Analysis and Commentary on Technology Law
Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? A Federal District Judge Offers Some Answers

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist.

The Case of the Alleged Twitter Stalker: A Federal Judge Dismisses An Indictment on First Amendment Grounds

Justia columnist and attorney Julie Hilden comments on an interesting decision, issued this month by a federal judge from the U.S. District Court for the District of Maryland, regarding an indictment alleging the violation of a federal anti-harassment statute. Hilden first provides the factual background of the case—in which federal prosecutors alleged that a well-known Buddhist religious leader was being harassed, in violation of a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA). She then discusses some of the key issues the case raises, such as whether blog posts or tweets can count as harassment in violation of the statute, even if it is the alleged victim who opts to view the posts or tweets, rather than merely receiving them. With the Electronic Frontier Foundation (EFF) as an amicus, and the federal government seeking to defend a statute that is meant to protect women from harm, Hilden predicts that we have not heard the last of this dispute. She also notes that, in the age of the search engine, the line between seeking out material and coming across it has been blurred substantially, and in turn, the definition of harassment may also be blurring.

Social Networking and Airline Travel: What the Legal Consequences of an Airline’s “Meet and Seat” Program Might Be

Justia columnist and U. Washington law professor Anita Ramasastry comments on the possible legal implications of an airline’s “Meet and Seat” program, which allows passengers to find out information about other travelers, and select the person whom they will sit next to on a flight, based on Facebook profiles and LinkedIn accounts. The upside of the program is that fliers can network with each other, or even have a first date while in the air. But the downside, Ramasastry argues, may be considerable, depending on how the details of the program are fleshed out. Ramasastry anticipates possible problems with fictitious profiles, sexual and other types of harassment, discrimination, and even de facto segregation if groups decide to sit together based on race, religion, or the like. Ramasastry also points to group-then-go charters, made easier by smart phone technology, as a less problematic way to employ social networking to ensure that travelers can opt to fly with people who share their interests and destinations.

Cyberbullying on Twitter, Part One: The Anonymous Cowards

In the first of a series of columns focusing on cyberbullying, Justia columnist and former counsel to the president John Dean takes very strong issue with those who engage in this kind of online intimidation on Twitter—and, particularly, those who do so anonymously or pseudonymously. Drawing on academic studies, Dean begins by specifically describing the nature of bullying and bullies. Carefully distinguishing bullying from genuine and valid criticism, Dean notes that true bullies are often troubled personalities and considers the influences (including biological influences) and choices that play a role in the making of a bully—noting that some of the underlying conditions that influence bullying are actually treatable. He terms the cyberbully who proceeds anonymously or pseudonymously the “uber coward” among bullies, contrasting the cyberbully with the schoolyard or workplace bully. Finally, Dean invites American lawyers to share with him their legal anti-cyberbully strategies.

A Patient Sues His Dentist Over a Contractual Ban on His Posting Negative Online Reviews of Her Work: Why His Class Action Appears to Have Merit

Justia columnist and U. Washington law professor Anita Ramasastry comments on the recent controversy over doctors (and other healthcare providers) who require their patients to sign contracts stating that they will not post reviews of the doctor (or other healthcare provider) on review-and-rating websites, such as Yelp.com and the like. In addition, Ramasastry explains, a clause contained in the contracts at issue purports to transfer the patients’ copyright in any such reviews to the doctor—presumably so that the doctor can have such reviews quickly and directly taken down after they are posted. Ramasastry describes the class action lawsuit that is pending with respect to such contracts, and the allegations of a plaintiff in the suit. She also explains other kinds of challenges to this type of contract that are being made in other venues, and describes several useful websites that seek to inform patients of their rights and options when they are required by their doctor or other health-care provider to sign such a contract.

An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech

When you post an anonymous message on an Internet message board, how anonymous is it, really? Justia columnist and attorney Julie Hilden comments on a recent Illinois state court appellate decision regarding the First Amendment right to speak anonymously. The dispute at issue arose from a number of anonymous comments posted on a newspaper website's message board, and relating in part to a local election. The target of the comments sued for defamation (via his parent, as he was a minor). However, the Illinois court—after clarifying Illinois law pertaining to defamation cases involving an anonymous defendant—found that the statements at issue were not necessarily defamatory, but rather could, and should, be subject to an innocent interpretation. Hilden argues that while the court’s invocation of the innocent-construction rule here was dubious, the court was right to protect the anonymity of the message-board-poster defendant.

Dealing with E-personation: A Recent New Jersey Case Shows Why New Laws Aren’t Really Needed to Address Fake Facebook Profiles and the Like

Justia columnist and U. Washington law professor Anita Ramasastry comments on recently-enacted state laws that cover the growing occurrence of “e-personation.” As Ramasastry explains, “e-personation” occurs when thieves, scam artists, people seeking revenge, or bullies use the Internet to pretend to be someone else—either by creating a fake Facebook or web profile, or by communicating via email with third parties under a false name. She notes that the object of e-personation is often to defraud, perhaps in order to gain the target’s confidential information. Ramasastry considers whether separate e-personation laws are really necessary, and contrasts California’s and New Jersey’s respective approaches to e-personation. She argues that, in most circumstances, it is not necessary for states to pass a special law to reach e-personation, since the laws already on the books will suffice. Noting that currently, only California, New York, and Texas have separate e-personation statutes, she urges other states not to follow suit and simply enforce the laws they already have. She also discusses the possible First Amendment issues raised by some applications of e-personation laws.

Can Consumers Use Apps to Change the Terms of Online Contracts? A New End User License Agreement Opt-Out Website Offers a Clever, Valid Tool

Justia columnist and U. Washington law professor Anita Ramasastry comments on several possible ways in which users can respond when a website changes its Terms of Service (ToS) without their consent. She focuses in particular on the recent, controversial ToS changes by Sony regarding the Playstation, and by Electronic Arts, which has a new online gaming service, Origin. These ToS changes and others like them have sparked interesting responses, as Ramasastry explains: First, the website GamersOptOut.com makes it easier for users to opt out of these ToS changes (as the companies’ contracts allow) in a less burdensome way. Second, Kevin Owocki’s TOSAmend applet allows users to submit a proposed revised ToS along with their “I Agree” clicks—but, as Ramasastry notes, it’s unclear what the legal effect of Owocki’s clever applet may be. Finally, a third interesting development in this area, Ramasastry points out, is the Electronic Frontier Foundation’s Terms-of-Service Tracker, which details changes in ToS so that website users can take action.

To Honor First Amendment Rights, Cleveland and Other Cities Should Focus on Flash Mob Violence, Not Instant Messaging

Justia columnist and U. Washington law professor Anita Ramasastry comments on the Cleveland, Ohio, City Council’s recent efforts to pass ordinances that penalize the convening of flash mobs that become violent or disruptive. Ramasastry explains the City Council’s original proposed ordinance, and why the city’s mayor vetoed it, and notes that there are significant problems with the City Council’s second attempt at a flash-mob ordinance, as well. She advocates an approach that focuses on action, not speech, when it comes to flash mobs, and reminds us that the “chilling effect” of overly broad ordinances can end up stopping First-Amendment-protected speech before it starts.

Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?

Justia columnist and attorney Julie Hilden comments on defamation claims based on Twitter users’ tweets. As she explains, two such cases in recent years have involved musician Courtney Love, and another involved Kim Kardashian. Hilden points out that the Supreme Court’s constitutional law regarding defamation was devised with newspapers squarely in mind. She thus analyzes why the different context of Twitter might make a difference, legally. Among other possibilities, Hilden considers possible analogies between tweets and slander, and between tweets and Op Eds.

Should Jurors Take a “No Internet” Pledge? The Merits of One Judge’s Simple Proposal

Justia columnist and U. Washington law professor Anita Ramasastry comments on the current problem of jurors’ doing Internet searches relating to the trials on which they serve—sometimes, even if the jurors have been directly admonished not to do so. Ramasastry describes an interesting approach to the problem, used by Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York: Judge Scheindlin asks jurors to sign a written pledge not to use the Internet to research the case on which they sit. Ramasastry also describes other judges’ attempted solutions to, and experiences with, the jury-Internet-use problem—which has caused a number of costly mistrials—and the model jury instructions on the topic. She notes, however, that researchers are finding that virtually nothing will stop jurors from doing their own Internet research regarding the cases on which they sit—leading some to suggest that it may be more effective to limit, but not ban, jurors’ Internet research, as a ban will inevitably be ignored.

An End to La Dolce Vita for Italian MPs? How a Menu, Social Networking, and Budget Woes May Lead to Much-Needed Reforms

Justia columnist and U. Washington law professor Anita Ramasastry focuses on a scandal that shows how posts on social networking sites may lead to much-needed reforms. As Ramasastry explains, the Facebook page of an anonymous person who goes by “Spider Truman” has played a key role in focusing public attention on the lavish lives of Italian Members of Parliament (MPs), and their alleged corruption. With Italy now in a severe financial crisis, disclosures on the site of “Spider Truman” concerning MPs’ many perks and alleged misconduct have enraged many, Ramasastry points out. Examples include the MPs’ menu of gourmet food at heavily subsidized prices, and their alleged fraudulent expense claims. Noting that UK MPs previously were part of a similar scandal that led to reform, Ramasastry contends that social networking may be a catalyst for greater governmental openness in Italy and elsewhere.

Did News of the World Hack Phones Located in America? What the Legal Consequences May Be, If It Also Happened Here

Justia columnist and U. Washington law professor Anita Ramasastry covers an interesting angle on the still-unfolding News of the World hacking scandal: the possibility of not only British, but also U.S., civil suits and criminal charges against the hackers. As Ramasastry explains, several British celebrities, including Jude Law and David Beckham, believe that their cellphones were hacked while they were in the United States. Even more disturbingly, it is possible that the cellphones of 9/11 victims were also hacked. Ramasastry details the U.S. laws that might apply to these cases, and other potential cases in which cellphones were hacked while their owners were within U.S. jurisdiction and accessing U.S. cellular networks. Ramasastry also offers advice to ordinary Americans who want to make sure that they are protected from hacking while using their cellphones.

Recent Lawsuits Allege Illegal Downloading of X-Rated Films and Sexploitation “B” Movies: Will Their Claims Against Large Groups of Individual Consumers Succeed?

Justia columnist and U. Washington law professor Anita Ramasastry comments on a new spate of lawsuits, which are being filed by the producers of X-rated movies and "B" movies and which target persons who the producers claim downloaded these movies for free via BitTorrent. Ramasastry explains how the suits work; contrasts them with earlier suits by the Recording Industry Association of America (RIAA) against alleged music downloaders; and concludes that while the movie companies surely have the right to enforce their copyrights, several procedural aspects of these suits are very disturbing and should be addressed by the courts. Ramasastry also notes that the settlements the companies are seeking, and getting, from individuals appear to be quite high.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more