By: Lawrence G. Walters, Esq.
Weston, Garrou, Walters & Mooney
www.FirstAmendment.com
INTRODUCTION
CRIMINAL CASE DEVELOPMENTS
U.S. v. Bender,
566 F.3d 748 (8th Cir. June 2, 2009)

Defendant was convicted of traveling with the intent to engage
in illicit sexual conduct with a minor, in violation of 18 U.S.C. §
2423(b), and sentenced to prison followed by probation. Special
conditions of probation that defendant challenged:
 Defendant could not possess or use a computer for any
reason and could not possess or use a computer or any device
with access to any online computer service without prior
approval of a federal probation officer. NOTE: Condition
upheld as not constituting an abuse of the district court’s discretion,
was reasonably related to circumstances of defendant’s prior
offenses, i.e. Internet luring of a minor for purposes of sex, and
was not a greater deprivation than reasonably necessary (based
upon prior offenses).
U.S. v. Bender, continued…
 Defendant to refrain from purchasing, possessing or using
sexually stimulating or sexually oriented materials – in all
forms of media. NOTE: Reversed as abuse of discretion.
 Defendant needed to refrain from entering any library facility
at any location. NOTE: Reversed as abuse of discretion.
Defendant’s offense related to use of public computer, but
condition overbroad – libraries essential for research and
learning.
 Defendant could not resident in or frequent places where
minors are known to frequent – without prior approval of a
probation officer and only then under supervision of
responsible adult. NOTE: Reversed as abuse of discretion.
U.S. v. Bender, continued…

Eighth Circuit acknowledged district court’s to impose special
conditions of supervised release, subject to an abuse of
discretion standard, and so long as: (1) condition is reasonably
related to the statutory sentencing factors; (2) involves no
greater deprivation of liberty than reasonably necessary for
purposes set forth in statutory sentencing factors; and (3) is
consistent with any pertinent policy statements issued by the
Sentencing Commission.

District court failed to provide sufficient individualized finds
supporting its special condition banning defendant from
possessing sexually stimulating materials. Court’s stating
generalized opinion that it did not think that persons with
propensity toward sex offenses had any business reading such
materials deemed insufficient.
United States v. Stevens,
533 F.3d 218 (3d Cir. July 18, 2008),
cert. granted (April 2009)


After Third Circuit invalidated federal prohibition on
depictions of animal cruelty, the U.S. Supreme Court granted
certiorari.
Amici briefs supporting reversal of the Third Circuit’s
decision have been filed, and include the following
organizations/entities:
 Brief for The Humane Society of the United States
 Brief for The Animal Legal Defense Fund
 Brief for AGs of FL, AL, AR, AZ, CA, CO, CT, HI, IL, IN, KY,
LA, MD, MI, MS, MT, NH, NM, NC, OH, RI, SC, TX, UT, VA
and WV
United States v. Stevens, continued…
 Brief for International Society for Animal Rights
 Brief for American Society for the Prevention of Cruelty to
Animals
 A Group of American Law Professors filed an amicus brief
in support of neither party, arguing that the prevention of
animal cruelty is a compelling state interest.
 Amici have made dangerous argument seeking to reverse
years of established First Amendment jurisprudence.
 Obscenity includes ‘violence’
 Strict Scrutiny invalidity first requires overbreadth
U.S. v. Lori Drew ,
(C.D. Cal. July 2, 2009)

District Judge George Wu tossed the conviction of
Lori Drew, Missouri woman charged with computer
fraud for her role in creating a false MySpace account to
dupe a teenager, who later committed suicide.

In November, federal jury convicted Drew of three
misdemeanor charges under Computer Fraud & Abuse
Act (18 U.S.C. § 1030), federal law intended to combat
computer crimes. Originally, Government charged
Drew with four (4) felony offenses under the statute.
Jury deadlocked on one, and convicted Drew of lesserincluded misdemeanor offenses on the remaining three
(3) counts.
U.S. v. Lori Drew , continued…

This is the first prosecution of its kind, under the federal
statute designed to criminalize computer hacking. Here, the
facts only demonstrated failure to abide by online terms of
service imposed by myspace.com (many such terms are often
obscure and arbitrary in nature).

Wu, in overturning Drew’s conviction under the statute,
stated that it was too “vague” when applied in this case and
that were he to allow Ms. Drew’s conviction to stand, “one
could literally prosecute anyone who violates a terms of
service agreement” in any way.

Following Judge Wu announcing his decision, the U.S.
Attorney acknowledged that applying the statute “was a
risk.” “This was a case that cried out for someone to do
something.”
U.S. v. Aldrich,
566 F.3d 976 (11th Cir. April 27, 2009)

Defendant convicted of using a computer to entice a minor to engage in
sexual activity – 18 U.S.C. § 2422(b). Sentenced to 14 years in prison.
Defendant argued that district court erred in imposing the two-level
enhancement under U.S.S.G. § 2G2.1(b)(2)(A), based upon finding that
defendant’s masturbating for a minor female - in front of a web cam constituted “sexual contact.”
Defendant also raised due process
argument based on an inaccuracy in the P.S.I. alleging that he was
masturbating “in front of ” a minor when he was actually in front of a
web cam.

District court construed the enhancement provision language, i.e., the
phrase “any person,” by adopting what it believed was the “plain
meaning” of the phrase – “sexual conduct” could qualify with a touching
of all people, including defendant. The district court also rejected
defendant’s follow-up argument that the phrase could not include himself,
as it was impossible for him “harass” himself – one of six (6) potential
motives under 18 U.S.C. § 2246(3).
U.S. v. Aldrich, continued…

11th Circuit held that “cardinal canon” of statutory interpretation
is that “courts must presume that a legislature says in a statute
what it means and means in a statute what it says there.” Also,
statutes should be construed so that “no clause, sentence or words
shall be superfluous, void or insignificant.”

11th concluded that “sexual contact” under statute and U.S.S.G.
includes masturbation, and that operative phrase “all persons”
applies to defendant.
Court reached this conclusion by
distinguishing definition of “sexual contact” with that of “sexual
act” which does contain the language that it must be an intentional
touching of another person. Court also rejected defendant’s due
process argument.
Query: What impact does this decision have
on the operation of cam sites, and associated user age verification
concerns?
U.S. v. Extreme Associates, Inc,
___ F.Supp.2d ____, 2009 WL 113767 (W.D. Pa. Jan. 15, 2009)

District court determined applicability of two (2)
critical Miller phrases – “as a whole” and “community
standards” – on charges premised upon defendants’
distribution of video clips.

Defendants argued “as a whole” should be applied to the
entire Extreme Associates website, including all linked
web pages -- citing J. Kennedy’s concurrence in Ashcroft
v. ACLU (COPA I). The district court held Kennedy
concurrence not controlling law, and failed to address
the precise issue raised in Extreme.
U.S. v. Extreme Associates, Inc, continued…

District court, citing Ashcroft v. FSC, and the 5th Cir. opinion in Kahm,
held that, in order to rule, it “must view the context and manner in which
the material as been created, packaged, and presented by the author to the
intended audience in order to decide ….” It also cited to the S.Ct. opinion
in Kois v. WI – allegedly obscene poem must be judged in context of its
appearance amidst a selection of other, related, non-obscene poems
within a newspaper.

District court held that Extreme’s video clips were presented as
“independent videos, complete in and of themselves, and unrelated in
content to any other material around them;” “found on individual fetish
pages; “related to each other only by general fetish subject matter;” and
“are not presented by defendants as being interconnected to each other,
or to any other section of the Extreme Associates website.” Thus,
individual video clip as “free standing, independent works,” to be viewed
as a whole.
U.S. v. Extreme Associates, Inc, continued…

On issue of “community standards,” defendants argued that the
community should be the World Wide Web or nationwide.
District court rejected this, ruling that defendants were charged
with delivering, and making available on the Web, obscene
material to identifiable individuals in Pittsburg. Thus, the
“community” was limited to Western District of Pennsylvania.

Post-Script: On July 1, 2009, following a March plea to a charge of
conspiracy to distribute obscene materials via the mails, co-defendants
Rob Zicari and Janet Romano were sentenced by the district court to 366
days in federal prison, to be followed by two (2) years of supervised
release.
STATE CRIMINAL CASE
DEVELOPMENTS
State of Florida v. John Stelmack ,
(Polk County, FL, Cir. Ct. – June 12, 2009)



In December 2007, Polk County elementary school principal
arrested and charged with possession of child pornography
– images of student heads superimposed/ morphed onto nude
adult bodies.
Stelmack’s attorney filed Motion to Dismiss, citing NH
S.Ct.’s 2008 opinion in N.H. v. Zidel, pertaining to identical
situation of child faces superimposed on nude adult bodies.
Zidel Court held that NH statute violated First Amendment.
Motion to Dismiss denied. At trial, defense argued that
images were not child porn, and lack of possession. Jury
convicted; on July 10, Stelmack sentenced to five (5) years in
prison, with no appellate bond. Appeal is pending.
Commonwealth of Pennsylvania v. Sodomsky,
962 A.2d 1196 (Pa. June 8, 2009)

Defendant brought computer to Circuit City® to install DVD
burner. Technicians discovered child porn video. The police were
contacted, and Defendant was arrested and charged with possession
of child pornography.
Trial court granted the Defendant’s Motion to Suppress;
Commonwealth appealed. Superior Court reversed, holding
Defendant possessed no reasonable expectation of privacy. The
Defendant had provided the computer to Circuit City®, and the
technicians had inspected the computer in a “commercially
acceptable manner.” Evidence deemed admissible.
 If technicians were working at government’s request, or pursuant
to legislation requiring reporting of child porn, analysis may
change. PA S.Ct. affirmed without comment.

CDA SECTION 230
IMMUNITY CASES
Craigslist v. McMaster (D. South Carolina),
(Case
No. 2:09-1308-CWH) (May 29, 2009)

Litigation filed against S.C. AG; Craigslist withdrew request for TRO
following agreed injunction prohibiting initiation of any prostitution or
porn-related criminal investigations against company – pending
disposition of declaratory and injunctive relief claims.

Earlier in May, S.C. AG served Craigslist CEO with letter imposing 10day deadline to remove ads relating to prostitution and pornography
from S.C. websites – under threat of prosecution.

Company previously eliminated “erotic services” category in response to
pressure from coalition of state AGs, and pledged to screen submissions
to its new “adult services” section prior to actual posting.

Craigslist originally filed its lawsuit on May 20, using following
arguments:
Craigslist v. McMaster, continued…
 Declaratory
and injunctive relief
immunity provisions of CDA § 230.
pursuant to the
 Injunctive relief for violation of civil rights belonging to
Craigslist, its management and its users under 1st and 14th
Amendments, and per 42 U.S.C. § 1983.
 Injunctive relief for violation of Commerce Clause for
S.C.’s attempts to regulate actions extending beyond the
borders of the State.
Barnes v. Yahoo!, Inc,
565 F.3d 560 (9th Cir. May 7, 2009)

Plaintiff, following ex-boyfriend’s posting nude photos and
fraudulent profiles of plaintiff and trolling chat rooms as
plaintiff, contacted Yahoo!, per latter’s policy, providing
necessary information in effort to have fraudulent profiles
removed. One month later, Yahoo! failed to act; plaintiff
continued to contact Yahoo!, requesting immediate action.
Another month passed without Yahoo! taking action.

Several months pass; plaintiff still attempting to compel
Yahoo! action. Plaintiff then sued Yahoo! in Oregon state
court. Shortly thereafter, profiles disappeared.
Barnes v. Yahoo!, Inc, continued…
Plaintiff ’s lawsuit, later removed to federal court, alleged two
causes of action (“CoAs”) under Oregon law – negligent
provision/non-provision
of
services,
a/k/a,
“negligent
undertaking,” and “promissory estoppel.”
District Court
dismissed case under Yahoo!’s assertion of its CDA § 230 status as
interactive computer service. Ninth Circuit reversed, in part, in
regard to the “promissory estoppel” claim.
 Assertion of CDA immunity as an affirmative defense does not
immediately result in dismissal of cause of action; rather, there
needs to determination of whether the CoA inherently requires
court to treat defendant as the “publisher or speaker” of content
provided by another. The estoppel claim is grounded in contract
law, not tort law, and thus not within the immunity. Practice
Pointer: Although ruling suggests that § 230 immunity cannot be
raised on Motion to Dismiss, it can still be alleged that defense
appears on face of the complaint, thus allowing for this expedited
procedural vehicle.

Barnes v. Yahoo!, Inc, continued…
9th Cir. ruled that plaintiff ’s CoA for promissory estoppel emanates
from breach of contract, and that Yahoo! not entitled to § 230
immunity. Yahoo! made a promise to remove the profiles, and
Yahoo!’s conduct did not constitute publishing conduct. Rather,
Yahoo!’s conduct stemmed from manifest intention to be legally
obligated to remove profiles from publication.
 Ninth Circuit did observe that a general monitoring policy, or even
an attempt to help a particular person, by an interactive computer
service, does not implicate contractual liability. Thus, 9th Cir.
deemed these particular circumstances as unusual or heightened,
and thus not subject to § 230 immunity.
 Post Script: An amended opinion was issued on June 22, 2009,
deleting the dicta about Section 230 being an affirmative defense.

Zango, Inc. v. Kaspersky Lab, Inc.,
Case No.: 07-35800 (9th Cir. June 25, 2009)

9th Cir. ruled defendant, which treated plaintiff ’s software as malware,
and consequently “protected” users from it by filtering the ads and
downloads, could not be liable for any actions taken to make technical
means to restrict access to objectionable material available to others.

Plaintiff argued defendant had disabled its toolbar that displayed
advertisement relating to user searches. Whenever Zango software
attempted to access the Internet, defendant’s tools would display warning
and block the program. Further, Plaintiff argued that Congress intended
CDA immunity to apply to Internet content providers and not companies
that provide filtering tools.

9th Cir. disagreed, holding that defendant was also entitled to immunity
as a software provider, fitting squarely into § 230 definition of an
“interactive computer service.”
People v. Gourlay,
2009 WL 529216 (Mich.App. March 3, 2009) (Unreported)

Section 230 issue in the context of crim. prosecution for
child porn tucked inside ineffective assistance of counsel
claim.
Despite procedural distance, appellate court
conducted detailed exploration into applicability of § 230 to
hosting unlawful content.

Defendant convicted on state-law child pornography
offenses. On appeal, he argued entitlement to new trial
because his attorney had failed to request jury instruction
that, under CDA Section 230, “an Internet service provider
does not create pornography by providing bandwidth or by
providing technical or artistic assistance.”
People v. Gourlay, continued…

Appellate court accepted defendant's arguments that he was
potentially an interactive computer service provider under §
230, and it could immunize him from state-law criminal
prosecution. However, defendant found not entitled to any
potential immunity because he had involved himself directly
in the creation of the child pornography being streamed via
the boy’s website.

Court examined elements of convicted offenses, and compared
them to activities of hypothetical interactive computer service
provider. Charged offenses required proof that defendant actively
and intentionally directed child to engage in sexual activity for
purpose of producing child porn. No error in failing to request
the jury instruction relating to Section 230.
People v. Gourlay, continued…

Prosecution alleged and proved that the defendant was a knowing, active
participant in the creation of the two websites. These activities do not fit
the definition of an interactive computer service provider, the court
reasoned, so the defendant was not entitled to a jury instruction on § 230.

Important: Court remarked that it could imagine a child porn
prosecution in which web host was entitled to § 230 defense, such as
might be case if a web host continued to make available child porn even
after it had received notice that the material was available on its network.
“However, the prosecution of defendant for distributing or promoting
child sexually abusive material was not based on such a theory.” Further,
the court directly acknowledged that “Congress intended that no liability
may be imposed under a state criminal law that is inconsistent with §
230.”
People v. Gourlay, continued…

Insight: This case should be seen as a positive for online service
providers. The defendant’s activities can be readily distinguished from
typical hosting services or user-generated content site operation.
 Here, the defendant recruited the boy to go into business with him, so he was
actively involved in the creation of the unlawful material.
 No evidence that defendant offered similar technology services to other
clients.
 Most importantly, the court seemingly acknowledged that Section 230
provides an immunity from state criminal prosecution, in certain
circumstances.
CIVIL LITIGATION IMPACTING
ADULT ENTERTAINMENT
Connection Distributing Co. v. Holder,
557 F.3d 321 (6th Cir. Feb. 20, 2009)
Sixth Circuit overturned landmark ruling that struck down §
2257.
 In October 2007, three-judge panel declared § 2257
unconstitutional, holding that the law was overbroad and a
violative of Free Speech Clause.
 En banc 6th Circuit’s 72-page opinion found “no reasonable basis”
in the case to justify overall rejection of the law.
 The Court upheld validity of 2257, both on its face and as applied.
Decision also rejected claim that complying with § 2257 forces
producers of sexually explicit content - in this case, both publisher
and an adult swinger couple - to give up their 5th Amendment
right not to testify against themselves.

Connection Distributing Co. v. Holder, continued…

Key Majority Opinion Quote:
 “No one disputes that the government's interest in protecting children
is ‘substantial.’” “And a universal age-verification requirement
advances that interest in a reasonably tailored way for several reasons:
It ensures that primary producers of pornography confirm that
performers are of age before filming them; it permits secondary
producers (who rarely will know the performers) to ensure that the
individuals depicted in their publications are of age; it prevents
children from attempting to pass themselves off as adults; and it
creates a compliance system in which law-enforcement officers not
only can identify the performers depicted in magazines and movies and
verify their ages but also can eliminate subjective disputes with
producers over whether a model’s apparent age should have triggered
an age-verification check.”
Connection Distributing Co. v. Holder, continued…
 Court embraced government’s argument that borderline
prosecutions will not occur, given prosecutorial discretion.
 Dissent identified problems with protection of anonymous
speech, the application to non-commercial productions,
and lack of confidentiality of the ID records produced by
swinger couples.
 Majority appears to invite ‘as applied’ factual challenges to
the statute, but rejects facial invalidity.
Internet Solutions Corp. v. Marshall,
2008 WL 5205951 (11th Cir. Feb. 10, 2009)

Background: Plaintiff Florida corporation upset by critical
blog postings by defendant. Plaintiff filed a defamation suit,
with intention of dragging defendant, an out-of-state
resident, into Florida defend.

Plaintiff attempted to address Due Process concerns by
relying on pre-Internet, newspaper cases as precedent, in
order to establish jurisdiction in Florida. Plaintiff contended
that defendant had committed tortious acts by posting
defamatory comments on her website and targeting
individuals in Florida, and that defendant’s conduct resulted
in tortious contact or communications “into” Florida as
required under long arm statute.
Internet Solutions Corp. v. Marshall, continued…



Middle District of Florida had dismissed the case for lack of personal
jurisdiction, and held that plaintiff ’s pre-Internet case, Calder v. Jones,
does not apply to websites. Court held there was no evidence that
defendant had specifically targeted FL residents w/ blog posting, as the
website was equally accessible to persons in all states. Further, even if
defendant’s alleged, tortious act occurred or resulted in FL injury, single
act was insufficient to satisfy minimum contacts – at least, absent
showing of purposeful availment.
Plaintiff appealed to 11th Cir., which deferred ruling on the case, instead
holding that Florida law is “unsettled” regarding whether defendant’s
actions meeting requirements of FL long-arm statute, and certified
question to the Florida Supreme Court.
Case is quintessential example of corporate SLAPP. If Plaintiff is
successful, it would likely mean that any individual authoring an online
consumer report could be dragged into remote courtroom, with
consequential chilling effect on consumer journalism, as well as personal
blogging.
Cardinal Health 414 v. Adams,
582 F.Supp.2d 967 (M.D. Tenn. Oct. 10, 2008)


District court accepted, in part, plaintiff ’s motion for
summary judgment, brought under the Stored
Communications Act (SCA).
SCA is a criminal statute also providing a private right of
action against one who “intentionally accesses without
authorization a facility through which an electronic
communication service is provided; or intentionally exceeds
an authorization to access that facility; and thereby obtains
… access to a wire or electronics communication while it is
in electronic storage in such system ….”
Cardinal Health 414 v. Adams, continued…
Background facts: Plaintiff, a nuclear pharmacy, filed suit against
two (2) former employees, accusing them of accessing workplace
email, without authorization, after employment with the pharmacy
had ended. Defendants claimed emails contained mere gossip.
 District court ruled that mere unauthorized access, committed
knowingly and willfully, was sufficient to establish an SCA
violation, without consideration of the substance of the
communications. Therefore, as a matter of law, Adams was in
violation of the SCA.
 Under the SCA’s provision providing a private right of action,
damages are authorized for no less than $1,000.00. Thereafter, a
plaintiff needs to show actual damages. Further, a recovering
plaintiff is entitled to attorneys’ fees, costs and – potentially – to
punitive damages.

Video Software Dealers A’ssn. v. Schwarzenegger,
556 F.3d 950 (9th Cir. Feb. 20, 2009)

Background: In 2005, California enacted law restricting the sale or
rental, to anyone under the age of 18, of computer and video
games classified as “violent video games” if the depictions of
violence in the games are offensive to the community or if the
violence depicted is committed in an “especially heinous, cruel, or
depraved” manner. Statute also required an “18” label for such
games. Law was scheduled to go into effect on January 1, 2006.

Video Software Dealers Ass’n and Entertainment Software Ass’n
filed for declaratory relief seeking to invalidate Act on the 1st
(vagueness; content-based law) & 14th Amendment (equal
protection) grounds.
Video Software Dealers A’ssn. v. Schwarzenegger,
continued…



Trial court granted S.J. to Plaintiffs and enjoined law based
on failure to survive strict scrutiny.
California appealed to 9th Cir., which affirmed.
9th Circuit held that:
 Act imposed a presumptively invalid content-based
restriction on speech in violation of the First Amendment
of the United States Constitution; and
 The Act could not survive strict scrutiny review, including
failure to establish a compelling governmental interests
and failure to use least restrictive means.
Video Software Dealers A’ssn. v. Schwarzenegger,
continued…

9th Cir. restricted Ginsberg v. N.Y. application to sexually-based expression, not
expression containing only violent content. 9th Cir. reviewed Act as
presumptively invalid, content-based restriction, and determined that State’s
asserted interest in “preventing psychological or neurological harm to minors”
was insufficient to pass strict scrutiny.

State’s interest is compelling only when “the recited harms are real, not merely
conjectural and…the regulation will in fact alleviate these harms in a direct and
material way.” State’s research to support assertion of harm insufficient because
the research suggested only correlation between actual psychological harm and
violent video games and not causation. Also, even if direct causal relationship
between asserted harms and violent video games, State failed to demonstrate
narrow tailoring.

“[M]inors are entitled to a significant measure of First Amendment protection,
and only in relatively narrow and well-defined circumstances may government
bar public dissemination of protected materials to them.”
American Booksellers Found. for Free Expression v. Cordray,
560 F.3d 443 (6th Cir. March 19, 2009)
Background: In 2002, plaintiff filed complaint in District Court
challenging Ohio statutory amendment defining “harmful to
juveniles” as including material that contains depictions or
descriptions of violence, cruelty, foul words, and glorification of
crime. Statute also applies ‘harmful to minors’ law to the Internet
in manner similar to laws challenged (and invalidated) in AZ, MI,
NM, NY, SC, VT, and VA.
 District court granted plaintiffs’ motion for preliminary
injunction, enjoining enforcement of the Ohio statute, and
deeming the definition of “harmful to juveniles” as
unconstitutionally overbroad. State appealed to 6th Cir.

American Booksellers Found. for Free Expression v. Cordray,
continued…
Subsequently, OH Legislature adopted amendment to the
challenged law, eliminating most of the problematic passages
deemed overbroad with regard to “harmful to juveniles” phrase.
However, Legislature failed to correct the provision deemed
unconstitutional due to its application to the Internet.
 OH Attorney General successfully moved the Sixth Circuit to
remand case to district court for further action consistent with the
legislative revisions.
 In 2003, Plaintiffs filed amended complaint, followed by motion for
summary judgment. Four years later, in September 2007, district
court struck down “harmful to minors” statute as applied to the
Internet on First Amendment grounds, but not on Commerce
Clause grounds. The State appealed.

American Booksellers Found. for Free Expression v. Cordray,
continued…
The Sixth Circuit Court of Appeals certified two questions to the
Ohio Supreme Court asking for statutory interpretation of the
law:
 Is the Attorney General correct in construing O.R.C. §
2907.31(D) to limit the scope of § 2907.31(A), as applied to
electronic communications, to personally directed devices such
as instant messaging, person-to-person e-mails, and private chat
rooms?
 Is the Attorney General correct in construing O.R.C. §
2907.31(D) to exempt from liability material posted on
generally accessible websites and in public chat rooms?
 On June 3, 2009, the Ohio Supreme Court voted 4-3 to accept the
two questions asking for statutory interpretation of the issues

posed to them by the Sixth Circuit.
Gotbaum v. City of Phoenix,
2008 WL 4628675 (D. Ariz. Oct. 17, 2008)



Background: Case involved widely-reported death in police custody of
person enroute to rehab. Decedent found unconscious, with hands under
her chin and the leg iron chain across her neck following placement in
solitary detention cell.
Plaintiffs, decedent’s estate and children, sought change of venue on basis
of Web blogs that showed bias and hostility toward their case. Plaintiffs’
motion principally relied upon various Web blog entries, which
disparaged the decedent’s family and the lawsuit. Contents of the blogs
were described by district court as being “disturbingly malicious.”
Court did not find such blogs to be sufficiently representative of the large
pool of people from which the jury would be drawn, or that the blogs
adversely influenced the pool as a whole: “the question before the Court
… is not whether the blog authors could serve as fair and impartial
jurors, but whether an impartial jury can be selected from among the 1.6
million citizens, from five counties, who make up the Court’s jury pool.”
CoStar Realty Information, Inc. v. Field,
612 F.Supp.2d 660 (D. Md. March 31, 2009)



Background: CoStar, based in MD, operates Internet-accessible real-estate
database for paying subscribers. Database includes photos of real
property throughout U.S. and related data. Subscribers can find
properties for sale or rental, and research brokers.
CoStar claimed that certain defendants, residents of Texas and Florida,
accessed the database using another customer's password. CoStar
contended that it properly brought suit in federal court in Maryland
because its Terms of Use select that forum.
License agreements provided that authorized users would not allow 3dparty use of database, and that they could not share User ID or pass code
without CoStar's express written consent. Nonetheless, Co-Star’s user
violated the agreement, and shared its User ID and pass code with two
other real estate businesses, located in FL and TX, which received
contractual benefit, in violation of copyright laws. Both businesses
contacted CoStar to request technical support; one of the businesses
falsely misrepresented itself as the authorized user.
CoStar Realty Information, Inc. v. Field,
continued…
CoStar sued all three companies for breach of contract, and also
sued two of the defendants for fraud. However, TX and FL-based
companies objected to forum in MD, claiming lack of sufficient
contacts with MD.
 CoStar argued that TX and FL defendants had consented to
jurisdiction in Maryland by using the database, by accepting the
Terms of Service when accessing the database, and by
perpetrating continuous tortious conduct in MD for private
business purposes.
 District court agreed – noting the Site's initial requirement that an
authorized user accept the Terms of Service, and that neither of
the defendants denied accessing database over the course of
several years.

FTC v. Pricewert, LLC,
Case No. 09-2407 (RMW) (N.D. Cal. June 2/15, 2009)

On June 2, Federal Trade Commission (FTC) convinced the
district court to grant a TRO against Pricewert, which operates an
ISP Triple Fiber Network (3FN).

FTC alleged that Pricewert and 3FN recruit, distribute, and host
electronic code or content that inflicts harm upon consumers –
including “child pornography, botnet command and control
servers, spyware, viruses, Trojans, phishing related sites, illegal
online pharmacies, investment and other web-based scams, and
pornography featuring violence, bestiality and incest.”

First time that FTC has tried to stop the operations of a large ISP
and hosting service that is implicated in illegal activity.
FTC v. Pricewert, LLC, continued…



TRO hearing conducted ex parte. As a result of the TRO, 3FN’s
upstream providers and data centers ordered to stop routing traffic for
the ISP, and disconnected its servers from the Internet. The order caused
more than 15,000 Web sites to be shuttered. It also froze Pricewert’s
U.S.-based assets.
On June 15, the TRO expired; a preliminary injunction was granted, and
the district court ordered that Pricewert and 3FN be placed into
temporary receivership. District court adopted the investigative findings
of the FTC, in finding that there was a real risk of substantial harm to
U.S. consumers by allowing the ISP to continue operations.
Overall, the FTC alleged that more than 4,500 harmful software
programs are controlled by servers hosted and controlled by 3FN. This
alleged malware included programs that were capable of keystroke
logging, password and data theft and illicit spamming.
FTC v. Pricewert, LLC, continued…


Injunction required that upstream providers in the U.S. stop routing
traffic for the ISP, and disconnect its servers. FTW was therefore able to
shut down foreign-controlled hosting service.
Based on FTC's evidence, the district court found that FTC was likely to
be able to prove that defendant (1) “operated through a series of mail
drops and shell companies; with a principal place of business and its
principals located outside of the United States;” (2) “continued its
unlawful operations unabated despite requests from the Internet security
community to cease its injurious activities;” (3) “is engaged in activities
that directly violate U.S. law and cause significant harm to consumers;
and (4) “is likely to relocate the harmful and malicious code it hosts
and/or warn its criminal clientele of the action.”
Dart v. Craigslist, Inc.,
1:09-cv-01385 (N.D. Ill. March 5, 2009)



Lawsuit, filed by Cook County Sheriff, alleges that Craigslist
“Erotic Services” section is “clearinghouse” for prostitution,
and seeks restitution of $100,000.00 for the investigative
resources expended in the Sheriff ’s Office pursuing its
Craigslist investigation.
Lawsuit cites, as example of Craigslist’s knowing
involvement in prostitution-related activities, sting
investigation in June 2008, resulting in the arrest of 76 men
and women. Law enforcement had posed as customers
making dates with women featured in the website’s “Erotic
Services” section.
Motion for Judgment on Pleadings remains pending.
STATE CIVIL CASE
DEVELOPMENTS
Watson v. Public Service Co. of Colorado,
207 P.3d 860 (Colo.App. Oct. 16, 2008)


Background:
Plaintiff replied to Internet job posting
requiring commercial driver’s license within 6 months of
hiring. Plaintiff hired; during the initial period, he filed an
OSHA anonymous complaint against employer. At end of 6
month hiring period, Plaintiff was terminated; he had not yet
obtained commercial driver’s license.
Plaintiff sued former employer, claiming breach of implied
contract, promissory estoppel, and violation of a statutory
labor law provision. Trial court ruled in Plaintiff ’s favor on
statutory law claim but declined to find that defendant
company had breached an implied contract or that there was
promissory estoppel under these circumstances.
Watson v. Public Service Co. of Colorado,
continued…


On appeal, plaintiff sought review of lower court rulings on the implied
contract and promissory estoppel claims. He claimed that the Internet
job posting provided by the defendant constituted an offer, which he
accepted, and thereby creating an implied contract.
The Court of Appeals affirmed, rejecting plaintiff ’s implied contract and
promissory estoppel claims. Primary rationale for the ruling based under
state employment law.
There is a rebuttable presumption that
employment is presumed to be at will, and an employee may be
terminated without cause or notice. Plaintiff did not succeed in
rebutting this presumption for three major reasons: (1) the terms of the
alleged Internet offer were not sufficiently definite and left significant
room for negotiation; (2) the Internet posting merely solicited responses
from a pool of applicants and did not give any particular employee the
power to consummate a bargain; and (3) there were a number of
significant terms missing from the alleged Internet “offer,” such as a
definite confirmation of employment, a salary, and a start date.
Watson v. Public Service Co. of Colorado,
continued…


The court of appeals analogized the Internet posting to an
advertisement, as “[i]t was directed to the public for the
purpose of drawing attention to employment opportunities
at [defendant].” The significance of this finding is that it is a
well-established rule that “most advertisements are mere
notices and solicitations for offers which create no power of
acceptance in the recipient.”
Practice Pointer: Primary benefit may be to escorts posting
on escort directory sites.
Finkel v. Facebook, Inc., et al.,
Case No. 09-102578 (N.Y. Supreme Court – Feb. 16, 2009)




Complaint alleged that former classmates created password-protected
Facebook group, “calculated to hold the plaintiff up to public hatred,
ridicule and disgrace.” Plaintiff asserted that former high school
classmates falsely alleged that she participated in bestiality and had
contracted AIDS. Exhibits to the Complaint reflected the comments,
which never identified plaintiff by name.
The allegation vs. Facebook, likely covered under CDA § 230, alleges that
the social networking website should be held liable for publishing the
defamatory matter, explaining that it "should have known that such
statements were false and/or have taken steps to verify the genuineness"
of the statements.”
Motions to dismiss have been filed by the case defendants, and remain
pending.
Note: Should be a slam dunk Section 230 argument for Facebook.
Moreno v. Hanford Sentinel, Inc.,
172 Cal.App.4th 1125, 91 Cal.Rptr.3d 858 (Cal.App. April 2, 2009)
Plaintiff's online writing was republished, without her permission
and with surname added, where it was – predictably seen by
different and hostile audience.
 Background:
Plaintiff had posted a poem online that had
condemned hometown. Six days later, Plaintiff removed it. In the
interim, principal at the local high school submitted the poem to
local paper, which published it alongside plaintiff ’s full name.
 The community’s response was violent (death threats and gun
shot). Family left town; plaintiff ’s father shut down local business.
 Plaintiff ’s lawsuit, asserting invasion of privacy and intentional
infliction of emotional distress was dismissed following
defendant’s demurrer. Plaintiff appealed.

Moreno v. Hanford Sentinel, Inc., continued…
The appellate court concluded that – in reviewing the privacy
claim – plaintiff ’s poem was not private, and plaintiff had no
expectation of privacy since literally anyone with Internet access
could read it.
 On the issue of the divulgence of the plaintiff ’s surname, inferred
by principal and then added to the poem for purposes of
publication, (implicating concerns re: anonymous speech),
appellate court held that the poem had been placed on plaintiff ’s
MySpace page, with her photo attached.
 Court alluded to the existence of various levels of privacy –
suggesting that perhaps transforming an online semi-anonymous
disclosure into a local, signed disclosure could be a privacy
violation after all.

Moreno v. Hanford Sentinel, Inc., continued…



Notwithstanding, speech is not really anonymous when
posted publicly, and a surname is not a private fact, if the
speaker can be identified by many due to her attached photo.
The court separately let the intentional infliction of
emotional distress claim go forward, expressing its sense
that “a jury should determine whether the alleged conduct
was outrageous,” because reasonable minds could differ as to
whether the allegations, if proven, would meet that standard.
Potential for a copyright claim?
Independent Newspapers, Inc. v. Brodie,
966 A.2d 432 (Md.App. February 27, 2009)
Appellate court ruled that 1st Amendment concerns must be
considered prior to anonymous web poster’s identity being
revealed in a defamation lawsuit. Identities being preserved were
bloggers on a local news website who had commented, among
other things, that the plaintiff ’s Dunkin’ Donuts shop was one “of
the most dirty and unsanitary-looking food-services places I have
seen.” Plaintiff had subpoenaed newspaper for disclosure of
identities of anonymous posters.
 Court based its ruling upon the N.J. Superior Court’s ruling in
Dendrite Int’l, Inc. v. Doe, 775 A.2d 756 (N.J. App. 2001). In
Dendrite, a decision since applied by other state courts, a balancing
approach was adopted pertaining to disclosure of anonymous
online writers.

Independent Newspapers, Inc. v. Brodie, continued…

Dendrite test recognizes the First Amendment protection
afforded to anonymous speech by requiring plaintiffs who sue
anonymous bloggers to overcome certain hurdles before a
court will unveil their identities. Generally, plaintiff must
show complaint that he has valid claim for defamation. If
plaintiff cannot set forth every element of lawsuit and the
facts tending to prove those elements, a court will not order
the release of the defendant’s identity. These elements
include:
 Requiring plaintiff to undertake efforts to notify anonymous posters
that they are the subject of subpoena or application for an order of
disclosure, including posting a message of notification of identity
discovery request on message board.
 Withholding action to afford anonymous posters a reasonable
opportunity to file and serve opposition to the application.
Independent Newspapers, Inc. v. Brodie, continued…
 Require plaintiff to identify and set forth the exact statements


purportedly made by each anonymous poster, alleged to constitute
actionable speech.
 Determine whether complaint has set forth a prima facie defamation per
se or per quod action against the anonymous posters.
 If all else is satisfied, balance the anonymous poster’s First
Amendment Free Speech right against strength of the prima facie
defamation case presented, and the necessity for disclosure of the
anonymous defendant’s identity, prior to ordering disclosure.
Brodie appellate court ruled that plaintiff had failed to set forth a valid
defamation claim against the John Doe defendants, and ordered that those
identities must remain anonymous.
Similar case: Swartz v. Doe, Case No.: 08-C431 (Circuit Court, Davidson
Cty. March 13, 2009) (No Written Opinion Issued) - specifically adopted
the rationale of both Dendrite and Brodie.
FEDERAL & STATE REGULATIONS
IMPACTING ONLINE
ADULT ENTERTAINMENT
Utah Transit Authority Promulgates Ordinance (with Civil Fine Structure)
for Passengers Viewing ‘Inappropriate’ Websites



On May 27, the Utah Transit Authority (“UTA”) adopted ordinance to
civilly sanction the use by its passengers of ‘inappropriate’ websites,
inclusive of pornography, gambling and gaming sites.
The first violation results in a $300.00 fine; subsequent fines can reach up
to $500.00.
UTA offers free wireless to its passengers on its commuter rail and
express bus systems – limited to passengers over the age of 18. Upon
signing on to the free UTA wireless, these adult passengers are to agree
to a set of terms and conditions, including acceptance of the UTA’s
content filtering to restrict access to “offensive sites.” The new ordinance
is designed to further police access by those capable of evading the
filtering system. The new ordinance applies only to those riders using
the UTA’s free wireless service.
Utah Transit Authority , continued…


Enforcement left entirely to the discretion of the UTA
transit cops. Appeals process ‘built in’ to UTA ordinance
structure,
with
hearing
officer
reviewing
for
‘inappropriateness’ of material.
UTA riders with downloaded images or personal wireless
cards, although not subject to the ordinance, are nonetheless
subject to a violation of a municipal/county ordinance for
“disorderly conduct,” alongside fines of $100.00.
Congressional Legislation Proposed Requiring ISPs and Wi-Fi Users to
Maintain Logs of User Activity for Law Enforcement Use



In February, Senate Bill 436 and House Bill 1076, both titled
the “Internet Stopping Adults Facilitating the Exploitation
of Today’s Youth Act,” a/k/a the “Internet Safety Act,” were
respectively introduced by John Cornyn (R-TX) and Lamar
Smith (R-TX).
The measures would impose unprecedented data retention
requirements on a broad swath of Internet access providers.
Both business and privacy advocacy groups oppose the
measures.
The bills include the following language: “A provider of an
electronic communication service shall retain for a period of
at least two years all records or other information pertaining
to the identity of a user of a temporarily assigned network
address the service assigns to that user.”
Congressional Legislation Proposed Requiring ISPs and Wi-Fi Users to
Maintain Logs of User Activity for Law Enforcement Use, continued…
The bills also add criminal penalties to child pornographyrelated offenses; increase penalties for sexual exploitation of
minors and accord additional FBI funding ($30 million) for
the “Innocent Images National Initiative.”
 Hence, the bills apply not simply to large access providers –
such as AT&T and Comcast, but to tens of millions of
homes with Wi-Fi access points or wired routers using the
‘standard method’ of dynamically assigning temporary
addresses (known as “DHCP”).

Congressional Legislation Proposed Requiring ISPs and Wi-Fi Users to
Maintain Logs of User Activity for Law Enforcement Use, continued…
The legal definition of an “electronic communication service” is
“any service which provides users thereof the ability to send or
receive wire or electronic communications.” Previously, DoJ has
adopted the position that any service “that provides others with
means of communicating electronically” qualifies under this term.
Thus, on theory, this would incorporate individuals with Wi-Fi, as
well as a wide array of businesses from the local pizza parlor to
Barnes & Noble to law firms to universities and libraries.
 The origins for such an Orwellian proposal stem from the G.W.
Bush Administration and former Attorney General Alberto
Gonzalez and FBI Director Robert Mueller. Gonzalez’s proposal,
although met with some, initial apprehension, received qualified
executive approval following the European Parliament’s approval
of a similar requirement for Internet, telephone and VoIP
providers.

Congressional Legislation Proposed Requiring ISPs and Wi-Fi Users to
Maintain Logs of User Activity for Law Enforcement Use, continued…


The Electronic Communications Transactional Records Act (ECTRA) of
1996 already regulates data preservation, requiring that Internet
providers retain any “record” in their possession for ninety (90) days
“upon the request of a governmental entity. Also, a separate federal law
requires Internet providers to report child pornography sightings to the
National Center for Missing & Exploited Children.
Prognosis over such a program being supported by the Obama
Administration? Interestingly, in 1999, Eric Holder stated that “certain
data must be retained by ISPs for reasonable periods of time so that it
can be accessible to law enforcement.” Further, Congressman John
Conyers, the present Chair of House Judiciary, has previously stated that
FBI proposals for data retention legislation would be “most welcome.”
Of course, the sponsorship of the current bills, by two (2) right-wing
GOP members of Congress (with no present, known Democratic cosponsors), may translate to neither bill making it out of subcommittee.
Ending Quotes

For decades the censors have fought to emasculate
literature. They have tried to set up the sensibilities of the
prudery-ridden as a criterion for society, have sought to
reduce the reading matter of adults to the level of
adolescents and subnormal persons, and have nurtured
evasions and sanctimonies.
--Morris L. Ernst, Forward to Ulysses (1933).

"...There is more than one way to burn a book. And the world
is full of people running about with lit matches. Every
minority, be it Baptist/Unitarian,
Irish/Italian/Octogenarian/Zan Buddhist, Zionist/Seventh-day
Adventist, Women's Lib/ Republican,
Mattachine/FourSquareGospel feels it has the will, the right,
the duty to douse the kerosene, light the fuse. Every dimwit
editor who sees himself as the source of all dreary blancmange plain porridge unleavened literature, licks his
guillotine and eyes the neck of any author who dares to
speak above a whisper or write above a nursery rhyme...."
--Ray Bradbury