A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) Freedom of Expression - US Courts Enjoin Congressional Controls on Web Content
(2) Privacy Cases Mixed as Secret Surveillance Powers Expanded
(3) US Courts Take Narrow View, Some Foreign Courts Take Broad View, of Jurisdiction over Net
Again in 2002, courts grappled with a range of legal disputes involving the Internet. Some of these cases involved constitutional challenges to legislation specifically addressing the Internet, with the courts rejecting Congress' efforts to regulate content on the Internet. Other important cases involved the challenge of applying traditional rules developed offline to the special character of the global digital networks. In the latter situation, often the issue resolved into one of jurisdiction - when could a court exercise jurisdiction over a content creator outside its geographic bounds? A third important category of cases involved privacy and anonymity.
Here is CDT's highly selective listing of the important judicial cases affecting the Internet in 2002 - including some pending before the US Supreme Court and not to be decided until 2003.
The Child Online Protection Act (COPA), passed in 1998, makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that is "harmful to minors" unless the person has somehow restricted access by minors (for example, by requiring a credit card number). In 1999, a federal district court held that COPA unconstitutionally burdens speech that is protected for adults and prohibited the Justice Department from enforcing of the statute. That ruling was upheld by the Third Circuit Court of Appeals and the government appealed to the Supreme Court.
In May 2002, the Supreme Court handed down a somewhat inconclusive ruling that kept the injunction in force, blocking the Justice Department from enforcing the Act. The Court returned the case to the appeals court based on flaws in that court's interpretation of the "community standards" obscenity test as applied to the Internet. The appeals court took up the case again on October 29, 2002 and the case is quite likely to go to the Supreme Court a second time in 2003.
The Supreme Court decision on COPA, ACLU v. Ashcroft, is at http://www.supremecourtus.gov/opinions/01pdf/00-1293.pdf
CDT's "friend of the court" brief after the case went back to the appeals court is at http://www.cdt.org/speech/copa/020828remandamicusbrief.pdf . For more information, see CDT's May 13, 2002 Policy Post http://www.cdt.org/publications/pp_8.11.shtml
A federal court in Philadelphia rejected as unconstitutional a law that would have required nearly every public library in America to install and use Internet filtering software. The three-judge panel unanimously ruled on May 31, 2002 that the Children's Internet Protection Act (CIPA), passed by Congress in 2000, was overbroad, and would violate the First Amendment rights of library patrons, both adults and minors. The court therefore ordered that the law not be enforced. The US Supreme Court has accepted the direct appeal on this case, with briefing set for early 2003.
The lower court decision in the case, American Library Association v. United States, can be found at http://www.paed.uscourts.gov/documents/opinions/02D0414P.HTM
For more information, see CDT's June 11, 2002 Policy Post http://www.cdt.org/publications/pp_8.14.shtml
A special Foreign Intelligence Surveillance Court of Review ruled on November 18, 2002 that the USA PATRIOT Act gave the Justice Department the authority to use in criminal cases the special and in some ways looser rules created for foreign intelligence investigations. The court, which rejected arguments made by CDT, ACLU and others in a friend of the court brief, nevertheless emphasized that the law still required a finding of probable cause to believe that the target of the surveillance was an agent of a foreign power and was engaged in terrorism or activities in preparation therefore. But oversight is difficult, as many targets are never told they were the subject of surveillance.
The court's decision is online at http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf
CDT's brief, the lower court decision and the government's briefs are available at http://www.cdt.org/security/usapatriot/implementation.shtml#surveillance
In a case concerning anonymity offline, but with implications for anonymity online and especially for spam, the Supreme Court upheld the rights of Jehovah's Witnesses to go door-to-door to talk about their faith without registering with the town first. The Supreme Court held that a municipal ordinance requiring individuals to obtain a permits with their name on them before engaging in door-to-door advocacy and to produce them upon demand violates First Amendment anonymous speech rights. The case may suggest that states and the federal government would be limited in requiring true name and address on spam, at least spam that is non-commercial.
The opinion in the case, Watchtower Bible and Tract Society v. Village of Stratton, is available online at http://www.supremecourtus.gov/opinions/01slipopinion.html
On the other hand, the Virginia Supreme Court upheld a lower court decision ordering AOL to reveal information on an anonymous subscriber. The order arose from a libel and unfair business practice claim brought in California over postings on a Yahoo! chat board. Yahoo! complied with an order from the California court and traced the posting to an AOL subscriber, but AOL resisted revealing further information. A Virginia trial court ordered the information revealed on the unfair business practice claim and the state Supreme Court upheld that decision on appeal. The actual holding of the case was fairly narrow, however - that AOL had go to the California court if it wanted to try to quash the subpoena to disclose its subscriber's identity.
The Virginia Supreme Court decision in the case, AOL v. Nam Tai Electronics, is at http://www.courts.state.va.us/txtops/1012761.txt
On December 2, 2002, a US federal appeals court heard oral argument in a case challenging a ruling by a French court that had ordered Yahoo! to block French citizens from accessing Nazi items offered for sale by third parties on Yahoo.com's auction site. The French court directed Yahoo! "to take all necessary measures to dissuade and render impossible any access via Yahoo.com to the Nazi artifact auction service and to any other site or service that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes." A lower US federal court ruled in September 2001 that the French order was not enforceable against Yahoo in any US court. The US court determined that enforcement of the French order would violate Yahoo's First Amendment rights. The court of appeals should rule in the first half of 2003.
The case is Yahoo v. La Ligue Contre Le Racisme et L'Antisemitisme, 145 F. Supp. 2d 1168 (N.D. Ca., September 24, 2001).
Appeals court brief by CDT, ACLU, and others in support of Yahoo! http://www.cdt.org/jurisdiction/020506yahoo.pdf
For more information, see CDT's May 10, 2002 Policy Post http://www.cdt.org/publications/pp_8.10.shtml and http://www.cdt.org/jurisdiction/ where you can find the French court opinion and other briefs
Allegation that Barron's magazine defamed an Australian citizen through an article posted on the magazine's web site. The High Court of Australia ruled in Glutnick v. Dow Jones & Company, Inc. that Australian courts have jurisdiction over an American publisher in large part because the publisher's website was accessible in Australia. The Australian decision raises serious concerns about Internet free speech internationally.
The Australian decision is at http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html.
In a case contrasting with the Australian and French rulings, a US federal appeals court ruled on December 13, 2002 that a Virginia prison warden could not sue two Connecticut newspapers in Virginia court over articles about the conditions in which Connecticut inmates were being held under a contract with a Virginia prison. The articles were posted on the papers' web sites. The appeals court held that the fact that the newspapers' websites could be accessed anywhere, including Virginia, was not by itself sufficient to subject them to Virginia law. In order to be hauled into court in Virginia, the Connecticut newspapers must have had the "manifest intent of targeting Virginia readers." CDT joined a "friend of the court" brief supporting the publishers.
The appeals court decision in the case, Young v. New Haven Advocate, is at http://pacer.ca4.uscourts.gov/opinion.pdf/012340.P.pdf
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 8.29 Copyright 2002 Center for Democracy and Technology
