For Monday’s Class 3/3

For next Monday’s Class (and a little bit of Wednesday) we will be talking about Privacy Law.  Please read Hopkin’s chapter 14 and Lisby chapter 3.  Additionally, please be prepared to discuss the following cases and privacy law texts in class:

De May vs. Roberts (1881)

Warren and Brandeis’ “The Right to Privacy” Harvard Law Review Article (1890)

William Prosser’s “Privacy” (1960)

Griswold vs. Connecticut (1964)

Loving vs. Virginia (1967)

Eisenstadt vs. Baird (1972)

Roe vs. Wade (1973)

Bowers vs. Hardwick (1986)

Time vs. Hill (1967)

Cox Broadcasting vs. Cohn (1975)

Roberson vs. Rochester Folding Box Company (1902)

Pavesich vs. New England Life Insurance Company (1905)

Zacchini vs. Scripps-Howard Broadcasting Company (1977)

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LEGAL NEWS: Rhode Island Bill Would Prevent Social Media Snooping

By Alek Matthiessen, The Brown Daily Herald, Feb 20th 2014

Many other states are considering similar bills to protect the privacy rights of individuals in the technology age.

Bill prevents employers and schools from demanding social media contact information

Senate Majority Leader Dominick Ruggerio, D-Providence and North Providence, and Rep. Brian Patrick Kennedy, D-Hopkinton and Westerly, introduced legislation to limit the information employers and schools can obtain from social media sites, according to a General Assembly press release.

The bill prohibits employers and educational institutions from penalizing an employee or student for refusing to disclose social media information, divulging the personal social media contact information of its students or employees or compelling an employee or student to divulge any information regarding their personal social media account, according to the press release.

Kennedy said he believes legislation needs to grow alongside technology, because the privacy of individuals suffers if it falls behind.  “As more and more people use social media sites, it becomes even more important that we have laws in place to ensure their privacy and prevent outside parties — such as employers and universities — from requiring access to that personal information,” Kennedy said.

“Even in an age of rampant social media and instant access to most everything, individuals have a right to share their personal thoughts with whom they choose. There must be a presumption of privacy in certain areas of social media interaction, and account holders — whether students applying to a new school or job applicants — should not be threatened or coerced into providing certain private information,” Ruggerio said, according to the press release.

Additionally, the law would allow federal regulatory agencies to access information about employees working in regulated industries, Kennedy said.

The legislation introduced by Ruggerio and Kennedy is not the first of its kind. Texas, Oklahoma, Florida and California have introduced similar privacy laws to limit the access of schools and businesses to online personal data, the New York Times reported. Some of these laws include provisions imposing punishments on people who post pornographic images online without the subject’s consent and requiring warrants for records of e-mail searches.

The primary federal law protecting students’ educational privacy, the Family Federal Educational Rights and Privacy Act, was enacted in 1974 and has not been amended since 2001, according to the website of attorney Bradley Shear, who specializes in social media privacy litigation. Though the legislation has been effective, some critics say the federal government is not doing enough to amend laws for the digital age.

Some problems with the federal legislation include its failure to account for third-party access to student information through social media sites like Facebook or Google Plus, which can lead to both privacy violations and the use of private data for financial gain, according to Shear’s website.

LEGAL NEWS: U.S. Supreme Court Considers Cell Phone Privacy

By Richard Wolf, USA Today, Jan 17th 2014 

Upon arrest, can police search your cellphone or smartphone for evidence of criminal activity, or is that an invasion of privacy?

WASHINGTON — Delving into the legal jungle of privacy and technology, the Supreme Court agreed Friday to consider two cases that test whether cellphones and smartphones can be searched without a warrant.

The cases, which could be heard by the court in April and decided by late June, involve searches performed by police that turned relatively minor traffic and drug infractions into major felony convictions. In both cases, the crucial information was found on the suspects’ mobile phones.

On one level, the cases represent an inevitable Supreme Court entry into the world of cellphones, owned by more than nine in 10 American adults. In the past few years, courts from California to Texas to Florida have split over the issue of cellphones and digital content.

On another level, the cases may be just a precursor to more expansive and potentially explosive high court inquiries. Those could include an examination of the National Security Agency’s phone and computer surveillance methods, on which two federal district judges have diverged in recent weeks.

In the past few years, the high court has ruled on the use by police of other innovations, such as GPS devices and thermal imaging. The justices generally, but not always, have come down on the side of privacy rights.

Not far behind the issue of cellphone searches is another legal conundrum: whether police can get the location of cellphone users from service providers without a warrant. Lower courts have split on that issue as well, making a Supreme Court showdown likely in the future.

THE WAVE OF THE FUTURE

Several justices have acknowledged that the clash of privacy and technology is likely to dominate the court’s docket for years to come. That’s worrisome because they live in a marble palace of ivory paper and quill pens.

“Frankly … we’re not all technologically expert,” Chief Justice John Roberts said in a speech in 2012. More recently, Justice Elena Kagan quipped, “E-mail is already old-fashioned, and the court hasn’t gotten to that yet.”

The facts about what police can do when making an arrest have been clear for 40 years: They can search the person being arrested and what’s within reach, with an eye toward weapons or evidence that could be destroyed.

Cellphones and, increasingly, smartphones that mimic computers have clouded those facts. At least six federal or state appellate courts have ruled that they are fair game; at least three others have said search warrants are required.

‘OUR MOST SENSITIVE INFORMATION’

The two cases the court will hear have reached opposite conclusions:

In U.S. v. Wurie, police opened Brima Wurie’s flip-phone to view the phone number associated with repeated incoming calls. That led them to get a search warrant for his apartment, where they seized crack cocaine, marijuana, cash, a firearm and ammunition. Wurie was convicted and sentenced to more than 20 years in prison.

The 1st Circuit appeals court reversed on two counts, ruling that the cellphone search violated Wurie’s constitutional protection against unreasonable search and seizure.

The Justice Department asked the Supreme Court to take the case, contending that “police have full authority not only to seize any object they find on an arrestee, but also to search its contents.”

In Riley v. California, a routine traffic stop led police to discover David Riley’s suspended license. They impounded his car, found two guns under the hood and arrested him for concealing weapons.

Upon his arrest and again at the police station, they searched his Samsung smartphone, including text messages, photos and video. Based on that evidence, Riley was convicted and sentenced to at least 15 years in prison; the conviction was upheld at the state appeals court, and the state Supreme Court refused to reconsider it.

“A cellphone nowadays is a portal into our most sensitive information and the most private aspects of our lives,” says Jeffrey Fisher, lead attorney for David Riley and co-director of Stanford University’s Supreme Court Litigation Clinic. “It’s also a device that is the gateway to your office, health records, bank records.”

The Pew Research Center estimates that 56% of Americans have a smartphone, 31% seek medical information on their cellphones, and 29% use them for online banking.

[Updated] For Wednesday’s Class 2/26

Hello Everyone!  For Monday’s Wednesday’s class, we will be continuing our discussion on Defamation and Libel – focusing this time on Civil Libel.  Please review Hopkins chapter 6 and Lisby chapter 2.  Additionally, please be prepared to present the following cases:

Rosenbloom vs. Metromedia (1971)

Milkovich vs. Lorain Journal (1990)

Time, Inc. vs. Firestone (1976) 

Gertz vs. Robert Welch Inc. (1974)

Curtis Publishing vs. Butts (1967)

Falwell vs. Flynt (1988) 

Rosenblatt vs. Baer (1966)

As you read these cases, please pay close attention to the different standards when it comes to Private/Public individuals, and Private/Public issues.

LEGAL NEWS: Just in time for the Academy Awards… Lawyer Portrayed in “Wolf of Wallstreet” Files $25M Defamation Lawsuit

Article By Debra Cassens Weiss, ABA Journal, Feb 2014

Image

A lawyer who says he was portrayed as a drug-using, toupee-wearing character in the Wolf of Wall Street had filed a lawsuit seeking $25 million for alleged defamation.

Lawyer Andrew Greene says he was portrayed as the character Nicky “Rugrat” Koskoff in the film, making him look like “a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics.” In addition to damages, he wants the movie to be pulled from theaters. 

Greene is currently an inactive member of the California bar and once headed the corporate finance department at securities brokerage firm Stratton Oakmont. The movie is based on a memoir by brokerage firm founder Jordan Belfort, which used Greene’s name. The movie used a different name, but Greene says it’s “readily apparent” that he is the Rugrat character, the suit says.

The movie portrays Rugrat using cocaine on company premises, facilitating money laundering, having sex with a prostitute, and shaving a woman’s head after she was offered $10,000. The movie damaged Greene’s reputation, the suit says, by portraying him as “a criminal and drug user with misogynistic tendencies.”

The film also mocks Greene’s toupee in an “egregiously offensive manner,” the suit says. The lawsuit alleges defamation, libel per se, violation of a common law right to control the commercial use of one’s image, and violation of New York civil rights law, which is akin to a publicity rights statute, according to the Hollywood Reporter.

One of Greene’s lawyers, Aaron Goldsmith, told the New York Post that Greene “worked diligently to create an environment of regulatory compliance and oversight at Stratton Oakmont.”

LEGAL NEWS: Hoffman Defamation Case Leads to Playwright Foundation

Truth and a Prize Emerge From Lies About Hoffman

Herding his three younger sons out the door to school on Feb. 5, David Bar Katz was stopped for a moment by his eldest, who was browsing the Internet.  “My 14-year-old said, ‘Dad, there’s something online about you and Phil being lovers,’ ” Mr. Katz said. “I said, ‘Phil would get a kick out of that.’ ”

Phil was Philip Seymour Hoffman, the actor and Mr. Katz’s good friend, who had been found dead three days earlier, apparently from an overdose of heroin. Mr. Katz, a playwright, was one of two people who had gone to his apartment and discovered his body.

“Things had already achieved the maximum level of surreality, and I thought this thing online was a big nothing,” Mr. Katz said.

In fact, the article, published by The National Enquirer, was the first pebble of a landslide of malignant fiction that sprawled across the web.  It quoted Mr. Katz as saying he and Mr. Hoffman were lovers who had freebased cocaine the night before his death, and said Mr. Katz claimed to have seen him using heroin many times.

“After I dropped the kids at school, I looked at my phone, and I’ve gotten a million calls,” Mr. Katz said. Photographers were stalking him on the street.

Mr. Katz had not spoken with The Enquirer that week, or ever. Mr. Hoffman had never used drugs in his presence, he said, and had spoken often with him about addiction and his pursuit of sobriety. In a matter of hours, Mr. Katz signed the complaint in a libel suit. Within two days, The Enquirer had withdrawn the article and apologized.

And on Tuesday, less than three weeks after the article was published, Mr. Katz said he had formed the American Playwriting Foundation, which will give out an annual prize of $45,000 for an unproduced play. In honor of Mr. Hoffman’s dogged pursuit of artistic truth, it will be called the Relentless Award.

The foundation and the prize are being paid for by The Enquirer and its publisher, American Media Incorporated, under a settlement of the lawsuit, said Judd Burstein, the lawyer for Mr. Katz. As part of the agreement, The Enquirer has also bought a full-page advertisement in the main news section of The New York Times on Wednesday. In it, The Enquirer says it was duped by a person claiming to be the same Mr. Katz. Mr. Burstein provided the text of the ad.

The amount of money being paid by The Enquirer will not be disclosed, Mr. Burstein said, adding, “It’s enough for the foundation to give out these grants for years to come.” On Tuesday, he formally filed papers to dismiss the lawsuit.

He noted that Mr. Katz did not receive or seek any personal payments. Mr. Katz, 48, said he was trying to figure out what a meaningful settlement would be to a person as demanding as Mr. Hoffman. “It’s so awful and ludicrous,” he said. “We had talked so often that it’s a tragedy playwrights can’t survive being playwrights — about how nice it would be if you could make your rent and still have an occasional steak.”

Besides Mr. Katz, the selection committee will include the writers Eric Bogosian, John Patrick Shanley and Jonathan Marc Sherman.

Mr. Katz said he and Mr. Hoffman met about 15 years ago through friends in the film world, but became close when their children wound up in the same Greenwich Village school. They would often stop for breakfast after the school drop-off, Mr. Katz said, and one of Mr. Hoffman’s favorite pictures was of the two of them in the Waverly diner in December 2011.

The actor’s final text messages were with Mr. Katz, inviting him to watch the second half of a Knicks game on the last evening of his life. Mr. Katz did not pick up the texts and respond until late that night, but he got no reply from Mr. Hoffman.

“The fact that he wanted me to come over for the Knick game meant that he did not want to be doing the drugs, because he never did them in my presence,” Mr. Katz said. “He once said to me, ‘Addiction is when you do the thing you really, really most don’t want to be doing.’ He was rigorously sober and had an awful relapse.”

Most galling to him about The Enquirer article was the treachery of the “Katz” figure. “The issue was never me being outraged at being accused of being gay — we’re theater guys, who cares?” Mr. Katz said. “The issue was lying about the drugs, that I would betray my friend by telling confidences.”

The Enquirer, which did not respond to a request for comment, has not publicly explained how it came to publish the story. Mr. Burstein said its lawyers described an honest mistake.

“It sounds ridiculous,” Mr. Burstein said. “They did a search and found someone named David Katz who appeared to be the son of David’s father. They asked, ‘Are you the David Katz who is the playwright?’

“They believed him. He sounded distraught. They couldn’t believe that someone would be so callous to say, ‘I’m the real David Katz.’

“From what I understand, it was one senior reporter who worked on it with some researchers. The reporter did the interview and was convinced it was the right person.”

By any measure, it is a lightning reversal of events, which Mr. Katz attributed to insistence by friends that he immediately contact Mr. Burstein. “I probably would have just ignored it and it would have gotten worse and worse and worse,” Mr. Katz said.

As part of the settlement, The Enquirer has provided Mr. Burstein with contact details for the person it interviewed. He intends to sue him. “My goal is to have him living out of a cardboard box,” Mr. Burstein said.

He paused for an instant. “I haven’t filed yet — I have to be sure that I have the right Katz.”

LEGAL NEWS: Courtney Love Wins “Twitter” Defamation Trial

From: Eriq Gardner, The Hollywood Reporter, January 24th 2014

After eight days of testimony, the singer prevails in a trailblazing case.

On Friday, a California jury decided that Courtney Love shouldn’t be held liable for a tweet directed at her former attorney Rhonda Holmes.

The case is believed to be the first trial in a U.S. courtroom involving allegations of defamation on Twitter. Holmes was hired by Love to handle a fraud case against those managing the estate of Kurt Cobain, but in 2009, the relationship between the colorful rock star and her ex-attorney went south, and Love composed a tweet that read in part, “I was f***ing devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off.”

Holmes sued, claiming the tweet had hurt her reputation.

Because the attorney was deemed to be a limited-purpose public figure as a result of her connection to a celebrity, Holmes needed to demonstrate that Love acted with malice. Love defended herself by saying she meant the tweet to be a private direct message, and when she learned it had been sent to the public accidentally, quickly deleted it.

Love also testified that she believed her message to be true when she sent it. That might have been the prevailing defense. The jury answered no to the question, “Did Rhonda Holmes prove by clear and convincing evidence that Courtney Love knew it was false or doubted the truth of it?”

Love wasn’t present for the reading of the verdict. She reportedly showed up late to court.

The trial took eight days and featured the testimony of many who knew Love. There were also social media experts who took the witness stand including one hired by Love who said there was no evidence that Love’s “bought off” tweet had ever been retweeted. Love herself testified to the jury and expressed disappointment in Holmes after the attorney had once stood by her side when nobody believed that a conspiracy had been perpetuated on Cobain’s estate.

Ultimately, the jury determined that Holmes had not made a case for defamation, meaning it will be up to another jury in some future case to figure out how to assess damages in the age of social media. In fact, it might involve Love herself as she’s facing yet another defamation trial in a lawsuit brought by fashion designer Dawn Simorangkir. This one addresses what Love had to say on Pinterest.