer of hope, however. The FCC Chairman, Tom Wheeler, has publicly stated that there will be no turn around in their open Internet policy, and the agency will monitor pricing and speeds for “commercially reasonable” decisions and anti-competitive behavior on a case-by-case basis. Moreover, Wheeler is considering seeking reclassification of monopolies with respect to broadband Internet providers, despite the dissatisfaction and fervent opposition this type of move would make with Republican lawmakers. And finally, ISPs would be required to disclose which sites and what types of content receive the “fast lane” treatment, meaning if any ISP owns right or left leaning news outlets, favoring one over the other could alienate customers.

There is one looming cloud over any hopes of what remains of net neutrality, and it comes in the form of two words: “commercially reasonable.” These two words are what keep the FCC’s proposed regulations from being the end of net neutrality altogether; yet, ironically, they are also what make the proposed regulations ultimately doomed to fail.

To be fair, this “looming cloud” may not be all bad. After all, businesses are what make this country strong, and commercially reasonable enterprises should be embraced. Indeed, it is entirely possible that regulations that allow for this type of “competition” could lower the cable bills of daily users like you and me.

However, it should be clear: the FCC is a political organization, and what is deemed “commercially reasonable” on their “case-by-case” analysis under one administration will not be necessarily reasonable under another, and a standard such as this will inevitably ebb and flow with the political tides. Every four to six years, it would not be surprising to see significant changes in “net neutrality”: one term may be friendly to small businesses, whereas the next term may give ISPs a firmer choke hold over pricing bandwidth.

Regardless of whoever is being more straightforward with how the proposed regulations look, it all comes down to a vote on May 15, 2014. And by the look of things, if we are going to mark our calendars for anything that day, it should be as “the day a discriminatory Internet was born, and the day the free Internet died.”

Wearable Technologies Push Legal Frontiers

When I was a kid, I remember electric blankets were all the rage. However, after reports of these blankets causing fires, they quickly became a thing of the past. A few years ago, after Google Glass emerged, I couldn’t help but think of the electric blanket—an interesting, novel product, but with a slew of potential legal troubles that may ultimately leave owners getting burned. As it would turn out, Google Glass was merely the tip of the iceberg for the revolution of wearable technology. However, it seems as though concerns over the potential problems of these wearable technologies is entirely warranted. wearable technology

What Is Wearable Technology?

While it may seem like an obvious question, it deserves a bit of an explanation. “Wearable technology” describes clothing or accessories, such as a bracelet or glasses, which utilize computer technology that gives the wear some heightened sense of practicality. An early example of this is a calculator watch. In addition to giving the person the ability to tell time, they could calculate tips or other simple math equations on the fly.

The most talked-about wearable technology is Google Glass. You wear Google Glass just like any other set of glasses, except instead of polarization and UV protection, these glasses offer people the ability to surf the web, check the weather, read text messages, and even make photographs and record video in 720p.

“Smart watches” are also receiving an increasing amount of attention. These devices are similar to calculator watches, in the sense that they keep time in addition to other functions. Where they differ is that rather than just compute numbers (which they can still do), these watches also operate as .mp3 and FM radio players, cameras, GPS navigation systems, and even as a cell phones. Wristband devices can also monitor your heart rate, sleep quality, and how many calories you burned.

Clothing companies have even started entered the wearable technology field. What some of these “clothes”—if you can call them that—can do is astonishing. For instance, BB.Suit has designed a piece of clothing that makes the wearer a walking WiFi hotspot, Studio Roosegaarde has crafted a type of high-fashion dress that becomes ‘see-thru’ as the person’s heart rate increases, and there has even been talk of companies testing prototypes of clothes that can harness solar power.

Why Is Wearable Technology a Legal Concern?

Wearable technologies have the potential for causing serious privacy violations. For example, those equipped with an app called “Winky” could use Google Class trigger the camera mechanism with the blink of an eye. This not only raises concerns over privacy, but also sparks an interesting issue with various wiretapping laws.

Private establishments have every right to maintain some manner of control over the conduct of people entering their premises. Shortly after the first Google Glasses started popping in the San Francisco Bay Area, many establishments began posting signs that asked wearers to remove their glasses before entering due to privacy concerns of other customers. Casinos in Las Vegas have banned them outright.

Law enforcement has been having trouble regulating the use of Google Glass. In October of 2013, a San Diego woman was ticketed for wearing her glass while driving. Ultimately, the case was thrown due to a lack of evidence that the glasses were actually on and in use while the woman was behind the wheel. But the statement was already made: Don’t Google and drive. In other parts of the country, legislatures have made efforts to get the Google Glass put in the same category as a cellular phone.

Smart watches pose many of the same problems as Google Glass. If glasses are causing a ruckus by being able to send texts, access the Internet, and capture images in the wink of an eye, it is not unreasonable to see how the exact same privacy concerns arise over a watch that can do the exact same thing with the flick of a wrist. Similarly, using smart watches to text and talk while driving will force legislatures and law enforcement alike to figure out ways to control the use of these devices, many of which look like normal wrist watches.

Aside from criminal issues, there are also concerns over health and safety. “Fitbit,” who manufacture an athletic wristband, recalled one of its models after users began to complain of skin irritation. As the popularity of wearable technology grows, so will the lawsuits over design defects and harm caused by them.

The Legal Community Should Encourage Innovation

Regardless of the potential legal problems the legal community, it is exciting to see how much technology has grown in the last twenty years. If watches that double as phones and temperature regulated jackets are today’s hot item, it’s mind boggling to think of what type of gadgetry the next twenty years will bring us. When developing laws to regulate new technologies, the legal community should be careful to not impede future innovations.

The End of Net Neutrality?

In January of this year, a federal court of appeals tossed aside Federal Communications Commission (FCC) regulations that limited Internet Service Providers (ISP) ability to discriminate and interfere with speeds of certain types of content. This has been touted as one of the final, deadly blows in the battle over “net neutrality.”

Net NeutralityWhen the Internet first started to become the high-speed, high-bandwidth behemoth it is today, there was this concern that ISPs could freely funnel certain types of information through at the higher speeds. This naturally would leave other content that the ISP chose on the outer ring of the bottleneck, if not shut out entirely. This ostensibly would create a type of tier system, in which some “data” would be more valuable than others, and obviously, priced accordingly.

Sounds a little greedy, doesn’t it? I mean, if you are already paying for access to this ‘information super highway,’ why should you have to pay more or less depending on what you chose to do with your lane on that highway? A good way to think of it is being charged a toll to get onto a highway, and then, instead of relying on a uniform speed limit, you were limited depending on whether or not you were driving a sports car or a hybrid or a news van. In this example, the sports car could be left in the dust by news vans and hybrids, just based on the preference of the authority overseeing the highway. In an even more Kafka-esque twist, imagine you could only go quicker in your sports car if you paid more sports-car-exclusive tolls along the way.

But has this sort of thing happened? Well, yes, but only once (officially). Comcast has intentionally limited the speed of peer-to-peer (P2P) sites such as BitTorrent (think of Napster but for all things entertainment). And with this recent decision, the FCC is scrambling, almost desperately so, to try and draft a set of regulations or disclosures that will keep the Internet open and to stop this type of discrimination from happening on a larger scale.

But could it happen on a larger scale, you ask? Well, even when the FCC was regulating ISPs, it allegedly already has. During the legal proceedings in January that lead to the holding that the FCC has no authority to enforce a ‘net neutrality’ principal, AT&T and Verizon were both under fire; AT&T for patenting processes that take advantage of the FCC’s current, meek regulations, and Verizon for showing slower speeds through Netflix and Amazon Cloud services.

Fine, but why do I care? Plain and simple: money. Think of your cell phones data plan. Cell phone companies have been doing this sort of tiered data streaming for years. If you pay for 1GB of data, you can get more once you cap out, but at a price. And if think your phone gets “unlimited” data, think again: despite the premium price you pay, it gets a specified amount of data at normal speed, and then the speed you receive any data after that is drastically reduced. This may not matter much if you do not stream videos, but if you do, you pretty much are required to pay more for using the airwaves than someone who just looks at pictures or reads the news.

To boot, if ISPs are free to cap bandwidth for certain types of sites, like Netflix, and especially sites that compete with their own video or music services, you can be assured that they will. And as long as there is a demand, companies will begrudgingly pay whatever they must to have the cap removed, and then they will shamelessly pass that cost on to customers. While this does not necessarily mean your $8 pass to streaming online movies will jump to $80 overnight, it does mean that there will almost definitely be an increased cost, or in exchange, decreased service, and all in the name of this “artificial” scarcity the ISPs are free to create. Again, we all understand the cost of fuel rises and lowers on availability and projected use, but the Internet simply is not a finite resource.

Unfortunately, if the FCC is unable to come up with meaningful regulations, it will certainly start to feel that way. And while your nightmare of a slow-as-molasses Netflix may not come true, it’ll certainly cost you in the form of ads or a spike in service fees.

Do We Have the Right to Be Forgotten?

The Boston Marathon Bombing unfolded like the latest Batman movies. Real life was eerily similar to the plot of those movies.  It wasn’t just the explosions or the long manhunt or the lock-down of an entire city. Watching people online accuse others of being part of the bombings gave credibility to the Joker’s claim that “people are only as good as the world allows them to be.”

The most prominent example was the story of Sunil Tripathi. Tripathi was a student at Brown University until he disappeared last March. After the bomb attacks devastated Massachusetts, websites such as Reddit.com began “looking” for the culprits. Reddit users pointed fingers at Tripathi, but as of late April, police believe that Tripathi’s body has been in a river for some time.

Reddit has since apologized to Tripathi’s family, but other individuals had been falsely accused as well.  Although the terror of the bombing has since faded, the underlying issues have existed for awhile and will continue to exist into the future. Those falsely accused of the Boston Bombing could bring a libel or slander lawsuit if they suffered any harm, but the larger problem of people being involved in legal problems and then having that information persist forever on the internet is not so easily addressed.

computer delete buttonFor example, a person could be arrested for possession of marijuana, but then have the charge dismissed. Although the public record can be expunged, this doesn’t apply to the internet. Employers, landlords, and the public in general could see “facts” which are legally non-existent. Libel laws cannot cover these types of cases because the information is often true, and truth is the best defense to libel. The information, however, will often prevent their subjects from getting a job or getting a room to live in. This problem is most common in criminal law, but the internet could have a chilling effect across multiple fields of law.

These privacy concerns are difficult to address since there are number of other interests that must balanced against it. First, the legal system has to be transparent. If lawsuits were not in public records, corruption would be a larger problem than it is right now. Second, free speech and free press are essential rights which cannot be sacrificed. Third, with regards to employers and landlords especially, they have the right to operate their business as they please, and a successful business involves researching and choosing good employees or tenants.

How, then, should we address these privacy concerns? Some people might not see an issue at all. Actions have consequences, and adults have to live with the consequences of those actions.  As an internet writer, I have to accept that my opinions won’t always be liked or accepted, and my writing might result in certain opportunities being closed to me in the future. The fact that plaintiffs might have to think before filing a lawsuit, or that defendants might want to consult an attorney before taking an action, is something that the law should consider promoting. People who support transparency over privacy would say that the internet might turn everyone into a public figure, but the status quo is hardly a nightmarish dystopia.

The opposite approach is taking form in Europe. Most European countries don’t have the same robust right to free speech that the United States has, so the “right to be forgotten” has gained far more traction across the Atlantic. This right includes the consumer’s right not to have information sold to the highest bidding advertiser (Facebook is notorious for this). The most extreme application of this right would be the ability to request that some writing, picture or video be permanently removed from a site.

Although censorship is not an exercise that the United States can take part in, requiring major news organizations, social networks, and search engines to update previous stories with the most relevant and up to date information could serve our needs for privacy while maintaining transparency. Deleting information is dangerous, as indicated by the fact that editing photos was a favored tactic of Joseph Stalin to rid himself of political opponents. Combating bad information with up to date information, however, seems like a method more in keeping with American tradition.