A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2014 Fallout from NSA Surveillance Continues One Year After Snowden Revelations n June 2013, Glenn Greenwald and The Guardian reported Risen and Poitras reported that the leaked documents showed that the National Security Agency (NSA) had been conduct- that the NSA’s facial recognition programs made a leap forward ing widespread surveillance of the communications of Amer- in 2010 when analysts were able to match images from an NSA icans and foreigners. The reports were based on information database with images in a terrorist watch list database. The break- that former NSA contractor Edward Snowden disclosed to through allowed the agency to develop teams of analysts who IGreenwald. During the course of the summer of 2014, Snowden could combine various database records with the facial images. continued to provide information to journalists documenting the The reporters also explained that the NSA has developed process- widespread scope of the NSA’s surveillance efforts. Congress also es to intercept facial imagery from video teleconferences, foreign continued to consider legislation aimed at reforming the NSA’s sur- identity card databases, and airline passenger data. veillance programs. (For more on Snowden’s earlier disclosures, Risen and Poitras also noted that the NSA’s image harvesting see “Snowden Leaks Reveal Extensive National Security Agency efforts were far more comprehensive than earlier reports of other Monitoring of Telephone and Internet Communication” in the Sum- collection programs. In February 2014, The Guardian reported mer 2013 issue of the Silha Bulletin, “Snowden Leaks Continue to that the NSA had assisted its British counterpart, the Government Reveal NSA Surveillance Programs, Drive U.S. and International Communications Headquarters (GCHQ), in collecting webcam im- Protests and Reforms” in the Fall 2013 issue, and “NSA Surveil- ages from millions of Yahoo! user accounts around the world. The lance Practices Prompt Reforms and Legal Challenges Throughout program, codenamed Optic Nerve, allowed the British intelligence All Government Branches” in the Winter/Spring 2014 issue.) agency to conduct bulk collection and database storage of still images from Yahoo! webcam chats. Many of the images contained NSA Collecting Images on Internet for Facial Recognition sexually explicit images that GCHQ had trouble preventing its staff Programs from seeing. On May 31, 2014, James Risen and Laura Poitras of The New Carnegie Mellon University facial recognition technology York Times reported that top-secret NSA documents revealed that researcher Allesandro Acquisti suggested to Risen and Poitras the agency was collecting large quantities of images of people in that facial recognition programs pose important issues for privacy. the communications it intercepts. The agency was harvesting the “Facial recognition can be very invasive,” said Acquisti. “There are images for use in its various facial recognition programs. Risen and still technical limitations on it, but the computational power keeps Poitras obtained the top-secret documents that detailed the NSA’s growing, and the databases keep growing, and the algorithms keep image harvesting efforts from Edward Snowden. improving.” According to the Times story, the NSA uses software to However, the NSA defended its systematic efforts to collect the intercept “millions of images a day” from e-mails, text messages, images. “We would not be doing our job if we didn’t seek ways to social media, and other forms of online communication. The continuously improve the precision of signals intelligence activi- leaked documents also revealed that the NSA considers personal ties – aiming to counteract the efforts of valid foreign intelligence identifi ers, such as facial images and fi ngerprints, as important targets to disguise themselves or conceal plans to harm the United to identifying and tracking terrorism suspects as written and oral States and its allies,” Vines, the agency spokeswoman, told Risen communications. and Poitras. NSA spokeswoman Vanee M. Vines told the Times reporters On June 3, 2014, Bloomberg’s Chris Strohm reported that that the NSA considers images a form of communication. As a Admiral Michael S. Rogers, director of the NSA, also defended the result, the agency was required to get court approval in order to program before participants at a Bloomberg Government cyberse- collect images of Americans in the same ways the agency must get curity conference, saying that the agency adheres to legal restric- approval to look at e-mails or listen to phone calls. Vines also told tions on using facial-recognition technology on American citizens. the Times reporters that the NSA did not have access to passport “In broad terms, we have to stop what we’re doing if we come to photos or images located in state driver license databases. She the realization that somebody we’re monitoring or tracking has a declined to say whether the NSA collected Americans’ images U.S. connection that we were unaware of,” Rogers said in defense from social media web sites, such as Facebook, or from the State of the program. “We have to assess the situation and if we think Department’s photo databases of applicants for foreign visas. there is a legal basis for this and we have to get the legal authority or justifi cation.” NSA, continued on page 3 Inside This Issue Summer 2014: Volume 19, No. 3

1 Fallout from NSA Surveillance Continues One Year After 15 Supreme Court Rules Aereo Inc.’s Television Streaming Snowden Revelations Service Violates Copyright Law Cover Story Copyright

6 European Union High Court Holds That Citizens Have the 17 Verdicts Arrive in Phone Hacking Trial that Exposed “Right to Be Forgotten” from Internet Searches Questionable Practices of British Tabloid International News Media Ethics

9 Jesse Ventura Awarded $1.8 Million for Libel and Unjust 19 Update: U.S. Supreme Court Declines to Hear Reporter’s Enrichment Privilege Cases Defamation Reporter’s Privilege

11 Supreme Court Says Warrants Are Required to Search 21 Journalists Arrested During Protests in Missouri; Cell Phone Data; Possible Implications for NSA Telephony Journalists Abroad Face Dire Situations

Metadata Collection Endangered Journalists

Privacy 24 Court Rules Final Volume of CIA’s “Bay of Pigs” Historical Record May Be Withheld 13 Supreme Court Strikes State Law Creating Speech Buffer

Zones Near Abortion Clinics FOIA

Freedom of Speech 25 Near, Sullivan and the Management of Dissent in American Society Gillmor Tribute

Director’s Note

The Summer 2014 issue of the Silha Bulletin includes several articles adapted from “Global Privacy and Data Protection,” a chapter to be published in the course handbook for the Practising Law Institute’s Communications Law in the Digital Age conference, which will take place in New York City in November 2014. In addition to Silha research assistants Casey Carmody and Sarah Wiley, Patrick File, 2014-15 Silha Faculty Fellow, also provided invaluable assistance with the preparation of that chapter.

JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

SILHA CENTER STAFF JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW

CASEY CARMODY SILHA BULLETIN EDITOR

SARAH WILEY SILHA RESEARCH ASSISTANT

ELAINE HARGROVE SILHA CENTER STAFF

2 NSA, continued from page 1 Federal Privacy Watchdog Panel fi nds Foreign NSA Suggests that Data Collection Systems Are Too Surveillance Efforts Effective Complex to Prevent the Deletion of Data On July 2, 2014, The New York Times reported that the Privacy In a June 9, 2014 story, Andrea Peterson of The Washington and Civil Liberties Oversight Board (PCLOB), an independent Post reported that the NSA claimed that it could not comply with agency that Congress established in 2007, published a report on a court order enjoining the agency from deleting data because its July 1 that stated it believed the NSA’s efforts to spy on foreign In- collection and storage processes were too complex. The court ternet communications complied with American law. The PCLOB order arose from Jewel v. NSA, which pre-dated the Snowden rev- said that the NSA’s collection program “fi ts within the ‘totality elations and challenges the constitutionality of NSA programs that of the circumstances’ standard for reasonableness under the collect the telephone and Internet communications of Americans. Fourth Amendment, as that standard has been defi ned by courts Jewel et al. v. NSA et al., No. 08-cv-4373-JSW (N.D. Cal. fi led Sept. to date.” The report, endorsed by all fi ve members of the commit- 18, 2008). The plaintiffs alleged that the government had been us- tee, indicated that the PCLOB believed that the NSA’s interception ing surveillance devices authorized by Section 702 of the Amend- of Internet communications had been a useful tool in gathering ments Act to the Foreign Intelligence Surveillance Act (FISA) to intelligence to combat terrorism. The report said, “[t]he program collect information about Americans from AT&T’s network in violation of the Fourth Amendment and several statutes, includ- ing FISA, the Electronic Communications Privacy Act (ECPA), the “With the huge amounts of data that Stored Communications Act (SCA), and they’re gathering it’s not surprising to the Administrative Procedures Act (APA). me that it’s diffi cult to keep track — COVER STORY The U.S. District Court for the District of Northern California initially dismissed the that’s why I think it’s so dangerous for case for the plaintiff’s lack of standing, which was later reversed them to be collecting all this data en by the U.S. Court of Appeals for the Ninth Circuit. Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011). (For more information about the Ninth masse.” Circuit’s decision, see “U.S. Supreme Court Rejects Challenge to Federal Surveillance Law” in the Winter/Spring 2013 issue of the — Cindy Cohn, Silha Bulletin.) Legal Director, At a June 6, 2014 hearing, Judge Jeffrey White reversed his Electronic Frontier Foundation previous emergency order that would stop the NSA from destroy- ing data. The Electronic Frontier Foundation (EFF), legal counsel for the plaintiffs, requested that data collected under Section 702 of amendments to the Foreign Intelligence Surveillance Act be has proven valuable in the government’s efforts to combat terror- preserved for the case. In opposing the order, NSA Deputy Direc- ism as well as in other areas of foreign intelligence.” However, the tor Richard Ledgett said in a court fi ling that saving all the data PCLOB stated that some aspects of the NSA’s surveillance efforts would “present[] signifi cant operational problems.” Declaration of might raise privacy concerns, such as collecting communications Richard H. Ledgett, Jr., Deputy Director, National Security Agency, that contain e-mail addresses and phone numbers of a target in the Jewel et al. v. NSA et al., No. 08-cv-4373-JSW (N.D. Cal. fi led Sept. body of messages rather than in the address lines. The board noted 18, 2008). To comply, Ledgett said, the NSA would be required to that the challenges for the NSA to avoid collecting such informa- shut down many of the systems and databases used to collect and tion would eliminate important data that is useful to the agency. store information gathered under Section 702. A July 2 story by Wired’s Kim Zetter reported that the board Ledgett also suggested that the data collection and storage recommended that the agency should periodically review the systems are complex because of the privacy requirements that the interception of these types of communications in order to develop Foreign Intelligence Surveillance Court (FISC) has placed on the ways to place limits on its collection. The PCLOB also noted that NSA. He said that the collected data is dispersed among several there could be the potential for government intelligence analysts different systems and databases that have data deleted manually to examine Americans’ communications that are incidentally and automatically on a regular basis. Ledgett argued that the NSA’s swept up in searches of foreigners’ Internet communications. The attempts to save data not only had the potential to be ineffective board recommended that FISA courts should maintain oversight but could also cause signifi cant harm to national security because on these “backdoor” searches of U.S. citizens’ communications. the agency had a fi nite amount of storage. The saved data would The PCLOB’s full report is available at http://www.pclob.gov/ prevent the agency from collecting and storing new information, All%20Documents/Report%20on%20the%20Section%20702%20Pro- which Ledgett said could help prevent national security threats. As gram/PCLOB-Section-702-Report.pdf. a result of these arguments, Judge White dismissed the emergency Several privacy advocates disagreed with the PCLOB’s July order requiring the NSA to preserve data. Minute Entry: Tempo- report. Elizabeth Goitein, co-director of the Liberty and National rary Restraining Order Hearing, Jewel et al. v. NSA et al., No. Security Program at the Brennan Center for Justice, said in a July 08-cv-4373-JSW (N.D. Cal. fi led Sept. 18, 2008). The EFF has made 2 press release that the NSA’s Internet communications collection all of the documents related to the case available on its website at program was unconstitutional. “The board’s recommendations are https://www.eff.org/cases/jewel. surprisingly anemic, particularly in light of its much more robust EFF Legal Director Cindy Cohn told The Washington Post’s approach in its January report on the bulk collection of Americans’ Peterson that the government’s argument against the order was telephone records,” said Goitein. “The Board, however, endorsed troubling. “To me, it demonstrates that once the government a ‘foreign intelligence exception’ to the Fourth Amendment’s war- has custody of this information even they can’t keep track of it rant requirement that is far broader than what any regular federal anymore even for purposes of what they don’t want to destroy,” court has ever recognized.” In a July 1 post on the organization’s Cohn told Peterson. “With the huge amounts of data that they’re Deeplinks blog, EFF Legal Director Cohn wrote that the PCLOB’s gathering it’s not surprising to me that it’s diffi cult to keep track — report “gives short shrift to the very serious privacy concerns that that’s why I think it’s so dangerous for them to be collecting all this the surveillance has rightly raised for millions of Americans.” data en masse.” NSA, continued on page 4 3 NSA, continued from page 3 with public policies or criticize the government, or for exercising In a July 2 press release, Director of National Intelligence constitutional rights,” said the departments in the press release. James Clapper praised the PCLOB’s report. “In this important “Our intelligence agencies help protect America by collecting com- report, the PCLOB confi rms that Section 702 has shown its value munications when they have a legitimate foreign intelligence or in preventing acts of terrorism at home and abroad, and pursuing counterintelligence purpose.” other foreign intelligence goals,” said Clapper in a press release. The revelations of NSA spying on prominent Muslim-American “We take very seriously the board’s concerns regarding privacy leaders followed an earlier report in July that much of the informa- and civil liberties, and we will review the board’s recommenda- tion that the NSA intercepts is related to ordinary Internet users tions with care.” rather than intelligence targets. With information from Edward Snowden, The Washington Post’s Barton Gellman, Julie Tate and Government Documents Reveal Surveillance Conducted on Ashkan Soltani reported on July 5, 2014 that nine out of 10 online Prominent Muslim-American Leaders user accounts from which the NSA had intercepted communica- On July 9, 2014, The Intercept’s Glenn Greenwald and Murtaza tions were not surveillance targets. Rather, the accounts were Hussain reported that the NSA and FBI had been secretly moni- associated with regular Internet users, nearly half of whom were toring the e-mails of at least fi ve Muslim-American leaders, all of Americans, whose communications were caught while the agency whom were American citizens. The leaders include political and was collecting information about someone else. civil rights activists, lawyers, and academics. All of the leaders strongly denied that they were involved in any criminal or terror- House Passes USA Freedom Act, Senate Considers Alterna- istic activities. The information came to light after Greenwald and tive Version of the Bill Hussein’s three-month investigation of a spreadsheet titled “FISA On May 22, 2014, the U.S. House of Representatives passed the recap” found in the documents that Edward Snowden leaked. The U.S. Freedom Act. The bill, which is intended to limit the NSA’s spreadsheet contained a list of 7,485 e-mail addresses that the ability to gather bulk telephony data of Americans, underwent sev- agencies monitored between 2002 and 2008. eral changes while in the House of Representatives before facing a The Washington Post’s Ellen Nakashima wrote in a July 9 story signifi cant overhaul in the U.S. Senate. that the surveillance of the leaders was presumably conducted The initial version of the bill, introduced in the House by Rep. under FISA. However, it was unclear what the government’s justi- Jim Sensenbrenner (R-Wisc.) on Oct. 29, 2013, proposed to require fi cation for surveillance was or whether the agencies had obtained the government to get prior court approval before obtaining busi- warrants from a FISA court. Greenwald and Hussein explained ness records related to specifi c individuals. The bill also included that to conduct surveillance of American citizens under FISA, the a variety of surveillance oversight requirements, such as the cre- agencies would be required to show probable cause that the indi- ation of a special advocate who could appear before the Foreign viduals were “agents of an international terrorist organization or Intelligence Surveillance Court (FISC) to advance concerns over other foreign power” and that they were involved in illegal activity. civil liberties, as well as requirements for greater public disclosure Unnamed government sources told the reporters that the govern- about the FISC’s approval of the number and types of intelligence ment conducted surveillance without a warrant on at least one of agencies’ secret requests to gather information. The bill went the fi ve identifi ed Muslim-American leaders. to the House Judiciary Committee for review. On the same day, Greenwald and Hussein also noted that a majority of e-mail Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) also addresses in the “FISA recap” spreadsheet did not have a name introduced the USA Freedom Act in the U.S. Senate. (For more attached to the address. However, the document contained other information about the USA Freedom Act, see “NSA Surveillance information, such as nationality. The journalists found that 202 of Practices Prompt Reforms and Legal Challenges Throughout All the e-mail addresses were listed as belonging to “U.S. persons,” Government Branches” in the Winter/Spring 2014 issue of the Silha while 1,782 e-mails appeared to belong to “non-U.S. persons.” The Bulletin.) remaining e-mails did not have a nationality designation. The In- Initially, the USA Freedom Act competed with another proposal tercept’s full story is available at https://fi rstlook.org/theintercept/ for reform, titled the FISA Transparency and Modernization Act article/2014/07/09/under-surveillance. of 2014 (FISA TMA), introduced by House Intelligence Committee The revelation that several American Muslim leaders had Chairman Mike Rogers (R-Mich.) and Rep. C.A. Dutch Ruppers- been the subject of NSA and FBI surveillance prompted a swift berger (D-Md.) on March 25, 2014. However, the House Intelli- response from 45 civil rights, human rights, privacy rights, and gence Committee decided to abandon FISA TMA and approve the faith-based organizations. In a letter sent to the White House on USA Freedom Act on May 8, 2014 after the House Judiciary Com- July 9, organizations, such as the American Civil Liberties Union, mittee had made changes to the latter bill. The changes included Amnesty International, Brennan Center for Justice, Human Rights the Judiciary Committee’s decision to strip the plan to create the Campaign, and the Council on American-Islamic Relations, among special advocate who would appear before the FISC on behalf others, called upon the Obama administration to explain to the of the public. The committee also removed language from the public why the agencies were conducting surveillance on the bill that could potentially have limited the FBI’s ability to request Muslim-American leaders. The organizations also called upon the bulk telephony metadata only to instances when it had an open Obama administration to strengthen the Department of Justice’s investigation. The House Intelligence Committee unanimously (DOJ) “Guidance Regarding the Use of Race by Federal Law En- approved the updated USA Freedom Act, which had also received forcement Agencies” by banning criminal profi ling on the basis of unanimous approval from the House Judiciary Committee the religion and closing loopholes allowing racial profi ling in relation previous day. to national security. A copy of the letter is available at https://www. On May 20, The New York Times’ Charlie Savage reported that aclu.org/national-security/civil-rights-groups-ask-administration- after the committees’ approval, the Obama administration asked explain-nsa-surveillance-american-muslims. Democratic and Republican party leaders in the House for addi- In a joint statement on July 9, the Offi ce of the Director of Na- tional changes to the bill. One of the primary points of negotiation tional Intelligence (ODNI) and DOJ denied that intelligence agen- between the party leaders and the Obama administration focused cies had conducted any surveillance illegally. “It is entirely false on terminology. The USA Freedom Act proposed to limit govern- that U.S. intelligence agencies conduct electronic surveillance of ment investigators’ data access to searches that used a “specifi c political, religious or activist fi gures solely because they disagree selection term.” Under the House Judiciary’s and Intelligence Com-

4 mittee’s drafts of the bill, the defi nition of “specifi c selection term” version proposed to end the governments’ ability to collect busi- was “a term used to uniquely describe a person, entity or account.” ness records in bulk much like the House version of the bill. The After the negotiations, House leaders accepted the administra- New York Times reported on July 24 that Leahy’s new bill included tion’s proposal to change the defi nition of “specifi c selection term” several changes to the version that the House passed in May, how- to mean “a discrete term, such as a term specifi cally identifying a ever. The bill’s new language included a provision that once again person, entity, account, address, or device, used by the Govern- required the appointment of a special privacy and civil liberties ment to limit the scope of the information or tangible things” that advocate who could appear before the FISC on behalf of the pub- the government sought. Savage wrote that the administration lic. Leahy’s version of the bill also allowed companies to publicly argued for this change in defi nition because the bill’s language cre- announce that they had received a FISA order requiring them to ated limits on the bulk collection of any type of business records, not just telephony metadata. The Obama administration suggested that without a defi nition change, the bill could hamper government “The USA Freedom Act bans bulk authorities’ normal investigation techniques, such as requesting the telephony metadata collection, includes names from a hotel check-in log, when collecting various business important privacy provisions and sends records. The changes to the USA Freedom Act prompted several privacy a clear message to the NSA: We are rights organizations that had approved of the committees’ ver- watching you.” sion of the bill to withdraw their support. Senior Counsel for the Center for Democracy and Technology (CDT) Harley Geiger told — Rep. Jim Sensenbrenner (R-Wisc.) the Times’ Savage that a change in defi nition of “specifi c selec- tion term” would allow the government to collect large amounts of information as long as it specifi ed some type of limit. “The disclose data to the government after a one-year period, rather government has shown remarkable capacity to creatively interpret than the two years that the House bill established. The Senate’s terms that appeared clear, like ‘relevant,’ and this defi nition is USA Freedom Act also changed the defi nition of “specifi c selection ambiguous enough that it allows, if not entire-population-scale col- term.” Under the new defi nition, a term must “narrowly limit the lection, large-scale collection,” Geiger told Savage. Mark Jaycox, scope of tangible things sought to the greatest extent reasonably Nadia Kayyali, and Lee Tien of the EFF also criticized the changes practicable.” The defi nition also prohibited the search term from to the bill in a May 20 post on the organization’s Deeplinks blog. being “based on a broad geographic region, including a city, [s]tate, “Congress has been clear that it wishes to end bulk collection, but zip code, or area code.” given the government's history of twisted legal interpretations, this An Aug. 4, 2014 Bloomberg BNA story reported that Sen. Leahy language can't be relied on to protect our freedoms,” they wrote. had developed the language of the new USA Freedom Act after Despite the objections of privacy organizations, the House negotiations with the NSA, FBI, Department of Justice and Offi ces passed the revised USA Freedom Act in late May on a 303-to-122 of the Director of National Intelligence. The Times’ July 24 story bi-partisan vote. In a May 22 press release, Rep. Sensenbrenner, also reported that Leahy had consulted several privacy advocate the original sponsor, praised the passage of the bill but expressed groups on the language for the updated bill. The Senate did not some disappointment over the changes to it. “While I wish it more consider Leahy’s proposed legislation prior to a Congressional closely resembled the bill I originally introduced, the legislation break during August 2014. passed today is a step forward in our efforts to reform the govern- Several privacy advocate groups supported the revised USA ment’s surveillance authorities,” he said in the statement. “It bans Freedom Act bill. In a July 29 press release, Director of the bulk collection, includes important privacy provisions and sends a ACLU’s Washington Legislative Offi ce Laura W. Murphy said clear message to the NSA: We are watching you.” that the new bill was an improvement in placing constraints on However, Andrea Peterson of The Washington Post reported government surveillance. “We commend the Senate Democratic on May 22 that many of the votes against the legislation came and Republican co-sponsors of this version of the USA Freedom from the bill’s co-sponsors. Rep. Jared Polis (D-Colo.), one of the Act, which signifi cantly constrains the out-of-control surveillance co-sponsors who voted against the USA Freedom Act, released a authorities exposed by Edward Snowden,” Murphy said in the statement on May 22 saying, “Unfortunately, the USA Freedom Act, statement. “While this bill is not perfect, it is the beginning of the which I cosponsored as introduced, has been watered down and real NSA reform that the public has been craving since the Patriot co-opted to the point that it creates the possibility that NSA could Act became law in 2001.” On the same day, CDT President and misuse the bill — contrary to the legislative intent — to conduct CEO Nuala O’Connor said in a press release that the new bill was broad searches of communication records.” an improvement over the House’s version. “This new version of the Reform Government Surveillance, a coalition of leaders from USA FREEDOM Act would be a signifi cant step forward in protect- several technology companies including Google, Facebook, Apple ing Americans from unnecessary and intrusive NSA surveillance,” and others, also penned an open letter on June 5 criticizing the O’Connor said in the release. “We encourage the Senate to pass House bill and requesting the Senate to strengthen the proposed this bill as is, and the House to quickly follow suit without weaken- legislation. “The version [of the USA Freedom Act] that just passed ing the bill.” Bloomberg BNA’s August 4 story reported that several the House of Representatives could permit bulk collection of Inter- other groups had backed the new bill, including the Reform net ‘metadata’ (e.g. who you email and who emails you), something Government Surveillance coalition, the Open Technology Institute, that the Administration and Congress said they intended to end,” Software & Information Industry Association (SIIA), the Computer wrote the group. “As the Senate takes up this important legislation, and Communications Industry Association, and the Information we urge you to ensure that U.S. surveillance efforts are clearly re- Technology Industry Council. stricted by law, proportionate to the risks, transparent, and subject Although groups praised Leahy’s bill as an important fi rst step to independent oversight.” to reforming surveillance, privacy rights organizations argued that The Washington Post reported on July 29, 2014 that Sen. Leahy the bill did not go far enough. The EFF’s Nadia Kayyali noted in a introduced a new version of the USA Freedom Act before the July 29 post on the organization’s blog that although the proposed Senate had signifi cantly considered the House’s bill. The updated legislation created several important restrictions on government

NSA, continued on page 6 5 European Union High Court Holds That Citizens Have the “Right to Be Forgotten” from Internet Searches n May 13, 2014, the Court al, made to Spain’s national data-protection The AEPD dismissed the complaint of Justice of the European agency, Agencia Española de Protección against La Vanguardia because the agency Union (CJEU) held that Euro- de Datos (AEPD). Costeja González fi led found that the newspaper had published pean citizens retain the right his complaint with the agency after he the information in accordance with the law. to have online search results found that a Google search of his name However, the AEPD upheld the complaints deletedO that link to information about would provide links to news stories on against Google Spain and Google Inc. The themselves. Case C-131/12, Google Spain the Spanish newspaper La Vanguardia agency said that the Google companies SL, Google Inc. v. Ediciones SL’s web sites. The stories from were required to adhere to the EU’s 1995 INTERNATIONAL Agencia Española 1998 provided information about a real Data Protection Directive. As a result, the NEWS de Protección de estate auction that Costeja González used AEPD directed the companies to remove Datos (AEPD), Ma- to pay for social security debts he owed the information about Costeja González rio Costeja González, ECLI:EU:C:2014:317 the government. In the complaint, he asked from its search results. Google Spain and (May 13, 2014), available at http://curia. the agency to require La Vanguardia to Google Inc. appealed the agency’s deci- europa.eu/juris/liste.jsf?num=C-131/12. The delete or alter the information about him sion to Spain’s National High Court, which court’s decision required Google, and other found on the web pages. Costeja González referred the issue to the CJEU. similar search engines, to grant individu- also asked the agency to require Google The CJEU decision focused on several als’ requests to remove links to third-party Spain or Google Inc. to delete or conceal issues from the Spanish high court. First, web pages that are found in search results his personal information as well as the the CJEU held that Google was considered when searching an individual’s name. Some links that appeared in search results relat- both a “processor” and “controller” of commentators have opined that the CJEU’s ing to the La Vanguardia stories. Costeja personal data under the Data Protection ruling suggests that the court is endorsing González argued that his fi nancial matters Directive. The court found that Google the “right to be forgotten.” had been resolved, which made the infor- effectively recorded, collected, organized, The case involved a 2010 complaint that mation found on La Vanguardia’s web site stored, and disclosed data, which made Mario Costeja González, a Spanish nation- irrelevant.

NSA, continued from page 5 the measure to limit such searches as an look forward to other elected offi cials surveillance, the USA Freedom Act did not amendment to the 2015 defense appropria- standing up for our right to privacy.” limit the government’s use of Section 702 tions act on a 293-123 bi-partisan vote. However, Ellen Nakashima and Andrea of the FISA Amendments Act to justify In- Rep. Thomas Massie (R-Ky.), along with Peterson of The Washington Post reported ternet communication surveillance. Kayyali several co-sponsors, including Rep. Jim on June 20 that several leaders of the also explained that the USA Freedom Sensenbrenner, who sponsored the House House Intelligence Committee and House Act did not affect Executive Order 12333, version of the USA Freedom Act, offered Judiciary Committee, which oversee issues which the government has used to justify the amendment in the House. Rep. Massie’s related to intelligence agencies, opposed surveillance on both foreign individuals amendment also prohibited intelligence the amendment. Bloomberg BNA’s June 30 and U.S. citizens abroad. agencies from using funds to request that story reported that House Judiciary Chair- House Intelligence Committee Chair- technology companies alter their products man Bob Goodlatte (R-Va.) suggested that man Rogers also criticized Leahy’s bill in or services to make surveillance easier. the amendment would undermine the pre- a statement sent by his staff to Bloomberg Senior Director of Public Policy for the viously House-passed USA Freedom Act be- BNA on August 4. “The House-passed SIIA David LeDuc told Bloomberg BNA cause the amendment had not considered USA FREEDOM Act represents a care- in a June 30 story that the amendment the careful negotiations of the surveillance fully crafted balance between security and helped provide surveillance safeguards and reform bill. Rep. Adam Schiff (D-Calif.), a privacy which the White House ‘strongly' protected technology companies’ ability member of the House Intelligence Commit- supported,” Rogers told Bloomberg BNA. to compete around the world. “This vote tee, also told The New York Times’ Charlie “[The new bill] disrupts that balance by demonstrates that members of Congress Savage on June 20 that he opposed the bill taking away fl exibility from and imposing are taking very seriously, and seeking to because the amendment was not tailored to signifi cant operational constraints on the balance with national security objectives, properly provide exceptions for a search of Intelligence Community.” the need to ensure that U.S. IT products previously collected surveillance informa- are not put at a disadvantage in markets tion in emergency situations, among other House Passes Amendment to Limit around the world,” said LeDuc. “Achieving reasons. Surveillance “Backdoor Search this balance is a critical objective for the The overall prospects for the amend- Loophole” U.S. IT industry and the U.S. economy as ment remain unknown, as it will be On June 19, 2014, the U.S. House of a whole.” Mark Rumold, staff attorney for considered next in the Senate as part of the Representatives voted to prevent the NSA the EFF, said in a June 19 statement on overall defense appropriations legislation. from conducting warrantless searches of the organization’s Deeplinks blog that the Americans’ communications that are gath- House had taken action to protect privacy. CASEY CARMODY ered pursuant to surveillance of foreigners, “[T]he House of Representatives took an SILHA BULLETIN EDITOR otherwise known as a “backdoor search important fi rst step in reining in the NSA,” loophole.” In a June 20 story, The New York said Rumold. “We applaud the House for Times reported that the House approved taking this important fi rst step, and we

6 Google a “processor” as defi ned under the ing [of a Google Internet search] enables subject’s request that links to information data protection directive. Google argued any [I]nternet user to obtain through the be removed. The court also stressed that that it did not fall under the directive’s defi - list of results a structured overview of the when government data protection agencies nition of a “controller” of the data process- information relating to that individual that are considering whether requests for the ing because search engines do not have can be found on the [I]nternet — informa- removal of search result links should be knowledge or working control over the tion which potentially concerns a vast enforced, the data subjects’ fundamental data it provides from third-party web sites. number of aspects of his private life and rights to privacy typically override both But the CJEU rejected Google’s arguments which, without the search engine, could the economic interest of search engine fi nding that the Data Protection Directive’s not have been interconnected or could operators and the public’s interest in hav- intent was to maintain a broad defi nition of ing the information “controller” of data processing. The court available. However, noted that search engines play an impor- “The Internet is a wonderful thing. It the court did state tant role in disseminating personal data on- allows us to know what is going on in that some excep- line. Because of this role, the court found the world and I don’t want to see people tions could occur, that it would be incompatible with the Data especially if the Protection Directive’s guarantees of data effectively going through it to weed out data subject plays protection to consider search engines to the truth.” an important role fall outside of the defi nition of a “control- in public life for ler” of personal data. — London Mayor Boris Johnson which particular Google also argued that the Data information should Protection Directive did not apply because remain available. In Google Inc.’s data indexing and storage have been only with great diffi culty — and addressing the specifi c case at hand, the processing did not actually occur in Spain. thereby to establish a more or less detailed CJEU determined that Costeja González’s The primary business purpose of Google profi le of him,” wrote the CJEU. request that Google delete search result Spain, a subsidiary of Google Inc., was to The court noted that a fair balance links to the stories about his social security promote and sell advertising for should be struck between the public’s debts should be honored. Google.com. Thus, no data processing legitimate need of information and a data After the decision was released, com- occurred in Spain, which relieved Google subject’s right to privacy. To strike the right mentators suggested that the CJEU’s from being required to adhere to the data balance, the court said that EU govern- decision now allows Europeans to hinder protection directive, the company argued. ments must consider the importance of the ability of others to gather information. The CJEU rejected this argument, reason- the public having information about an Financial Times reporters Alex Barker ing that Google Spain’s advertising revenue individual against the potential impact and James Fontanella-Khan wrote in a May made the search result functions of Google that the information will have on the 13 story that the decision also puts search economically viable. As a result, the court subject’s private life. In most cases, the engine operators in the position of making found that Google Spain’s activities were court thought the subject’s fundamental determinations of what information is in performed “in the context of” Google Inc.’s right to privacy should outweigh the public the public interest when receiving requests search engine data processing under the availability of private information in online to delete particular links, particularly when Data Protection Directive. The fi nding search results. Through this analysis, the the operators choose to remove informa- meant Google Inc. was required to adhere CJEU found that a search engine was tion. On May 14, Mark Scott of The New to the Directive because of the establish- obligated to remove links to information York Times wrote that besides search en- ment of its business in Spain through on third-party pages when an individual’s gine operators determining when to delete Google Spain. name is the search subject even though the information, the court gave little guidance The CJEU next determined whether the actual publisher was not required to delete on how data privacy protection agencies Data Protection Directive required Google the information. should apply the ruling. Data protection to remove links to information published The fi nal issue the CJEU addressed regulators in the different European Union on a third-party web site that appeared was whether the Data Protection Directive member countries could hold signifi cantly in the search results of a person’s name. allowed data subjects to demand that links different views in applying the decision. Google argued that requests for informa- be removed from search results on the With the likelihood of different agency tion removal should be directed at third- basis that the information was prejudicial interpretations of the CJEU’s decision, data party publishers because the publishers or that they wished the information to be subjects could potentially shop for friendly have the best ability to determine whether “forgotten” after a length of time. Google’s jurisdictions in order to make removal the information should be available to the argument was that information should only requests. The Times of London reported public. The CJEU again rejected Google’s be removed if the data processing was in on June 17 that the mayor of London, Boris arguments, noting that the Data Protection violation of the Directive or for other com- Johnson, specifi cally criticized the court’s Directive sought to ensure a high level of pelling reasons, not because the individual decision saying that it could hinder the protection for the privacy of personal data. wanted the information to be “forgotten.” public from having information. “The In- The court explained that search engines The court explained that information that ternet is a wonderful thing,” said Johnson. have a signifi cant ability to interfere with is lawfully processed could eventually “It allows us to know what is going on in individuals’ privacy rights because of the become incompatible with the Data Protec- the world and I don’t want to see people vast amounts of information that can be tion Directive over time when the informa- effectively going through it to weed out the found about an individual through an on- tion becomes “inadequate, irrelevant or no truth.” line search. A compilation of information longer relevant, or excessive in relation to In a May 14 op-ed in The New York that could infringe on an individual’s right the purposes of the processing and in the Times, Jonathan Zittrain, a Harvard profes- of privacy is far easier to create through light of the time that has elapsed.” In such sor of law and computer science, noted the use of Internet search engines than situations, the operator of a search engine that the CJEU’s ruling was narrow in one without such a tool. “[S]ince that process- can be required to comply with a data EU Court Ruling, continued on page 8 7 EU Court Ruling, continued from page 7 that it had removed a link to one of his blog “Neither the 1995 Directive, nor the CJEU’s posts from 2007 about Merrill Lynch execu- interpretation of it, refl ects the incredible respect, however. The court did not state tive Stan O’Neal. On July 4, The Guardian’s advance in technology that we see today,” that information about a data subject need- Matthew Weaver reported that in an inter- said Baroness Prashar in the statement. ed to be removed from a web site. Rather, view Peston conducted with Google’s Eu- “We believe that the judgment of the the decision only required that links listed ropean Director of Communication Peter Court is unworkable. It does not take into in search engine results upon searching a Barron on BBC Radio 4’s “Today” program, account the effect the ruling will have person’s name must be removed. Individu- Barron told Peston that Google was still on smaller search engines which, unlike als could still fi nd the names of data sub- learning how to implement the ruling. “It is Google, are unlikely to have the resources jects as well as the specifi c information by clearly a diffi cult process. We are commit- to process the thousands of removal re- going directly to the web site that originally ted to doing it as responsibly as possible,” quests they are likely to receive.” Baroness published it. said Barron. “We are learning as we go. I’m Prashar also noted that it was problematic The BBC reported on May 15 that sure we will get better at it and we are very to allow search engines to make deci- hundreds of people made requests to have sions as to whether information removed from Google’s search they would delete index in the days immediately following “We believe that the judgment of the information “based the ruling, including a former politician Court is unworkable. It does not take on vague, ambigu- seeking re-election, a doctor looking to ous and unhelpful remove links to negative reviews from pa- into account the effect the ruling will criteria.” tients, and a man convicted of possessing have on smaller search engines which, Legal observers pictures of child abuse. By the end of May, have also noted a Google had created an online form to han- unlike Google, are unlikely to have the variety of challenges dle the deluge of requests. On May 30, The resources to process the thousands that the CJEU’s New York Times reported that the form of removal requests they are likely to decision could pose. received more than 12,000 requests shortly Mark Sableman, a after its launch. Google’s form required receive.” partner at Thomp- users to submit links that they wanted re- son Coburn LLP, moved as well as photo identifi cation and a — Baronness Usha Prashar, wrote in a June 6 reason why the link should be removed. By Chairman of the Lords Select Committee post on the fi rm’s July 2014, Google had received more than Internet Law Twists 70,000 requests to remove links, according keen to listen to the feedback.” Addition- and Turns blog that the CJEU’s ruling could to The Guardian. ally, The Telegraph reported on August 15 affect the operations of Internet publish- However, The Sunday Times of London that its website would maintain an up-to- ers in the future. “By ruling on Google reported on June 6 that Google was not date list of its online content that Google searches, a ubiquitous and central feature granting all requests to remove informa- has removed links to in search results. of the Internet, the Court sent a message tion. Google had denied the requests of The list is available at http://www.tele- to everyone about its concern about the some public fi gures maintaining that the graph.co.uk/technology/google/11036257/ privacy-free expression balance,” wrote CJEU’s ruling did not extend to such indi- Telegraph-stories-affected-by-EU-right-to- Sableman. “To oversimplify, because the viduals, according to The Sunday Times. be-forgotten.html. [CJEU’s] decision speaks to Google, the Offi cials at Google also said that it would On July 30, 2014, The Guardian king of the Internet, it also speaks to all refuse to remove search links about private reported that the British House of Lords’ Internet publishers, and tells them to come individuals if the information is relevant to Home Affairs, Health and Education EU armed with good justifi cations, not just the public, such as recent criminal offenses Sub-Committee published a report that was habit and technological capabilities, for or reports of disciplinary procedures, the critical of the CJEU’s ruling in May. In the what they publish and make available.” newspaper reported. report, the committed suggested that both Tanguy Van Overstraeten and Richard In May 2014, Google formed an advisory the ruling itself and the Data Protection Cumbley, attorneys at Linklaters LLP in panel that consisted of various technology Directive were problematic. The commit- Brussels, explained in a May 28 analysis of company executives, privacy experts, regu- tee described the “right to be forgotten” as the case in Bloomberg BNA’s World Data lators, and academics to discuss and issue “misguided in principle and unworkable in Protection Report that the court’s decision a report on how the CJEU’s ruling might af- practice.” The committee concluded that could affect businesses besides search fect the way Google can provide its search “neither the 1995 Directive, nor the Court's engines. “Whether this ‘right to be forgot- results to users throughout the world. On interpretation of the Directive, refl ects the ten’ is specifi c to search engines or extends June 26, Charles Arthur of The Guardian current state of communications service to other businesses is unclear, but this reported that Google also began including provision, where global access to detailed development should be watched carefully a disclaimer on its European sites stating, personal information has become part of in certain sectors, such as credit reference “Some results may have been removed un- the way of life.” The committee’s report agencies and social media,” wrote Van der data protection laws in Europe,” when also made a recommendation “that the Overstraeten and Cumbley. user searches include individuals’ names. Government should ensure that the defi ni- The Guardian reported in July 2014 tion of ‘data controller’ in the new [propos- that links to several stories on British news CASEY CARMODY als for EU Data Protection] Regulation is organizations’ web sites, including The SILHA BULLETIN EDITOR amended to clarify that the term does not Guardian, Daily Mail, and BBC, had been include ordinary users of search engines.” deleted. The organizations complained to The chairman of the committee, Baron- Google, which later re-instated the links. ess Usha Prashar, said in a July 30 Lords Robert Peston, the economics editor for Select Committee statement that the “right the BBC, said that Google had “cast me to be forgotten” created several problems. into oblivion” after Google notifi ed him 8 Jesse Ventura Awarded $1.8 Million for Libel and Unjust Enrichment n July 29, 2014, after six days and unjust enrichment. Ventura claimed Trial briefs were submitted in April 2014. of deliberation, a federal jury that a Google search found “more than According to his trial brief, Ventura argued awarded former Minnesota 5,300,000 results, including news articles, that the event recounted in American Snip- Gov. Jesse Ventura $1.845 videos, and blogs that repeated the defama- er never happened and that “Kyle intended million in his lawsuit against tory statements and accusations.” The com- to infl ict a vicious and deliberate assault on OAmerican Sniper author Chris Kyle’s es- plaint stated the alleged incident seriously [Ventura’s] character and reputation, and to tate. The jury found that Ventura proved his injured his reputation and undermined turn the SEAL community and Americans claim of defamation and awarded $500,000 Ventura’s “future opportunities as a political against him.” The brief stated that before in damages. The candidate, political communicator, author, the book was published, Ventura was often jury also found that speaker, television host and personality.” asked to speak at SEAL events, including DEFAMATION Kyle’s estate had Kyle died as a result of gunshot wounds SEAL graduation ceremonies, but had not been unjustly en- in February 2013. His wife, Taya Kyle, was been invited since the publication of the riched and awarded appointed as the executrix of the estate book. The brief also argued that because $1,345,477 to Ventura. and was substituted as the defendant in the of the defamatory statements, Ventura had In January 2012, William Morrow, an case. lost the respect he once had from the SEAL imprint of Harper Collins Publishers, On March 19, 2014, U.S. District Court community, thus tarnishing his reputation. published American Sniper: The Autobi- Judge Richard Kyle (no relation to the In addition, Ventura’s brief argued that ography of the Most Lethal Sniper in U.S. defendant) declined to grant summary judg- Kyle misappropriated Ventura’s name and Military History, by former Navy SEAL ment in the Kyle estate’s favor on Ventura’s likeness without Ventura’s consent to gain sniper Chris Kyle. The book reached num- defamation, misappropriation, and unjust publicity for the book. Legal claims for mis- ber one on The New York Times’ Bestsellers enrichment claims. The court ruled that appropriation of name and likeness were list on January 29, 2012. Included in the there was suffi cient evidence for a jury fi rst recognized by the Minnesota Supreme book and at the center of the lawsuit was to conclude that Kyle’s story was materi- Court in Lake v. Wal-Mart Stores, Inc., 582 a subchapter titled “Punching Out Scruff ally false and that Kyle published his story N.W.2d 231 (Minn. 1998). Face.” The subchapter recounted an alleged with actual malice, meaning that Kyle had Ventura also argued that Kyle’s estate 2006 incident that occurred between Kyle published the information with knowledge had unjustly benefi ted from Kyle’s de- and Ventura at McP’s Irish Pub in Coronado, of its falsity or with reckless disregard of famatory statements about Ventura. Unjust Calif., where a group of Navy SEALs were the truth. Judge Kyle set a trial date for July enrichment is an equitable doctrine that attending a wake at the same time Ventura 2014. provides a remedy where another party was attending a reunion gathering of Navy The trial attracted signifi cant attention knowingly received something of value to underwater demolition team members. Kyle from free speech advocates and media law which he was not entitled, and the circum- wrote that numerous people were at the professionals. Mark Anfi nson, a lawyer stances are such that it would be unjust for bar including an older celebrity SEAL, who and lobbyist for the Minnesota Newspaper that person to retain the benefi t. Schum- he identifi ed by the moniker “Scruff Face.” Association and an adjunct professor at the acher v. Schumacher, 627 N.W.2d 725, 729 Kyle wrote that Scruff Face made offensive University of St. Thomas in St. Paul, Minn., (Minn. Ct. App. 2001). The brief argued the remarks about the SEALs, their service in told the Star Tribune in a July 9, 2014 story publicity received from the false story and the Iraq war, and President Bush, includ- that the case was “one of the most impor- defamatory statements contributed to the ing that the SEALs were “killing men and tant First Amendment cases in recent Min- book’s success. women and children and murdering” in Iraq nesota history.” Jane Kirtley, director of the Kyle’s brief countered that Ventura’s def- and that the SEALs “deserved to lose a few.” Silha Center and professor of media ethics amation claim failed because the incident In response to the statements, Kyle wrote and law at the University of Minnesota, had happened and the account of the event that he punched Scruff Face, causing him observed in the same Star Tribune story was essentially truthful. To succeed on a to fall to the fl oor. Kyle also wrote that he that Ventura’s case was unusual. “This is a defamation claim, a plaintiff must prove the heard rumors that Scruff Face had a black bizarre situation, given that the author is no defendant’s statement was materially false. eye while speaking at a SEAL graduation longer living,” said Kirtley. “Truth or falsity Masson v. New Yorker Magazine, Inc., 501 event the next day. by itself is not the only issue. Ventura must U.S. 496, 517 (1991). The brief argued that Although Kyle did not name Ventura in prove Kyle knew he was writing a lie, or under the requirements of Masson, Ven- print, he alleged that Scruff Face was actu- acted recklessly in writing his account.” tura had to demonstrate more than minor ally Ventura during book promotions on ra- As a public fi gure, in order to prevail inaccuracies or alterations, unless they dio and TV shows. On January 4, 2012, Kyle on his defamation claim, Ventura had to “result in a material change in the mean- appeared on the “Opie & Anthony Show,” prove that Kyle’s story about him was ing conveyed by the statement.” The brief and stated that “Scruff Face” was his pseud- defamatory or hurt his reputation within contended that Kyle’s statements were not onym for the former governor. Kyle named the community; that the story was materi- materially false and that testimony support- Ventura again the next day in an interview ally false by clear and convincing evidence; ing the truth of Kyle’s statements would be with Bill O’Reilly on FOX News and further and that Kyle published the story knowing provided at trial. Furthermore, Kyle did not elaborated on the alleged fi ght, mocking it was false, believing it was false, or having act recklessly by recounting the incident that Ventura had “fell out of his wheelchair” serious doubts about its truth. This “actual because he believed the statements to be when Kyle had punched him. malice” standard for public fi gures was true and accurate. In addition, the brief According to court documents, Ven- established in New York Times v. Sulli- emphasized that, as a public fi gure, Ventura tura fi led a complaint in the United States van, 376 U.S. 254 (1964). The ruling allows must establish material falsity by clear and District Court for the District of Minnesota writers to make factual errors about public convincing evidence. against Kyle on January 23, 2012, asserting fi gures and be protected from liability as claims of defamation, misappropriation, long as the error was made in good faith. Ventura, continued on page 10 9 Ventura, continued from page 9 said it took place in the parking lot and Morning Edition, David Schultz, a profes- To counter the misappropriation and sidewalk. sor of law and political science at Hamline unjust enrichment claims, the defense’s Ventura’s attorneys also provided pho- University, stated he was surprised that brief argued that the success of Kyle’s book tographs taken at a SEAL graduation the Ventura had prevailed because of the high had little to do with the alleged incident in day after the alleged incident. These photos standard public fi gures had to meet to American Sniper or publicity about it. Also, did not show that Ventura had a black eye prove defamation under New York Times the brief argued that American Sniper and or other physical effects “of supposedly v. Sullivan. “You have to show reckless the contested incident were matters of legit- having been punched directly in the face disregard for the truth in a sense that imate public interest and that Ventura’s bid by a 220-pound trained killer,” his counsel you have to prove that not only were the for “all property and benefi ts” from income argued. statements false, but the person knew that from the book violated the First Amend- On July 22, 2014 the ten-member jury they were false,” Schultz said. “That’s an ment. “If any such [public fi gure] could began deliberations. According to the incredibly high standard, and the reason claim that allegedly false statements within instructions, the jurors fi rst had to establish why the standard is so high is to protect a book or broadcast could support not only whether the incident recounted in Ameri- the First Amendment right of the public to claims for defamation but also claims for can Sniper was true or false. If the jury really engage in free speech and to freely misappropriation or unjust enrichment, criticize government the potential for wreaking havoc with free “The jury’s verdict may seem like a offi cials.” Schultz expression would be enormous. The focus also noted that if could shift from any injury actual suffered vindication to Ventura, but it reminds the book publisher by the plaintiff to the supposed benefi ts that those who write about public fi gures, and author had the defendant sought or obtained,” the brief never said Ventura’s argued. especially in the freewheeling world of name during the The trial began on July 9, 2014 after a the blogosphere, that they do so at their publicity tour, there ten-member jury was selected. The attor- own risk.” would have been neys for Kyle’s estate sought to prove Kyle’s “no chance anybody account of the incident was true by offering would’ve been fi ling corroboration by several barroom witness- — Professor Jane Kirtley, for libel because no es. The jury also heard a taped deposition Silha Center Director and name was men- given by Kyle before he died. During his Silha Professor of Media Ethics and Law tioned.” deposition, Kyle maintained that “the events In a July 31 that happened in the book are true” and op-ed on MinnPost. that “the essence of what was said [in the decided that the incident happened and the com, Kirtley warned that the verdict may book] is accurate.” In addition, the defense book’s depiction of the event was mostly have a chilling effect on those who write attorneys introduced evidence to suggest truthful, Ventura would not be able to prove about public fi gures. “Some would argue Ventura had ruined his own credibility with his claim because truthful statements are that this is exactly the way it should work, infl ammatory statements over the past protected by the First Amendment. and that authors who are not able to prove decade, including that Ventura had called Under the Federal Rules of Civil Proce- their claims should be prepared to pay the the United States “fascist” during a news dure, the jury must reach a unanimous ver- price,” Kirtley wrote. “But the U.S. Supreme conference. dict unless the parties stipulate otherwise. Court in Sullivan feared that legitimate sto- Ventura’s attorneys called several wit- However, the Star Tribune reported on July ries would go unreported if that price was a nesses who stated that the alleged fi ght 28 that after fi ve days of deliberation, the crippling damage award. The jury’s verdict never took place. One of the witnesses, Bill jury wrote a note to Judge Kyle stating “we may seem like a vindication to Ventura, but DeWitt, a friend of Ventura’s, testifi ed he feel we will not come to a unanimous deci- it reminds those who write about public fi g- was in McP’s Irish Pub on Oct. 12, 2006, the sion.” In the Star Tribune article, Kirtley ob- ures, especially in the freewheeling world night of the alleged incident, attending a served that the case was a diffi cult one for of the blogosphere, that they do so at their reunion of the underwater demolition team the jury. “The evidence is strongly disputed own risk.” class to which he and Ventura had be- by both sides and [Chris] Kyle is dead, so he On September 4, 2014, the Star Tribune longed. DeWitt said he never saw the alter- can’t be cross-examined,” Kirtley said in the reported that the attorneys for Kyle’s estate cation nor heard Ventura make the remark story. “If one person disagrees with any one fi led a motion asking U.S. District Judge that some SEALs deserve to die. Ventura of the questions [posed by the judge], be it Kyle to dismiss the jury’s $1.8 million judg- also testifi ed that although he was at the bar falsity, defamation or actual malice, then ment in favor of Ventura. The motion also the night of the alleged incident, he did not the jury is deadlocked.” After Judge Kyle asked Judge Kyle to either grant a new trial have any verbal or physical confrontation met with attorneys about the possibility of a or a judgment in favor of the Kyle estate. with Kyle or anyone else that night. Despite hung jury, both the Kyle estate and Ventura The motion claimed that the defamation admitting to being critical of the Iraq war, agreed to accept a divided verdict. On July award was “legally and factually inappropri- Ventura stated he has the utmost respect for 29, 2014, jury came to an 8-2 decision in ate” and that Ventura failed to prove that the troops and he would never make such favor of Ventura, fi nding that Ventura had Kyle’s statements in the book were materi- remarks about the SEALs. proved his claim of defamation. The jury ally false. As the Bulletin went to press, Ventura’s attorneys also argued that awarded Ventura $500,000 in damages on Judge Kyle had not yet ruled on the motion many of the witnesses for the Kyle estate that count of the complaint. The jury also and a hearing date had not yet been set. had been drinking and that their descrip- found that Kyle’s estate had been unjustly tions of the incident were in confl ict enriched and awarded $1,345,477 to Ven- SARAH WILEY because the witnesses placed the verbal tura. SILHA RESEARCH ASSISTANT exchange and fi ght in different places. Some Many attorneys and media profession- of the defense witnesses stated the event als found the verdict surprising. In a July took place on the bar’s patio, while others 30 interview on Minnesota Public Radio’s

10 Supreme Court Says Warrants are Required to Search Cell Phone Data; Possible Implications for NSA Telephony Metadata Collection n June 25, 2014, the U.S. of cell phone data when the phone was to ensure police offi cers’ safety and to Supreme Court held that found on an arrestee. Riley v. California, prevent the destruction of evidence. 395 law enforcement offi cers are 2013 WL 475242 (Cal. Ct. App. 2013). The U.S. 752 (1969). The searches were limited required to obtain a warrant California Supreme Court declined to hear to areas within the arrestee’s immediately before searching an arrested Riley’s case before the U.S. Supreme Court control, however. The second precedent individual’sO cell phone data. Riley v. Cali- granted certiorari. informing the Court’s analysis was United fornia, 134 S.Ct. 2473 (2014). The ruling in The second case involved a police of- States v. Robinson. 414 U.S. 218 (1973). Riley v. California fi cer arresting Brima Wurie after the offi cer In Robinson, the Court held that offi cers provided a major observed Wurie selling drugs from a car. can search a person taken into custody on PRIVACY privacy victory for After the arrest, the offi cer searched Wurie probable cause even though there may not individuals in an at the police station and found two cell be specifi c concerns about offi cer safety or increasingly digital phones. After a short time at the station, destruction of evidence. Additionally, the world where the laws and regulations of one of the phones repeatedly received calls Robinson Court held that police offi cers the analog age may no longer be effective. from a number that was labeled as “my did not violate the Fourth Amendment Commentators have suggested that the de- house.” Police offi cers opened the phone, when inspecting items found on an ar- cision also could be a signal of the Court’s examined the phone’s call log, and used rested individual. The fi nal case that Rob- skepticism toward the NSA’s collection of an online phone directory to identify the erts identifi ed as key to the analysis was telephony metadata. apartment building address associated Arizona v. Gant. 556 U.S. 332 (2009). The Riley consolidated two lower court with the phone number. Police offi cers Gant Court held that the Chimel decision cases that arrived at different conclusions went to the apartment building, and, after allowed an offi cer to search an arrestee’s regarding whether the police could search brief surveillance, the offi cers obtained a vehicle only when the arrestee was unse- digital information from a cell phone. In warrant to search Wurie’s apartment. Upon cured and within reaching distance of the the fi rst case, an offi cer stopped David a search of the apartment, the offi cers passenger compartment. The Court also Riley for driving with expired registration found several varieties of drugs and related found an exception to the Fourth Amend- tabs. During the course of the stop, the paraphernalia, a gun, and money. Wurie ment’s warrant requirement when offi cers offi cer learned that Riley was also driv- was subsequently charged with distributing had a reasonable belief that evidence of ing with a suspended license. The offi cer crack cocaine, possessing crack cocaine a crime might be found in an arrestee’s impounded the car, which was searched by with intent to distribute, and being a felon vehicle. a different offi cer who found two handguns in possession of a fi rearm and ammunition. In examining the precedents, Roberts under the hood. Riley was arrested for pos- At trial, Wurie argued that the evidence noted that the technology of modern cell session of concealed and loaded fi rearms. gathered at his apartment should be sup- phones could not possibly have been imag- A subsequent search of Riley revealed sev- pressed because it was gathered as a result ined at the time of Chimel and Robinson. eral items related to a street gang, as well of an unconstitutional search of his cell The key aspect in the Court’s consider- as a smart phone. The arresting offi cer ex- phone. The district court denied his motion ation of whether police offi cers needed to amined data on the phone and found what to suppress, and Wurie was later convicted obtain a warrant was balancing the degree appeared to be information related to gang on all counts. A divided three-judge panel of intrusion a search would have on an activity. A detective who specialized in of the U.S. Court of Appeals for the First individual’s privacy against the legitimate investigating gangs subsequently examined Circuit overturned his conviction on ap- government interest in the search, which the phone and found a variety of informa- peal. The panel held that a search of a cell is what the Court did in Robinson. Roberts tion on the phone, including several pic- phone is distinct from searching other noted, however, that the physical object tures that appeared to connect Riley with a types of possessions found on a person be- examined in Robinson — a cigarette shooting that occurred weeks earlier. Riley cause of the amount of personal data that pack — was considerably different from was charged with fi ring at an occupied phones can contain. As a result, the appel- a cell phone. Cell phones can contain vehicle, assault with a semiautomatic fi re- late court held police offi cers are required massive amounts of personal data unlike arm, and attempted murder in connection to secure a warrant before searching cell most other physical objects. As a result, with the earlier shooting. Before the trial, phone data. U.S. v. Wurie, 728 F.3d 1 (1st the Court refused to extend Robinson to Riley attempted to have all evidence from Cir. 2013). The Supreme Court then granted allow offi cers to inspect data found on cell his cell phone suppressed, arguing that it certiorari. phones. Rather, the offi cers must obtain a was retrieved under a warrantless search In a unanimous decision, the Supreme warrant in most situations. in violation of the Fourth Amendment. The Court held that police offi cers are gener- In examining the warrantless search trial court rejected Riley’s argument. Dur- ally required to obtain a warrant before exceptions that the Court established in ing the trial, several police offi cers testifi ed conducting searches of an arrested Chimel, Roberts wrote that neither danger about the cell phone search, and several individual’s cell phone data. The opinion, to offi cers nor preventing the destruc- of the collected photographs were entered delivered by Chief Justice John Roberts, tion of evidence was a major concern in into evidence. At the trial’s conclusion, focused on when offi cers could reasonably relation to cell phone data. The opinion Riley was convicted on each count. The conduct a warrantless search. The Court explained that cell phone data itself does California Fourth District Court of Appeal relied on three previous cases to narrow not pose any sort of physical risk to the affi rmed Riley’s conviction citing a Califor- its analysis. In the fi rst case, Chimel v. arresting offi cers. The Court also dis- nia Supreme Court decision that said that California, the Court held that searches missed the government’s argument that the Fourth Amendment permitted searches of arrested individuals were reasonable Phone Data, continued on page 12 11 Phone Data, continued from page 11 The opinion also acknowledged the judgment. Alito emphasized two primary an inspection could alert offi cers that an problems arising from how cell phone data points. First, he discussed historical ratio- arrestee’s associates were heading to the is stored. Smart phones will often store nales that justifi ed police offi cers conduct- scene of an arrest because no evidence data on the phone itself, but the phones ing a search of an arrested individual to was provided that such a situation had also take advantage of cloud comput- cast doubt that the main purpose was for actually happened. As for the destruction ing, which stores data on a remote server offi cer safety or to prevent destruction of of evidence, the government had argued that the phone accesses through data evidence. Alito noted that Chimel involved that cell phone data could be encrypted networks. The Court explained that the the lawfulness of searching the scene of an or remotely erased before offi cers could data storage issue becomes problematic arrest rather than an individual. Therefore, secure a warrant. Roberts wrote that there because offi cers could potentially examine the reliance on Chimel as precedent was was little evidence that data encryption data that was not actually on the phone. suspect. Nonetheless, Alito explained that or remote wiping of cell phone data was “Such a search would be like fi nding a key the Court’s holding that cell phone data a prevalent problem for police offi cers. in a suspect’s pocket and arguing that it needed Constitutional protections because The chief justice pointed out that police allowed law enforcement to unlock and of the privacy interests was the right deci- offi cers have tools to prevent the loss of sion. data from remote wiping. Offi cers can turn Alito’s second off the phone or place it in a specialized “A phone not only contains in digital point was to ques- bag to disconnect it from the data network form many sensitive records previously tion the utility of fed- that would enable someone to perform a found in the home; it also contains a eral courts outlining remote wipe. the privacy protec- Roberts acknowledged that an arrestee broad array of private information never tions that should be typically has lowered expectations of pri- found in a home in any form — unless afforded to digital vacy. However, the Fourth Amendment is the phone is.” technologies. He still applicable, which means that arrested suggested that state individuals still have some expectations of legislatures and Con- privacy, especially when an intrusion could — Chief Justice John Roberts gress should begin to be substantial. Although other courts had consider legislation allowed searches of various items found search a house,” wrote Roberts. Because that would provide more detailed privacy on an arrested individual under Robinson offi cers could potentially view information protections for the changing technology. and Chimel, Roberts said, “[m]odern cell that was not in the immediate vicinity of “Legislatures, elected by the people, are phones, as a category, implicate privacy the arrestee, the Court held that privacy in a better position than we [the Court] concerns far beyond those implicated by interests once again outweighed the need are to assess and respond to the changes the search of a cigarette pack, a wallet, or for a search warrant exception to search that have already occurred and those that a purse.” The opinion observed that the cell phones. almost certainly will take place in the amount and combination of information The Court also rejected several of the future,” wrote Alito. on cell phones provides a comprehen- government’s suggestions that would allow Commenters noted that the Court’s sive mosaic of an individual’s life. Cell police offi cers to search an arrestee’s cell decision in Riley marked a step forward phones contain e-mails, information about phone data in particular circumstances, for digital privacy in situations beyond personal contacts, phone call records, when offi cers believe it contains evidence cell phone data searches. McDermott bank statements, prescription information, of a crime, limiting searches to certain spe- Will & Emory LLP attorneys David Quinn photos and videos as well as historical cifi c areas and types of data on the phone, Gacioch, Bridget K. O’Connell and Heather data recording dates and locations. The and allowing offi cers to only search a call Egan Sussman suggested in a July 2 On the collection of such a large cache of informa- log. The Court dismissed these sugges- Subject newsletter that the Riley deci- tion on a single device heightened privacy tions, noting that they would not provide sion could potentially affect searches of concerns. clear, categorical principles that could help other digital data. “[T]he Supreme Court’s Roberts also noted that the nature of law enforcement offi cers adhere to consti- decision recognizes the signifi cance of the information contained on cell phones tutional searches. an individual’s expectation of privacy in is far different than what offi cers can fi nd In concluding the opinion, Roberts content stored on or accessible through in other physical objects. Cell phones acknowledged that limiting police offi cers’ mobile phones in a way that creates the po- can contain data about Internet searches, abilities to search the phones of arrested tential for many spillover effects into other historical location tracking, and a variety individuals would have an impact on contexts — such as the collection, storage of applications. All of these types of data attempts to combat crime. However, the and brokering of a user’s web browsing provide an extensive amount of detailed Court explained, “Our holding, of course, or other digital data without clear user information about an individual’s life. Rob- is not that the information on a cell phone consent to do so,” wrote the attorneys. In erts contended that such information on a is immune from search; it is instead that a a June 20 post on the White Collar Defense single device needed privacy protections warrant is generally required before such & Compliance blog, Alain Leibman, a from searches. “Indeed, a cell phone search a search, even when a cell phone is seized partner at Fox Rothschild LLP, wrote that would typically expose to the government incident to arrest.” Although some exigent the decision could require investigators far more than the most exhaustive search circumstances could exist to allow offi cers to obtain additional warrants to search of a house,” wrote Roberts [emphasis in to conduct a warrantless search, the Court digital devices. “The Riley case marks a original]. “A phone not only contains in ultimately emphasized that the privacy in- watershed in Fourth Amendment jurispru- digital form many sensitive records previ- terests related to cell phone data are great dence — what suffi ces as probable case for ously found in the home; it also contains enough to require warrants. a warrant to search a fi le cabinet cannot a broad array of private information never Justice Samuel Alito wrote an opinion any longer justify the search of a laptop found in a home in any form — unless the concurring in part and concurring in the possibly containing personal information phone is.” Phone Data, continued on page 13 12 Supreme Court Strikes State Law Creating Speech Buffer Zones Near Abortion Clinics n June 26, 2014, the U.S. Su- types individuals who could enter the buffer which the United States Court of Appeals preme Court issued its opinion zone, including people intending to enter for the First Circuit affi rmed, relying on its in McCullen v. Coakley, which the facility, employees of the facility, emer- prior decisions upholding the 2000 version held that a Massachusetts gency and municipal workers as well as of the law. McCullen v. Coakley, 571 F.3d statute establishing protest construction workers acting in the course 167 (1st Cir. 2009). When the case returned Obuffer zones around abortion clinics vio- of their employment, and people who were to the district court, the judge dismissed lated the First Amendment’s guarantees of using the public sidewalk areas to get to a all but one as-applied challenges. McCul- free speech. McCullen v. Coakley, 134 S. Ct. destination. The Massachusetts legislature len v. Coakley, 759 F.Supp.2d 133 (D.Mass. 2518 (2014). The Mc- had modeled the statute’s original language 2009). The district court judge determined FREEDOM OF Cullen case directly on a Colorado law that the Supreme Court after a bench trial that the fi nal challenge addressed the com- should be dismissed SPEECH petition between the because the law still free speech rights of “If all that the women can see and hear allowed individuals anti-abortion activists and states’ attempts are vociferous opponents of abortion, the ability to use to regulate space near abortion clinics. other avenues to Commentators were split in their reactions then the buffer zones have effectively communicate their to the Court’s decision to strike down the stifl ed [the] petitioners’ message.” message. McCul- free speech buffer zones. len v. Coakley, The case arose in Massachusetts after — Chief Justice John Roberts 844 F.Supp.2d 206 several individuals challenged a state law (D.Mass. 2012). The that aimed to regulate the space outside First Circuit Court of abortion clinics where abortion op- had upheld against a First Amendment chal- of Appeals affi rmed the judge’s ruling. Mc- ponents and pro-choice advocates had lenge in 2000. Hill v. Colorado, 530 U.S. 703 Cullen v. Coakley, 708 F.3d 1 (1st Cir. 2013). often clashed. The statute, initially enacted (2000). The Supreme Court then granted certiorari. in 2000 as the Massachusetts Reproduc- Several individuals, including Eleanor Chief Justice John Roberts, writing for tive Health Care Facilities Act and later McCullen, who attempted to engage in a unanimous Court, held that the Massa- amended in 2007, prohibited individuals conversation or distribute literature to chusetts statute violated the First Amend- from “knowingly enter[ing] or remain[ing] women approaching the Massachusetts ment rights of the individuals. The opinion on a public way or sidewalk adjacent to reproductive clinics throughout the state, observed that the Court had always viewed a reproductive health care facility within brought suit against Attorney General public streets and sidewalks as a place for a radius of 35 feet of any portion of an Martha Coakley. The complainants sought First Amendment protections because they entrance, exit, or driveway of a reproduc- to enjoin the enforcement of the buffer-zone can serve as a forum for public discus- tive health care facility.” Mass. Gen. Laws, law, claiming that it infringed upon their sion. Roberts wrote that because the law ch. 266, § 120E½. The 35-foot buffer zones, First Amendment rights on its face and regulates areas considered public forums, which the statute required to be clearly as applied because the buffer zones had it comes under the scrutiny of the First marked, applied only during a facility’s severely limited their ability to communi- Amendment. However, the chief justice business hours. Individuals who were cate with patients of the clinics. A district noted that the government could place re- found to be in violation of the statute could court judge dismissed all of the individuals’ strictions on the time, place, and manner of be fi ned or serve time in prison or both. The facial challenges to the law, McCullen v. statute also made exceptions for certain Coakley, 573 F.Supp.2d 382 (D.Mass. 2008), Buffer Zone, continued on page 14

Phone Data, continued from page 12 in the realm of [the] Fourth Amendment between national security and individual found there, and circumstances which may . . . I think it also signals the end of the privacy in the United States.” support a consent search of a home may NSA program.” In a June 26 post on the However, Roberts did make a point of not allow the search of an iPad located in fi rm’s Trademark and Copyright Law Blog, distinguishing the Court’s holding about the home,” wrote Leibman. Foley Hoag LLP attorney Daniel McFadden the searches at issue in Riley from other Importantly, observers have suggested described the Court’s decision as a “shot types of data collection, which could pos- that the Court’s decision could signal fu- across the bow of the NSA and other ad- sibly include the NSA’s programs. In a foot- ture trouble for the constitutionality of the vocates of warrantless domestic metadata note, Roberts wrote, “Because the United NSA’s collection of bulk telephony meta- collection.” McFadden explained that the States and California agree that these data. Marc Rotenberg, executive director Court’s opinion indicated that the quantity cases involve searches incident to arrest, of the Electronic Privacy Information and quality of digital data was important these cases do not implicate the question Center (EPIC), told Politico’s Josh Gerstein to privacy considerations. “In sum, the whether the collection or inspection of ag- in a June 25 story that the Riley decision Court's opinion in Riley strongly suggests gregated digital information amounts to a foreshadowed a future decision on the a willingness to fi nd a Fourth Amendment search under other circumstances.” NSA’s data collection while also protecting privacy interest in metadata, at least to the extent that data can be aggregated to infer digital information. “This is a remarkably CASEY CARMODY private information about the individual,” strong affi rmation of privacy rights in a SILHA BULLETIN EDITOR digital age,” said Rotenberg. “The [C]ourt wrote McFadden. “This outcome may have found that digital data is different and that far reaching consequences in the ongo- has constitutional signifi cance, particularly ing debate concerning the proper balance

13 Buffer Zone, continued from page 13 the buffer zones had created signifi cant Justice Antonin Scalia wrote an opinion constitutionally-protected speech as long as barriers to the petitioners’ ability to speak concurring in the judgment that was joined the restrictions are “justifi ed without refer- with and distribute literature to women by Justice Anthony Kennedy and Justice ence to the content of the regulated speech, who were entering the clinic. The Court dis- Clarence Thomas. Scalia suggested that that they are narrowly tailored to serve a missed arguments that the petitioners could Robert’s opinion continued a trend of the signifi cant government interest, and that practice their rights to free speech through Court de-valuing the free speech rights of they leave open ample alternative channels chanting or signs because they specifi cally anti-abortion activists. “There is an entirely for communication of the information.” intended to convey their message through separate, abridged edition of the First Ward v. Rock Against Racism, 491 U.S. 781 conversation. “If all that the women can see Amendment applicable to speech against (1989). and hear are vociferous opponents of abor- abortion,” Scalia wrote. The Court’s analysis began by consid- tion, then the buffer zones have effectively Specifi cally, Scalia argued that the Mas- ering whether the Massachusetts statute stifl ed [the] petitioners’ message,” Roberts sachusetts statute was a content-based reg- was a content-neutral regulation. The wrote. ulation of speech because it addressed only petitioners argued that the law was not speech issues related content neutral because its regulations to abortion clin- disproportionately hindered speech related “That I don’t share Ms. McCullen’s views ics. He also wrote to abortion and favored the viewpoints and is beside the point. The great virtue of that the exceptions ideas of abortion clinic employees through our First Amendment is that it protects allowed pro-choice the exceptions allowing them to work in advocates to express the buffer zone. Roberts’ opinion dismissed speech we hate just as vigorously as it opinions while limit- these arguments. On the fi rst point, Rob- protects speech we support.” ing the speech of an- erts explained that the law did not “draw ti-abortion activists. content-based distinctions on its face.” The — Laurence H. Tribe, Therefore, Scalia law’s stated purpose was to ensure public Harvard Constitutional Law Professor wrote because the safety near the entrances and exits to abor- law was a content- tion clinics. Roberts wrote that a law was based restriction, it not a content-based regulation just because The Court noted that the Massachusetts should have been struck down under a First it may incidentally affect abortion-related law appeared to be the only law in the Amendment strict scrutiny test. He also speech more than other types of speech. country that established fi xed buffer zones criticized the Court’s decision to provide an The Court also noted that the exceptions around the entrances to a clinic. The Court extensive explanation of the ways that the allowing employees of the clinic to enter explained that the federal government and Massachusetts legislature could develop the zone in order to perform their job did other states had found alternative ways regulations of areas near abortion clinics. not mean that the law was a content-based to manage speech rights around abortion Scalia argued that the view of the statute as restriction. Roberts acknowledged that, at clinics using less burdensome means, content neutral and discussion of alter- times, such exceptions could be the result including laws prohibiting intimidation or native restrictions lowered the constitu- of the government endorsing a particu- interfering with a person’s ability to enter tional protection that the Court afforded to lar viewpoint. However, the chief justice an abortion clinic. Roberts wrote that the abortion-related speech. wrote that the exceptions in this case were government authorities could utilize other Justice Samuel Alito also issued an reasonable for the operations of the clinic. types of public safety laws already enacted opinion concurring only in the Court’s He noted that nothing in the record before in Massachusetts, such as traffi c ordi- judgment. Alito wrote that the Massa- the Court indicated that the Massachusetts nances, to manage crowds. “The point is [] chusetts statutes’ employee exceptions government had desired to endorse a par- that the Commonwealth [of Massachusetts] allowed for viewpoint discrimination. He ticular viewpoint. The Court held that it did has available to it a variety of approaches gave an example of an abortion protestor not need to conduct a more exacting strict that appear capable of serving its interests, telling a woman in the buffer zone that the scrutiny test of the law because it did not without excluding individuals from areas clinic would not provide suffi cient answers discriminate against any particular content historically open for speech and debate,” about health decisions while an employee of speech or individuals’ viewpoints. he wrote. explains that the clinic would have good Despite the fact that the law did not The Court emphasized that Massachu- answers. Alito suggested that the protestor create content-based restrictions, Roberts setts authorities could not identify any and employee gave opposing viewpoints, explained that the law still needed to be prosecutions that it had initiated under but only the former would be in violation of “narrowly tailored to serve a signifi cant other types of laws in an attempt to manage the law. “It is clear on the face of the Mas- government interest.” The Court said that space around abortion clinics. Roberts sachusetts law that it discriminates based the government did not have the power wrote that the lack of cases suggested that on viewpoint,” Alito wrote. “Speech in favor to suppress speech because it was more Massachusetts had not considered alter- of the clinic and its work by employees convenient than other ways to regulate native options less burdensome on free and agents is permitted; speech criticizing behavior. The restrictions do not need to be speech. The Massachusetts government had the clinic and its work is a crime. This is the least restrictive means available, but the argued that the alternative regulations that blatant viewpoint discrimination.” Nonethe- regulations cannot “burden substantially the Court discussed would not work be- less, Alito agreed with the Court’s judgment more speech than is necessary to further cause they were diffi cult to pursue. Roberts that the law was unconstitutional. the government’s interest.” On this point, dismissed the argument. “Given the vital Observers of the McCullen case ex- the Court found that the Massachusetts First Amendment interests at stake, it is pressed a range of opinions in response to law failed constitutional muster because it not enough for Massachusetts simply to say the Court’s opinion. In a June 26 op-ed in placed too many burdens on speech when that other approaches have not worked,” he The New York Times, Laurence H. Tribe, other means of regulation were available. wrote. The Court reversed the lower court’s a Harvard constitutional law professor, Roberts observed that the statute’s re- ruling and remanded the case for further said that he believed the Court’s decision quirements were too burdensome because proceedings. Buffer Zone, continued on page 15 14 Supreme Court Rules Aereo Inc.’s Television Streaming Service Violates Copyright Law n June 25, 2014, the U.S. Su- a menu on the company’s website, Aereo’s scriber’s folder to any other subscriber. preme Court held that Aereo servers assigned one of the thousands When two subscribers wished to watch the Inc.’s online services, which of small, dime-sized antennas housed at same program, for example, Aereo’s sys- provided customers with Aereo’s central warehouse to receive and tem activated two separate antennas and broadcast television pro- record the broadcast for that specifi c saved two separate copies of the program O gramming over the subscriber. Once the antenna began to in two separate hard drives or folders. It Internet, infringed receive the broadcast, an Aereo transcoder then streamed the television show to the COPYRIGHT on the exclusive translated the signals received into data subscribers through two separate trans- right of television that could be transmitted over the Internet missions, each from the subscriber’s own broadcasters to to the specifi c subscriber. personal copy. provide those broadcasts to the public The system then created a unique per- The plaintiffs, who owned the copy- under the Copyright Act of 1976. American sonal copy of the broadcast, stored it in a rights in many of the programs Aereo Broadcasting Companies, Inc. v. Aereo, subscriber-specifi c hard drive or folder on was transmitting, included broadcasting Inc., 134 S.Ct. 2498 (2014). Commentators a server, and transmitted the program only companies, producers, and distributors. have suggested that the ruling in Aereo to the particular subscriber who asked to They sued Aereo in federal District Court delivered a major victory for broadcasting stream it. The service allowed subscrib- in Manhattan in 2012. The plaintiffs alleged companies and copyright owners who seek ers to either stream broadcast programs that Aereo’s act of transmitting the pro- to prevent unauthorized re-broadcasting of to many different devices, such as an iPad grams constituted a public performance of their works over the Internet, even though or mobile phone, a few seconds after the copyrighted works and sought a prelimi- the Court stated that its holding is “limited” initial over-the-air broadcast, or to save nary injunction against the company. The and not intended to “discourage or to con- the program to watch later. Aereo neither plaintiff’s argument specifi cally relied on a trol the emergence or use of different kinds owned the copyright to the works nor held 1976 amendment to the Copyright Act that of technologies.” a license from the copyright owners to awards copyright owners the “exclusive The case arose out of a dispute over transmit the works publicly. right” to “perform the copyrighted work Aereo’s technological capabilities. Aereo Aereo argued that the data it streamed publicly” 17 U.S.C. § 106(4). The Act’s charged its subscribers a low monthly fee to each subscriber is the data made from Transmit Clause further defi nes that exclu- to receive broadcast television programs the subscriber’s own personal copy held in sive right to include the right to “transmit over the Internet. Once a subscriber se- the subscriber specifi c folder. The system or otherwise communicate a performance lected the content she wished to view from did not transmit data saved in one sub- Aereo, continued on page 16

Buffer Zone, continued from page 14 the majority’s opinion showed the diffi culty State Senator Hariette L. Chandler intro- was correct even though he personally of balancing the competing interests. “We duced a new bill to regulate the space viewed himself as a pro-choice supporter. agree that a fi xed buffer zone imposes seri- near health care facilities. State Attorney “That I don’t share Ms. McCullen’s views ous First Amendment costs, but we also General Martha Coakley said that the is beside the point. The great virtue of our think the Court underestimated the proven language of the bill followed Roberts’ First Amendment is that it protects speech diffi culty of protecting the constitutional explanation of what kinds of regulations we hate just as vigorously as it protects rights of women seeking abortions by would be permissible, according to the speech we support,” Tribe wrote. “[A]ll nine enforcing other laws — especially regard- Times story. The bill’s language would justices united to reaffi rm our nation’s com- ing harassment — outside abortion clinics,” make it a criminal offense to intimidate mitment to allowing diverse views in our Shapiro said in the statement. people entering an abortion facility as well public spaces — although their unanimous However, in a June 26 post on Slate, as prohibiting the obstruction of staff and result belied their divided reasoning.” United States Court of Appeals for the patients’ abilities to enter a clinic. The bill Tribe also noted that the McCullen case Seventh Circuit Judge Richard A. Posner also gives law enforcement offi cers the was an example of the Court needing to was more emphatic in his disagreement ability to order crowds to disperse if more create a balance between different consti- with the Court’s decision that he said than two instances of obstruction had tutional values of women having the right “fetishizes First Amendment rights.” He occurred. 2014 Mass. Legis. Serv. Ch. 197 to choose to have an abortion and First suggested that Roberts’ opinion incorrectly (S.B. 2283) (West). Professor Tribe told the Amendment guarantees of free speech. “A cast the balance between competing issues Times that the new Massachusetts proposal woman’s right to choose whether or not when it said that public safety concerns addressed many of the problems that the to terminate her pregnancy under [Roe v. did not trump the First Amendment. “The Court had pointed to in striking down the Wade] guarantees her protection from the issue is not mainly . . . the maintenance of previous law. “It is a much more narrowly state,” Tribe wrote. “This protection does public safety. Most abortion protesters are focused bill in terms of the conduct that not include a right to be shielded by the not violent, and police will be present to it prohibits,” Tribe told the Times. “It pro- state from fellow citizens hoping to peace- protect the visitors to the clinic,” Posner hibits obstruction of access, which is not fully convince her that she’s making the wrote. “The issue is the privacy, anxiety, an expression of free speech.” The Boston wrong choice.” and embarrassment of the abortion clinic’s Globe reported that Governor Deval Patrick Others also noted their confl icted views patients — interests that outweigh, in my signed the bill into law on July 30. about the clash between the First Amend- judgment anyway, the negligible contribu- ment and the ability of women to choose tion that abortion protesters make to the CASEY CARMODY to have an abortion. In a June 26 press marketplace of ideas and opinions.” SILHA BULLETIN EDITOR release, American Civil Liberties Union On July 14, 2014, The New York Times Legal Director Steven R. Shapiro said that reported that Democratic Massachusetts 15 Aereo, continued from page 15 and Teleprompter Corp. v. Columbia for assessing service-provider liability and Broadcasting System Inc., 415 U.S. 394 instead adopted an ad hoc “looks-like- . . . of the [copyrighted] work . . . to the (1974). In those decisions the Court found cable-TV” standard that “will sow confu- public, by means of any device or process, that community antenna television (CATV) sion for years to come.” The dissent fi rst whether the members of the public capable systems, which were early versions of contended that Aereo was not culpable of receiving then performance . . . receive modern cable companies, did not violate for direct infringement because it did not it in the same place or in separate places copyright law by simply retransmitting perform the copyrighted works. Rather, the and at the same time or at different times.” network television broadcasts to custom- subscriber selected the copyrighted mate- 17 U.S.C. § 101. The district court denied ers via coaxial cables. rial that was transmitted. Scalia wrote that the preliminary injunction on July 11, 2012. However, Breyer explained that Con- “Aereo does not ‘perform’ for the sole and American Broadcasting Companies, Inc. gress had amended the language of several simple reason that it does not make the v. Aereo, Inc., 874 F.Supp.2d 373 (S.D.N.Y. sections of the Copyright Act to ensure choice of content.” However, the dissent 2012). that cable companies which retransmit- recognized that although Aereo may not be A divided three-judge panel of the ted broadcasts fell within the scope of a direct infringer, Aereo could be liable for United States Court of Appeals for the the Transmit Clause. “In 1976 Congress secondary infringement as it facilitates and Second Circuit affi rmed the lower court’s amended the Copyright Act in large part to induces subscribers to perform the copy- decision on April 1, 2013, fi nding Aereo did reject the Court’s holdings in Fortnightly righted works using its system. Scalia also not perform “publicly” within the mean- and Teleprompter,” Breyer wrote. The equated Aereo’s services to “a copy shop ing of the Transmit Clause because it did majority opinion noted that the Transmit that provides its patrons with a library not transmit “to the public.” American Clause “thus makes clear that an entity that card.” Scalia argued that Aereo’s system Broadcasting Companies, Inc. v. Aereo, acts like a CATV system itself performs, merely provided the technological ability Inc., 874 F.Supp.2d 373 (S.D.N.Y.2012), even if when doing so, it simply enhances to its subscribers to select, copy, and view aff’d sub nom. WNET, Thirteen v. Aereo, viewers’ ability to receive broadcast televi- copyrighted material at the subscriber’s Inc., 712 F.3d 676 (2d Cir. 2013). Rather, the sion signals.” The majority concluded that sole discretion, which was something Court found that each time Aereo streamed “Aereo’s activities are substantially similar a subscriber could do through the legal a program to a subscriber, it sent a private to those of the CATV companies that Con- means of a DVR. transmission that is available only to that gress amended the Act to reach” and found The dissent also stated that although subscriber. (For more on the background that Aereo was not simply an equipment the Copyright Act was clear that Aereo’s of the case, see “Decisions in Favor of provider. Rather, the Court held that Aereo services were legal, Aereo did seem to Website That Plays Broadcast Television performed or transmitted copyrighted exploit what appeared to be a “‘loophole’ in Shows Online without Copyright Licenses work. The majority opinion recognized that the law.” The dissent concluded that when Could Change Television’s Business Model” Aereo’s technological system differed from “good lawyers . . . identify and exploit in the Winter/Spring 2013 edition of the the cable systems at issue in Fortnightly [loopholes],” it is “the role of Congress to Silha Bulletin.) The Supreme Court of and Teleprompter because Aereo’s system eliminate them if it wishes.” the United States granted certiorari on was inactive until a subscriber chose to Despite the majority’s statement that its January 10, 2014. The Obama administra- watch a television program. However, decision was limited to the case at hand in tion, the National Football League, Major Breyer wrote that the technological differ- order to avoid hindering other emerging Baseball League and several media groups ences between Aereo and CATV were not technologies, such as cloud computing and wrote amicus briefs in support of the tele- signifi cant. DVR services, some commentators have vision networks, while consumer groups The second question the Court ad- predicted that the decision may provide and smaller cable companies submitted dressed was whether Aereo had performed openings for lawyers to argue that other amicus briefs in support of Aereo. the works publicly. Section 106 of the forms of mass Internet streaming and stor- In a 6-3 decision, the Supreme Court re- Copyright Act states that an entity per- age services also violate copyright laws. versed and remanded the Second Circuit’s forms a copyrighted work publicly when it In a June 30, 2014, Digital Media Law blog decision, holding that the video streaming performs at “any place where a substantial post, Sedgwick LLP attorney Paul Pittman service offered by Aereo infringed upon number of persons outside of a normal argued that “despite the Court’s attempt to the exclusive right of copyright owners circle of family and its social acquaintances tread carefully, the decision to ignore the by publicly performing or transmitting the is gathered.” Aereo argued that its trans- intricacies of the technology and focus on copyrighted programs. missions were not public because Aereo the ultimate effect of the service provided The majority opinion, delivered by Jus- made individual transmissions “to only one is signifi cant and could hinder growth of tice Stephen Breyer, focused on two main subscriber” and not to other subscribers. unique technologies in this area.” questions to determine whether Aereo had The majority found that this argument did It also remains unclear how the decision infringed on American Broadcasting Com- not functionally distinguish Aereo’s service will affect cloud computing and storage panies, Inc.’s exclusive right to perform or from the CATV services and that the devices. In a June 26, 2014, Techtimes transmit the copyrighted works publicly. amended Act suggested that “multiple, dis- article, Mike Cannon pointed out that tra- The fi rst question the Court addressed was crete transmissions” to individuals none- ditionally, service providers have not been whether Aereo had in fact “performed” the theless constituted public performance. held responsible for what their consumers copyrighted work. Aereo argued in its brief “The subscribers to whom Aereo transmits do with the service. However, the fact that that it did not “perform” under the meaning programs constitute the ‘public,’” Breyer Aereo was merely providing the antennas of the Copyright Act, but rather simply pro- wrote. “Aereo communicates the same con- and delivering the transmissions picked vided the equipment that “emulate[s] the temporaneously perceptible images and up by those antennas may leave room operation of a home antenna and [digital sounds to a large number of people who for interpretation that service providers video recorder (DVR)].” are unrelated and known to each other.” could now be liable. For example, a cloud In the Court’s analysis, Justice Breyer Justice Antonin Scalia fi led a dissenting storage service such as Dropbox could not fi rst discussed the Court’s previous deci- opinion, which Justices Clarence Thomas generally be held accountable if a person sions, in Fortnightly Corp. v. United Art- and Samuel Alito joined. Scalia argued that ists Television, Inc., 392 U.S. 390 (1968) the majority disregarded bright-line rules Aereo, continued on page 17 16 Verdicts Arrive in Phone Hacking Trial that Exposed Questionable Practices of British Tabloid n June 24, 2014, Rebekah listened to the voicemail messages of Milly ated with Brooks, including her husband, Brooks, former editor of the Dowler, a 13-year-old girl who had gone Charlie Brooks, were acquitted of charges now-defunct News of the missing and was found murdered in 2002. of interfering with the course of justice. World, was acquitted of all Extensive investigations followed which The jurors also could not come to agree- charges related to a British prompted the British Crown Prosecution ment over two additional charges against phoneO hacking scandal that prompted pub- Service (CPS) to fi le numerous criminal Coulson of conspiring to cause misconduct lic inquiries, parliamentary hearings, and charges against Brooks and Coulson as in public offi ce related to the purchasing of investigations as well as revealing many of well as several other former employees of a royal phone directory. Coulson was later the inner-workings News of the World throughout 2012. The sentenced to 18 months in prison. of British tabloid charges included conspiring to unlawfully A day after the trial concluded, The MEDIA ETHICS newsrooms. How- intercept communications from 2000 to Times of London reported that Brooks ever, the jury found 2006, bribing public offi cials, and con- and her husband spoke outside their home Andy Coulson, who spiracy to pervert the course of justice. to media representatives. Brooks told the succeeded Brooks as editor and served Brooks and Coulson pleaded not guilty to press that she was relieved to have been as the director of communications for all charges in June 2013. (For more on the found not guilty on the charges against her. Prime Minister David Cameron, guilty of phone hacking scandal and subsequent “I am innocent of the crimes I was charged conspiring to hack phones while he served charges, see “Update: Charges Filed in Brit- with and I feel vindicated by the unanimous as editor of the News of the World. The ish Phone Hacking Case” in the Summer verdicts,” Brooks said. “When I was ar- Brooks acquittal and Coulson’s conviction 2012 issue of the Silha Bulletin, “Not Just a rested, it was in the middle of a maelstrom capped what several British news outlets ‘Rogue Reporter’: Phone Hacking Scandal of controversy, of politics and of comment. had dubbed “the trial of the century.” Spreads Far and Wide” in the Summer 2011 Some was fair but much of it was not, The trials of Brooks and Coulson arose issue, and “Murdoch-owned British Paper so I’m very grateful to the jury for com- after widespread accusations that News Embroiled in Phone Scandal” in the Fall ing to their decision.” The Guardian also of the World, which was owned by Rupert 2009 issue.) reported that Charlie Brooks said he stood Murdoch’s News International (now News The trial, which began in October 2013, by his comments from two years earlier UK), had engaged in illegally accessing included testimony about the close ties that British prosecutors were engaging in the voicemail accounts of celebrities and between the British journalists and high- a “witch hunt” targeting his wife. “Every- prominent news subjects since the early ranking politicians, News of the World jour- thing we said two years ago has proved 2000s. Revelations that tabloids had been nalists paying large sums of money to get to be true. Rebekah has been through an involved in phone hacking techniques scoops before their competitors, and News unprecedented investigation of an incred- arose after private investigators working of the World’s widespread phone hacking of ibly forensic and personal nature, the likes for News of the World pleaded guilty to Prince William, Prince Harry, Kate Middle- of which we've probably never seen," he illegally listening to voicemail messages ton, and other prominent news fi gures told reporters. of British royalty in 2006, which also during the course of several years. After Rebekah Brooks told the reporters led to Coulson’s resignation from News the eight-month trial, the jury returned outside her home that she continued to of the World. However, the phone hack- only one guilty verdict against Coulson for support her former colleagues, but that ing scandal garnered more political and illegally intercepting voicemail messages. she could not say much because they public outrage in 2011 after The Guardian The jury acquitted Brooks of the phone could be facing additional charges in the published a story revealing that News of hacking, bribery, and conspiracy to pervert future. “Today my thoughts are with my the World staff had allegedly accessed and justice charges. Several others associ- Phone Hacking, continued from page 18

Aereo, continued from page 16 that copyright holders could contend that signals in their homes, as opposed to the uses its service to allow others to down- storage services, such as Google Drive, remote warehouse where Aereo’s antennas load copyrighted content. After the Aereo Dropbox, or Amazon, were violating copy- were stored. In a June 29, 2014 New York decision, it is no longer clear that this is the right law when a user accesses his or her Times story, Simple.TV founder Mark Ely case, Cannon wrote. own content. “I think the Supreme Court and Mohu founder Mark Buff contended In a June 25, 2014, MIT Technology did the best job they could at making this that a court would view their television Review article, John Bergmeyer, a staff as narrow an opinion as they could,” Gold- broadcast reception technologies as adher- attorney at Public Knowledge, a technology stein said. “They deliberately said they are ing to private performance requirements policy think tank in Washington D.C., was not ruling on future technologies that are under the Supreme Court’s interpretation quoted saying that the decision “will lead not before them.” of copyright law. “Where you capture the to uncertainty and litigation, because there Other similar television streaming signal makes all the difference,” Ely told is enough ammunition in there for future services, such as Roku, TiVo, Mohu and the Times. “[Simple.TV technology] fi ts lawsuits.” Simple.TV, have interpreted the Aereo squarely in fair use.” However, other attorneys disagreed decision as clarifying that their technology with Bergmeyer’s assessment. Andrew and service model is legal under copyright Goldstein, a lawyer at Freeborn & Peters, law. The main technological difference a Chicago law fi rm that represents content between these companies’ and Aereo’s SARAH WILEY providers, told the MIT Technology Review services are that customers of the former’s SILHA RESEARCH ASSISTANT in the same story that he was not worried services own the antennas and capture

17 Phone Hacking, continued from page 17 Greenslade told The Washington Post. dicts, however. On June 25, The Guardian former colleagues who face future trials “They have had a nasty shock.” reported that Scotland Yard investiga- and I’m going to do everything I can to In a June 26 posting on his blog for The tors sought to question Rupert Murdoch support them as I know how anxious the Guardian, Greenslade also criticized sev- about crimes that his British newspapers times ahead are,” said Brooks. Brooks also eral aspects of the news media’s coverage may have committed. Prosecutors could declined to specifi cally discuss the trial’s of the trial. Specifi cally, Greenslade took potentially bring corporate charges against outcome for Coulson. issue with reports that the trial had cost Murdoch’s company in relation to the Several commentators raised ques- taxpayers more than 110 million pounds. phone hacking scandal. If the company is tions about the revelations from the trial He explained that the 110 million pounds convicted of conspiring to intercept phone as well as the outcome that it produced. estimate included Murdoch’s large defense communications, the members of the News On June 25, Suzanne Moore, a columnist fund for the accused. Greenslade wrote UK board of directors, including Murdoch for The Guardian, wrote that the scandal that the cost to taxpayers was about 35 mil- and his son James Murdoch, could face and subsequent trial exposed troubling ties lion pounds. He also suggested that other prosecution themselves. Investigators between journalists and politicians. “Those news organizations failed to acknowledge wanted to question Murdoch in 2013, but cheering Brooks'[] ‘innocence’ forget the that phone hacking was a widespread agreed to wait until the conclusion of the actual victims of phone hacking and the practice. “Although the [News of the World] phone-hacking trial. The Guardian story bigger victim: a semblance of democracy,” was undoubtedly a rogue newspaper, as also reported that News UK has been wrote Moore. “The best journalism seeks I wrote several times and way before the settling numerous civil suits and paying not to co[z]y up to power but to uncover damages to News of its workings. It is deeply embarrassing to “What has been exposed is hacking at the World’s phone see journalists buy their way in to political hacking victims. circles via trinkets, and then publishing a high level, widespread hacking, and Coulson also con- news that is not fi t to print.” the question was who knew about it, tinues to confront A June 26 editorial of The Times of and some of those questions have been legal battles for his London, which is owned by News UK, role in the phone criticized the CPS’s decision to pursue answered by this trial.” hacking scandal. The cases against the former News of the World Guardian reported employees. Particularly, the editorial — Sir Keir Starmer, on June 30 that the questioned whether the investigations and Former Head of the British Crown Prosecution Service CPS announced prosecutor’s costs for the case, estimated that it would seek at 35 million pounds or about 58.5 million hacking scandal broke, its journalistic a retrial of Coulson on the charges related dollars, were worth the single conviction. agenda and the methodology some of its to illegally obtaining royal phone numbers “Presumably the CPS calculated that the reporters employed, was not confi ned to from the police. The BBC reported on police had gathered suffi cient evidence to its Wapping newsroom,” wrote Greenslade. August 6 that prosecutors had initiated ensure a better conviction,” the editorial “The knowledge of how to hack into mo- charges against Coulson for perjury during said. “That calculation turns out to have bile phones was known to other journalists an earlier trial in which former Scottish So- been spectacularly mistaken.” However, on other newspapers. And these reporters cialist Party leader Tommy Sheridan sued The Guardian’s Rowena Mason reported were under similar pressures to obtain News of the World for defamation. Coulson that former head of CPS Sir Keir Starmer stories. Newspapers that belittle the signifi - is accused of falsely testifying that he did defended the charges he initially over- cance of hacking have reason to avert their not know about payments that News of saw against Brooks and others when he gaze from such truths.” the World journalist Clive Goodman made appeared on BBC’s Andrew Marr Show. The New York Times editorial board to private investigator Glenn Mulcaire or “What has been exposed is hacking at a called the News of the World’s use of phone about the phone hacking the journalist and high level, widespread hacking, and the hacking techniques “shameful” in a June 26 investigator conducted. question was who knew about it, and some editorial. “Any notion that tabloids might The Observer, which is The Guardian’s of those questions have been answered at worst be merely resourceful in adapting sister newspaper, reported on August 9 by this trial,” Starmer said. “Has anything modern technology to their endless quest that two lawyers associated with News really changed? The answer to that is yes. for scoops was dashed when the public International also face hearings due to Before this trial . . . there was a feeling discovered that the paper had intercepted the scandal. Harbottle & Lewis attorney that journalists were above the law. I don't the messages of agonized relatives left on Lawrence Abramson and former in-house think there is that feeling any more.” the cellphone of a missing teenager, Milly attorney Jon Chapman will face a solici- Observers have also suggested that Dowler, who was later found dead,” the tors’ disciplinary tribunal in October for Coulson’s conviction as well as the board wrote. “This wasn’t the usual playful their alleged cover-up of the scale of News trial itself have affected the culture and celebrity or royal family exposé unearthed of the World’s phone hacking. The lawyers practices of British tabloids, especially in via amusing dirty pool; this was the cruel- could face suspension or be removed from relation to techniques for collecting private est violation of privacy.” However, the practicing law if the legal regulatory body information. Roy Greenslade, a journalism editorial praised The Guardian’s work in fi nds them guilty. professor at City University in London and exposing the hacking scandal, noting that media blogger for The Guardian, told The the paper’s reporting was “rebuttal enough CASEY CARMODY Washington Post’s Karla Adam in a June to misguided proposals that Parliament SILHA BULLETIN EDITOR 25 story that the trial put tabloid reporters enact watchdog measures that would com- on alert. “There are very few kiss-and-tell promise the press’s ability to do its job in a stories of the old kind. What the scandal free society.” has done is made the tabloids much more The fallout from the scandal did not aware of ethics than they were previously,” end with the Brooks and Coulson ver-

18 Update: U.S. Supreme Court Declines to Hear Reporter’s Privilege Cases

n the summer of 2014, the United shield law precluded Winter from being District Court Judge Carlos Samour to order States Supreme Court declined to required to testify. (For more information a special probe to determine who leaked hear two different cases raising issues about the lower court’s ruling, see “Report- Holmes’ notebook to Winter. The lawyers about whether the First Amendment ers Struggle to Claim Privilege to Avoid argued that at least one law enforcement provides a reporter’s privilege which Testifying About Confi dential Sources,” in offi cer had committed perjury because no Iwould allow journalists to refuse to disclose the Fall 2013 issue of the Silha Bulletin.) one admitted to the leak while under oath. the names of confi dential sources as well On March 6, 2014, attorneys for Holmes However, Reuters subsequently reported as other information when called to testify fi led a petition for certiorari to the U.S. on August 28 that Samour had denied the in court. The U.S. Supreme Court. Petition for writ of certio- defense’s request to investigate. Samour REPORTER’S Supreme Court has rari, Holmes v. Winter, No. 13-1096, 2014 acknowledged that it was possible that only specifi cally WL 975922 (2014). They argued that the someone had lied about providing the note- PRIVILEGE addressed the issue New York high court’s decision had ignored book to Winter, but the defense attorneys once. In 1972, the the enforcement of the subpoena under the could question the credibility of the various Court held that the First Amendment did not Uniform Act to Secure the Attendance of law enforcement offi cers during the trial. allow journalists to refuse to testify before a Witnesses because of “an unprecedented Reuters’ earlier report noted that jury selec- grand jury about criminal activity that they public policy exception designed to accom- tion for Holmes’ trial will begin in December personally witnessed. Branzburg v. Hayes, modate New York’s Journalist Shield Law.” 2014. 408 U.S. 665 (1972). The lower courts’ The attorneys argued that the Uniform Act decisions in the separate cases that the amounted to an interstate compact, which Supreme Court’s Denial of New York Supreme Court refused to hear were split as would mean that New York courts were Times Reporter’s Appeal Raises to whether journalists could invoke such a obligated to enforce the Colorado district Concerns privilege. Many press commentators praised court subpoena. They also argued that On June 1, 2014, the Supreme Court the Court’s decision to allow journalistic Holmes’ Sixth Amendment right to com- declined to grant certiorari in an appeal protections in one case to stand, but others pulsory process would be hindered if the by James Risen, a reporter for The New expressed concern over the Court’s silence Uniform Act could not be used to enforce York Times. Risen had previously refused on the lack of protections in the other case. the subpoena requiring Winter to appear. to divulge information about the source he In their April 25 brief opposing the writ had used in his 2006 book, State of War. U.S. Supreme Court Declines to Hear of certiorari, Winter’s attorneys argued The book contained information about Case Involving Fox News Reporter that the Uniform Act was not an interstate the CIA’s failed attempt to sabotage Iran’s On May 27, 2014, the Supreme Court compact because no courts have interpreted nuclear program. The Department of Justice issued a brief order saying that it would not it to be one. Holmes v. Winter, 13-1096, 2014 (DOJ) has claimed that Risen’s source was hear the appeal of James Holmes requesting WL 1678549 (2014). Winter’s attorneys also former CIA employee Jeffrey Sterling, who the Court to compel Fox News reporter Jana argued that Supreme Court and other state is charged with violating the Espionage Act Winter to testify in court. Holmes is facing supreme court precedent indicated that a by allegedly disclosing classifi ed informa- trial in Colorado for allegedly shooting and defendant’s Sixth Amendment rights are not tion. The DOJ has claimed it is seeking killing several people in an Aurora, Colo. violated when out-of-state witnesses are not Risen’s testimony to pursue its prosecution movie theater on July 20, 2012. Attorneys required to appear to testify. The Supreme of Sterling. for Holmes sought Winter’s testimony after Court denied certiorari on May 27 without In 2011, Attorney General Eric Holder she obtained a notebook detailing the mass any explanation for its decision. authorized a subpoena ordering Risen to shooting plan that the accused shooter had In a May 27 statement, Fox News, Win- testify at Sterling’s trial. Risen moved to allegedly sent to his psychiatrist. In January ter’s employer, said that it has happy with quash the subpoena. In July 2011, United 2013, Arapahoe County District Court Judge the Supreme Court decision to decline the States District Court Judge Leonie M. William Sylvester approved a subpoena case. “We’re pleased that the Supreme Court Brinkema issued a ruling limiting the scope requesting Winter, a New York resident, to has ruled in favor of free speech today,” the of federal prosecutors’ questions for Risen, appear in court. The Colorado district court company said in the statement. “The Court including an order preventing attorneys relied on the Uniform Act to Secure the made it clear that Jana Winter can never be from asking for the name of Risen’s source. Attendance of Witnesses from Without the compelled to testify in Colorado, and that all United States v. Sterling, 818 F.Supp.2d 945 State in Criminal Cases, which all 50 states New York-based journalists and media com- (E.D. Va. 2011). The government appealed have adopted, to fi nd that Winter should panies can rely on New York’s strong shield Brinkema’s order, and a three-judge panel appear in Colorado. Judge Larry Stephen law when they are covering news across the for the United States Court of Appeals for of the New York County Criminal Court ap- country.” the Fourth Circuit overturned Brinkema’s proved the subpoena in March 2013. Winter The Associated Press’ Dan Elliott order in a 2-1 decision in July 2013. The appealed Stephen’s decision to enforce the reported in a May 27 story that Colorado majority held that the First Amendment did subpoena, but the New York Supreme Court Freedom of Information Coalition Execu- not provide journalists with a testimonial Appellate Division, First Department ruled tive Director Jeffrey Roberts also praised privilege in a criminal proceeding when they in August 2013 that Winter must comply the decision. “It’s good that she’s protected had personally witnessed criminal activity. with the subpoena. In December 2013, the here [in Colorado],” Roberts said. “It’s hard United States v. Sterling, 724 F.3d 482 (4th New York Court of Appeals, the state’s high- to understand why [the defense] needed to Cir. 2013). In October 2013, the full Fourth est court, found in a 4-3 decision that Winter know her sources in this case.” Circuit Court of Appeals denied the op- did not have to appear in the Colorado On August 19, Reuters reported that de- portunity to consider the three-judge panel’s court. The high court held that New York’s fense attorneys for Holmes asked Araphoe Privilege, continued on page 20 19 Privilege, continued from page 19 on June 6. “The government can choose not deal a withering blow to reporting that runs decision en banc. United States v. Sterling, to pursue Mr. Risen’s testimony if it wants against the government’s wishes,” Aftergood 732 F.3d 292 (4th Cir. 2013). (For more to. We can only hope now that the govern- told the Times. information on the background of Risen’s ment will not seek to have him held in con- In a June 2, 2014 press release, RCFP case, see “Reporters Struggle to Claim Privi- tempt for doing nothing more than reporting Executive Director Bruce D. Brown said lege to Avoid Testifying About Confi dential the news and keeping his promises [to keep that the Court’s decision to allow the Sources” in the Fall 2013 issue of the Silha his sources’ names confi dential].” Fourth Circuit Appellate Court’s decision Bulletin, and “Judges Rebuke Government On May 27, The New York Times’ Charlie to stand would cause news sources to dry on Leak Prosecutions” in the Summer 2011 Savage reported that Attorney General Eric up. “We are extremely disappointed that issue.) Holder had suggested during a meeting with the Supreme Court declined this opportu- On Jan. 13, 2014, Risen’s attorneys reporters that he did not intend to jail re- nity to uphold journalists’ ability to protect submitted a petition for writ of certiorari porters despite the government’s legal pur- confi dential sources, which is an essential to the Supreme Court. Petition for writ of suit of retaining the ability to do so. “As long tool utilized by a free press in newsgather- certiorari, Risen v. United States, No. 13- as I’m attorney general, no reporter who is ing for the public trust,” Brown said in the 1009, 2014 WL 690255 (2014). The attorneys doing his job is going to go to jail,” Holder release. “The lower court’s ruling sends an argued that the Court should grant certio- undeniable chill rari to clarify whether the First Amendment through current and provides a qualifi ed testimonial privilege “We are extremely disappointed that the future news sources for journalists in the context of a criminal Supreme Court declined this opportunity who would want to trial. The attorneys contended that lower to uphold journalists’ ability to protect come forward with federal appeals court had recognized a First information essential Amendment reporter’s privilege by hold- confi dential sources, which is an to the well-being of ing that the Court’s Branzburg decision essential tool utilized by a free press in the community and was limited to grand jury proceedings only. newsgathering for the public trust.” the country.” They suggested that Risen’s case presented In an Aug. 14, an opportunity for the Court to recognize 2014 news update on and outline the scope of a qualifi ed First — Bruce D. Brown, the RCFP’s website, Amendment privilege. The attorneys argued Executive Director, Emily Grannis wrote that the Risen case also presented the op- Reporters Committee for Freedom of the Press that several press portunity to recognize and clarify the scope advocacy organiza- of a qualifi ed journalist’s privilege under tions had delivered a federal common law. On March 26, 2014, said, according to Savage. “As long as I’m at- petition with more than 100,000 signatures, several news organizations and reporters’ torney general, someone who is doing their including those of 20 Pulitzer Prize winners, advocacy organizations, including the As- job is not going to get prosecuted.” Accord- to the White House. The petition called on sociated Press, National Public Radio, The ing to a June 27, 2014 New York Times story, the Obama administration to discontinue New York Times, The Washington Post, and the government will likely resume its case the effort to compel Risen’s testimony, call- the Reporters Committee for Freedom of against Sterling soon, which means that ing it “an assault on freedom of the press.” the Press (RCFP), among others, submitted Risen would once again face likely pressure The organizations that initiated the petition an amici curiae brief on behalf of Risen to to testify. The Times reported that despite included the Center for Media and Democ- argue that the Supreme Court should take Holder’s assurances that no journalist would racy, Fairness & Accuracy in Reporting, the case. The organizations argued that the go to jail on his watch, the government Freedom of the Press Foundation, The Na- Court’s refusal to hear any further reporter’s has other options than jail time to compel tion, The Progressive, and RootsAction.org. privilege cases since Branzburg had cre- Risen’s testimony, including asking the trial Several other organizations were listed as ated confusion among lower courts about judge to fi ne Risen or narrowing the scope supporting the petition, including the Com- the application of a privilege and has led to of questioning so Risen would not need to mittee to Protect Journalists, Free Press, journalists being jailed. Amici brief on peti- reveal his source. the Government Accountability Project, the tion for writ of certiorari, Risen v. United The Court’s decision to deny certiorari Project on Government Oversight, Public States, No. 12-1009, 2014 WL 1275185 (2014). also raised the concern of several news Citizen, Reporters Without Borders, and On June 2, the Supreme Court declined to organizations, press advocacy groups, and RCFP. hear Risen’s case without explanation. media observers. According to Liptak’s June Grannis reported that the announcement The New York Times’ Adam Liptak 2 story, The New York Times Executive of the petition’s submission was during an reported in a June 2 story that Risen said, Editor Dean Baquet said that the Court’s Aug. 14 National Press Club event where “I will continue to fi ght,” after the Supreme decision was problematic for reporter- Risen was a featured speaker. Risen said Court’s decision was announced. However, source relationships. “Journalists like Jim that the petition left him “speechless.” “I the Supreme Court’s refusal to hear the case [Risen] depend on confi dential sources to also know that it’s really not about me. means that Risen has exhausted all of his get information the public needs to know,” It’s about some basic issues that affect all legal remedies to fi ght the subpoena. If the said Baquet. “The court’s failure to protect Americans and all journalists,” Risen said, DOJ seeks enforcement of the subpoena journalists’ right to protect their sources according to Grannis. “I’m willing to do this requiring him to testify and he refuses, Risen is deeply troubling.” In the June 27 story, for the future of journalism . . . There’s no could face contempt of court charges and Steven Aftergood, an expert on government way to conduct aggressive investigative the possibility of jail. transparency with the Federation of Ameri- reporting without confi dential sources.” However, Joel Kurtzberg, Risen’s attor- can Scientists, told the Times that Risen’s ney, said that the government could prevent case has the potential to chill reporting. “If CASEY CARMODY such an outcome for the Times journalist. the government proceeds and pursues the SILHA BULLETIN EDITOR “The ball is now in the government’s court,” subpoena, especially if Mr. Risen goes to jail Kurtzberg wrote in an e-mail to the Times or is fi ned at some intolerable level, it will 20 Journalists Arrested During Protests in Missouri; Journalists Abroad Face Dire Situations uring the summer of 2014, McDonald’s dining area. Lowery wrote be so disregarded, particularly after the journalists around the world that he was in the restaurant to recharge journalists identifi ed themselves as mem- faced signifi cant threats of his phone and respond to questions on bers of the press, is almost unthinkable arrest, jailing, and the loss Twitter. Several police offi cers entered the — yet it happened, and happened quite of their lives. In the United McDonald’s and asked Lowery and Huff- violently according to news reports.” States,D racial tensions that erupted into ington Post reporter Ryan Reilly for iden- The RCFP sent a letter on August 15 sustained protests led to situations in tifi cation. The offi cers left but returned a that was addressed to the Ferguson Po- which police offi cers arrested journal- short time later to order everyone to leave lice Department, as well as the St. Louis ists covering the the restaurant. Lowery began recording County Police Department and Missouri ENDANGERED demonstrations. video of his interaction with the offi cers State Highway Patrol, calling on the agen- Abroad, journalists on his phone. An offi cer told him to stop cies to refrain from arresting journalists. JOURNALISTS were detained in Several other press Iran and convicted advocacy groups of “falsifying news” in Egypt. In Iraq, “The actions in Ferguson demonstrate and media organiza- members of a militant group beheaded a lack of training among local law tions also signed journalists who had been missing for enforcement in the protections required the letter, includ- several years. The group posted a video of ing the Associated the executions on YouTube. Several press by the First Amendment as well as Press, the Huffi ng- advocacy organizations have decried the the absence of respect for the role of ton Post, the Fox violence targeted at journalists. The inci- News Network, dents also highlight the dangerous situa- newsgatherers.” The Washington tions journalists fi nd themselves in when Post, the American reporting from areas mired in confl ict. — Letter from Press Advocacy Organizations Society of News to Ferguson Police Department Editors, the Society Journalists Become Targets of of Professional Police in Coverage of Protests over Journalists (SPJ), Shooting recording, but Lowery maintained that he and Reporters Without Borders (RSF), On Aug. 9, 2014, Michael Brown, an un- had the right to do so. Lowery wrote that among others. The organizations ex- armed 18-year-old African American, was he received confl icting information as he pressed concern that law enforcement au- shot and killed after a confrontation with attempted to leave, and, as a result, the thorities had not been more forthcoming a white police offi cer in Ferguson, Mo., a offi cers arrested him for not complying with information about the shooting as suburb of St. Louis. Tensions rose as wit- with directions. Reilly was also arrested. well as the accounts of police hindering nesses’ accounts of the shooting began to Lowery reported that offi cers refused to the newsgathering ability of journalists. confl ict with the law enforcement reports provide any identifi cation information and “Offi cers on the ground must understand of what had happened. Groups began to that the reporters were told they were that gathering news and recording police organize demonstrations on August 10 to arrested for trespassing at McDonald’s. activities are not crimes,” the organiza- protest what they considered to be un- Lowery wrote that he and Reilly were tions wrote in the letter. “The actions in satisfactory responses from government later released without being charged with Ferguson demonstrate a lack of training authorities over the incident. Confronta- a crime or receiving a report of the arrest. among local law enforcement in the pro- tions between demonstrators and the po- On August 18, The Washington Post tections required by the First Amendment lice led to more protests in Ferguson and reported that other journalists had also as well as the absence of respect for the on social media, the escalation of police been arrested, including Robert Klemko role of newsgatherers. We implore police using military-styled tactics to manage of Sports Illustrated, Neil Munshi of the leadership to rectify this failing to ensure demonstrations, and Missouri Gov. Jay Financial Times in Chicago, and Rob that these incidents do not occur again.” Nixon declaring a state of emergency and Crilly of The Telegraph. The police let the The full letter is available online at http:// imposing a city-wide curfew. However, journalists go shortly after the arrests. Ac- www.rcfp.org/sites/default/fi les/2014- the police’s use of force and the enforce- cording to the Post, other journalists had 08-15-Ferguson-media-coalition-letter.pdf. ment of a citywide curfew only escalated also reported that police had threatened On August 15, Politico reported that confl icts during the course of several days to arrest or use mace against them. Missouri law enforcement authorities had throughout August. The city’s history of Law enforcement authorities actions’ come to an agreement with the American race relations — Ferguson’s population is against the press in Ferguson have led to Civil Liberties Union (ACLU) acknowledg- primarily black yet a majority of authori- criticisms from press advocacy organiza- ing that journalists as well as the general ties in government are white — exacer- tions and media observers. In an Aug. 14, public have the right to record the activity bated the tensions in the community. 2014 press release, the Reporters Com- of police as long as the recording does not While covering the unfolding events mittee for Freedom of the Press (RCFP) interfere with law enforcements’ duties in Ferguson, many journalists found Executive Director Bruce D. Brown com- and operations. The Politico story noted themselves swept up in law enforce- mented, “The right to record and report that the agreement came one day after the ment authorities’ attempts to manage on police activities is a First Amendment ACLU had fi led a federal lawsuit against the protestors and demonstrations. On right — and one essential to the journal- Missouri law enforcement authorities August 14, The Washington Post’s Wesley ist’s role as a watchdog and guardian of on behalf of a journalist who the police Lowery reported that police had arrested public accountability for law enforcement had told to stop recording footage. In an him the previous day as he worked in a and other public offi cials. That it should Journalists, continued on page 22 21 Journalists, continued from page 21 prosecution of journalists for reporting in- American and Iranian citizenship. The formation that does not coincide with the newspaper reported that the Iranian August 15 press release, ACLU of Mis- Government of Egypt’s narrative fl outs government had also arrested Iranian souri Legal Director Tony Rothert said, the most basic standards of media free- citizen Yeganeh Salehi, a reporter for “The role of both the media and the ACLU dom and represents a blow to democratic United Arab Emirates newspaper The is to make sure that the rule of law is be- progress in Egypt,” the White House National and Rezaian’s wife, as well as ing followed. It will be easier to do that in wrote in the statement. “As we have said an unnamed freelance journalist who was Ferguson, now that all parties agree the many times before, democracy is about Iranian-Americans with dual citizenship. media, and the public at large, have the more than elections. True democracy News organizations also reported that a right to record police interactions.” requires thriving democratic institutions, fourth journalist was arrested, but later including a vibrant free press that is em- reports were confl icted over whether a Signifi cant Concerns Raised After powered to hold the government account- fourth arrest had taken place. The New Al-Jazeera Journalists Convicted in able to the people.” York Times’ Thomas Erdbrink reported Egypt A December 2013 report by Elana that the unnamed freelance journalist was On June 23, 2014, an Egyptian judge Beiser of the Committee to Protect released on August 21. However, Rezaian convicted three Al-Jazeera journalists of and Salehi remained conspiring with the Muslim Brotherhood in custody. The to broadcast false reports, according to “As we have said many times before, arrests have raised The New York Times. Two of the jour- democracy is about more than elections. alarm among news nalists, Canadian Mohamed Fahmy and organizations and Australian Peter Greste, were sentenced True democracy requires thriving press advocacy to seven years in prison. The other jour- democratic institutions, including a groups because of nalist, Egyptian Baher Mohamed, was vibrant free press that is empowered to the Iranian gov- sentenced to 10 years in prison. Three ernment’s refusal additional journalists were tried in ab- hold the government accountable to the to provide much sentia. The court convicted each one and people.” information about sentenced all to 10 years in prison. the circumstances Fahmy, Greste, and Mohamed were surrounding the arrested in December 2013 based on — White House Statement arrests. accusations that their reporting was sup- on jailed journalists in Egypt The Iranian portive of the Muslim Brotherhood, which government has the Egyptian Government had declared a provided very little terrorist organization the previous week. Journalists (CPJ) listed Egypt as one of explanation for why it arrested the four At the time, the Times reported that the top 10 jailers of journalists. On June journalists. The Associated Press re- several members of the Egyptian blogging 23, Human Rights Watch Middle East ported on August 18 that Gholam Hossein and activist community were surprised Director Joe Stork said in a story on the Mohseni Ejehi, a spokesman for Iran’s about the arrests. Many had viewed the organizations’ website that the sentences justice department, told reporters that journalists’ work as being critical of the of the journalists was a trend in Egypt. the government was in the “initial stages Muslim Brotherhood. In a June 23, 2014 “Unfortunately, today’s verdict is not an of investigation” in its case against the story, Al-Jazeera reported that evidence aberration,” Stork said. “In President journalists, and that the investigation was used against the journalists during the [e]l-Sisi’s Egypt, simply practicing profes- related to “security issues” but refused trial included BBC podcasts, news reports sional journalism is a crime, and the new to further elaborate. The Times’ August that had been published while none of constitution’s guarantees of free expres- 21 report also indicated that the Iranian the journalists were in Egypt, videos sion are not worth the paper they’re government had not been forthcoming and recordings about issues unrelated to written on.” In a statement posted on the about the locations where it was holding Egypt, and a music video by Australian RSF website that same day, RSF Secre- the Rezaian and Salehi. singer Gotye. tary General Christophe Deloire accused In an August 4 op-ed in the Times, The conviction drew the condemna- the Egyptian government of attempting Haleh Esfandiari, the director of the tion of world leaders as well as press and to silence opposing political views. “Not Middle East Program at the Woodrow Wil- human rights advocates. On June 23, the content with criminalizing all political son International Center, suggested that Associated Press reported that Australian opposition, the Egyptian authorities are the arrests of the journalists were related Prime Minister Tony Abbott had said that pursuing a policy of gagging news media to internal confl ict in the Iranian govern- he had discussed Greste’s situation with that try to offer a different take on reality ment. “Jason Rezaian, The Washington Egyptian President Abdel Fattah el-Sisi. “I from the government’s,” said Deloire, ac- Post’s correspondent in Iran, was arrested did make the point that as an Australian cording to the post. in Tehran on July 22 almost certainly not journalist, Peter Greste would not have On Aug. 21, 2014, Al-Jazeera reported because of anything he had written, but been supporting the Muslim Brotherhood, that the journalists had all appealed their because the hard-liners among Iran’s rul- he would have simply been reporting on convictions. The date for a full hearing of ing elite seek to embarrass and weaken the Muslim Brotherhood,” Abbot said, the reporters’ appeal had not yet been set President Hassan Rouhani, a moderate,” according to the Associated Press. “The when the Bulletin went to press. wrote Esfandiari. “For good measure, point I made was that in the long run, they arrested Mr. Rezaian’s wife, Yeganeh a free and vigorous media are good for Washington Post Correspondent, Salehi, also a journalist, and two Ameri- democracy, good for security, [and] good Other Journalists Arrested in Iran can citizens working as freelance journal- for stability.” On July 24, 2014, The Washington Post ists.” The White House also released a reported that its foreign correspondent In a July 28 post on the organization’s statement on June 23 that criticized the in Iran, Jason Rezaian, was arrested in website, the CPJ’s Jason Stern criticized Egyptian trial court’s decision. “The Tehran on July 22. Rezaian holds dual the Iranian government over differing 22 reports on who was arrested and the lack prisoner read a statement that criticized “Foley and thousands of other journalists of information about the arrests. “CPJ the U.S. government’s military actions. risk their lives every day to seek truth is working hard to clarify the confusion The masked man identifi ed the prisoner and report it, and it is unconscionable over who has been arrested and why. as “James Wright Foley, an American citi- they would face intimidation and violence But ultimately the onus falls on Iranian zen of your country,” before beginning the by those who kill innocents for political offi cials to explain,” wrote Stern. “The execution. Later in the video, the masked gain,” the organization wrote in the press confusion could be settled right now if fi ghter threatened to kill another prisoner, release. those responsible for the arrests would who was identifi ed as missing freelance RSF Secretary General Deloire sug- come forward and explain why at least journalist Steven Joel Sotloff, before gested in an August 20 statement on the four more people have been ensnared in saying, “The life of this American citizen, organization’s website that ISIS’ killing the spider web of Iran’s intelligence and Obama, depends on your next decision.” Foley was misguided. “If the authentic- judicial systems. Better yet, they could On August 20, the Times reported that ity of this video claiming responsibility simply release them.” ISIS had previously stated that it would for James Foley’s murder is confi rmed, Amir Bayani of Article 19, an advocacy Islamic State would group for freedom of expression world- seem to be pushing wide, wrote in an August 7 blog post that “Foley and thousands of other journalists its brutal treat- Rezaian and Salehi’s stories had often risk their lives every day to seek truth ment of hostages attempted to provide a positive image to and report it, and it is unconscionable to the extreme,” Iran. “There have been a number of ac- said Deloire in the counts from those who had crossed paths they would face intimidation and statement. “Foley with Rezaian and Salehi who have noted violence by those who kill innocents for did not work for the enthusiasm and love the pair had for the US government. Iran and their exemplary mission to share political gain.” He was an experi- this love with the world,” wrote Bayani. enced international “It is thus more perplexing and perturbing — Society of Professional Journalists Statement reporter whose that the motives of these arrests are so sole interest was to uncertain.” report the news, not Rezaian and Salehi had not yet been release Foley if the United States agreed represent his nation.” released from detention in an unknown to pay a ransom or conduct a prisoner On September 2, The Washington Post location as the Bulletin went to press. swap. However, the United States main- reported that ISIS released another video tains a policy of refusing to negotiate depicting the execution of Sotloff. U.S. Missing American Journalists ransoms or exchanges with groups that intelligence agents determined the next Executed by Islamist Militants in it considers terrorist organizations. The day that the video was authentic, accord- YouTube Videos Times story reported that the U.S. Special ing to the Post. The video surfaced after On Aug. 19, 2014, The New York Times Operations team had attempted to rescue the United States conducted additional reported that the Islamic State of Iraq and Foley during the summer of 2014, but the airstrikes targeting ISIS in Iraq during Syria (ISIS), an extremist Islamist militant mission was unsuccessful. Reuters also late August. In the three-minute video, a group based in the Middle East, had reported on August 21 that Foley’s family masked fi ghter with a British accent said, posted a video on YouTube of a masked received an e-mail from ISIS in Novem- “I’m back, Obama, and I’m back because man beheading journalist James Foley. ber 2013 demanding ransom money. The of your arrogant foreign policy towards Although there were initial questions Foley family did not hear from the mili- the Islamic State.” The video also de- over authenticity, Foley’s family later tant group again until a week before the picted Sotloff reading a statement, saying confi rmed that the person in the video video of Foley’s death was posted online. that he was “paying the price” for U.S. was Foley and that he had been killed. The latter e-mail said that Foley would be foreign policy in the Middle East, before The 40-year-old Foley had been working executed. he was executed. as a freelance journalist for Boston-based Several press advocacy organizations The Washington Post also reported on Internet publication GlobalPost and for have criticized ISIS over the execution September 3 that the masked fi ghter in Agence France-Presse. Foley had been of Foley. In an August 19 statement, CPJ the videos had a British accent, which led missing for nearly two years after he dis- Chairman Sandra Mims Rowe said that to speculation that the same person com- appeared in Syria on Nov. 22, 2012. Foley’s death was troubling. “The bar- mitted the executions in both ISIS videos. On August 20, The Washington Post baric murder of journalist James Foley, Despite several reports that British intel- reported that the video, which YouTube kidnapped in Syria and held almost two ligence analysts were close to identifying later removed, showed a masked ISIS years, sickens all decent people. Foley him, the militant remained unidentifi ed as fi ghter criticizing President Barack went to Syria to show the plight of the the Bulletin went to press. Obama’s decision to engage in military Syrian people, to bear witness to their action against ISIS, calling the decision “a fi ght, and in so doing to fi ght for press slippery slope towards a new war against freedom,” said Rowe in the statement. CASEY CARMODY Muslims,” as he stood beside a kneeling “Our hearts go out to his family, who had SILHA BULLETIN EDITOR prisoner. After a short clip of Obama’s dedicated themselves to fi nding and free- August 7, 2014 press conference an- ing Jim.” On the same day, SPJ issued a nouncing the use of air strikes in Iraq, the press release condemning ISIS’ actions.

23 Court Rules Final Volume of CIA’s “Bay of Pigs” Historical Record May Be Withheld n May 20, 2014, the United make a fi nal decision about an issue. similar to Volume V. Kavanaugh found States Court of Appeals Kessler cited testimony by Martha Lutz, that argument to be unpersuasive, not- for the District of Colum- an information review offi cer with the ing that a requirement for agencies to bia Circuit ruled that a CIA, who had stated that Pfeiffer had release exempted information because Freedom of Information been assigned the task of preparing a similar information had been released OAct (FOIA), 5 U.S.C. § 552, request classifi ed history of the Bay of Pigs. As would “discourage them from volun- by the National Security Archive (the Pfeiffer completed drafts of his reports, tarily releasing information, which Archive) seeking records concern- agency administrators reviewing them would thwart the broader objective of ing the Central Intelligence Agency’s consistently found serious defi ciencies transparent and open government.” (CIA) account of with his work. As a result, the reports Third, the Archive argued that the the April 17, 1961 “never moved beyond the fi rst stage CIA had not identifi ed any specifi c FOIA “Bay of Pigs” inva- of the CIA’s review process,” Kessler harm that would arise from the release sion was protect- wrote. of Volume V. Citing McKinley v. Board ed by Exemption 5 (5 U.S.C. § 552(b) Kessler emphasized that the CIA of Governors of the Federal Reserve (5)). Exemption 5 permits agencies to stated that Volume V “refl ected the System, 647 F.3d 311 (D.C. Cir 2011), withhold records involving an agency’s give-and-take of the consultative Kavanaugh wrote, “Congress enacted “deliberative processes.” National Se- process” because it was a draft history FOIA Exemption 5 . . . precisely be- curity Archive v. Central Intelligence that contained “inaccurate histori- cause it determined that disclosure of Agency, 752 F.3d 460 (D.C. Cir. 2014). cal information” and “controversial material that is both predecisional and The case began in 2005, when the opinions” about the events described. deliberative does harm an agency’s Archive fi led a FOIA request seeking In addition, while compiling Volume V, decision[-]making process.” four of the fi ve volumes of “The Offi cial historians working on the document Fourth, the Archive argued that History of the Bay of Pigs Operation,” for the agency had disagreed about the because more than 50 years had passed a report about the failed invasion of information that was included. Kessler since the Bay of Pigs incident, the Cuba that CIA staff historian Dr. Jack wrote that because the CIA operates deliberative process privilege no longer Pfeiffer had compiled during the 1970s in secrecy with little oversight, the applied. Kavanaugh disagreed, writing and ‘80s. One volume of the histori- agency’s historians struggle to compile that the deliberative process privilege cal documents had been previously accurate reports from the incomplete “generally do[es] not have an expira- released under the Kennedy Assassina- information they receive. “[I]t is par- tion date.” The release of older agency tion Records Collection Act. 44 U.S.C. ticularly important that inhouse histori- documents, like those found in Volume § 2107. The CIA acknowledged that it ans . . . feel free to present their views, V, “would have the effect of chilling had received the Archive’s request in theories, and critiques of the [CIA’s] current and future agency decision[] September 2005, but did not communi- actions,” she wrote. Kessler found that making because agency offi cials — cate further with the Archive. such incomplete drafts fi t within the realizing that the privilege evaporates In April 2011, the Archive fi led suit “predecisional and deliberative” speci- over time — would no longer have the in the United States District Court for fi cations of FOIA’s exemption 5. assurance that their communications the District of Columbia against the Following Kessler’s ruling, the Ar- would remain protected,” he wrote. CIA for failing to respond to its request. chive appealed the case to the United “And without that assurance, they . . . In July 2011, the CIA released volumes States Court of Appeals for the District would not feel as free to advance the I, II, and IV with “minimal redactions.” of Columbia Circuit. In a split deci- frank and candid ideas and advice that However, the CIA refused to release sion, the three-judge panel ruled in help agencies make good decisions.” Volume V, “CIA’s Internal Investigation favor of the CIA, fi nding that Exemp- Finally, the Archive argued that por- of the Bay of Pigs Operations,” claim- tion 5 of FOIA allowed the agency to tions of Volume V might contain factual ing that it was exempt under FOIA’s deny the Archive’s request. Writing for information that was not protected deliberative process privilege exemp- the majority, Judge Brett Kavanaugh under the deliberative process privi- tion, which allows agencies to withhold noted that the Archive had made fi ve lege. The Archive maintained that the “inter-agency or intra-agency memo- arguments for the release of Volume CIA should be obligated to disclose any randums or letters which would not be V. The two judge majority found all of factual information that was “reason- available by law to a party other than the arguments unpersuasive. First, the ably segregable.” However, Kavanaugh an agency in litigation with the agency.” Archive argued that the CIA had never agreed with the district court that In September 2011, the CIA fi led a authorized a fi nal version of Volume V, Exemption 5 protected the entirety of motion for summary judgment with which meant that the draft version of Volume V. He cited the court’s previous the federal district court. On May 10, the historical record was the only one fi ndings to explain that agency histo- 2012, Judge Gladys Kessler granted available. The majority said that “to re- rians are often required to selectively the CIA’s motion, fi nding that the CIA quire release of drafts that never result choose particular factual information had proven that Volume V was both in fi nal agency action would discourage to include in drafts of historical re- predecisional, meaning it was a com- innovative and candid internal propos- cords, which “is part of the deliberative munication occurring before agency als by agency offi cials and thereby con- process” and “involves policy-oriented offi cials made a fi nal decision on an travene the purposes of the privilege.” judgment.” Relying on the precedents, issue, and deliberative, meaning it was Second, the Archive argued that the Kavanaugh held that the factual infor- a record used to help agency offi cials CIA had already released documents Bay of Pigs, continued on page 25 24 Near, Sullivan and the Management of Dissent in American Society Editor’s Note: On April 23, 2014, sions. And while Don always let me K. L. Hall, The Magic Mirror: Law in the School of Journalism and Mass tackle whatever strange topic crossed American History 313 (Oxford Uni- Communication and Silha Center my path, he never would let me get versity Press, 1989). And while we can for the Study of Media Ethics and away with fudging. I hope that what trace the history of citizens using pub- Law hosted “How Far From Near? 50 follows is up to Don’s standards. lic spaces for the purposes of dissent Years of New York Times v. Sullivan in While the U.S. Supreme Court from the liberty tree in revolutionary Minnesota and Beyond: A Symposium cases Near v. Minnesota and New times to the modern-day occupy move- Honoring the Legacy of Silha Profes- York Times v. Sullivan are frequently ment, it was not until 1939, in Hague sor Emeritus Donald M. Gillmor.” The examined from the perspective of their v. CIO, 307 U.S. 496 (1939), that the symposium honored the late Donald impact on press regulation, less exam- U.S. Supreme Court began its explora- M. Gillmor, founding director of the ined is the role these cases have played tion of what we today call the public Silha Center and fi rst Silha Professor in confi guring the contours of the man- forum. See H. Kalven, “The Concept of of Media Ethics and Law. University agement of dissent. Near v. Minnesota, the Public Forum: Cox v. Louisiana,” 1 of Wisconsin-Milwaukee Associate 283 U.S. 697 (1931); New York Times Sup. Ct. Rev. 1 (1965). Professor David S. Allen, a panelist v. Sullivan, 376 U.S. 254 (1964). Both Part of the move toward establish- at the symposium and former student cases come at the beginning of funda- ing the public forum was limiting what of Gillmor, submitted the following mental cultural shifts in the American is known as the police power, and article refl ecting and expanding his understanding of the public forum Chief Justice Charles Evans Hughes thoughts on the cases and legal issues — those spaces where people come devotes a great deal of attention to that discussed during the event. together to freely express themselves task. The police power, the idea that and exchange ideas. See D. S. Allen, the state has the ability to act in ways igging through some old “Spatial Frameworks and the Manage- that will promote the public welfare, fi les in preparing for this ment of Dissent: From Parks to Free E. Freund, The Police Power: Public conference, I stumbled Speech Zones,” 16 Comm. L. & Pol’y Policy and Constitutional Rights 3 upon a paper I wrote 383 (2011). I’d like to explore the ways (Arno Press 1976) (1904), is today for one of Don Gillmor’s that both Near and Sullivan refl ect and rarely linked directly to First Amend- Dseminars in 1989. I had known Don for shape those shifts in our understanding ment questions, but in 1931 it was a three years at that point, having been of the public forum. topic that could not be ignored. his student, a Silha Center fellow, and Much of the discussion of the police his teaching as- Near and the Establishment of the power in those years was shaped by GILLMOR sistant. It was an Idea of the Public Forum the Ernst Freund’s classic work, The TRIBUTE admittedly awful It is diffi cult to imagine that the legal Police Power. Freund, a progressive paper and Don concept of the public forum did not University of Chicago law professor was not letting me exist in the United States at the time of who is often credited with beginning get away with it. Towards the end of the Near decision. The Near decision, the administrative law movement, the paper, Don wrote in red ink in the of course, comes during a fundamental divided ideas about the police power margins: “This paragraph suggests you rethinking of the role of the courts in into three spheres or categories: (1) have no conclusions—you are fudg- protecting civil liberties, and the public a “conceded sphere” where ever- ing!” He was, of course, right. I was forum would become one of those increasing levels of regulation affect fudging and I didn’t have any conclu- areas to be carved out for protection. Near, continued on page 26

Bay of Pigs, continued from page 24 tion of Volume V might reveal policy- and the Federal Reserve Board re- mation could not be separated from the oriented judgements, particularly if the leases its verbatim transcripts after fi ve records that the Archive had requested. agency extracted the facts and pre- years. But here the D.C. Circuit has Finding none of the Archive’s argu- sented them as an “inventory, present- given the CIA’s historical offi ce immor- ments persuasive, the majority af- ed in chronological order.” She also tality for its drafts, because, as the CIA fi rmed the district court’s decision to criticized the lower court for making a argues, those drafts might ‘confuse the grant summary judgment to the CIA. decision without reviewing Volume V public.’” Judge Judith Rogers fi led a dis- in camera, observing that the CIA had At the time the Bulletin went to senting opinion, noting that although admitted in documents presented to press, the Archive had not announced Volume V was the work of only one the court that Volume V contained only whether it would pursue an appeal of person, his work did not proceed be- “a small amount of classifi ed informa- the panel decision. yond the fi rst stage of the CIA’s review tion.” Pfeiffer’s four declassifi ed vol- process and therefore did “not incorpo- On May 21, 2014, the Archive umes are available online at http:// rate information and perspectives that released a statement criticizing the www2.gwu.edu/~nsarchiv/NSAEBB/ would arise from the internal review appeals court ruling. “The D.C. Cir- NSAEBB355/index.htm. process.”As a result, Rogers found no cuit’s decision throws a burqa over the evidence that the contents of Volume V bureaucracy,” Archive director Tom ELAINE HARGROVE could be considered “deliberative.” Blanton said in the statement. “Presi- SILHA CENTER STAFF Rogers further disagreed with the dents only get 12 years after they leave majority that the release of only a por- offi ce to withhold their deliberations, 25 Near, continued from page 25 the eyes of many was giving the courts it clear that the purpose of the public the safety, order and morals of society, more power over public life. Id., at 423. forum is its social nature — its ability (2) a “debatable sphere” concerned It is easy to see this debate refl ected in to bring a diverse citizenry together with the regulation of production and Chief Justice Hughes’ opinion in Near. into a cohesive public. As Clark and distribution of wealth, and (3) an “ex- He paints a dour picture of public life Chafee wrote in the brief: “The infor- empt sphere” where moral, intellectual at that time, with a society that con- mal character of the outdoor meeting is and political movements are protected tains a newspaper industry that suffers often of advantage in developing ques- by individual liberty. Id., at 11. While from “miscreant purveyors of scandal” tions and answers — one of the best Freund admitted that these spheres but also a growing government that is ways of forming public often overlap, this categorization was desperately in need of being checked. opinion . . . [I]t may fairly be said intended to make administrative law As the administration of government that the outdoor meeting is the most not only easier for government to use, becomes more complex, Chief Justice democratic forum of public expres- but also as a way to constrain govern- sion.” Brief for ment. For Freund, “speech and press the Committee on are primarily free, but that does not “While the U.S. Supreme Court cases the Bill of Rights prevent them from being subject to re- Near v. Minnesota and New York Times of the American straints in the interest of good order or v. Sullivan are frequently examined from Bar Association as morality.” Id., at 11. This management Amicus Curiae, of the speech and press was acceptable the perspective of their impact on press at 14, Hague v. as long as it was done in a way that regulation, less examined is the role Comm. Indus. was “uniform, impartial and reason- Org., 307 U.S. 496 able.” Id., at 521. these cases have played in confi guring (1939). The police power and its categori- the contours of the management of Clark, whose zation of public life into spheres was writings have central to the government’s ability to dissent.” generally been manage society, a role that was the forgotten, pub- subject of a wide-ranging societal — David S. Allen, Associate Professor, licly endorsed a pragmatic theory debate among different groups in the University of Wisconsin-Milwaukee of free speech that early to mid 1900s that often divided Department of Journalism, progressives and pragmatists. Broadly envisioned a vital Advertising, and Media Studies speaking, progressives, such as public forum and Freund, were more likely to see a posi- called on cities to tive role for government and elites to Hughes wrote, “[t]he opportunities create “Hyde Park” areas as a way of play in the management of public life, for malfeasance and corruption have protecting the public nature of expres- while pragmatists tended to be more multiplied, crime has grown to most se- sive freedom. See D. S. Allen, “The suspicious of that role. Those differ- rious proportions, and the danger of its Ethical Roots of the Public Forum: ences were captured in John Dewey’s protection by unfaithful offi cials and of Pragmatism, Expressive Freedom, and classic review of Walter Lippmann’s the impairment of the fundamental se- Grenville Clark,” 29 J. Mass Media 1922 book, Public Opinion, (terming curity of life and property by criminal Ethics 138 (2014). That pragmatist vi- Lippmann’s book “perhaps the most alliances and offi cial neglect, empha- sion of the public forum, however, did effective indictment of democracy as sizes the primary need of a vigilant and not last long. currently conceived.” J. Dewey, “Public courageous press, especially in great Opinion,” New Republic, May 3, 1922, cities.” Near, at 719-720. Sullivan and the Categorization of at 286.), but also in pragmatist cri- The solution to this problem for Public Life tiques of administrative law offered by Chief Justice Hughes was not using the While the move away from the prag- Harvard’s Roscoe Pound. R. E. Schiller, police power to limit those miscreants, matist-infl uenced public forum is too “The Era of Deference: Courts, Exper- but to learn to accept the good with complex to detail in any depth in this tise, and the Emergence of New Deal the bad, noting that “[s]ome degree of short space, suffi ce it to say that many Administrative Law,” 106 Mich. L. Rev. abuse is inseparable from the proper ideas and movements converged to 399, 422 (2007). For the progressives, use of everything . . .” Id., at 718. erode the social nature of the public fo- the goal was designing administrative By the end of the decade, the break rum and replace it with one that came agencies that would use the police from the police power in the area of to focus more on individual expres- power wisely and ethically to improve the expressive freedom would be com- sion. One historian has summed up the society. For the pragmatists, the police plete and in Hague v. CIO the court, 1960s and 1970s as a time when society power reserved far too much power through Justice Owen Roberts, planted began moving away from integration to the government and limited the the seeds of the idea of the public and toward diversity, where the nation formation of a true public sphere. In forum. The Hague decision built on a became less a melting pot and more a some ways, as the Near decision came view of society heavily infl uenced by cluster of discrete peoples and cul- before the U.S. Supreme Court, the pragmatism — an infl uence that be- tures. B. J. Schulman, The Seventies: pragmatists were winning. As Reuel comes clear by examining the work of The Great Shift in American Culture, Schiller has argued, the Near decision the American Bar Association’s Com- Society, and Politics 68-71 (Da Capo came at a time of growing skepticism mittee on the Bill of Rights. The com- Press, 2001). about not only the police power, but mittee’s infl uential friend-of-the-court The Sullivan decision’s impact also about the ability and wisdom of brief in Hague, written by New York on the public forum lies less in what putting too much power in the hands lawyer Grenville Clark and Harvard it said about dissent and more in the of administrative experts. The cure in professor Zechariah Chafee, Jr., makes structure of public life put forward 26 by Justice William Brennan's opinion. transit system did not violate the First by the type of space people use for While his call for “uninhibited, robust Amendment, Brennan dissented. 418 expressive purposes — a doctrine that, and wide-open” speech on “public U.S. 298, 308 (1974). In doing so, he as Robert Post has noted, is “virtually issues” was a powerful call to protect made a distinction between two types impermeable to common sense.” R. dissent, Sullivan, at 270, at times that of government property—public and C. Post, “Between Governance and statement is diffi cult to square with the nonpublic forums. The determination Management: The History and Theory Court’s future actions. is made by examining the “primary use of the Public Forum,” 34 UCLA L. Rev. Much of this tension can be traced to which public property or facility is 1713, 1715 (1987). But what is more to Justice Brennan’s categorization committed and the extent to which diffi cult to consider is how Justice of public life. He begins in Sullivan that use will be disrupted if access” is Brennan’s Sullivan decision leads us to by limiting the decision to “public allowed. Id., at 312. today’s version of expressive freedom offi cials” and speech about “offi cial — a freedom that conduct” — terms that he refused to “Near and Sullivan refl ect fundamental is dominated by defi ne in any specifi city, Sullivan, at zoning rules and 284 — and starts the Court on its jour- shifts in thinking about the role that spatial regula- ney toward not only the categorization government and the courts play in the tions and fi lled of libel plaintiffs but the categorization with “free speech of other areas of expressive freedom. management of dissent within society zones,” “cages,” The role categorization plays in and help us understand where we are “pens,” and “buf- democratic life was not exactly a new fer zones.” These idea in 1964. A wide range of scholars today.” areas tend to from Immanuel Kant to Max Weber paint a picture of to Michel Foucault have noted the — David S. Allen, Associate Professor, democracy and importance of categorization and have University of Wisconsin-Milwaukee dissent as being an helped us understand the paradox it Department of Journalism, abhorrent, fearful presents for democratic life — that Advertising, and Media Studies activity, some- while categories help us understand thing with which our world, they also serve as instru- citizens are not ments through which power is exer- It didn’t take long, however, for Jus- invited to engage. That is a picture of cised and established. See R. Jones, tice Brennan to recognize the paradox democracy that is very different from “Categories, Borders and Boundaries,” of categorization. In a 1976 case where the picture of democracy offered by 33 Progress in Human Geography the majority found that it was accept- either Justice Brennan or the pragma- 174, 176 (2009). For the Warren Court able for partisan political activities to tists. at the time of the Sullivan decision, be prohibited on the public grounds of To conclude — and trying to do categorization was seen as a way of in- a military base primarily because it was so without fudging too much — for sulating free-speech decisions from the not considered a public forum, Justice me Near and Sullivan are important vagueness of balancing tests. See J. H. Brennan again dissented. Denying that far beyond their impact on press Ely, “Flag Desecration: A Case Study in the categorization of the public space, law. They refl ect fundamental shifts the Roles of Categorization and Balanc- which he helped launch, was the domi- in thinking about the role that gov- ing in First Amendment Analysis,” 88 nant way of evaluating First Amend- ernment and the courts play in the Harv. L. Rev. 1482, 1500 (1975). ment issues, Brennan also began to management of dissent within society It wasn’t long before the categoriza- see the problems that categorization and help us understand where we are tion introduced in Sullivan began to might raise for freedom of expression. today. While Near began the move spread to the management of other As he noted, “[W]ith the rigid char- to limit the use of the police power areas of public life. Specifi cally, the acterization of a given locale as not a because of a mistrust of government, Court began to use categorization as public forum, there is the danger that Sullivan — perhaps unintentionally — a new way to think about the public certain forms of public speech at the allows the police power to creep back forum. Beginning in 1972, the Court locale may be suppressed even though into the management of public life began categorizing public space they are basically compatible with the under the cloak of the categorization of eventually evolving into today’s public activities otherwise occurring at the public life. forum doctrine. locale.” Greer v. Spock, 424 U.S. 828, ;In ; addition to categorizing libel 860 (Brennan, J., dissenting). plaintiffs, Justice Brennan was also one Despite Justice Brennan’s objec- DAVID S. ALLEN, of the fi rst to categorize public space. tions, the die had been cast. The public ASSOCIATE PROFESSOR In the 1974 case Lehman v. City of forum doctrine continued to develop UNIVERSITY OF WISCONSIN-MILWAUKEE Shaker Heights, where the majority of with multiple permutations until we DEPARTMENT OF JOURNALISM, the Court found that a city’s decision to arrive at the point today where expres- prohibit political advertisements on its sive freedom is largely determined ADVERTISING, AND MEDIA STUDIES

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