Supreme Court Justice Scalia Given Lesson In Internet Privacy

Culture

from the not-an-issue? dept

BoingBoing points us to an interesting story involving Supreme Court Justice Antonin Scalia, who apparently gave a recent talk questioning the need to protect privacy online. That caught the attention of Joel Reidenberg, a law professor at Fordham, who teaches an Information Privacy Law class. As part of that class he includes an assignment for the class to try to dig up information on someone online, in order to prove how much information is out there. Last year, he chose himself. This year, given Scalia’s comments, he had the class put together a dossier on Scalia, which was not released publicly, but did include a bunch of private info about Scalia that was dug up online. Apparently Scalia was not amused, saying:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Now, to be fair, Scalia does have a point that not every single datum about anyone’s life should be considered private. But it’s equally silly to lash out and call the decision to give the assignment “abominably poor judgment.” That seems like Scalia is suggesting security through obscurity is reasonable, and exposing why it’s not is poor judgment. It’s hard to see how that makes sense.

Filed Under: antonin scalia, internet, privacy, supreme court

Supreme Court Says FCC Can Fine Fleeting Expletives… For Now

Legal Issues

from the next-up,-first-amendment-question dept

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for “fleeting expletives” — generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such “fleeting” uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it’s within the FCC’s power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn’t been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That’s the real question — so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that’s about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I’m still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network’s fault? Beyond just the free speech questions, I’m trying to figure out why the liability should be on the networks at all.

Filed Under: fines, first amendment, fleeting expletives, free speech, supreme court
Companies: fcc, fox

Congressional Rep. Webcasts Hearing With Supreme Court Justices To Show How Easy It Is

Culture

from the just-like-that... dept

After a bit of a (very public) back and forth, a district court in the high-profile Tenenbaum case was recently told that it cannot broadcast courtroom proceedings online, saying that it violated certain rules. This is something that Congress could change… and it sounds like some in Congress really are interested in doing so. Rep. John Culberson, an early supporter of using tools like Twitter and Qik to communicate with constituents, apparently pulled out his camera phone in the middle of a hearing with Supreme Court Justices Breyer and Thomas and started broadcasting live to his website, trying to show them how easy it is to do these days, and why they should allow broadcasting of court proceedings in action.

Filed Under: john culberson, supreme court, webcast
Companies: qik

Supreme Court Won't Consider Virginia Anti-Spam Law

Email

from the spammers-have-rights-too dept

The US Supreme Court has passed on the state of Virginia’s appeal to keep its anti-spam law in place. The state’s Supreme Court had ruled the law was unconstitutional, following the appeal of a spammer that had been convicted under it. He argued that the law overstepped the boundaries by outlawing non-commercial, as well as commercial spam, including things like political and religious speech that have generally been protected under the First Amendment. By not taking up the case, the high court appears to be extending that protection to cover spam as well. On balance, that’s probably a good thing — particularly as this “loophole” is unlikely to really make the spam problem any worse.

Filed Under: spam, supreme court, virginia

AT&T Didn't Violate Antitrust Laws In Wholesale DSL Pricing

Legal Issues

from the really? dept

Well, this is certainly interesting. Just as the US government seems to be hinting at the possibility of declaring Google a monopoly, the Supreme Court has overturned a lower court ruling on whether or not AT&T violated antitrust laws in pricing its wholesale DSL lines at a price above its retail rates (i.e., other DSL providers could resell AT&T DSL lines, but they would have to price them significantly higher than AT&T or lose money). The Supreme Court has now said that it’s not an antitrust violation to have priced line sharing in this manner.

I can certainly see the arguments for both sides in this ruling. In theory, AT&T should have the right to price its offerings wherever it wants. But, that ignores that AT&T does have a monopoly in terms of government granted rights-of-way and subsidies, such that no other provider can realistically compete without similar government benefits. This isn’t because AT&T grew into a monopoly, but because the government granted them those rights and subsidies. In the end, though, as much as I think we should encourage competition via line sharing, I think the Supreme Court made the right decision, in realizing that this isn’t an antitrust issue, but a regulatory issue. When the gov’t granted AT&T rights of way and subsidies, it could have (and probably should have) extracted certain requirements concerning line sharing. In not doing so, it implicitly allowed AT&T to price such line sharing at whatever ridiculous rates AT&T wanted. The solution isn’t via an antitrust lawsuit as it is in making sure that granting such rights of way and subsidies comes with reasonable line sharing rules.

Filed Under: antitrust, line sharing, supreme court
Companies: at&t

Getting Into The Supreme Court's Mind On Software Patents…

Legal Issues

from the reading-the-tea-leaves dept

With the CAFC’s decision on Bilski being appealed to the Supreme Court, it’s worth thinking about how the Supreme Court might actually view the question of software and business model patents. While patent system defenders go through all sorts of twists and turns to explain why software should be patentable, Tim Lee has a detailed explanation of why software should not be patentable, based on earlier Supreme Court precedent. It’s a great read (though, frankly, Ars Technica’s habit of breaking stories like this up into multiple pages, without a single-page option is annoying) that highlights why there’s a decent chance that the Supreme Court would uphold the CAFC’s ruling on Bilski if it chose to hear it. Of course, you never know until it happens, and while the current court has been good about limiting the more ridiculous aspects of the patent system over the past few years, we shouldn’t be surprised by bad rulings anymore. That said, who knows if the Supreme Court will even hear the case — or if it will prefer to see how things play out based on the Bilski ruling, and wait for an alternate case to come up before addressing the issue of software patents.

Filed Under: bilski, patents, software patents, supreme court

Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal

Legal Issues

from the we-prefer-our-screwed-up-copyright-laws dept

You may recall that the Copyright Alliance is a group that is basically the personal vehicle of Patrick Ross, a copyright maximalist, who has been known to twist copyright law to ridiculous extremes on a regular basis. He’s the guy who has claimed that fair use harms innovation, that government-backed monopolies in copyright represent a free market and any attempt to actually free up the market and remove government backed monopolies would be unnecessary regulation that would result in market failure. Ross also sent all of the presidential candidates one of the most ridiculous surveys ever on their views on copyright, that was written in an extremely leading “and when did you stop beating your wife” style.

With such extreme and twisted views, it’s no surprise that Ross has lined up a bunch of big entertainment companies to back him as he goes around trying to convince politicians that day is night and up is down when it comes to copyright — but now he’s moved on to trying to convince the Supreme Court as well. As you may recall, back in August there was an extremely important Appeals Court ruling that noted that Cablevision’s remote DVR setup did not infringe on copyrights. The ruling pointed out the rather obvious troubles that would occur if we interpreted copyright laws the way copyright holders wanted to. It’s clear that DVRs, like TiVo, are perfectly legal in the home. Time shifting shows has been found, quite clearly, to be legal. Cablevision’s remote DVR is effectively the same exact thing. The only difference is that the DVR is stored at Cablevision data center, rather than at someone’s home. The ruling, quite clearly, demonstrated how twisted copyright law has become, as it is patched up each time some new technology comes along.

The importance of this ruling cannot be understated, however, as it will enable many important online services that will be tremendously useful. Needless to say, copyright maximalists in the entertainment industry don’t like that. They prefer the way things used to be, and want the law to force the market never to change. So, before the Supreme Court has even decided whether or not to hear the appeal on the case, Ross’s Copyright Alliance has already begged the Supreme Court to overturn the ruling — the first time the Alliance has become involved in any lawsuit. The amicus brief itself, basically uses Ross’s typical logic: copyright is good, therefore, making companies pay multiple times for different types of licenses to use content in more ways must be even better!

Hopefully, the court recognizes the logical fallacies in the filing. Preventing this service will not help anyone. The entertainment industry that Ross claims to represent thinks that this will get companies like Cablevision to pay them yet again for content it already licensed. But, the reality is that they’ll just move on. People will instead keep buying TiVos or home DVRs, and the potential for truly new and unique services that make the entertainment company’s content even more valuable will be greatly diminished. Ross and the content companies falsely believe that the old model is the best, and that content should be paid for again and again, every time it’s accessed. Basic economics tells you that this is wrong, and that protectionist policies — such as what Ross champions — only shrinks markets and hurts just about everyone.

Filed Under: copyright, copyright alliance, patrick ross, remote dvrs, supreme court
Companies: cablevision

Is A Conviction Constitutional If It's Based On Evidence From An Unconstitutional Search?

Legal Issues

from the buttle-or-tuttle? dept

In a case where the legal implications should thrill any fans of Terry Gilliam’s movie classic Brazil, the Supreme Court is set to examine if it’s constitutional to convict someone, based on evidence that was only collected due to bad data in a government database. There’s no question that a search of someone due to bad data in a database is unconstitutional, but the question is whether or not what’s found in that search can then be used to charge someone. In this case, a bad (obsolete) database entry in a county database resulted in the search of an individual’s car, where drugs and a firearm were found. This resulted in a conviction and jail time, but the search itself wasn’t constitutional, because the data was incorrect. The appeals court let the conviction stand, oddly arguing that throwing out the conviction wouldn’t put much pressure on governments to keep their data clean. The court also argues that anyone convicted as a result of such bad data, should simply file a separate, civil, lawsuit against the government. Of course, it seems like the bigger issue should simply be on the constitutionality of using any unconstitutionally obtained evidence in a lawsuit.

Filed Under: constitution, convictions, database errors, due process, supreme court

Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution

Legal Issues

from the promote-the-progress dept

I was debating whether or not to write anything about this, but William Patry has done a good job discussing how the Heller case may impact copyright, and it’s something I was concerned about, so it should be discussed. No matter what your thoughts on “the right to bear arms” (which was affirmed as an individual right in the Heller decision), it may come back to cause trouble for those of us who believe that intellectual property has gone too far and does not “promote the progress.”

As I’ve pointed out multiple times, one of the big questions concerning whether or not intellectual property law should be strengthened or weakened is based on how you parse the clause in the Constitution that enables Congress to create the IP system:

“The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

By my reading, that means that if the act of securing exclusive rights for a limited time does not promote the progress of science and the useful arts, then it is not covered by the Constitution. That is, the first part of the clause is defining under what conditions (to promote the progress…) it is okay to do certain things (secure exclusive rights). Thus, any intellectual property system that is shown not to promote progress (or worse, to hinder it) is by definition unconstitutional. Others, however, read that first part “promoting the progress” as a sort of “preamble” discussion. Thus, their reading is that securing those exclusive rights for a limited time, by definition, “promotes the progress.”

So, what does the Heller decision on guns have to do with all of this? Well, as some in our comments pointed out way back in March, the key to the Heller decision was how the court interpreted part of the clause: “Because a well regulated Militia is necessary to the security of a free State….” If it interpreted that as meaningless preamble, saying that the right to bear arms had nothing to do with “a well regulated militia” then it opens up some pretty serious questions about constitutional interpretation. As Patry notes, the court can now treat sections of the Constitution it doesn’t like as preamble, rendering them meaningless.

Again, so whether or not you’re happy with the way the court decided the Heller case, the fact that it has no problem deciding that a clause in the Constitution can be ignored as “preamble” could have very bad consequences for those of us pointing out that dangerous innovation-hindering intellectual property systems are against the Constitution. Hopefully, the courts would still recognize that this clause is relevant and not meaningless — but they now have the necessary tools to claim that promoting the progress is meaningless and has no bearing on whether or not a particular intellectual property system is constitutional.

Filed Under: clauses, copyright, guns, heller, preamble, promote the progress, supreme court