Archive for February, 2013

Revising the Computer Fraud and Abuse Act in the Wake of Aaron Swartz’s Death

Friday, February 15th, 2013

Headshot of Rep. Zoe Lofgren

Rep. Zoe Lofgren (D-Calif.)

Movements are afoot to revise the law that was being used to prosecute good-guy hacker Aaron Swartz, who committed suicide last month under the threat of decades in jail.

It’s a crazy world when violating a website’s terms of service can potentially subject you to more prison time than murdering someone. But that’s what the Computer Fraud and Abuse Act, in its current form, allows.

Rep. Zoe Lofgren, Democrat from Silicon Valley, sought comment on Reddit on her plan to introduce Aaron’s Law. She has now posted a revised draft of the bill [pdf].

TechCruch has some news on how the proposal is developing.

The most illuminating piece on the Aaron Swartz case and federal prosecutors’ overreaching is by Jennifer Granick, Aaron’s friend and a former federal defender. It’s broken into two parts. I really can’t recommend Jennifer’s post enough – it’s the best blogging I’ve read in many months.

Related:

Blog Law Blog: Aaron Swartz, Champion of Online Freedom, Dead at 26

PrawfsBlawg: JSTOR: What is it Good For?

Andrew F. Sellars, Citizen Media Law Project: The Impact of “Aaron’s Law” on Aaron Swartz’s Case

Snowed Over by a Driving Ban?

Sunday, February 10th, 2013

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Blizzard of Blog Law

Friday, February 8th, 2013

As the 2012 superblizzard hits New England, Massachusetts Governor Deval Patrick has issued an executive order banning motor vehicle traffic in the state.

But among the exceptions – along with the police, firefighters, healthcare workers – is the “news media.”

So, does that mean bloggers and citizen journalists can drive right now in Massachusetts? Are they news media?

The executive order – No. 543 [pdf with signature] – does not define “news media.” So should we interpret that to include only newspaper, television, and radio, or bloggers and independent journalists as well? The stakes are high. The Milford Daily News reports that violations of the ban can be punished with a year in jail.

By the way, the order raises a general constitutional question regarding the unenumerated, but court-recognized, right to travel. I am sure that the Commonwealth of Massachusetts would argue that preventing accidents during Snowmaggedon is a compelling government interest and the travel ban is narrowly tailored to serve those ends, so the order would survive whatever constitutional scrutiny put to it.

But I am not so sure. If the travel ban were held to require strict-scrutiny analysis, then a state-wide ban of indefinite duration seems to me not to be narrowly tailored.

When you scrutinize the details, the order seems not to make a lot of sense. Here is the full list of exemptions under the order. Notice anything odd?

  • public safety vehicles and public safety workers, including contract personnel
  • public works vehicles and public works workers, including contract personnel; government officials conducting official business
  • utility company vehicles and utility workers
  • healthcare workers who must travel to and from work in order to provide essential health services
  • news media
  • travel necessary to maintain and deliver critical private sector services such as energy, fuel supplies and delivery, financial systems and the delivery of critical commodities
  • travel to support business operations that provide critical services to the public, including gasoline stations, food stores and hardware stores

Why is travel allowed for gas-station workers if almost no one will need gas since nearly all vehicles are banned?

And the hardware store thing is strange as well. So, hardware stores will be able to have the employees they need to stay open – but no one can drive to the hardware stores. Granted, a few people might be within walking distance of one. But then, what kind of hardware do you need in the middle of a blizzard? I get that there’s a need for plywood before a hurricane hits, but what do you need with hardware during a blizzard?

Finally, I have to say I find it a bit funny that the web-version of the order refers to Governor Patrick as “His Excellency.” I didn’t know anyone in the U.S. used that title. To be fair, Massachusetts has a constitution older than the U.S. Constitution. But still, “His Excellency” seems a little needlessly eccentric.

Blogger Hal Turner Pursues §1983 Case After Acquittal on Threats Charges

Tuesday, February 5th, 2013

Blogger Hal Turner of North Bergen, N.J. is currently pursuing a federal civil-rights lawsuit against the Connecticut State Capitol Police. The cause of action is under 42 U.S.C. §1983 – the general civil-rights statute that allows lawsuits against state officials acting in violation of the federal Constitution.

Last year, Turner was arrested for comments he made on his blog that were interpreted by as a threat against Connecticut state legislators. He wrote, “TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. … It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.” (Blog Law Blog, Oct. 21, 2011: State v. Turner: Incitement to Violence and Jurisdictional Questions)

Turner ended up winning an acquittal. Now he is seeking $50 million in his civil suit.

Most recently, Turner is proclaiming a victory of sorts in that suit because the State of Connecticut has retained outside counsel. His statement says, “On Friday, January 25, 2013, a Partner from the mega law firm McCarter & English, LLP filed his appearance in the case and asked the US District Court in New Jersey for an extension of time to answer Turner’s lawsuit. This represents a significant change from the state’s prior decision to utilize its own Attorney General’s Office, which assigned Assistant Attorney General Philip Miller to the case.”

I’m not sure what it means that the state has obtained outside counsel. McCarter & English is a large regional law firm, although I don’t think it is accurate to call them a “mega firm.”

Turner is something of a self-employed First-Amendment tester. He apparently started out as a frequent caller to conservative talk radio shows, then branched out into blogging and webcasting. He currently operates the Turner Radio Network, which bears no relation to media tycoon Ted Turner. (And I can’t figure out why neither Ted Turner, nor his merger-partner Time Warner, hasn’t shut down Hal Turner’s use of “Turner Radio Network” name on trademark grounds.)

No matter how much you like the First Amendment, Hal Turner is one of those people who is hard to root for. His varied causes have included Holocaust denial, white-supremecist causes, and threatening judges.

While involved with white-supremecist groups, Turner was a paid informant on those groups to the FBI. But any effort on his part to work against those groups can contextualize only so much of his ranting.

In June 2009, angered about a case upholding municipal handgun ordinances, Turner blogged that federal judges of the Seventh Circuit Court of Appeals “deserve to be killed” and, referencing a Thomas Jefferson quote, wrote that “their blood will replenish the tree of liberty.”

Those comments got him a conviction in 2010 with a 33-month federal sentence. He was released from prison in 2012 to serve out the remainder of his sentence from a halfway house in New Jersey.

Some Blog Law for Super Bowl Sunday

Sunday, February 3rd, 2013

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.