Last week the Center for Democracy and Technology (CDT) made a public appeal to gain support for their campaign to reform the Electronic Communications Privacy Act’s (ECPA) outdated standards. The ECPA specifies standards for government surveillance of mobile and Internet communications. The CDT is a non-partisan, non-profit public interest organization working to protect privacy and free speech over the Internet, mobile networks and other new communications media. The ECPA was enacted on October 21, 1986, and while technology has advanced at an astonishing pace, the statute’s privacy rules have never been updated, resulting in diminished Constitutional rights when it comes to protections against government access to personal digital data. According to the CDT, the current standards do not require the government to obtain a warrant to track individuals’ movements using their mobile phones or to access many emails and documents stored on the Internet.

To advance their efforts they have created a petition to Congress to reform ECPA and invite interested parties to sign it.

For more information on digital privacy, please read the CDT’s extremely informative article entitled, Security and Surveillance, which provides an excellent synopsis of the ECPA’s history, technological changes since the ECPA was passed, Digital Due Process Coalition’s principles to guide ECPA reform and key resources supporting reform.

This month the Supreme Court of Canada issued a ruling that protects Website owners who provide hyperlinks to allegedly defamatory content from liability. The facts of the case are as follows: Wayne Crookes, a British Columbian businessman and Green Party supporter sued various websites (including Google, Wikipedia and P2Pnet.net), companies and people, alleging defamation based on their publication of a hyperlink containing defamatory information. While many of those defendants were dismissed because of jurisdictional issues, the case against P2Pnet.net carried on. Then in 2008, a district court ruled that merely linking to defamatory content is not defamatory. Crookes appealed. In 2009, an appeals court upheld the district court. Crookes then appealed to the Canadian Supreme Court who agreed to hear the case. Again, the Court found that providing a hyperlink to defamatory content is not, per se, defamatory. Rather, the majority of the court found that only links that repeat defamatory content could fulfill defamation’s publication requirement.

Please read the following well written and concise articles to learn more about the Canada’s Supreme Court decision regarding this case.

• Supreme Court of Canada Stands Up for the Internet By Michael Geist
• Canadian Supreme Court Says No Liability For Linking To Defamatory Content By Mike Masnick

In March Governor Chris Christie vetoed a bill that would have made New Jersey the first state in the country to allow online gambling within its borders. He vetoed the law for two reasons. First, he questioned the law’s constitutionality, reasoning that gambling in New Jersey is restricted to Atlantic City. Second, he feared an explosion of betting parlors throughout the state. However, New Jersey State Senator Raymond Lesniak says he will introduce online gambling legislation in November that will address Christie’s concerns and allow New Jersey to profit from the billions of dollars lost to offshore operators. According to Miles Weiss’s article, Trump Teams with Avenue’s Lasry to Pursue Online Gaming Venture, “The $6 billion that Americans wager each year through offshore sites is tempting state authorities who face budget deficits, as well as casino companies looking for new sources of growth.”

According to an October 14 regulatory filing, casino operator Trump Entertainment Resorts and real estate financier, Lasry’s Avenue Capital Group are optimistic, and have formed an Internet gaming partnership in the event U.S. regulators permit such businesses to operate. In his article, Weiss quotes Ivanka Trump, Executive Vice President of Development and Acquisitions for the Trump Organization, “[Online gambling] would be a tremendous source of taxable revenue for states or the federal government and an enormous generator of jobs.” Additionally, Wayne Parry quotes Robert Griffin, Trump Entertainment Resorts CEO, in his article Donald Trump: US Should Legalize Internet Betting, “It makes sense for the state of New Jersey to regulate this activity, enforce strict standards to ensure games are fair and safe, and in turn be able to collect tax revenue instead of having those dollars and the jobs they support leaving New Jersey and going illegally overseas.” However, history says that New Jerseyites shouldn’t start counting that tax revenue just yet, as many law makers don’t believe the benefits are worth the risks.

Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. However the states’ protection doesn’t apply when federal law is at issue. Press-citizen.com’s article entitled, Our View – Time for Congress To Pass a Federal Shield Law This Year, cites 2 significant examples: “And that means many important national stories — like that of the disgraceful treatment of wounded soldiers at the Army’s Walter Reed hospital or that of the abuse of prisoners at Iraq’s Abu Ghraib prison — leave reporters and editors at the mercy of prosecutors and judges who want the names of sources.”

Last month, U.S. Congressman Mike Pence reintroduced H.R., 2932, the Free Flow of Information Act of 2011. Also known as the Federal Media Shield Bill, this bill would establish limited federal protection from prosecutors and courts attempting to compel “covered” journalists to disclose confidential sources. The bill, authored by Pence six years ago, passed in the House of Representatives twice in 2007 and 2009; then died on the Senate floor. In 2009, while in the Senate, Barack Obama became the first U.S. president to endorse a federal shield law.

Opponents of the shield law argue that it will damage the federal government’s ability to protect national security. However, the Free Flow of Information Act of 2011 provides exceptions to the shield law for national security, the prevention of death or bodily harm, and information that is deemed essential in a criminal case or critical in a civil suit. Others argue that shield law’s exceptions negate the substance of the bill. Additionally they argue that the shield law is too weak, as evidenced by its narrow definition of “covered” journalists. The bill defines a “covered” journalist as someone who regularly reports and writes for a substantial portion of the person’s livelihood or for substantial financial gain. Thus, excluding a majority of bloggers, whom may be in a better position to report, but do not write for financial gain. Still, the Free Flow of Information Act of 2011 is better than the absence of a federal shield law. In a speech to the National Conference of Editorial Writers Convention, Pence asserted that “Compelling reporters to testify, and in particular, compelling them to reveal the identity of their confidential sources, is a detriment to the public interest. Without the promise of confidentiality, many important conduits of information about our government will be shut down.”

Please read Jason M. Shepard’s article, Bloggers after the Shield: Defining Journalism in Privilege Law, to learn more about a federal shield law and its applicability to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.

Last month a Missouri judge issued a preliminary injunction against the state, suspending the Amy Hestir Student Protection Act, because of its potential “chilling effect” on free-speech. The Act prohibited teachers from communicating privately with students over social media sites like Facebook. Shortly thereafter Governor Jay Nixon called upon lawmakers to repeal the ban in a special legislative session. Today Missouri lawmakers voted overwhelmingly to repeal the ban. However, according to David Lieb’s article, Missouri Lawmakers Repeal Teacher-Facebook Law, “the repeal went a step further by also requiring public school districts to adopt policies by March 1 on employee-student communications, including ‘the use of electronic media,’ in order ‘to prevent improper communications.’” The repeal will take effect when Governor Nixon signs it.

Please read my other articles about Amy Hestir Student Protection Act:

• UPDATE: Amy Hestir Student Protection Act: Protecting Students or Stifling Teachers?
• Amy Hestir Student Protection Act: Protecting Students or Stifling Teachers?

“Google Mistrials” refers to cases disrupted by jurors’ independent internet investigations. Specifically searches for lawyers, victims, witnesses, defendants, news articles, blogs and evidence that had been specifically excluded by the judge can lead to a “Google Mistrial.” While this is not necessarily a new phenomenon, over the past few years the immediacy and accessibility of smart phones has increased such occurrences and wreaked havoc on trials around the country.

Now a Manhattan federal judge, known for her series 2004 of opinions that established e-discovery rules, is doing something about it. According to Colin Moynihan’s article, Judge Considers Pledge for Jurors on Internet Use, this month, during a hearing, U.S. District Judge Shira Scheindlin said, “I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name.” Attempting to avoid this in her court room, Judge Scheindlin plans to write a pledge that jurors might be required to sign. According to Moynihan’s article jurors who sign the pledge will be subject to perjury charges if they conduct independent internet investigations during the trial.

Some question why a written pledge would be successful when oral instructions have failed. Instructing jurors not to use any source outside the court room to assist in deciding any question of fact is boilerplate. In his 2009 article, As Jurors Turn to Web, Mistrials Are Popping Up, John Schwartz wrote, “Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches.” Still, the number of Google Mistrials continues to grow. Apparently, Judge Scheindlin believes that jurors will be less likely to conduct independent online investigations if they affirmatively agree not to in writing. Time will tell if other judges follow suit.

To learn about actual examples of Google Mistrials, please read the following articles:

• Michael Jackson Doctor Trial Judge Warns Jurors About Discussing Case By Nick Allen
• Mistrial Declared in Mahwah Pastor’s Sex-Assault Case By Kibret Markos
• Juror’s Online Research Prompts Mistrial and a Criminal Probe By Brian Grow
• Dangers of the Online Juror By John G. Browning
• Courts In Colorado, Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research By Eric P. Robinson
• As Jurors Turn to Web, Mistrials Are Popping Up By John Schwartz
• Jurors’ Smartphones Upset the Scales of Justice By John Schwartz
• Some Thoughts on Jurors Doing Internet Research – Keep the Process Clamped Down By Evan Brown
• California Wants To Put Jurors In Jail For Tweeting About Trial By www.techdirt.com

Earlier this month I wrote an article entitled Amy Hestir Student Protection Act: Protecting Students or Stifling Teachers? detailing the problems with a new Missouri law, set to take effect on August 28^th, that makes it illegal for teachers in Missouri to use social media sites or text messaging to communicate with students. On August 19^th this law was challenged by the Missouri Teachers Association (MSTA) and the American Civil Liberties Union (ACLU) of Eastern Missouri in separate lawsuits. The MSTA suit was filed in Cole County Circuit Court against the State of Missouri, its governor, and its attorney general. The ACLU suit, filed in the U.S. District Court for the Eastern District of Missouri against the Ladue School District and members of the Missouri State Board of Education, sought class-action status on behalf of all teachers employed in the state’s school districts. On August 24^th, a Missouri judge issued a preliminary injunction against the state, suspending the law. If the provision has not been repealed by the General Assembly by October 14^th’s scheduling conference, the court will be forced to determine whether the law is substantially over broad or unconstitutionally vague.

For an exceptional explanation of the legal issues plaguing the constitutionality of this law, please read Rob Arcamona’s article, Free Speech Concerns Could Sink Missouri’s Social Networking Ban for Teachers. In addition to writing about this law’s “chilling effect” on teachers’ speech and the constitutionally-required balance of Free Speech versus student protection, Arcamona exposes the problems with potential amendments to the law that state legislators are likely to face.

Please read the following informative articles to learn more about the questionable constitutionality of banning teachers from using social media sites or text messaging to communicate with students:

• Letter From America: Teachers Sue Over Social Media Law, By Emily Badger
• Judge Blocks Ban on Teachers and Students Chatting Online, By Global Post
• Missouri Teachers Win Injuction, Allowed to be Facebook Friends with Students, By Tom Cheredar
• Judge ‘Dislikes’ Missouri Ban On Teacher-Student Facebook Friendships, By Kashmir Hill
• Missouri ‘Facebook’ Law: Judge Grants Injunction Against Limits on Online Contact Between Teachers and Students, By Ned Potter
• Missouri Teachers’ Union Sues Over Facebook “Friends” Law, By Sandy Fitzgerald

After August 28, 2011 Missouri teachers will be breaking the law if they use social media sites or text messaging to communicate with students. This is because of a new law called the Amy Hestir Student Protection Act, which is designed to protect children from being molested by teachers. According to Alan Scher Zagier’s article, Mo. Teachers Protest Social Media Crackdown, “The law was proposed after an Associated Press investigation found 87 Missouri teachers had lost their licenses between 2001 and 2005 because of sexual misconduct, some of which involved explicit online messages with students.”

Sponsor Senator Jane Cunningham, who fought for the legislation for five years, named the Act after Amy Hestir. At 13 years old, Amy was manipulated by her seventh-grade music teacher into a sexual relationship that lasted for over a year. Although Amy felt she could not come forward while the abuse was happening, at 40 years old, she bravely testified in front of the Missouri legislature to support her namesake Act before it was passed unanimously by the legislature and was signed into law by Governor Jay Nixon. During her testimony, Amy said, “I support this bill 100% and I am not afraid to tell my story even though it brought so much shame on me for so long.”

The Act has is supposed to protect children in five key ways.

1) Mandatory reporting requirements to the new investigation authority, the Children’s Division.

2) The creation of the Task Force on the Prevention of Sexual Abuse of Children  (also known as “Erin’s Law”).

3) More thorough background checks and harsher penalties for teachers found guilty of sexual misconduct.

4) The formation of a written policy providing for compulsory information sharing between districts regarding former employees.

5) The establishment of new district-level communication policies and a state-level restriction on the use of various multimedia sources.

The last section has proved to be the most controversial part of the Act. The relevant part of section 162.069 states:

Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian. Teachers also cannot have a non work-related website that allows exclusive access with a current or former student.”

The Act defines a former student as, “any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated.” Thus, under the new Act, current and former students are prohibited from using private non-work-related websites to communicate. However, many people find this restriction illogical; questioning why students and teachers are prohibited from communicating privately online or via text messaging but no prohibition exists when it comes to private communication in the classroom or via a phone conversation.

This Act also has a lot of problems when it comes to its constitutionality. In short, it is likely that this Act will not survive First Amendment and Due Process scrutiny, as it is overly vague, too broadly drafted and excessively restrictive.  For an excellent Constitutional analysis of the Amy Hestir Student Protection Act, please read Bob Buckley’s article, Law to Protect Students Will Have Unintended Consequences.

Please read the following articles to learn more about Amy Hestir Student Protection Act:

• Parkway Teacher Finds New Facebook Ban Goes Too Far, Unrealistic By Carlos Restrepo
• Senate Bill 54 Brings Changes for Students and Teachers, By Heather Speake and Jazmine Echevarria

Also, please read my previous article about Teachers and Social Media:

• Teachers’ Union Claims School District Social Media Policy Violates First Amendment

In June, Governor Bobby Jindal signed House Bill 55, introduced by Representative Ledricka Thierry, D-Opelousas, which makes it a crime for certain registered sex offenders to access social networking sites. The new law, which passed unanimously in the House and Senate, was one of 233 new laws enacted during Louisiana’s 2011 spring session. The law applies to registered sex offenders convicted of indecent behavior with juveniles, pornography involving juveniles, computer-aided solicitation of a minor or video voyeurism; or those previously convicted of a sex offense of a minor victim. First time offenders can face up to 10 years in prison without the possibility of parole and $10,000 in fines. Two time offenders can face up to 20 years in prison and $20,000 fines. While the law provides for exceptions based on the discretion of probation officers, parole officers and judges, it does not specify any procedures for obtaining said exceptions.

Now the American Civil Liberties Union (ACLU) of Louisiana has filed suit in U.S. District Court in Baton Rouge, requesting that the court ban enforcement of the law on the grounds that it violates the First Amendment right to free speech and the Fourteenth Amendment rights to equal protection and due process. The main controversy lies in the meaning of “social networking websites, chat rooms, and peer-to-peer networks.” The law defines social-networking websites as a site that allows users to create their own profiles or “offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging.” The ACLU argues this definition is so broad that it restricts access to any site where a user can read or post comments. In a press release, ACLU of Louisiana Executive Director Marjorie R. Esman stated that “Reasonable restrictions to prevent future crimes are appropriate in the interest of public safety. However, banning access to all sorts of online information, without any connection to a crime or access to children, is using a bulldozer where a trowel would do.”

According to various reports, Jindal, who was named as a defendant in the case, said, “I will fight this with everything I have. If these people want to search the internet for new victims, they can do it somewhere else.” The other named defendant, Louisiana Attorney General James Caldwell, and Rep. Thierry have not publicly commented on the suit.

The anonymous plaintiff is a registered sex offender, living in East Baton Rouge Parish. Convicted of possessing child pornography, he served four years in prison. Since his release in 2006 he has worked as a computer repair technician but will be unable to do his job under the new law’s restrictions. Additionally the new law will force him to shut down his online Veterans Association profile,  G-mail account and blog which will severely limit his ability to communicate with family, friends and fellow veterans.

While the government’s reason –- protecting children — for this ban is righteous, the law is overly vague and restrictive. The law not only bars sex offenders from using Facebook and Twitter, more reasonable targets, but it also prohibits offenders from accessing  news sites, job-search sites, email services and any site that allow users to interact and make comments. As a result it is likely that the Court will agree with the ACLU and find this law unconstitutional. It seems reasonable that a modified law that prohibits sex offenders from accessing social media sites that are specifically geared toward minors, or are known to be used by minors, is more likely to be upheld.

To learn more about Louisiana’s banning of sex offenders on social media or ACLU’s lawsuit please read the following articles:

• Louisiana Unfurls 233 New State Laws Today, By Ed Anderson
• Louisiana Senate Approves Bill to Ban Sex Offenders From Facebook, Other Sites, By Ed Anderson
• ACLU Says New Social Media Restrictions Violate Sex Offenders’ Rights, By Sabrina Freeman
• ACLU Sues to Block Enforcement of Law Limiting Sex Offenders’ Internet Access, By Michael Kunzelman

On the heals of the London riots which were exacerbated by Facebook, Twitter, and Blackberry Messaging users, the New York Police Department (NYPD) announced the establishment of a “Social Media Unit.” According to New York’s Daily News, the new unit will “track troublemakers who announce plans or brag about their crimes on Twitter, MySpace and Facebook.” Thus, the new unit will not only use social media to track down evidence and perpetrators of crimes, but it will also seek out and monitor social media in an effort to prevent potential crimes.

Assistant Commissioner Kevin O’Connor, a 23-year veteran known for his success in online sex crime policing, will manage the unit under the Community Affairs Bureau, which will also educate officers about social media and organize community outreach programs. The goal is to maximize the unprecedented access to information social media provides. This, however, is not the first time that police have used social media to solve crimes. The New York’s Daily News’s article, NYPD’s Social Media Unit Will Track Criminals On Facebook, Twitter details 3 instances where the NYPD’s use of social media has helped solve crimes:

• In March, 18 year old Anthony Collao, was fatally beaten in an anti-gay attack at a house party advertised on Facebook. Calvin Pietri, one of six arrested, bragged about the murder on Facebook.
• Also in March, an argument over a $20 loan started on Facebook and ended when 18 year old Kayla Henriques, allegedly stabbed 22 year old Kamisha Richards to death.
• In May, a junior high reunion drew hundreds of unexpected guests when the invitation went viral. During the night gunfire broke out; five people were wounded and 20 year old Dane Freeman died.

Then, in June, an overcrowded house party advertised on Facebook as “Freaky Friday” ended in a shooting that left a 20 year old Donzell Rogers dead.

It is evident that police departments throughout the country are using social media as a tool to both prevent and solve crimes. It is likely that many states will follow NYPD’s lead and institute their own “Social Media Units.”

To learn more about NYPD’s Social Media Unit, please read:

• NYPD’s Social Media Unit Will Track Criminals On Facebook, Twitter, Huffington Post
• NYPD to Scan Facebook, Twitter for Trouble, By Margaret Rock

To learn more about the recent riots in London, please read

• What’s Happening With the London Riots? By Hannah Levintova and Samantha Oltman
• London Riots: Police to Track Rioters Who Used BlackBerrys, By Josh Halliday
• As It Happened: England Riots Day Five, By Anna Browning, Vanessa Barford, Fiona Bailey and Rebecca Café
• UK Riots, guardian.co.uk

To learn more about how law enforcement uses social media to prevent and solve crimes, please read the following articles:

• Bully Beat Down on YouTube
• Social Media Plays Large Part in Egypt Uprising
• AMBER Alerts on Facebook
• The IACP Teaches Police Departments to be Social Media Savvy
• Investigators Use Social Media to Learn More About Loughner