Archive for the ‘criminal law’ Category

Does the R. Allen Stanford Criminal Trial Gag Order Apply to Blogs?

Tuesday, October 5th, 2010

Noting that there has been a willingness to attempt to try the R. Allen Stanford / Ponzi-scheme case in the press, Judge David Hittner of the U.S. District Court for the Southern District of Texas issued a sua sponte gag order [pdf] in the case on Friday.

Here’s the operative section:

[T]he Court hereby

ORDERS that from this date until the final disposition in this case: [the attorneys, the parties, all witnesses, and alleged victims,] their representatives, and their agents, including publicity agents, shall not give, authorize, or permit any extrajudicial statement to any person associated with any public communications media relating to the trial, the parties, the witnesses, or the issues in this case, which [may interfere with a fair trial and which is not public record].

Now, you tell me: Does that stop the victims, parties, and attorneys from blogging about the case?

The phrasing of the order is definitely from the era of old media. It’s written as if the people subject to the gag order are not themselves associated with “public communications media”. These days, aren’t we all?

On the face of it, it doesn’t look like the order bans blogging. But I can’t believe that Judge Hittner meant to bar parties and witnesses from trying the case on CNBC but meant to allow them to try the case in the blogosphere.

As a point of comparison, we are now seeing jury instructions that explicitly ban blogging by jurors about their cases. So why wasn’t this order phrased with the web in mind? This sure looks like another example of the judiciary failing to keep pace with changing times.

Jordan Modifies Law Targeting Online Reporting

Monday, September 13th, 2010

Reporters Without Borders reports that the government of Jordan has yielded to protests and amended its newly introduced Information Systems Crimes Law to remove some of its most controversial features. But RWB “continues to call for its repeal as it still grants the authorities arbitrary restrictive powers, above all because of its vague wording.”

Background here.

Guardian: Kamarudin Blogs On About Malaysia From His London Safe Haven

Tuesday, August 24th, 2010

Flag of MalaysiaBen Bland in the UK’s Guardian: Malaysian blogger continues attacks from his UK base

The story concerns blogger Raja Petra Kamarudin, who fled Malaysia after learning that he might face further criminal prosecution for his blogging. The current charges are sedition and defamation.

(Ha’p Media Law Prof Blog)

Appeals Court OKs Prosecuting Blogger for Threats Against Juror

Tuesday, July 13th, 2010

Eric P. Robinson at Citizen Media Law Project has this: 7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror.

The case, United States v. William White, involves an alleged threat against the foreperson of the jury who convicted white supremacist leader Matt Hale for soliciting the murder of a federal judge.

White is alleged to have posted the juror’s name, address, and phone numbers, along with the name and a picture of the juror’s cat. Indicted under 18 U.S.C. § 373 for solicitation of violence against the juror, White claimed the First Amendment privileges the publication of the information about the juror.

The 7th Circuit held the indictment was adequate to proceed to trial, and that the First Amendment defense could be raised at the trial stage.

Robinson’s post explains the case and the legal issues thoroughly yet concisely in his post.

Conviction Upheld for Blogger/Stalker

Monday, May 31st, 2010

A just released opinion from the Second District of the California Court of Appeals makes for some terrifying reading.

In People v. Costales, the intermediate California appeals court upheld a two-year sentence for Michigan resident George Christian Costales, who used his blog to document his obsession with Stacy B., a musician maintaining a MySpace page. Costales eventually used his blog to document his cross-country road trip to attempt to visit Stacy B. in person in California.

On appeal, Costales contended there was insufficient evidence to show that he had made a “credible threat,” required for a stalking conviction under California Penal Code § 646.9. The statute defines “credible threat” as “a verbal or written threat … or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat … ”

The court held that Costales’s blogging provided all the evidence that was necessary for the conviction.

The opinion is here. Some excerpts:

George Christian Costales appeals a judgment following his conviction of stalking. (Pen.Code, § 646.9, subd. (a).) We conclude, among other things, that: 1) substantial evidence supports the judgment, and 2) Costales has not shown that his two-year prison sentence was retaliation for his decision to proceed to trial instead of making a plea to the charges. We affirm. …

Stacy B. was a musician who used an Internet program called MySpace to “market” her music. She had “an open profile” to allow the public to go to her site. She began receiving disturbing e-mails from Costales, a stranger from Michigan.

Let me just pause for a moment to note that it is interesting that the Court of Appeals put the word “market” in quotes – as if MySpace is somehow a silly way to go about marketing music. Also, judging by her  MySpace page, it looks like she still is a musician. It says she’s currently in the studio. At any rate, the court continued:

Stacy B. was so disturbed by the content of his messages that she used a security feature on her MySpace page to block him from leaving his profile and his comments. Costales discovered that she had blocked his access to her site. He posted a message stating, among other things, “[S]he has blocked me and has never uttered even one word to me. I do believe she loves me…. [¶] … Oh, hell, am I a f***ing stalker ? I visit her page every day. In my mind she’s the perfect woman for me.” He created new profiles to avoid the blocking mechanism and continued to send messages.

[Continue reading ...]

Texas Man Argues State Harassment Law Unconstitutional, Cites Implications for Blogs

Friday, May 14th, 2010

An appeal to Texas’s Court of Criminal Appeals is arguing that Texas Penal Code § 42.07 (prohibiting electronic and telephonic harassment) is unconstitutionally overbroad, violating the First Amendment.

The appeal in the case of Scott v. Texas (nos. PD-1069-09, PD-1070-09) results from the conviction of Samuel Scott for harassing phone calls and voice-mail messages directed to his estranged wife. Mr. Scott was sentenced to two days in the Bexar County jail and a fine of $50.

Scott’s brief argued that blogs and social media are singled out for criminal sanction where traditional media is not:

In our fast growing social media world Twitter, Facebook, Myspace, and any number of blogs all facilitate electronic communication. It is absolutely legal and expected that in societies people will argue, debate and verbally confront each others’ ideas. When one annoys another on the street corner, or at a town hall meeting, or even in the newspaper opinionated editorial section no one can be arrested. But if someone tweets, chats, posts or blogs the same Texas Penal Code § 42.07 makes it illegal.

The brief is on Westlaw: 2010 WL 1683760

Bloggers Provide Early Legal Analysis of Jason Chen / iPhone Search

Friday, April 30th, 2010

Some excellent legal commentary on the iPhone/Chen matter:

Orin Kerr on Volokh Conspiracy
Paul Ohm on Freedom to Tinker
Matt Zimmerman on EFF’s Deeplinks Blog

Police Raid of Blogger’s Home Creates Shield Law Question

Wednesday, April 28th, 2010

Silicon Valley’s multi-jurisdictional task force R.E.A.C.T. (“Rapid Enforcement Allied Computer Team”) sounds like something I would make up for a law-school exam hypothetical. But it is not, and on Friday night, Gizmodo blog editor Jason Chen came home to find R.E.A.C.T. seizing computers and servers pursuant to a search warrant issued in regard to a prototype Apple 4G iPhone, which Apple lost and Gizmodo “found,” and then dissected and reviewed. (Gizmodo’s wrap-up.)

COO of Gizmodo owner Gawker Media, Gaby Darbyshire, says the search was illegal under California Penal Code § 1524(g), a journalist shield law. (Gizmodo’s post, with search warrant document images.)

Lyrissa Lidsky on PrawfsBlawg discusses the question of whether bloggers are properly entitled receive protection under the federal Privacy Protection Act of 1980, 42 U.S.C §2000aa et. seq., intended to squelch newsroom search and seizure.

More: Alexandra Jaffe on; Nick Bilton on NYT’s Bits blog.