JOLT Digest

By Esther Kang

Steve Jobs Resigns As Apple CEO

Steve Jobs announced his resignation as CEO of Apple on Wednesday, reports The Wall Street Journal. In his resignation letter, Jobs wrote, “I have always said if there ever came a day when I could no longer meet my duties and expectations as Apple’s CEO, I would be the first to let you know.” Tim Cook, who had been Apple’s COO since 2005, has replaced Jobs. Many have raised concerns about the future of the company following Jobs’ departure, according to The Huffington Post. The Guardian reports that as of Thursday, Apple stock had dropped by 3% after Jobs’ announcement.

Facebook, RIM, and Twitter Meet with UK Government about Recent Riots

Reuters reports that on Thursday, UK Home Secretary Theresa May met with representatives from Facebook, RIM, and Twitter to discuss the role of social media in the recent British riots. The talks focused on building cooperation between the companies and the government to restrict criminal activity on social networks, but the UK government did not seek to impose any strict limitations on Internet services. According to PCWorld, Facebook released a statement welcoming the government’s efforts to “keep people safe” rather than “imposing new restrictions,” the company also recognized that at times, it must be more active when “dealing with situations that are heightened or sensitive such as the UK riots.”

RIAA Appeals District Court’s Reduction of Damages in File-Sharing Case

As Ars Technica reports, the RIAA has appealed the reduction of damages from $1.5 million to $54,000 in its suit against Jammie Thomas-Rasset to the Eighth Circuit. The case, filed in 2007, has already gone through three trials, the first two resulting in jury verdicts of copyright infringement and damages of $1.92 million and $1.5 million, respectively, until the district judge held the latter award unconstitutional. According to Techdirt, the RIAA bases its appeal on the correct interpretation of the word “distribution” in the Copyright Act and whether it covers merely making a copyrighted work “available.”

Court Rules that Ban on Teacher-Student Communication on Non-Work-Related Sites Violates the First Amendment

Ars Technica reports that a Missouri court has enjoined a new law that would have penalized teachers who communicate with students through “non-work-related” sites, which include Facebook and Twitter. The Volokh Conspiracy comments on the legal merits of the case and agrees with the court that the law was overly broad, prohibiting even communication between family members in some instances. In response to the public outcry against the law and the court’s ruling, Missouri Governor Jay Nixon has called for the law to be repealed, as well as other provisions not enjoined by the court to be removed, according to Yahoo News.

Court Affirms Disciplining of Mortuary-Science Student for Threatening Facebook Posts, Relies on Tinker Standard for Censoring Speech in Higher Education
By Matthew Becker – Edited by Abby Lauer

Tatro v. University of Minnesota, 2011 WL 2672220 (Minn. Ct. App. July 11, 2011)
Slip Opinion hosted by the Minnesota State Law Library

The Minnesota Court of Appeals affirmed a decision of the University of Minnesota Provost’s Appeals Committee, which had penalized mortuary-science student Amanda Tatro for off-campus posts to a social networking website.

The Minnesota Court of Appeals held that the evidence supported the university’s finding that Tatro violated its rules. The court also held that the university properly exercised its authority to address Tatro’s off-campus conduct and did not violate her free speech rights because her actions fell under the wording of the university’s Student Conduct Code, which applies to off-campus conduct that “adversely affects a substantial University interest and . . . indicates that the student may present a danger or threat to the health or safety of the student or others.” In so holding, the court applied the Tinker standard, which allows school officials to limit or discipline student behavior if they reasonably conclude that the behavior will “materially and substantially disrupt the work and discipline of the school.”  The court stated that the Tinker standard was more appropriate than the alternative “true-threat” standard (which would have required Tatro to have intentionally communicated an actual threat before the university would be allowed to intervene), given that this was not a criminal case and that this standard typically does not apply to public schools taking appropriate disciplinary action.

Eric Goldman provides an overview of the case. The Volokh Conspiracy criticizes the decision for relying on an overly broad rationale that might encroach on students’ free speech rights, while the Foundation for Individual Rights in Education (FIRE) features a similar criticism and a thorough analysis of the decision.

(more…)

By Dorothy Du

IBM Creation “Watson” May Have the Potential to Assist in Legal Research

Watson, an IBM super computer four years in the making, competed on the popular TV game show Jeopardy! on February 14 through 16. On the 16th, Watson prevailed against former Jeopardy! champions Ken Jennings and Brad Rutter, tallying in at a total of $77,147 in winnings — more than triple each human contestant’s totals, as PC World reports. Robert Weber, IBM’s senior vice president of legal and regulatory affairs and general counsel explained in The National Law Journal that Watson could be useful in performing some of the basic legal research that junior associates are often assigned. PC World explains that Watson is equipped with a natural language processing system called DeepQA that allows it to understand a complex question, even one involving wordplay; the system uses six million logic rules in order to mine 200 million pages of content for human-like answers. Weber believes DeepQA could prove useful for “gathering facts and identifying ideas when building legal arguments” and says the technology could even “come in handy, near real-time, in the courtroom.”  Jennifer Chu-Carroll, who helped create Watson, told Computer World: “Watson is a significant step, allowing people to interact with a computer as they would a human being.”

Recent Cases Support the Use of Internet to Assist Counsel in Voir Dire

ABA Journal reports that conducting Internet searches to uncover personal details about potential jurors in order to facilitate in jury selection during voir dire has become increasing popular. Quinn Emanuel reports that a New Jersey appellate court in Carino v. Muenzen held that it was unreasonable to prohibit counsel’s use of the Internet during jury selection. And the Missouri Supreme Court in Johnson v. McCullough affirmed a decision to grant a new trial because a juror had failed to disclose his prior lawsuits, but added the qualification that in light of advances in technology allowing access to information about potential jurors, it was appropriate to increase the burden on parties to bring such matters to the court’s attention earlier. With more than 500 million people on Facebook, 175 million on Twitter, and over 70 million actively using LinkedIn, the Internet has become a revolutionary tool allowing jury consultants and trial lawyers to uncover facts that may be may not be discoverable via traditional jury questionnaires. Internet searches allow counsel to select jurors that with particular political affiliations, community involvement, sexual orientation, or income level, Reuters reports.

FDA Deputy Commissioner Speaks About New Food Safety Modernization Act (FSMA)

On February 17, Michael Taylor, FDA Deputy Commissioner for Foods gave his first speech on imports since the FDA Food Safety Modernization Act (FSMA) was signed into law by President Obama this year, Quality Assurance Magazine reports. The FSMA represents the biggest reform of U.S. food safety regulation in decades, and was drafted partially in response to a number of high-profile food-related incidents between 2007 and 2010, as Sidley Austin details.  Taylor indicated that, in light of the fact that 50 percent of our fresh fruits, 20 percent of our vegetables, and 80 percent of our seafood is imported, the FDA sought to establish a new paradigm for regulating imported food through the FSMA, according to the FDA. Taylor stated that “food safety is not only the right thing to do, it is good business,” noting “the major disruptions to our economies and to international trade that occur in the wake of major foodborne illness outbreaks and product recalls.” Food Safety News says the new law gives the FDA new tools to manage imports, such as the power to create agreements with exporting countries that facilitate inspection and certification of food in the country of origin.

California Judge Dismisses Another Class Action Lawsuit Against Pacemaker Manufacturer

MassDevice reports that Judge Manuel Real of the U.S. District Court for the Central District of California recently dismissed a class-action lawsuit against Guidant Corp., a subsidiary of medical device company Boston Scientific. The plaintiff, who had the “Insignia 1298” pacemaker implanted in 2004, was understandably concerned when he heard in the news that pacemakers like his were failing, explains Drug and Device Law. Rather than waiting or undergoing surgery, he decided to sue Guidant Corp., the manufacturer of the pacemaker. The plaintiff’s complaint in Cohen v. Guidant Corp. was dismissed on grounds of “preemption and want of injury, facts, and particularity.”  According to the judge’s order, the complaint failed to provide factual support showing that there was a specific defect in the pacemaker. The court also stated that fear of future injury, in the absence of an actual manifestation of a defect that results in injury, is not a legally cognizable claim under California law.

By Ian B. Brooks

Illinois Establishes Standard for Identifying Anonymous Internet Commenters

Evan Brown at Internet Cases reports that the Appellate Court of Illinois, Third District has set forth a standard for identifying an anonymous internet commenter in Maxon v. Ottawa Publishing Co., No. 3-08-0805 (Ill. App. 3d June 1, 2010). A couple from Illinois, unhappy with anonymous comments on a local newspaper website, sought to identify the commenters. Illinois Rules on Civil Proceedings Rule 224 allows a petitioner to file a petition to identify a person “responsible in damages.” The trial court followed the analysis of Dendrite International. Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) and Doe v. Cahill, 884 A.2d 451 (Del. 2005), in denying the petition. The appellate court reversed and remanded, setting forth a new standard that requires a court to “insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant.” Maxon, slip op. at 9. As Brown notes, this standard — unlike that of past cases — does not require the petitioner to attempt to identify the commenter.

FCC Votes to Proceed with Net Neutrality Regulations

Joelle Tessler for the Associated Press reports that the Federal Communications Commission has voted to accept public comments on three proposed broadband regulations. The regulations are part of the FCC’s latest attempt to establish oversight of broadband providers. The proposal would redefine broadband access as a telecommunications service, allowing the FCC greater regulatory control. FCC Chairman Julius Genachowski hopes to ensure that broadband providers treat network traffic equally, limiting their ability to selectively block traffic. JOLT Digest previously highlighted the objections of many members of Congress to the FCC’s attempts to regulate in the aftermath of Comcast Corp. v. FCC.

Napolitano Calls for Balance Between Civil Liberties and Security

Lolita C. Baldor for the Associated Press reports that in a recent speech, Homeland Security Secretary Janet Napolitano discussed the balance between fighting terrorism and maintaining civil liberties. Citing the recent homegrown, online terrorist recruitment efforts, Napolitano suggested that the law should allow the government to monitor these growing threats. Napolitano believes that by monitoring Internet communications the United States can better protect national security without necessarily “having a deleterious effect on individual rights.”

By Chinh Vo

Supreme Court to Decide on Law Regulating Sale of Violent Video Games to Kids

Wired reports that the Supreme Court has agreed to decide whether states may forbid the sale or rental of violent video games to children. The Court will review a ruling by the Ninth Circuit that struck down a California law, imposing fines for selling “patently offensive” or “morbid” games to people under the age of 18, on First Amendment grounds. Similar laws have been overturned in other states, including Illinois, Michigan, Minnesota and Oklahoma. According to the New York Times, the decision to hear the case — despite general agreement among lower courts — suggests that some justices intend to reexamine how the First Amendment applies to depictions of violence.

Senators Attack New Facebook Features on Privacy Grounds

TechCrunch and Ars Technica report that a group of four U.S. senators is calling on Facebook to change its privacy policies following the popular social networking site’s launch of major new features last week. Democrats Al Franken, Charles Schumer, Michael Bennet, and Mark Begich, in an open letter to Facebook, warned that the Federal Trade Commission may get involved if the company does not take “swift and productive steps” to protect the privacy of user information. Their primary concerns were the “expansion of publicly available data” that users must opt out of sharing and third-party advertisers’ ability to store user profile data indefinitely. These features, according to the senators, create a “potential gold mine of data for unsolicited advertisements.” The senators also asked the FTC to provide guidelines for the use of private information by social networking sites.

Court Orders Aspiring News Blogger to Reveal Sources

A New Jersey appellate court ruled that a blogger must disclose the sources behind online statements she posted, Wired reports. Shellee Hale was sued for defamation after accusing software company Too Much Media of fraudulent acts against its customers. The statements at issue were not posted on Hale’s own blog, but rather in the comments section of a message board. The appellate court was not convinced by Hale’s defense utilizing a New Jersey shield law, protecting reporters from being forced to reveal their sources, because Hale is not a journalist. The court stated there was no evidence demonstrating conduct consistent with professional news reporting that would warrant application of the newsperson’s privilege. Hale produced no records of her interviews and did not identify herself as a journalist to sources. The court emphasized that “new media should not be confused with news media.”