A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2016 Gawker Shuts Down After Losing Its Initial Appeal of $140 Million Judgment in Privacy Case n Aug. 22, 2016, celebrity and media gossip to an investigation that the FBI conducted into an alleged website Gawker ceased operations after losing extortion attempt against Hogan by a third party. The records its initial appeal of a $140 million judgment in a were unsealed on March 18 while jurors were deliberating and March 2016 trial court battle with Terry Bollea, contained statements that Hogan, Clem, and Cole gave to the better known as professional wrestler Hulk FBI under oath that directly contradicted sworn deposition Hogan.O The closure came after several tumultuous months for statements given to Gawker’s attorneys in 2015. In April 2016, Gawker’s parent company, Gawker Media, in which Florida Gawker fi led motions in the Florida state trial court asking state courts denied motions that the $140 million judgment Judge Campbell to overturn the jury’s verdict or to greatly be stayed pending appeal, bankruptcy fi lings, and revelations reduce the damages awarded to Hogan. (For more on the that a billionaire tech entrepreneur funded Hogan’s lawsuit as background of the legal dispute between Gawker and Hogan, part of a personal vendetta against the media company. The see “Gawker Faces $140 Million Judgment after Losing Privacy fi nal blow against Gawker came on August 16 after Gawker Case to Hulk Hogan” in the Winter/Spring 2016 issue of the Media was sold during a bankruptcy auction to Univision Silha Bulletin.) Communications Inc., which opted to close down the gossip website. Many legal observers remained divided over the Billionaire Tech Investor Revealed as Secret Financer end of Gawker’s operations. Some critics suggested that of Hogan Lawsuit Gawker could only blame itself for its legal woes, while other Prior to the court ruling on the motions, The New York commentators argued that the tech investor’s involvement Times reported on May 24, 2016 that Denton suspected that an in Gawker’s demise was a worrisome development for unknown third party was fi nancing Hogan’s lawsuit because independent journalism. several new lawsuits had been recently fi led against Gawker Gawker’s legal troubles began in 2012 after it published by several other plaintiffs, many of whom were represented a story titled “Even for a Minute, Watching Hulk Hogan by Hogan attorney Charles J. Harder. “My own personal Have Sex in a Canopy Bed is Not Safe For Work but Watch hunch is that it’s linked to Silicon Valley, but that’s nothing It Anyway,” written by then-editor-in-chief A.J. Daulerio. really more than a hunch,” Denton told the Times . “If you’re The story contained a one-and-a half-minute excerpt from a a billionaire and you don’t like the coverage of you, and you 30-minute video recording from 2007 of Hogan engaging in don’t particularly want to embroil yourself any further in a various sexual acts with Heather Cole, then-wife of radio host public scandal, it’s a pretty smart, rational thing to fund other and Hogan friend “Bubba the Love Sponge” Clem. The story legal cases.” also contained a written description of the remainder of the The Times also reported that Hogan’s legal team had made video as well as commentary by Daulerio about the public’s several unusual economic decisions throughout the course of fascination with celebrity sex tapes. In December 2012, the lawsuit against Gawker, such as refusing to accept sizable Hogan fi led a lawsuit against Gawker Media, its founder Nick settlement offers from Gawker Media as well as deciding to Denton, and Daulerio in a Florida state circuit court alleging drop a negligent infl iction of emotional distress allegation. claims of invasion of privacy and intentional infl iction of The emotional distress claim would have required Gawker’s emotional distress. Hogan sought approximately $100 million insurance company to provide fi nancial support to the in damages. Following several years of procedural delays and website’s legal defense and provide funds toward any potential pretrial proceedings, the lawsuit went to trial in March 2016. settlement. Larry Geneen, a risk management consultant, The approximately two-week trial ended on March 18 when a told the Times that the latter decision by Hogan’s legal team jury awarded Hogan $55 million for economic injuries and $60 was an atypical development. “It’s a very unusual thing to do, million for emotional distress. The jury later awarded Hogan because the insurance company would have deeper pockets $25 million in punitive damages. Adding further complexity to than Gawker,” Geneen said. “I’ve never had a situation where the case, the Florida Court of Appeal for the Second District the plaintiff intentionally took out the claim involving the overturned a decision made by Judge Pamela Campbell, who insurance company.” oversaw the Gawker trial, to seal several court records related Gawker , continued on page 3 Inside This Issue Summer 2016: Volume 21, No. 3

1 Gawker Shuts Down After Losing Its Initial Appeal of $140 22 2016 Presidential Candidates Present Challenges for Free Million Judgment in Privacy Case Expression

Cover Story Freedom of Press

6 Sixth Circuit Rules that Booking Photos Implicate Privacy 25 Revenge Porn Remains Controversial Topic for State and Interests Under FOIA Federal Legislatures FOIA Online Speech

8 D.C. Circuit Upholds “Net Neutrality” Rules 28 Data Breaches Continue to Plague Social Networking Websites, Government Agencies, and News Organizations FCC Data Privacy 10 President Obama Signs Law Making Signifi cant 31 Critics Raise Privacy Concerns over Pokémon Go Amendments to the Freedom of Information Act Data Privacy FOIA 33 Department of Defense Revises Law of War Manual after 12 Right to Be Forgotten Continues to Create Challenges for Criticisms from Journalistic Community Online Entities Newsgathering International News 34 State Legislatures, Courts Consider Media Law Issues 19 Supreme Court Issues Long-Awaited Spokeo Ruling State Law Updates Data Privacy 39 Free Expression Controversies on College Campuses to be 20 Eighth Circuit Overturns Jesse Ventura’s Victory in Libel Topic of 31st Annual Silha Lecture and Unjust Enrichment Suit Silha Center Events Defamation

SILHA C ENTER S TAFF

JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW

CASEY C ARMODY SILHA BULLETIN E DITOR

SCOTT M EMMEL SILHA R ESEARCH A SSISTANT

RONALD W ACLAWSKI SILHA R ESEARCH A SSISTANT

ELAINE H ARGROVE SILHA C ENTER S TAFF

2 Gawker , continued from page 1 legal victory over Gawker had little to do with the outcome Later on May 24, Forbes reported that Peter Thiel, of the case. In a May 26 post on The Volokh Conspiracy blog, billionaire tech investor and co-founder of online payment Northwestern University School of Law Professor Eugene service company PayPal, had been secretly funding Hogan’s Kontorovich wrote that Thiel’s actions were immaterial if lawsuit against Gawker. Forbes wrote that Thiel’s involvement Hogan’s claims against Gawker were legitimate. “Critics of appeared to be driven by a personal vendetta against the Thiel’s role in the Gawker case argue that it is particularly online gossip website. In 2007, Gawker spin-off website inappropriate because they think he is motivated by ‘revenge’ Valleywag , which focused on Silicon Valley gossip and rumors, over the gossip site’s earlier publication of stories about his outed Thiel as gay despite his attempts to conceal his sexual private life,” Kontorovich wrote. “But if the lawsuit is not orientation. The investor later said that Valleywag had the frivolous, it is hard to see how the motivations of funders “psychology of a terrorist” and likened it to Al-Qaeda, a are relevant (or discernible). One would not say a civil rights terrorism organization. organization could not accept donations from philanthropists In a May 25 interview with The New York Times, Thiel confi rmed that he had funded Hogan’s lawsuit. He explained “I saw Gawker pioneer a unique and that Gawker’s stories about him, his friends, and others had “ruined people’s lives for no reason.” As a result, Thiel began incredibly damaging way of getting funding a team of lawyers to help attention by bullying people even when “victims” bring lawsuits against Gawker. there was no connection with the public COVER STORY “It’s less about revenge and more about specifi c deterrence,” Thiel told the interest. . . . I thought it was worth Times . “I saw Gawker pioneer a unique fi ghting back.” and incredibly damaging way of getting attention by bullying people even when there was no connection with public — Peter Thiel, interest. . . . I thought it was worth fi ghting back.” Billionaire tech investor and PayPal Co-Founder The Times also noted that Thiel, a member of Facebook’s governing board, had previously donated money to press- advocacy group Committee to Protect Journalists and often angered by a personal experience with discrimination. All spoke about maintaining strong protections for freedom of Thiel has done is cut out the middleman.” speech. Thiel told the Times that his legal pursuit of Gawker However, several other legal commentators and press did not confl ict with his free expression advocacy. “I refuse advocates expressed concerns over Thiel’s funding of to believe that journalism means massive privacy violations. I Hogan’s lawsuit against Gawker. In a June 10 discussion on think much more highly of journalists than that. It’s precisely the National Constitution Center’s “We the People” podcast, because I respect journalists that I do not believe they are Director of the Silha Center and Professor of Media Ethics endangered by fi ghting back against Gawker,” Thiel said. and Law at the University of Minnesota Jane Kirtley said that “It’s not like it is some sort of speaking truth to power or Thiel’s pursuit of Gawker was dangerous for press freedom. something going on here. The way I’ve thought about this is “It’s not illegal for somebody to bankroll this litigation, but I that Gawker has been a singularly terrible bully. In a way, if I think it is very troubling that we did not have, until ultimately didn’t think Gawker was unique, I wouldn’t have done any of the press dug it out, transparency about who was really this. If the entire media was more or less like this, this would behind the money that was being spent on this case,” Kirtley be like trying to boil the ocean.” Thiel also confi rmed to the said. “I realize that a lot of people regard Gawker, at best, as Times that he had provided fi nancial backing to several other a poor relation to traditional news media sources, but there’s lawsuits that had been brought against in Gawker in recent a long history in this country of unconventional news media years but did not provide further details. sources breaking very important stories. The fact that we After Thiel’s confi rmation of involvement with the Hogan are talking about an organization that many people regard as suit, Gawker Media founder Denton published an open letter little more than a pretty spurious gossip organ is something I on Gawker on May 26 that criticized the tech investor’s covert understand. But it doesn’t seem to me to change the concern involvement in the lawsuits against the website. “Peter, this that people should have that [Gawker] gets run out of business is twisted. Even were you to succeed in bankrupting Gawker by this kind of litigation. . . . I cannot say that I don’t think Media, the writers you dislike, and me, just think what it this is troubling, either that somebody outside, without being will mean. The world is already uncomfortable with the transparent about it, is funding litigation or that a judgment of unaccountable power of the billionaire class, the accumulation this nature would put an organization out of business. To me, of wealth in Silicon Valley, and technology’s infl uence over the those are very disturbing [developments].” media,” Denton wrote. “You are a board member of Facebook, which is under [C]ongressional investigation after our site Gawker Declares Bankruptcy After Losing Motions to Gizmodo reported on the opaque and potentially biased way Dismiss it decides what news sources are seen by its billions of users. On May 25, 2016, the Tampa Bay Times reported Florida Now you show yourself as a thin-skinned billionaire who, Circuit Court Judge Pamela Campbell denied Gawker’s motion despite all the success and public recognition that a person requesting that she overturn the jury’s verdict or reduce the could dream of, seethes over criticism and plots behind the $140 million in damages awarded to Hogan. The decision came scenes to tie up his opponents in litigation he can afford better one day after Forbes reported that Thiel had funded Hogan’s than they.” civil suit. The Tampa Bay Times noted that Judge Campbell’s After the investors’ involvement was confi rmed, some legal denial of Gawker’s motions created a signifi cant challenge for observers argued that Thiel’s fi nancial assistance in Hogan’s Gawker, continued on page 4 3 Gawker , continued from page 3 the sort of headline price that Henry After the sale, The Wall Street Gawker to continue litigation because, Blodget or Arianna Huffi ngton received Journal reported on August 18 that Business Insider under Florida law, the website would when selling to Axel Univision Communications announced Huffi ngton Post be required to post a $50 million bond Springer and to AOL. that it would end Gawker’s operations prior to appealing the jury’s decision. So be it,” Denton added. “Where it ends the following week. However, Univision Gawker had previously stated in court up, the purchase price will also refl ect Communications said that it planned documents that its net worth was $83 the editorial choices we have made. to continue the operations of several of million in 2015, according to the Tampa Nobody goes into the news business, Gawker Media’s other websites, such as Bay Times. certainly not the convention-breaking sports-focused Deadspin, feminist blog On June 10, 2016, Slate reported that news we and our readers love, simply to Jezebel, and tech-oriented Gizmodo, Gawker had announced it had fi led for get rich. Better to risk, to win some and among others. The Wall Street Journal Chapter 11 bankruptcy protection after lose some, than pursue the path of least also noted that Denton had sent a memo Judge Campbell ruled that the website offense — at least if you’re a journalist.” to Gawker staff indicating that he was would be required to post the $50 million leaving Gawker bond. Gawker’s decision to fi le for “It’s not illegal for somebody to Media in the bankruptcy was a strategic move that wake of its sale. would allow it to continue to operate bankroll this litigation, but I think it is “Sadly, neither I while it began the process of appealing very troubling that we did not have, nor Gawker.com, the $140 million judgment, according the buccaneering until ultimately the press dug it out, fl agship of the to Slate. By entering into bankruptcy, transparency about who was really Gawker was able to automatically halt group I built with the collection of the judgment and could behind the money that was being spent my colleagues, are prevent Hogan from attempting to seize on this case.” coming along for its assets as a form of payment. Slate this next stage,” Denton wrote reported that declaring bankruptcy — Jane Kirtley, also allowed Gawker to avoid paying in the memo, Director of the Silha Center and according to the $50 million bond in order to appeal Silha Professor of Media Ethics and Law the judgment. The Hollywood Reporter The Wall Street noted on June 10 that Gawker’s Journal. “Desirable bankruptcy fi ling indicated that it had though the other less than $100 million in assets and its properties are, we have not been able to Gawker biggest creditor was Hogan. As part of Sold to Univision, Ends fi nd a single media company or investor the bankruptcy proceedings, Gawker Operations willing also to take on Gawker.com. Forbes Media also agreed to put itself up for On Aug. 16, 2016, reported The campaign being mounted against sale through a bankruptcy auction. that Univision Communications, Inc. its editorial ethos and former writers Politico Media reported on June 10 had agreed to purchase Gawker Media’s has made it too risky. I can understand that publishing company Ziff Davis had assets for approximately $135 million, the caution.” Gawker formally ceased entered an initial bid of approximately outbidding Ziff Davis’ initial $90 million operations on August 22. $90 million for Gawker Media’s assets. offer during the bankruptcy auction The announcement of the demise In a June 15 post on Gawker, Denton that began in June 2016. Univision of Gawker raised concerns among wrote that fi ling for bankruptcy would Communications, best known for its many news industry observers and not interrupt the day-to-day business Spanish-language television channel, press advocates. In an August 17 of Gawker or any of Gawker Media’s had been in talks with Gawker Media commentary for Time magazine, staff other websites. “The future of the to make an investment in the company writer Jack Dickey, who formerly business is secured by a provisional earlier in 2016 but backed out because worked for Deadspin, argued that the sale agreement with Ziff Davis, and of the Hogan verdict, according to sale of Gawker Media to Univision Forbes by our fi ling on Friday for Chapter 11 . That same day, Denton released Communication was a troubling sign protection,” Denton wrote. “The legal a statement explaining that the sale for independent media organizations. battle, separated from the ongoing was in the best interest of his company. “Gawker [Media] isn’t going out of business, moves onto the next round. “Gawker Media Group has agreed this business, but Thiel’s gambit worked. The The spirit that animates Gawker remains evening to sell our business and popular sites are losing their independence — strong. The free press is vigorous. And brands to Univision, one of America’s and what a loss that is,” Dickey wrote. the power of a shadowy billionaire looks largest media companies that is rapidly “[Stories about late Toronto Mayor Rob much less alarming now that it has assembling the leading digital media Ford smoking crack, revelations that emerged blinking into the spotlight.” group for millennial and multicultural Notre Dame football player Manti Te’o’s “Yes, Peter Thiel’s covert legal audiences,” Denton said in the August deceased girlfriend never existed, and Forbes vendetta has undoubtedly depressed 16 statement, according to . “I reports on iPhone prototypes, among Gawker Media Group’s valuation. His am pleased that our employees are others, are] stories any outlet would onslaught, prompted by items about protected and will continue their work have chased and published. But others Thiel and his friends on Gawker’s under new ownership — disentangled could be touched only by Gawker sites, Valleywag , has been fi nancially draining. from the legal campaign against the unencumbered as they were by fi nancial Whoever buys us, it will not be for company.” relationships with major entities.

4 The company’s goals fl owed from its or maybe it didn’t even know how to practiced radical transparency. . . . In editorial mission rather than its business operate the brakes. It slammed into a cultural and business terms, this is an aims. Even when Gawker announced tree or crashed through the guardrail act of destruction, because Gawker. aspirations to transcend publishing and over the cliff or [insert a visual of com was a popular and profi table and become a major tech player, those your choice here, with the horror level media property — before the legal bills initiatives never came together well depending on whether or not you or any mounted. Gawker will be missed. But in enough to displace journalism as the of your colleagues or friends or family dramatic terms, it is a fi tting conclusion company’s primary business.” have ever been brutalized by Gawker] to this experiment in what happens In an August 18 column, Washington (sic). By the logic of this narrative, when you let journalists say what they Post media critic Erik Wemple argued Gawker killed itself. We can’t rule it a really think.” that Gawker had held media, celebrity, suicide, though, because clearly Gawker However, Thiel had continued to and political elites accountable despite didn’t intend to die. But maybe it was defend his legal pursuit of Gawker in its often missteps. “Whether the fi gure more along the lines of, say, autoerotic an August 15 op-ed for The New York was Brian Williams or Hulk Hogan, asphyxiation.” Times . “[Hogan] could not have secured Gawker was hellbent on publishing In a fi nal post on Gawker published justice without a fi ght, and he displayed things about [elites] that other media on August 22, Denton defended the great perseverance. For my part, I am outlets wouldn’t even allow into an site’s work during the 13 years of its proud to have contributed fi nancial editorial meeting. Though the site was operation while also criticizing Thiel’s support to his case. I will support him a general-interest affair with obsessions role in the Hogan litigation. “Gawker’s until his fi nal victory — Gawker said it in politics, entertainment and culture, intends to appeal its essence involved shoving a [fl ash “Gawker ’s record for accuracy is — and I would light] in the eyes of celebrities, media excellent. For a site as reckless as it gladly support types and politicians. The site believed someone else in in this mission so much that it applied is purported to be, there have been no the same position,” the treatment to its own boss, [Denton], Jayson Blairs, no confl ict-of-interest Thiel wrote. “The who’d risen to media elitism himself or plagiarism or scandals, no career- defense of privacy through the growth of Gawker Media,” in the digital age Wemple wrote. “It’s no wonder that ending corrections. The chief rule of is an ongoing elites brought the site down. Little did establishment journalism that it violated cause. As for Gawker, or the rest of the world, know to its detriment, it seems, is the one Gawker, whatever that Peter Thiel . . . had bankrolled good work it did Hogan’s legal action against the that recommends against pissing off will continue site, as well as other proceedings. billionaires.” in the future, That tidbit emerged after the trial. and suggesting Extreme journalism had met extreme — Nick Denton, otherwise would manipulation of the civil justice system. Gawker Media Founder be an insult to What ensued is a great loss for the its writers and United States, if for no other reason than to readers. It is that Gawker.com pushed the limits of record for accuracy is excellent,” ridiculous to claim that journalism propriety in hammering the powerful. A Denton wrote. “For a site as reckless as requires indiscriminate access to mainstream media too inclined to coddle it is purported to be, there have been people’s sex lives. A free press is vital these people has now lost a running no Jayson Blairs, no confl ict-of-interest for public debate. Since sensitive example of journalistic fearlessness. or plagiarism scandals, no career- information can sometimes be publicly And occasional recklessness, too.” ending corrections. The chief rule of relevant, exercising judgment is always Others were less laudatory when establishment journalism that it violated part of the journalist’s profession. refl ecting on the end of Gawker. In an to its detriment, it seems, is the one It’s not for me to draw the line, but August 22 commentary, Ad Age editor- that recommends against pissing off journalists should condemn those at-large Simon Dumenco argued that billionaires.” who willfully cross it. The press is too Gawker only had itself to blame for its “Peter Thiel has gotten away with important to let its role be undermined demise. “Peter Thiel, backer of Hulk what would otherwise be viewed as an by those who would search for clicks at Hogan’s lawsuit, which drove Gawker’s act of petty revenge by reframing the the cost of the profession’s reputation.” parent company Gawker Media into debate on his terms,” Denton added. As the Bulletin went to press, bankruptcy, is responsible for Gawker’s “Having spent years on a secret scheme Gawker’s appeal of the $140 million death — that’s the prevailing media to punish Gawker’s parent company and judgment in favor of Hogan remained narrative. (‘Peter Thiel Just Got His writers for all manner of stories, Thiel in its initial stages before the Florida Wish: Gawker is Shutting Down’ is has now cast himself as a billionaire Second District Court of Appeal as a how Wired put it.) But of course, privacy advocate, helping others whose result of the company’s decision to fi le there’s a parallel narrative, 13 years in intimate lives have been exposed by the bankruptcy in June 2016. the making: Gawker ran itself off the press. It is canny positioning against road,” Dumenco wrote. “Gawker simply a site that touted the salutary effects CASEY C ARMODY didn’t know when to hit the brakes — of gossip and an organization that SILHA BULLETIN E DITOR

5 Sixth Circuit Rules that Booking Photos Implicate Privacy Interests Under FOIA n July 2016, the U.S. Court of However, that view began to change in immediately after [an individual is] Appeals for the Sixth Circuit held 2011 as the Tenth Circuit and Eleventh accused, taken into custody, and that criminal defendants have Circuit ruled that booking photos could deprived of most liberties’ — fi t squarely a non-trivial privacy interest in interfere with individuals’ privacy within [the] realm of embarrassing and booking photos, also known as interests, disagreeing with the Sixth humiliating information,” Judge Cook Imug shots, in relation to Freedom of Circuit’s analysis in Free Press I. wrote, citing an Eleventh Circuit decision Information Act (FOIA), 5 U.S.C. § 552. The DOJ appealed the ruling to the holding that the disclosure of booking Detroit Free Press, Inc. v. U.S. Dep’t U.S. Court of Appeals for the Sixth photos raised privacy concerns. “More of Justice (Free Press II), No. 14-1670, Circuit. In August 2015, a three-judge than just ‘vivid symbol[s] of criminal (6th Cir. July 14, 2016). The 2016 ruling panel for the Sixth Circuit upheld the accusation,’ booking photos convey reverses a 20-year- district court’s ruling, holding that it guilt to the viewer. Indeed, viewers so old decision by was bound by Free Press I’s precedent uniformly associate booking photos with FOIA the Sixth Circuit that booking photos did not fall within guilt and criminality that we strongly holding that the scope of FOIA’s privacy exemptions. disfavor showing such photos to criminal government offi cials were required Detroit Free Press, Inc. v. U.S. Dep’t juries.” under FOIA to release booking photos of of Justice, 796 F.3d 649 (6th Cir. 2015). Judge Cook’s opinion largely focused criminal defendants because defendants However, the three-judge panel’s per on the differences between privacy inter- lacked any privacy interest in the photos. curiam opinion “urge[d] the full court ests in 1996 and 2016. “Disclosed booking Detroit Free Press, Inc. v. U.S. Dep’t of to reconsider the merits of Free Press I,” photo casts a long, damaging shadow Justice (Free Press I), 73 F.3d 93 (6th Cir. noting the confl icting rulings coming out over the depicted individual,” wrote 1996). The appellate court’s 2016 decision of the Tenth and Eleventh Circuits. On Judge Cook. “In 1996, when we decided raised concerns among several advocates Nov. 20, 2015, the Sixth Circuit voted to Free Press I, booking photos appeared on for government transparency. Meanwhile, rehear the case en banc. television or in the newspaper and then, privacy advocates argued that the Sixth In a Nov. 23, 2015 post on Squire for all practical purposes, disappeared. Circuit’s decision provided necessary Patton Boggs LLP’s Sixth Circuit Today, an idle internet search reveals the protections in an era when easy access Appellate Blog, Justin Jennewine wrote same booking photo that once would to digital content can often impede upon that the Sixth Circuit’s decision to review have required a trip to the local library’s individual privacy rights. the case en banc was not surprising due microfi che collection. In fact, mug-shot The case arose in 2013 after the to the nature of the per curiam opinion websites collect and display booking United States Marshals Service (USMS), that the three-judge panel issued. “Given photos from decades-old arrests: Busted- a sub-division of the U.S. Department the recent reluctance to grant en banc Mugshots and JustMugshots, to name a of Justice (DOJ), denied a Detroit Free review, the Sixth Circuit’s decision to couple. . . . Desperate to scrub evidence Press FOIA request for the mug shots rehear Free Press II demonstrates the of past arrests from their online footprint, of four Michigan police offi cers charged signifi cance of the issue,” Jennewine individuals pay such sites to remove their with bribery and drug conspiracy. In wrote. “The majority of the Sixth Circuit’s pictures. Indeed, an online-reputation- denying the request, the USMS cited opinion in Free Press II was dedicated management industry now exists, promis- FOIA Exemption 7(C), which permits to discussing the factors that merit ing to banish unsavory information — a agencies to deny requests for “records reversing the holding in Free Press I, and booking photo, a viral tweet — to the or information compiled for law it appears that a majority of the judges in third or fourth page of internet search enforcement purposes, but only to the the Sixth Circuit agree that the issue is results, where few persist in clicking. extent that the production of such law one that demands a closer review.” The steps many take to squelch publicity enforcement records or information On July 14, 2016, the full U.S. Court of of booking photos reinforce a statutory . . . could reasonably be expected to Appeals for the Sixth Circuit ruled 9-7 in privacy interest.” constitute an unwarranted invasion of favor of the DOJ, determining that federal As a result, the appellate court said personal privacy.” 5 U.S.C. § 552(b)(7) authorities can withhold booking photos that individuals have a non-trivial privacy (C). The Detroit Free Press then fi led of criminal defendants under Exemption interest in their booking photos. The a lawsuit against the DOJ in the U.S. 7(C) of FOIA after considering privacy court wrote that this determination District Court for the Eastern District interests. Judge Deborah Cook, writing meant that agencies receiving FOIA of Michigan in order to require the for the nine-judge majority, explained requests for booking photos must balance department to comply with FOIA. In that technology and society had changed individuals’ privacy interests against 2014, the federal district court granted signifi cantly since the Sixth Circuit’s 1996 the public’s interest on a case-by-case summary judgment in favor of the ruling in Free Press I. Judge Cook wrote basis. “In 1996, this court could not have newspaper, holding that the Sixth that these changes had rendered Free known or expected that a booking photo Circuit’s 1996 decision in Free Press I Press I “untenable” and that, contrary could haunt the depicted individuals required that DOJ disclose the requested to Free Press I, individuals do have a for decades. Experience has taught us photos. In Free Press I, the Sixth Circuit non-trivial privacy interest in having their otherwise,” Judge Cook wrote. “As the ruled that the public’s access to federal booking photos shielded from the public. Tenth and Eleventh Circuits recognize, booking photos was not an invasion “Booking photos — snapped ‘in the individuals have a privacy interest in of criminal defendants’ privacy rights. vulnerable and embarrassing moments preventing disclosure of their booking 6 photos under Exemption 7(C). Of course, dear a cost to pay for the mirage of maintained that booking photos should some public interests can outweigh the privacy that the majority has to offer. I not be completely withheld from the privacy interest, but Free Press I wrongly respectfully dissent.” public either. “Secret arrests are bad, set the privacy interest at zero. We Judge Boggs cited several public period,” Samuelson told the Star overrule Free Press I, reverse the grant interest reasons for the release of Tribune . “You don’t want it to be secret, of summary judgment, and remand to the booking photos, including public because you want to know where the guy district court for proceedings consistent confi dence in the criminal-justice system. is.” with this opinion.” “Public oversight is essential in criminal In a July 14 interview with the Detroit Chief Judge R. Guy Cole Jr. wrote proceedings, in which the government Free Press, Orrick, Herrington & Sutcliff a concurring opinion, fi nding the wields the power to place the individual LLP partner Robert Loeb, who argued the majority’s opinion “persuasive,” and in jeopardy of imprisonment,” wrote case on behalf of the newspaper, said that further emphasizing the changes between Judge Boggs. “Closing a window into the Sixth Circuit’s decision incorrectly 1996 and 2016. “Twenty years ago, we such proceedings undermines the equated embarrassing information with thought that the disclosure of booking public confi dence that is essential to the right to privacy. Loeb argued that the photographs, in ongoing criminal any effective criminal-justice system.” government was more concerned about proceedings, would do no harm. But The dissenting opinion also noted that controlling the types of information time has taught us otherwise,” wrote booking photos could “help the public provided to the public rather than privacy Cole. “The internet and social media learn about what the government does rights because the Federal Bureau of have worked unpredictable changes to those whom it detains.” Judge Boggs Investigation often posts booking photos in the way photographs are stored and argued that booking photos help reveal of criminal defendants on its website. shared. Photographs no longer have a who is being arrested and prosecuted. “They just want their own discretion,” shelf life, and they can be instantaneously “Booking photographs also reveal what Loeb told the Detroit Free Press. “It’s disseminated for malevolent purposes. populations the government prosecutes about government control of information Mugshots now present an acute problem — black or white, young or old, female to the press.” in the digital age: these images preserve or male — and for what sorts of alleged In the same story, Detroit Free Press the indignity of a deprivation of liberty, crimes. Their release may raise questions attorney Herschel Fink argued that the often at the (literal) expense of the most about prosecutorial decisions, enabling public should have a right to know who vulnerable among us. Look no further the public to detect and hold to account the government is prosecuting, and for than the online mugshot-extortion prosecutors who disproportionately what. “Booking photos tell the ‘who’ business. In my view, Free Press I — charge or overlook defendants of a story in a way that a (defendant’s) name though standing on solid ground at the particular background or demographic.” alone can’t,” Fink told the Detroit Free time — has become ‘inconsistent with Finally, the dissenters maintained that Press. “They literally put a face on the the sense of justice.’ These evolving booking photos had the important government’s prosecution, all the better circumstances permit the court to change public interest of helping “avoid cases for the public to see what the government course.” of mistaken identity, by prompting is up to.” Fink said after the ruling Judge Cole also added that the individuals to assist the government in that the Detroit Free Press attorneys majority’s ruling did not categorically fi nding the actual perpetrator.” were considering taking the case to the prevent the release of booking photos in The U.S. Court of Appeals for the Supreme Court. “We knew from the oral some situations. “Today’s opinion, as I Sixth Circuit’s decision in Free Press argument in Cincinnati that the court was read it, does not foreclose the possibility II divided privacy and government very divided on the issue. The resulting that, in the appropriate case, a requester transparency advocates. In a July 15 9-7 split confi rms that,” Fink said in the might make a meaningful showing of the story on the Reporters Committee for interview with the Detroit Free Press. ‘signifi cant public interest’ in ‘reveal[ing] Freedom of the Press’ (RCFP) website, “The strong dissenting opinion gives us the circumstances surrounding an arrest Electronic Privacy Information Center support as we consider whether to ask and initial incarceration,’” wrote Judge attorney John Tran praised the ruling for the Supreme Court to give fi nality to this Cole. “There will be time enough to deal protecting individuals’ privacy. “They do two-decades-long fi ght by the Free Press with such a situation. The majority rightly make a point to recognize that we are in a for transparency in the criminal justice gives the lower courts the chance to digital age — this is an online world, and system.” balance, in the fi rst instance, the equally booking photos can persist in perpetuity The case now goes back to U.S. important values of public disclosure and online,” Tran told the RCFP. “People’s District Court for the Eastern District of personal privacy. Neither is abrogated.” reputations can really be tarnished in a Michigan, which will decide whether the In a dissenting opinion, Judge way that we didn’t see 20 years ago.” USMS should release the booking photos Danny Boggs, writing on behalf of American Civil Liberties Union of the four offi cers per the Detroit Free the seven dissenting judges, argued of Minnesota Executive Director Press’ FOIA request after considering that the majority’s opinion placed too Chuck Samuelson said in a July 25, the privacy interests of the offi cers, little emphasis on the strong public 2016 interview with the Minneapolis according to the RCFP’s July 15 story. interest in the availability of booking Star Tribune that the Sixth Circuit’s photos. “Today’s decision obscures our decision to change course on privacy SCOTT M EMMEL government’s most coercive functions — considerations under Exception 7(C) SILHA R ESEARCH A SSISTANT the powers to detain and accuse — and of FOIA was necessary to prevent the returns them to the shadows,” Judge government from “broadcast[ing]” mug Boggs wrote. “Open government is too shots in bulk. However, Samuelson

7 D.C. Circuit Upholds “Net Neutrality” Rules n June 14, 2016, a three- The largest opponents to net On Feb. 26, 2015, in response to judge panel for the U.S. neutrality are ISPs, which seek to pressure from the public and the Obama Court of Appeals for the maintain control over their data delivery administration, the FCC adopted the D.C. Circuit upheld the standards. Opponents of net neutrality Open Internet Order, which abandoned Federal Communications often argue that it deters competition the draft provisions allowing for internet OCommission’s (FCC) 2015 Open Internet among ISPs and reduces investment “fast lanes” and implemented rules that Order, Protecting and Promoting the in broadband. In an interview with reclassifi ed broadband internet access Open Internet, 80 Fed. Reg. 19,738 National Review’s Matthew Shaffer, as a “telecommunications service” under (Apr. 13, 2015) (codifi ed at 47 C.F.R. 1), Peter Thiel, billionaire tech investor and Title II of the Communications Act. The which reclassifi ed co-founder of online payment service reclassifi cation was a signifi cant shift broadband company PayPal, expressed skepticism because broadband internet access FCC internet access at the government’s ability to effectively providers had previously been classifi ed as a utility and regulate a constantly changing industry. as an “information service,” which imposed provisions “Until it is a mature industry, we have no prevented courts from applying FCC on internet service providers (ISPs) idea where real abuses would be,” Thiel regulations similar to those applied enforcing net neutrality principles. U.S. said. to “common carrier” communication Telecom Assoc. v. Fed. Comm. Comm’n , The net neutrality debate gained services, like telephones. 825 F.3d 674 (D.C. Cir. 2016) The public attention in 2014, after a three- The Open Internet Order also sought ruling is now part of an ongoing debate judge panel for the D.C. Circuit struck to enforce net neutrality through various between net neutrality advocates and down provisions of a 2010 FCC order provisions. These provisions included opponents, who remain divided over the that sought to regulate ISPs, fi nding by enacting three “bright-line” rules, policy. Both the FCC vote and the D.C. that the commission had exceeded its which ban blocking, throttling, and Circuit’s decision were narrow victories statutory authority. Verizon v. Fed. paid prioritization for internet content for proponents of net neutrality, which Comm. Comm’n, 740 F.3d 623 (D.C. Cir. delivery. “No Blocking” prevents still faces challenges and uncertainty 2014). Primarily, the panel concluded ISPs from blocking access to lawful moving forward. that the FCC’s decision to classify ISPs destinations on the internet. “No Net neutrality is the principle as “information service providers” meant Throttling” prohibits the impairment or that ISPs should treat all data on that the Commission could not impose degradation of lawful internet content the internet the same regardless of strict “common carrier” requirements based on its source, destination, or the source. This principle prevents on internet companies. In response to content. “No Paid Prioritization” discrimination or censorship of certain the decision, the FCC began formulating prevents the creation of internet “fast types of online data based on content, new rules to enforce net neutrality while lanes,” whereby ISPs could favor some source, or platform. In an Aug. 16, 2016 also staying in line with the Circuit internet traffi c over others. statement, the International Federation decision. These rules included a new In a Feb. 26, 2015 letter, President of Library Associations and Institutions draft provision that would permit ISPs Obama praised the FCC decision, saying (IFLA) noted that much of the debate to offer content providers the ability that it will “protect innovation and surrounding net neutrality has emerged to pay for higher connection speeds. create a level playing fi eld for the next from two parallel fears. “On the one Critics argued that these internet “fast generation of entrepreneurs.” ISPs were hand, users fear that, in the absence of lanes” would effectively undermine net less welcoming of the new rules. Shortly net neutrality frameworks, [ISPs] may neutrality principles, placing start-up after the FCC decision, three separate implement undue traffi c management, companies at a disadvantage to those groups of petitioners, consisting for instance blocking access to or who could afford to pay for higher primarily of broadband providers and downgrading the quality of applications speeds. their associations, challenged the Open providing competing services,” the Discussion of net neutrality reached Internet Order, arguing that the FCC IFLA wrote. “On the other hand, ISPs a fever pitch in the summer of 2014. lacked authority to reclassify broadband argue that growth in traffi c online . . . In addition to a proliferation of news internet access as a telecommunications is outstripping the capacity of Internet stories and online article discussing service and that some of the provisions infrastructure (wires, mobile networks) net neutrality, the issue was satirized violated the First Amendment, among to carry it.” on HBO’s “Last Week Tonight,” hosted other claims. (For more information Proponents of net neutrality include by John Oliver, where the comedian about the previous debate over net tech fi rms, consumer advocates, and encouraged viewers to submit comments neutrality, see “D.C. Circuit Strikes Internet companies, including Twitter in support of net neutrality rules on Down FCC ‘Net Neutrality’ Rules” in the and Amazon. Net neutrality supporters the FCC’s website. Between July 15 Winter/Spring 2014 issue of the Silha promote internet freedom and deter and Sept. 15, 2014, the FCC received Bulletin, “Debates Continue Over Net discrimination of online data, with a record 3.7 million public comments Neutrality as FCC Nears Decision on many holding the view that broadband on the issue, overwhelmingly in favor ‘Open Internet’” in the Fall 2014 issue, internet access should be classifi ed as a of net neutrality. In a November 2014 and “New FCC Rules Spur Heated utility, which would prevent ISPs from statement, President Obama responded Debate about Net Neutrality Regulation” screening, blocking, or inappropriately to the public outcry by calling on in the Winter/Spring 2015 issue.) interfering with the transmission of the FCC to “implement the strongest In a 2-1 decision on June 14, 2016, the internet content. possible rules to protect net neutrality.” D.C. Circuit upheld the FCC’s 2015 Open 8 Internet Order. This was a shift from as a utility under the Communications the deals generally favor large content the prior D.C. Circuit opinion in Verizon Act. “Congress never intended such providers who can afford to pay a fee, v. Fed. Comm. Comm’n , where the regulation. The Telecommunications potentially discriminating against smaller court vacated net neutrality provisions Act of 1996 declared the internet businesses. because broadband internet access will be ‘unfettered by federal or Another potential threat to net service was classifi ed as an “information state regulation,’ except to promote neutrality involves the 2016 presidential service.” In the Open Internet Order, competition. The FCC ‘specifi cally election. The president appoints FCC the Commission stated that it was “in forswears any fi ndings of a lack of commissioners and designates the light of Verizon ” that it was compelled competition’ on the internet,” Crovitz chairman as well. The Open Internet to reclassify broadband. The court wrote, citing Judge Williams’ dissent. Order was adopted on a 3-2 party line agreed, holding that this represented a “In a better-functioning Washington, vote, with the Democratic-appointed perfectly “good reason” for reclassifying Congress would immediately reconfi rm commissioners voting in favor of broadband internet access as a its 1996 legislation to restore the instituting the new rules. A Republican “telecommunications service.” internet as a haven for permissionless win in the 2016 presidential election The three-judge panel’s decision took innovation. The Supreme Court is the would mean changes in FCC leadership, the position that an ISP is a utility and likelier salvation. The justices should and possibly a change in direction for should provide equal access to all. In refuse to defer to a regulatory agency rules around net neutrality. a jointly written opinion, Judges David that is neither independent nor expert. As of August 2016, Democratic Tatel and Sri Srinivasan noted that “the Until then, Silicon Valley is on notice that presidential candidate Hillary Clinton’s role of broadband providers is analogous Washington is now in the business of campaign website stated that she to that of telephone companies: they picking its winners and losers.” “strongly supports the FCC decision act as neutral, indiscriminate platforms On July 29, 2016, Fortune reported under the Obama Administration to for transmission of speech of any and that the wireless, cable, and broadband adopt strong network neutrality rules all users.” In his dissent, Judge Stephen trade association groups that had that deemed internet service providers Williams argued for the Commission’s challenged the FCC’s 2015 Open Internet to be common carriers.” Clinton had Order to be vacated, in part because Order asked the U.S. Court of Appeals previously advocated for net neutrality “[t]he Commission’s justifi cation of its for the D.C. Circuit to review the three- principles in 2007 while serving as a U.S. switch in classifi cation of broadband judge panel’s June 14 decision en banc. Senator for New York, co-sponsoring the from a Title I information service to a If the full Court of Appeals denies the Internet Freedom Preservation Act, S. Title II telecommunications service fails request, the trade association groups 215, 110th Cong. (2007). The bill sought for want of reasoned decision making.” may appeal to the Supreme Court. In a to amend the 1934 Communications Reaction to the D.C. Circuit ruling June 14 post on The Volokh Conspiracy, Act to ensure that ISPs abided by net was positive among net neutrality Case Western University School of Law neutrality principles, but the bill later supporters. In a June 14 press release, Professor Jonathan Adler, noting the died in committee. U.S. Sen. Al Franken (D-Minn.), a vocal observations of Boston College Law Meanwhile, Republican candidate net neutrality advocate, praised the D.C. School professor Daniel Lyons, wrote Donald Trump has remained relatively Circuit’s decision. “Today’s decision that the Supreme Court “would have silent on net neutrality during his upholding net neutrality is an enormous greater latitude to consider some of the presidential campaign. Prior to his victory for consumers, for businesses arguments made against the FCC’s rule candidacy, Trump tweeted in 2014 and startups, and ultimately for the than the D.C. Circuit did.” that “Obama’s attack on the internet innovation that has helped drive our Although the D.C. Circuit decision is another top down power grab. Net modern economy,” Sen. Franken said was a win for net neutrality advocates, neutrality is the Fairness Doctrine. in the press release. “Net neutrality there are still several potential threats Will target the conservative media.” has been part of the architecture of the to the FCC’s 2015 Open Internet Order. Other prominent Republicans have Internet since the beginning — and as One threat is a workaround used by ISPs been more transparently opposed we’ve seen for the past several decades, and mobile network operators called to the enforcement of net neutrality a free and open Internet has been a “zero-rating,” according to the IFLA’s principles, including Trump’s running tremendous engine for innovation and August 16 statement. Zero-rating is a mate, Indiana Gov. Mike Pence. As economic growth.” process by which ISPs data plans exempt a U.S. Representative in 2011, Pence Opponents of the FCC’s Open certain content from counting against a co-sponsored the Internet Freedom Internet Order criticized the D.C. user’s data cap — certain websites, often Act, H.R. 96, 112th Cong. (2011), which Circuit’s decision, expressing concerns popular ones like Facebook or YouTube, sought to prohibit the FCC from “further regarding the federal government’s would not count against a user’s data regulating the internet.” Gov. Pence also involvement in regulating ISPs. In limit. Additionally, some plans require hosted a syndicated conservative talk a June 19 column, The Wall Street payment by content providers to the radio show during the 1990s. Journal’s L. Gordon Crovitz argued ISPs in order for their content would that the industry will soon face be zero-rated. The IFLA wrote that RONALD W ACLAWSKI burdensome government regulations these “pay-to-play” arrangements could SILHA R ESEARCH A SSISTANT with the reclassifi cation of broadband violate net neutrality principles because

9 President Obama Signs Law Making Signifi cant Amendments to the Freedom of Information Act n June 30, 2016, President OpenTheGovernment.org, the Electronic for a request from the public. The law Barack Obama signed Frontier Foundation (EFF), and the would extend these proactive disclosure the FOIA Improvement Sunshine in Government Initiative (SGI), provisions under FOIA to require Act of 2016, S. 337, 114th among others, throughout Congress’ agencies to make frequently requested Cong. (2016), into law, consideration of the bill. records — those records which have Owhich reforms several aspects of the Substantively, the FOIA Improvement been requested three or more times Freedom of Information Act (FOIA). 5 Act of 2016 made several signifi cant — easily available to the public in an U.S.C. §552. The law’s major changes changes to FOIA. First, the bill codifi ed electronic format online. to FOIA included a “presumption of openness,” meaning The RCFP reported on June 30, promoting greater that it “places the burden on agencies to 2016 that the new law also mandated FOIA public access justify withholding information, instead the creation of a single online portal to government of on the requester to justify release,” to accept FOIA requests for any records that according to a June 13 statement on Rep. governmental agency. This portal are frequently requested, creating a Issa’s Congressional website. U.S. News would be similar to FOIAonline, which single online portal for FOIA requests, allowed for the and placing limitations on agencies’ “Our very democracy is built on the public to submit use of FOIA Exemption 5, which records requests allows agencies to withhold certain idea that our government should not electronically and types of inter-agency or intra-agency operate in secret. The FOIA Improvement was already in communications indefi nitely, according Act will help open the government to use by 12 federal to a June 30, 2016 Reporters Committee agencies and for Freedom of the Press (RCFP) story. the 300 million Americans it serves offi ces. The Offi ce However, the most praised change is the and ensure that future administrations of Government explicit requirement that federal agencies place an emphasis on openness and Information must consider releasing records under Services (OGIS) a “presumption of openness” standard, transparency.” was directed rather than presuming government to establish the information is secret. The changes to — Sen. Patrick Leahy (D-Vt.) single website. FOIA came nearly 50 years after the The law also law was originally adopted in 1966. and World Report reported on June 30 strengthened the OGIS’ authority to Government transparency advocates that the presumption of openness also function as the federal government’s praised the changes but also argued that meant that agencies could no longer rely FOIA Ombudsman, “giving more further improvements to FOIA are still on a standard presuming that requested independence and responsibility to a needed. records are secret. Instead, agencies can non-partisan, non-political offi ce to In February 2015, Sens. John Cornyn only withhold requested records when oversee FOIA compliance,” according (R-Texas), Charles Grassley (R-Iowa), “foreseeable harm” could be caused by to Rep. Issa’s June 13 statement. The and Patrick Leahy (D-Vt.) introduced the release, according to a statement FOIA Improvement Act of 2016 also the FOIA Improvement Act of 2016 in that White House spokesperson Brandi established a Chief FOIA Offi cers the U.S. Senate, which proposed several Hoffi ne provided to the Sunlight Council, which is made up of federal amendments to FOIA. After more than a Foundation on June 14, 2016. This agencies’ chief FOIA offi cers and is year of committee hearings and debate, change to FOIA also codifi ed President charged with addressing ways to improve the bill was approved by unanimous Obama’s order in a memorandum sent to the administration of FOIA in the federal consent in the Senate on March 15, 2016. the heads of the federal agencies on his government. The Senate’s version of the bill was later fi rst full day in offi ce in 2009 in which he The law updated the timing of when introduced in the House, which adopted ordered federal departments to operate agencies submit annual FOIA processing the Senate’s version of the bill after it had under a presumption of openness. By statistics. According to the SGI June previously approved a House bill on Jan. codifying a presumption of openness in 13 analysis of the bill, federal agencies’ 11, 2016 introduced by Reps. Darrell Issa FOIA, future presidential administrations FOIA statistics will be processed in (R-Calif.) and Elijah Cummings (D-Md.) will be unable to reverse course by February so that the data is available that proposed similar amendments to simply dismissing President Obama’s for public release during Sunshine Week FOIA. The House passed the Senate’s memo, according to a June 30 blog post in March, an annual event overseen by FOIA Improvement Act of 2016 by a by Sunlight Foundation policy analyst the American Society of News Editors voice vote on June 13, 2016. President Alex Howard. (ASNE) and RCFP to promote public Obama signed the bill into law on June The bill also strengthened awareness of access to government 30. The FOIA Improvement Act of 2016 requirements that federal agencies information. Finally, the bill limited received bipartisan support in Congress engage in the “proactive disclosure” agencies’ ability to deny records as well as from several government of records in digital formats, meaning requests under Exemption 5 of FOIA, transparency advocacy groups, that agencies are required to disclose which allows agencies to deny requests including the Sunlight Foundation, certain types of records without waiting related to inter-agency or intra-agency 10 communications. Previously, various Jason Leopold, a VICE News senior indicated that the DOJ lobbied against agencies would cite Exemption 5 in investigative reporter, told the RCFP the major reform provisions in 2014, order to withhold records indefi nitely, on June 30 that he believed that the law arguing there would be an increase in according to the RCFP’s June 30 story. addressing Exemption 5 was benefi cial administrative costs and delays in FOIA The FOIA Improvement Act of 2016 for journalists. “I think the reform processing. limited the withholding of “deliberative bill defi nitely addresses many, many Despite the praise of the changes to process documents” to 25 years. These concerns that we, as journalists, have FOIA, Howard wrote in his June 30 post include memoranda, letters, and drafts. with regards to FOIA,” said Leopold. on the Sunlight Foundation’s blog that The White House also released a fact “Most notable [is] the B-5 exemption, further reforms were needed. “This bill is sheet that provided more details about which is the most abused and overused not a panacea for all the ills that persist the law and announced new members FOIA exemption.” Leopold has often around the use of FOIA,” Howard wrote. of the FOIA Advisory Committee. The been critical of various federal agencies’ “For instance, there is nothing stopping full fact sheet is available at https:// agencies from www.whitehouse.gov/the-press- “While there is still much work to be posting an email offi ce/2016/06/30/fact-sheet-new- address for chief steps-toward-ensuring-openness-and- done, the provisions enacted today FOIA offi cers. Some transparency. will help ensure the law lives up to its structural issues After President Obama signed the purpose — informing the public about that can and should FOIA Improvement Act of 2016, several be addressed by Congressmen voiced their support of what its government is up to. As we this Congress the changes, including the bill’s co- approach FOIA’s birthday this July 4th exercising its sponsor, Rep. Issa. “This critical update we should not only celebrate what has oversight function, to the Freedom of Information Act is been accomplished over the last few communicating a major milestone that enshrines into with the law the people’s right to know what decades, but also imagine what we, the strengthened Offi ce their government is actually doing. people, want it to look like 50 years from of Government It’s a signifi cant step forward to the now.” Information accountable government the people Services. Others deserve,” Rep. Issa said in a June 30 press will be improved — Adam Marshall, release. “We’ve seen countless examples by senior agency of how easy it is for government to cover Jack Nelson Dow Jones Foundation legal fellow, leadership taking up waste, fraud, abuse, or anything Reporters Committee for Freedom of the Press a stronger interest politically embarrassing through years in information of delays, redactions and special disclosure policy exemptions. The bill which will now failure to comply with FOIA in the that explicitly connects open data become law will help ensure these types past. During a House Oversight and policies to FOIA requests. The bill also of injustices are a way of the past.” Government Reform Committee hearing does not allocate additional funding Sen. Leahy was optimistic that the in June 2015, Leopold testifi ed that the for processing requests, including law would have an impact for years to Pentagon’s Offi ce of Net Assessment investment in staffi ng and training to come. “Our very democracy is built on offered to fulfi ll a FOIA request he guide agencies not only toward the the idea that our government should not submitted only if he promised not to fi le presumption of openness but to increase operate in secret,” Leahy told the RCFP another one. (For more on Leopold’s the capacity of those agencies to respond when the bill passed the Senate in March. testimony and criticism, see “Obama to the rising volume of requests.” “The FOIA Improvement Act will help Administration’s Handling of Freedom In the RCFP’s June 30 story, Adam open the government to the 300 million of Information Act Requests Under Fire” Marshall, Jack Nelson Dow Jones Americans it serves and ensure that in the Summer 2015 issue of the Silha Foundation legal fellow at the RCFP, future administrations place an emphasis Bulletin.) agreed that further efforts were needed on openness and transparency.” Rep. Despite the bipartisan support for to strengthen FOIA. “While there is still Jason Chaffetz (R-Utah), Chairman of the legislation in 2016, the path to much work to be done, the provisions the House Oversight and Government amend the 50-year-old FOIA, which was enacted today will help ensure the law Reform Committee, was also optimistic last updated in 2007, had met several lives up to its purpose — informing the about the changes, as reported on Issa’s obstacles in recent years. Patrice public about what its government is website on June 13. “Passing bipartisan McDermott, executive director of up to,” Marshall said. “As we approach FOIA legislation is a major milestone OpenTheGovernment.org, told the RCFP FOIA’s birthday this July 4th we should and big step forward in fi xing a broken on June 30 that a similar FOIA reform not only celebrate what has been process, he said. “This bill will help bill in 2014 never saw a fi nal vote in the accomplished over the last few decades, make government more transparent and House because several organizations but also imagine what we, the people, accountable to the public.” In the same within the banking industry raising want it to look like 50 years from now.” press release, Rep. Cummings added, concerns with the possible disclosure of records related to fi nancial institutions. “This bill will put into law a presumption SCOTT M EMMEL of transparency and make it easier for The RCFP also reported in the June SILHA R ESEARCH A SSISTANT the public to access information from the 30 story that records disclosed in federal government.” February 2016 as part of a FOIA request 11 Right to Be Forgotten Continues to Create Challenges for Online Entities n May 2014, the Court of Justice Directive, which was adopted in 1995, have been disclosed.” Article 17 does of the European Union (CJEU) in order to update and harmonize data require that the “right of erasure” be ruled that European citizens protection regulations across the EU. balanced against “the right of freedom retain a right to have online Council Regulation 2016/679, 2016 O.J. of expression and information,” search engine results deleted (L 119). In April 2016, both the Council controller’s legal obligations, public Ithat link to “inaccurate, inadequate, and the European Parliament formally health interests, and scientifi c or irrelevant or excessive” information adopted the GDPR, which was later historical research needs. The GDPR about themselves under the European also permits Union’s Data “Platforms need to know in advance data protection INTERNATIONAL Protection that the GDPR will not be interpreted regulators NEWS Directive. Case to impose C-131/12, Google to punish them for protecting users’ administrative fi nes Spain SL, expression and information rights. on companies that Google Inc. v. Agencia Española de Powerful and respected bodies like the fail to abide by the Protección de Datos (AEPD), Mario right to erasure’s Costeja González, ECLI:EU:C:2014:317 Article 29 Working Party, the offi ce of the provisions, which (May 13, 2014), available at http://curia. European Data Protection Supervisor, can range up to europa.eu/juris/liste.jsf?num=C-131/12. and national data protection authorities 20 million euros The CJEU’s ruling created signifi cant or four percent challenges for internet search engines, can and should provide that guidance.” of the company’s online content publishers, and news annual turnover, media organizations that sought to — Daphne Keller, whichever is comply with the decision. (For more Intermediate Liability Director, higher. The full information the CJEU’s ruling and Stanford Law School’s Center for Internet and text of the GDPR is subsequent challenges, see “European Society available at http:// Union Court Holds that Citizens Have eur-lex.europa.eu/ the ‘Right to Be Forgotten’ from Internet published in the EU Offi cial Journal in legal-content/EN/TXT/PDF/?uri=CELEX Searches” in the Summer 2014 issue May 2016. The regulation will require :32016R0679&rid=1. of the Silha Bulletin, and “‘Right to Be full compliance by May 25, 2018. The With the delay in GDPR enforcement Forgotten’ Continues to Develop in the EU’s adoption of the GDPR came after until 2018, legal observers have begun Year Following European High Court more than four years of negotiation to speculate on how the right to Decision” in the Sumer 2015 issue.) among EU bodies. erasure will work in practice. In a Jan. These challenges continued in Among the many provisions of 27, 2016 op-ed for Politico, Stanford several ways the last half of 2015 and the GDPR, Article 17, titled “Right Law School’s Center for Internet and throughout 2016. During this time, the to erasure (‘right to be forgotten’),” Society Intermediary Liability Director European Union fully enshrined a “right provides EU citizens with “the right Daphne Keller expressed concerns that to erasure” in its adopted General Data to obtain from [a data] controller the the GDPR’s right to erasure provisions Protection Regulation. Google found erasure of personal data concerning could lead to excessive deletion of itself continuing to battle with EU him or her without undue delay and online content. “The new law does regulators over whether it should delist the controller shall have the obligation one very good thing for Internet users: links across its various domains. High to erase personal data without undue It creates a swift process to erase courts in France and Belgium differed delay” under specifi c conditions. the data that Internet companies on the balance between a right to be These include when: “personal data collect and store internally for use forgotten and press freedoms. Countries are no longer necessary in relation in profi ling, targeted advertising and across the world also considered to the purposes for which they were the like. The downside is that this whether a right to be forgotten applied collected or otherwise processed”; streamlined process can be used to within their jurisdictions. individuals withdraw their consent erase content put online by Internet from data processing; individuals object users — whether or not that content Adopted EU General Data to the data processing and there are actually violates anyone else’s rights,” Protection Regulation Establishes no overriding reasons that the data Keller wrote. “That’s a problem. It is ‘Right to Erasure’ processing must take place; personal already far too easy for individuals or On Dec. 15, 2015, the European data have been processed unlawfully; companies to raise dubious legal claims Commission of the European Union a different law requires a controller to against content they disagree with, and (EU) announced that it had reached erase data; or the data are collected pressure private Internet platforms to agreements with the European from children. take it down. . . . The GDPR will make Parliament and the Council of the Additionally, Article 19 of the GDPR deleting online content even easier. Its European Union to adopt the General requires data controllers to forward right to be forgotten section nominally Data Protection Regulation (GDPR) data subjects’ erasure requests to “each protects legitimate expression, but to replace the EU’s Data Protection recipient to whom the personal data 12 it also introduces disturbing rules engines, and social media organizations google.fr in France, but did not remove that, in practice, will undermine that will need to wait for further the same results from google.com. protection.” clarifi cations about the scope of the CNIL argued that individuals’ right to be “The exact meaning of the new right right to erasure in order to know what forgotten would be rendered ineffective to be forgotten provisions for Internet their obligations may be once the GDPR if search engine users could circumvent platforms is, thankfully, debatable. goes into full effect in 2018. In her the delisting process by simply going Many will argue that the law doesn’t Politico op-ed, Keller encouraged EU to Google.com. Google refused to apply to important platforms like offi cials to issue such clarifi cation in the comply with the order, arguing that the SoundCloud or Facebook at all, or that meantime in order to assist companies French regulator was over-extending other provisions are less draconian with the forthcoming right to erasure. its territorial reach and censoring the than they appear at fi rst glance. But “Platforms need to know in advance company. In September 2015, CNIL asking lawyers like me to endorse that the GDPR will not be interpreted denied an informal appeal by Google those interpretations is not enough. to punish them for protecting users’ asking the regulator to reconsider its Until regulators themselves speak up to expression and information rights,” order. clarify the law, cautious companies will In January hesitate to resist any removal requests,” 2016, CNIL Keller added. “To be clear, the problem “As a matter of both law and principle, initiated sanction is not that EU law provides a right to we disagree with [CNIL’s demand to proceedings be forgotten for truthful information remove links across all domains]. We against Google — this is consistent with Europe’s for failing to longstanding approach to privacy and comply with the laws of the countries comply with the free expression. And the problem isn’t in which we operate. But if French law order. However, just that Internet companies decide applies globally, how long will it be until Bloomberg BNA what information to delete (that’s an reported on issue for another day). The problem is other countries — perhaps even less February 26 that that the GDPR’s combination of rigid open and democratic — start demanding Google had held procedural rules, unclear application that their laws regulating information discussions with to Internet platforms, and bankruptcy- likewise have global reach?” national data inducing high fi nes will encourage privacy regulators Internet platforms to erase their users’ throughout the EU content — whether the law actually — Kent Walker, about a potential requires it or not.” Google Global General Counsel compromise over Other legal experts have also how it could noted that the GDPR was likely to Keller wrote. “Powerful and respected delist search links that would satisfy have an impact on organizations’ data bodies like the Article 29 Working complaints that the company was not practices worldwide. Article 3 of the Party, the offi ce of the European Data fully complying with EU law. In a March GDPR states that the law “applies to Protection Supervisor, and national data 4, 2014 post on the Google Europe Blog, the processing of personal data of protection authorities can and should Google Global Privacy Counsel Peter data subjects who are in the Union provide that guidance.” Fleischer announced that in addition by a controller or processor not to removing links from only European established in the Union, where the Google Continues to Face extensions of its website, the search processing activities are related to: Challenges over Territorial Reach engine would also begin to use geo- (a) the offering of goods or services, of the Right to Be Forgotten location signals, such as IP addresses, irrespective of whether a payment of In 2016, Google continued to to effectively limit user access to the data subject is required, to such negotiate with European Union (EU) delinked URLs among all its various data subjects in the Union; or (b) the data protection regulators over the domains. monitoring of their behavior as far as reach of “the right to be forgotten.” This change in policy meant that their behavior takes place within the Throughout the process, Google European users would be unable to Union.” In an April 14, 2016 interview provided proposals on how to see delisted links on any of Google’s with The Guardian, Sidley Austin LLP implement the right to be forgotten in a extensions, including google.com, partner William Long said that non-EU way that it hoped would be acceptable when their IP address located them in companies needed to take note because to data protection authorities. The the country where the deletion request of Article 3. “Organisations should be search engine company also continued originated. “So for example, let’s say under no doubt that now is the time to its high profi le battle with France’s we delist a URL as a result of a request start the process for ensuring privacy Nationale de l’Informatique et des from John Smith in the United Kingdom. compliance with the regulations,” Liberté (CNIL) about whether it must Users in the UK would not see the URL Austin said. “Importantly, companies delist search results across all of its in search results for queries containing outside of Europe, such as those in the domains. [John Smith] when searching on any US who offer goods and services to In June 2015, CNIL ordered Google to Google Search domain, including Europeans, will fall under the scope of apply the right to be forgotten to all of google.com,” Fleischer wrote. “Users this legislation and will face the same its global extensions. Prior to the order, outside of the UK could see the URL penalties for non-compliance.” Google had only removed search links in search results when they search for Online content publishers, search from its country specifi c sites, such as Forgotten, continued on page 14 13 Forgotten, continued from page 13 forgotten across all of its domains concern. We have received demands because the search engine only used from governments to remove content [John Smith] on any non-European a single data processing procedure globally on various grounds — and Google Search domain.” He also across all of its web domains. CNIL also we have resisted, even if that has noted that the change would apply maintained that its requirements did sometimes led to the blocking of our retrospectively to all links that Google not impede upon freedom of expression services.” had previously removed. because it was not ordering the deletion “In deference of this foundational Fleischer explained that Google’s of any online content. “At a physical principle of international law, we today decision was aimed at addressing EU person’s request, it simply removes any fi led our appeal of the CNIL’s order with data protection regulators’ concerns. links to website pages from the list of France’s Supreme Administrative Court, “We’re changing our approach as a search results generated by running a the Conseil d’État,” Walker added. “We result of specifi c discussions that we’ve search on the person’s fi rst name and look forward to the Court’s review of had with EU data protection regulators surname,” CNIL wrote in a statement this case, which we hope will maintain in recent months,” Fleisher wrote. announcing its decision. “These pages the right of citizens around the world “We believe that this additional layer to access legal of delisting enables us to provide the information.” As enhanced protections that European “U.S. businesses and consumers the Bulletin went regulators ask us for, while also accessing information that is lawfully to press, Google’s upholding the rights of people in other disseminated over the internet would appeal had not countries to access lawfully published moved beyond the information.” be hampered by search results that are initial stages of the Bloomberg BNA reported on Feb. limited by CNIL’s take on the right to be appellate process. 26, 2016 that several regulators were forgotten.” The EU’s considering whether Google’s new adoption of the approach would suffi ciently adhere to — Scott Vernick, General Data the requirements of the CJEU’s May Fox Rothschild LLP Partner and Protection 2014 decision. “[The CJEU’s judgment] Summer associate Jessica Kitain Regulation may entails full-fl edged recognition of data raise the stakes subjects’ rights,” a spokesman for for Google in its the Garante, Italy’s data protection can be accessed when the search is litigation over the right to be forgotten. authority, told Bloomberg BNA. “[T] performed using other terms.” As a In a May 2, 2016 Bloomberg BNA he measures announced by Google result of its fi ndings, CNIL fi ned Google commentary, DLA Piper LLP attorneys recently do show innovative features 100,000 euros, approximately $112,000, Carol Umhoefer and Caroline Chancé compared to [Google’s] initial for failure to delete links across all of its predicted that Google could face much response.” Legal experts also wondered domains. larger penalties in the future if CNIL’s whether the change in Google’s practice On May 19, 2016, The Guardian order is upheld on appeal. “If CNIL’s would ease regulators’ concerns. “It’s reported that Google intended to decision becomes fi nal, Google will diffi cult to assess whether the DPAs will appeal CNIL’s ruling to the Conseil have to further adapt its approach to be satisfi ed,” Berlin-based JBB Lawyers d’État, France’s highest court for the right to be forgotten or face an attorney Carlo Piltz told Bloomberg administrative justice. In a May 19 op-ed additional fi ne up to 300,000 euros BNA in a March 7 interview. “If one in French newspaper Le Monde, Google ($339,535). Although the fi nancial looks at their prior statements, perhaps Global General Counsel Kent Walker implications may not seem very not. On the other hand, this solution argued that agreeing to CNIL’s demands threatening to Google today, the French might now be considered as the best would lead to further censorship. “As Assembly recently voted to increase compromise.” a matter of both law and principle, the CNIL’s sanctioning power,” the However, CNIL announced on we disagree with [CNIL’s demand to attorneys wrote. “The current draft of March 24, 2016 that Google’s change remove links across all domains]. We the French Law for a Digital Republic[a in policy was not suffi cient to “give comply with the laws of the countries comprehensive bill designed to regulate people effective, full protection of in which we operate. But if French law digital activity in France] provides fi nes their right to be delisted.” The agency applies globally, how long will it be until up to the higher of 20 million euros said that Google’s new processes were other countries — perhaps less open ($22.6 million) or, for legal entities, 4 not acceptable for several reasons, and democratic — start demanding percent of yearly worldwide revenues including that individuals outside of that their laws regulating information during the fi nancial year preceding Europe could still access search results likewise have global reach?” Walker the year during which the violation that would infringe upon the privacy wrote in the op-ed, which was also occurred. Although not yet law, this rights of French citizens, individuals posted on the Google Europe Blog. provision could take effect before within the EU could still access delisted “This order could lead to a global the GDPR’s anticipated application search results related to French citizens race to the bottom, harming access to in the fi rst half 2018. And even today, when the search originated from a information that is perfectly lawful to violations of the Law are punishable by non-French IP address, and digital tools view in one’s own country. For example, criminal sanctions; a fi ne up to 1,500,000 that mask IP addresses could easily this could prevent French citizens from euros ($1,696,950) can be ordered for circumvent Google’s new process. seeing content that is perfectly legal in processing individuals’ personal data CNIL determined that Google was France. This is not just a hypothetical despite their legitimate objection.” obligated to apply the right to be 14 Legal observers have also suggested On April 29, 2016, the Belgian Court Newspapers and News Publishers that the ultimate outcome of the battle of Cassation upheld a lower appellate (WAN-IFRA) announced in June between CNIL and Google could have court decision that Le Soir, a French- 2016 that it had adopted a resolution worldwide implications. In a June language Belgian newspaper, needed opposing the Belgian court’s decision. 20 commentary for Bloomberg BNA, to comply with a doctor’s request “The Board acknowledges the relevance Fox Rothschild LLP partner Scott that it remove his name from a story of the human right to privacy, as Vernick and summer associate Jessica from a 1994 story found in its digital defended by the so-called ‘right to be Kitain argued that CNIL’s order could archive. Cour de Cassation [Cass.] forgotten,’ but strongly believes that potentially limit information access for [Court of Cassation], April 29, 2016, newspaper archives, whether on paper any person internationally. “If upheld, No. C.15.0052.F (Belg.). Le Soir’s story or digitalised, should remain intact in French law would control the search reported that the doctor was involved the interests of freedom of information engine results of a person accessing in a car accident that killed two people. and historical accuracy,” Elena Perotti, Google in the U.S. The foregoing sets a In 2008, Le Soir made its news story WAN-IFRA executive director of legal dangerous precedent, raising questions archives freely available online, which affairs and external relations, wrote in a of state sovereignty and confl icts of June 12, 2016 blog laws, and triggering a slippery slope of “The Board acknowledges the relevance post announcing extraterritorial rule over the availability of the human right to privacy, as the resolution. of information over the Internet,” they “Furthermore, wrote. “U.S. businesses and consumers defended by the so-called ‘right to be it maintains that accessing information that is lawfully forgotten,’ but strongly believes that any imposed disseminated over the internet would newspaper archives, whether on paper alteration of news be hampered by search results that articles represents are limited by CNIL’s take on the right or digitalised, should remain intact in the an unacceptable to be forgotten. Cutting off sections interests of freedom of informatin and restriction on the of the internet as dictated by a nation- historical accuracy.” freedom of the state tends to legitimize the efforts of press.” countries like China, Iran and Turkey However, not — Elena Perotti, that have long controlled, or attempted all high courts World Association of Newspapers and News to control, the information their citizens in EU member access online.” Publishers (WAN-IFRA) states took the “Although each country may same approach as have a right to protect the personal Belgium’s court. privacy of its citizens in ways that it On May 12, the sees fi t, this right should not impede included the 1994 story. After Le Soir French Court of Cassation issued a the rights of other countries to do refused to honor the request to remove short ruling in a similar case that found the same,” Vernick and Kitain added. his name, the doctor brought a civil that the removal of two brothers’ names “If upheld, the approach to personal action against the newspaper in an from the online archives of French privacy proscribed by CNIL threatens attempt to make it comply. newspaper Les Echos infringed upon to trample the equal and competing In September 2014, the Court of free expression principles, according legitimate rights of businesses and Appeal of Liège ruled that the archived to a June 2, 2016 post by Kristof consumers outside the EU.” version of the story online violated the Van Quathem and Nicolase Rase on doctor’s right to be forgotten under Covington & Burling LLP’s Inside High Courts in EU Member the EU Data Protection Directive. The Privacy blog. The brothers had asked Countries Differ on Whether Right Belgian Court of Cassation upheld the Les Echos to remove a news story to Be Forgotten Trumps Freedom of lower court’s decision, ruling that the from its searchable online archive that Press publication of a digital archive was reported on sanctions imposed upon In 2016, high courts in EU member considered a new disclosure of facts of them by the French government’s countries took different approaches on an individual’s past that could infringe securities and exchange authority. The balancing the “right to be forgotten” upon his privacy rights. When trying to newspaper refused the request. The and freedom of expression concerning balance privacy and free expression, brothers brought a civil suit against newspapers’ online archives. In the high court determined that the story Les Echos in an attempt to get the late April 2016, the Belgian Court with the doctor’s name was more likely digital story removed, which eventually of Cassation determined that an to cause greater harm to his privacy as reached the French Court of Cassation. individual’s request to have his name compared to the harm caused to the In its ruling, the high court determined removed from a digital version of a newspaper’s expressive rights if the that EU Data Protection Directive’s story in an online archive could override story was removed. As a result, the exceptions for the journalistic a newspaper’s freedom of expression Court of Cassation determined that the processing of data exempted Les Echos rights. A few weeks later, the French interference with freedom of expression from complying with the brothers’ Court of Cassation ruled that the was justifi ed and that Le Soir must request. As a result, the brothers’ case removal of two brothers’ names from remove the doctor’s name from the was dismissed. an online digital newspaper archive news stories in its archives. hindered the newspaper’s rights of free In response to the decision, Forgotten, continued on page 16 expression. the Board of World Association of 15 Forgotten, continued from page 15 Canada’s Offi ce of the Privacy right to be forgotten mandate can and Commissioner Calls for Public has been used as a tool for wealthy Russia’s Right to Be Forgotten Law Discussion on the Right to Be and powerful individuals to clean Goes into Effect Forgotten Google searches of negative, truthful On Jan. 1, 2016, a Russian law During 2015, the Offi ce of the information linked to their names, granting a right to be forgotten within Privacy Commissioner of Canada restricting the public’s ability to fairly the country went into full effect, announced that it would tackle access legal and accurate information. according to an April 4, 2016 Bloomberg reputational privacy as a primary issue This makes it harder for dissidents and BNA story. The law, which Russian in the coming years. As a result, the journalists to reach the public, and President Vladimir Putin signed in offi ce published a discussion paper, leaves citizens less well-informed,” July 2015, permits Russian citizens to titled “Online Reputation: What are the coalition wrote. “The right to be ask search engines to delete links to they saying about me?”, on Jan. 21, forgotten, [no matter how it may be] personal information online that are 2016 analyzing many of the signifi cant interpreted in the Canadian context, inaccurate or unlawfully published. The challenges for maintaining privacy confl icts with the Charter of Rights Russian law also permits citizens to and Freedoms, sue search engines that fail to comply “A ‘right to be forgotten’ could have section 2(b): the in a timely manner. On Dec. 30, 2015, right to ‘freedom Bloomberg BNA reported that President serious harms to a wide range of societal of thought, Putin signed a bill that also established interests. Hyperlinks communicate belief, opinion fi nancial penalties for search engine that something exists. It is diffi cult to and expression, companies that failed to comply with including freedom the country’s right to be forgotten overstate the importance of search of the press and requirements. Search engine companies engine results and the essential role other media of could face fi nes between approximately that hyperlinks play with respect to the communication.’ $1,000 and $1,400 for failing to remove Information and links at the requests of users, as well as exercise of freedom of information in stories published fi nes between approximately $11,000 today’s world.” online should and $14,000 for failing to adhere to not be made to court orders requiring the removal of — Eloïse Gratton, disappear from links, according to Bloomberg BNA. Borden Ladner Gervais LLP the purview of In April 2016, Bloomberg BNA inquisitive citizens. reported that Russia’s largest search The right to be engine, Yandex, announced in a March and personal reputation online. In its forgotten is a danger to press freedom 2016 statement that it had denied a analysis, the Privacy Commissioner’s and freedom of expression and has no majority of individuals’ requests to Offi ce discussed the CJEU’s ruling application in Canada.” The coalition’s remove information. The company on “the right to be forgotten” and the open letter is available at http://www. reported that it had received more consequential implications in the EU. cjfe.org/the_right_to_be_forgotten_a_ than 3,600 removal requests from The offi ce recognized that Canada did threat_to_press_freedom_in_canada. 1,348 individuals since the law went not have any laws that would clearly Some legal observers have also into effect in January, but rejected 73 permit recognition of such a right and suggested that a Canadian right to percent of the requests because it could discussed various challenges that the be forgotten would raise signifi cant not confi rm whether the links that right to be forgotten might pose in problems. In a May 9, 2016 op-ed for individuals requested to be removed the Canadian context. The discussion The Financial Post, Eloïse Gratton, a actually contained personal information paper also called on the public to partner at Montréal-based fi rm Borden that was inaccurate or illegally provide its responses on whether a Ladner Gervais LLP, wrote that its published. right to be forgotten could be applied recognition would have a negative In its statement, Yandex argued that in Canada, and, if so, in what ways. The impact on Canadian society. “A ‘right the Russian law should be amended full report of the Commissioner’s Offi ce to be forgotten’ could have serious so that individuals would fi rst need to is available at https://www.priv.gc.ca/ harms to a wide range of societal obtain a court ruling or receive approval information/research-recherche/2016/ interests. Hyperlinks communicate from a law enforcement agency prior to or_201601_e.pdf. that something exists. It is diffi cult to seeking the removal of information. The In a May 2 letter responding to the overstate the importance of search company also suggested that the law be Offi ce of the Privacy Commissioner engine results and the essential role changed to mandate that all individuals of Canada’s call for public response, that hyperlinks play with respect to submit their requests electronically a coalition of 12 Canadian news the exercise of freedom of information because handling paper requests had organizations and press freedom in today’s world,” Gratton wrote. “By proven to be time-consuming and advocates, including Canadian allowing people to remove access diffi cult, according to Bloomberg BNA. Journalists for Free Expression, to their personal information at Newspapers Canada, Buzzfeed Canada, will, important information might and Vice News , among others, argued become inaccessible, incomplete in an open letter that a right to be or misrepresentative. There might forgotten would violate the Canadian be a great public interest in the Charter of Rights and Freedoms. “The remembrance of information, especially 16 since one can never predict what to rectifi cation” was distinct from a therefore dismissed. That is the story in information might become useful in the right to be forgotten. The Commission its simplifi ed, not simplistic, telling.” future.” found that the law fi rm had done “This decision is the fi rst sighting A spokesperson for the Offi ce of the everything within its ability to remove on the Québec scene of the ‘right Privacy Commissioner told Bloomberg any information linking the former to be forgotten’. The idea has BNA on June 9 that the offi ce had assistant to the fi rm. The information been considered, examined and not made a fi nal decision about how that remained available through search understood, but has not been agreed it would approach the issue and that engine results was from an internet to. Outside the courtroom walls, the it was not planning to recommend archive service, which was publishing societal component of the right to be legislation anytime soon. “We’ll be information that was accurate when forgotten certainly did not escape the using what we learn to inform public initially collected in 2013. As a result, Commission; it encompasses a ‘certain debate on online reputation, to better the law fi rm was under no obligation vision of society’, a choice about the inform the Canadian Parliament on the to fi nd a way to remove information future and the need to fi nd a permanent issues and potential solutions and also that was found after a Google search of balance between the collective interest to develop our own policy positions (and in particular on the right to be forgotten and other “Criminals who were exposed to the the duty of forms of recourse,” spokesperson Tobi remembrance) Cohen said. “However, at this point we public due to media reports of their and private have yet to develop a position, and we arrest are entitled to the benefi t of interests (the right also have an investigation underway having their private life respected and to informational that deals directly with the right to be their rehabilitation unhindered. In self-determination, forgotten.” for example),” At least one Canadian province modern society, it is extremely diffi cult Boucher and has considered whether the right to live a calm life once information is Guilmain added. to be forgotten would apply to posted and shared on the Internet, which “Now, more than information accessible online. In ever, the legal April 2016, Québec’s Commission should be considered when determining community will d’accès à l’information (CAI), the whether [the information] should be have to take province’s administrative body deleted.” the right to be handling complaints over data forgotten seriously. privacy, considered whether a right Was this right truly — Hisaki Kobayashi, to be forgotten could be found in appropriate in Japanese District Court Judge the province’s Act Respecting the the Canadian and Protection of Personal Information Québec contexts? in the Private Sector, which requires the assistant’s name. The CAI also did What are the constitutional limits, or private sector companies to correct not indicate whether Google should be what might they be, particularly in inaccurate information they hold ordered to remove the links. respect of freedom of expression? Can about individuals. C.L. c. BCF Avocats In a July 20 commentary in Fasken we rethink a ‘right to be forgotten’ and d’affaires, 2016 QCCAI 114 (2016) Martineau LLP’s Intellectual Property formulate it in a way that is tailored to (Can.). The CAI’s decision involved Bulletin, attorneys Marc-André Boucher refl ect the legal systems across Canada? a former legal assistant who had and Antoine Guilmain wrote that the That is the challenge that the Offi ce of ended her employment with a law CAI’s decision might cast doubt on a the Privacy Commissioner of Canada fi rm. The fi rm subsequently scrubbed right to be forgotten under existing issued in January.” any information that it had about the Canadian law. “The courts continue assistant from its website. However, a to hammer home the message that ‘no Right to Be Forgotten Google search of the assistant would one is required to do the impossible. Developments Elsewhere provide at least one result still linking Common sense must always prevail’ Several other countries have also her name to the former fi rm due to in the matter at hand[.] [W]hile we been considering whether their citizens third-party internet archive websites must acknowledge that this case have a right to be forgotten. On Feb. 27, publishing an archived version of the offers an excellent opportunity to 2016, The Japan Times reported that a fi rm’s page from 2013. Fearing that debate fi ne points of the law, the Japanese district court cited a “right to prospective employers may contact her problem is striking in its simplicity: be forgotten” in December 2015 when former employer and learn negative the (uncontested) evidence was that it ordered Google to remove links to information, the assistant submitted a the fi rm did everything necessary to news stories about a man’s arrest in rectifi cation request to the CAI to have remove the applicant’s information connection to child prostitution and the search result links removed. During online; the fi rm fulfi lled all of its legal pornography that were three years old. proceedings, the law fi rm claimed that obligations,” they wrote. “Finding the Presiding Judge Hisaki Kobayashi’s it had done everything in its power to fi rm liable for violating an unattainable order was the fi rst time that a Japanese remove the information from its actual obligation — delisting/de-indexing the court had explicitly recognized a website and that it had little control applicant’s information on the Web right to be forgotten, according to over the third-party websites. — could therefore not be seriously The Japan Times. Previous cases had In its ruling, the CAI determined contemplated. The application for that the Private Sector Act’s “right examination of a disagreement was Forgotten, continued on page 18 17 Forgotten, continued from page 17 On May 1, 2016, The Times of enforcement of the right to be forgotten India reported that a Delhi banker in South Korea,” a KCC spokesperson cited individuals’ right to privacy as a had submitted a plea to the Delhi High told Bloomberg BNA on May 9. The justifi cation to issue such orders. Court asking online search engines to non-binding guidelines would require In the order, Judge Kobayashi remove personal details about him from websites and search engines to delete determined that, depending on the their search results. In the plea, the digital content that individuals had nature of the crime, individuals had a banker alleged that an online search of posted and are unable to remove on right to have information about them his name resulted in links to websites their own. be forgotten after an adequate amount containing details about a marital The guidelines require users to of time. “Criminals who were exposed dispute between the banker and his submit applications containing the to the public due to media reports of wife from years earlier. The dispute was URL of the content they want removed, their arrest are entitled to the benefi t later resolved in court, and attorneys a reason why the content should be of having their private life respected for the banker said that he and his removed, and evidence of their identity. and their rehabilitation unhindered,” wife were living happily together. As a Website operators and search engines Kobayashi wrote, according to The result, the banker asked the Delhi High must authenticate the requester’s Japan Times. “In modern society, it Court to order online search engines identity prior to removal. The guidelines is extremely diffi cult to live a calm to remove the links to the details from permit third parties to object to the life once information is posted and their search results, according to The deletion of content if they can prove shared on the Internet, which should be Times of India . In accepting the plea, that they uploaded the content in considered when determining whether Justice Manmohan of the Delhi High question. Additionally, the KCC’s [the information] should be deleted.” Court requested that India’s Ministry guidelines give individuals the ability The Japan Times reported that Google of Communication and Information to designate a family member who intended to appeal Judge Kobayashi’s Technology, Google, and an Indian can exercise the right to be forgotten order. software developer brief the court on on their behalf after death. The KCC In April 2016, Bloomberg BNA the issue of the right to be forgotten. contended that the guidelines could reported that Ukraine’s parliament, The court also scheduled a hearing for also be enforced against foreign online the Verkhovna Rada, was considering September 2016 to consider the matter, companies if they offer Korean-language legislation that would update its civil according to a May 6 CatchNews report. services to South Koreans. According code to create a right to be forgotten On May 2, 2016, the Korean to Bloomberg BNA, the KCC noted that for its citizens. The law would permit Communications Commission (KCC), the guidelines were “preliminary” and Ukrainian citizens to demand the South Korea’s telecommunications and would probably be revised in the future. retraction and removal of online internet regulatory agency, released The guidelines went into effect in June information that harms the “honor, its “Guidelines on the Right to Request 2016. dignity or business reputation of Access Restrictions on Personal an individual.” The bill also would Internet Postings,” which would allow CASEY C ARMODY allow users to request retractions South Korean consumers to request SILHA BULLETIN E DITOR electronically. Bloomberg BNA reported that website operators and search that both the Verkhovna Rada and the engine companies delete online content. Ukrainian president must approve the “These [guidelines] are not legislated law before it can take effect. requirements but a strong start for the

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18 Supreme Court Issues Long-Awaited Spokeo Ruling n May 16, 2016, the U.S. majority, vacated and remanded the Ninth acknowledged and ignored by still Supreme Court decided Circuit decision, based on the lower requiring a concrete injury “even in Spokeo, Inc. v. Robins, 136 court’s failure to consider concreteness the context of statutory violation.” In a S. Ct. 1540 (2016), vacating as a separate issue. The Court held that May 17, 2016 post on LinkedIn’s Pulse and remanding the U.S. concrete injuries were de facto — that blog, Daniel Solove, the John Marshall CourtO of Appeals Ninth Circuit’s decision they must actually exist. In determining Harlan Research Professor of Law at holding that the lower court failed to whether an intangible harm, such as George Washington University Law properly analyze the “concreteness” that argued in Spokeo, is suffi cient under School, argued that while the Court requirement for establishing an injury- Article III, Congress’s judgment was both sought to restrict Congress’s ability to in-fact. Since the “instructive and important.” Despite this establish concrete harms via statutory Ninth Circuit’s deference to the legislature and noting violations, it failed to create a suffi cient DATA PRIVACY decision in that Congress “plainly sought to curb test for determining when Congress is not 2014, consumer the dissemination of false information” permitted to elevate such violations to protection and with the FCRA, the Court held that that level. Solove also noted that one of privacy advocates have expressed Robins could not satisfy the concreteness the examples proffered by the Court of an concerns about the implications that requirement with a “bare procedural erroneous zip code could result in actual a Supreme Court ruling could have violation.” Justice Alito illustrated this injury, because information about a zip on similar suits involving procedural difference by arguing that an incorrect code could reveal information regarding violations, including cases regarding zip code or failure to provide the required a person’s income, ethnicity, or distance the Fair Credit Reporting Act (FCRA), notice would be a procedural violation from workplace, potentially disqualifying 15 U.S.C. § 1681 et seq., and the Video of the FCRA, though would result in no the applicant in the eyes of potential Privacy Protection Act (VPPA), 18 U.S.C. concrete harm. employers. § 2710. In a concurring opinion, Justice In a June 22, 2016 commentary for Spokeo involved the operator of Clarence Thomas distinguished between The Legal Intelligencer, Reed Smith LLP an online “people search engine,” applying the injury-in-fact requirement in attorney Richard L. Heppner Jr. wrote Spokeo, Inc., which gathered personal private versus public actions. “Congress that merely citing procedural failures is information about individuals for users, cannot authorize private plaintiffs to no longer suffi cient to establish standing, including employers seeking to evaluate enforce public rights in their own names, and that plaintiffs after Spokeo must now prospective employees. Information absent some showing that the plaintiff show that the defendant’s conduct caused pertaining to the plaintiff Thomas Robins has suffered a concrete harm particular or increased the risk of harm. Heppner contained inaccuracies, misrepresenting to him,” wrote Justice Thomas. “Robins argued that despite this, Spokeo provided his marital and employment status has no standing to sue Spokeo, in his own “little guidance for other ‘increased and infl ating his income and level of name, for violations of the duties that risk’ cases,” particularly in areas of data education. These inaccuracies prompted Spokeo owes to the public collectively, misuse. Robins to fi le a class action suit against absent some showing that he has suffered Legal observers have also suggested Spokeo, alleging violations of the concrete and particular harm.” that cases most likely to be affected FCRA. The FCRA requires consumer In a dissenting opinion, Justice by Spokeo are those involving similar reporting agencies, such as Spokeo, Ruth Bader Ginsburg, joined by Justice statutes where a procedural violation to “follow reasonable procedures to Sonia Sotomayor, found “no utility” in creates a private action. For example, in assure maximum possible accuracy” of remanding the case to the Ninth Circuit. a June 17, 2016 commentary for Forbes, information within consumer reports. 15 Although the majority observed that Greg Herbers, a staff attorney for non- U.S.C. § 1681e(b). Robins would fail if he alleged only a profi t legal organization The Washington In 2011, the U.S. District Court for the “bare” procedural violation, Justice Legal Foundation, argued that the VPPA Central District of California dismissed Ginsburg argued that Robins’ complaint is one such statute that could be subject Robins’ complaint for lack of Article III goes beyond a bare procedural violation. to a renewed standing challenge post- standing under the U.S. Constitution. “Robins complains of misinformation Spokeo. The VPPA allows for private Article III standing requires a plaintiff about his education, family situation, individuals to sue “video tape service to demonstrate that he has suffered and economic status, inaccurate providers” who disclose “personally an injury-in-fact, which consists of the representations that could affect his identifi able information” to unauthorized invasion of a legally protected interest fortune in the job market,” wrote Justice persons. Because the VPPA allows for which is concrete and particularized. The Ginsburg. private actions based only on violation Ninth Circuit reversed the district court U.S. Supreme Court observers have of the statute, such actions may require decision in 2014, holding that Robins criticized the Spokeo decision, suggesting plaintiffs to establish that disclosure of had adequately alleged injury-in-fact to that the ruling contained inherently the “personally identifi able information” establish standing. (For more information contradictory logic and lacked clear created a concrete injury. Herbers argued on the Ninth Circuit decision, see “U.S. guidance for lower courts about how the Supreme Court “clearly reminded Supreme Court Accepts Review of Robins plaintiffs establish “concreteness” circuit courts that standing analyses v. Spokeo, Inc. ” in the Summer 2015 issue of injury. One such contradiction required a consideration of concrete of the Silha Bulletin.) involves the role Congress has played in injury to the plaintiffs.” In the U.S. Supreme Court’s ruling, elevating intangible harms to concrete RONALD W ACLAWSKI Justice Samuel Alito, writing for a 6-2 injuries, which the Court simultaneously SILHA R ESEARCH A SSISTANT 19 Eighth Circuit Overturns Jesse Ventura’s Victory in Libel and Unjust Enrichment Suit n June 2016, the U.S. Court of resulted in millions of hits restating Eighth Circuit overturned the jury’s Appeals for the Eighth Circuit Kyle’s alleged falsehoods. Ventura decision. Writing for the 2-1 majority overturned a jury decision in favor also alleged that Kyle’s statements opinion, Judge William Riley declined to of former Minnesota Gov. Jesse had injured his reputation as former dismiss Ventura’s defamation claims as a Ventura who brought defamation governor and undermined future matter of law. Rather, the majority ruled Iand unjust enrichment claims against opportunities as a political candidate that the decision must be overturned American Sniper author Chris Kyle’s and commentator. Kyle was later shot because Ventura’s attorneys had made estate. Ventura v. Kyle , 2016 825 F.3d and killed in February 2013 by another improper statements throughout the 876 (8th Cir. military veteran who was suffering from trial about HarperCollins’ insurance June 13, 2016). post-traumatic stress disorder. Kyle’s coverage related to American Sniper. DEFAMATION In overturning wife, Taya, was appointed as executrix During the trial, Ventura’s attorneys the decision, of Kyle’s estate and became the attempted to cast doubt on the testimony the three-judge panel for the Eighth defendant against Ventura’s lawsuit. of two HarperCollins employees by Circuit focused its decision primarily on In July 2014, the trial began between asking about the publisher’s insurance procedural matters and Minnesota law Ventura and Kyle’s estate. In order coverage. The attorneys suggested that rather than First Amendment principles to be successful on his defamation the publisher had a direct fi nancial relating to defamation. However, the claims, Ventura, a public fi gure, was interest in the outcome of the case panel’s decision left the door open required to prove that Kyle had acted because HarperCollins was paying for for Ventura to continue to pursue his with actual malice, meaning that Kyle the Kyle estate’s legal fees and had defamation claim against the Kyle estate. made his comments with knowledge of paid for the insurance coverage to Many free expression advocates praised falsity or with reckless disregard for the protect against any legal claims arising the outcome of the Eighth Circuit’s truth, as required by New York Times from Kyle’s book. During the trial’s decision but were disappointed that the v. Sullivan , 376 U.S. 254 (1964), and closing arguments, Ventura’s attorneys panel did not consider substantive issues Gertz v. Robert Welch Inc., 318 U.S. 323 suggested that HarperCollins’ insurance related to the First Amendment. (1974). During the trial, the testimony company would be required to pay any The dispute between Ventura and of witnesses for both Ventura and the monetary penalty for defamation. the Kyle estate began in January 2012 Kyle estate disputed where the fi ght took Judge Riley wrote that the references when William Morrow, an imprint of place as well as whether the fi ght had to an insurance policy had a prejudicial HarperCollins Publishers, published actually occurred. Ventura’s attorneys effect against the Kyle estate because American Sniper: The Autobiography of also provided photographs from that the jurors were likely to believe that an the Most Lethal Sniper in U.S. Military day after the alleged incident in which “impersonal deep-pocket insurer,” rather History, by former Navy SEAL sniper Ventura did not appear to be suffering than Taya Kyle, would be responsible Chris Kyle. The book quickly rose in from any physical repercussions of a for any fi nancial penalty resulting from popularity, reaching number one on The fi ght. During jury deliberations in late a defamation decision. As a result, New York Times’ bestsellers list within a July 2014, the attorneys for both Ventura the majority ruled that the Kyle estate month after publication. One subchapter and the Kyle estate agreed to accept a received an unfair trial and remanded in the book recounted an alleged 2006 divided decision after the jury expressed the defamation claim for a new trial. In a incident between Kyle and an older doubt that they could reach a unanimous dissenting opinion, Judge Lavenski Smith celebrity Navy SEAL, identifi ed only decision. On July 29, 2014, the jury disagreed with the majority’s opinion, as “Scruff Face,” at a bar in California. arrived at an 8-2 decision in favor of arguing that the Ventura attorneys’ According to Kyle’s account, Scruff Face Ventura, fi nding that he had proven his references to insurance policies had not had made disparaging remarks about defamation claims. The jury awarded prejudiced the jury. Judge Smith also the SEALs and said that the military unit $500,000 in damages to Ventura on the wrote that Kyle’s requests for a mistrial “deserved to lose a few.” Kyle wrote that defamation claim. The jury also found during the district court proceedings he punched Scruff Face, who fell to the that the Kyle estate had been unjustly had not followed proper procedures, fl oor. Kyle also wrote that rumors had enriched due to Kyle’s alleged fabrication and therefore a new trial should not be circulated that Scruff Face had a black and awarded $1,345,477 to Ventura. (For granted on appeal. eye while speaking at a SEAL graduation more information about the background As for the unjust enrichment claims, event the following day. of Ventura’s claims and the trial, see the three-judge panel ruled unanimously Although Kyle did not identify Scruff “Jesse Ventura Awarded $1.8 Million that the $1.3 million award should be Face in print, he later named the person for Libel and Unjust Enrichment” in vacated. Judge Riley wrote that under as Ventura during interviews while the Summer 2014 issue of the Silha Minnesota law, “to prevail on a claim promoting the book. On Jan. 23, 2012, Bulletin.) Taya Kyle later sought a of unjust enrichment, a claimant must Ventura fi led a complaint in the United motion for judgment as a matter of law establish an implied-in-law or quasi- States District Court for the District of or for a new trial, which the district contract in which the defendant received Minnesota against Kyle, alleging claims court denied. She then appealed the a benefi t of value that unjustly enriched of defamation, misappropriation, and jury’s decision. the defendant in a matter that is illegal or unjust enrichment. Specifi cally, Ventura On June 13, 2016, a three-judge panel unlawful.” The panel held that Ventura’s claimed that a Google search of his name for the U.S. Court of Appeals for the unjust enrichment claim failed because 20 the former governor did not have any for somebody who writes a book that Howard Stern’s radio show,” Feldman type of contractual relationship with makes a lot of money, or a screenplay, or added. “The [Eighth] Circuit is showing Kyle. “Although Ventura is correct that something like that.” what the Florida judges should be doing: ‘a quasi-contract will be imposed’ where Others have suggested that the using all legal means available to protect ‘a benefi t was conferred unknowingly or appellate court’s technical decision freedom of expression. In this sense, the unwillingly,’ we reject Ventura’s assertion may have actually been a way to ensure Ventura appeal should be a model for the that Ventura conferred a ‘benefi t’ on Kyle greater free expression protections. In Hogan appeals yet to come.” by Ventura’s mere existence as a colorful a June 14 commentary for Bloomberg On Aug. 2, 2016, the Eighth Circuit fi gure who might inspire people to View , Harvard University law professor declined Ventura’s request to rehear make up stories about him,” Judge Riley Noah Feldman compared the Eighth his case en banc. The Minneapolis Star wrote. As a result, the court overturned Circuit’s decision regarding Ventura Tribune reported on August 10 that the judgment in favor of Ventura on the with how Florida state courts have been Ventura intended to appeal the Eighth unjust enrichment claim. handling professional wrestler Hulk Circuit’s decision to the U.S. Supreme Several legal practitioners and Hogan’s lawsuit against the now defunct Court. Ventura also said that he would observers agreed with the Eighth Circuit celebrity and media gossip website seek another trial on his defamation panel’s decision in Ventura’s case, but Gawker. In March 2016, Hogan won a claims if necessary. “I feel I’ll win again,” were disappointed that the reasoning $140 million judgment on invasion of Ventura told the Star Tribune. “Every rested on technical and procedural privacy claims against Gawker, which time I’m the major underdog, guess who grounds rather than First Amendment published a sex-tape of Hogan in 2012. comes and makes me the favorite? The jurisprudence. In a June 16, 2016 (For more on Hogan’s legal battle with people. The people will come and take interview with Minnesota Lawyer, First Gawker, see “Gawker Faces $140 Million me from underdog status to victory.” Amendment attorney Mark Anfi nson said Judgment after Losing Privacy Case to However, Kirtley had already cast that he was frustrated that the Eighth Hulk Hogan” in the Winter/Spring 2016 doubt on the prospects of Ventura’s Circuit decision avoided important issue of the Silha Bulletin, and “Gawker appeal. “Ventura could fi le a cert petition Constitutional questions. “I was hoping Shuts Down After Losing Its Initial to the U.S. Supreme Court on the [unjust that they would reverse the defamation Appeal of $140 Million Judgment in enrichment] issue. But because it is claim as a matter of law, concluding Privacy Case” on page 1 of this issue.) based on an interpretation of Minnesota that the evidence on the record was not “The appeals court [in Ventura ] said law, and not on the First Amendment, my suffi cient to prove actual malice by clear in a 2-1 decision that the insurance guess is that the Supreme Court would and convincing evidence [as required by questions were improper because have absolutely no interest in taking the First Amendment],” Anfi nson said. no evidence had been admitted to that aspect of the case,” Kirtley said “But they didn’t touch that issue. Instead, prove that the book publisher had an in the June 18 interview on “Saturday they went to this highly esoteric debate insurance policy that would cover the Night with Esme Murphy.” “The about references to insurance coverage costs. One judge dissented, arguing Supreme Court is not in the business of and when certain objections were made very plausibly that the brief mentions of interpreting state law unless it violates by the attorneys, which really wasn’t the possible insurance policy wouldn’t the Constitution in some way. That’s very satisfying.” have prejudiced the jury,” Feldman not in play here. So the only option I In a June 18 interview on WCCO wrote. “But what the dissent effectively see is . . . going back for a new trial at radio’s “Saturday Night with Esme demonstrates is that the [Eighth] Circuit the district court level.” In the August Murphy,” Director of the Silha Center was trying to fi nd a way to overturn 10 Star Tribune story, Mitchell Hamline and Professor of Media Ethics and the defamation verdict in the hope that School of Law Professor Emeritus Law at the University of Minnesota it would make the case go away. To Joseph Daly said that a new trial might Jane Kirtley said that the Eighth be sure, Ventura can sue again on his be likely because Ventura did not seem Circuit panel’s decision on the unjust defamation theory in the district court. particularly motivated by a fi nancial enrichment claim would help curtail But he will now realize that the appeals settlement. “The governor is fi ghting on similar claims made by others in court is against him, and it would principle, and it could be really hard to the future. “The unjust enrichment probably be a waste of money for him to move them away from anything but a aspect was what really made this case try again.” trial,” Daly said. something to cause media lawyers and “The contrast couldn’t be stronger As the Bulletin went to press, journalists a lot of concern. If that claim between the Eighth Circuit’s decision Ventura’s attorneys had not submitted had survived this appeal, you would have and the Florida state court that decided any formal fi lings regarding further had a lot of potential for what I would in favor of Hulk Hogan in his suit appeals to the U.S. Supreme Court or for characterize as crazy cases coming out against Gawker — not to mention the a potential re-trial. of the woodwork,” Kirtley said. “Public intermediate state appellate court that fi gures and other celebrities would say, upheld some aspects of the Gawker CASEY C ARMODY ‘Just because I exist as an interesting trial []. The Florida courts have so far SILHA BULLETIN E DITOR person, if you decide to write about failed to realize that Gawker should me and you defame me or invade my be protected by the First Amendment privacy, I should be able to get some of because the sex tape it posted, as the money you made off the story.’ It unsavory as it may be, was relevant to might not be such a big deal for a news Hogan’s status as a public fi gure who organization, but it certainly would be had discussed his sex life repeatedly on

21 2016 Presidential Candidates Present Challenges for Free Expression uring the 2016 presidential In light of the comments, several this,” Trump said. “You think I’m gonna race, free expression media scholars and legal experts change? I’m not gonna change.” advocates have raised pushed back against Trump’s assertions, In a May 20, 2016 commentary for concerns over comments explaining that the presidential the Columbia Journalism Review and actions taken by candidate’s thoughts appeared (CJR), Committee to Protect Journalists DRepublican candidate Donald Trump and misguided. University of Michigan Law Executive Director Joel Simon wrote Democratic candidate Hillary Clinton Professor Leonard M. Niehoff told that Trump’s overly combative nature regarding the press. In February 2016, PolitiFact on March 1 that Trumps with journalists should raise concerns Trump claimed claims about news organizations for press freedom. “Trump has promised FREEDOM OF that The New York intentionally publishing false information that when he’s president media PRESS Times and other were not correct under the law. “Under companies like The New York Times media outlets New York Times v. Sullivan, the type of and The Washington Post will have lots were publishing false information with knowing lie that Mr. Trump describes is of ‘problems’ in the form of libel suits. impunity and made suggestions that not protected by the First Amendment,” ‘We’re going to open up libel laws, and libel laws in the United States should Niehoff said. Regarding libel laws, we’re going to have people sue you like be reformed. Throughout the summer Director of the Silha Center and you’ve never got sued before,’ Trump of 2016, Trump continued to criticize Professor of Media Ethics and Law at said at Texas rally in February,” Simon reporters, calling them “dishonest” and the University of Minnesota Jane Kirtley wrote. “Trump has variously denounced “not good people,” as well as revoking explained there are already ways for journalists as ‘dishonest,’ ‘scum,’ and press credentials from several media fi gures, like Trump, to take action against ‘sleaze.’ This kind of overheated rhetoric outlets. Meanwhile, press advocates have publications. “A public fi gure or public could be dismissed, except that Trump criticized Clinton’s campaign for limiting offi cial must plead and prove actual supporters seem to take it as license press access because she has avoided malice,” said Kirtley, citing Sullivan, in to insult, attack, smear, and heckle holding press conferences for several an interview with PolitiFact. “If he or she journalists and harass them online.” months. As a result, both candidates’ does, then yes, he or she could prevail, actions have led several national absent some other defense.” Under Washington Post Joins Several journalists to speculate on potential Sullivan, public offi cials do have the Organizations that Trump Bars challenges for the press under a Trump ability to recover damages from a news from Covering Campaign Events or Clinton White House administration. organization for libelous statements, On June 13, 2016, Trump went beyond but they must fi rst prove that the simply criticizing the press when he Trump Alleges News Organizations organization acted with actual malice, announced that he had revoked The Deliberately Print False News, meaning that the organization made the Washington Post ’s press credentials Suggests Changes in Libel Laws statements with knowledge of falsity to cover his campaign events. In a On March 1, 2016, Politifact reported or with reckless disregard for the truth. June 13 post on Twitter, Trump wrote, that during a February 28 appearance New York Times v. Sullivan, 376 U.S. 254 “Based on the incredibly inaccurate on “Fox News Sunday,” Trump told host (1964). coverage and reporting of the record Chris Wallace that he believed news CNN reported on May 31, 2016 that setting Trump campaign, we are hereby organizations often published false Trump’s criticism of the press continued revoking the press credentials of the stories because they knew they would during a contentious news conference phony and dishonest Washington Post .” not be sued for libel. “I think it’s very held after news organizations questioned In a subsequent post, Trump criticized unfair when the New York Times can the candidate’s claims that he raised $5.6 a particular headline in the wake of the write a story that they know is false, that million for military veterans at an event Orlando club shooting in June 2016. they virtually told me they know it’s false, earlier in 2016. However, Trump spent “I am no fan of President Obama, but and I say, why don’t you pull the story, nearly 40 minutes criticizing and insulting to show you how dishonest the phony and they say, we’re not going to do that, reporters, both in general terms and Washington Post is, they wrote, ‘Donald because they can’t basically be sued,” individually. At different points, he called Trump suggests President Obama was Trump said during the show. “And you reporters “dishonest,” “not good people,” involved with Orlando shooting’ as (Wallace) can’t be sued because you can and among “the worst human beings” he their headline. Sad!” Trump wrote on say anything you want, and that’s not has ever met, according to CNN. “I think Twitter. The Washington Post reported fair.” Trump’s comments came after he the political press is among the most on June 13 that Trump was referring to previously stated on February 26 that, as dishonest people that I have ever met, an article titled, “Donald Trump seems president, he would change libel law in I have to tell you. I see the stories, and to connect President Obama to Orlando the United States. “One of the things I’m I see the way they’re couched,” Trump shooting.” Trump accurately quoted the going to do if I win . . . I’m going to open said during the press conference. CNN original headline, which the Post changed up our libel laws so when they write reported that Trump also went on to say after Trump’s tweet. However, the Post purposely negative and horrible and that the combative nature toward the claimed that the newspaper changed the false articles, we can sue them and win press would continue were he to become headline “on its own, before Trump’s lots of money,” Trump said, according to president. “Yeah, it is going to be like complaint,” according to the June 13 PolitiFact. story. 22 In a June 13 press release, the Trump Martin Baron criticized Trump’s decision the campaign, would determine which campaign elaborated on his reasons to block publications from obtaining press outlets would have membership behind pulling the Washington Post ’s credentials to cover his campaign. in the pool. “We are pleased to press credentials “We no longer feel “Donald Trump’s decision to revoke The announce that after some start-and-stop compelled to work with a publication Washington Post ’s press credentials is negotiations with the Trump campaign, which has put its need for ‘clicks’ above nothing less than a repudiation of the we are debuting our full print pool this journalistic integrity,” the press release role of a free and independent press,” week, starting with BuzzFeed today in stated. “They have no journalistic Baron said in the press release. “When Washington,” read an e-mail, according integrity and write falsely about Mr. coverage doesn’t correspond to what the to Politico, sent to the press poll by Trump. Mr. Trump does not mind a candidate wants it to be, then a news representatives of The New York Times bad story, but it has to be honest. The organization is banished.” and Time magazine, who are managing fact is, The Washington Post is being However, on July 29, 2016, Trump’s the press pool. used by the owners of Amazon as their running mate, Indiana Gov. Mike Pence, political lobbyist so that they don’t who hosted a conservative talk radio Critics Also Raise Concerns over have to pay taxes and don’t get sued for show during the 1990s, told conservative Clinton Campaign’s Limitations on monopolistic tendencies that have led to radio host Hugh Hewitt during an Press Access the destruction of department stores and interview that the Trump campaign was Alternatively, press advocates have the retail industry.” discussing lifting the press credential also criticized Democratic candidate On June 14, 2016, CNN Money “blacklist,” according to The Washington Hillary Clinton, for failing to hold regular reported that the revocation of the Post’s Post. “I have a long history, as you well press conferences to publicly answer credentials was not the fi rst instance know, Hugh, of advocating and defending journalists’ questions. CNN Money of Trump adding a news organization for a free and independent press,” Gov. reported on Sept. 1, 2016 that Clinton had to a credentials “blacklist.” The Trump Pence told Hewitt. “You know, I authored not held a press conference during the campaign revoked credentials from the legislation in the Congress. We actually entirety of 2016. Clinton last held a press Des Moines Register during the summer got it passed once or twice, to create, conference on Dec. 4, 2015, according to of 2015. CNN Money reported that at you know, the ability to keep confi dential CNN Money. However, Politico reported the time, then-campaign manager Corey sources confi dential. So we’re going to on July 10, 2016 that Clinton said during Lewandowski issued a press release have those conversations internally, and an interview with CNN reporter Jake explaining the decision, stating, “We’re I fully expect in the next 100 days we’re Tapper that she believed that she was not issuing credentials to anyone from going to continue to be available to the accessible to the press, noting that she The Des Moines Register based on media, whether they’re fair or unfair.” has given nearly 300 interviews during the editorial that they wrote earlier in (For more information on federal shield 2016 alone. Clinton’s running mate, U.S. the week.” CNN Money reported that laws that Gov. Pence sponsored, see Sen. Tim Kaine (D-Va.), also defended the Trump campaign had also barred “Shield Law Bills Introduced Again in Clinton’s availability to the press during Univision from campaign events after U.S. House and Senate” in the Winter a September 1 interview with CBS “This candidate fi led a lawsuit against the 2009 issue of the Silha Bulletin, “House Morning.” “You see Hillary take questions media company for cancelling the Passes Federal Reporter Shield Law” in from reporters every day,” he said. “I broadcast of his Miss USA Pageant in the Fall 2007 issue, “Proposed Federal don’t see what the massive difference is the wake of his controversial comments Shield Law will go to House Floor; between a press conference and talking related to undocumented Mexican Justice Department and Big Business to the press everywhere you go. She talks immigrants. Other organizations that Offer Criticism” in the Summer 2007 to the press a lot. And I’ve been with her the Trump regularly refused to provide issue, “Shield Law Update: New Federal when she’s talked to the press.” credentials to included Buzzfeed, Shield Bill Introduced” in the Spring 2006 On Aug. 5, 2016, The Huffi ngton Post Politico, The Daily Beast, and The issue, and “Federal Shield Law Debated reported that the Clinton campaign held Huffi ngton Post, according to CNN in Hearings Before Senate Judiciary what they called a press conference in Money. Committee” in the Summer 2005 issue.) which the candidate fi elded questions Noah Shachtman, executive editor On Aug. 30, 2016, Politico reported from two journalists serving as of The Daily Beast, told CNN Money that the Trump campaign did appear to moderators at a joint gathering of the that his publication was blocked by the be loosening restrictions it had placed National Association of Black Journalists Trump campaign after publishing critical on several news organizations. The (NABJ) and National Association of coverage of the candidate. “We were Washington Post , BuzzFeed, Politico Hispanic Journalists (NAHJ). Clinton never a Trump favorite, but things got and The Huffi ngton Post were all listed also took questions from three other very frosty after we published a story as part of the Trump campaign’s press journalists as well. MSNBC national last year about allegations that Ivana pool rotation, which involves news correspondent Joy Reid, one the Trump made and later walked back about organizations combining reporting journalists who asked a question, said Donald Trump,” Shachtman said. “[Tim efforts by taking turns to report on that the event was a good step forward Mak, who wrote the story] was the fi rst Trump’s activities on behalf of all of the for Clinton in an August 5 post on of our reporters to be cut off . . . [and] organizations within the pool rotation. Twitter, writing “Kudos to #NABJNAHJ16 by the time the New Hampshire primary Politico reported that news organizations for nabbing that Hillary Clinton Q&A.” rolled around, even our freelancers were involved in the negotiations with Trump However, Reid added in the same post, getting cut off.” campaign over how the press pool “Not quite a press conference, but the In a July 2016 press release, rotation would operate demanded that closest in a long while.” Several other Washington Post Executive Editor only the news organizations, rather than Candidates, continued on page 24 23 Candidates, continued from page 23 wrote. “Similarly, refusing to regularly widespread government surveillance. answer questions from reporters in a “This time, in the continuing shadow of journalists were more critical of the press conference, as Hillary Clinton has, 9/11 and the never-ending war on terror Clinton campaign, arguing that the event deprives the American people of hearing abroad and at home, the dangers come was not a press conference. “@NABJ/@ from their potential commander-in-chief not only from the expanded operations NAHJ president describes today’s event in a format that is critical to ensuring he of government agencies like the NSA with Clinton as a large press conference. or she is accountable for policy positions and FBI, but from the ambitions of both It is not,” wrote CNN Reporter Dan and offi cial acts.” presumptive presidential nominees — Merica in an August 5 post on Twitter. “The United States will not have a Donald Trump and Hillary Clinton — That same day, Lisa Lerer, the national free press if its president gets to choose who seek control over the levers of mass politics reporter for the Associated which journalists and which media surveillance and the coercive powers Press, also wrote on Twitter, “I would organizations are allowed access to of the state,” Blum wrote. “Whatever not exactly call a couple Qs from pre- important selected journalists a press conference. differences they #NABJNAHJ16.” “President [Barack] Obama campaigned may have in other In an August 18 post on The on a promise to lead the ‘most policy areas or in Washington Post ’s political blog The terms of personal Fix, columnist Chris Cillizza wrote transparent’ administration in American style, temperament that Clinton’s refusal to hold a press history but has failed to meet that and experience, conference was a problem. “It’s beyond commitment. Based on the candidates neither Trump ridiculous that one of the two people left in the race, there is a good chance nor Clinton can who will be elected president in 80 or be counted on as so days continues to refuse to engage the situation will get worse, not better, in an ally or partner with the press in this way. But she does the next administration. The question to in the struggle to sit-down interviews! And she did a be decided on Election Day is how much preserve freedom ‘press conference’ with a moderator, um, of the press against moderating questions!” Cillizza wrote. worse, and how quickly.” excessive state “Not good enough. Not when you are surveillance. To running to be president of the United — Joel Simon, protect a free and States. One of the most important things Executive Director, Committee to Protect Journalists open press — to when someone is offering themselves up the extent it is still to represent all of us is that we get the the executive branch. We will not have possible at all — we’ll have to rely on best sense we can about how that person a truly free press and an informed ourselves, remaining ever skeptical of thinks on his or her feet, how they deal electorate if the president doesn’t believe those in power, and, as the old saying with unwanted or adversarial questions. he or she should be held accountable to goes, ‘eternally vigilant.’” Those two traits are big parts of doing inquiries from the media,” they added. In his May 20 commentary for CJR, the job of president in the modern “It is a reporter’s job to cut through the the Committee to Protect Journalists’ world.” rhetoric from candidates, scrutinize Simon suggested that neither Trump whether their policy proposals would nor Clinton presented a good choice Observers Suggest Either benefi t Americans in the way they for widespread press freedom and Outcome of 2016 Election Could Be claim and question the viability of their government transparency in the future Troublesome for the Press promises. If we cannot do our job, then if elected. “President [Barack] Obama As a result of the issues raised by the American people cannot do theirs. campaigned on a promise to lead the both major presidential candidates That’s why we are concerned both with ‘most transparent’ administration in related to freedom of the press, several the rhetoric directed at the media in this American history but has failed to national writers discussed their concerns campaign and the level of press access to meet his commitment,” Simon wrote. if either were to become president. In a the candidates. Both Clinton and Trump “Based on the candidates left in the race, July 14 USA Today op-ed, Carol Lee, the can do better.” there is a good chance the situation outgoing president of the White House In a June 15, 2016 commentary will get worse, not better, in the next Correspondents’ Association (WHCA), on The Huffi ngton Post, Bill Blum, a administration. The question to be together with incoming president Jeff lecturer at the USC Annenberg School decided on Election Day is how much Mason, wrote that they were “alarmed of Communications, expressed similar worse, and how quickly.” by the treatment of the press in the 2016 concerns, writing, “As we head for the presidential campaign,” focusing on both general election, the First Amendment SCOTT M EMMEL candidates in their critique of the 2016 — particularly, freedom of the press SILHA R ESEARCH A SSISTANT presidential campaign. “The public’s right — is at risk.” Blum noted that every to know is infringed if certain reporters generation faces “unique” press freedom are banned from a candidate’s events concerns but argued that candidates because the candidate doesn’t like a in the 2016 election were particularly story they have written or broadcast, as worrisome when it came to the press and Donald Trump has done,” Lee and Mason

24 Revenge Porn Remains Controversial Topic for State and Federal Legislatures n May 2016, Minnesota Gov. in observance and protection of privacy videos, in order to have embarrassing Mark Dayton signed a bill that rights — especially when digital images nude photos removed from website. The would criminalize “revenge porn,” are used to intimidate, harass, and penalty for “sextortion” would have been which is the online distribution embarrass,” Rep. Lesch wrote. “Sexual up to fi ve years in prison, a fi ne of up to of nude photos or other sexually crimes against intimate partners will not $5,000, or both. Lawmakers in Rhode explicitI content depicting another be tolerated in Minnesota.” Island can override Raimondo’s veto person without consent. On June 20, with a three-fi fths vote in both the House 2016, Rhode Rhode Island Governor Vetoes and the Senate, but, as the Bulletin Island Gov. Gina Revenge Porn Bill went to press, legislative leaders had not ONLINE SPEECH Raimondo vetoed In Rhode Island, Gov. Gina Raimondo commented on whether they would call a similar bill that vetoed a bill, H7537, which aimed to the Assembly back to do so. was meant to outlaw the “unauthorized “curb the dissemination of private Several Rhode Island legislators dissemination of indecent material.” sexual material over the internet,” criticized Gov. Raimondo’s decision to In Vermont, a judge dismissed charges according to a June 21, 2016 story by veto the bill. House Speaker Nicholas brought against a woman for violation of The Providence Journal. The state Mattiello issued a press release saying the state’s “revenge porn” law, enacted in Senate unanimously approved the bill that he was “extremely disappointed” 2015. Meanwhile, Congresswoman Jackie on May 26, 2016 and the House voted because the bill was part of a larger Speier (D-Calif.) introduced a bill on July 68 to 1 in favor of the bill on June 14. package of domestic-violence measures, 7, 2016 that would aim to make revenge However, Raimondo voiced concerns according to a June 11, 2016 story by porn illegal at the federal level. that the bill could hinder free speech. CBS-affi liate WPRI “Eyewitness News.” “The bill is apparently intended to curb “I am surprised because she never raised Minnesota Enacts Revenge Porn the dissemination of private sexual any concerns during the four months Statute material over the internet, but its sweep that it was under consideration by the On May 19, 2016, Minnesota Gov. is much broader,” Gov. Raimondo wrote House,” Mattiello said in a press release. Mark Dayton signed HF 2741 into in her veto statement, according to the Attorney General Kilmartin issued law, which created “civil and criminal Providence Journal. “It could also cover his own press release on June 21 penalties for the nonconsensual works of art that depict the human body. that pushed back against Raimondo’s dissemination of private sexual images, And unlike virtually all other similar concerns that the bill would raise free commonly referred to as ‘revenge porn.’” state statutes, H7537 does not include expression challenges. “I am confi dent The law would also require prosecutors basic safeguards such as the requirement that after review by our criminal, to show that an alleged perpetrator knew that ‘intent to harass’ be demonstrated civil, and appellate units, as well as by that the person depicted in the pictures for conduct to be criminal.” the General Assembly, that we could believed the images would remain “The breadth and lack of clarity may have easily and successfully defended private and had not agreed to share the have a chilling effect on free speech. the constitutionality of the bill if images any further. According to a May We do not have to choose between challenged,” he said in the statement. 3, 2016 MinnPost story, Minnesota’s protecting privacy rights and respecting “This legislation protects victims who bill would make the act a gross the principles of free speech,” added are being exploited, harassed, and misdemeanor or a felony, depending Gov. Raimondo in a letter to state stalked by individuals who willfully on the circumstances. Rep. John Lesch legislators. “The right course of action and intentionally post intimate photos (DFL-St. Paul) introduced the bill, which is to follow the example of other states, and videos to exact revenge or cause passed the Minnesota Senate 62 to 3 on and craft a more carefully worded law humiliation. . . . I applaud the General May 2, 2016 and 128 to 0 in the House of that specifi cally addresses the problem Assembly for recognizing the need to Representatives on May 16. (For more of revenge porn, without implicating update our laws to refl ect the changing information on this law, see “Minnesota other types of constitutionally protected nature of crime due to advances in Legislature Considers Criminalizing speech.” technology.” ‘Revenge Porn’” in the Spring 2016 The Rhode Island bill would have Executive director of the Rhode Silha Bulletin and “Minnesota Court of made a fi rst offense a misdemeanor. If Island Coalition Against Domestic Appeals Declares Defamation Statute convicted, the offender would be subject Violence Deb DeBare voiced her Unconstitutional” in the Summer 2015 to imprisonment up to one year, a fi ne of disappointment in an interview with issue). $1,000, or both, according to The Herald WPRI “Eyewitness News,” but also In an Aug. 16, 2016 post on his News. Repeated offenders would face a said she understood Raimondo’s offi cial Facebook page announcing an higher fi ne up to $3,000 and up to three concerns that the bill was “overly award from the Minnesota Coalition years in prison. The legislation would broad” and would have been likely to Against Sexual Assault for his work have also created criminal penalties for face challenges in court. “So while I’m on the bill, Rep. Lesch argued that those engaged in “sextortion,” which, disappointed in the sense that there Minnesota’s newly enacted revenge according to Attorney General Peter isn’t a good solid piece of legislation porn law was necessary in the digital Kilmartin’s offi ce, was a new cybercrime that has now become law, I do have a media environment. “In this new age of where victims are extorted into paying commitment from the governor and digital information, we must be vigilant money, or providing more photos or Porn, continued on page 26 25 Porn, continued from page 25 charges under the revenge porn law, Van of revenge porn, including the type at Buren fi led a motion to dismiss, arguing issue in Van Buren’s case. “A rape culture her policy staff to work toward a more that the statute was unconstitutionally would have us believe that victims, tightly crafted piece of legislation for vague both as applied and generally. primarily women, do not have the right next session,” DeBare said. In granting Van Buren’s motion, to privacy,” Watersong told Valley News . Raimondo and DeBare were not Vermont Superior Court Judge David She also said that the dissemination of alone in their concerns over the bill. Howard found that the photos at issue in revenge porn could also create risks for The Providence Journal reported that the case were not obscene and therefore the physical safety of the victims, and American Civil Liberties Union for did not fall within a category of speech that the public needed to recognize “how Rhode Island Executive Director Steven that has no First Amendment protection. very dangerous these violations could Brown said that the bill lacked important Turning to the revenge porn law itself, be.” elements protect free expression. “It is Judge Howard wrote that statute raised Bennington County state attorney essential to recognize that this bill makes Erica Marthage, no mention of revenge or harassment, who brought the and contains no requirement that the “Technology today makes it possible to charges against dissemination of a photo cause harm or destroy a person’s life with the click of a Van Buren, and be intended to cause harm in order to button or a tap on a cell phone. That is Attorney General violate the law,” Brown said. “Rather, it all anyone needs to broadcast another Bill Sorrell had is written so broadly that it could make jointly appealed the criminals of people involved in neither person’s private images without their case to the Vermont revenge nor porn, and would have a consent. The damage caused by these Supreme Court, direct impact on the First Amendment attacks can crush careers, tear apart according to a rights of the media. . . . That is why the Aug. 1, 2016 Valley Media Coalition, based in New York and families, and, in the worst cases, has led News story. As the consisting of national organizations like to suicide.” Bulletin went to the American Booksellers Association, press, the Vermont the Association of American Publishers, — Rep. Jackie Speier (D-Calif.) Supreme Court had and the Motion Picture Association of yet ruled on the America has . . . concern about the bill’s state’s revenge porn potential impact on matters of legitimate constitutional concerns. “The possible statute. news, commentary, and historical overbreadth of this statute is a concern,” interest.” he said in the opinion. “When criminal Congresswoman Introduces Federal charges rest solely on acts protected by Revenge Porn Bill Vermont Judge Raises the constitutional right to free speech, As states were considering different Constitutional Questions over the charges must be dismissed.” Judge types of “revenge porn” legislation, Rep. Revenge Porn Statute Howard’s full opinion is available at Jackie Speier (D-Calif.) also introduced Meanwhile, a Vermont Superior https://assets.documentcloud.org/ federal legislation on July 14, 2016 Court Judge for Bennington County documents/2998410/State-v-VanBuren- that would criminalize revenge porn. granted a defendant’s motion to dismiss 1144-12-15-Bncr.pdf. The bill, titled the Intimate Privacy criminal charges on July 1, 2016, that In an August 2 interview with Protection Act, H.R. 5896, 114th Cong. were brought under the state’s law Vermont alternative newspaper Seven (2016), would create criminal penalties criminalizing revenge porn. Decision on Days, Van Buren attorney Albert Schaal for anyone who “knowingly uses the Motion to Dismiss, Vermont v. Rebekah Fox applauded the dismissal. “It’s an mail, any interactive computer service Van Buren , No. 1144-12-15Bncr (Vt. Sup. accurate decision,” he said after the or electronic communication service Ct. Bennington Unit July 1, 2016). During case. “The statute as it’s written is or electronic communication system the summer of 2015, Vermont enacted dangerously overbroad. I don’t think of interstate commerce, or any other the law which “forbid[s] the distribution anyone has come close to demonstrating facility of interstate or foreign commerce of sexually explicit images without the the need for such an abridgment of to distribute a visual depiction of a subject’s consent.” 13 V.S.A. § 2602(b)(1). First Amendment rights in Vermont. person who is identifi able from the In October 2015, prosecutors brought It’s very much a case of the legislature image itself or information displayed in charges against Rebekah Van Buren, addressing a problem that doesn’t really connection with the image and who is alleging that she had violated the state’s have a demonstrated existence. To limit engaging in sexually explicit conduct, or revenge porn law. Van Buren accessed First Amendment speech rights without of the naked genitals or post-pubescent the Facebook account of her boyfriend meeting that criteria of [obscenity], that female nipple of the person, with and found that his ex-girlfriend had sent has a chilling effect and is entering into reckless disregard for the person’s lack him nude photos despite no longer being an uncertain world of what is and isn’t a of consent to the distribution.” Violations in a relationship. Van Buren posted the crime and I think that’s disturbing.” of the law would result in criminal fi nes nude photos without consent on her However, Auburn Watersong, or up to 5 years imprisonment. The full boyfriend’s public page and identifi ed the associate director of public policy for the text of the bill is available at https:// woman in the pictures. Van Buren later Network Against Domestic and Sexual www.congress.gov/bill/114th-congress/ told police she posted the pictures “for Violence, told Vermont’s Valley News in house-bill/5896/text. revenge” and to harm the ex-girlfriend’s an August 1 interview that she believed “Technology today makes it possible reputation. After prosecutors brought the law was necessary to prevent cases to destroy a person’s life with the click 26 of a button or a tap on a cell phone. of nonconsensual pornography itself. 2016 is a content-based restriction on That is all anyone needs to broadcast Consent always matters, whether for speech, unconstitutional under current another person’s private images without the sexual activity is physical or virtual, Supreme Court case law. In order for their consent. The damage caused by and there is simply no excuse for the Supreme Court to uphold it, it these attacks can crush careers, tear disregarding it.” would have to recognize a category of apart families, and, in the worst cases, In an August 15 op-ed for The New historically unprotected speech that has led to suicide,” Rep. Speier said in a York Times , Peter Thiel, billionaire includes nonconsensual pornography,” July 14 press release. “What makes these tech investor and co-founder of online Bennett wrote. “IPPA’s advocates have acts even more despicable is that many payment service company PayPal, written a presumptively unconstitutional predators have gleefully acknowledged praised the bill by drawing comparisons statute. They have not suggested a path that the vast majority of their victims between it and his fi nancing of to constitutionality. They address a have no way to fi ght back. Celebrities professional wrestler Hulk Hogan’s problem that has not been overwhelming and other high profi le victims might be invasion of privacy lawsuit against state criminal-justice systems. Perhaps able to take on these predators in civil Gawker. In March 2016, Hogan won a there are better uses for Congress’s courts, but the average person can’t $140 million judgment against Gawker, time.” afford that option. Even more disturbing who published a sex tape of Hogan in The American Civil Liberties Union is the number of victims who have 2012. “This [bill] is a step in the right (ACLU) has repeatedly opposed mustered the courage and strength to direction. Protecting individual dignity similar state laws, including an Arizona pursue criminal charges, only to learn online is a long-term project, and it will statute in July 2015, according to the there is no law that protects them. My require many delicate judgments,” Thiel The Huffi ngton Post. In Arizona, the bill will fi x that appalling legal failure.” wrote. “We can begin on solid ground by ACLU brought a federal lawsuit against In a July 18, 2016 commentary on The acknowledging that it is wrong to expose the state arguing that its revenge Huffi ngton Post, University of Miami people’s most intimate moments for no porn statute was overbroad and put School of Law Professor Mary Anne good reason. That is the kind of clear booksellers, photographers, publishers Franks wrote that the Intimate Privacy moral line that Gawker and publishers and librarians at risk of felony charges Protection Act was a much needed like it have sought to blur. But they can’t for publishing images fully protected privacy law. “The Intimate Privacy do it if we don’t let them.” (For more on under the First Amendment, according Protection Act does exactly what its title Hogan’s legal battle with Gawker, see to The Hill on July 15, 2015. The ACLU suggests: it recognizes that the right to “Gawker Faces $140 Million Judgment later settled the lawsuit with the state, privacy extends to sexual information,” after Losing Privacy Case to Hulk which included terms that barred state Franks wrote. “Numerous privacy laws Hogan” in the Winter/Spring 2016 issue prosecutors from bringing charges protect the confi dentiality of medical of the Silha Bulletin, and “Gawker Shuts under the revenge porn statute. “You records, fi nancial information, and many Down After Losing Its Initial Appeal of shouldn’t need a permission slip to other forms of sensitive information. But $140 Million Judgment in Privacy Case” post images of horrifi c torture from existing laws offer much less protection on page 1 of this issue.) Abu Ghraib or the ‘Napalm Girl’ for our most sensitive information: However, Electronic Frontier photograph that contributed mightily private photographs and videos of nudity Foundation (EFF) staff attorney Lee to changing American attitudes about or sexual activity. IPPA seeks to change Tien criticized the bill, especially its the Vietnam War,” Lee Rowland, an that.” defi nition of revenge porn, according ACLU staff attorney, wrote in a July “The criticisms aimed at this bill to a July 14 U.S. News & World Report 10, 2015 blog post on the ACLU of are depressingly familiar. The pretense story. “It defi nes revenge porn in a way Northern California’s website. “These of First Amendment concerns, the that doesn’t match very well with what iconic images are obviously a far cry trivialization of the harm infl icted, the revenge porn actually is. It’s reaching from ‘revenge porn,’ in which a person limitless sympathy for perpetrators and stuff that’s not actually the problem,” maliciously invades a former lover’s the utter indifference to victims — these Tien said. Tien expressed concerns that privacy.” The ACLU had not provided same tactics have long been used to the bill could chill free expression if specifi c comment about the Intimate criticize legislation against domestic businesses decided to withdraw content Privacy Protection Act as of early violence, sexual assault, stalking, and for fear that it is revenge porn, even if it September 2016. sexual harassment,” Franks added. is not. “It’s never a good idea to create a As the Bulletin went to press, the “Perhaps the most disturbing claim rule that could go pear shaped if you can Intimate Privacy Protection Act had made by critics of the bill is that sexual do a better job,” he said. been referred to the Subcommittee on consent is ambiguous and that people In a July 14, 2016 blog post on Crime, Terrorism, Homeland Security, should never be punished for recklessly Defending People, Mark Bennett, a and Investigations, but no further action disregarding it. That dangerous logic Houston criminal defense lawyer, had been taken. has helped create the sexual assault echoed the concerns about the crisis we are experiencing today, and has unconstitutionality of the bill. “The SCOTT M EMMEL greatly contributed to the phenomenon Intimate Privacy Protection Act of SILHA R ESEARCH A SSISTANT

27 Data Breaches Continue to Plague Social Networking Websites, Government Agencies, and News Organizations hroughout 2016, private that Myspace had been the victim of listed the Myspace, LinkedIn, Tumblr, companies, government a hacking incident that resulted in a and Fling data breaches as among the bodies, and media signifi cant data breach. The Myspace top 10 largest breaches the site has organizations faced data breach resulted in the unauthorized analyzed. Ars Technica reported on May breaches and cyberattacks. In access to personal information, 31 that data from all four of the social MayT 2016, news organizations reported including e-mail addresses, usernames, media megabreaches were available that a large-scale data breach of social and encrypted passwords associated for sale by Peace on the dark web networking service LinkedIn was with approximately 360 million user marketplace. much larger than accounts that were created prior to Experts also noted that in addition initially suspected. June 11, 2014. Other data breaches to amount of information exposed, the DATA PRIVACY Data breaches involving social media websites that breaches also posed problems because at other social of how long networking sites also raised concerns “[Myspace] didn’t protect passwords ago some of the among cybersecurity experts after user incidents actually names and passwords were found for with much rigor prior to 2013, meaning occurred. In a May sale on illegal online marketplaces. that if you use the same username and 31, 2016, blog post, Meanwhile, federal investigators alleged password combo on any other sites HaveIBeenPwned that Russian agents were behind a series founder Troy Hunt of cyberattacks against the Democratic today as you did for social networking in explained that National Committee (DNC), the National 2007, you’re at risk.” his analysis of Security Agency (NSA), and The New the Myspace data York Times . — Wired reporter Brian Barrett breach suggested it happened LinkedIn Data Breach From 2012 around 2008. Larger than Expected; Social Media surfaced in 2016 includes microblogging As a result, users who no longer use Sites Suffer Series of Mega Breaches website Tumblr , which suffered a breach the compromised websites may not In June 2012, social networking that exposed more than 65 million realize that their information has been service LinkedIn was the target of a unique e-mail addresses and encrypted exposed. In a May 31 commentary, Wired large-scale hack that resulted in the passwords, as well as adult dating reporter Brian Barrett explained that the disclosure of approximately 6.5 million website Fling, which suffered a breach age aspect to the breach could create users’ encrypted passwords in an online that exposed approximately 40 million serious security problems for users. Russian forum. However, more recent users’ e-mail addresses, usernames, “It’s unlikely that anyone will break reports have suggested that the breach plain text passwords, and IP addresses, into your zombie [Myspace] page; the may have been larger than expected. In according to separate May 2016 stories company has invalidated user passwords May 2016, Motherboard reported that a by Motherboard. for all affected accounts, and didn’t hacker by the name “peace_of_mind” Motherboard reported on May 27 that store credit card or other fi nancial info (or “Peace”) attempted to sell data the LinkedIn and Myspace passwords anyway,” Barrett wrote. “The bigger from the 2012 LinkedIn data breach — were originally “hashed,” a process worry, though, is that [Myspace] didn’t which contained 167 million account that converts the actual password to protect passwords with much rigor prior login credentials, and the e-mails and a series of letters and numbers, using to 2013, meaning that if you use the same passwords of 117 million LinkedIn users an algorithm that is weak and easy username and password combo on any — on a dark web illegal marketplace for hackers to crack. An anonymous other sites today as you did for social called “The Real Deal.” operator for LeakedSource, a hacked networking in 2007, you’re at risk.” In a May 18, 2016 post on the data search engine, told Motherboard LinkedIn Offi cial Blog, LinkedIn Chief that he had cracked “90% of the Cyberattacks Target U.S. Political Information Security Offi cer Cory Scott [LinkedIn] passwords in 72 hours.” Campaigns and Organizations confi rmed the data for sale was genuine Tumblr passwords were encrypted During Election Year user information, noting that LinkedIn using the same technique, but were In the midst of the U.S. presidential was “taking immediate steps to invalidate additionally “salted,” whereby additional campaign during late July 2016, news the passwords of the accounts impacted” random data is added to the password, outlets began reporting that the U.S. and encouraged users to enable two- making it diffi cult for hackers to crack, Democratic National Committee step verifi cation as well as use stronger according to a May 30 Motherboard (DNC) computer systems were hacked. passwords. story. According to a July 29, 2016 story by LinkedIn’s breach is just one in a As of August 2016, HaveIBeenPwned, The New York Times, Federal Bureau string of social media megabreaches a website that allows internet users to of Investigation (FBI) offi cials told U.S. to have surfaced during 2016. On May check whether their personal data has House of Representative and Senate 31, 2016, Time magazine reported been compromised by a data breach, intelligence committees that the agency 28 has “virtually no doubt that the Russian appeared minimal despite the fact that hackers had targeted voter registration government was behind the theft.” Early hackers downloaded large quantities of systems in Illinois and Arizona. Politico reports of the breach suggested that law information related to policy positions, reported on August 29 that any access enforcement offi cials initially believed according to a Nov. 7, 2008 Financial to registration information “could that compromised information was Times story. allow hackers to digitally alter or delete limited to the private e-mail accounts of However, Skyhigh Networks CEO registration information, potentially more than one hundred party offi cials Rajiv Gupat suggested in a July 28 denying people a chance to vote.” and groups as well as documents from commentary for Forbes that WikiLeaks’ In a Sept. 2, 2016 interview with the Democratic Congressional Campaign timing of the publication and the Bloomberg News, Putin denied Russian Committee, the fundraising arm of substance of the leaked documents seem involvement in the DNC hack but said the DNC. On Aug. 10, 2016, the Times to suggest that hackers are seeking to that the leak was benefi cial to the public. reported that further investigations infl uence the U.S. presidential election. “The important thing is the content was suggested that information tied to the The fallout from leaked documents given to the public,” Putin said. On Sept. Democratic Governors’ Association was embarrassing for Democratic 5, 2016, The Wall Street Journal reported might have also been affected. presidential candidate Hillary Clinton’s that Clinton suggested that the Russian On July 29, The New York Times campaign and the DNC, resulting in government was trying to interfere with reported that early analyses by the election in CrowdStrike, a private cybersecurity ”What makes this attack [on the an effort the get fi rm, pointed to two Russian-based her opponent, groups involved in the cyberattack: The Democratic National Committee] very Republican Federal Security Service (FSB) and the different — and crosses the line — is the presidential Main Intelligence Directorate (or GRU). Russian team’s decision to dump the candidate Donald The compromised DNC information was Trump, elected later leaked to several news publications Clinton campaign’s opposition strategy president. in June 2016 by a hacker who referred on the public Web.” However, The Wall to himself as “Guccifer 2.0.” On July Street Journal 27, 2016, the Times reported that — Dave Aitel, also reported Crowdstrike and other technology CEO, Immunity, Inc. that federal specialists were unsure at the time investigators could whether Guccifer 2.0 was a lone hacker not determine or a false persona created by Russian the resignation of several high profi le whether Russian hackers were actually intelligence offi cials. On July 22, 2016, a DNC members, including chairwoman trying to infl uence the election or merely day prior to the start of the Democratic Debbie Wasserman Schultz. In the attempting to gather intelligence. National Convention, WikiLeaks also same commentary, Gupta said the hack published a signifi cant number of “sets a new precedent and draws into Leaked Data Probably Contains documents on its website that were question the US government’s ability to Power NSA Hacking Tool stolen in the DNC hack, including 19,252 deter state-sponsored cyberattacks on On Aug. 15, 2016, Ars Technica e-mails and 8,034 attached fi les. even the most sensitive government and reported that a hacking group referring The DNC was not the sole target of political operations.” But Gupta noted to itself as the Shadow Brokers claimed cyberattacks during the 2016 election that attributing cyberattacks to their to have hacked the servers of Equation cycle. The Washington Post reported source, even with substantial evidence, Group, a highly sophisticated technology on June 14, 2016 hackers had attempted can be diffi cult, particularly in light of and hacking contractor employed by the several attacks that targeted groups the United States’ own cyber-espionage U.S. National Security Agency (NSA). associated with both major 2016 U.S. efforts. Alongside the blog post taking credit for presidential campaigns, as well as Gupta and others have suggested that the hack, the Shadow Brokers posted several Republican political action the leak should be distinguished from samples of code used in the production committees. Reuters reported on Aug. traditional acts of espionage. In a June of malware built and used by the NSA. 12, 2016 that U.S. intelligence offi cials 17, 2016 commentary for Ars Technica, On Aug. 16, 2016, The Washington Post, had informed top congressional leaders Immunity, Inc. CEO Dave Aitel argued citing unnamed NSA personnel from the that the Democratic Party was being that the breach and disclosure of DNC agency’s hacking division, the Tailored targeted, but the congressional leaders data was not traditional espionage, but Access Operations (TAO), reported that were unable to warn the targets due to more akin to an act of cyberwarfare. the posted fi les appeared legitimate and the classifi ed nature of the information. “What makes this attack very different contained several NSA-related hacking The 2016 attacks were not the fi rst — and crosses the line — is the Russian tools dating back to 2013 that could time presidential candidates have been team’s decisions to dump the Clinton take control of fi rewalls, networks, and targeted for cyberattacks during an campaign’s opposition strategy on the exfi ltrate or modify information. election year. In November 2008, then- public Web,” Aitel wrote. In the August 15 story, Ars Technica Senator and Democratic presidential In addition to political campaigns, editor Dan Goodin noted that the candidate Barack Obama’s and the FBI released information regarding Shadow Broker group’s disclosures Republican presidential candidate John the possible hacking of state election about NSA hacking tools occurred less McCain’s campaign computer systems offi ces, suggesting a direct involvement than a month after another unidentifi ed were the targets of a Chinese-based in election tampering. On Aug. 29, 2016, cyberattack, but the resulting damage The Washington Post reported that Breaches, continued on page 30 29 Breaches, continued from page 29 Program Remains Controversial Even 2016 against the Democratic National after It Ends” in the Fall 2015 issue.) Committee. U.S. investigators told hacker, Guccifer 2.0, published CNN that foreign intelligence hackers information gained from a hack of the FBI Investigates Possible Hack of viewed news organizations as valuable Democratic National Committee’s (DNC) The New York Times cyberattack targets because reporters computer system. Goodin suggested On Aug. 23, 2016, CNN reported that retain contact information as well that, taken together, the leaks “represent the Federal Bureau of Investigation as sensitive communications and a major broadside against US interests, (FBI) was investigating whether unpublished works from government although it’s impossible to directly Russian hackers were behind a series sources. connect the people behind the two of cyber attacks targeting U.S. news In an Aug. 24, 2016 interview with the online personas.” organizations. CNN’s report, citing Christian Science Monitor, Reporters The specter of Russian involvement unidentifi ed government offi cials Without Borders’ head of the Eastern with the Shadow Brokers leak was associated with the investigation, Europe & Central Asia desk Johann Bihr seen by some as a geopolitical did not specifi cally identify the news said that claims that Russian hackers move in response to United States’ organizations involved in the inquiry had attacked news organizations were intelligence agencies attributing but noted that the FBI’s investigation unsurprising because of the widespread Russia with involvement in the DNC focused on an attack targeting The New surveillance that Russia conducts leak weeks earlier. In a series of York Times . The unnamed offi cials domestically. “The Russian surveillance Aug. 16, 2016 Twitter posts, Edward told CNN that investigators, although system is absolutely extensive,” Bihr Snowden, a former-NSA contractor and not certain, thought there was a high said. “[Russia’s principal intelligence whistleblower on the agency’s mass probability that Russian intelligence agency, the Federal Security Service,] surveillance efforts worldwide, wrote operatives were behind the attacks on has access to the servers of each and that “[c]ircumstantial evidence and news organizations’ servers over the every internet server provider at the conventional wisdom indicates Russian course of several months. regional level, so it’s quite easy for them responsibility” and that the Shadow Later that day, The New York Times to intercept any communication.” Brokers leak looks like someone was reported that its Moscow bureau had Reporters Without Borders ranked “sending a message that an escalation indeed been the target of a cyberattack. Russia 148 out of 180 countries in its in the attribution game could get messy However, Times spokeswoman Eileen World Press Freedom Index 2016. fast.” (For more information about Murphy said that there was no evidence “What with draconian laws and website Snowden’s disclosure of NSA documents that the attack was successful. “We blocking, the pressure on independent to the public, see “Snowden Leaks are constantly monitoring our systems media has grown steadily since Vladimir Reveal Extensive National Security with the latest available intelligence Putin’s return to the Kremlin in 2012,” Agency Monitoring of Telephone and tools,” Murphy said. “We have seen Reporters Without Borders wrote in and Internet Communication” in the no evidence that any of our internal its description of Russia for the 2016 Summer 2013 issue of the Silha Bulletin, systems, including our systems in the ranking. “Leading independent news “Snowden Leaks Continue to Reveal Moscow bureau, have been breached or outlets have either been brought under NSA Surveillance Programs, Drive U.S. compromised.” The Times , also citing control or throttled out of existence. and International Protests and Reforms” unnamed government offi cials, disputed While TV channels continue to inundate in the Fall 2013 issue, “NSA Surveillance CNN’s claims that the FBI’s investigation viewers with propaganda, the climate Practices Prompt Reforms and Legal extended to other news organizations. has become very oppressive for those Challenges Throughout All Government CNN reported that U.S. intelligence who question the new patriotic and Branches” in the Winter/Spring 2014 agencies believed that the cyberattack neo-conservative discourse or just try to issue, “Fallout from NSA Surveillance on the Times showed that Russian maintain quality journalism.” Continues One Year after Snowden spy agencies were attempting to Revelations” in the Summer 2014 issue, gather intelligence from a wide range RONALD W ACLAWSKI “Two Years after Snowden Revelations, of sources involved in the American SILHA R ESEARCH A SSISTANT National Security Surveillance Issues political system. The Times noted that Still Loom” in the Summer 2015 issue, U.S. offi cials had also blamed Russian and “NSA Telephony Metadata Collection hackers for cyberattacks carried out in

30 Critics Raise Privacy Concerns Over Pokémon Go n July 6, 2016, mobile app Go only accesses basic Google profi le Niantic may be unnecessarily collecting, developer Niantic Inc. information (specifi cally, your user using, and sharing a wide range of users’ released Pokémon Go, a ID and e-mail address) and no other personal information without their free “augmented reality” Google account information is or has appropriate consent,” Sen. Franken game in which players been accessed or collected,” Niantic wrote in the letter. “I believe Americans attemptO to capture virtual monsters said. “Once we became aware of this have a fundamental right to privacy, and called Pokémon, in the United States error, we began working on a client-side that right includes an individual’s access in both Apple’s and Android’s mobile fi x to request permission for only basic to information, as well as the ability to apps stores. The Google account information, in line with make meaningful choices, about what game makes the the data we actually access. Google has data are being collected about them DATA PRIVACY monsters appear verifi ed that no other information has and how the data are being used. As on users’ screens been received or accessed by Pokémon the augmented reality market evolves, I as if they were appearing in the users’ Go or Niantic.” ask that you provide greater clarity on same real-world location. It also requires Others also expressed concerns how Niantic is addressing issues of user users to travel to various locations in that Niantic might be collecting and privacy and security, particularly that of order to capture Pokémon. The gaming sharing too much information from users its younger players.” app quickly gained popularity when through Pokémon Go. According to the Others also expressed concerns millions of users downloaded the app app’s privacy policy, Niantic wrote that it over the types of data that Niantic was in the United States and countries will “collect and store information about collecting from children. In a July 19 across the world as the game was your (or your authorized child’s) location letter to Niantic, Common Sense, an released internationally. However, some when you (or your authorized child) independent non-profi t organization that observers began raising concerns over use our App and take game actions that focuses on issues involving children’s Pokémon Go’s privacy and data access use the location services made available use of media, asked the company to settings. Such concerns led to privacy through your (or your authorized child’s) clarify its privacy policies and practices advocates and government offi cials device’s mobile operating system, related to Pokémon Go. “Parents must be calling upon Niantic to explain its data which makes use of cell/mobile tower the ones who decide which games their collection and use practices. triangulation, wifi triangulation, and/ children play and what is acceptable On July 11, 2016, CNET reported that or GPS.” The privacy policy also noted use of their data — decisions parents cybersecurity blogger Adam Reeve had that it would share collected information cannot make when privacy policies are discovered that iOS users had given with various third parties that administer vague and business models profi t off Niantic “full access” to their Google various services or for research and players in multiple, and often opaque, accounts when using such accounts analysis purposes. The policy said that ways, such as via confusing in-app to sign up to play Pokémon Go. Full the sharing of personally identifi able purchases and targeted ads seamlessly account access, according to Google, information (PII) with third parties will incorporated into a game,” Common meant that Niantic was able to “see only happen in limited circumstances, Sense founder and CEO James P. Steyer and modify nearly all information in but the policy never specifi cally defi nes wrote in the letter. “Niantic, and other [an] account.” Later reports suggested what the company considers to be PII. app developers, need to make it easy that the amount of information that The privacy policy indicated that it was for parents to understand what apps do, Niantic could actually access may have last updated on July 1, 2016. how game play works, and how data is been limited, but observers could not In a July 14 interview with Politifact, collected and shared.” be certain because Google had not cybersecurity expert and Binary Defense “[Common Sense urges you to] enable provided specifi c details over what the Systems founder David Kennedy said users, particularly parents acting on “full account access” designation. The that the third-party sharing provisions behalf of their kids, to easily opt-out of discovery that Niantic could potentially should raise concerns. “With Google, it’s information sharing that is not integral to have more access than necessary to a well-established service. Facebook is a the game,” Steyer added. “For example, information found in users’ Google well-established service, with terms and the Children’s Online Privacy Protection accounts led to signifi cant outcry from conditions you can read,” Kennedy said. Act (COPPA) requires that parents the public and press. On July 12, 2016, “These third-party applications could be have the option to prevent sharing of Niantic released an update to Pokémon selling your name, your address, your their children’s personal information Go that limited access permissions to phone number, your contact list, what with third parties. This is an essential allowing the company to see only users’ you’re browsing — directly tied to your protection for children, who should not Google User IDs and e-mail addresses. name.” Kennedy also told Politifact that have a marketing profi le built on them as In a July 11 statement to Ars he would not be downloading the game. the price of playing a game.” Technica after the news about Recognizing several potential data On July 22, 2016, the Electronic access permissions broke, Niantic privacy concerns, U.S. Senator Al Privacy Information Center (EPIC) said that it had not accessed users’ Franken (D-Minn.) sent a letter to called on the Federal Trade Commission information. “We recently discovered Niantic Chief Executive Offi cer John (FTC) to investigate Niantic’s data that the Pokémon Go account creation Hanke on July 12 asking the CEO to privacy practices. “When Niantic process on iOS erroneously requests describe how Pokémon Go collected, released Pokemon GO, the company full access permission for the user's used, and shared users’ data. “I am Google account. However, Pokémon concerned about the extent to which Pokémon, continued on page 32 31 Pokémon, continued from page 31 safety standards appear to have been individuals and organizations about Irish overlooked. . . . I urge you to urgently law related to the collection of locational granted itself ‘full access’ to the accounts reassess your app and its security and data from mobile apps and other types of users who signed up for the game safety features,” NSPCC CEO Peter of online technology. Bloomberg BNA with a Google account,” EPIC wrote Wanless wrote in a letter to Nintendo reported that the Commissioner’s Offi ce in a letter to FTC Chairwoman Edith UK, which maintains ownership rights issued the guidance in response to the Ramirez. “At no time did Niantic request over the Pokémon brand. “We all have a popularity of Pokémon Go. The offi ce’s user permission for full access to Google responsibility to ensure that children are guidance for individuals included: being accounts; users simply logged in to the protected and as creators of a game with aware that mobile apps, websites, and app via their Google account without substantive reach, you have a weighty public Wi-Fi networks may collect receiving any additional information responsibility to protect your young location data when in use; becoming about what will be accessed. During this users. . . . I’m asking you to use this familiar with mobile phone settings that time, all users’ full accounts were at risk opportunity to reassess [Pokémon Go’s] let users manage the types and amount of hacking and data breach. The FTC has safety and ensure you have security and of data that can be collected form the previously found similar practices to be reporting functions which will still allow phone; learning about personal rights unfair or deceptive.” children to play but, crucially keep them related to data processing; and being “Niantic’s unlimited collection safe when they do.” Niantic released aware that companies must typically and indefi nite retention of location Pokémon Go in the United Kingdom ask for consent prior to collecting data violate the data minimization the following day despite the NSPCC’s and using personal data. The Data requirements under the Children’s Online concerns. Protection Commissioner’s Offi ce Privacy Protection Act (COPPA), which On July 20, Fortune reported that guidance also reminded organizations requires providers to ‘retain personal the Federation of German Consumer that: locational data is likely to identify information collected online from a Organizations (VZBZ) threatened to sue individuals and is therefore considered child for only as long as is reasonably Niantic under Germany’s privacy and person data under Irish data protection necessary to fulfi ll the purpose for consumer protection law if the company laws; data controllers are required to which information was collected.’ did not amend 15 clauses in Pokémon minimize the amount of personal data Niantic does not disclose how long Go’s terms of service and privacy policy. that they collect, process, and retain; location information is retained or what VZBZ was particularly concerned with and informed consent is necessary to purpose this retention fulfi lls,” EPIC provisions in which Niantic claimed obtain prior to collecting data in order to added. “The Pokemon GO app raises that it had the right to share users’ comply with the law. complex and novel privacy issues that data with third parties. “We think there In a press release accompanying the require close FTC scrutiny. Niantic’s is not a high enough level of consent documents, the Irish Data Protection disappointing history with respect to in the use of data — these extended Commissioner’s Offi ce explained that consumer privacy further underscores rights of giving users’ data away to third the guidance it was providing would the need for FTC oversight. The FTC parties in circumstances, which are not help individuals’ protect their rights. should (1) investigate whether Niantic’s suffi ciently described,” VZBZ legal policy “Location data is any information which data collection and retention practices offi cer Heiko Dünkel told Fortune in an links an individual to a particular place are consistent with [Fair Information interview. including information about where a Practices (FIPs)]; (2) prohibit Niantic’s The German consumer group said person currently is, or where they were policies that are inconsistent with FIPs that Niantic’s claims that it could revise at some point in the past. Technology as unfair or deceptive trade practices; its terms of service at any time as such as smart phones has made it easier and (3) investigate Niantic’s ongoing well as the fact the policies’ language than ever before for individuals to be COPPA violations.” As the Bulletin was diffi cult for ordinary citizens located. Organisations use this data went to press, the FTC had not publicly to comprehend violated Germany’s to offer personalised services, such as responded to EPIC’s requests. consumer protection law. VZBZ gave navigation apps or location-specifi c Overseas, Niantic faced various Niantic until August 9 to comply with news content on websites,” the offi ce challenges over data privacy and its requests. If Niantic failed to do so, wrote in the press release. “Aimed at security practices related to Pokémon the group said it would fi le a cease- both individuals and organisations, Go . On July 13, the National Society for and-desist letter in German court. On our guidance will assist individuals the Prevention of Cruelty to Children August 17, VZBZ updated an earlier in understanding how information (NSPCC), a UK charitable organization press release, stating that it had been in relating to their location is collected dedicated to child protection, called on contact with Niantic attorneys to discuss and processed, and provides clarity Niantic to further delay the release of privacy concerns. The consumer group to organisations on their obligations Pokémon Go in the UK, which had been said it would delay any legal action until regarding such data. The overriding halted due to server-related issues, so its correspondence with Niantic was principle of the guidance centres on the that the company could address privacy completed. protection of the individual’s right to concerns. “Given Pokémon’s already On Aug. 9, 2016, the Ireland’s Offi ce data privacy.” massive popularity with children, of the Data Protection Commissioner the NSPCC is concerned that basic published detailed guidance for CASEY C ARMODY SILHA BULLETIN E DITOR

32 Department of Defense Revises Law of War Manual after Criticisms from Journalistic Community hen the Department of would have removed military members’ seems to put more of the burden on Defense (DoD) issued obligations to provide protection; and military commanders to distinguish its new “Law of War an explanation that military members between the journalistic and enemy Manual” (Manual) in needed to make an effort to “distinguish activities.” June 2015, several between the activities of journalists In a July 22 press release on its Wnews organizations and press advocacy and the activities of enemy forces” website, Reporters Without Borders groups quickly criticized the way so that journalists are not mistaken (RSF), another organization the DoD the manual defi ned “journalists” and for combatants. The Huffi ngton Post consulted during the revision process, “newsgathering reported on July 22 that the DoD also stated that it was pleased to learn activities,” and removed passages that compared that provisions referring to spying NEWSGATHERING called on the newsgathering to spying, as well as and censorship had been removed. government to suggestions that journalists should seek In Section 4.24.1, the revised version make revisions to the text. Among permission from “relevant authorities” clarifi es the international legal principle the concerns with the fi rst version of prior to gathering information. that journalists, particularly those who the Manual were passages suggesting However, Section 4.24.2.2 of the are embedded with U.S. military forces, that journalists could be considered Manual continues to restrict other types are protected as civilians under the law “unprivileged belligerents,” meaning of journalistic activities, noting that of war, stating, “Journalists do not form hostile individuals that did not journalists have no special right to enter a distinct class of persons under the law qualify for combatant immunities or a “areas of military operations without of war, but instead receive protection “prisoner of war” status and could be the consent of the State conducting through the general protections detained indefi nitely; that if a journalist those operations.” The same section afforded civilians.” RSF U.S. Director disclosed information about combat explained that security measures Delphine Halgand said the clarifi cation operations, military offi cials would may also be taken to “reduce the risk would provide greater protections have the authority to consider that the of disclosure of sensitive military for journalists. “We welcome today’s journalist was “taking a direct part in information, including numbers of revisions to the Law of War Manual hostilities”; advising journalists to carry military personnel, types of on-hand and that the DOD for addressing RSF’s “appropriate identifi cation” to protect equipment, unit locations, and plans concerns,” said Halgand in the press them from being viewed as spies; and for future operations.” Additionally, the release. “We hope that this update will that journalists’ work might be subject Christian Science Monitor reported help to improve the safety of journalists to prior review by military offi cials. on July 22 that journalists could still be covering confl ict, a profession that These descriptions and defi nitions considered “unprivileged belligerents” becomes increasingly dangerous every prompted signifi cant criticism from the if they are part of “non-state armed day.” journalistic community, which argued groups” carrying out propaganda or In the government’s July 22 press that several sections of the Manual other media activities. The Christian release, DoD General Counsel Jennifer could create dangerous situations for Science Monitor noted that this O’Connor said that the revisions should reporters covering wartime operations. phrasing left signifi cant room for varying clarify the military’s approach to working (See “Department of Defense’s New interpretations. The updated version with journalists covering combat Law of War Manual Brings Calls for of the Manual is available at http:// operations. “After the manual’s release Revisions from Journalistic Community” www.defense.gov/Portals/1/Documents/ last year, DoD lawyers heard concerns in the Fall 2015 issue of the Silha DoD_Law_of_War_Manual-June_2015_ brought forward by media organizations Bulletin.) Updated_May_2016.pdf. and engaged in a productive, thoughtful In response to the criticisms, the The CPJ praised the updates to the dialogue with journalists that helped us DoD announced in a July 22, 2016 press Manual in its July 22 post. “The new improve the manual and communicate release that it had made “substantial language is a seismic shift for the U.S. more clearly the department’s support revisions” to its sections regarding military. This affi rmation of journalists’ for the protection of journalists under reporters and journalistic activity. The right to report armed confl icts freely and the law of war,” O’Connor said. “The press release explained that the DoD from all sides is especially welcome at department’s mission is to defend had worked with several journalists a time when governments, militias, and the very freedoms that journalists and press advocacy groups to make the insurgent forces around the world are exercise. We have learned a lot during changes. In a July 22 post on its website, routinely fl outing the laws of war,” CPJ this process, and the department the Committee to Protect Journalists Senior Adviser for Journalist Security and the manual are better off for the (CPJ), one of the groups that the DoD Frank Smyth said, according to the CPJ experience.” The Christian Science consulted, wrote that the changes post. “The Law of War Manual’s original Monitor also reported on July 22 that included: the inclusion of statements language would have risked more DoD offi cials said that they were open describing the important role that journalistic imprisonments by putting to further revisions to the Manual in the journalists play in covering combat most of the burden on the journalist to future, if necessary. operations; clarifi cations that engaging avoid behavior that could be construed ELAINE H ARGROVE in newsgathering does not constitute as a hostile act. The revised language SILHA C ENTER S TAFF taking part in direct hostilities, which 33 State Legislatures, Courts Consider Media Law Issues uring the summer of 2016, Public Radio (MPR), Rep. Hoppe said of Prince’s signature looks. “The way several states confronted that the bill was intended “to recognize it’s written, the law is broad enough to legal questions that raised the right of publicity postmortem.” drive a truck through,” said Iverson. important issues for More specifi cally, the bill would “If someone wants to throw a Prince media law policy within grant celebrities greater leverage to dance party, they can expect a cease Dtheir jurisdictions. The issues included restrict the unauthorized use of their and desist letter from an attorney.” Minnesota lawmakers considering a likeness. According to a May 16 story In May 11 op-ed for the Star bill that would establish protections for by MinnPost, the bill would create a Tribune , University of Minnesota individuals’ statutory property right “in a person’s Professor of Law William McGeveran STATE LAW likenesses, name, voice, signature, photograph, argued that the bill confl icted with the UPDATES the Minnesota or likeness.” Under the bill, that right First Amendment. “As fi rst drafted, Court is automatically passed on to heirs currently written, the PRINCE Act of Appeals ruling that a statute for a minimum of 50 years, and for an contained a very narrow, limited free- criminalizing “grooming” was indefi nite period afterwards so long as speech exception for news, public unconstitutional, and states adopting the heirs continue to enforce that right. affairs and sports reports. When critics laws outlining procedures for police In a May 9 interview with MPR, Joel like me immediately pointed out body camera footage. that this narrow rule probably Minnesota Lawmakers pulls the “The way it’s written, the law is broad violated the First PRINCE Act Amidst Opposition enough to drive a truck through. If Amendment, the In the wake of the April 2016 death someone wants to throw a Prince dance bill was changed of Minnesota-based recording artist to add a laundry Prince, Minnesota Rep. Joe Hoppe party, they can expect a cease and desist list of other (R-Chaska) introduced the Personal letter from an attorney.” types of art and Rights in Names Can Endure Act commentary,” (PRINCE Act), H.F. 3994, on May — Attorney Blake Iverson McGeveran wrote. 9, 2016 that would have created a “These 11th-hour property right in a person’s name, additions are voice, image, or likeness for up to Leviton, the Bremer Trust attorney based on old media and do not mention, 50 years after they die. CNN Money appointed to oversee Prince’s estate, for example, video games or websites. reported on May 10 that the law would was a vocal supporter of the PRINCE There has been no time to consider have established a property right for all Act. “We’re talking about your name, what else might have been overlooked. citizens, not just celebrities. However, we’re talking about your image, we’re Moreover, even the improved PRINCE the Minneapolis Star Tribune reported talking about a photograph of you,” Act still would require case-by-case on May 19 that Rep. Hoppe elected Leviton said. “We’re talking about adjudication in court, which would be to withdraw the bill in response to anything that identifi es you.” In a May an expensive and diffi cult undertaking widespread concerns over its language. 9 interview with CBS-affi liate WCCO, for any artist or author defendant sued On April 21, 2016, The New York Sen. Bobby Joe Champion (DFL- by the celebrity’s estate. And celebrities Times reported that Prince Rogers Minneapolis), who introduced the and their heirs can threaten suit Nelson, better known simply as Prince, PRINCE Act in the Minnesota Senate, whenever they choose. That prospect was found dead in an elevator at Paisley said that the bill was needed to help would scare many people away from Park, his home and recording studio in give artists greater control over their exercising legitimate speech rights in Chanhassen, Minn. He died without a images. “We just wanted to make sure the fi rst place.” will, a spouse, or any children to name that that property right was created In the May 16 MinnPost story, as heirs, according to the Times . On and that the heirs and estates would Director of the Silha Center and April 21, Spin magazine reported that have control over any commercial Professor of Media Ethics and Law besides the value of his name alone, exploitation or any usages of it,” Sen. at the University of Minnesota Jane Prince also left a vault of unreleased Champion said. Kirtley argued that the act was largely music. The Star Tribune also reported However, others were critical of unnecessary. “Existing intellectual on May 18 that representatives handling the language of the PRINCE Act. property law would most likely address Prince’s estate were concerned about Minneapolis attorney Blake Iverson most of the legitimate concerns about others profi ting off of Prince, including told MinnPost on May 16 that he was Prince,” Kirtley said. MinnPost also through unauthorized T-shirts with his troubled by a provision in the bill reported that although Minnesota does image. that allowed litigants, if successful, to not have a written law protecting a In response to all of these concerns, collect attorney fees from anyone found living person’s right of publicity, federal Rep. Hoppe, whose legislative district liable for infringement. “This law is courts had already held that Minnesota includes Paisley Park, introduced the essentially a cash grab for attorneys,” would recognize a right to publicity for PRINCE Act on May 9, near the end of he told MinnPost. Iverson was also living persons. If adopted, the PRINCE Minnesota’s 2016 legislative session. concerned at what the law would cover, Act would have made Minnesota the In a May 9 interview with Minnesota such as any purple coat, which was one sixteenth state with a state statute

34 that codifi ed a common law protection grooming statute, a person over the On June 20, 2016, a three-judge panel of an individual’s privacy into a form age of 18 who used the internet, phone, for the Minnesota Court of Appeals of intellectual property, according to or computer system to solicit sex by upheld the lower court’s ruling, fi nding MinnPost. “engaging in communication with a that parts of the state’s anti-grooming Kirtley also raised concerns over the child or someone the person reasonably were “facially overbroad in violation fair use exceptions for media coverage believes is a child, relating to or of the First Amendment because it and artistic representation. “Celebrities describing sexual conduct” was guilty prohibits a substantial amount of can and will use right of publicity of a felony. The statute defi ned a child protected speech.” In writing for the laws to try to stop reporting about as anyone who was age 15 or younger. unanimous panel, Judge Peter M. things that they want to keep secret, On June 20, 2016, the Minneapolis Reyes’ opinion focused on the wording even if those things might arguably Star Tribune reported that the case in Subdivision 2a(2) of the statute, be matters of public interest,” Kirtley at hand arose in November 2014 from which stated “A person 18 years of told MinnPost. “A publisher may be online conversations between Krista age or older who uses the Internet, embroiled in expensive litigation for Muccio, a 43-year-old Dakota County a computer, computer program, years, and even if it wins in the end, will middle-school lunchroom assistant, computer network, computer system, have lost a lot of money in the process. and a 15-year-old student. The student’s an electronic communications system, . . . Most users won’t have those kinds father found images depicting naked or a telecommunications, wire, or of resources, so will be chilled from women and female genitals on his son’s radio communications system, or other engaging in this kind of speech.” iPad and reported it to law enforcement electronic device capable of electronic Although the Minnesota House of data storage or Representatives’ Civil Law and Data “[Although] the statute’s aim is laudable, transmission to Practices Committee approved the bill commit any of on May 12, 2016, Rep. Hoppe chose to the law is unconstitutionally overbroad the following withdraw the bill in order to consider because the ‘restriction goes well beyond acts, with the the concerns raised by opponents over that interest by restricting the speech intent to arouse the bill’s language, according to a May the sexual desire 18 Star Tribune story. Rep. Hoppe available to law-abiding adults.’” of any person, is said he planned to rework the bill guilty of a felony and intended to reintroduce it during — Judge Peter M. Reyes, . . . : engaging in Minnesota’s 2017 legislative session. Minnesota Court of Appeals communication with a child Minnesota Court of Appeals authorities. Upon investigation, law or someone the person reasonably Finds Anti-Grooming Law enforcement offi cials discovered that believes is a child, relating to or Unconstitutional the pictures originated from Muccio’s describing sexual conduct.” Minn. Stat. On June 20, 2016, the Minnesota Instagram account and were sent to § 609.352, subd. 2a(2). In particular, the Court of Appeals ruled that a statute the student via direct message. When panel criticized the wording “arouse preventing predators from luring police executed a search warrant, they the sexual desire of any person.” children into sexual encounters online found that Muccio and the student had Judge Reyes wrote that the language was unconstitutional. Minnesota held sexually explicit conversations potentially risked criminalizing v. Muccio , 881 N.W.2d 149 (Minn. and exchanged explicit photographs protected speech between two adults App. 2016). The three-judge panel through social media accounts, who have a right to engage in sexually for the Minnesota Court of Appeals according to the Star Tribune. arousing interactions online. In other held that the law’s language was In April 2015, prosecutors brought words, the court determined that the unconstitutionally overbroad and had charges against Muccio in the District statute could criminalize any situation the potential to chill protected free Court for Dakota County, alleging in which an adult wished to “arouse speech. Attorneys for the state of one count of felony communication the sexual desire of any person” in an Minnesota are considering an appeal to with a minor describing sexual online conversation, not just in the the Minnesota Supreme Court. conduct in violation of Minnesota’s case of conversations with children, Enacted in 2007, Minnesota’s anti-grooming statute and another said Director of the Silha Center and “Solicitation of Children to Engage count for possessing pornographic Professor of Media Ethics and Law in Sexual Conduct; Communication work involving a minor in violation at the University of Minnesota Jane of Sexually Explicit Materials to of the state’s child pornography Kirtley in an interview with the Star Children,” criminalized the act of statute. Muccio then fi led a motion Tribune on June 20. “grooming.” Minn. Stat. § 609.352. requesting that the trial judge dismiss The court also focused on the Minnesota Public Radio (MPR) the grooming charge, arguing that the wording “engaging in communication reported on June 20, 2016 that statute was unconstitutional. The judge . . . relating to or describing sexual grooming involves sexual predators agreed and dismissed the charge, ruling conduct” within the statute. The engaging in online conversations that the law was facially overbroad court acknowledged that speech with children and exposing them to and violated the First Amendment’s directly related to criminal conduct pornographic material in an attempt to protections of free expression. State was not entitled to First Amendment acclimate the child towards a sexual prosecutors then appealed the district protections. However, Judge Reyes encounter. Under Minnesota’s anti- court’s decision to the Minnesota Court of Appeals. State Law, continued on page 36 35 State Law, continued from page 35 permissible for individuals to engage in that body camera footage is publicly wrote that the anti-grooming statute speech that could potentially sexually available under the law. criminalized speech that was not arouse someone else, even if that In February 2015, Sen. Ron Latz “integral to criminal conduct.” Instead, person might be a child. Kirtley noted (DFL-St. Louis Park) introduced SF the statute criminalized speech that that the statute’s defi nitions of criminal 498 in the Minnesota Senate, which was “one step removed” from conduct conduct were overly broad, thus aimed to establish uniform guidelines because the type of speech that making the statute unconstitutional. for how police departments within the statute prohibits “precedes the The Star Tribune also reported Minnesota must handle body camera solicitation of criminal sexual conduct that Dakota County Attorney James footage because approximately 40 by sexual predators,” meaning that Backstrom, one of the attorneys police departments were already using there was not an absolute guarantee representing the state in the case, said such devices, according to a May 24 that criminal activity would follow such that the Minnesota Supreme Court Minnesota Public Radio (MPR) story. speech. should decide the constitutionality However, the bill was initially tabled The panel also found that the statute of the statute and that he planned to during Minnesota’s 2015 legislative was unconstitutionally overbroad appeal the decision. State Sen. Ron session but was considered once again because it had the potential to Latz, (DFL-St. Louis Park), chairman during the 2016 session. criminalize protected speech. Judge of the Minnesota Senate Judiciary In its fi nal form, the bill contained Reyes gave one example of a “music Committee, said that he had not several provisions on how police video producer [who] creates a video read the ruling yet but was surprised departments in Minnesota should with sexually explicit depictions or that the appellate court couched its handle offi cer body camera footage. lyrics, with the intent to arouse the decision so deeply in First Amendment Signifi cantly, the bill classifi ed all sexual desire of some person who jurisprudence. He also acknowledged footage captured by body cameras views or listens to the video, places that laws regulating speech are diffi cult as private or nonpublic data. The bill that video on social media, and a child to draft. “There is always a gray area did include several circumstances age 15 or younger sees or hears it.” with legislation that tries to address in which the video could be made The court concluded that this act, potential criminal risk compared to public, including footage capturing among others protected by the First actual harm,” Sen. Latz said. instances when police offi cers have Amendment, would be criminalized In July, state attorneys fi led a fi red their weapons during the course under the statute. The appellate court petition for further review with the of their duties, when there is “the use also dismissed the state’s arguments Minnesota Supreme Court. On Aug. 23, of force by a peace offi cer that results that the statute could be narrowly 2016, the Supreme Court granted the in substantial bodily harm,” or when a construed in order to prevent it from state’s petition. As the Bulletin went to subject in the footage requests that it being struck down because it would press, the Minnesota Supreme Court be made publicly accessible so long as require the appellate court to add had not yet scheduled oral arguments. an investigation involving the footage language not already included in the is complete. In situations when footage statute. Finally, Judge Reyes rejected Minnesota and North Carolina will be made publicly-available, anyone the state’s arguments that the statute Governors Sign Police Body depicted in the video who is not a was a constitutional content-based Camera Legislation police offi cer can decide whether they regulation, fi nding that the statute was On May 31, 2016, Minnesota Gov. want to be identifi able. If people do not suffi ciently narrowly tailored to Mark Dayton signed SF 498, which not want to be identifi ed, they may serve the state’s compelling interest established regulations for the use of elect to have their faces blurred and in protecting children. Judge Reyes police body camera technology within voices distorted in the video, according wrote that although “the statute’s aim is the state. The Minneapolis Star Tribune to a May 17 City Pages story. The laudable, the law is unconstitutionally reported on May 31 that the Minnesota Star Tribune reported on May 10 that overbroad because the ‘restriction goes law requires that most footage captured police offi cers depicted in the video well beyond that interest by restricting by police body cameras would remain could also choose to redact their own the speech available to law-abiding private. However, the law permits images in situations when footage will adults.’” some body cam videos to be released be made public. Additionally, the bill John Westrick, who represented to the public in situations when the allowed police to withhold footage the Muccio in the case, applauded camera captures altercations resulting that was “clearly offensive to common the decision. “The Legislature tries in “substantial bodily harm” or when sensibilities,” but does not defi ne what to criminalize conduct before it’s individuals depicted in the footage that term means. criminal,” Westrick told the Star chooses to allow the video to be The bill also permitted individuals Tribune on June 20. “I understand [the publicly available. Meanwhile in North to pursue court actions to compel state’s] desire to protect the children, I Carolina, Gov. Pat McCrory signed a the disclosure of any body camera really do. But prosecutors need to show similar law, HB 972, on July 11, 2016, footage that a department retains. In intent to commit a crime. It doesn’t fl y which allows law enforcement agencies such situations, individuals seeking in this case. . . . I believe the public is to keep offi cer-worn body camera the footage must notify the department the winner with this ruling.” Kirtley also footage from the public unless ordered retaining the footage, as well as the told the Star Tribune that the appellate to release the footage by a court, subjects depicted in the videos, about court’s decision would have a major according to a July 11 ACLU press the requests for public disclosure. impact on Minnesota law because release. Like Minnesota’s statute, the State district courts have the authority the opinion clearly stated that it was North Carolina bill does not presume to determine whether the footage 36 in question should be released in consider the bill. “It weighs too heavily on a 47 to 14 vote before it moved to its entirety or only in part. When in favor of the perspective of law consideration in the Minnesota House. considering whether to make footage enforcement at a time in which trust The House adopted the bill on May 16 publicly available, the bill required by the African-American communities on a 95 to 33 vote with an amendment judges to consider whether the benefi t and other communities of color in law that removed the provision allowing of releasing the footage outweighed enforcement is at an all-time low,” she offi cers to review footage prior to any harm of making the footage public. said, according to the Star Tribune. “At submitting incident reports. As a result, The bill also mandated that judges view the end of the day, it’s more important the House and Senate held a conference the footage in private before making a to take the time and do this right than committee to reconcile the Senate bill decision. to hastily enact legislation that is going and amended House bill. Upon reaching The bill required police departments to cause more harm than good.” The a compromise, both the Minnesota that use body cameras to post a written clause allowing offi cers to review Senate and House voted to pass the bill policy that governs the departments’ footage prior to submitting incident on May 21. Gov. Dayton signed the bill use of such technology on their reports was later removed by the on May 31, 2016. website. Police departments must Upon the solicit comments on their policies from “[Minnesota’s police body camera governor’s the public before any equipment is signature, purchased or used within a department. bill] weighs too heavily in favor of the Sen. Latz said City Pages reported that the bill perspective of law enforcement at a time that, despite would permit police departments in which trust by the African-American transparency to create their own rules about advocates’ when the cameras would need to be communities and other communities criticisms, the capturing footage, what consequences of color in law enforcement is at an all- bill was a success offi cers would face for violating time low. At the end of the day, it’s more because it favored department policies, and designating important to take the time and do this individuals’ the department offi cials tasked with privacy. collecting, withholding, and editing the right than to hastily enact legislation that “Community footage. is going to cause more harm than good.” organizations Throughout the course of the look at the big legislative process, the bill was the — Nekima Levy-Pounds, picture, but that subject of extensive lobbying efforts President, the Minneapolis Chapter, NAACP may confl ict by both government transparency with the agenda advocates and law enforcement of an individual offi cials. Open government advocates legislature after Gov. Dayton said he who is on a recording,” Sen. Latz told argued that the bill’s provisions were would not sign a bill containing such a the St. Paul Pioneer Press in a May too favorable to law enforcement provision. 31 interview. “I’d rather leave it in the offi cials because of the presumption Despite the signifi cant opposition hands of the individual.” However, that camera footage was private. During during the May 10 hearing, the NAACP President of St. Paul Jeff Martin a May 10 House Civil Law and Data committee chose to adopt the said that the bill ultimately focused Practices Committee hearing on the bill on an 11 to 2 vote, with many more on law enforcement interests bill, Minneapolis City Council Member observers suggesting that the rather than police accountability, which Linea Palmisano expressed concerns overwhelming support stemmed from should have been the focus of the bill. that the footage from the cameras will law enforcement offi cials’ signifi cant “We seem to have forgotten what led us not be used properly and that the city lobbying efforts related to the bill. to this point,” Martin told the Pioneer was not equipped to deal with public In a May 10 interview with the Star Press in the same story. “If our opinion data requests. “I want this data to be Tribune , Minnesota Police and Peace doesn’t count, then let’s get ready for usable,” said Palmisano, according to a Offi cers Association Executive Dennis the real fi ght, which will be in court.” May 10 Star Tribune story. “If we aren’t Flaherty acknowledged the role of Others also agreed that the managing the data from a body camera law enforcement lobbying in the negotiations over the use of police program and making it accessible, it’s legislative process. “We try to develop body cameras were not settled upon of zero worth. And I think we are about relationships with lawmakers from Gov. Dayton’s decision to sign the bill. to get snowed [under] in terms of how both sides of the aisle, and I think we’re In a May 31 interview with MPR, Rep. we might catalog this type of data and fortunate in that most of the legislators Dan Schoen (DFL-St. Paul Park) said be able to go and access it.” want to certainly hear our message,” that he expected that amendments to During the same hearing, National said Flaherty. Ben Feist, a lobbyist for the law would be introduced during Association for the Advancement of the American Civil Liberties Union Minnesota’s next legislative session. Colored People (NAACP) Minneapolis (ACLU) of Minnesota, also noted that “This is a conversation we should Chapter President Nekima Levy- police groups have a “tremendous continue to have,” Schoen said. “[The Pounds expressed concerns over amount of infl uence” in most of the law as it is now is] going to make it provisions in the bill that would have legislation his organization views as very possible for any law enforcement permitted offi ces to review footage important. agency that wants to adopt body prior to fi ling offi cial incident reports The Minnesota Senate adopted the and that more time should be taken to police body camera bill on May 2, 2016 State Law, continued on page 38 37 State Law, continued from page 37 seen or heard in the video. These Mike Tadych explained that the individuals are allowed to watch the law created signifi cant barriers for cameras to go ahead and do so. That’s video, but cannot show it to the general individuals who want to make law the most important achievement here.” public or make any copies. However, enforcement footage publicly available. Meanwhile in North Carolina, Gov. they are not guaranteed the ability to Tadych argued that the law maintains Pat McCrory signed HB 972 on July 11, see the footage because it is still up to that judges are allowed to release 2016, which created legal distinctions law enforcement to decide whether to only footage that has been specifi cally for different types of footage captured disclose the video. For example, police described during court proceedings. by law enforcement offi cers. On July agencies can withhold the footage if The attorney argued that such a task 12, the Christian Science Monitor they feel it requires so much secrecy would be diffi cult when no one in the reported that under the law, both that even the people in the footage public would have been able to see body camera footage and dash camera cannot see it, according to PolitiFact. the video before it was released. “I footage are not considered part of the The “release” of body camera videos don’t know how in the world, without public record. Instead, law enforcement meant that the footage would be made knowing what’s on it, you would be agencies have the discretion whether available to the general public. Under able to say you know what’s on it,” to disclose the footage to people who the law, individuals, including reporters, Tadych said. were recorded, according to an ACLU who believe that body camera footage In a July 11 press release, Susanna of North Carolina July 11 press release. should be publicly released would Birdsong, Policy Counsel for the ACLU The Huffi ngton Post reported on July be required to seek a court order of North Carolina also criticized the law 14 that Gov. McCrory may have been compelling disclosure of the footage. because of the diffi cult steps needed to motivated to sign the bill in response Individuals would also need to be taken in order to make body camera to a series of police-involved shootings petition a court in situations when law footage publicly available. “Body throughout the United States during enforcement offi cials deny requests cameras should be a tool to make 2016. for footage in “disclosure” situations. law enforcement more transparent CNN reported on July 13 that under Prior to any footage being released, and accountable to the communities the newly enacted law, North Carolina local district attorneys, the head of the they serve, but this shameful law will police departments could consider agency that captured the video, and any make it nearly impossible to achieve withholding law enforcement-captured offi cer whose image is seen or voice is those goals,” said Birdsong, in the footage from the public if such a heard in a video must be notifi ed that press release. “People who are fi lmed disclosure would reveal information footage may be publicly released and by police body cameras should not of a “highly sensitive personal nature”; must be given the opportunity to testify have to spend time and money to go if the disclosure “may harm the about the footage in court, according to to court in order to see that footage. reputation or jeopardize the safety of Politifact. These barriers are signifi cant and we a person”; if disclosure would create Upon signing the bill, Gov. McCrory expect them to drastically reduce any “a serious threat to the fair, impartial, said the new law established new potential this technology had to make and orderly administration of justice”; standards that would promote law enforcement more accountable to or if withholding release was necessary “uniformity, clarity and transparency” community members.” to protect an active or inactive for law enforcement recordings within The North Carolina law will go into investigation, criminal or internal. North Carolina. However, government effect on Oct. 1, 2016. According to July 1 PolitiFact story, transparency advocates criticized the bill differentiates between the several of the new law’s provisions. SCOTT M EMMEL “disclosure” and the “release” of body In a July 1 interview with Politifact, SILHA R ESEARCH A SSISTANT camera footage. The “disclosure” of Raleigh-based public records attorney footage is only available to the people

38 Free Expression Controversies on College Campuses to be Topic of 31st Annual Silha Lecture

rom “culturally offensive” the encampment being in a public 1998 Robert F. Kennedy Book Award Halloween costumes to location. (For more on these confl icts for Race, Crime and the Law. protests over controversial between protestors and the press, see Professor Kennedy attended speakers to “trigger “Journalists, Newspapers Clash with Princeton University, Oxford University, warnings” in classrooms, Activists on College Campuses, Raising and Yale Law School, followed by debateF over freedom of expression First Amendment Issues” in the Fall clerkships with Judge J. Skelly Wright only seems new to America’s college 2015 issue of the Silha Bulletin.) of the United States Court of Appeals campuses. These and similar issues In a Nov. 27, 2015 op-ed essay for for the District of Columbia Circuit have roiled higher The New York Times titled “Black Tape and with United States Supreme Court SILHA CENTER education for at Harvard Law,” Professor Kennedy Justice Thurgood Marshall. He is EVENTS decades. Randall argued that activists should fully also a member of the American Law L. Kennedy, the consider outcomes when presenting Institute, the American Academy of Michael R. Klein legitimate claims of victimhood. Arts and Sciences, and the American Professor of Law at Harvard Law In particular, Professor Kennedy Philosophical Society. Professor School, will revisit key disputes that responded to activists who argued that Kennedy currently teaches courses are likely to continue to challenge when vandals defaced photographs of on civil rights and civil liberties, First Amendment principles when African-American law school professors Constitutional law, and race and law at he presents “The Politics and Law of by placing black tape over their faces, Harvard. the Culture Wars in American Higher it constituted a “racial hate crime.” The 31st Annual Lecture begins Education, 1950-2020” at the 31st He wrote that although the taping at 7:30 pm at Cowles Auditorium in Annual Silha Lecture on Oct. 3, 2016. was disturbing to many, the motive of the Hubert H. Humphrey Center on During the past year, free expression those who vandalized the photos was the West Bank of the University of advocates have found themselves in unclear. Although acknowledging that Minnesota Twin Cities campus. A confl ict with civil rights and student the action may have been racist, he selection of Professor Kennedy’s books protestors on college campuses across argued that “there is a need to calibrate will be available for sale, with a book the United States. In Connecticut, carefully its signifi cance.” Noting signing following the Lecture. The a campus newspaper faced the loss that incidents like the one at Harvard Silha Lecture is free and open to the of student funding in October 2015 Law inspired “diffi cult but earnest and public. No reservations or tickets are after printing a controversial op- probing conversations,” he suggested required. Parking is available in the ed criticizing the protest tactics of that “in the long run, reformers harm 19th and 21st Avenue ramps. Additional Black Lives Matter, an organization themselves by nurturing an infl ated information about directions and dedicated to drawing attention to sense of victimization.” The complete parking can be found at www.umn.edu/ and combatting institutional racism essay is available at http://www. pts. against black individuals in the United nytimes.com/2015/11/27/opinion/black- The Silha Center for the Study of States. Black Lives Matter supporters tape-at-harvard-law.html. Media Ethics and Law is based at argued that the campus newspaper The author of numerous books the School of Journalism and Mass had perpetuated racism on campus. and articles, Professor Kennedy is Communication at the University of In a separate November 2015 incident, uniquely qualifi ed to discuss race Minnesota. Silha Center activities, activists who were protesting the relations in the United States. His including the annual Lecture, are made University of Missouri administration’s books include For Discrimination: possible by a generous endowment handling of several racist incidents Race, Affi rmative Action, and the Law from the late Otto Silha and his wife, at the institution blocked a student (2013), The Persistence of the Color Helen. photographer on assignment for a Line: Racial Politics and the Obama national news organization from Presidency (2011), Sellout: The Politics SILHA C ENTER S TAFF taking pictures at a makeshift tent of Racial Betrayal (2008); Interracial encampment on the campus quad. Intimacies: Sex, Marriage, Identity, The activists claimed that the student and Adoption (2003), and Nigger: The photographer was violating a “safe Strange Career of a Troublesome Word space” free from journalists despite (2002). In 1998, he was awarded the

39 Silha Center for the Study of Media Ethics and Law Non-profi t Org. School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID Twin Cities, MN 111 Murphy Hall Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625-3421

The Politics and Law of the Culture Wars in American Higher Education, 1950-2020

31st PROFESSOR RANDALL KENNEDY, HARVARD LAW SCHOOL annual silha rom “culturally oensive” Halloween costumes to protests over lecture controversial speakers to “trigger warnings” in classrooms, Fdebate over freedom of expression only seems new to America’s college campuses. These and similar issues have roiled higher education > MONDAY,AY , OCOCTOBERTO BE R 3, 2201601 6 for decades. Randall Kennedy will revisit key disputes that are likely to > 7:30PM continue to challenge First Amendment principles. > COWLES AUDITORIUM HUBERT H. HUMPHREY SCHOOL Randall Kennedy is Professor of Law at Harvard Law OF PUBLIC AFFAIRS UNIVERSITY OF MINNESOTA School. He attended Princeton University and Yale WEST BANK Law School. He clerked for Judge J. Skelly Wright and > FREE & OPEN TO THE PUBLIC; Justice Thurgood Marshall. His most recent books are NO RESERVATIONS NEEDED The Persistence of the Color Line: Racial Politics and the Obama Presidency and For Discrimination: Race, Armative Action, and the Law. He is a member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Society.

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