Washington woes, a Charleston charade and some hope

My January column for the South Carolina Press Association...
 
When I was a legal fellow at the Reporters Committee for Freedom of the Press we had an “outrage meter” drawn on one of the whiteboards in the reception area. The “needle” on the meter would be redrawn frequently, either towards the left or right, depending on the latest developments in media law and the perceived threats to freedom of speech and the press.

During most of my tenure, the outrage needle mainly fluctuated in the middle range. But if the Reporters Committee still has such a meter, recent developments on the national level and here in South Carolina would be pushing the needle into the red danger zone, and perhaps beyond. But there are also reminders of the importance of the First Amendment, and the role of robust media in the democratic process.

E.U. Seeks to Take Over the Internet

For a while now I and others have written and spoke about the court decision (summary) earlier this year applying the European Union's conception of the right to privacy, including "the right to be forgotten," to internet search engine results. Now, the European Union is seeking to export the concept worldwide.

Limiting Damage of EU Privacy Ruling

Google has began implementing a decision (summary) by the European Court of Justice requiring search engines to honor requests to remove links to online information about individuals that is "no longer necessary in the light of the purposes for which they were collected or processed," under the European concept of "the right to be forgotten." And it has done so in a way that limits the damage to the internet as a source of information.

Will E.U. Court's Privacy Ruling Break the Internet?

cross posted at the Digital Media Law Project
In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).

Internet Privacy, On the Radio

I was interviewed this morning on Oregon Public Broadcasting's "Think Out Loud" program on privacy on the Internet, stemming from a Bend, Ore. rape case in which the defendant is seeking the entire contents of the victim's Google search history. The audio is available at http://www.opb.org/thinkoutloud/shows/internet-privacy/.

Second Circuit Abuzz About FlyontheWall Case

On Friday morning (Aug. 6), I attended oral argument before the Second Circuit Court of Appeals in Barclays Capital Inc. v. Theflyonthewall.com, Inc., No. 10-1372-cv (2d Cir.), an appeal of a permanent injunction and an award of $12,750 in statutory damages, plus interest and attorneys' fees, to three financial research firms against a website that charged subscribers for summaries of the firms' research reports, including recommendations to buy, sell or hold securities.

A primary topic of the argument -- which, although scheduled for 40 minutes, went on for more than twice that length of time -- was the viability of the "hot news" doctrine, which the district court applied to find that Theflyonthewall improperly undercut market for the financial firms' reports.  The district court also found that the site violated the firms' copyrights.

Search Warrants in the Sky: FBI Collects Info from Google Docs

cross posted at the Citizen Media Law Project)
If you spend any time at all online, you've probably seen—and, depending on the effectiveness of your spam filters, received in your email—ads extolling the supposed virtues of acai berry, a so-called "super food" that has been a big seller for the past couple of years. (This despite the fact that, according to the Mayo Clinic and Web MD, the benefits of acai berry—other than, like other berries, as a source of generally beneficial antioxidants—are uncertain.)
 
Wired recently reported on a search warrant the FBI served on Google last year to retrieve documents stored on the Google Docs "cloud" word-processing service, in an investigation of a company named Pulse Marketing. The company allegedly sent millions of spam emails promoting and offering to sell acai berry, and had established a system to create multiple Yahoo and Gmail email addresses to send the spam.  The search warrant came to light when the FBI applied for a search warrant to examine the Yahoo email accounts.

Google Draws a Line: Will Others Follow?

In January, when Google first threatened to stop abiding by Chinese laws censoring certain "sensitive" subjects on its Chinese search portal google.cn, commentators made two points: that Google should have expected that China would, true to its nature, always demand more control over the Internet, and that Google's stance in China did not match its positions in other countries.

Now Google has announced that it has discontinued its google.cn. 

Google and the Snake

(cross posted at the National Coalition Against Censorship)  
It is, literally, an old story. In the legend of the boy and the snake, a venomous snake asks a boy for help, and promises not to bite him. When the snake bites the boy despite his help, and the boy asks why, the snake says, “because I am a snake.”

The boy in the story learns an important lesson: despite the snake’s promises, in the end the snake behaves as his nature dictates.

Google has recently learned the same lesson.

Google's "Oprah" Moment, Gwyneth Paltrow's Rave, and Two Tests for FTC's Endorsement Guides

(cross posted at the Citizen Media Law Project) 
It could have been a moment right out of The Oprah Winfrey Show.  But instead of the entire audience getting Pontiac G6s (click here for a fun mash-up video of that big event), all the reporters attending the unveiling of Google's new Nexus One mobile phone on January 5 were given a special offer: they could get one of the phones for free, or to opt for a free, 30-day trial, after which the phone will be returned (loan agreement). (The free offer is mentioned in the 1:55 p.m. posting on this Wall Street Journal live blog of the press conference.)  It appears that some other reporters who were not at the event also got the phones.

Nice gesture on Google's part, and good public relations.  But as pointed out by blogger Marshall Kirkpatrick of ReadWriteWeb, it is also a test of the newly updated Federal Trade Commission "Guides Concerning the Use of Endorsements and Testimonials in Advertising," 16 CFR Part 255 (2010) (html) (large pdf; guides start on p. 55).