Communications Lawyer Vol 31 No 1

Communications Publication of the Forum on Communications Law American Bar Association Volume 31, Number 1, Winter 2015Lawyer THE JOURNAL OF MEDIA, INFORMATION, AND COMMUNICATIONS LAW

In this issue Jackpot! Presumed Damages COVER STORY Gone Wild—and Unconstitutional Jackpot! Presumed Damages Gone Wild—and SUSAN E. SEAGER Unconstitutional ...... 1 This article argues that presumed damages violate fundamental notions of fairness as Vegas casino billionaire million jury award for presumed dam- by chilling speech and punishing unpopu- Steve Wynn recently hit a ages in his libel per se lawsuit against lar speakers who dare criticize government judicial jackpot in Los Ange- a small Chicago-area newspaper and officials and public figures, running afoul les with a $17 million jury reporter. The Illinois jury handed out of the First Amendment and the due pro- Laward for presumed damages in his the multimillion-dollar award despite cess clause of the Fourteenth Amendment. slander per se lawsuit against Joe Fran- the lack of any independent evidence cis, the volatile creator of the Girls of reputational or economic harm. Click Here to Accept the Terms Gone Wild video empire. To the contrary, reputation witnesses of Service ...... 4 Never mind that Wynn presented no testified that Justice Thomas “still This article addresses the key features evidence that anyone believed Francis’s enjoy[ed] a good reputation,” had been of the most common types of online absurd statement. Even the newsman honored by bar associations, and ele- agreements—clickwrap and browsewrap who reported the statement said he vated to chief justice of the Illinois agreements—the circumstances under didn’t believe Francis, who blurted in Supreme Court after the news report.3 which courts have upheld such agree- court that he heard that Wynn had Posttrial evidentiary challenges to ments, and best practices for ensuring threatened to hit Francis “in the back the two presumed damages awards met the agreements are enforceable. of the head with a shovel and bury him with little or no success. The trial court in a hole in the desert,” due to Francis’s rejected Francis’s challenge to the size CDA No Bar to Failure to Warn $2 million gambling debt. Wynn pre- of the presumed damages award and Actions Against Website sented zero evidence to the jury of any affirmed the entire $17 million award.4 Operators ...... 8 actual reputational or economic harm Justice Thomas’s presumed damages The Ninth Circuit Court of Appeals to himself. Yet the judge instructed award was “reduced” as excessive by recently carved out a dangerous exception jurors with the standard California the trial court from $5 million to $3 to CDA immunity that may be exploited instruction for presumed damages million.5 No First Amendment or due by plaintiffs who seek to shift liability to that Wynn was “entitled to receive process challenges were made to the website operators for injuries caused by compensation for this assumed harm presumed damages awards in either other website users. in whatever sum you believe is reason- case.6 In sum, these presumed damages able.”1 The jury decided $17 million awards resemble casino jackpots more Access to Cloud-Based Public was reasonable for presumed reputa- than carefully weighed court awards Records ...... 12 tional damages, and awarded another supported by hard evidence and sub- This article examines the issues that digi- $3 million for mental anguish.2 ject to meaningful judicial review. tized government records pose for citizens In 2007, Illinois Supreme Court Presumed damages appear to be and journalists who wish to mine the bur- Chief Justice Robert Thomas won a $5 gaining popularity with public figures geoning data repository to discover “what and public officials. In California, Wynn their government is up to.” filed another lawsuit for slander per se Susan E. Seager is a vice president at Fox in September 2014 against hedge fund Jurisdictional Issues in Group Legal, a unit of Fox Entertainment manager James Chanos.7 In Illinois, a Anonymous Speech Cases ...... 23 Group Inc. located in Los Angeles, California. Chicago trial court judge expressly cited Courts have traditionally paid less atten- This article is based on her own views, and Justice Thomas’s big court win when the tion to the jurisdictional issues relating to not a statement on behalf of her employer. trial judge demanded $7 million in his the unmasking of anonymous speakers. The author thanks UCLA Law School 2011 defamation per se lawsuit, saying But two recent cases highlight the impor- student Celaena Powder and Steve P. he was demanding the jury award won tance of jurisdictional considerations in Mandell of Mandell Mankes LLC for by Justice Thomas (who was awarded the protection of anonymous speech. their valuable assistance. (Continued on page 30)

any things executive editor of New and reporters meet with their counsel, it unite us as Times, built a campus should not be “like you’re going to the media lawyers. “underground” news- principal’s office,” Downie said. Rather, Perhaps what paper into the country’s media attorneys should “enjoy dealing Mbinds us together the most largest chain of metro- with journalists,” and read what their is our commitment to cli- politan newsweeklies media clients and journalists at other ent service. We serve clients with its acquisition of news organizations are publishing. whose role in our democracy, the Village Voice. Lacey “The most interesting job at the and around the world, could described the Internet as paper should be the lawyer’s,” Lacey not be more important. “so bang-on stupid on commented. Assuming the lawyer What do media clients David J. Bodney so many levels,” and pre- understood the “formulaic” world expect of their lawyers? dicted that it will “drive of journalism’s “inverted pyramid,” What don’t they expect? And how how print and TV operate.” Conse- Lacey expected his lawyers to grasp have their expectations changed over quently, lawyers must play a role in the “laziness of the formula” and help the years? making sure that the Internet’s “dumb- ensure that it’s not replaced by the Whether we have practiced commu- ing-down” tendencies don’t lead to a “laziness of the echo chamber.” To nications law for decades or are only lowering of standards for journalists serve media clients well, lawyers need now beginning the journey, learning who take their work seriously. to understand what’s happening in the answers to these three questions Len Downie, Jr., who began his journalism and encourage reporters can help us serve our clients better. career in 1964 as a reporter at The to “take the extra step and find out So I posed these questions in turn to Washington Post, rose to become its what’s really happening” behind the three individuals who have dedicated executive editor and now serves as headlines and public records. their professional lives to journalism, vice president at large, noted that “Google, Facebook, YouTube— and to building strong news organi- “the basics [of journalism] haven’t they’re making the decisions that had zations with their fair share of legal changed very much, but the tech- been made by journalists,” observed challenges. nology has changed.” As Downie Clark-Johnson. She noted ISIS’s A few lessons emerged: observed, “there are new legal issues beheadings in the Middle East, and associated with the new technology.” the decision by media outlets to put Keep Pace with Changing Technology With “tweeting and blog posts not video footage of atrocities on the web. “You’ve got to keep up with the chang- necessarily going through editors,” “Can the lawyers address these issues?” ing technology and its implications,” he added, reporters need to know she asked. To handle the work, attor- said Sue Clark-Johnson, who served as the legal rules, and lawyers need to neys must understand the changing vice president of Gannett Company’s understand the changing technology news business, and the daily decisions publishing division and was respon- to advise them. that editors and publishers face across sible for more than 100 newspapers, platforms. along with websites and magazines. Know Our Newsrooms and Our Business “The changing technology is changing Downie emphasized the importance of Tell Us What You Really Think the very definition of ‘journalist,’” she having lawyers who are “immersed in “Tell me what you think — what do noted, and the “rapidity of technologi- journalism, not just court decisions.” you THINK?” Clark-Johnson under- cal change” is not only transforming He described the media lawyer’s role scored. In today’s economic climate, the content of news but also the legal as one of “collaboration” and “part- it is not enough for the lawyer simply climate that protects its distribution. nership” with the client. When editors to acquaint the client with the risks. “There’s so much data coming at me, it’s like a Category 5 snow- storm,” said Michael Lacey, who, as Communications Lawyer (ISSN: 0737-N7622) is published four times a year by the Forum on Communications Law of the American Bar Association, 321 North Clark St., Chicago, IL 60654-7598. POSTMASTER: Please send address corrections to ABA Service Center, 321 North Clark St., Chicago, IL 60654-7598. The opinions expressed in the articles presented in Communi- David J. Bodney (bodneyd@ballardspahr. cations Lawyer are those of the authors and shall not be construed to represent the policies of the com), chair of the Forum on Communications American Bar Association or the Forum on Communications Law. Copyright © 2015 American Law, is a partner at Ballard Spahr LLP in Bar Association. Produced by ABA Publishing. Phoenix, Arizona.

NEW Media Lawyers Advocates Showcase

Fairmont Scottsdale Princess, Scottsdale, AZ February 6, 2015 • 4:45 pm — 6:00 pm Presented by the Women in Communications Law (WICL)

The Showcase will be a presentation-centered training opportunity for lawyers who have been in practice for at least five, no more than ten years. Participants will plan and deliver a seven-minute presentation on a media-related topic, much as they might deliver in pitching business to a new or existing client. For additional information on the Showcase, please contact WICL co-chairs Robin Luce-Herrmann at [email protected] or Rosemary Harold at [email protected].

To attend the Showcase, register for the Forum Annual Conference at www.americanbar.org/groups/communications_law.html.

Sponsors: Ballard Spahr, Davis Wright Tremaine, Hiscox, Jackson Walker, Kelley Drye, Levine Sul- livan Koch & Schulz, Sheppard Mullin, Richter & Hampton, Vinson & Elkins

ALLISON S. BREHM AND CATHY D. LEE

n today’s online-centered world, affirmatively click a box on the website Cautionary Tales website owners and website acknowledging agreement to the terms Browsewrap Agreements users are necessarily reaching of service,1 which are often available Generally, courts have declined to agreements, all the time. These in a scrolling text box, before the user enforce browsewrap agreements Iagreements govern a variety of terms, is allowed to proceed.2 Browsewrap because the fundamental element of from license agreements to privacy agreements have hyperlinked terms of assent is lacking.17 As an initial mat- policies to choice of law. Courts typi- use that are typically found on a sep- ter, because no affirmative action is cally have grouped these contracts arate webpage, which the user does required by the user to agree to the into “clickwrap” or “browsewrap” not have to visit to continue using the terms other than use of the website, agreements, depending on the man- website or its services.3 the validity of a browsewrap turns on ner in which the consumer has notice Whatever the name, these agree- whether a user has actual or construc- of or otherwise assents to the terms ments govern a variety of terms, tive knowledge of a site’s terms.18 of the agreement. Given that the including software licensing,4 terms For example, in Be In, Inc. v. Google terms usually involve an exchange of of use for utilizing a website,5 privacy Inc., a social media developer alleged rights and obligations between a web- policies,6 terms of sale,7 subscriber that defendants Google Inc., YouTube, site owner and user, disputes over the agreements,8 and credit card appli- and Google UK breached the CamUp enforceability of such agreements cations.9 The agreements have real website’s terms of service by visiting the abound. ramifications because they can dic- CamUp website to copy and exploit the Many times those disputes receive tate a variety of terms critical both website for the defendants’ social net- significant media attention, bringing a to users and website owners. Among work platform.19 The home page of the company’s particular policies and prac- other things, the agreements may CamUp website included a link to the tices into sharp public focus. Indeed, govern where a lawsuit can be adju- “Terms of Service,” which stated that “by one such online agreement that gar- dicated,10 whether arbitration will using and/or visiting this Website . . . nered media attention recently was be mandatory,11 whether a prohibi- you signify your agreement to these Facebook’s data use policy, on which tion on copying a website’s content Terms of Use, [and] CamUp’s Privacy the company relied when defending will be enforceable,12 and whether a Policy.”20 the social experiment it conducted on provision limiting use of the website A district court in the Northern hundreds of thousands of users’ news- for noncommercial purposes will be District of California found that the feeds. The public outcry that resulted enforceable.13 plaintiff failed to allege a contract was illustrates the importance of clarity and At bottom, many of these terms formed because beyond the existence fairness when forming contracts online, are no different from those seen in the of a hyperlink, there were no other particularly when significant rights are brick and mortar world, and thus the allegations showing that the defen- at stake—for both the website owners basic legal landscape for enforcement dants were on notice that the mere use and the users. is not much different. Indeed, Inter- of the website would be interpreted as This article will address the key net commerce “has not fundamentally an agreement to the terms of service. features of the most common types changed the principles of contract.”14 Specifically, the plaintiff did not allege of online agreements—clickwrap and To determine the enforceability of a the size or typeface of the link, the browsewrap agreements—the circum- clickwrap or browsewrap agreement, central or obvious location of the link stances under which courts have upheld courts apply traditional principles of on the webpage, or even the text of such agreements, and best practices for contract law and focus on whether the the link.21 Accordingly, the plaintiff’s ensuring the agreements are enforceable. plaintiffs had reasonable notice of and browsewrap agreement was not bind- manifested assent to the agreement.15 ing on the defendants. How Clickwraps and Browsewraps There is no manifestation of assent The reluctance to hold browsewrap Are Used unless a party intends to engage in the agreements enforceable is further sup- Clickwrap and browsewrap agreements conduct and knows or has reason to ported by the Ninth Circuit’s recent differ in presentation and functionality. know that the other party may infer decision in Nguyen v. Barnes & Noble Clickwrap agreements require a user to from his or her conduct that he or she Inc.22 In Nguyen, the plaintiff purchased assents.16 Touchpads on Barnes & Noble’s web- Against this backdrop, courts have site, but then was notified that his order Alison S. Brehm is a partner, and Cathy considered the presentation, form, and had been canceled due to unexpected D. Lee is an associate, with Kelley Drye & functionality of browsewrap and click- high demand. The plaintiff filed a class Warren LLP in Los Angeles, California. wrap agreements in determining whether action on behalf of consumers whose there is a clear manifestation of assent. Touchpad orders had been canceled,

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. alleging deceptive business practices defendant had actual or constructive enforced even when the consumer did and false advertising. Barnes & Noble knowledge of the terms and condi- not read the agreement. For example, moved to compel arbitration, based on tions, instead of merely alleging the in Davis v. HSBC Bank Nevada, N.A., the arbitration agreement in the web- existence of a link at the bottom of the plaintiff alleged that HSBC and site’s terms of use. The district court the plaintiff’s website. Specifically, the Best Buy defrauded customers by offer- denied the motion. On appeal, the plaintiff contended that the fact that ing credit cards without disclosing an Ninth Circuit affirmed. the defendant went to the trouble of annual fee.36 After reading an adver- The critical question was whether creating a fictitious profile and e-mail tisement stating that applicants would Nguyen assented to the terms of account to download the software receive a $25 reward certificate, the use—specifically, the arbitration suggested that the defendant knew plaintiff decided to apply for the credit clause. Nguyen had neither clicked about the terms and conditions and card. While applying, the plaintiff was the hyperlinked terms of use nor was aware that they prohibit users directed to the terms and conditions, read them.23 Barnes & Noble argued from downloading materials for com- which were available in a scrolling text that Nguyen was on constructive mercial use. The plaintiff also claimed box on Best Buy’s website. The plaintiff notice of the terms. Barnes & Noble that because the defendant had a sim- did not read the terms, but he checked contended the placement of an under- ilar browsewrap agreement on its own the box stating that he agreed to the lined, color-contrasting hyperlink website that restricts the use of down- terms and conditions. After the plain- that read “Terms of Use” on the bot- loaded software, the defendant should tiff’s application was approved, the tom left of every page on the Barnes have known that the plaintiff’s web- plaintiff received his credit card and & Noble website, and the hyper- site had similar terms.29 an “Additional Disclosure Statement.” link’s close proximity to the buttons AvePoint demonstrates that while Upon reading the latter, the plaintiff a user must click on to complete browsewrap agreements are generally learned that there was a $59 annual fee an online purchase, were enough to not enforceable, courts may enforce for using the card. At that point, the place a reasonably prudent user on such agreements when there are fac- plaintiff revisited Best Buy’s website constructive notice.24 The court dis- tual allegations—independent of the and discovered the annual fee.37 agreed, concluding that the proximity presentation of the agreement on the The plaintiff filed a class action and conspicuousness of the hyper- website—that support a user’s actual complaint alleging false advertising, link alone is not enough to give rise or constructive knowledge of a site’s fraudulent concealment, and unfair to constructive notice. The court terms and conditions. competition. The plaintiff contended instructed that a textual notice of the that the relevant portions of the terms terms of use, such as a final check- Clickwrap Agreements and conditions were not visible without out screen reminding the user to Unlike browsewrap agreements, courts scrolling down.38 The Ninth Circuit review the terms, would likely give have routinely upheld clickwrap agree- affirmed the dismissal of the plaintiff’s rise to sufficient notice.25 In so hold- ments.30 The enforceability of these complaint with prejudice.39 The court ing, the court cautioned that website agreements turns not on the label of found that the plaintiff’s failure to owners must ensure their sites put “clickwrap,” but rather whether the read the terms and conditions before users on notice of any binding con- party had constructive notice of the checking the box accepting the terms tractual terms in light of the “range terms of the agreement and thus agreed irrelevant to determining enforceabil- of technological savvy of online to be bound by them.31 ity. The court reasoned that the annual purchasers.”26 A Tenth Circuit decision from 2012, fee was “within [the plaintiff’s] obser- Despite the fact that browsewraps Hancock v. American Telephone & Tele- vation” because he was able to discover are typically held unenforceable, one graph Co., illustrates this principle.32 it when he revisited Best Buy’s website court recently deemed a browsewrap In Hancock, AT&T consumers argued and scrolled through the terms and enforceable. In AvePoint, Inc. v. Power that the clickwrap agreement did not conditions.40 Tools, Inc., the “Terms and Conditions” give them notice of and meaningful provided that “[u]sers may access, print opportunity to assent to the forum Hybrid Clickwrap-Browsewrap and download materials and informa- selection and arbitration clauses in the Agreements tion on this Site solely for personal and terms of service. AT&T technicians Online agreements do not always fit noncommercial use.”27 The plaintiff presented customers with a printed neatly within the clickwrap or browse- alleged that the defendant breached the copy of the terms and gave custom- wrap categories. Sometimes, the agree- terms and conditions in its browsewrap ers an opportunity to review the terms, ments display features of both. In Fteja agreement by downloading a copy of to which customers agreed by click- v. Facebook, Inc., the District Court for the plaintiff’s software for competitive ing on the “I Acknowledge” button on the Southern District of New York con- and commercial purposes. The defen- the technician’s laptop for the TV/voice sidered the enforceability of the forum dant moved to dismiss on the grounds terms.33 Customers also clicked on the selection clause in the hybrid clickwrap- that the plaintiff had not alleged an “I Agree” button to manifest assent browsewrap agreement between Face- enforceable contract.28 to the Internet terms, which custom- book and its user, requiring that all A district court in the Western Dis- ers had an opportunity to review in a disputes be litigated in California.41 trict of Virginia disagreed. The court scrolling text box.34 The court found The Facebook page stated, “By reasoned that the plaintiff alleged the clickwrap agreements enforceable.35 clicking Sign Up, you are indicat- additional facts to support that the Clickwrap agreements have been ing that you have read and agree to

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. the Terms of Service.”42 The court the agreement.48 After the Food and in the license agreement. The plaintiffs commented that Facebook’s terms Drug Administration informed the disagreed, contending that the terms of use are like a browsewrap in that defendant that it was violating the law of service were obscured during the the terms are only visible via a hyper- by selling genetics services without installation process in such a way that link, but also like a clickwrap in that approval, the plaintiffs brought class the average consumer would not notice the user must click “Sign Up” to actions alleging false advertising, the hyperlinked terms.56 assent to the hyperlinked terms.43 The unfair competition, and consumer The court agreed with the plaintiffs, court analogized Facebook’s terms protection claims.49 The plaintiffs’ explaining that the defendant had not to a sign next to a bin of apples that receipt of genetic information took provided sufficient detail about how the says, “By picking up this apple, you place in two steps: (1) the plaintiffs hyperlinked agreement was presented consent to the terms of sale by this bought DNA kits online from the to the user. It was not clear that the defendant, and (2) the plaintiffs cre- user could reasonably find the hyper- ated accounts and registered their link to the terms or manifest assent to The more an online DNA kits online and sent DNA sam- it during the installation process. The ples to the defendant.50 court noted that it must accept the com- agreement resembles At the purchasing stage, the terms plaint’s factual allegations as true, and of service were accessible via a hyper- thus declined to infer that clicking a box a traditional link at the bottom of the defendant’s acknowledging that a user had read an homepage under “LEGAL,” but cus- agreement indicates that the agreement clickwrap agreement, tomers were not required to view the was reasonably available to the user, terms or to click to accept the terms.51 particularly when the plaintiffs alleged the more willing At the subsequent account creation that the hyperlink to the agreement was and registration stage, the webpage obscured. The court concluded that courts are to find required customers to check a box next the forum selection clause was not rea- to the statement, “Yes, I have read and sonably communicated and denied the constructive assent. agree to the [blue hyperlinked] Terms defendant’s motion.57 of Service and Privacy Statement.”52 fruit stand. For those terms, turn The defendant filed a motion to Best Practices for Ensuring over the sign.”44 Applying that anal- compel arbitration, arguing that the Enforceability ogy to the instant case, the court saw arbitration provision in the terms of A review of the decisions addressing no reason why the agreement should service was enforceable. The court con- online agreements—whether click- not be upheld simply because Face- cluded that the plaintiffs had not agreed wraps, browsewraps, or a combination book’s terms of use appear on another to the terms of service at the purchas- of both—reveals that there are a vari- screen. The court concluded that the ing stage, but that the terms of service ety of ways to increase the likelihood Facebook user consented to Face- took effect upon the account creation that the agreements will be enforced, book’s terms of use and also to the and registration stage. After consider- and these can be easily followed by forum selection clause therein, and ing various defenses to arbitrability, website owners: thus granted Facebook’s motion to the court granted the defendant’s transfer to the Northern District of motion to compel arbitration.53 • There is a check-box that users California.45 One recent case underscores that must click adjacent to an affir- Fteja shows that the more an the visibility of the hyperlink to an mation similar to, “By clicking online agreement resembles a tradi- agreement is critical in determining on the box, you are indicating tional clickwrap agreement, the more enforceability. In Harris v. comScore, that you have read and agree to willing courts are to find the notice Inc., before consumers could down- the Terms of Use”; necessary to give rise to construc- load and install comScore’s software, the • The webpage is designed so that tive assent.46 Specifically, a major purchasers had to click a box acknowl- if the user does not check the factor for the Fteja court in holding edging that they agreed to the terms box manifesting assent to the the agreement enforceable was that of the license agreement, which terms terms, the user cannot proceed Facebook informed the user of the could be accessed through a hyper- in the transaction; consequences of clicking “Sign Up,” link.54 The terms contained a forum • In addition to a check-box that and showed the user where to click selection clause. A dispute arose when users must click, the terms of to understand those consequences.47 the plaintiffs claimed that comScore use are available either in a Another recent case signals the had improperly obtained and used per- nearby scrolling text box or a enforceability of these hybrid agree- sonal information from the plaintiffs’ nearby hyperlink; ments. In Tompkins v. 23andMe, Inc., computers after they downloaded and • Any hyperlink of the terms is a district court in the Northern Dis- installed the software.55 obvious, e.g., “Terms of Use” trict of California determined that The defendant moved to dismiss is underlined and has decent just because the hyperlinked terms the plaintiffs’ complaint on the ground size lettering and visible color- of service were not presented in the of improper venue, claiming the dis- ing (not small lettering and not same screen does not mean that cus- pute should be adjudicated in Virginia obfuscatory coloring); tomers lacked adequate notice of because of the forum selection clause • Any hyperlink of the terms has

ROBERT L. ROGERS III

or years, courts across the they assaulted her. She contends that any information provided by another United States have consistently Internet Brands knew about these information content provider.”10 The held that the Communications activities for years, as they had sued CDA also immunizes website operators Decency Act (CDA) immu- the prior owner of the website in 2010 for their editorial activities, including Fnizes website operators from liability for “failing to disclose the potential actions to “restrict access to or availabil- for negligently failing to protect website for civil suits arising from the activi- ity of material that [they] consider[ ] to users from other website users.1 How- ties of Flanders and Callum.”5 In be obscene, lewd, lascivious, filthy, exces- ever, in a recent opinion reversing the fact, Flanders and Callum were con- sively violent, harassing, or otherwise dismissal of a negligent failure to warn victed and sentenced to life in prison objectionable.”11 action against modelmayhem.com, the in 2012 for drugging and raping mod- Courts have construed these pro- Ninth Circuit Court of Appeals carved els, filming the rapes, and selling the visions to bar lawsuits seeking to out a dangerous exception to this CDA films as pornography.6 hold website operators liable for their immunity that may be exploited by In her lawsuit against Internet “exercise of a publisher’s traditional plaintiffs who seek to shift liability to Brands, the plaintiff asserted a single editorial functions—such as decid- website operators for injuries caused count for negligent failure to warn ing whether to publish, withdraw, by other website users.2 under California common law. The U.S. postpone, or alter content.”12 Courts District Court for the Central District have also long held that website oper- Claims Asserted against Internet of California dismissed Doe’s action ators are not liable for defamatory Brands by “Jane Doe No. 14” with prejudice solely on the grounds posts by website users merely because Doe No. 14 v. Internet Brands, Inc. that Internet Brands was immune from they invite visitors to post potentially involves disturbing allegations about the her claim under the CDA.7 However, defamatory statements, even if they rape of a member of modelmayhem. the Ninth Circuit Court of Appeals refuse to remove offensive or defama- com. Model Mayhem is “a networking reversed, holding that Doe’s failure tory content from their sites.13 site for professional and aspiring mod- to warn action was not barred by the els to market their services” owned and CDA because she “does not seek to Ninth Circuit’s Holding in Doe No. 14 operated by the defendant, Internet hold Internet Brands liable as a ‘pub- In Doe No. 14, the Ninth Circuit Brands.3 It has over 600,000 mem- lisher or speaker’ of content someone refused to apply CDA protection bers. The plaintiff, “Jane Doe No. posted on the Model Mayhem to Internet Brands because of two 14,” an aspiring model who listed con- website.”8 unusual facts that the court believed tact information on the Model Mayhem The Ninth Circuit’s decision in Doe distinguished Doe’s negligence action site, claims that nondefendants Lavont No. 14 turned on several unique facts from others rejected under CDA Flanders and Emerson Callum found that appear infrequently in cases in analysis. her profile on the website, contacted her which website operators seek defensive First, Flanders and Callum did in 2011, and falsely claimed to be tal- protection under the CDA.9 However, not post content on the Model May- ent scouts. She further claims that they the court’s broad holding could be hem website. Instead, they trolled lured her to an “audition,” drugged exploited by future plaintiffs seeking to models’ profiles posted on the web- her, raped her, and filmed the rape avoid limitations imposed by the CDA site looking for potential rape victims with the intent to sell the recording in a wider variety of actions against and contacted the models directly, as pornography.4 website operators. without posting messages on the Doe further asserts that Flanders website. The Ninth Circuit therefore and Callum had drugged, raped, and CDA Section 230 and Liability of observed that Doe “does not seek to filmed the rapes of other models before Website Operators hold Internet Brands liable as a ‘pub- The CDA immunizes website operators lisher or speaker’ of content someone for content posted on their websites by posted on the Model Mayhem web- Robert L. Rogers III is a senior counsel others by prohibiting providers of “inter- site, or for Internet Brands’ failure to with Holland & Knight LLP and works in active computer services” from being remove content posted on the web- the firm’s Orlando, Florida office. treated as “the publisher or speaker of site.”14 Instead, Doe attempts to hold

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Internet Brands liable only “for fail- negligence claim would not discour- assaulted by another user.24 In Beck- ing to warn her about how third age website operators from filtering man v. Match.com, the U.S. District parties targeted and lured victims third-party content because her “fail- Court for the District of Nevada held through Model Mayhem,” either by ure to warn claim has nothing to do that the CDA immunized Match.com posting a notice about Flanders and with Internet Brands’ efforts, or lack from liability for negligently failing Callum on the Model Mayhem web- thereof, to edit or remove user gen- to warn and protect a user “from indi- site, or by sending its 600,000 users an erated content.”19 Notably, the court viduals trolling the website to further e-mail warning them about Flanders conceded that its decision could have criminal activity,” including an alleged and Callum.15 a chilling effect on the Internet by “serial murderer” who brutally attacked Second, Internet Brands knew increasing the expense of operating an the plaintiff after the two met through before Doe was raped about “the Internet business, but it characterized the website.25 potential for civil suits arising from that chilling effect as “marginal.”20 One might argue that each of these the activities of Flanders and Cal- The court also characterized the CDA cases can be distinguished from Doe lum” in relation to other models who provisions immunizing website opera- No. 14 because Flanders and Callum had posted profiles on the Model tors from tort claims as “narrow,” and never posted content on the Model Mayhem website.16 In other words, held that “[b]arring Jane Doe’s fail- Mayhem website, whereas the sender of Internet Brands knew before Doe was ure to warn claim would stretch the the punter signal in Green, the alleged drugged and raped that other models CDA beyond its narrow language and rapist in MySpace, and the “serial mur- had claimed they were drugged and purpose.”21 derer” in Beckman all posted content on raped by Flanders and Callum. the websites at issue. But this distinction Based on these facts, the Ninth Erroneous Holdings in Doe No. 14 and is irrelevant. The CDA’s protections do Circuit held that the CDA does not Their Impact on Website Operators not apply solely to defamation actions bar Doe’s negligent failure to warn The Ninth Circuit’s decision in Doe seeking relief for statements posted action because: No. 14 contradicts a long line of on websites by users.26 The CDA also cases holding not only that the CDA immunizes website operators for other immunity provisions are to be con- functions related to their management Posting or emailing such a warn- strued broadly, but also that the CDA of their websites, including actions ing could be deemed an act of bars negligence actions seeking relief taken to enable users to restrict access publishing information, but for failure to warn or protect.22 The to their own content.27 section 230(c)(1) bars only lia- court also places mistaken empha- bility that treats a website as sis on Flanders and Callum’s decision a publisher or speaker of con- to communicate directly with Doe The CDA’s protections tent provided by someone instead of through the Model May- else: in the words of the stat- hem website. Its holding should also do not apply solely to ute, “information provided by be questioned for suggesting that another information content pro- website operators will be only “mar- defamation actions vider.” A post or email warning ginally” affected by its ruling. that Internet Brands generated seeking relief for would involve only content that Immunity for Editorial Decision to Internet Brands itself produced. Publish Warning on Website statements posted on An alleged tort based on a duty Courts in other circuits have long that would require such a self- held that the CDA immunizes web- websites by users. produced warning therefore falls site operators for actions claiming that outside of section 230(c)(1). In they negligently failed to protect web- Other circuit courts have construed sum, Jane Doe’s negligent fail- site users from harm caused by other the CDA broadly to immunize website ure to warn claim does not seek users. For example, in Green v. America operators from liability for their “exer- to hold Internet Brands liable Online (AOL), the Third Circuit held cise of a publisher’s traditional editorial as the “publisher or speaker of that the CDA immunized AOL from functions—such as deciding whether any information provided by liability for negligently failing to police to publish, withdraw, postpone, or alter another information content its services and protect one of its users content.”28 Few decisions could be more provider.”17 from another user who transmitted a quintessentially related to Internet “punter” signal that disabled the plain- Brands’ traditional editorial functions The Ninth Circuit further opined tiff’s computer, even after the plaintiff than its decision about whether to post that the “core policies” underlying the complained to AOL about the activ- a message on modelmayhem.com about CDA—to prevent litigation against ity.23 In Doe v. MySpace, Inc., the Fifth possible harm posed to users by Flan- website operators from chilling Internet Circuit held that the CDA immunized ders and Callum. speech and from discouraging website MySpace from liability for negligently The Ninth Circuit therefore was operators from screening offensive failing to “institute and enforce not compelled by the CDA to reject content—support its conclusion.18 appropriate security measures” that the immunity recognized by the dis- The court determined that imposing would have prevented an underage trict court simply because Flanders liability on Internet Brands on Doe’s user from meeting and being sexually and Callum never posted content on

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. the Model Mayhem website. It is cer- that Internet Brands knew that other easily deter such websites from oper- tainly true that the CDA does not members of the website had claimed ating. The chilling effect of the Ninth immunize website operators from lia- Flanders and Callum drugged and Circuit’s decision in Doe No. 14 is bility for defamatory statements that raped them.30 Although Flanders and therefore anything but marginal.32 operators themselves post on their Callum had been arrested on charges website. But that does not mean that related to such crimes in 2007, those Conclusion CDA immunity applies only when the charges were dropped, and Flanders The Ninth Circuit seems to suggest and Callum were not actually con- that any failure to warn action, victed of drugging and raping any including those not involving rapists or The implications women until December 2011.31 violent crimes, is not subject to CDA Therefore, before Internet Brands immunity. Plaintiffs will therefore and potential could have e-mailed or posted any state- probably be tempted to try to extend ment about Flanders and Callum, it the reach of the Ninth Circuit’s burdens imposed on would have had to investigate the claims holding beyond the unique facts of made by other users. Such an investiga- Doe No. 14. The chilling effect on website operators tion would have required an exertion the operation of websites could be of time, energy, and financial resources great if other courts continue to chip by the decision are by Internet Brands that would have away at CDA immunity. been more than “marginal.” Further- far-reaching and more, even if Internet Brands had Endnotes concluded after such an investigation 1. See, e.g., Doe v. MySpace, Inc., 528 considerable. that Flanders and Callum had actu- F.3d 413, 419–22 (5th Cir. 2008) (affirm- ally committed the crimes, Internet ing the dismissal with prejudice, based persons who caused the injuries for Brands would have had to weigh the on immunity under the CDA, of neg- which a plaintiff seeks relief posted risk of exposing itself to liability for ligence and gross negligence actions content on the website. Because Doe’s potential defamation claims by Flan- against MySpace for failing to enforce “failure to warn” claim seeks relief ders and Callum if Internet Brands procedures that would have prevented the for an editorial decision by Internet chose to warn its users about them plaintiff from being sexually assaulted Brands to not publish a message on (because the CDA clearly would not by another user); Carafano v. Metro- its website about Flanders and Cal- have shielded Internet Brands from splash.com, Inc., 339 F.3d 1119, 1122–25 lum, Internet Brands should have liability for any statements it made (9th Cir. 2003) (affirming the dismissal, been held immune under the CDA. about Flanders and Callum to its based on CDA immunity, of a negligence users). action against Metrosplash.com for fail- Considerable Chilling Effect of Doe When one looks beyond the unique ing to prevent users from misrepresenting No. 14 facts of this specific lawsuit, the large the plaintiff’s identity and posting pri- One must also question the Ninth Cir- burden imposed by the court’s deci- vate information and invitations for sex cuit’s dismissal of the potential chilling sion becomes more clear. A website on its website under her name); Green v. effect of its decision and its impact like Model Mayhem with 600,000 Am. Online (AOL), 318 F.3d 465, 470–72 on the operation of websites as “mar- members could easily receive hun- (3d Cir. 2003) (affirming the dismissal, ginal.”29 The court seemed reassured dreds or thousands of complaints based on immunity under the CDA, of a in reaching this conclusion by the fact about persons with whom those mem- negligence action against AOL for failing that Internet Brands could have pro- bers connected through the website. to police its services and protect a user tected Doe, and thereby avoided the Must Internet Brands investigate all from another who had sent the plaintiff a lawsuit, merely by sending a single of those complaints, in order to deter- “punter” signal); Beckman v. Match.com, e-mail or posting a single message mine which ones merit a warning to No. 2:13-CV-97, 2013 WL 2355512, at on its website about two specific per- its users and which ones do not? Is *3–7 (D. Nev. May 29, 2013) (dismissing sons known to have been accused of Internet Brands required to risk liabil- with prejudice, based on immunity under violent crimes. But the implications ity for defaming the subjects of those the CDA, actions for negligent failure and potential burdens imposed on complaints, simply to warn users of to warn and negligent misrepresentation website operators by the decision are its website about potential risks posed against Match.com for failing to protect far-reaching and considerable. Even by such persons, based simply on the a user from an alleged “serial murderer” Doe’s own reasoning leads inescap- conclusion of investigations that may who trolled the website looking for vic- ably to the conclusion that the burden be mistaken? The framers of the CDA tims); Doe v. SexSearch.com, 502 F. posed by the court’s decision is more could not have wanted website oper- Supp. 2d 719, 724–28 (N.D. Ohio 2007) than “marginal.” ators to be compelled to make such (dismissing, based on immunity under Take first only the facts alleged expensive investigations or to expose the CDA, actions against SexSearch.com by Doe against Internet Brands. She themselves to such liability. The costs for negligent misrepresentation and fail- alleges, not that Internet Brands knew of such investigations and liability— ure to warn for failing to prevent a user that Flanders and Callum had actually particularly for websites like Match. from having sex with a minor who had drugged and raped other users of the com designed to connect strangers misrepresented her age, resulting in felony Model Mayhem website, but instead for romantic interactions—could charges against the plaintiff).

STEVE ZANSBERG

ew York Governor Andrew practically zero. Yet, despite the expo- to a particular category of record Cuomo authorizes all nential growth in the amount of data (here, e-mails discussing “public busi- state employees to destroy and the ease of storing and accessing ness” that are housed exclusively on tens of thousands of it, ironically, these communications and a nongovernmental server or device) Ne-mail records in which public busi- data storage technologies have simulta- depends, in large part, on how the rel- ness is discussed.1 Florida Governor neously raised new barriers to citizens’ evant statute defines “public record.”11 Rick Scott and his staff use “pri- ability to inspect those records under Most states have a version of a defi- vate” Gmail accounts to keep their freedom of information (FOI) laws. nition that defines public records as official communications from being This article examines three related (1) any “writing,” usually defined quite publicly scrutinized on the governor’s issues that digitized government broadly to include any written commu- highly touted “Project Sunburst” records pose for citizens and journal- nication “regardless of physical form transparency website.2 Pennsylva- ists who wish to mine the burgeoning or characteristics”; (2) that is “made, nia Governor Tom Corbett deletes his data repository to keep tabs on maintained, or kept” by a government e-mails every two weeks, specifically “what their government is up to”:9 employee or over which a government so that they will not be subject to that (1) are e-mails and texts discussing agency has either physical custody or state’s Right to Know Law (RTKL);3 public business, that are exchanged a right of access; and (3) whose con- Corbett’s key higher education adviser or housed on nongovernmental serv- tent bears some logical connection deleted his e-mails daily and later ers or devices, subject to disclosure to the conduct of public business.12 resigned after he responded to RTKL under open records laws?; (2) what Thus, electronic communications that requests by producing only five e-mails obligation do government employees address “purely private,” nongovern- for his entire first year in office.4 Colora- have to retain e-mails and other elec- mental matters, have been found not do’s state legislature adopts a “read and tronically stored information so that to be “public records,” even if they are delete” policy for all legislative staff they are available for inspection?; and exchanged over, and/or housed upon, e-mails.5 It seems every day brings forth (3) are citizens entitled to inspect and government-funded communications another crafty maneuver by govern- obtain copies of digital records in devices (because all three conditions ment officials to evade accountability their “native format,” including data- above must be satisfied).13 and transparency mandates6 through base files and “metadata”? This article addresses whether data destruction, manipulation, or the converse is true: is a record that obfuscation.7 Control: Whose Records Are They? is “made, maintained, or kept” by a More information concerning the Government entities across the nation government employee, acting in an operations of government is being gen- are allowing, and even encouraging, official capacity,14 and whose content erated on a daily basis today than at public employees to utilize handheld does concern his or her official con- any time previously—for example, in devices not paid for by the govern- duct, a “public record” even though the predigital age, when pen, paper, and ment to communicate about public it does not reside (and perhaps never typewriter were the methods of writ- business; these governmental bodies did reside) on a government-provided ten communications.8 And, in many are also retaining third-party vendors or – funded device or data reposi- instances, the cost of providing copies (e.g., Gmail, Yahoo!, etc.) to provide tory? (See table 1.) of that information has plummeted to and maintain e-mail or text messaging There are two subcategories within accounts that are completely separate public business records kept on pri- from, and inaccessible to, government vately funded systems: (1) records Steve Zansberg is a partner in the Denver, servers.10 Thus, increasingly, courts and kept or maintained on a server or Colorado office of Levine Sullivan Koch state attorneys general are being called in a records repository operated and & Schulz, LLP, the immediate past upon to answer whether electronic controlled by an “outside vendor,” chair of the Forum, and the president of records housed on such “private” com- beyond the physical possession or the Colorado Freedom of Information munications devices and servers are actual custody of the government (e.g., Coalition. The author thanks two LSKS subject to the states’ public records Gmail, Verizon, BlackBerry, or Sprint summer associates, Ariel Glickman statutes, or are simply beyond their Communications)but on behalf of a (George Washington University School of reach. government agency; and (2) records Law, J.D. 2016) and Rebecca Guiterman As with many issues discussed in kept or maintained exclusively in a (NYU School of Law, J.D. 2015), for this article, the application (or non- “personal” account or device belong- their research assistance on this article. application) of various records laws ing to a public official or employee,

Content of the Record

Purely “Private”/ Public Business Location of the Record No Official Business

On Publicly Funded (Generally) Not a Public Public Record Device or System Record15

On Privately Funded Not a Public Record (Generally) Public Record Device or System

On Third-Party Vendor’s On Government Employee’s System “Personal” Drive

but not accessible to the government statutes, those writings—though not maintained by a third-party vendor employer, other than through that offi- transmitted via, nor stored within, for the benefit of a government entity cial’s or employee’s consent. Both sets government-provided media—are are within the “control” of the gov- of cases will be discussed below. nonetheless “public records.” Not ernment, and are therefore required to Under traditional notions of surprisingly, several courts that have be produced by that government entity which public records “belong” to addressed this question in the context in response to a records request. the government, and therefore to the of digitized records have resorted, Flagg involved a records request public, the answer to the question by analogy, to “life before the digi- under civil discovery rules on the City posed above Table 1 is emphatically tal era,” and have reached the same of Detroit for text messages sent or and unequivocally, “yes.” To under- conclusion.16 received by former Mayor Kwame stand why, you need only consider The key question in these cases— Kilpatrick, all of which resided in how the answer would be deter- whether e-mails (and other electronic a message archive on the servers of mined in another context, before the records) stored on servers and/or Skytel, a private messaging service pro- advent of electronic communications. devices not owned by the government— vider. None of the messages at issue Suppose a governor, mayor, or city turns, in large measure, on whether resided on any city-owned server. U.S. police chief transmits official govern- under the applicable statutory text District Court Judge Gerald E. Rosen ment communications—e.g., orders those records are deemed to be within found that because, presumably, the or directives to subordinate public the possession, custody, or control of city had a contractual right to access employees or policy statements to the government entity from whom the the archived messages maintained by constituents—using his or her own records are sought. With respect to the SkyTel, the city had sufficient “con- personal stationery (not official gov- records residing only on individuals’ trol” over those messages to require ernment letterhead), envelope, and “personal” accounts or devices, there the city to produce them in response to stamps, and thereafter maintains is also an ancillary question whether a records request. Although the ruling copies of all such written correspon- a governmental search of a govern- arose under the federal rules govern- dence only in a personal filing cabinet ment official’s or employee’s “personal” ing civil discovery, the court expressly at his or her private residence or, account and/or device would constitute drew upon case law applying Michi- alternatively, off government prem- an unreasonable search or seizure in gan’s Freedom of Information Act ises at a privately owned document violation of the Fourth Amendment. (FOIA): warehouse. Without question, all such writings were (1) “made, main- “We’d Love to Give You Those Because at least some of the text tained, or kept” by a government Records, but We Don’t Have Them” messages maintained by SkyTel official, acting in his or her official There is a fair degree of consensus are “public records” within the capacity; (2) their content is directly in the case law that public records meaning of Michigan’s FOIA, related to official governmental func- stored on nongovernmental accounts it would be problematic, to say tions; and (3) those writings are on behalf of the government entity, the least, to conclude that the within the possession, custody, or to which the government retains a City lacks a legal right to obtain control of the government employee contractual right of access, are that these records as necessary to (and therefore, under the tradi- entity’s public records. Flagg v. City discharge its statutory duty of tional rules of agency, are available of Detroit17 provides one of the most disclosure. Such a conclusion to the government employer). Thus, extensive and well-reasoned explana- also would be contrary to the under the three-part test that gen- tions of why e-mails, text messages, pertinent Michigan case law. erally applies under public records and other electronic “public records” First, the Michigan courts have

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. held that the FOIA duty of dis- business maintained exclusively on an by a government employee relates to closure, like the Rule 34 duty of individual government official’s per- the conduct of governmental busi- production, extends to public sonal account and/or device is a public ness, it is subject to those states’ open records within the possession or record of the government employer. records acts; the actual physical loca- control of a public body.18 As demonstrated below, the majority tion of such a writing is immaterial. of courts that have addressed the issue In July 2014, the Superior Court After summarizing that case law, have determined that all records gen- for the District of Columbia, apply- the court concluded: erated or received by a public official ing D.C.’s FOIA,28 held that D.C. acting in his or her official capacity, councilmembers’ e-mails maintained [Case law applying Michigan’s in which official public business is dis- exclusively on so-called “private” FOIA] provides a compelling cussed, are the appropriate “property” accounts were public records subject basis for concluding that the of the government employer; thus, to the Act.29 Judge Stuart G. Nash Defendant City has control, such records, even if housed on non- held that e-mails of Dianne Barnes, within the meaning of Rule 34(a) governmental devices or accounts, maintained in her personal e-mail (1), over any “public records” should properly be deemed the public account while acting in her capacity that might be retained by third records of the government, not the indi- as commissioner of D.C.’s Advisory party SkyTel under its contract vidual. However, not all courts have Neighborhood Commission, were with the City. reached this conclusion. “prepared, owned, used, in the pos- Applying the federal FOIA, one session of, or retained by a public [W]hile the record does not federal court held that e-mails main- body” and were therefore “public disclose the terms of the City’s tained by a government employee records” of the Commission under contracts with SkyTel, . . . the exclusively in his nongovernmen- the Act. Court assumes that the City has tal (university) account were not In addition to the above judicial at least some sort of contractual “agency records” because they were opinions, the attorneys general in right of access to the text mes- not within the agency’s “control” as 10 states (Alaska, Florida, Illinois, sages preserved by SkyTel in the defined by the court.22 This ruling is Maryland, New Mexico, North course of its contractual rela- at odds with other courts’ recogni- Dakota, Oklahoma, Oregon, Texas, tionship with the City.19 tion that there is “no basis” in the and Wisconsin) have issued formal FOIA or its legislative history to view opinions stating that e-mail mes- Thus, in jurisdictions where the an agency employee as “distinct from sages created, sent, or received by definition of “public records” or his [or her] department [or agency] for government officials that discuss “agency records” includes an explicit FOIA purposes.”23 Under these prec- public business are public records or implicit “possession, custody, or edents, if a federal agency employee under those states’ FOI laws, regard- control” criterion, the fact that a gov- creates, receives, or maintains an elec- less of the physical location or ernment entity has a contractual tronic record in the course of fulfilling records repository where such right to access records maintained or carrying out his or her duties on e-mail messages reside.30 on its behalf by an outside vendor behalf of the agency,24 those records Recently, the Texas Court of (whether a paper records “cold stor- are subject to a FOIA request on the Appeals twice addressed whether age” warehouse, or a cloud-based agency, even if the record is main- e-mails of government employees provider like Gmail) should require tained exclusively in the employee’s maintained exclusively in personal the government entity to exercise its “personal” account or device.25 Sum- accounts are subject to that state’s right of access to make available such marizing this body of case law, two Public Information Act (PIA).31 records in response to a request for commentators recently concluded: In Adkisson v. Abbott, the court of inspection from the public. “Common sense, case law, and FOIA’s appeals affirmed both the Texas This approach has been followed plain language compel the conclusion attorney general’s and the Travis by courts applying the federal FOIA, that, irrespective of federal executive County District Court’s ruling that which provides public access only to branch agencies’ employees’ reasons a county commissioner’s e-mails in “agency records” but does not define for using personal e-mail accounts which he discussed public business what is an agency record.20 Under that or personal communications devices were public records under the PIA.32 statute, several courts have held that to conduct agency-related business when an executive branch agency has within the scope of their employment, If the information in the offi- the right to obtain a document from a their work-related communications cial-capacity e-mails contained nongovernmental outside vendor, the must be subject to FOIA’s disclosure in the Commissioner’s personal agency has “constructive control” over provisions.”26 e-mail accounts 1) is collected, such records, rendering them “agency Judges in nine states (Alaska, assembled, or maintained for the records” subject to the FOIA.21 Arizona, Arkansas, Illinois, New County; 2) is connected “with York, Ohio, Pennsylvania, Virginia, the transaction of official busi- “Those Records Belong to Me, Not to and Washington)27 and the District ness” for the County; and 3) the My Government Employer” of Columbia have held that if the con- County either owns or has a The far more contentious issue to date tent of an e-mail, text message, or right of access to the informa- is whether records discussing public other electronic record sent or received tion, then the information is

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. public information under the of the government’s filing systems? (or here, the individual city council- statutory definition.33 In the second of the two rulings, the ors) as defendants, and ask the court Texas Court of Appeals answered to order each of them, individually, to Commissioner Adkisson did not by saying, essentially, “none.” After retrieve the “public records” in their contest that the e-mails requested by a citizen, Stephanie Allala, asked personal possession, just as the El the San Antonio Express-News were to inspect the e-mails of the City of Paso city councilor had stated would connected with the transaction of El Paso’s councilmembers, and spe- be necessary to compel his compli- official business; instead, he argued cifically “any public business emails ance with the law. that they were not collected, assem- that may have been conducted on Notwithstanding this trend of bled, or maintained for Bexar County the personal email accounts of these recent cases favoring the public’s and that Bexar County had no right individuals,” the state’s attorney gen- right to know, in March 2014, Cali- to access his official-capacity e-mails eral opined that such records were, fornia’s Court of Appeals ruled to stored off of county computers.34 in fact, subject to the Texas PIA.38 the contrary, reversing a trial court’s The court rejected Adkisson’s first Accordingly, the City of El Paso pro- determination that the e-mails sent argument: duced to Allala all of the e-mails it had retrieved, upon request, from To conclude otherwise would the city councilors, and then stated it How much pressure lead to the absurd result that the had fully complied with her request. Commissioner could conduct Allala challenged the city’s repre- can a government all his official County busi- sentation, and sought discovery to ness correspondence through determine how assiduously the city agency bring on its his personal e-mail accounts councilors—one of whom had stated without it being subject to the in writing he would not produce employees to provide PIA, even if the same correspon- his “private emails” absent a court dence would be subject to the order—had complied with the City’s records that reside PIA if he used his County e-mail request that they search their personal account.35 e-mail accounts and produce respon- entirely outside of sive records. The court of appeals Relying on the county’s records stated that the city could not compel the government’s management administrative policy, the city councilors to comply with its the court further concluded that: request, and so the city had satisfied filing systems? its burden to produce its responsive any local government records records to Allala. and received by the mayor of San collected, assembled, or main- Both the Adkisson and Allala cases Jose, California, exclusively over a tained in the Commissioner’s were decided under the prior (2010) nongovernmental exchange server, e-mail accounts belongs to the version of the Texas PIA. In 2013, that were “public records” of the city County, not to the Commis- statute was amended expressly to clar- under the California Public Records sioner in his individual capacity. ify that: Act (CPRA). The case began in Conducting County busi- August 2009, when the San Jose ness through a personal e-mail “public information” means Mercury-News received two e-mails account instead of through an information that is written, pro- from a San Jose city councilmem- official County e-mail account duced, collected, assembled, or ber indicating that councilmembers does not change the County’s maintained . . . by an individual were communicating during and ownership of the local govern- officer or employee of a gov- after city council meetings in regard ment records created or received ernmental body in the officer’s to a proposal to give “millions of by the Commissioner as a or employee’s official capacity city redevelopment dollars to for- County government officer.36 and the information pertains mer Mayor Tom McEnery.”40 The to official business of the gov- Mercury-News filed a complaint ask- The court also rejected Adkisson’s ernmental body[; in addition, ing that the City of San Jose and the claim that inspection of the official this definition] applies to and San Jose Redevelopment Agency, as business e-mails in his personal account includes any electronic commu- well as city officials and former offi- would constitute an invasion of his per- nication created, transmitted, cials, be required to provide access sonal privacy, noting that Adkisson received, or maintained on any to “e-mails, text messages, and other had failed “to explain how the release device if the communication is electronic information relating to of documents concerning the trans- in connection with the transac- public business, regardless of whether action of official business could be tion of official business.39 they were created or received on the confidential.”37 City owned computers and servers or But how much pressure can a Absent such a legislative “fix” to the City Officials’ personal electronic government agency bring on its this ruling, perhaps the appropriate— devices.”41 In March 2013, the supe- employees to provide the agency the and necessary—procedural step is to rior court held in favor of the San records that reside entirely outside name each of the agency’s employees Jose Mercury-News, ruling that all

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. of the requested records were public privacy rights that would supposedly be records—whether electronic or paper records of a “local agency.”42 implicated by a regime requiring gov- form—to shield public records from However, in March 2014, the Cal- ernment entities to search individuals’ inspection under FOI laws only incen- ifornia Court of Appeals reversed, personal devices and Gmail accounts to tivizes the intermingling of records. holding that the statute’s definition locate writings that satisfy the definition If a government official chooses to of “local agency” did not include of public records (those whose contents intersperse his or her public and pri- the agency’s individual officers or bear a “demonstrable connection” or vate writings in a single account, device, employees: “It is the agency . . . that “substantial nexus” to the discharge of or file cabinet, then he or she should must prepare, own, use, or retain the official public duties). However, these not be heard to complain about the writing in order for it to be a public concerns are properly limited only “administrative burden” of sorting record, [and thus] those writings that to the e-mails or records whose con- those records into two piles, pri- are not accessible by the City can- tent is truly “private,” i.e., those that vate and public, to comply with FOI not be said to fall within the statutory do not satisfy the definition of “pub- mandates. definition.”43 The court held that the lic record.” No claim can be made by a CPRA does not impose a duty on the public employee that his or her commu- Retention: “I’d Be Glad to Give You nications in his or her official capacity, Those Records, Only We No Longer discussing official public business, are Have Them” Access to electronic subject to a reasonable expectation of Both the federal FOIA and state pub- personal privacy.46 Thus, only purely lic records laws provide a right of access records turns on how private information—i.e., information only to those records that are in exis- that does not reflect or document tence at the time of the request; the long the government is the public employee’s discharge of government is not required to gen- his or her official duties—is entitled erate a new record in response to a required to maintain to any expectation of privacy, and records request, nor to provide access is outside the statutory definition of to a record that no longer exists.50 Thus, copies of those records “public records.”47 for many records requesters, the ques- One way to minimize the intrusion tion of access to electronic records in which public on a public employee’s legitimate pri- turns on how long the government is vacy rights—by exposing his or her required to maintain copies of those business is discussed. truly private e-mails to scrutiny by his records in which public business is dis- or her government employer—is to cussed. (Notably, unlike paper records, city to produce messages stored on impose upon the employee himself or which required affirmative physical the personal electronic devices and herself the duty to search and provide action to destroy or discard, digital accounts of its employees or officials access to public records housed in a records—especially text and e-mail that are inaccessible to the agency; personal account. Increasingly, states, messages—have a built-in, automatic nor is the city required to search those cities, and municipalities are adopting “shelf life” as a result of standardized devices and accounts in response to a policies requiring public employees to “auto-delete” functions). CPRA request. The court rejected the send public records from their personal The answer to the question “how plaintiff’s (and media amici’s) argu- accounts and devices to a government long must a record be kept?” fre- ment that the city had “constructive central repository.48 Other government quently depends on a set of laws and control” over the mayor’s and council- leaders have issued directives requiring policies extraneous to the FOI or members’ personal devices. Curiously, public employees to restrict their use “right to know” law.51 The duty to although the court acknowledged of personal devices to nongovernmen- retain public records generally is that in 2004 California’s voters had tal communications, so that all “public found in companion statutes that passed Proposition 59, which declared records” will be exchanged and housed define “public records” for purposes that “the meetings of public bod- on government-controlled media.49 of records preservation, as in a state ies and the writings of public officials Indeed, the it is this very con- archives.52 Unfortunately, in many and agencies shall be open to pub- cern for personal privacy interests instances, these statutes, and the lic scrutiny,”44 that language was not and the “burden” of having gov- records retention schedules promul- considered in the court’s analysis. ernment employees sort through gated by state archivists thereunder, As this article goes to press, briefing electronic records to extract only leave a tremendous amount of discre- is being prepared before the Califor- those whose contents address public tion to individual records custodians. nia Supreme Court45 in this important business that provides the strongest Worse still, those custodians are often case that will be closely watched by policy argument for why government the very employees who generated and other courts throughout the nation. employees, as a general policy/rule, exchanged the e-communications. should be required to maintain a sepa- Yet they are given the authority to “Privacy Rights” of Government rate account and/or electronic folders determine whether the records are Employees Should Not Bar Access to in which only their governmental IMs, of “preliminary or short-term infor- “Public Records” texts, e-mails, and other records are mational value” or “lasting value” in As indicated above, some courts have stored. A rule of law that condones documenting the workings of govern- expressed concern for public employees’ the intermingling of private and public ment agencies.53

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. At the federal level, the recent high- records.61 In January 2014, Orange access the electronic records in the profile scandal involving the destruction County, Florida, agreed to pay a coali- same format in which the government of hundreds of e-mails that had been tion of citizen groups $90,000 to settle maintains the data. FOIA case law on the laptop computer of former (and a lawsuit the media dubbed “textgate” prior to the “digital era” sheds some embattled) IRS Commissioner Lois after a criminal investigation con- light on this question: federal courts Lerner brought to the fore the issue of cluded that the mayor and four county recognized that a request to inspect what obligations executive branch agen- commissioners had violated state law (and listen to) an audio recording is cies have to retain electronic records. when they deleted text messages that not satisfied by obtaining access only During congressional hearings explor- were public records.62 And in 2009, the to a written transcript of the recording the loss of Lerner’s e-mails, the City of Venice, Florida, was ordered ing, precisely because the “quantum of U.S. archivist, David Ferriero, told the to pay $750,000 in attorneys’ fees information” on the recording (voice House Oversight and Government following the settlement of a law- fluctuations, pauses, and inflection) Reform Committee that the IRS “did suit brought by a citizen’s group that is lost in the transcription process.66 not follow the law” when it failed to accused city councilmembers of having However, when the quantum of infor- report that the e-mails had been lost.54 conducted illegal meetings via e-mail mation remained unchanged—as when The Federal Records Act sets forth and then destroying or failing to pre- a set of data points is transferred from the executive branch agencies’ duties serve public records; that was on top a computer tape to a microfiche—the to preserve records in accordance with of the $600,000 the city paid to defend courts held that there was no “right” the general records schedules promul- the councilmembers in the suit.63 under the FOIA to demand access to gated by the National Archives and Even though storing digitized records the tape itself.67 However, subsequently Records Administration (NARA).55 It is generally much cheaper than ware- (and after the FOIA was amended in is the duty of each federal agency (270 housing paper files, massive data storage 1996),68 federal courts have disagreed of which are subject to the Federal imposes significant costs and administra- with this analysis, and have required Records Act) to propose disposition tive burden on governments, particularly federal agencies, such as NOAA, to schedules for their records, and the vast in light of the tremendous volume of provide access to information kept in bulk (95–97 percent) of records are data that governments generate daily. a digitized form, finding that a paper eventually destroyed.56 Under the Man- Hence, government agencies at all lev- printout of the same data set does aging Government Records Directive els—federal, state, and local—have not provide access to the particular adopted by the Obama administration a legitimate need to not “keep” every- “agency record” sought.69 in 2011, “[b]y the end of 2016, all agencies thing in perpetuity. Most states’ public But how much effort must the gov- need to manage e-mail in automated, records preservation and archives stat- ernment expend to make its records electronic ways.”57 In August 2013, utes dictate that the length of time for available to the public? The federal NARA issued its guidance on e-mail keeping records must be determined FOIA provides that an agency shall management,58 which sets forth what is by the content of the record, not its make a record available “in any form referred to as a “capstone” approach: format, medium, or title.64 But the man- or format requested by the person if under this tiered system, all work- ner in which specific records retention the record is readily reproducible by related e-mails of certain high-level schedules are promulgated and imple- the agency in that form or format.”70 department officials, who are deemed mented, and particularly when e-records The Justice Department’s Office of “capstone” employees, are to be main- “expire” automatically, will continue Information Policy has stated that the tained permanently by the agency; to pose problems for public records onus is on the records requester to those of lower (mid-) level agency requesters. dictate the format in which he or she employees are to be preserved for The conclusion of the 2009 report wishes to receive an agency record.71 seven years; and those of the more on this subject by the Reporters Com- Further, agencies should make “rea- subordinate employees are to be mittee for Freedom of the Press (RCFP) sonable efforts” to produce a record retained for shorter periods of time, is as relevant and accurate today as in a requested format if it is “read- according to the agency’s needs.59 when it was published five years ago: ily reproducible” in that form.72 Many As many government entities “E-mail retention policies likely will federal courts adhere to the stan- have discovered, failure to ensure generate increasing amounts of litiga- dard for reasonableness announced that electronic records are properly tion—and deservedly so. In states where by the Ninth Circuit in TPS, Inc. v. maintained and preserved can give the issue has not been settled by stat- U.S. Department of Defense: a record rise to additional burdens on such ute or case law, there are effectively is readily reproducible if an agency agencies to conduct adequate “search no bright-line legal mandates requir- already has the means to create and and retrieval” of records.60 The conse- ing officials to retain e-mail [or other convert documents into a specific for- quences of intentional public records digitized] records for a given period of mat even if it does not routinely do so destruction can also prove quite costly. time.”65 for purposes of responding to FOIA In 2012, a Colorado school district requests.73 was ordered to pay $122,000 in attor- Production: “Of Course You Can Some, but not all, states’ open neys’ fees to the parents of a student Have Our Database; We’ll Print It records laws expressly guarantee the after a school official had ordered Out for You” right to obtain records in a particular several school employees to destroy Another issue that often arises is format if so requested.74 For example, thousands of e-mails and other public whether the public is entitled to Mississippi’s statute provides that “[a]

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. public body shall provide a copy of the information has presented constitutes an “agency record” under the record in the format requested if a legitimate reason why a paper the federal FOIA.86 In 2011, Judge the public body maintains the record copy of the records would be Shira A. Scheindlin of the South- in that format.”75 Notwithstanding insufficient or impracticable, ern District of New York ruled that these legislative directives to provide and if such person assumes the “metadata maintained by the agency access to digitized records in their expense of copying.81 as a part of an electronic record is pre- native format, many government enti- sumptively producible under FOIA, ties have refused to do so. Common unless the agency demonstrates that excuses include concern about secu- “Electronic Fingerprints”: Access to such metadata is not ‘readily repro- rity of the data76 and the “burden” of Metadata ducible.’”87 However, that opinion redacting nonpublic information,77 Prior to the digital age, when paper was short-lived. The parties subse- such as Social Security numbers. documents were stored in filing cabi- quently settled and the opinion was State and federal courts called nets, there would sometimes be an withdrawn, so it holds no precedential upon to enforce these directives have index to the files, generated by gov- value.88 not been consistent in doing so. Some ernment employees, showing the State courts, on the other hand, courts have upheld the right of the “filing scheme” that might, in appro- have been fairly uniform in conclud- requester to receive information in the priate circumstances, reveal how the ing that metadata encompasses an particular medium requested, liber- documents were characterized and “agency record” that must be pro- ally construing the relevant FOI law,78 classified by government officials (e.g., duced under state open records while other courts have adhered to a “enemies” or “personas non grata”). laws.89 Based on the language of very narrow interpretation of what is Such government-generated catalogs FOIA itself, state courts’ interpreta- “readily reproducible.”79 Several state or file indexes were unquestionably tions of similarly worded state open courts have distinguished case law “public records” that reflected the records laws, and executive guidance, applying the federal FOIA because it “mental processes” or “inner work- there is a strong argument that meta- has been interpreted to provide access ings” of the government. data should be considered part of an only to “information,” as opposed to With the advent of the digital agency record subject to the federal state statutes that guarantee the right era, however, the filing systems are FOIA, as Judge Scheindlin had once to access the very “public records” in automated, and the data-processing concluded. the hands of the government.80 systems—whether they be spread- In 1992, Ohio’s Supreme Court sheet programs, word processing, As Communications Technology provided a clear and compelling e-mails, or text messaging—auto- Evolves, So Will the Legal Battles over explication of why access to informa- matically record and track various Access to Public Records tion—in the same form and format information that previously required Progress toward the “paperless office” in whichis is maintained by the the human labor (and that more often continues in the halls of government government—is required to fulfill the than not was simply not recorded). as it does in the private sector. As purposes of a “public records” act: Examining the “metadata” on a typi- ever more government records that cal document created and edited on shed light on the conduct of the pub- [A] public agency should not be Microsoft Word, for example, one lic’s business are comprised of digital permitted to require the pub- can determine who first generated the zeros and ones, and are stored “off lic to exhaust massive amounts document, on what date and at what premises” in the cloud and/or on por- of time and resources in order time, and for how long it was open table electronic devices, the issues to replicate the value added to and being edited, and thereafter, by discussed in this article will increas- the public records through the whom, on which dates, and at which ingly be litigated.90 Thus far, courts creation and storage on tape times; indeed, depending on the docu- have generally (and appropriately) of a data base containing such ment settings, it is sometimes possible recognized that is it the content of the records. to recreate earlier drafts of a docu- record, not its physical form or loca- . . . . ment and to show which persons tion, that should determine whether Here, the added value is not made which edits.82 the public is entitled to inspect and only the organization of the Access to metadata, referred to as copy such data. It is hoped that gov- data, but also the compres- “information describing the history, ernment leaders’ lofty proclamations sion of the data into a form tracking, or management of an elec- extolling the virtues of “transpar- that allows greater ease of pub- tronic document,”83 associated with ency” and committing to “proactive lic access. Thus, in keeping public records is important for sev- access” will someday translate into with the expressed intent of the eral reasons. Metadata can be used to concrete steps—that the government General Assembly to provide reveal the authenticity of documents will systematically post and/or distrib- broad access to public records, and, alternatively, to expose possible ute public records without requiring we hold that a governmental government misconduct.84 Metadata that individual requests be submit- agency must allow the copy- also serves to make electronic records ted. Until that Elysian day arrives, ing of the portions of computer searchable and thus more useful.85 however, advocates for access will tapes to which the public is enti- No federal court has yet defini- continue to battle to inspect pub- tled, if the person requesting tively addressed whether metadata lic records, wherever they reside, and

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. in whatever format. After all, such Work Sparks FOIA Battle, Colum. to Receive Information in a Particular records are often the only way reliably Journalism Rev. (Feb. 13, 2013), Medium or Format, 86 A.L.R.4th 786 to determine what our government is http://www.cjr.org/cloud_control/new_ (Supp. 2014). up to. mexico_public_records_thin.php? 12. See Larry Walsh, Google Drops page=all#sthash.LuNeB9HY.dpuf. Lawsuit for Government Cloud, Chan- Endnotes 8. A 2003 study found that the amount nelnomics (Sept. 27, 2011), http://www. 1. Theodoric Meyer, Why Is the Cuomo of information available, worldwide, had channelnomics.com/channelnomics-us/ Administration Automatically Deleting roughly doubled in the previous three-year news/2365402/google-drops-lawsuit- State Employees’ Emails?, ProPublica period, and 93 percent of that information for-government-cloud (reporting that (Aug. 11, 2014), http://www.propublica. was in digital form. Peter Lyman & “Google has won several federal, state org/article/why-is-cuomo-administration- Hal R. Varian, Sch. of Info. Mgmt. & and municipal government contracts, automatically-deleting-state-employees- Sys., Univ. of Cal.-Berkeley, How Much including the [federal] General Services emails?utm_source=et&utm_medium Information? (2003), available at http:// Administration, the State of Wyoming =email&utm_campaign=dailynewsletter#. www.sims.berkeley.edu/research/projects/ and the city of Los Angeles”). 2. Mary Ellen Klas, Lawsuit Seeks how-much-info-2003/, cited in Nat’l Elec. 13. An excellent summary of this body Disclosure of Private Email Accounts Commerce Coordinating Council, of case law can be found in Peter S. Kozi- of Gov. Rick Scott, His Staff, Tampa Challenges in Managing Records in nets, Access to the E-Mail Records of Bay Times, Aug. 13, 2014, http://www. the 21st Century 14–15 (2004), available Public Officials: Safeguarding the Pub- tampabay.com/news/politics/stateroundup/ at https://library.osu.edu/assets/Uploads/ lic’s Right to Know, Comm. Law., Summer lawsuit-seeks-disclosure-of-private-email- RecordsManagement/Challenges-in-21st- 2007, at 17. See, e.g., Denver Publ’g Co. accounts-of-gov-rick-scott-his/2192738. e-recs-neccc.pdf. v. Bd. of Cnty. Comm’rs of Arapahoe 3. Mary Wilson, Emails a Blind 9. U.S. Dep’t of Justice v. Reporters Cnty., Colo., 121 P.3d 190 (Colo. 2005) Spot in PA Transparency Laws, WITF Comm. for Freedom of the Press, 489 (holding that sexually explicit text mes- (Aug. 15, 2014), http://www.witf.org/ U.S. 749, 772–73 (1989). sages exchanged between two government state-house-sound-bites/2014/08/e-mails- 10. See, e.g., Kristen Berg, Federal Gov- employees on county-provided devices, a-blind-spot-in-pa-transparency-laws.php. ernment Enters the Era of the “Cloud,” while on duty, were not “public records” 4. Mary Niederberger & Bill Schack- News Media & L. (Reporters Comm. for because the content of those messages did ner, Corbett Defends Education Adviser Freedom of the Press, Arlington, Va.), not bear “a demonstrable connection” to Who Resigned amid Questions about Fall 2011, at 16, available at http://www. the discharge of public functions). Duties, Pittsburgh Post-Gazette, rcfp.org/browse-media-law-resources/ 14. The Colorado Supreme Court has Aug. 15, 2014, http://www.post-gazette. news-media-law/news-media-and-law- held that when a public employee makes com/news/education/2014/08/14/ fall-2011/federal-government-enters-era; only passing reference to his or her profes- Corbett-defends-education-adviser-who- John Breeden II, Forever Accessible sional conduct in the entries of a private resigned-amid-questions-about-his-duties/ Archives? Michigan Moves Its Records to diary, that diary is “made, maintained, stories/201408140291. the Cloud, GCN (Mar. 5, 2014), http:// [and] kept” purely in that employee’s pri- 5. Tessa Cheek, Colorado’s Analog gcn.com/articles/2014/03/05/michigan- vate capacity. Wick Commc’ns Co. v. Records Laws Lag Behind Digital Prac- archives.aspx; Winifred Shum, State of Montrose Cnty. Bd. of Cnty. Comm’rs, 81 tice, Colo. Indep. (Jan. 24, 2014), http:// Oregon Embraces HP TRIM for State- P.3d 360 (Colo. 2003). www.coloradoindependent.com/145719/ wide Cloud-Based Records Management, 15. See, e.g., Denver Publ’g Co., 121 colorados-analog-records-laws-lag- HP Autonomy (Jan. 8, 2013), http:// P.3d 190; State v. City of Clearwater, 863 behind-digital-practice. www.autonomy.com/work/news/details/ So. 2d 149 (Fla. 2003); Howell Educ. 6. In 2012, the chief of staff to New hkfgxbqi. Ass’n, MEA/NEA v. Howell Bd. of Mexico Governor Susana Martinez was 11. A very helpful guide to all 50 states’ Educ., 789 N.W.2d 495 (Mich. Ct. App. caught on tape stating that he never used laws on this subject was produced in 2009 2010); State ex rel. Wilson-Simmons v. his government-provided e-mail account by the Reporters Committee for Free- Lake Cty. Sheriff’s Dep’t, 693 N.E.2d 789 to discuss public business, so that his com- dom of the Press (RCFP). See Cristina (Ohio 1998); Forbes v. City of Gold Bar, munications would not be subject to that Abello, RCFP, Access to Electronic 288 P.3d 384 (Wash. Ct. App. 2012); Asso- state’s open records law. See Steve Terrell, Communications (2009), available at ciated Press v. Canterbury, 688 S.E.2d 317 Martinez Administration Dodges Requests http://www.rcfp.org/rcfp/orders/docs/ (W. Va. 2009); Schill v. Wis. Rapids Sch. for Out-of-State Travel Costs, Santa Fe ELECCOMM.pdf. Other useful second- Dist., 786 N.W.2d 177 (Wis. 2010); see New Mexican, Mar. 20, 2014. ary sources include Andrea G. Nadel, also Kozinets, supra note 13. 7. See Aaron Mackey, Governments Annotation, What Are “Records” of 16. See, e.g., City of Clearwater, 863 Continue to Come Up with New Ways to Agency Which Must Be Made Available So.2d at 154 (concluding that “the deter- Prevent Access to Records, News Media under State Freedom of Information Act, mining factor [in deciding whether e-mails & L. (Reporters Comm. for Freedom of 27 A.L.R.4th 680 (Supp. 2014); Marjo- are public records] is the nature of the the Press, Arlington, Va.), Winter 2013, rie A. Shields, Annotation, Disclosure record, not its physical location,” and not- at 10, available at http://www.rcfp.org/ of Electronic Data under State Public ing that “an agency cannot circumvent the browse-media-law-resources/news-media- Records and Freedom of Information Acts, Public Records Act by allowing a private law/news-media-and-law-winter-2013/ 54 A.L.R.6th 653 (Supp. 2014); and Holly entity to maintain physical custody of governments-continue-come-n; Sarah Piehler Rockwell, Annotation, State Free- documents that fall within the definition Laskow, Use of Private Emails for Public dom of Information Act Requests: Right of ‘public records’”).

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 17. 252 F.R.D. 346 (E.D. Mich. 2008). (D.C. Cir. 2005) (recognizing that “[a]s the regardless of whether it was her public or 18. Id. at 356 (citing MacKenzie v. district court correctly observed, . . . pos- her private e-mail account that received Wales Twp., 635 N.W.2d 335, 339 (Mich. session is not the proper test of whether a or sent the e-mail messages.”); Mol- Ct. App. 2001); Easley v. Univ. of Mich., record is within an agency’s control,” and lick v. Twp. of Worcester, 32 A.3d 859, 444 N.W.2d 820, 822 (Mich. Ct. App. holding that records generated by and in 872–873 (Pa. Commw. Ct. 2011) (“[A]ny 1989)). possession of a Department of Interior emails that meet the definition of ‘record’ 19. Id. at 357. (DOI) employee “in the legitimate con- under the RTKL, even if they are stored 20. U.S. Dep’t of Justice v. Tax Analysts, duct of his official duties” were agency on the Supervisors’ personal comput- 492 U.S. 136, 142 (1989). Two requirements records of DOI); see also Landmark ers or in their personal email accounts, must be met before materials will be con- Legal Found. v. EPA, 959 F. Supp. 2d 175, would be records of the Township.”); Bur- sidered to be “agency records.” First, the 184 (D.D.C. 2013) (authorizing discovery ton v. Mann, 74 Va. Cir. 471 (2008) (“[T] agency must “either create or obtain” the into the adequacy of the EPA’s search for he e-mail correspondence sought in this documents. Id. at 144 (quoting Forsham responsive records, including the personal case indicates the use of both public and v. Harris, 445 U.S. 169, 182 (1980)). Sec- e-mail accounts of individual employees, private databases, the status of which is ond, the agency “must be in control of the because “[t]he possibility that unsearched not determinative of the issue of disclo- requested materials at the time the FOIA personal email accounts may have been sure.”); O’Neill v. City of Shoreline, 240 request is made.” Id. at 145. used for official business raises the pos- P.3d 1149, 1155 (Wash. 2010) (ordering 21. See, e.g., Burka v. U.S. Dep’t of sibility that leaders in the EPA may have city to search deputy mayor’s home com- Health & Human Servs., 87 F.3d 508, 515 purposefully attempted to skirt disclosure puter for e-mail records after concluding (D.C. Cir. 1996) (finding that HHS had under the FOIA”). that “[i]f government employees could cir- “constructive control” of data tapes in 26. Michael D. Pepson & Daniel Z. cumvent the [Public Records Act] by using the possession of a private research firm); Epstein, Gmail.gov: When Politics Gets their home computers for government Ryan v. Dep’t of Justice, 617 F.2d 781, Personal, Does the Public Have a Right business, the PRA could be drastically 785 (D.C. Cir. 1980) (“A simple posses- to Know?, Engage: J. Federalist Soc’y undermined”). sion standard would permit agencies to Prac. Groups, July 2012, at 4, 7. 28. D.C. Code §§ 2-531 et seq. insulate their activities from FOIA disclo- 27. McLeod v. Parnell, 286 P.3d 509, 29. Vining v. Dist. of Columbia, No. sure by farming out operations to outside 515 (Alaska 2012) (“[U]sing private email 2013CA8189B (D.C. Super. Ct. July 9, contractors.”); Democratic Nat’l Comm. accounts is no more an obstruction of 2014). v. U.S. Dep’t of Justice, 539 F. Supp. 2d access to public records than communi- 30. Pers. Use of Elec. Equip., AGO 363, 367 (D.D.C. 2008) (concluding that cating through paper letters.”); Griffis v. File No. 661-08-0388 (Alaska Att’y Gen. e-mails maintained on a political par- Pina Cnty., 156 P.3d 418, 421 (Ariz. 2007); Aug. 21, 2008); Pub. Access Op. No. ty’s server are subject to FOIA, and that Bradford v. Dir., Emp’t Sec. Dep’t, 128 11-006 (Ill. Att’y Gen. Nov. 15, 2011); “because the form of the document does S.W.3d 20, 27–28 (Ark. Ct. App. 2003) Open Meetings Act—Pub. Info. Act— not factor into the analysis under FOIA, (“Emails transmitted between Bradford Status of Elec. Mail, 81 Md. Op. Att’y the court cannot adopt a per se rule that and the governor that involved the pub- Gen. 140, 144–45 (May. 22, 1996) (“[E]- any e-mails sent on the RNC servers are lic’s business are subject to public access mail messages among members of the not covered by FOIA”). under the Freedom of Information Act, Commission pertaining to Commission 22. Competitive Enter. Inst. v. NASA, whether transmitted to private email business would be public records, albeit 989 F. Supp. 2d 74, 86–87 (D.D.C. 2013); addresses through private internet provid- housed only in the home computers of see also Houghton v. U.S. Dep’t of State, ers or whether sent to official government the members”); N.M. Att’y Gen. Letter 875 F. Supp. 2d 22, 30 (D.D.C. 2012). email addresses over means under the (Feb. 7, 2013) (“If email is used to con- 23. Ryan, 617 F.2d at 787. control of the State’s Division of Infor- duct public business, the email is a public 24. As the D.C. Circuit has held, “the mation Services.”); City of Champaign record, without regard to whether the purpose for which the document was cre- v. Madigan, 992 N.E.2d 629 (Ill. App. email is created or maintained on a pub- ated, the actual use of the document, Ct. 2013) (applying state’s open meet- lic or private email account.”); N.D. Op. and the extent to which the creator of ings law); Matter of Smith v. N.Y. State Att’y Gen. No. 2008-O-15 (July 1, 2008); the document and other employees act- Office of the Attorney Gen., No. 3670-08, N.D. Op. Att’y Gen. No. 2008-O-07 (Mar. ing within the scope of their employment NYLJ 1202555064972, at *1 (N.Y. Sup. 2008); N.D. Op. Att’y Gen. No. 98-O-05 relied upon the document to carry out Ct. Apr. 30, 2012) (“[T]he OAG has both (Mar. 3, 1998); Okla. Op. Att’y Gen. No. the business of the agency” are “impor- the responsibility and the obligation to 09-12 (May 13, 2009); Tex. Op. Att’y Gen. tant considerations” for distinguishing gain access to the private e-mail account No. ORD-1790 (2001); Letter Op. (Wis. between “agency records” and personal of former Attorney General Spitzer to Att’y Gen. Sept. 25, 2006). materials. Bureau of Nat’l Affairs v. U.S. determine whether the documents con- 31. Tex. Gov’t Code Ann. Dep’t of Justice, 742 F.2d 1484, 1493 tained therein should be disclosed to §§ 552.001–.353. (D.C. Cir. 1984). petitioner in accordance with its FOIL 32. No. 13-12-00535-CV, 2014 WL 25. Judicial Watch, Inc. v. U.S. Dep’t of request.”); State ex rel. Glasgow v. Jones, 2708424 (Tex. App. June 13, 2014). Energy, 310 F. Supp. 2d 271, 297 (D.D.C. 894 N.E.2d 686, 691 (Ohio 2008) (“[Rep- 33. Id. at *6 2004) (“[T]he actual physical location of resentative] Jones concedes that e-mail 34. Id. at *6 n.4. the documents is not dispositive; the issue messages created or received by her in her 35. Id. at *8. is actual or constructive ‘control.’”), aff’d capacity as state representative . . . con- 36. Id. at *9 (emphasis added). in part, rev’d in part, 412 F.3d 125, 133 stitute records subject to disclosure . . . 37. Id. at *12.

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 38. Tex. Op. Att’y Gen. No. OR2012- for 90 days and then are deleted, consis- government. 19216 (Nov. 29, 2012). Although not tent with city policy); Mary Ellen Klas, 55. See 33 U.S.C. §§ 3101–07; 36 C.F.R. applicable to the Allala case, in 2013 Texas Judge Orders Fla. Gov. Rick Scott to Stop §§ 1224.10, 1236.20(b)(6). amended its records law to declare that Fighting Request for Records, Miami Her- 56. Lisa Rein, U.S. Chief Records Offi- “public information” includes any docu- ald, Sept. 9, 2014 (reporting that Florida cer Details Federal Email Record-Keeping ments created by a governmental officer Governor Rick Scott’s ‘“code of conduct’ Programs, Wash. Post, June 16, 2013, or employee acting in an official capac- states that employees should not use per- http://www.washingtonpost.com/politics/ ity as long as the “information pertains sonal email accounts ‘unless such use is us-chief-records-officer-details-federal- to official business of the governmental necessary upon a reasonable evaluation of e-mail-record-keeping-programs/2013/06/16/ body.” Tex. Gov’t Code Ann. § 552.002. the circumstances at hand’ and then must a6995e92-d470-11e2-a73e-826d299ff459_ 39. Tex. Gov’t Code Ann. § 552.002(a) forward the public record to his or her story.html. (emphasis added). state account”). 57. Id. The Managing Government 40. Complaint for Declaratory and 49. See, e.g., Steve Terrell, Governor Records Directive is available at http:// Injunctive Relief at 4, Smith v. City of Orders Staff to End Use of Private Email www.whitehouse.gov/sites/default/files/ San Jose, No. 109CV150427 (Cal. Super. for Work Matters, New Mexican, June 18, omb/memoranda/2012/m-12-18.pdf. Ct. Aug. 21, 2009). 2012 (“After a week of taking heat fol- 58. See Nat’l Archives, NARA 41. Id. at 5. lowing the disclosure that Gov. Susana Bulletin 2013-02, Guidance on a New 42. See Cal. Gov’t Code § 6252(a). Martinez and top officials in her admin- Approach to Managing Email Records 43. City of San Jose v. Superior Court, istration used personal emails to conduct (Aug. 29, 2013), available at http://www. 169 Cal. Rptr. 3d 840, 850 (Ct. App. state business, on Monday she ordered archives.gov/records-mgmt/bulletins/ 2014). all state employees in agencies under her 2013/2013-02.html. 44. Cal. Const. art. 1, § 3(b)(1) authority to use official state email for 59. See Nat’l Archives, NARA (emphasis added). state business.”). Bulletin 2014-06, Guidance on Manag- 45. City of San Jose v. Superior Court, 50. See, e.g., Freedom of Info. Act ing Email (Sept. 15, 2014), available at 173 Cal. Rptr. 3d 46 (2014). Complaint against Wilmington Hous. http://www.archives.gov/records-mgmt/ 46. See, e.g., Rinsley v. Brandt, 446 F. Auth., Del. Op. Att’y Gen. No. 06-ID23, bulletins/2014/2014-06.html (stating that Supp. 850, 857–58 (D. Kan. 1977) (“A 2006 WL 3663142 (Nov. 27, 2006) (con- “[c]apstone officials will generally be the public official has no right of privacy as to cluding that “the Authority did not top-level senior officials of an agency, but the manner in which he conducts himself violate the . . . FOIA because any of [the may also be other key decision makers at in office.”); Rawlins v. Hutchinson Publ’g executive director’s] e-mails that might lower levels of the agency”). Co., 543 P.2d 988, 993 (Kan. 1975) (same); have been responsive to your request no 60. See, e.g., Valencia-Lucena v. U.S. Citizens to Recall Mayor James Whitlock longer exist”). Coast Guard, 180 F.3d 321, 328 (D.C. v. Whitlock, 844 P.2d 74, 77–78 (Mont. 51. See, e.g., Edenburn v. N.M. Dep’t Cir. 1999) (finding agency’s search inad- 1992) (rejecting as “unreasonable as a of Health, 299 P.3d 424, 427 (N.M. Ct. equate where a particular responsive matter of law” a public officer holder’s App. 2012) (noting that the state’s records record was missing and agency failed to expectation of privacy “in performance of preservation statute and its right to contact other personnel where “there is his public duties”). inspect public records act are distinct, and a close nexus . . . between the person and 47. See, e.g., Nixon v. Adm’r of Gen. serve different purposes, so the former the particular record”); FLP Grp., Inc. v. Servs., 433 U.S. 425, 457 (1977) (hold- does not affect decisions under the latter). IRS, 698 F. Supp. 2d 66, 78–80 (D.D.C. ing that public official enjoys a right of 52. The Council of State Archivists’ 2010) (applying FOIA and holding that privacy only with respect to government- website includes a compilation of all 50 if known responsive documents have held information concerning “matters of states’ public records preservation stat- been destroyed, the agency is obligated personal life unrelated to any acts done utes: http://www.statearchivists.org/arc/ to search the electronic and paper files of by them in their public capacity” (empha- states/res_stat.htm. other personnel who are “likely to have sis added)); Denver Publ’g Co. v. Bd. of 53. See, e.g., Pam Zubeck, Ain’t No Sun- copies of the destroyed materials,” includ- Cnty. Comm’rs of Arapahoe Cnty., Colo., shine, Colo. Springs Indep., July 2, 2014, ing former employees (emphasis added)); 121 P.3d 190 (Colo. 2005) (holding that http://www.csindy.com/coloradosprings/ State ex rel. Toledo Blade Co. v. Seneca any portions of text messages exchanged despite-laws-that-require-transparency- Cnty. Bd. of Comm’rs, 899 N.E.2d 961, between two government employees that city-government-keeps-us-in-the-dark/ 970 (Ohio 2008) (ordering government discussed governmental business were Content?oid=2900323. entity to bear the cost of forensic data public records and were required to be 54. Rachel Bade, Archivist: IRS Did recovery to attempt to restore e-mails that disclosed; the portions of such messages Not Follow Law on Lost Emails, Politico had been deleted in violation of published that contained only graphic, sexually (June 24, 2014), http://www.politico.com/ records retention schedule). explicit statements did not reflect official story/2014/06/irs-lost-emails-archivist- 61. See John Ferrugia & Sandra Barry, conduct and were redacted as “private”). 108242.html. Under the Federal Records Poudre School District Destroys Records 48. See Kevin Duggan, Public Access Act (44 U.S.C. §§ 2905(a), 3106) and its to Deny Special Needs Family’s Access, to Council Email Gets Easier, Colora- implementing regulations (36 C.F.R. pt. KMGH-TV (Mar. 5, 2014), http:// doan, Jul. 26, 2014 (reporting that the 1230), when an agency becomes aware of www.thedenverchannel.com/news/call7- City of Fort Collins, Colorado, has posted an incident of unauthorized destruction, investigators/poudre-school-district- all nonprivileged e-mails of city council- it must report the incident to the Office destroys-records-to-deny-special-needs- ors online, where they remain available of the Chief Records Officer for the U.S. familys-access.

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 62. David Damron, Orange Leaders § 192.440(3); 65 Pa. Stat. Ann. § 67.701(a); (N.D. Cal. Oct. 6, 2006) (finding that SEC Settle “Textgate,” Pay $90,000, Orlando Tex. Gov’t Code Ann. § 552.228(b); Vt. could not readily reproduce in electronic Sentinel, Jan. 13, 2014, http://articles. Stat. Ann. tit. 1, § 316(i); W. Va. Code format data not available electronically orlandosentinel.com/2014-01-13/news/ § 29B-1-3(3); Wis. Stat. § 19.36(4). when “the only other way to create a os-textgate-civil-lawsuit-settlement-20140113_ 75. Miss. Code Ann. § 25-61-10(2); see searchable electronic file [besides scanning 1_orange-leaders-former-commissioner- also Ark. Code Ann. § 25-19-105(d)(2) paper copies] would be for an SEC staff john-martinez-citizens-group. (B) (providing that a citizen “may request member to cut and paste each cell of data 63. See Jacob Parsley, Florida Judge a copy of a public record in any medium from the individual electronic records into Grants $750,000 Award for Attorneys’ in which the record is readily available or another document for Plaintiff.”), aff’d, Fees in Open Government Suit, Silha in any format to which it is readily convert- 289 F. App’x 231 (9th Cir. 2008); Citizens Center Bull. (Jan. 5, 2010), http:// ible with the custodian’s existing software” for Responsibility & Ethics in Wash. v. www.silha.umn.edu/news/fall2009. (emphasis added)); 5 Ill. Comp. Stat. U.S. Dep’t of Educ., 905 F. Supp. 2d 161, php?entry=211905. 140/6(a) (“When a person requests a copy 171 (D.D.C. 2012) (holding that agency 64. See supra note 52. of a record maintained in an electronic had no responsibility to provide electronic 65. Abello, supra note 11, at 4. format, the public body shall furnish it format of responsive e-mails because 66. Dismukes v. Dep’t of the Interior, in the electronic format specified by the “DoEd’s email records are not ‘readily 603 F. Supp. 760 (D.D.C. 1984). requester, if feasible. If it is not feasible reproducible’ in electronic format, and 67. Id. to furnish the public records in the speci- the DoEd email retention system ‘will not 68. See infra note 86. fied electronic format, then the public display or print’ the BCC field ‘for any 69. DeLorme Publ’g Co. v. NOAA, body shall furnish it in the format in which retrieved email.’”). 907 F. Supp. 10, 11–13 (D. Me. 1995) (“An it is maintained by the public body . . . .” 80. See, e.g., AFSCME v. Cook Cnty., agency’s FOIA duty is to disclose records, (emphasis added)). 555 N.E.2d 361 (Ill. 1990); Farrell v. and records are formatted information. 76. See, e.g., Prall v. N.Y. City Dep’t of City of Detroit, 530 N.W.2d 105, 108–09 No one would argue that an agency could Corrections, 971 N.Y.S.2d 821 (Sup. Ct. (Mich. Ct. App. 1995) (observing that refuse to disclose a pie chart or graph, for 2013) (holding that NYC DOC did not Michigan’s statute “gives a person the example, merely because the same ‘con- violate FOIL when it provided inmate right to ‘inspect, copy, or receive copies of tent’ is available in statistical tables.”). arrest records in PDF format rather than a public record,’ not merely to obtain the 70. 5 U.S.C. § 552(a)(3)(B). in native format as requested because dis- ‘information’ contained in a public record 71. Dep’t of Justice, Office of Info. closing original format would also have in any form in which the public body sees Policy, FOIA Update, Vol. XVII, No. required disclosure of metadata contain- fit to release it”);Brownstone Publishers, 4 (1996), available at http://www.justice. ing confidential information). 550 N.Y.S.2d 564; cf. Higg-A-Rella, Inc. gov/oip/blog/foia-update-congress-enacts- 77. See, e.g., Menge v. City of Man- v. Cnty. of Essex, 660 A.2d 1163, 1170 foia-amendments; see also 28 C.F.R. chester, 311 A.2d 116 (N.H. 1973) (N.J. 1995) (requiring disclosure of tax list § 16.11(b)(3) (“Components shall honor a (holding that expense and labor involved records in computerized form under com- requester’s specified preference of form or in abstracting information from other mon-law balancing test). But see Wells format of disclosure if the record is read- sources far outweighed ease and minimal v. Wharton, No. W2005-00695-COA- ily reproducible with reasonable efforts in cost of tape production). R3-CV, 2005 WL 3309651, at *9 (Tenn. the requested form or format by the office 78. See, e.g., Sample v. Bureau of Ct. App. 2005) (rejecting these cases, and responding to the request.”). Prisons, 466 F.3d 1086 (D.C. Cir. 2006) concluding that “[a]llowing a custodian of 72. 5 U.S.C. § 552(a)(3)(B). (holding that under FOIA, Bureau of records to choose the manner in which he 73. 330 F.3d 1191, 1197 (9th Cir. 2003) Prisons was obligated to provide record in or she presents public records to citizens (“In evaluating reproducibility, the agency electronic form to inmate, as requested); is not unreasonable so long as that man- should employ a standard of reasonableness Minn. Med. Ass’n v. State, 274 N.W.2d 84 ner does not distort the record or inhibit that is benchmarked against the agency’s (Minn. 1978) (holding that state data pri- access to that record”). ‘normal business as usual approach’ with vacy act placed no restriction on the form 81. State ex rel. Margolius v. City of respect to reproducing data in the ordi- in which records could be made available Cleveland, 584 N.E.2d 665, 669 (Ohio nary course of the agency’s business.”); other than that they be easily accessible 1992) (emphasis added) (citation omitted). see also Reporters Comm. for Free- for convenient use); Brownstone Publish- 82. A helpful description of various dom of the Press, Record Formats, in ers, Inc. v. N.Y. City Dep’t of Bldgs., 560 programs’ available metadata, and how Federal FOIA Appeals Guide (2012), N.Y.S.2d 642, 643 (App. Div. 1990) (“[I]t to access it, is available at http://canons. available at http://www.rcfp.org/federal- is clear that both the statute and its under- sog.unc.edu//wp-content/uploads/2010/03/ foia-appeals-guide/record-format-issues/ lying policy require that the DOB comply document_metadata-2.pdf. record-formats. with Brownstone’s reasonable request to 83. Reporters Comm. for Freedom 74. See, e.g., Ark. Code Ann. § 25-19- have the information, presently main- of the Press, Access to File “Metadata,” 105(d)(2)(B); Cal. Gov’t Code § 6253.9(a); tained in computer language, transferred in Federal FOIA Appeals Guide, supra D.C. Code § 2-532(a-1); 5 Ill. Comp. Stat. onto computer tapes.”); see also Blay- note 73. “Metadata is quite simply data 140/6(a); Ind. Code § 5-14-3-3(d); Minn. lock v. Staley, 732 S.W.2d 152 (Ark. 1987); about data, or hidden statistical informa- Stat. § 13.03(3)(e); Miss. Code Ann. Szikszay v. Buelow, 436 N.Y.S.2d 558 tion about a document that is generated § 25-61-10(2); N.J. Stat. Ann. § 47:1A- (Sup. Ct. 1981). by a software program.” O’Neill v. City 5(d); N.Y. Pub. Off. Law § 87; Ohio Rev. 79. See, e.g., Laroche v. SEC, No. C of Shoreline, 240 P.3d 1149, 1152 (Wash. Code Ann. § 149.43(B)(6); Or. Rev. Stat. 05-4760 CW, 2006 WL 2868972, at *3 2010) (quoting Jembaa Cole, When

or more than a decade, courts state has had the country’s broadest jurisdiction over the anonymous have grappled with consti- presuit discovery practice. Rule 202 has potential defendant. The court further tutional issues relating to its origin in the courts of equity, and held that it is the plaintiff’s burden to the protection of anony- equitable principles frequently prevail make this jurisdictional showing, just Fmous online speech. These courts have over formal legal requirements in the as it would be in a pending suit.6 focused primarily on the First Amend- Texas trial courts’ application of the Trooper’s impact on presuit discov- ment requirements that plaintiffs must rule.4 As a result, Rule 202 courts often ery in Texas is obvious. With the new satisfy in order to unmask bloggers, do not scrutinize the petitioner’s antic- personal jurisdiction requirement, Rule commenters, and others whose speech is ipated claim to ensure that it is legally 202 is now decidedly less attractive to alleged to be defamatory. On this issue, viable or that it will satisfy jurisdiction plaintiffs seeking to target anonymous the case law has generally coalesced and venue requirements. If petition- speech and commerce.7 But beyond the around the basic principle that plain- ers can articulate a good faith interest presuit context, and outside Texas, the tiffs must make a prima facie evidentiary in the requested information, they potential impact of the decision is less showing to support their claims, rather stand a very good chance of obtain- clear. While some parts of the court’s than merely plead a possible claim.1 ing it. Accordingly, when businesses opinion focus narrowly on Texas law, Courts have paid less attention to and individuals feeling aggrieved by the most compelling section embraces the jurisdictional issues relating to the online speech seek to unmask anony- a due process analysis that could have unmasking of anonymous speakers. mous bloggers and commenters, they wide application—outside Texas and But two cases—one recently decided by frequently turn to Rule 202. beyond the context of presuit discovery. the Texas Supreme Court and another In Trooper, the company and CEO’s The court’s opinion begins with currently pending before the Virginia Rule 202 petition was served on Google, an extended discussion of the his- Supreme Court—highlight the impor- which hosted the Trooper’s blog. Google tory of Rule 202.8 Yet this discussion tance of jurisdictional considerations in notified the Trooper of the petition by merely sets the stage for the precise the protection of anonymous speech. e-mail. The Trooper then entered an legal question to be answered: Must anonymous special appearance, chal- a “proper court” under Rule 202 have Trooper: The Role of Personal lenging the petition on the grounds personal jurisdiction over the poten- Jurisdiction that it violated the procedural require- tial defendant?9 The court’s answer to On August 29, 2014, the Texas Supreme ments of Rule 202 and the substantive this question owes almost nothing to Court decided In re Doe a/k/a “Trooper,” protections for anonymous speakers its discussion of Rule 202’s history, a case that many expected to set the under the First Amendment. Procedur- or to any analysis of the text of Rule substantive standards in Texas for ally, the Trooper argued that the Texas 202, which is silent on the issue of unmasking anonymous Internet posters court was not a “proper court” under personal jurisdiction. in defamation cases.2 Trooper involved Rule 202 because it would not be able to Rather, the court bases its deci- a presuit discovery petition by a com- exercise personal jurisdiction over him sion to engraft a personal jurisdiction pany and its CEO under Rule 202 in the anticipated defamation case. Sub- requirement onto Rule 202 in large of the Texas Rules of Civil Procedure. stantively, the Trooper argued that the part on its belief that presuit discov- The petitioners sought the deposition company and CEO were required, and ery in Texas has become too broad of Google in an effort to discover the had failed, to satisfy the Dendrite/Cahill and needs to be reined in, so that identity of an anonymous blogger, “the standards.5 He lost on both issues at the Texas does not become “the world’s Trooper,” who had derided the com- trial court and the intermediate appel- inspector general.”10 In addition, the pany’s software products as “crap” late court. court argues that principles of “fair- and had compared its CEO to Bernie The Texas Supreme Court saw ness” mandate a personal jurisdiction Madoff and Bobo the Clown. Accord- things differently. In a 5–4 split deci- requirement. ing to their Rule 202 petition, the sion, the court reversed and vacated There are two dimensions to this company and CEO anticipated filing the order requiring Google to iden- “fairness” argument. The narrower— defamation and business disparage- tify the Trooper. But instead of using and less persuasive—argument is based ment claims against the Trooper.3 the case to address the First Amend- on Texas procedure. Specifically, the This use of Rule 202 has become ment right to speak anonymously, the court compares the procedural pro- common in Texas. For decades, the court decided the case on procedural tections available to an anonymous grounds. Noting that only a “proper defendant in the presuit context with court” could issue a Rule 202 order, those available in the pending-suit Marc Fuller is with Vinson & Elkins LLP the Texas Supreme Court held that context.11 According to the court, in Dallas, Texas. a “proper court” must have personal under Texas civil procedure, a “Doe”

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. defendant in a pending suit would be the absence of a personal jurisdiction civil procedure rules across jurisdic- “entitled to have the issue of personal requirement under Rule 202 would tions, including in the pending-suit jurisdiction heard and decided before “eviscerate the protections”20 afforded context. If Trooper is correct that due any other matter. Discovery [would be] anonymous defendants in pending process—and, specifically, personal limited to matters directly relevant to suits. In fact, one could argue that jurisdiction concepts—affects the the issue.”12 The court argues that it there is no clear difference between determination of whether a court is would be unfair to deny an anonymous the procedural protections available a “proper court” to issue a discovery potential defendant in the presuit con- to anonymous potential defendants in order, then the decision has broad and text the same protections.13 the presuit context and those available deep significance. The premise of the court’s argument to anonymous actual defendants in This potentially wide application is unassailable: A potential plaintiff the pending-suit context. raises important and difficult questions should not be able to use presuit discov- Which brings us to the broader— of logistics: Is a personal jurisdiction ery as an end-run around procedures and more compelling—part of the requirement in such circumstances that protect parties and witnesses in Trooper court’s “fairness” argument: workable? And is it fair to plaintiffs, pending suits. But the court’s suggestion the court’s recognition that the absence some of whom have legitimate claims that such an incongruity exists regard- of a personal jurisdiction requirement and therefore a right to pursue those ing personal jurisdiction challenges is poses serious due process concerns claims? debatable. True, the Doe defendant in under the Fourteenth Amendment.21 The majority and the dissent the pending suit would have the right On this point, the court is careful to in Trooper could not agree on the to challenge personal jurisdiction at clarify that its holding is based on answers to these questions. The the outset of the case.14 And, true, the Rule 202, not the Fourteenth Amend- majority acknowledged that the plain- Doe defendant would have the right to ment. But the court’s interpretation tiff’s burden to show a prima facie insist that the court decide its special of Rule 202 is thoroughly infused case of personal jurisdiction over an appearance before any other substan- with due process considerations.22 anonymous defendant was a heavy tive motion.15 Yet the plaintiff would For example, the court quotes exten- burden—maybe even “impossible” in have the right under Texas rules to sively from the “prescient words” of some cases.26 The dissent predicted conduct discovery “essential to justify Hanson v. Denckla,23 explaining that much more drastic consequences: his opposition” to the special appear- the Fourteenth Amendment protects ance.16 Like the Federal Rules of Civil against even “minimal” burdens being [T]he Court’s holding does not Procedure, nothing in the Texas rules imposed on a defendant who lacks a reduce or circumscribe pre-suit expressly prohibits a party from using sufficient connection with the forum discovery of anonymous parties that jurisdictional discovery to issue a state.24 in Texas. Instead, it is the end of third-party subpoena aimed at identify- In cases like Trooper, the “burden” such discovery. . . . [W]hen a party ing an anonymous defendant. imposed on the defendant is the adjudi- chooses to conceal his identity, In fact, outside Texas, Doe defen- cation of his or her First Amendment he prevents the trial court from dants’ attempts to quash third-party right to anonymity. Trooper’s real sig- conducting a minimum-contacts subpoenas in pending suits by arguing nificance, therefore, lies in the court’s analysis to determine whether it that the court lacks personal jurisdic- recognition that the adjudication of a may exercise personal jurisdiction over them generally have been speaker’s right to anonymity implicates tion over him.27 unsuccessful. For example, in Bloom- Fourteenth Amendment, as well as berg, L.P. v. Does 1–4, a Doe defendant First Amendment, concerns. Whereas The dissent’s concern—that “a court sought to block the plaintiff from the First Amendment requires that cannot conduct a minimum-contacts obtaining third-party discovery from certain questions be asked about the analysis while wearing a blindfold”28— Google in a trademark case in the substance of the plaintiff’s claim prior has been expressed by several courts.29 Southern District of New York.17 to the unmasking of an anonymous As the dissent recognized, however, The Doe defendant argued that the speaker, the Fourteenth Amendment many of these cases involved copyright court lacked personal jurisdiction, requires that a proper court undertake infringement claims based on the illegal but the court rejected that argument that inquiry. And a court lacking per- downloading of copyrighted videos.30 as premature, stating that, without sonal jurisdiction over the speaker is The Trooper dissent’s reliance the subpoenaed information, it had not a proper court.25 on these types of copyright cases is “little basis” to determine personal In essence, Trooper is not just a misplaced for two important rea- jurisdiction.18 And in Deer Consumer Rule 202 case; it is a due process case. sons. First, the defendant’s right Products, Inc. v. Little, a New York As such, its potential impact may be to anonymity in illegal download- court denied a pseudonymous defen- felt beyond the context of presuit dis- ing cases is negligible, which makes dant’s motion to dismiss for lack of covery, and outside Texas. Although a court’s adjudication of that right personal jurisdiction, holding that the court bases its holding on the much less consequential than when “the facts essential for the court’s “proper court” language of Rule core First Amendment speech is at proper determination of the jurisdic- 202, that concept is not unique to issue. Second, the conduct in ques- tional basis should be determined by this Texas presuit discovery rule. The tion—illegal downloading and file discovery.”19 requirement that discovery be autho- sharing—provides no clear indicia It is therefore difficult to see how rized by a proper court is implicit in of the defendant’s contacts with the

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. forum. In defamation cases, however, their users’ anonymity that they, too, a subpoena duces tecum on Yelp’s knowledge of the defendant’s identity have a “jurisdictional” argument. How- registered agent in Virginia provides will not always be essential to a plain- ever, for these third parties, the issue is jurisdiction for th[e] Court to adju- tiff’s prima facie showing of personal not one of personal jurisdiction but of dicate the motion to compel.”36 This jurisdiction. Courts often find per- the territorial limits of subpoena power. holding improperly conflates three sonal jurisdiction in defamation cases Properly applied, these limits can help distinct concepts: service, personal involving online speech where the shift battles over the discoverability of jurisdiction, and subpoena power. publication at issue targets the forum identifying information to jurisdictions Contrary to the court of appeals’ or reflects the defendant’s knowledge with strong protections for anonymous assumption, proper service of process of the plaintiff’s forum residence. For speech. alone does not confer personal juris- example, in Tamburo v. Dworkin, the In Hadeed, a carpet-cleaning busi- diction.37 The exercise of personal Seventh Circuit held that the plaintiff ness filed suit in Virginia state court jurisdiction still must be consistent had satisfied his prima facie burden against the authors of seven scathing with the state’s long-arm statute and where some of the challenged state- reviews posted on Yelp. Hadeed alleged constitutional due process.38 More- ments included the address of his that the reviewers had falsely repre- over, a company’s designation of a residence in the forum.31 And a per- sented themselves to be customers and registered agent for service of process sonal jurisdiction requirement will that their allegations of shoddy service in the state is generally insufficient, not be an insurmountable obstacle in were defamatory. The day after Hadeed on its own, to establish personal many commenter and reviewer cases, filed suit against the Doe defendants, it jurisdiction.39 where the substance of the challenged issued a subpoena to Yelp, seeking doc- The court of appeals also failed to uments that would identify the authors distinguish between personal jurisdic- of each of the challenged reviews.33 tion and subpoena power. These are The issue is not one of Yelp objected to the subpoena fundamentally different concepts, sub- on substantive and on procedural ject to different limitations. Personal personal jurisdiction grounds, but the district court over- jurisdiction is primarily concerned with ruled its objections and held the a state’s ability to subject a defendant to but of the territorial company in contempt. On appeal, the judgment of its courts. Since Inter- Yelp argued that Hadeed had failed national Shoe, the U.S. Supreme Court limits of subpoena to satisfy its burden under the First has recognized that this power may be Amendment and Virginia law to exercised outside the territorial bor- power. unmask these anonymous review- ders of the forum state, provided there ers.34 The court of appeals rejected are “minimum contacts” between the this substantive argument, hold- defendant and the forum state.40 But online publication will contain suffi- ing that Virginia law governed the subpoena power is governed by the cient indicia of the defendant’s forum inquiry and that Hadeed has sat- “strict territorial approach” of Pennoyer contacts to allow a plaintiff to satisfy isfied all of the relevant statutory v. Neff.41 Courts and commentators its prima facie burden. requirements. Procedurally, Yelp have consistently recognized that sub- In short, it is premature to accept argued that Virginia courts did not poena power ends at the state borders.42 the Trooper dissent’s conclusion that have subpoena power over it, based There is no such thing as “long-arm” a personal jurisdiction requirement in on the company’s residence in San subpoena power, and a court’s ability an anonymous speech case is inher- Francisco, California. The court of to exercise personal jurisdiction over a ently unworkable. Just as they have appeals also rejected this argument, nonresident company does not mean with the First Amendment right to holding that Hadeed’s service of the that it has subpoena power to compel anonymity, courts must now grap- subpoena on Yelp’s registered agent that company to produce documents ple with the Fourteenth Amendment in Virginia subjected it to the sub- located outside the state.43 These ter- concerns highlighted by the Trooper poena powers of Virginia courts.35 ritorial limits on a court’s subpoena majority, hopefully arriving at a stan- In its appeal to the Virginia Supreme power cannot be avoided by serving the dard that adequately protects the Court, Yelp has again raised both subpoena on the registered agent of a anonymous defendant’s due process arguments. Its briefs, and the briefs nonresident witness.44 interests while allowing the plaintiff of supporting amici, have focused pri- In short, the court of appeals’ hold- a reasonable chance of satisfying its marily on the First Amendment issue. ing on Yelp’s procedural argument is burden. But to reach this issue, the Virginia doubly wrong. First, Hadeed’s service Supreme Court will have to consider of the subpoena on Yelp’s registered Hadeed: The Limits of Subpoena first whether the district court erred in agent in Virginia does not provide Vir- Power asserting subpoena power over a non- ginia courts with jurisdiction. And Just as Trooper gives anonymous resident service provider. There is a even if Hadeed could show that Yelp speakers another arrow in their quiver, very good argument that it did. has sufficient contacts with Virginia the pending Virginia Supreme Court The court of appeals summarized to justify personal jurisdiction, there case, Yelp, Inc. v. Hadeed Carpet Clean- its holding on this procedural issue is no legal basis for a Virginia court ing, Inc.,32 reminds third-party online as follows: “[W]e agree with the [dis- to exercise extraterritorial subpoena service providers seeking to protect trict] court’s holding that ‘service of jurisdiction over Yelp by requiring it

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. to produce documents located outside recently limited general jurisdiction 4. Prior to 1999, two separate rules the state. Accordingly, Hadeed must such that, absent extreme circum- governed presuit discovery in different involve the California courts if it seeks stances, a company is not subject to contexts. Rule 187 permitted prospective documents from Yelp, a California general jurisdiction outside the state litigants to perpetuate testimony through resident.45 of its principal place of business, or presuit depositions—a common practice There are sound policy reasons “home.”49 Indeed, the concept of across many states. Rule 737 provided for for requiring plaintiffs like Hadeed to universal “subpoena jurisdiction” a “bill of discovery,” which had its roots follow well-established subpoena pro- based on a service provider’s virtual in English common law. Rule 737 was cedures when attempting to secure omnipresence harkens back to the governed by a broad and loose standard, documents from a nonresident online long-discredited line of early Internet essentially permitting discovery consis- service provider. Unless and until the cases that found personal jurisdiction tent with equitable principles. In 1999, U.S. Supreme Court weighs in on the in any forum in which the defendant’s Rules 187 and 737 were repealed, and First Amendment requirements for website was accessible.50 In short, a Rule 202 was introduced. This new rule unmasking anonymous online speak- Virginia court’s direct exercise of sub- combined both types of presuit discov- ers, different courts will continue to poena power over Yelp would extend ery—the broad “bill of discovery” and the have different tests. Even among the that power well beyond the territorial comparatively narrower “perpetuation of majority of courts that have embraced limits of the state, as well as the limits testimony.” Id. at *1–2. the Dendrite/Cahill approach, varia- of due process. 5. See Dendrite, 775 A.2d at 760; Doe tions remain. Indeed, even Dendrite v. Cahill, 884 A.2d 451, 454 (Del. 2005); and Cahill differ in some respects. Conclusion see also In re Does 1–10, 242 S.W.3d 805, Plaintiffs with dubious claims should It remains to be seen whether the Vir- 820–21 (Tex. App. 2007) (endorsing the not be able to forum shop their way to ginia Supreme Court will adhere to the Cahill test). a jurisdiction with weak protections traditional limits of subpoena power 6. Trooper, 2014 WL 4783574, at *4. for anonymous speech, and online or wade into a due process dilemma. 7. Id. at *5. service providers ought to know the Similarly, it remains to be seen whether 8. Id. at *1–2. circumstances under which they will be Trooper’s personal jurisdiction require- 9. Id. at *3. forced to disclose their users’ identify- ment will catch on in other courts, 10. Id. at *4–5. ing information. where the reasoning will need to be 11. Id. at *3. In addition, the exercise of uni- based explicitly on the demands of 12. Id. (footnote omitted). versal subpoena power over online due process instead of the “proper 13. Id. (“To allow discovery of a poten- service providers raises serious due court” requirement of Rule 202. But tial claim against a defendant over which process concerns. Even though non- both cases serve as a helpful reminder the court would not have personal juris- party witnesses are not at risk of that, as attention remains focused on diction denies him the protection Texas being subjected to the judgment of the substantive protections of the procedure would otherwise afford.”). a court, their compliance with dis- First Amendment, potentially pow- 14. Tex. R. Civ. P. 120a (providing that covery orders obviously imposes a erful procedural arguments remain a personal jurisdiction challenge must burden on them. A deposition sub- available for online speakers and the be filed and decided before any other poena may require the witness to service providers that would seek to motion). travel to the forum state, and even protect their anonymity. 15. Tex. R. Civ. P. 120a(2). a document subpoena may neces- 16. Tex. R. Civ. P. 120a(3); In re Stern, sitate the hiring of local counsel. In Endnotes 321 S.W.3d 828, 839 (Tex. App. 2010). addition, as Hadeed demonstrates, 1. See, e.g., SaleHoo Grp., Ltd. v. ABC 17. No. 13 Civ. 01787(LGS), 2013 WL nonparties who do not comply with a Co., 722 F. Supp. 2d 1210, 1214 (W.D. 4780036, at *4 (S.D.N.Y. June 26, 2013). court’s discovery orders are at risk of Wash. 2010) (“The case law, though still 18. Id.; see also First Time Videos, being held in contempt, which could in development, has begun to coalesce LLC v. Does 1–76, 276 F.R.D. 254, 259 include a fine or other sanction.46 around the basic framework of the test (N.D. Ill. 2011) (same). But see Sinclair Yet it is not clear that the exercise articulated in Dendrite Int’l, Inc. v. Doe v. TubeSockTedD, 596 F. Supp. 2d 128, of extraterritorial subpoena power No. 3, 775 A.2d 756 (N.J. Super. Ct. App. 133 (D.D.C. 2009) (“[T]here is likewise no over service providers like Yelp would Div. 2001).”); Lyrissa Barnett Lidsky, basis to believe that Sinclair can estab- satisfy a “minimum contacts” test. It Anonymity in Cyberspace: What Can We lish personal jurisdiction over defendants; is well established that minimum con- Learn from John Doe?, 50 B.C. L. Rev. certainly the complaint pleads no ground tacts come in two forms: specific and 1373, 1376–77 (2009) (“Although the law for personal jurisdiction in the District of general jurisdiction.47 Specific juris- governing anonymous speech is still devel- Columbia.”). diction requires a connection between oping, courts are beginning to converge 19. 938 N.Y.S.2d 767, 775 (Sup. Ct. the forum, the party, and the claims on a set of standards to balance the right 2012). being adjudicated.48 But nonparty to speak anonymously with the rights of 20. In re Doe a/k/a “Trooper,” No. witnesses are not facing any claims; those injured by defamatory anonymous 13-0073, 2014 WL 4783574, at *3 (Tex. they are merely repositories of infor- speech.”). Aug. 29, 2014). mation relating to the claims being 2. No. 13-0073, 2014 WL 4783574 (Tex. 21. Id. at *3–4. adjudicated by the parties to the case. Aug. 29, 2014), reh’g denied (Oct. 3, 2014). 22. Id. at *4 (“Whether due process And the U.S. Supreme Court has 3. Id. at *1. affords protection in these circumstances

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. is an issue that has not previously arisen 35. Hadeed, 752 S.E.2d at 566–69. [the corporate witness] is subject to the because, as we explain below, no other 36. Id. at 569. personal jurisdiction of Florida courts American jurisdiction allows pre-suit dis- 37. See, e.g., D’Onofrio v. Il Mattino, under the long-arm statute, this does covery as broadly as Texas does.”). 430 F. Supp. 2d 431, 439 (E.D. Pa. 2006) not mean that [it] is required to respond 23. 357 U.S. 235, 250–51 (1958). (“[P]roper service of process alone is not to a subpoena to appear and/or to pro- 24. Trooper, 2014 WL 4783574, at *4 sufficient to confer personal jurisdiction duce documents in a Florida court in a (quoting Hanson, 357 U.S. at 250–51) upon a court.”); During v. Quoico, 973 criminal case in which it is not a party.”); (“However minimal the burden of defend- N.E.2d 838, 845 (Ohio Ct. App. 2012) Phillips Petroleum Co. v. OKC Ltd. ing in a foreign tribunal, a defendant may (“Because [defendant] is a nonresident, P’ship, 634 So. 2d 1186, 1188 (La. 1994) not be called upon to do so unless he has proper service of process alone does not (“Whereas the long-arm statute extends the ‘minimal contacts’ with that State that vest a court with personal jurisdiction Louisiana’s personal jurisdiction over are a prerequisite to its exercise of power over her.”). persons or legal entities beyond Louisi- over him.”). 38. During, 973 N.E.2d at 845. ana’s borders, there is no similar authority 25. Id. 39. See Moni Pulo Ltd. v. Trutec Oil & for extending the subpoena power of a 26. Id. at *5. Gas, Inc., 130 S.W.3d 170, 175 n.7 (Tex. Louisiana court beyond state lines to 27. Id. at *8 (Lehrmann, J., dissenting). App. 2003) (“Although Texas law requires command in-state attendance of [out-of- 28. Id. at *7. nonresident corporations to appoint a state] nonparty witnesses.”). 29. See, e.g., AF Holdings, LLC v. registered agent with a Texas address, they 44. See, e.g., Ulloa, 133 So. 3d at 920 Does 1–162, No. 11-23036-Civ., 2012 WL remain nonresidents.”). (“The registered agent has a limited role, 488217, at *4 (S.D. Fla. Feb. 14, 2012) 40. Int’l Shoe Co. v. Washington, 326 and is not a corporate employee or cus- (holding that the court was “without all U.S. 310, 316–17 (1945). todian of corporate records.”); Phillips, of the information necessary to evaluate 41. See Daimler AG v. Bauman, 134 S. 634 So. 2d at 1188 & n.6 (rejecting argu- any personal jurisdiction challenges, in no Ct. 746, 753–54 (2014) (citing Pennoyer ment that nonparty, “having qualified to small part because this Doe Defendant v. Neff, 95 U.S. 714, 720 (1877)) (“The do business in this state and having des- and others are anonymous—a problem authority of every tribunal is necessarily ignated an agent for service of process, to which the instant discovery is specifi- restricted by the territorial limits of the is the equivalent of a ‘resident’ of Loui- cally addressed”); Call of the Wild Movie, State in which it is established.”). siana, thus subjecting the corporation LLC v. Does 1–1,062, 770 F. Supp. 2d 42. See, e.g., Syngenta Crop Prot., Inc. to the subpoena power of a Louisiana 332, 345–48 (D.D.C. 2011) (“Without v. Monsanto Co., 908 So. 2d 121, 127 court”); Syngenta, 908 So. 2d at 128 (find- additional information, the Court has no (Miss. 2005) (finding no statutory author- ing service of subpoena on nonresident way to evaluate the defendants’ jurisdic- ity that would allow court to compel company’s registered agent ineffective to tional defenses.”); London-Sire Records, nonresident nonparty to produce docu- require company to produce documents Inc. v. Doe 1, 542 F. Supp. 2d 153, 180–81 ments in forum state); Ryan W. Scott, located outside the state); Reader’s Digest (D. Mass. 2008) (noting that prediscov- Minimum Contacts, No Dog: Evaluating Ass’n v. Dauphinot, 794 S.W.2d 608, 609– ery analysis of personal jurisdiction over Personal Jurisdiction for Nonparty Dis- 10 (Tex. App. 1990) (same). anonymous defendant is premature); Sony covery, 88 Minn. L. Rev. 968, 984 (2004) 45. See, e.g., Cal. Civ. Proc. Code Music Entm’t, Inc. v. Does 1–40, 326 F. (“Most states retain strict limits on the §§ 2029.100 et seq. Supp. 2d 556, 567 (S.D.N.Y. 2004) (same). reach of the subpoena power, holding that 46. Yelp, Inc. v. Hadeed Carpet Clean- 30. Trooper, 2014 WL 4783574, at *7. subpoena service cannot reach nonpar- ing, Inc., 752 S.E.2d 554, 558 (Va. Ct. App. 31. 601 F.3d 693, 697 (7th Cir. 2010). ties found outside the state.”); Rhonda 2014) (holding Yelp in civil contempt, But see Johnson v. Arden, 614 F.3d 785, Wasserman, The Subpoena Power: Pen- assessing a $500 fine, and ordering Yelp to 796–97 (8th Cir. 2010) (finding no per- noyer’s Last Vestige, 74 Minn. L. Rev. pay $1,000 in Hadeed’s attorneys’ fees). sonal jurisdiction over nonresidents who 37, 39 (1989) (“Regardless of the distance 47. See, e.g., Goodyear Dunlop Tires posted critical statement online about between the witness and the courthouse, Operations, S.A. v. Brown, 131 S. Ct. plaintiffs and their cat-breeding business, the amount of contact the witness has 2846, 2850–51 (2011). despite fact that the posting referred to with the state, or the need for live testi- 48. Id. at 2851. plaintiffs’ business being located in the mony, the states uniformly and steadfastly 49. See Daimler AG v. Bauman, 134 S. forum state). have refrained from exercising extraterri- Ct. 746, 760–61 (2014). 32. 752 S.E.2d 554 (Va. Ct. App. 2014), torial subpoena power.”). 50. Compare Inset Sys., Inc. v. Instruc- appeal granted, No. 140242 (Va. Sup. Ct. 43. See, e.g., Colo. Mills, LLC v. tion Set, Inc., 937 F. Supp. 161, 164–65 May 29, 2014). SunOpta Grains & Foods Inc., 269 P.3d (D. Conn. 1996) (finding jurisdiction 33. Id. at 558. 731, 733 n.3, 734 (Colo. 2012) (“Nor have over Internet advertiser based on ability 34. Id. Unlike most jurisdictions, in we found any authority applying our of forum resident to access advertiser’s which the right to anonymous speech is a long-arm statute, or the long-arm stat- content), with Shamsuddin v. Vitamin matter of constitutional common law, Vir- ute of any other state for that matter, to Research Prods., 346 F. Supp. 2d 804, ginia has a statutory test for identifying enforce a civil subpoena against an out- 808 (D. Md. 2004) (referring to Inset anonymous online speakers. See Va. Code of-state nonparty.”); Ulloa v. CMI, Inc., as “an early case which is now largely Ann. § 8.01-407.1. 133 So. 3d 914, 920 (Fla. 2013) (“Even if discredited”).

February 5-7, 2015 Fairmont Scottsdale Princess Scottsdale, AZ

Plenaries: • Press Sources & Government Secrets–Striking the Proper Balance • Native Advertising & the Illusive Line Between Commercial and Core Speech • Cox Broadcasting Corp. v. Cohn–a Retrospective and its Impact on the “Right to be Forgotten”

Keynote Speaker: Mary Beth Tinker (Ms. Tinker was one of the plaintiffs in Tinker v. Des Moines Independent School District, recognizing public school students’ freedom of speech)

Plus: 15 “Hot Topics” Sessions; Tennis & Fun in the Sun!

$5 million in presumed damages, $1 mil- should urge more state and federal for plaintiffs such as this petitioner gra- lion in emotional distress, and $1 million courts to follow their example. tuitous awards of money damages far in in “future economic losses” by the jury).8 excess of any actual injury.”18 In theory, presumed damages are Supreme Court Constitutionalizes The Court’s 5–4 decision in Gertz designed to help a plaintiff recover Presumed Damages in Gertz held that private figure plaintiffs who damages without proof of reputa- Plaintiffs love to cite Gertz v. Robert establish mere negligence are precluded tional harm because it is difficult to Welch, Inc.12 as their ticket to pre- from recovering presumed damages.” prove a negative—that a publication sumed damages. But Gertz contains The Court opined that the states’ inter- of a horrible lie accusing the plaintiff hidden gems for defense counsel. The est in compensating “private individuals of criminal, professional, or sexual Supreme Court made clear in Gertz for injury to reputation . . . extends no conduct (categorized as slander or that presumed damages are subject further than compensation for actual libel per se)9 has caused clients and to review under the First Amend- injury.”19 Based on the First Amend- friends to stop calling.10 But court- ment, and are per se unconstitutional ment, “[s]tates may not permit recovery blessed financial windfalls are hardly in some circumstances.13 Some juris- of presumed . . . damages . . . when necessary for a state supreme court dictions and legal commentators have liability is not based on a showing of chief justice or well-connected casino interpreted Gertz as abolishing pre- knowledge of falsity or reckless disre- billionaire to vindicate their names, sumed damages altogether or when gard for the truth.”20 when they have plenty of other public brought against media defendants Nearly a decade after Gertz, the venues and resources to create posi- involving speech of public concern, Supreme Court issued its confusing tive public opinion about themselves. as discussed below. The door remains plurality opinion in Dun & Bradstreet, This article argues that presumed open for these First Amendment Inc. v. Greenmoss Builders, Inc.21 The damages for public officials and pub- arguments. Court interpreted Gertz as allowing lic figures violate the First Amendment. The issue of presumed damages was private individuals to recover presumed These multimillion-dollar presumed not raised by the parties when plain- damages against nonmedia defendants damages awards chill speech and pun- tiff Elmer Gertz, a civil rights attorney, based on a showing of simple negli- ish unpopular speakers who dare sought review by the Supreme Court. gence when the speech relates to private criticize government officials and public Remarkably, the Court decided sua matters as opposed to speech about a figures—something the First Amend- sponte to constitutionalize presumed matter of public concern.22 ment is supposed to guard against. damages without “the benefit of briefs Legal scholars and courts have In addition, presumed damages in and argument” on the presumed dam- debated about the limits on presumed defamation per se11 cases violate the ages issue.14 The Court delivered an damages created by Gertz and Dun & due process clause of the Fourteenth unexpected broadside to the centuries- Bradstreet. Second Circuit Judge Rob- Amendment. Punitive damages are old common-law doctrine of presumed ert A. Sack states in his treatise that now subject to a due process analysis; damages. It described presumed dam- “Gertz eliminated the recoverability presumed damages should be as well. ages as “an oddity of tort law” that of presumed damages, at least, at the Indeed, presumed damages are much instructs jurors that “injury is presumed time, in media cases about matters more arbitrary than punitive damages. from the fact of publication,” giving of public concern.”23 Judge Sack has Presumed damages are not tied to any juries the power to “award substan- observed that “the Supreme Court has evidence, give jurors unbridled power, tial sums as compensation for supposed never stated . . . affirmative[ly] . . . that and leave trial and appellate courts damage to reputation without any proof presumed damages may be recovered” unable to conduct any meaningful that such harm actually occurred.”15 under the First Amendment “if actual review. Moreover, they are specu- The Court cautioned that presumed malice is proven.24 Thus, Gertz and lative, arbitrary, grossly excessive, damages threaten First Amendment Dun & Bradstreet leave the door open and compulsory. Presumed dam- protections for free speech and press to arguing that the First Amendment ages, therefore, violate fundamental in two ways: First, the “largely uncon- does bar presumed damages in media notions of fairness. trolled discretion of juries to award cases involving public official/public Arkansas, Kansas, Maryland, Mis- damages where there is no loss” car- figure plaintiffs, even if they prove souri, New Mexico, and Tennessee ries the “potential . . . to inhibit the actual malice. already have eliminated presumed dam- vigorous exercise of First Amendment The Restatement (Second) of Torts ages in defamation per se cases based freedoms.”16 Second, the rule of pre- broadly definesGertz ’s First Amend- on the First Amendment, due process, sumed damages “invites juries to punish ment safeguards against presumed and public policy grounds, as discussed unpopular opinion rather than to com- damages: “The Supreme Court held below. Iowa has barred presumed dam- pensate individuals for injury sustained that the common law rule of presumed ages against media defendants, and by the publication of a false fact.”17 The damages is incompatible with the First New Jersey has restricted presumed Court expressly found that “the States Amendment freedoms and therefore damages. Media defense attorneys have no substantial interest in securing unconstitutional.”25 The Restatement’s

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. “general damages” rule states that presumed damages entirely under damages for defamation per se. But “[o]ne who is liable for a defamatory Gertz and the First Amendment, most have done so solely in the context communication is liable for the proved, but the state also requires a defama- of private figure/private concern cases actual harm caused to the reputation tion plaintiff to prove actual reputation involving nonmedia defendants.40 All of the person defamed.”26 However, the harm as a prerequisite to “parasitic” of these jurisdictions are ripe for First Restatement refuses to take a stand on emotional distress damages.32 Amendment challenges to presumed whether the First Amendment allows a Missouri and New Mexico have damages claims by public official or plaintiff to recover presumed damages both concluded that Gertz abolished public figure plaintiffs suing media even with proof of actual malice, and presumed damages under all circum- defendants over speech about a matter posits that “there is little reason to con- stances, and rejected the view that of public concern. clude that the constitutional limitation Dun & Bradstreet permitted presumed on recoverable damages will be con- damages in some cases. The Missouri Presumed Damages Violate the First fined” to the circumstances ofGertz .27 Supreme Court concluded that a total Amendment Notwithstanding the Supreme ban was necessary to avoid “unjus- Although the Supreme Court has Court’s failure to state affirmatively that tifiable inequities for plaintiffs and never stated “affirmative[ly]” that the presumed damages might be permit- defendants alike” and that all defa- First Amendment allows public offi- ted with a showing of actual malice, mation plaintiffs “must prove actual cials and public figures to recover lower “courts have generally assumed damages in all cases.”33 The New presumed damages in media cases if that proof of ‘actual malice’ permits an Mexico Supreme Court held that the actual malice is proven,41 the Court award of presumed damages.”28 libel per se/per quod distinction was has made clear that the First Amend- It is time to start challenging the “outmoded” and barred under Gertz, ment creates additional burdens for assumption that presumed damages and declined to resurrect presumed public officials and public figures suing by public figures and public officials damages after Dun & Bradstreet.34 reporters over speech of public concern, would withstand First Amendment In contrast, when the Arkansas scrutiny. Gertz made clear that pre- Supreme Court “abolished” presumed damages must be tested against sumed damages entirely, it relied on It is time to start the First Amendment protections for an implicit due process analysis.35 free speech and press, and that “the The court relied heavily on an arti- challenging the States have no substantial interest in cle by media law Professor David A. securing for plaintiffs . . . gratuitous Anderson.36 Professor Anderson, assumption that awards of money damages far in excess who is now a professor at the Uni- of any actual injury.29 Surely that must versity of Texas, is highly critical of presumed damages be the case for public official and pub- the wide discretion given to juries to lic figure plaintiffs who suffer no actual decide presumed damages. His arti- by public figures reputational or economic harm and still cle has been quoted by many courts recoup millions. and commentators, especially the and public officials portions that describe the “evils” of A Minority of States Have Abolished presumed damages as the “absence of would withstand or Limited Presumed Damages criteria given to juries to measure the Eight states have already eliminated amount the injured party ought to First Amendment or restricted presumed damages as recover, the danger of juries consider- unconstitutional or unworkable “rel- ing impermissible factors such as the scrutiny. ics” of the past. defendant’s wealth or unpopularity, Tennessee, Maryland, Kansas, and and the lack of control on the part even if those constitutional burdens Missouri have interpreted Gertz as of trial judges over the size of jury curb the plaintiffs’ rights under centu- barring presumed damages in all def- verdicts.”37 ries-old common-law rules. amation cases. In these jurisdictions, Two other jurisdictions have In New York Times Co. v. Sullivan, the defamation and slander plaintiff restricted presumed damages. Iowa the Supreme Court changed the com- must plead and prove injury from the has barred libel per se and presumed mon law when it held that the First allegedly defamatory words. Tennes- damages in defamation cases against Amendment required public official see held that “presumed damages are media defendants, based on Gertz and defamation plaintiffs to prove actual no longer permissible” under any cir- the First Amendment.38 New Jersey malice, adding this extra burden to cumstance, and that Gertz had created limited presumed damages awards to further this nation’s “profound . . . com- a “uniform requirement for proof of “nominal” damages in private figure mitment to the principle that debate actual damages” that “obliterate[ed]” plaintiffs/private speech cases, based on public issues should be uninhib- the “illogical distinctions” of libel per se on an implicit due process analysis.39 ited, robust, and wide-open, and that and per quod, which were mostly “rel- it may well include vehement, caus- ics from centuries past.”30 Maryland A Majority of States Have Retained tic, and sometimes unpleasantly sharp also interpreted Gertz as completely Presumed Damages attacks on government and public offi- “forbid[ding] presumed damages.”31 A majority of states have retained the cials.”42 In Gertz, the Court held that Not only has Kansas abolished common-law doctrine of presumed the First Amendment changed the

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. common-law defamation rules by pro- news organization to a claim for libel danger that the “system of liability hibiting recovery without proof of fault per se. Multimillion-dollar presumed for defamatory falsehood [will] inhibit and restricted the recovery of presumed damages verdicts awarded to public the vigorous exercise of First Amend- damages.43 officials encourage other public offi- ment freedoms,” and “invite[] juries to In Philadelphia Newspapers, Inc. v. cials to follow suit, literally.47 punish unpopular opinion.”52 Hepps, the Supreme Court cited New It is also chilling to the media These multimillion-dollar presumed York Times and Gertz when it decided, when a jury awards a powerful pub- damages awards are indeed “an oddity once again, that the First Amendment lic figure such as Wynn $17 million in of tort law,” are outdated, and violate required “the common-law rule [to be] presumed damages, plus $3 million the First Amendment. Jury awards for superseded by a constitutional rule.”44 in “mental anguish”/“actual dam- presumed damages of $5 million or In Hepps, the Court held that the First ages,” without requiring him to prove $17 million are “largely uncontrolled,” actual reputational harm. Reporters are not narrowly tailored to protect a will think twice about reporting news substantial state interest, invite friv- Multimillion-dollar about Wynn and other public figures. olous litigation, “punish unpopular Wynn’s only evidence of harm was his opinion rather than compensate indi- presumed damages own self-serving testimony concerning viduals for injury sustained,” chill First his “mental anguish” about the harm Amendment free speech and free press awards are indeed that might befall his employees if his rights, and unnecessarily exacerbate casinos suffered harm, and testimony “the danger of media self-censorship,” an oddity of tort law by a gaming commission expert about as described in Gertz.53 It is time for all the possible investigations that courts to conclude once and for all that and are outdated. gaming authorities might have taken presumed damages present a severe in response to Francis’s statement.48 unconstitutional burden on defen- Amendment required the Court to toss Because Wynn was not required to dants when sought by public official out the old common-law burden requir- present any evidence of any harm to or public figure plaintiffs claiming libel ing defamation defendants to prove his reputation, there was no way for per se over speech of public concern, truth in cases involving media defen- the jury to measure whether Wynn especially against media defendants. dants and speech of public concern, was actually shunned by friends, busi- The First Amendment and New York and switched the burden to plaintiffs: ness associates, or potential clients. Times, Gertz, and Hepps require the “We believe that the common law’s rule It is also possible that the Los imposition of a burden on public offi- on falsity—that the defendant must Angeles jury punished Francis because cial/public figure plaintiffs to prove bear the burden of proving truth—must he was an unpopular defendant, actual reputational harm to recover similarly fall here to a constitutional which would violate the First Amend- compensatory damages when suing requirement that the plaintiff bear the ment. Indeed, the California Court over speech of a public concern, and burden of showing falsity, as well as of Appeal noted that Francis “gained only after reputational harm is proved fault, before recovering damages.”45 notoriety for creating an adult enter- can the plaintiff seek “parasitic” emo- Under New York Times and its tainment enterprise which included tional distress damages, as the Kansas progeny, the First Amendment should ‘Girls Gone Wild’ videos and DVD’s Supreme Court held in Gobin.54 be read as requiring public official which featured ‘young, and sometimes and public figure plaintiffs suing over underage, women in states of partial Presumed Damages Violate Due speech of public concern to prove rep- or total nudity, and sometimes per- Process utational harm and as barring them forming more explicit sex acts.’”49 If The Supreme Court has held that from recovering any presumed dam- the jury used presumed damages to punitive damages must be subjected ages awards. Without such a burden, punish Francis for his volatile person- to constitutional scrutiny to ensure plaintiffs like Justice Thomas win a ality or sexually oriented business, it that punitive jury awards do not vio- promotion to chief justice of the Illi- would be an impermissible use of pre- late the due process clause of the nois Supreme Court and a $7 million sumed damages to punish “unpopular Fourteenth Amendment. “One must jury award comprised of $5 million opinion rather than to compensate concede,” Justice Blackmun wrote for in presumed damages, $1 million for individuals for injury sustained by the majority in Pacific Mutual Life “embarrassment, mental suffering, the publication of a false fact,” as the Insurance Co. v. Haslip, “that unlim- and humiliation,” and $1 million in Supreme Court warned in Gertz.50 ited jury discretion—or unlimited “future economic loss.”46 Both Justice The Court correctly held in Gertz judicial discretion for that matter—in Thomas’s $7 million jury award and that the “state interest in compensat- the fixing of punitive damages may his reduced award of $4 million violate ing private individuals for injury to invite extreme results that jar one’s the First Amendment because multi- reputation . . . extends no further than constitutional sensibilities.”55 Jus- million-dollar court awards are per se compensation for actual injury.”51 tice Blackmun cautioned that just chilling to news reports about power- The Court also acknowledged that “because punitive damages have been ful public officials. Indeed, most news presumed damages in defamation recognized for so long,” they are not reports about public officials focus on cases provide “largely uncontrolled immune from constitutional review.56 their fitness in their “business, trade, discretion of juries to award dam- “[N]either the antiquity of a practice profession, or office,” which opens the ages where there is no loss,” create the nor the fact of steadfast legislative

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. and judicial adherence to it through excessive” because it was 500 times ought to recover is referred the centuries insulates it from con- the actual harm—a more extreme to the sound discretion of the stitutional attack.”57 Perhaps in a ratio than the 1:4 or 1:10 ratio jury.” As a result, “the process foreshadowing of the Joe Francis between compensatory and punitive of fixing the amount of pre- empire, Justice Blackmun said that damages it had discussed in previous sumed damages is inherently the Supreme Court was “once again cases—and remanded the case back irrational.”69 . . . concern[ed] about punitive dam- to Alabama.64 ages that ‘run wild.’”58 In Exxon Shipping Co. v. Baker, Juries also may be tempted to This same due process scrutiny the Supreme Court again decried consider factors, such as the should be applied to the common-law the increasing size and unpredictable defendant’s unpopularity, that doctrine of presumed damages, even nature of punitive damages and the have nothing to do with any if the doctrine is deeply entrenched in lack of relationship to the plaintiff’s harm caused to the plaintiff. our judicial and legislative branches. actual harm.65 The Court held that The huge size of some pre- In Haslip, the Court found that Ala- the ratio of compensatory to punitive sumed damages awards—even bama jury instructions satisfied due damages should be 1:1 in maritime when there is a complete lack of process because they did not give cases. The Court majority signaled evidence of actual harm—sug- jurors “unlimited discretion” and that it probably would apply that gests that they function as de “explained that their imposition was same 1:1 ratio to tort cases as well.66 facto punitive damages.70 not compulsory.”59 The Court also The Court justified its drastic limita- found that Alabama met due process tion on punitive damages as necessary New Jersey is one jurisdiction that requirements by adopting posttrial “to protect against the possibility has implicitly recognized large pre- procedures requiring courts to exam- (and the disruptive cost to the legal sumed damages awards violate due ine jury awards to ensure “punitive system) of awards that are unpredict- process. The New Jersey Supreme damages awards are not grossly out able and unnecessary.”67 Court recently held that presumed of proportion to the severity of the The due process guideposts damages must be limited to nominal offense and have some understand- required under Haslip and Gore are damages and compensatory dam- able relationship to compensatory utterly lacking for presumed damages must be established with actual damages,” which created “meaning- ages. There is no meaningful guide in harm to reputation, pecuniary or ful and adequate review by the trial jury instructions. Some jurisdictions, otherwise.71 court.”60 such as California, instruct jurors that Yale University argued in a libel In BMW of North America, Inc. the plaintiff is “entitled” to a pre- per se case in a U.S. district court in v. Gore,61 Justice Breyer opined in sumed damages award and that they North Carolina that presumed dam- his concurrence that this due process “must” award at least nominal pre- ages are unconstitutional under the scrutiny, “itself harkening back to the sumed damages. These instructions due process clause because they are Magna Carta, arises out of the basic for presumed damages create a cat- “inherently speculative and irra- unfairness of depriving citizens of egory of “compulsory damages” that tional,” invite jury awards “based life, liberty, or property, through the the Supreme Court cautioned would on emotion and prejudice,” and application, not of law and legal pro- create due process problems.68 “offend our fundamental notions of cesses, but of arbitrary coercion.” He There is also little guidance for fairness.”72 Calling Yale’s due pro- explained that due process scrutiny is trial courts and appellate courts. cess argument “novel,” the court necessary to ensure that damages are When the size of the presumed dam- “concede[d] that, as a policy matter, fairly and uniformly applied to “sim- ages award is left to the unbridled reasons exist to disfavor presumed ilarly situated persons” and not the discretion of the jury, it is difficult damages” and that “there may be result of a jury’s “caprice,” and that for a court to determine if the jury’s room for debate concerning the wis- the civil court rules governing dam- award is “grossly excessive.” If there dom of presumed damages.”73 But the ages must provide “some kind of are no actual damages awarded for district court rejected the due process constraint upon a jury or court’s dis- out-of-pocket losses or actual repu- challenge, observing that the Supreme cretion, and thus protection against tational harm, the court is unable Court “has had ample opportunity to purely arbitrary behavior” by jurors to conduct an analysis to measure strike down presumed damages and and courts alike.62 The due process proportionality of the presumed dam- has not done so,” while admitting that clause, therefore, “prohibits a State ages. There can be no ratio of 1:10 or the Court has not considered a due from imposing a ‘grossly excessive’ 1:4 or 1:1 described in Haslip, Gore, process challenge to presumed dam- punishment on a tortfeasor.”63 and Exxon Shipping. ages.74 “Perhaps the Supreme Court In Gore, the Supreme Court held As scholars have explained: will one day decide to find presumed that a $2 million punitive damages damages unconstitutional but obvi- award (reduced from $4 million) vio- Judges cannot give meaningful ously that has not yet occurred.”75 lated due process because it was instructions when the substan- However, the district court did not “grossly excessive” compared to the tive law concedes that “there is address Haslip, and the Supreme $4,000 in actual harm awarded to the no legal measure of damages in Court had not yet decided Gore or plaintiff. The Court concluded that actions for these wrongs. The Exxon Shipping at the time of the dis- the reduced award was still “grossly amount which the injured party trict court’s 1993 decision.

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Given the inherent “unlimited jury some point in the future, his applica- vacate the jury’s $300,000 presumed discretion” and “unlimited judicial tion would be hurt by the newspaper damages award, despite rebuttal evi- discretion” in fixing presumed dam- report. The highly speculative testi- dence of the plaintiff’s “excellent” ages, the “extreme” multimillion-dollar mony won Justice Thomas $1 million reputation.83 The court held that “the awards despite the utter lack of repu- from the jury in “future economic law recognizes a right to recover for tational or economic harm, and the losses.” The trial court later vacated mental anguish” for presumed dam- “compulsory” jury instructions, there the future economic losses award as ages—even if the defendant’s rebuttal is no question that presumed damages “purely speculative,” but not before evidence “negated any injury to his “jar one’s constitutional sensibilities” the defendants incurred significant reputation.”84 and have “run wild.76 expense on economic damages experts Courts also may block a defendant at trial and Justice Thomas scored entirely from discovery of powerful Presumed Damages Create Evidentiary sympathy points with the jury.78 impeachment evidence to rebut pre- Barriers that Violate Due Process Justice Thomas also won a $5 sumed damages. This happened in In some jurisdictions, plaintiffs argue million jury award for presumed rep- in a libel per se case in Kansas state that presumed damages are not arbi- utational damages despite the fact court. The plaintiff said he was not trary or unfair because the defendant that every third-party witness testified seeking any damages against the can present rebuttal evidence showing that the plaintiff did not suffer any newspaper for actual reputational the plaintiff suffered no injury at all. loss in reputation caused by the arti- harm or economic loss, only for emo- In practice, however, the rebuttal evi- cle, “still enjoys a good reputation,” tional distress/presumed reputational dence doctrine does not work. and earned a promotion on the high damages. The trial court agreed to The problem is that courts allow court. The jury seemed to ignore this block discovery and trial testimony plaintiffs to introduce purely spec- rebuttal evidence. The trial court held about the plaintiff’s lengthy criminal ulative evidence that is difficult to that Justice Thomas did “not need record, civil litigation, and economic rebut, while barring defendants from evidence” for a presumed “loss of status. The jury awarded the plain- obtaining discovery on the plaintiff’s reputation, thereby making the deter- tiff $100,000 “for claimed harm to finances and other records that would mination of such damages purely a his innermost feelings” about pre- rebut the presumption of reputational jury function.”79 The trial court did, sumed reputational harm, without however, reduce Justice Thomas’s pre- learning about his criminal past and sumed reputational harm award to $3 or “hearing and determining what his The problem is that million. The court held that given the true reputation was in the commu- “paucity of evidence” of actual rep- nity.”85 Stung by the realization that a courts allow plaintiffs utational harm, the jury’s $5 million criminal plaintiff could use presumed presumed reputational award “falls damages to whitewash his reputation to introduce purely outside the range of fair and reason- and win a $100,000 jury award, the able compensation, was the result of Kansas Supreme Court issued a new speculative evidence passion and prejudice, and shocks rule barring all presumed damages this judicial conscience.”80 Despite and requiring all defamation plaintiffs that is difficult the lack of evidence of reputational to present evidence of reputational harm, the court refused to vacate Jus- harm, because “[d]efamation actions to rebut. tice Thomas’s $1 million emotional in Kansas are primarily concerned distress award.81 with injury to reputation, not injury harm. In Wynn, the Los Angeles County The reliance on speculative evidence to one’s personal sensitivities” and “[i] Superior Court allowed casino mogul is nothing new. In Gertz, after remand injuries to the latter alone cannot sup- Wynn to introduce expert testimony from the Supreme Court, Gertz estab- port a claim for defamation.”86 that casino licensing authorities “could” lished actual malice and was permitted have opened an investigation into Wynn to introduce similarly speculative pre- Conclusion based on the statements by Francis.77 sumed reputation testimony at his As these cases illustrate, trial courts Wynn also testified that he suffered second trial. Gertz was permitted to tend to allow purely speculative pre- “mental anguish” over worries that his call a witness who testified “that call- sumed damages that would normally employees might suffer if his casinos suf- ing a lawyer a Communist would be be excluded under well-established fered future potential harm caused by highly injurious to professional repu- discovery rules for future economic Francis’s statements. Cross-examination tation”—not that it actually caused losses in other tort and contract cases. may not be strong enough to rebut reputational harm to Gertz.82 Courts sometimes bar discovery or such speculative evidence. Sometimes, even rebuttal evidence testimony on the plaintiff’s actual rep- In Thomas, the state court trial establishing a plaintiff’s unharmed utation. The idea that defendants will judge allowed Justice Thomas to reputation will not dissuade a jury be able to challenge “presumed” dam- introduce speculative testimony by from awarding presumed damages ages with rebuttal evidence is largely experts that if Justice Thomas ever or persuade a court to vacate them. an illusion when discovery of the followed up on his vague plan to For example, in Liberty National plaintiff’s finances and other records apply for a federal judgeship or equity Life Insurance Co. v. Daugherty, the is blocked by the court as “irrelevant” partnership in a Chicago firmat Alabama Supreme Court refused to to presumed reputational harm. These

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. discovery issues provide another basis distress award, but the total award of $4 9. “One who publishes matter defama- to challenge presumed damages on million is hardly a nominal award for a tory to another in such a manner as to due process grounds. judge who provided no evidence of any rep- make the publication a slander [or libel] is The use of presumed damages by utational or economic harm. subject to liability to the other although all plaintiffs—but especially public 4. Wynn, 2014 WL 2811692, at *4. no special harm results if the publica- official and public figure plaintiffs— Francis challenged the evidentiary basis tion imputes to the other (a) a criminal is an abuse of our judicial system and for $10 million of the $17 million pre- offense[;] (b) a loathsome disease[;] a violation of due process. Our pub- sumed damages award. The Los Angeles (c) matter incompatible with his business, lic courts are supposed to mete out County Superior Court rejected the chal- trade, profession, or office[;] or (d) serious justice and follow the rule of law, not lenge, leaving the $17 million presumed sexual misconduct.” Restatement (Sec- rubber-stamp huge monetary awards damages award intact. The California ond) of Torts § 570. to uninjured plaintiffs when the awards Court of Appeal noted—perhaps with 10. Restatement (First) of Torts are, by definition, compulsory, specu- regret—that Francis’s appeal made no § 621 & cmt. a. The rationale for per- lative, arbitrary, unreviewable—and challenge to the evidentiary basis for mitting a defamed person to recover for unconstitutional. Wynn’s $17 presumed damages award or presumed reputational harm without a his $2 million mental anguish/actual dam- showing of “any specific harm to his repu- Endnotes ages award. Id. at *4–5. tation or any other loss caused thereby” is 1. Cal. Civil Jury Instructions (CACI) 5. The Thomas case eventually settled that “in many cases the effect of defama- No. 1700 (emphasis added). out of court for $3 million. Russell tory statements is so subtle and indirect 2. Wynn v. Francis, No. B245401, Working, Kane County Paper Settles that it is impossible directly to trace 2014 WL 2811692, at *3–4 (Cal. Ct. Libel Suit with Illinois Chief Justice, Chi. the effects thereof in loss to the person App. June 23, 2014) (unpublished deci- Trib., Oct. 12, 2007, http://articles. defamed. . . . If . . . the defamatory publi- sion). The trial court reduced the mental chicagotribune.com/2007-10-12/ cation is of such kind and was published anguish/actual damages award to $2 mil- news/0710111023_1_mr-thomas-federal- under such circumstances as to justify the lion. The jury also awarded Wynn $20 courts-chronicle. inference of some general impairment of million in punitive damages, which were 6. See Wynn, 2014 WL 2811692; Mem- his reputation or, through loss of reputa- vacated by the trial court due to the lack orandum Opinion, supra note 3. tion, to his other interests, he is entitled to of evidence of Francis’s current finan- 7. Complaint for Slander, Wynn v. recover general damages therefor.” Id.; see cial worth. Id. at *4–5. Francis’s first Chanos, No. 3:14-cv-04329-MEJ (N.D. also Weller v. Am. Broad. Cos., 283 Cal. “shovel death threat” statement was Cal. Sept. 25, 2014), ECF No.1. Wynn Rptr. 644, 659 (Ct. App. 1991); DiGior- made during a judgment debtor proceed- sued on behalf of himself and his cor- gio Fruit Corp. v. AFL-CIO, 30 Cal. Rptr. ing convened by Wynn, but the appellate poration, Wynn Resorts Limited. His 350, 359–60 (Dist. Ct. App. 1963). court held that Francis’s statement was complaint alleges that Chanos told a 11. I recognize that there is technically not sufficiently related to that proceeding group of attendees at an “invitation only” no “defamation per se” tort, but most to qualify for the litigation privilege. Id. event in Berkeley, California, in April jurisdictions have combined libel and at *2–3, *5–6. Francis’s other two state- 2014 that Wynn and his company had slander per se, so defamation per se is a ments repeating what he said in court violated the Foreign Corrupt Practices reasonably accurate label. were made immediately outside the court- Act. The complaint alleges a claim for 12. 418 U.S. 323 (1974). room to a staff member of the celebrity slander and alleges that the statement is 13. Id. at 349–53. news organization TMZ, and during defamatory per se. The complaint seeks 14. Id. at 371 (White, J., dissenting). Francis’s appearance on ABC television’s unspecified “compensatory” damages, and 15. Id. at 349 (majority opinion) Good Morning America program to talk it is likely that Wynn will again seek pre- (emphasis added). about the Wynn v. Francis slander case. sumed damages. 16. Id. The TMZ staffer said he did not “really 8. First Amended Complaint, Ryan v. 17. Id. believe” the statement because of “the Fox Television Stations, Inc., No. 10-L- 18. Id. (emphasis added). way [Francis] was acting and given his 6258 (Ill. Cir. Ct. Cook Cnty. May 19, 19. Id. at 348–49. past.” Id. at *3. Wynn did not sue TMZ 2011). Judge James Ryan alleged claims 20. Id. at 349. for publishing Francis’s “shovel death for defamation per se, false light, inten- 21. 472 U.S. 749 (1985). threat” statement. tional infliction of emotional distress, and 22. Id. at 763. 3. Memorandum Opinion at 17–20, intrusion against several media defen- 23. 1 Robert A. Sack, Sack on Defa- Thomas v. Page, No. 04-LK 013 (Ill. Cir. dants over several news reports about mation § 10:3.3, at 10-11, 10-12 (4th ed. Ct. Kane Cnty. Mar. 30, 2007). The only his work hours, and sought $7 million in 2014) (quoting Gertz, 418 U.S. at 323, 349). testimony about Justice Thomas’s sup- compensatory damages for each claim and 24. Id. § 10:3.3, at 10-12 n.50. posed loss of reputation “came from Justice unspecified punitive damages, for a total 25. Restatement (Second) of Torts Thomas himself,” which the trial court later of $28 million. Id.; see also Transcript § 621 cmt. b. held “hardly supports an award of $5 mil- of Oral Argument, Ryan v. Fox Televi- 26. Id. § 621. lion.” Id. at 18. The trial court reduced sion Stations, Inc., Nos. 1-12-0005, – 0007 27. Id. § 621 caveat & cmt. b. Thomas’s presumed damages award from (Ill. App. Ct. Sept. 25, 2012) (on file with 28. Sack, supra note 23, § 10:3.3, at $5 million to $3 million, vacated his $1 author) (explaining Ryan’s $7 million per- 10-12 n.50. million “future economic losses” award, claim demand was based on Thomas’s $7 29. Gertz v. Robert Welch, Inc., 418 and left intact his $1 million in emotional million jury award). U.S. 323, 349 (1974).

Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 30. Memphis Publ’g Co. v. Nichols, (“Damage is implied by law when spo- other damage is required for the recovery 569 S.W.2d 412, 419 (Tenn. 1978) (quoting ken words are found to be slander per of either nominal or substantial dam- Joel D. Eaton, The American Law of Defa- se.”); MacDonald v. Riggs, 166 P.3d 12, ages.”); Bongiovi v. Sullivan, 138 P.3d mation through Gertz v. Robert Welch, Inc. 15 (Alaska 2007) (noting that libel and 433, 448 (Nev. 2006) (finding a doctor’s and Beyond: An Analytical Primer, 61 Va. slander per se do not require proof of statement that another doctor had poor L. Rev. 1349, 1434 (1975)) (“The plain- special damages); Denver Publ’g Co. v. surgical skills was slander per se and the tiff must plead and prove injury from the Bueno, 54 P.3d 893, 900 (Colo. 2002) (“[I] plaintiff was entitled to presumed dam- alleged defamatory words, whether their f the plaintiff is a private person, and ages); Lassonde v. Stanton, 956 A.2d 332, defamatory meaning be obvious or not.”). the claim is for libel per se, the plain- 342 (N.H. 2008) (upholding a damages 31. Metromedia, Inc. v. Hillman, 400 tiff need not prove actual damages.”); award to a home contractor in a defa- A.2d 1117, 1123 (Md. 1979) (holding that Gaudio v. Griffin Health Servs. Corp., mation per se case despite the absence Gertz and the First Amendment require a 733 A.2d 197, 215 (Conn. 1999) (finding of proof of damages); Geraci v. Probst, libel plaintiff to plead “a basis for believ- that reputational injury could be conclu- 938 N.E.2d 917, 922 (N.Y. 2010) (stating that the plaintiff has sustained actual sively presumed in a defamation action ing that damages will be presumed “for injury”). by an employee against an employer statements that charge a person with 32. Gobin v. Globe Publ’g Co., 649 for claims made in a termination let- committing a serious crime or that would P.2d 1239, 1242–44 (Kan. 1982) (adopt- ter); Tuite v. Corbitt, 866 N.E.2d 114, tend to cause injury to a person’s profes- ing the “rule that the plaintiff in an action 121 (Ill. 2006) (“A statement is defama- sion or business”); Ellis v. N. Star Co., for defamation must first offer proof of tory per se if its defamatory character 388 S.E.2d 127, 129 (N.C. 1990) (not- harm to reputation; any claim for men- is obvious and apparent on its face and ing that the court has previously held tal anguish is ‘parasitic,’ and compensable injury to the plaintiff’s reputation may be that in libel per se actions, damages may only after damage to reputation has been presumed.”); Baker v. Tremco Inc., 917 be presumed without a finding of mal- established”). N.E.2d 650, 657 (Ind. 2009) (stating that ice); Brown v. Gatti, 145 P.3d 130, 133 33. Nazeri v. Mo. Valley Coll., 860 in a defamation per se action, no proof (Or. 2006) (explaining that certain defa- S.W.2d 303, 313 (Mo. 1993) (en banc) of injury is required); Stringer v. Wal- mation is actionable without proof of (interpreting Gertz as holding that all Mart Stores, Inc., 151 S.W.3d 781, 793–94 specific harm); Nassa v. Hook-SupeRx, claims for libel per se and presumed dam- (Ky. 2004) (indicating that Kentucky fol- Inc., 790 A.2d 368, 374 (R.I. 2002) (“For ages violate the First Amendment). lows a traditional common-law approach slander per se, a plaintiff can establish 34. Smith v. Durden, 276 P.3d 943, 948 to defamation per se in private plaintiff/ liability without a showing of special or (N.M. 2012) (requiring that defamation private concern cases and that damages pecuniary damages because those dam- plaintiffs must “prove actual injury to rep- and malice are presumed); Costello v. ages are presumed.”); Fountain v. First utation and actual resulting damages” in Hardy, 864 So. 2d 129, 140 (La. 2004) Reliance Bank, 730 S.E.2d 305, 309 (S.C. media and nonmedia cases alike). (stating that “[w]hen a plaintiff proves 2012) (indicating that when a statement 35. United Ins. Co. of Am. v. Mur- publication of words that are defamatory is defamatory per se, the defendant “is phy, 961 S.W.2d 752, 754, 756 (Ark. 1998) per se, the elements of falsity and mal- presumed to have acted with common (holding that all defamation plaintiffs ice (or fault) are presumed, but may be law malice and the plaintiff is presumed “must prove reputational injury in order rebutted by the defendant” and “[t]he ele- to have suffered general damages”); Sali- to recover damages”). ment of injury may also be presumed”); nas v. Salinas, 365 S.W.3d 318, 320 (Tex. 36. David A. Anderson, Reputation, Morgan v. Kooistra, 941 A.2d 447, 455 2012) (“Our law presumes that state- Compensation and Proof, 25 Wm. & Mary (Me. 2008) (indicating that defamation ments that are defamatory per se injure L. Rev. 747 (1984). action requires “either actionability of the victim’s reputation and entitle him 37. Murphy, 961 S.W.2d at 756 (citing the statement irrespective of special harm to recover general damages, including Anderson, supra note 36, at 749–52). or the existence of special harm caused damages for loss of reputation and men- 38. Bierman v. Weier, 826 N.W.2d 436, by the publication”); Mitan v. Camp- tal anguish.”); Larson v. SYSCO Corp., 447 (Iowa 2013) (declining to abolish pre- bell, 706 N.W.2d 420, 421 (Mich. 2005) 767 P.2d 557, 560 (Utah 1989) (indicat- sumed damages for nonmedia defendants (indicating that defamation per se ren- ing that with defamation per se, malice and holding that defamation plaintiffs ders a statement actionable “irrespective and damages are presumed); Askew v. suing media clients can recover damages of special harm”); State v. Crawley, 819 Collins, 722 S.E.2d 249, 251 (Va. 2012) only if they establish “actual reputational N.W.2d 94, 104 (Minn. 2012) (stating that (concluding as a matter of law that “the harm” and “parasitic damages,” i.e., “per- Minnesota recognizes defamation per se, jury needed no proof of damages suf- sonal humiliation or mental anguish” are which is “actionable without any proof fered by Collins on which to predicate its permitted against media defendants only of actual damages”); Speed v. Scott, 787 compensatory award based upon the per if reputational harm is proved first). So. 2d 626, 632 (Miss. 2001) (explaining se defamation”); In re Judicial Disciplin- 39. W.J.A. v. D.A., 43 A.3d 1148, 1158– that no proof of special harm is required ary Proceedings against Gableman, 784 60 (N.J. 2012) (declining to decide issue for slander per se); Blue Ridge Homes, N.W.2d 605, 624 (Wis. 2010) (“A plaintiff of presumed damages involving speech Inc. v. Thein, 191 P.3d 374, 382 (Mont. in a traditional defamation action, unless of public concern, but appearing likely to 2008) (“Defamation per se requires no proceeding on a theory of defamation per limit presumed damages to nominal dam- proof of special damages.”); McCune v. se, proves damages or a harm to reputa- ages in public concern cases). Neitzel, 457 N.W.2d 803, 810 (Neb. 1990) tion.”); Hoblyn v. Johnson, 55 P.3d 1219, 40. See, e.g., Delta Health Grp., Inc. v. (“In a suit for slander per se, no proof 1233 (Wyo. 2002) (“Defamation per se Stafford, 887 So. 2d 887, 896 (Ala. 2004) of any actual harm to reputation or any means a statement which is defamatory

American Bar Association

internet publishing perils and practices Steven D. Zansberg and John P. Borger, EDITors

The ever-changing digital landscape is a tricky place for legal practitioners. The rules and laws governing electronic communications have grown out of legal concepts imported from more traditional fields, adapted from prior law, and created to address the unique features of the constantly evolving digital landscape. Charting a course through the digital domain has grown easier, but remains fraught with potential hazards. This volume offers a compass and some landmarks for that journey. Providing analysis of relevant case law, this volume is an accessible tool for those with general legal knowledge who do not encounter this area regularly. It explores, in detail, questions and concepts related to liability, defamation, privacy, copyright infringement, website terms of use, and employer’s rights and risks in relation to employees’ off-duty online conduct. This thorough treatise was written by an impressive panel of attorneys from across the country with expertise in First Amendment issues, media law, intellectual property, advertising, e-commerce, data privacy, and other relevant practice areas. Your clients count on you to chart the correct path. This book is your guide to successfully navigate the wilds of electronic communications in the digital frontier.

Product Code: 5550030 List Price: $54.95 Member Price: $46.95

To order, call the ABA Service Center at 800-285-2221 or visit our website at www.ShopABA.org.

In the spirit of the season, please support your colleagues’ commitment to the rule of law and to the practice of law by giving a free trial ABA and Section membership.

Share what ABA membership has meant to you and how the ABA’s resources will help attorneys you know become better lawyers:

- 32 Sections, Divisions and Forums - Free CLE Series - Free Career Advice Series - Nationwide network of colleagues - Specialized committees and task forces

Give the gift of a free trial ABA and Section membership by sharing the enclosed cards.

Sincerely,

William C. Hubbard President, American Bar Association P.S. To learn about more ways to share, visit ambar.org/gift.

For new members only. Offer ends 1/31/15. Visit ambar.org/abagift for full offer details and rules.

Officers, Governing Committee, and Editors 2014 – 2015

Chair Editors Governing Committee David J. Bodney Ballard Spahr LLP Lee S. Brenner Members [email protected] Kelley Drye & Warren LLP Jonathan M. Albano (2015) [email protected] Katherine Mary Bolger (2017) Immediate Past Chair Dave Giles Timothy J. Conner (2015) Steven D. Zansberg EW Scripps Co. Cynthia Counts (2017) Levine Sullivan Koch & Schulz, LLP [email protected] Monica Dias (2015) [email protected] Amanda M. Leith Marc A. Fuller (2016) NBCUniversal Jean-Paul Jassy (2015) Budget Chair [email protected] Ashley Messenger (2016) James Borelli Mickey Osterreicher (2017) CNA ABA Staff Stacey Wexler (2016) [email protected] Managing Editor Division Co-Chairs Membership Chair Erin Remotigue Lindsay Lavine ABA Publishing Eastern Avanade Inc. [email protected] Stephanie Abrutyn [email protected] Forum Administrator Dale Cohen Teresa Ücok Karen Kaiser American Bar Association Central [email protected] Karen Flax Designer Robert P. Latham Monica Alejo Robert D. Nelon ABA Publishing Western [email protected] James M. Chadwick Kelli L. Sager Maya Windholz