JOLT Digest

New Law Expands Government Surveillance Powers
By Daniel Ray — Edited by Sarah Sorscher

H.R. 6304 — FISA Amendments Act of 2008
Full Text of Enrolled Bill
Senate Vote Summary
GovTrack.us Summary

On July 9, the Senate passed H.R. 6034, the FISA Amendments Act of 2008, and President George W. Bush signed it into law the following day. The new law modifies the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to expand (subject to certain new checks) the federal government’s surveillance powers and retroactively immunize telecommunication companies that cooperated with the warrantless wiretapping program brought to light in 2005.

The New York Times summarizes the politics surrounding the FISA issue, in which presumptive Democratic nominee for president Barack Obama’s “yea” vote attracted scorn from some Democrats.

The Electronic Frontier Foundation (PDF), a longtime opponent of President’s surveillance program, calls Section 202 an immunity “compromise” in name only.

Orin Kerr, writing at The Volokh Conspiracy, criticizes as “misleading” media coverage that ignores the law’s new procedural safeguards (as compared to last year’s less restrictive Protect America Act (“PAA”)).

On the issue of immunity, Charlie Reina (writing at the Huffington Post), regrets that the public will never know who was monitored or which companies cooperated with the original warrantless wiretapping requests.

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District Court Compels Disclosure of YouTube User Logging Records, Protects Source Code
By Jay Gill — Edited by Sarah Sorscher

Viacom International, Inc. v. YouTube, Inc.
S.D.N.Y., July 1st, 2008, No. 07 Civ. 2103
Order (Provided by Justia)

The District Court for the Southern District of New York partially granted a discovery motion made by Viacom in its copyright suit against YouTube and YouTube’s parent company Google. The order compels Google to produce the contents of YouTube’s logging database, including the login IDs, IP addresses, and viewing information of YouTube users. The court denied Viacom’s motion to compel production of the protected source code for the Google search engine.

Viacom’s complaint alleges that YouTube is directly or vicariously liable for duplication of copyrighted material on youtube.com, and seeks damages of over $1 billion and injunctions against further infringing conduct.

Wendy Seltzer at the Citizen Media Law Project summarizes the bifurcated outcome of the case: “trade secret wins; privacy loses.” Kurt Opsahl of the Electronic Frontier Foundation calls this a “setback to privacy rights,” and argues that some of the login names and IP address information, which the court states are anonymous, can in fact be used to identify individual users.
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Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

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House Passes Version of Controversial Wiretapping Legislation Without Telecom Immunity

By Andrew Ungberg — Edited by Wen Bu

H.R. 3773 – Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
Full Text of House Bill
Full Text of Corresponding Senate Bill
CRS Summary of House Bill
GovTrack Summary (including House vote details)

On Friday, March 14, the House of Representatives approved H.R. 3773, the Foreign Intelligence Surveillance Act (“FISA”) of 1978 Amendments Act of 2008. The House bill, which passed 213-193, would set new rules for governmental “eavesdropping” on phone calls and emails within the United States. Originally introduced in October 2007 by Rep. John Conyers (D-MI) and several other House Democrats, the bill aims to resolve issues associated with the wiretapping program the Administration created in the wake of September 11, 2001. The House version of the bill would establish restraints for future government action, as well as the procedures for challenging those actions in court.

Unlike the Senate version of the bill, S. 2248, which the Senate passed in February, the House version does not grant immunity from civil liability to telecommunications companies accused of illegally cooperating with government surveillance.

Some other highlights of the bill:

• Government must seek approval of the Foreign Intelligence Surveillance Court before conducting surveillance.
• Intelligence agencies are forbidden from reverse-targeting American citizens through surveillance of foreigners.
• A “Commission on Warrantless Electronic Surveillance Activities” will be established to investigate government surveillance since September 11, 2001.

The Associated Press and OMB Watch report on the passage of the House bill.
Rep. Jerrold Nadler (D-NY) explained more of the process behind the House bill’s passage.
Hugh D’Andrade of the Electronic Frontier Foundation, in response to the debate on the FISA amendments, excerpted several opinion pieces on “how surveillance hurts free speech.”

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Sixth Circuit Affirms Dismissal of § 1983 Claim Arising from Publication of SSN on County Website

By Evan Kubota — Edited by David Lawson

Lambert v. Hartman et al.
Sixth Circuit, February 25, 2007, No. 07-3154
Slip Opinion
District Court Order

On February 25, the Sixth Circuit affirmed a ruling of the U.S. District Court for the Southern District of Ohio dismissing a § 1983 claim brought against the Hamilton County Clerk of Courts and Board of City Commissioners by a victim of identity theft, after the clerk published the victim’s Social Security number and other identifying information on a publicly accessible website. The court held that potential financial harm alone was insufficient to implicate the “fundamental liberty interest” necessary to trigger a right to informational privacy.

Online commentary on the appellate decision has been light, despite its potentially serious implications.
The Stanford Law School Center for Internet and Society elucidated the district court opinion.
The circuit court cited Helen L. Gilbert’s interesting Chicago Law Review Comment on informational privacy.

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Federal Circuit Upholds Damages Award Against Echostar

By Andrew Ungberg — Edited by Wen Bu

TiVo, Inc. v. EchoStar Commc’n Corp.
Federal Circuit, January 31, 2008, No. 2006-1574
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit upheld in part and reversed in part an Eastern District of Texas jury verdict finding that EchoStar’s DVR machines infringed hardware and software claims of TiVo’s patent.

Writing for a unanimous panel, Judge Bryson found that EchoStar’s devices infringed TiVo’s software claims, but not the hardware claims. The court noted that the trial jury did not award separate damages for each kind of infringement and found the software infringement sufficient to support the entire damages award. Finally, the stay of the trial court’s permanent injunction against EchoStar that the Federal Circuit issued pending appeal will dissolve once the judgment becomes final.

Dennis Crouch of Patently-O adds commentary, including EchoStar’s reaction to the verdict.

Christopher S. Rugaber of the Associated Press examines the business consequences for TiVo.

Bloomberg provides further reporting on the decision.

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European Court of Justice holds that EU law does not require ISPs to disclose subscriber information

By Daniel Ray — Edited by Wen Bu

Productores de Música de España (Promusicae) v. Telefónica de España S.A.U.
European Court of Justice (Grand Chamber), January 29, 2008
Case C-275/06, 2008 CELEX no 62006J0275 (Jan. 29, 2008)
Opinion

On January 29, the European Court of Justice issued a Grand Chamber ruling in Promusicae v. Telefónica. The court held that European law does not require Internet service providers (ISPs) to disclose their subscribers’ identities to trade organizations for the purpose of civil litigation against them, but that European law also does not prohibit member states from imposing such requirements if the legislation sufficiently balances IP and privacy rights.

David Meyer of ZDNet UK summarizes the decision, and quotes a British ISP spokesperson who claims the ruling vindicated ISPs’ self-policing efforts.
Nikki Tait of the Financial Times cites mixed opinions from copyright holders on whether the Court’s leaving open to member states the option of legislating stricter controls will help protect copyrighted content.
Eric Bangeman of Ars Technica notes that copyright holders still have recourse because criminal charges may be brought against infringers, but that some European nations have been unwilling to press charges for copyright infringement.
Gwen Hinze of the Electronic Frontier Foundation notes that any victory for privacy advocates may be short-lived, as the decision may impel copyright holders to step up their legislative efforts to impose intermediary liability on ISPs or pan-European criminal penalties on filesharers.

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N.D.Cal. Grants Preliminary Injunction Requiring ODNI to Turn Over FISA-Related Documents

By Yelena Shagall — Edited by Wen Bu

Electronic Frontier Foundation, Inc. v. Office of the Director of National Intelligence, No. C 07-5278 SI
District Court for the Northern District of California, November 27, 2007
Order

On November 27, the District Court for the Northern District of California granted in part and denied in part a motion by the Electronic Frontier Foundation (EFF) for a preliminary injunction against the Office of the Director of National Intelligence (ODNI) ordering release under the Freedom of Information Act (FOIA) of communications concerning proposed amendments to the Foreign Intelligence Surveillance Act (FISA). The court ordered ODNI to provide an initial release by November 30, to provide a final release of all documents by December 10, and to provide an affidavit with its final release explaining why it withheld any withheld documents.

The court first held that a preliminary injunction may be granted in FOIA cases. It then found that EFF was entitled to a preliminary injunction. The court reasoned that EFF would likely prevail on the merits of its FOIA claim and suffer irreparable injury in the absence of relief; ODNI would not be burdened; and the public interest favored the injunction.

The court noted ODNI’s failure to justify its request to extend its response time from 20 days to 4 months and the irreparable harm to the public that would result from its inability to access information on the pending FISA amendments until after the Congressional vote expected before the end of the year. The court suggested that ODNI’s objections to the burdens imposed by compliance with FOIA should be addressed to Congress rather than the courts.

EFF issued a press release touting the importance of the order, as well as an earlier release explaining its pursuit of the case.
Kim Curtis of the Associated Press calls the order a “minor victory” in EFF’s challenge to the Bush administration’s domestic surveillance program.
Glenn Greenwald of Salon.com considers the order a significant victory for EFF, and argues it will provide the public with vital information concerning extensive lobbying and donations from the telecommunications industry to influence Congress to grant immunity from “past lawbreaking.”
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