United States v. Jones and the Shortcomings of Originalist Interpretations of the Fourth Amendment

In United States v. Jones, a GPS tracking device was the focal point of the Fourth Amendment issues in that case.[1] Antoine Jones was a nightclub owner who was suspected of running a drug trafficking ring.[2] A warrant was issued authorizing the installation of a GPS tracking device on a car used by Jones within ten days and within the District of Columbia.[3] The device was installed on Jones’ car in Maryland eleven days after the issuance of the warrant.[4] The data from the device linked Jones to a location where drugs and money were found and resulted in a guilty verdict.[5] The D.C. Circuit reversed the conviction due to the fact that the GPS location data was obtained without a valid warrant.[6]

The Court affirmed the judgment of the D.C. Circuit holding that the “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”[7] In reaching that conclusion, Justice Scalia noted that there was a “physical intrusion” by placing the GPS device on Jones’ car.[8] The installation of a GPS device on a vehicle constituted a trespass of property consistent with the original understanding of the Fourth Amendment.[9] Thus, evidence gathered from a GPS device without a proper warrant would be inadmissible in court.

In dicta, Justice Scalia noted that without physical intrusion, visual surveillance would be permissible.[10] He posited that it would have been permissible if Jones had been tracked via “traditional surveillance techniques” involving a multitude of investigators because there is no expectation of privacy on the roads.[11] In requiring physical trespass and employing eighteenth century understandings of search and seizure to define Fourth Amendment protections, Justice Scalia reveals the shortcomings of originalism.[12]

Justice Sotomayor wrote in a concurring opinion that “physical intrusion is now unnecessary to many forms of surveillance.”[13] Law enforcement can use devices such as cellular phones, to track the movements of individuals without physical trespass.[14] Some cellular phone carriers collect and retain location data from phone usage through cell towers, creating a historical record of the user’s movement.[15] Location data can be collected through GPS hardware pre-installed in the phones.[16] While mobile carriers do not retain GPS location data, third parties may have historical location data through “check-in” apps available for smartphones.[17] It is also possible to actively track a phone through “pings” from the cellular carrier.[18] None of the above methods involve a physical intrusion of property; under an originalist understanding of the Fourth Amendment such surveillance without a warrant would be permissible.[19]

Currently, customer records can be disclosed to investigators pursuant to the Electronic Communications Privacy Act of 1986 (ECPA).[20] Under the ECPA, law enforcement only needs to show a court “reasonable ground[s] to believe that the . . . [data] sought, [is] relevant and material to an ongoing criminal investigation” to obtain records from mobile providers.[21] Taking advantage of a requirement much lower than the Fourth Amendment’s “probable cause,” electronic surveillance using cellular phones have increased greatly in recent years.[22] The Court was correct in Jonesby holding that the warrantless gathering of evidence from a GPS tracking device was improper. However, abiding by an originalist definition of Fourth Amendment protections may open doors for widespread government intrusions into personal privacy.

[1] See United States. v. Jones, 132 S.Ct. 945, 948 (2012).

[2] See id.

[3] Id.

[4] Id.

[5] See id. at 948-49 (“The Government introduced . . . GPS-derived locational data . . . which connected Jones to the  alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.”).

[6] See id. at 949.

[7] See id.

[8] See id.

[9] See id. (“The text of the Fourth Amendment reflects its close connection to property . . . . Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.”). See also U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”).

[10] See id. at 953-54.

[11] Id.

[12] See id. at 953 (“What we apply is an 18th-century guarantee against unreasonable searches.”).

[13] Id. at 955 (Sotomayor, J., concurring).

[14] Id. See also Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards For Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 119-20 (2012) (illustrating examples of the use of location data from cellular phones for criminal investigations).

[15] See Pell & Soghoian, supra note 14, at 128.

[16] Id.

[17] Id. at 129.

[18] Id. at 131-32.

[19] See supra notes 10-12 and accompanying text.

[20] See James Temple, Secret surveillance on the rise, SFGate (July 27, 2012, 12:04 PM), http://www.sfgate.com/technology/dotcommentary/article/Secret-surveillance-on-the-rise-3731617.php (“Basically it means a police officer generally can’t open your e-mail or listen in on calls without a warrant, but . . . [the] police can look into what cell phone towers might have caught your signal – in other words, your location.”); Pell & Soghoian, supra at 142 (“Stated simply, a D Order ‘compels [production of] all non-content records.’”).

[21] 18 U.S.C. § 2703(d).

[22] See Temple, supra note 20 (“[E]lectronic eavesdropping under the ECPA has increased sharply since 2006, particularly smartphone tracking.”); Pell & Soghoian, supra note 14, at 121 (“The tool proved so effective that the number of ‘requests’ to carriers for location information grew ‘exponentially’ over the past few years, with major wireless carriers now receiving thousands of requests per month.”).

Should Computers Replace Humans In The Judicial Process?

U.S. Magistrate Judge Andrew Peck is helping to pave the way by supporting the use of “predictive coding”, a method in which technology is used to assist in document review during the discovery process.[1] Predictive coding reduces the need for lawyer review by “digitally sorting through a sample of documents, then refining the search algorithms to make sure the relevant documents in the sample are selected.”[2] Although this method does not completely eliminate the need for human review, it ultimately reduces the burden on lawyers to painstakingly review hundreds, if not, thousands of documents before determining which are relevant and ultimately presented to the opposing party.[3]

In a recent case decided in the Southern District of New York, Da Silva Moore v. Publicis Groupe & MSL Group, Judge Peck became the first to allow the use of “computer-assisted review” in the discovery process.[4] Judge Peck held that computer-assisted processes of searching for pertinent documents were judicially acceptable. [5] Furthermore, in a Virginia Circuit Court, Judge James H. Chamblin allowed the use of predictive coding over the objection that predictive coding is too radical in its deviation from traditional human review.[6] According to Thomas Gricks III from Schnader Harrison Segal & Lewis, the firm representing the defendant in the Virginia case, predictive coding is “the most effective way to find relevant documents with lower costs and much more quickly.”[7] While the cost of not applying the predictive coding method is estimated to be $60 per hour, applying predictive coding to the document review process could reduce that cost by over 50%.[8] Moreover, Gary Hebert, a specialist in the area of product liability stated that “any time you introduce a human element, you increase the likelihood of error.”[9]

On the other hand, there will still be many cases in which the traditional human review is the most appropriate.  For instance, predictive coding is only applicable to cases as demonstrated in Da Silva Moore where there were more than 3 million documents for review.[10] As Judge Peck pointed out, “the concept of predictive coding is not to achieve perfection . . . but rather to utilize a technique which is better than existing alternatives in terms of completeness and accuracy, and makes sense from a cost perspective.”[11] Furthermore, predictive coding will not replace human involvement.[12] Predictive coding still requires a human to manage the process which “involve[s] intuition, decision making, exercise of judgment, input from the parties, and intervention at various phases of the process.”[13] Because predictive coding still requires human involvement, Judge Peck stated that “it is the process used and the interaction of man and machine that the court needs to examine” and not necessarily the technology being used.[14]

As noted above, the decision to allow for predictive coding raises the question as to whether future courts will uphold this alternative method of e-discovery and whether this is the beginning of a more digitalized direction in the American litigation process.

[1] Richard Acello, Beyond Prediction: Technology-Assisted Review Enters the Lexicon (Aug. 1, 2012, 1:09 AM), http://www.abajournal.com/magazine/article/beyond_prediction_technology-assisted_review_enters_the_lexicon/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly.

[2] Id.

[3] Id.

[4] Id.

[5] Da Silva Moore v. Publicis Groupe, No. 11-CIV-1279, 2012 WL 2218729, at *1 (S.D.N.Y. June 15, 2012).

[6] Acello, supra note 1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

Social Media and Law Enforcement: Friend or Foe

The vital role that the social media plays in our society is far from reaching its pinnacle. In result, with the potential for exponential gain within the social media, comes the act of balancing privacy and profitability. This struggle emerges in instances where law enforcement needs the assistance of social media companies, in order to facilitate their investigation.

In July 2012, BBC News Technology wrote an article about the ongoing relationship between law enforcement and Skype.[1] The articles provided an insight to Skype’s priority of protecting the privacy of its users at the expense of law enforcement’s investigations.[2] While initially denying the notion of creating system changes to allow accessibility for law enforcement, Skype eventually made changes in that direction that indirectly made it slightly easier for law enforcement to obtain “users’ chat data.”[3]  On a broader scale, social media and Internet companies have taken to Washington, DC to voice their opinion.

A newly formed lobby interest group, “The Internet Association”, has been created to protect the needs of Internet companies and express their opinion of the direction that laws and regulations should be passed.[4] With topics ranging from the “Stop Online Piracy Act” (SOPA) to the required sales tax collection, The Internet Association’s main objective is to establish a unified voice within Washington, DC.[5] However, this main objective can be perceived as an underlying front against additional request from law enforcement to divulge information that most Internet companies are hesitant to distribute.

The importance in the corroboration of social media companies in law enforcement investigation is monumental:

“Social networking rapidly has become a valuable intelligence-gathering tool for law enforcement agencies, as well as a source of evidence for defense and prosecution personnel who search Facebook pages, Twitter feeds or YouTube videos seeking to discredit witnesses, establish law enforcement bias, track down evidence or establish associations between gang members. Often, perpetrators brag about their crimes on social networks, and child pornographers and sexual predators have been located and apprehended as a result of their online activities.”[6]

A survey done by LexisNexis of 1,200 federal, state, and local law enforcement professionals documented that “4 out of 5 respondents use various social media platforms to assist in investigations and found agencies serving smaller populations and with fewer sworn personnel (<50) use social media more, while state agencies tend to use it less (71%) than local (82%) and federal (81%) agencies.”[7] Additionally, the survey established that “67% believe social media helps solve crimes more quickly and 87% of the time, search warrants utilizing social media to establish probable cause hold up in court when challenged, according to the respondents.”[8]

What is cutting edge today becomes obsolete tomorrow. Consequently, the rapid rate of improvement within technology and social media will create new methods of communication through the use of the social media for criminals, in order to avoid detection. This will impend on the law’s ability to establish the predictability within the justice system, which is a pillar within our judicial structure. The open channel of communication between social media companies and law enforcement, within legitimate boundaries, must be established from the onset as to not hinder the growth of the social media industry while preventing crime and manipulation of these innovative tools of communication.

[1] Skype denies police surveillance policy change, BBC News Technology (July 27, 2012, 11:04 AM), http://www.bbc.com/news/technology-19012415.

[2] Id.

[3] Id.

[4] Vivian Wagner, New Kid on K Street: The Internet Association, TechNewsWorld (July 26, 2012, 03:16 PM), http://www.technewsworld.com/story/75751.html.

[5] Id.

[6] Wayne Hanson, How Social Media Is Changing Law Enforcement, Government Technology, Aug 5, 2012, http://www.govtech.com/public-safety/How-Social-Media-Is-Changing-Law-Enforcement.html.

[7] Press Release, LexisNexis, Role of Social Media in Law Enforcement Significant and Growing (July 18, 2012) (on file with author), available at http://www.lexisnexis.com/risk/newsevents/press-release.aspx?id=1342623085481181.

[8] Id.

Anti-Cyberstalking Laws: Misuse and The First Amendment Right To Free Speech

Cyberstalking, the use of the Internet or electronic communication to stalk or harass a person, is a serious and growing issue in the United States.[1] The proliferation of the Internet has brought about an abundance of means by which cyberstalkers can prey upon their victims.[2] Moreover, the effects of cyberstalking on victims are devastating, including invasion of privacy, mental and emotional anguish, physical violence and suicide.[3] State legislators have rightfully responded by crafting criminal anti-cyberstalking laws or amending traditional anti-stalking laws to account for technological advances in the Internet and electronic communications.[4] Legislators have recognized the need for anti-cyberstalking laws to encompass the many and constantly evolving ways that cyberstalkers can utilize the Internet.[5] However, anytime speech is regulated, there exists the possibility that the law may infringe on the First Amendment right to free speech. Expressive speech on the Internet is generally afforded robust First Amendment protection, similar to that of books, newspapers, and magazines.[6] Therefore, an anti-cyberstalking law that does not exclude constitutionally protected speech is vulnerable to misuse in ways that may trample upon the freedom of speech guaranteed by the First Amendment.

One such misuse of an anti-cyberstalking law recently occurred in the city of Renton, Washington. An anonymous individual posted on the Internet several videos of a cartoon parody mocking officers and employees of the Renton Police Department. The police department sought and obtained the approval of a judge for a search warrant to launch a criminal investigation to discover the identity of the individual who posted the videos. The police department alleged that the individual who posted the videos online had violated Washington’s anti-cyberstalking law.[7] Washington’s anti-cyberstalking law criminalizes the use of the Internet to make an electronic communication to a person or third party “with intent to harass, intimidate, torment, or embarrass” using any “lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act.”[8]

The cartoon parody video, while likely embarrassing to the officers and employees of police department, is constitutionally protected free speech.[9] The First Amendment, made applicable to the states through the Fourteenth Amendment,[10] prohibits states from enacting laws that infringe upon an individual’s freedom of speech.[11] This constitutional protection extends to expressive speech on the Internet.[12] Moreover, the First Amendment generally protects parody regarding public officials, even when offensive or embarrassing, absent an additional showing that the speech is false and made with actual malice.[13] Thus, Washington’s anti-cyberstalking law was misused to criminalize constitutionally protected free speech.

While an anti-cyberstalking law should be flexible enough to account for technological advances in the use of the Internet, it should also be carefully crafted to ensure consistency with the free speech protections of the First Amendment. To help achieve this balance, an anti-cyberstalking law can include a provision that expressly excludes speech protected by the First Amendment.[14] Many states already include such provisions in their traditional anti-stalking laws.[15] The Renton case illustrates the misuse of an anti-cyberstalking law that can occur when the law has not been tempered by the constitutional protections afforded free speech on the Internet.

[1] U.S. Dep’t of Justice, 1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry, http://www.justice.gov/criminal/cybercrime/cyberstalking.htm (last updated Feb. 7, 2003) [hereinafter 1999 Report on Cyberstalking].
[2] Sarah Jameson, Cyberharassment: Striking a Balance Between Free Speech and Privacy, 17 COMMLAW CONSPECTUS 231, 235 (2008); see also Joshua N. Azriel, Social Networking as a Communications Weapon to Harm Victims: Facebook, MySpace, and Twitter Demonstrate a Need to Amend Section 230 of The Communications Decency Act, 26 J. MARSHALL J. COMPUTER & INFO. L. 415, 415-19 (2009).
[3] See Ashley N. B. Beagle, Modern Stalking Laws: A Survey of State Anti-Stalking Statutes Considering Modern Mediums and Constitutional Challenges, 14 CHAP. L. REV. 457, 465-66 (2011) (discussing the general effects of stalking on victims); see also Parents: Cyber Bullying Led to Teen’s Suicide, ABCNEWS.COM, (Nov. 19, 2007), http://abcnews.go.com/GMA/Story?id=3882520&page=1.
[4] Beagle, supra note 3, at 471-77 (surveying state anti-stalking statutes covering the Internet and electronic communication).
[5] 1999 Report on Cyberstalking, supra note 1.
[6] See Reno v. ACLU, 521 U.S. 844, 870 (1997).
[7] Cartoonist Targeted With Criminal Probe For Mocking Police, KIROTV.COM, (Aug. 3, 2011), http://www.kirotv.com/news/28758502/detail.html. On August 9, 2011, the judge issued a stay of the search warrant and ordered a full hearing on the matter. Judge Halts Renton Police Cartoon Search Warrant, KIROTV.COM, (Aug. 9, 2011), http://www.kirotv.com/news/28815941/detail.html.
[8] WASH. REV. CODE § 9.61.260 (2004).
[9] While certain speech on the Internet may give rise to civil actions, such as defamation, this comment concerns criminal liability under anti-cyberstalking laws.
[10] Gitlow v. New York, 268 U.S. 652 (1925).
[11] U.S. CONST. amend. I.
[12] See Reno v. ACLU, 521 U.S. 844, 870 (1997).
[13] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988); New York Times v. Sullivan, 376 U.S. 254, 283 (1964).
[14] See Naomi Harlin Goodno, Cyberstalking, a New Crime: Evaluating the Effectiveness of Current State and Federal Laws, 72 MO. L. REV. 125, 155 (2007) (arguing that anti-cyberstalking laws must specifically exclude constitutionally protected speech in order to pass constitutional muster and citing many state anti-stalking laws as examples).
[15] Id. at 155 n.185.

Electronic Discovery Changing the Judicial Landscape for Assessing a Parent’s Obligation to Contribute Towards their Child’s College Costs

Under New Jersey law, the court considers an extensive list of factors prior to determining whether continued financial support or contribution from a non-custodial parent for the costs associated with their child attending college is appropriate. (Newburgh v. Arrigo, 88 N.J. 529, 1982). For example, New Jersey courts take into account whether the non-custodial parent, if still living with the child, would have contributed towards the costs of the requested higher education. Also, courts consider the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education. Furthermore, courts look at the parent’s ability to pay, the requested amount of contribution sought by the child, the commitment to and aptitude of the child for the requested education, and even the financial resources of that child. Similarly, the court considers the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance. Finally, the court considers the relationship of the education requested to any prior training and to the overall long-range goals of the child. Each of these aforementioned factors impacts the court’s decision in regards to a parent’s obligation to contribute for their child’s higher education costs.

The availability and ease of acquiring personal, relevant information pertaining to their case via such social media outlets has drastically expanded, providing the involved parties with better opportunities to prove their case. Although social media itself is not quite a novel legal issue, the manner in which social media ties into the courts particular determinations about the above-mentioned factors provides an interesting basis for discussion.

Applying this principle to these previously discussed factors, it becomes evident that electronic discovery provides parties with multiple avenues to substantiate their claims. For example, a child’s transcriptions on ‘facebook’ may serve as a valuable indication of his or her “commitment to and aptitude of the child for the requested education.” Similarly, a child’s statements made on ‘twitter,’ or perhaps their photos, could demonstrate “the financial resources of the child.” This is merely a brief overview of the many possible ways in which social media outlets have expanded parties’ opportunities to impact the court’s analysis of each of these factors used to determine the appropriateness of ordering non-custodial parents to contribute to their child’s higher education costs.

Perhaps Slow And Steady Does Win The Race: The Unforeseen Consequences Of MERS

In light of the economic collapse beginning in 2006, thousands of Americans continue to default on residential mortgages, falling prey to mortgage foreclosure actions. A plaintiff in a foreclosure action has standing “where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced.”[1]  Following the traditional mortgage-recording route, a lender-mortgagee maintains ownership of both the promissory note and the mortgage by having the mortgage recorded within the county registry and keeping the note.[2]  Thereafter, any transfer of the property’s title allows the lender to sell both the mortgage and the note, which serves as the underlying security interest in the property.[3]

However, as local regulations and mortgage database systems became more complex over time, recording mortgages within county registries became less desirable. Thus, a number of powerful contributors to the real estate mortgage industry created the Mortgage Electronic Recording System (MERS) in 1993 as a means to reduce delays associated with the traditional mortgage-recording route.[4]  Specifically, MERS developers sought to “streamline the mortgage process by using electronic commerce to eliminate paper.”[5]  Thus, “[m]ortgage lenders . . . subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent [also known as a “nominee”] on all mortgages they register in the MERS system.”[6]  In other words, a MERS transaction requires the borrower to execute a promissory note in favor of the lender and the mortgage in favor of MERS.[7]

Despite the efficiencies of an online mortgage-recording system, the nation’s recent housing bubble burst and resulting foreclosure actions have exposed MERS’ fatal flaw.  In particular, Bank of New York v. Silverberg, a New York case of first impression, declared MERS’ inability to assign a mortgage where it is “listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes.”[8]

Plaintiffs, the Silverberg’s, executed a mortgage in favor of MERS and the underlying note in favor of its originating bank, Countrywide Home Loans. A year later, the Silverberg’s executed a second set of mortgage documents, as well as a consolidation agreement, neither to which Countrywide Home Loans was a party.  After the Silverberg’s defaulted on the second agreement, MERS assigned the consolidation agreement to defendant Bank of New York.

In its discussion, the court maintained that MERS lacked the authority to assign the consolidation agreement to the bank because it never possessed the promissory note—that is, it never had a security interest in the mortgage.[9]  As such, the bank did not have standing to commence a foreclosure action against the Silverberg’s.

In light of the Silverberg decision, it is not surprising that MERS’ rules were changed on July 22, 2011 to deny MERS the opportunity to initiate foreclosure actions.[10]  Instead, starting on September 1, 2011, foreclosure actions must be commenced by originating banks. This will require the physical conveyance of both the mortgage and the note to the originating bank in the traditional, non-MERS manner.[11]  However, while this may seem like the ideal solution, mortgage-recording and foreclosure systems continue to vary from state to state, each having to follow its own statutory guidelines.[12]  Therefore, instead of leaving the door to future litigation ajar, the federal government should work towards creating a nation-wide electronic recording system that provides for contemporaneous recordings of promissory notes and their mortgages.

[1] Bank of New York v. Silverberg, 926 N.Y.S.2d 532, 537 (N.Y. App. Div. 2011) (citation omitted).

[2] See id.

[3] Id.

[4] Id. at 535.

[5] About MERS, mersinc.org, http://www.mersinc.org/about/index.aspx (last visited Aug. 14, 2011).

[6] MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 96, 861 N.E.2d 81, 83 (N.Y. 2006).

[7] Adam Leitman Bailey et al., The Brewing MERS Crisis: Everyone Loses, n.y.l.j., Aug. 10, 2011, at 5-6.

[8] Silverberg, 926 N.Y.S.2d at 533.

[9] See id. at 537. The court further explains in pertinent part:

As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note (see Mortgage Elec. Registration Sys., Inc. v. Coakley, 41 A.D.3d 674, 838 N.Y.S.2d 622; Smith v. Wagner, 106 Misc. 170, 178, 174 N.Y.S. 205 [“assignment of the debt carries with it the security therefor, even though such security be not formally transferred in writing”]; see also Weaver Hardware Co. v. Solomovitz, 235 N.Y. 321, 331-332, 139 N.E. 353 [“a mortgage given to secure notes is an incident to the latter and stands or falls with them”][.] Id.

[10] See MERSCORP, Inc. Rules of Membership, Rule 8, Required Assignments for Foreclosure & Bankruptcy, available at http://www.mersinc.org/about/index.aspx.

[11] Id.

[12] See Leitman Bailey, supra note 8 at 5.

The Confrontation Clause in Video Conferencing

As criminal court systems across the country attempt to alleviate costs, some states have started using video conferencing in place of live testimony. Pennsylvania, for example, uses the technology primarily for preliminary arraignments.[1] Courts find video conferencing enticing for the money it saves in transportation and security costs.[2] Pennsylvania claims that over 15,700 court actions happen by video conferencing every month; doing these proceedings through video conferencing rather than live, saves the state over one million dollars a month and nearly twenty-one million dollars a year.[3]

Though cost savings may be high, the detriment to defendants and their right to the Confrontation Clause may be at issue. Among other things the Sixth Amendment promises that a defendant “be confronted with the witnesses against him. . . .”[4] In Maryland v. Craig the Supreme Court held that the Confrontation Clause is not violated by closed circuit video testimony from minors in abuse cases; and that depending on the case, “face to face” confrontation is not always necessary.[5]  The Court resisted a literal reading of the Confrontation Clause to avoid eliminating all the hearsay exceptions the Court had previously deemed satisfactory.[6] At the same time the Court acknowledged the value and importance placed on “face to face” confrontation in “Anglo-American court proceedings.”[7]

More recently the issue of two way video conferencing was examined by the District Court for the Middle District of Alabama in United States v. Yates.[8] The government claimed it needed the testimony of two witnesses who were in Australia; the witnesses refused to travel and the government’s use of two way video conferencing was granted.[9] Using a test established in Maryland v. Craig which requires a hearing and an important public policy to be served[10], the court determined that no hearing was held and the government’s public policy reason of fact finding was not sufficient to deprive the defendants of confrontation.[11] The court stated “[t] he simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation.”[12]

While court systems have an interest in keeping their costs at bay, they also have an interest in protecting the rights of defendants. It is essential for fact finders to observe witnesses’ entire demeanor including non verbal cues such as “the manner in which they enter the courtroom, their willingness to make eye contact with trial participants, and their ability to control nervous gestures as they deliver their testimony.”[13] In the future, because of video testimony, defendants may be put in a position where they have to fight for their Confrontation Clause right.

[1] Ben Present, Judges Applaud Videoconferencing, Defense Lawyers Cautious, Law Technology News (June 16, 2011), http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202497388660&slreturn=1&hbxlogin=1.

[2] More Criminal Courts Turning to Videoconferencing, Experienced Criminal Lawyers (Nov. 30, 2011), http://www.experiencedcriminallawyers.com/criminal-courts-videoconferencing/.

[3] Administrative Office of Pennsylvania Courts, PA Courts Expand Use of Video Conferencing, Saving $21 Million Annually in Defendant Transportation Costs, PA. Courts (June 7, 2011), http://www.courts.state.pa.us/NR/rdonlyres/36906F45-C993-4844-A3E1-CC3A68B4300B/0/VideoConfExpdsPACts_060711.pdf.

[4] U.S. Const. amend. VI.

[5] Maryland v. Craig, 497 U.S. 836, 857-58 (1990).

[6] Id. at 848-49.

[7] Id. at 846.

[8] United States v. Yates, 438 F.3d 1307 (M.D. Ala. 2006).

[9] Id. at 1310.

[10] See Craig, 497 U.S. at 850, 855.

[11] Yates, 483 F.3d at 1316.

[12] Id. at 1315.

[13] James W. Kraus, Virtual Testimony and Its Impact on the Confrontation Clause, Champion Magazine (May, 2010), http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f07d58a1b25bfece8525776e005e64e6?OpenDocument.

According to the Video Privacy and Protection Act, Netflix and Facebook Cannot be “Friends”

In the latest edition of pre-Internet era laws constricting the natural growth and flow of online enterprise, Facebook and Netflix have found their unavoidable partnership thwarted by a little known video privacy law.[1] In late July, Netflix told its shareholders that the Netflix’s “integration” [2] with Facebook would be delayed in the United States due to the Video Privacy and Protection Act (“VPPA”).[3]

The VPPA was enacted following Robert Bork’s 1987 nomination to a seat on the U.S. Supreme Court.[4] During Bork’s ultimately unsuccessful confirmation hearings, a newspaper published the candidate’s video rental history.[5] Congress did not approve of the invasive action, and voted to ban the unauthorized disclosure the following year.[6]

The VPPA criminalizes the unauthorized disclosure of personally identifiable information (i.e. video rental history) by a “video tape service provider.”[7] However, the law does permit authorized disclosure “to any person with the informed, written consent of the consumer given at the time the disclosure is sought[]” (emphasis added).[8] The dilemma Netflix and Facebook must grapple with is whether the statute allows for blanket permission when the Facebook user adds the Netflix application to his or her account, or if the informed consent must be given each and every time the user’s account is displayed on a friend’s computer. Since violators face penalties of $2,500 for each act, in addition to punitive damages and attorneys fees, it does not take a Winklevoss twin to see the risk in testing the current law.[9]

Interestingly, the VPPA does not seem to apply to all digital video streaming companies. In July, Hulu’s completed its integration with Facebook, which allows users to share their viewing history on Facebook.[10] Since Hulu does not rent, sell, or deliver physical media, it is outside the scope of the VPPA.

Help is on the way, however. In July, a bipartisan group of lawmakers in the House introduced legislation which clarifies that a user can give informed, written consent on an ongoing basis, and that the consent may be obtained via the Internet.[11] Nonetheless, the present odds that the bill will pass a House floor vote are only 17%, and only 8% in the Senate.[12] These low numbers, combined with the debt crises and an ailing economy taking up much of Congress’ attention, makes the prospect of integration between Netflix and Facebook a far off goal for the media giants. In the meantime, the Internet’s social sycophants will just have to share their video preferences the old fashioned way: via e-mail.

[1] 18 U.S.C.A. § 2710 (West).

[2] Reed Hastings and David Wells, Netflix 2Q Letter to Shareholders, (2011), http://files.shareholder.com/downloads/NFLX/1355785152x0x485532/067c1c07-f779-40f8-a1fb-20096eeb9bbc/July%20Investor%20Letter%201130am.pdf.

[3] 18 U.S.C.A. § 2710 (2006) (West).

[4] Joe Mullen, The Oddball U.S. Privacy Law That’s Keeping Netflix Away From Facebook, PAIDCONTENT (July 25, 2011, 7:16 PM), http://paidcontent.org/article/419-the-oddball-u.s.-privacy-law-thats-keeping-netflix-away-from-facebook.

[5] Id.

[6] Id.

[7] 18 U.S.C.A. § 2710 (a)(4) (West).

[8] Id. (b)(2)(B).

[9] Id. (c)(2).

[10] Dan Rowinski, Problems Resolved, Hulu and Facebook Finally Connect, READWRITEWEB (July 12, 2011, 7:46 AM), http://www.readwriteweb.com/archives/

[11] H.R. 2471, 112th Cong. (2011).

[12] Congressional Bills Legislative Forecasts – Current Congress, LexisNexis (Aug. 10, 2011), http://www.lexisnexis.com/lawschool/research/default.aspx?ORIGINATION_

The Unlawful Internet Gambling Enforcement Act of 2006

Internet gambling has been the subject of much discussion over the past several years.  The Unlawful Internet Gambling Enforcement Act (UIGEA) was passed in 2006.[1]  A congressional study found that Internet gambling has been a source of personal indebtedness and that existing law enforcement means of regulating the growing industry has been inadequate.[2]  Online poker companies have come under fire from the Department of Justice under this Act and its associated predicate acts.[3]  These types of cases have dealt with companies that are not located within the United States.[4]  While these companies are at risk, the UIGEA seems to carve out an exception for gambling practices held exclusively within a State.[5]  Moving along these lines, the District of Columbia has been the first to legalize virtual gambling.[6]  With many state budgets facing crises, gambling has been looked upon to increase state revenues.[7]  While many states have been slightly reluctant to explore this area, the Great Recession has put the states in a position to seriously consider the possibility of adding revenue through Internet gambling.[8]  Many precautions may be put into place to keep states within the bounds of the UIGEA, but the legislative history of the act may put states into a gray area.[9]  While the UIGEA seems to carve out an exception for purely intrastate activities, the UIGEA does not seek to amend existing law on these types of activities.[10]  Without clear guidance, states may run afoul with the Department of Justice and their presumable stance on prohibiting “’all forms’ of online gambling.”[11]  State officials should be cautious of the lack of clarity on this issue as well as balancing the needs of a budget crisis with the potential of putting their citizens at risk of personal indebtedness.

[1] 31 U.S.C. §§ 5361-5367 (2006)

[2] 31 U.S.C. § 5361

[3] See United States v. Scheinberg, 10 Cr. 336 (2011)

[4] See id.

[5] 31 U.S.C. § 5362

[6] See Matt Richtel, Starved Budgets Inspire New Look at Web Gambling, N.Y. Times, Aug. 14, 2011, at A1.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] Id.

An International Twist on Domain Name Seizure

In February of 2011, the U.S. Department of Homeland Security (Immigration and Customs Enforcement) seized the rojadirecta.org domain name[1], by authority of a seizure warrant issued pursuant to 18 U.S.C. §§ 981, 2323[2]. Rojadirecta’s principal function is to provide links to other sites where recordings of live sporting events may be downloaded in violation of copyright law[3]. ICE seized only the domain name and did not attempt to reach the servers that host Rojadirecta’s content[4].

This seizure raises several questions. First, is a domain name property within a government’s jurisdiction simply because it is maintained by a registrar based within that jurisdiction? The government argues it has jurisdiction to seize any domain name under management of a domain registrar based within the United States[5]. An analogy could be drawn to a proper exercise of traditional in rem jurisdiction, e.g. control over a foreign citizen’s assets deposited into a bank located within the United States. Although there is no authoritative consensus holding that the United States absolutely exercises jurisdiction over any domains held in a US-based registrar, extant case law supports this line of reasoning in the context of a trademark-infringing domain name[6]. Given both analogies, a court would most likely accept this rationale and find jurisdiction.

Second, to what extent should international comity limit the execution of a forfeiture? In the instant case, a Spanish trial court and appellate court had already found that Rojadirecta’s operation was operating legally, prevailing in a lawsuit brought by Spanish rights-holders[7]. The US government proceeds only on a belief that the operation violates US copyright law; its Affidavit in Support of Application for Seizure Warrant cites 18 U.S.C. §§ 2323(a)(1)(A)-(B), claiming that domain itself was “used, or intended to be used, in any manner or part to commit or facilitate the commission” of a copyright infringement[8]. The domain name itself is already twice removed from any infringement: first the domain only points to Rojadirecta’s servers, then the servers only provide links to other servers wherein infringing materials are hosted[9]. No US court has yet to decide on the matter, but it seems as though this attenuated chain may be enough to satisfy 18 U.S.C. § 2323(a)(1)(B). It is clear, however, that the attenuation is not enough to satisfy a claim for copyright infringement within the Spanish jurisdictions that tried the other two lawsuits[10].

Since the initial seizure, Rojadirecta sought to have the domain name returned, claiming the substantial hardship requirement is satisfied in showing a loss of internet traffic and First Amendment infringement[11]. Those arguments were rejected[12]. Rojadirecta continues legal action, but in the interim has registered rojadirecta.es[13]. .ES is the top level domain for Spain and remains wholly outside of the US’s jurisdiction. If the government’s objective was to stop copyright infringement, it is safe to say this seizure failed to do so.

[1] See Jonathan Stempel, U.S. seizes sports piracy websites before Super Bowl, Reuters (Feb. 2, 2011, 2:47 PM), http://www.reuters.com/article/2011/02/02/us-website-seizures-sports-idUSTRE71188X20110202.

[2] See the notice posted on Rojadirecta’s seized URL at http://rojadirecta.org.

[3] See Bianca Bosker, Rojadirecta.org One Of Several Sites SEIZED By U.S. Authorities, Huffington Post (Feb. 2, 2011, 11:13 AM), http://www.huffingtonpost.com/2011/02/02/rojadirecta-org-seized_n_817458.html.

[4] See Nate Anderson, US Customs begins pre-Super Bowl online mole-whack, Ars Technica (Feb. 1, 2011, 10:13 PM), http://arstechnica.com/tech-policy/news/2011/02/us-customs-begins-pre-super-bowl-mole-whacking.ars.

[5] Seee.g. David Kravets, Feds Seize 18 More Domains in Piracy Crackdown, Wired (Feb. 14, 2011, 6:08 PM), http://www.wired.com/threatlevel/2011/02/eighteen-domains-seized/.

[6] Seee.g. Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 306 (2d Cir. 2002).

[7] See Ernesto, Sports Streaming/Torrent Links Site Victorious in Court, TorrentFreak (May 10, 2010), http://torrentfreak.com/sports-streaming-torrent-links-site-victorious-in-court-100510/.

[8] Aff. in Support of Application for Seizure Warrant Pursuant to 18 U.S.C. §§ 2323(a)(1)(A)-(B), 981(b) at 3 UNITED STATES OF AMERICA, v. THE FOLLOWING DOMAIN NAMES: Hq-Streams.com, Hq-Streams.net, Atdhe.net, Firstrow.net, Channelsurfing.net, Ilemi.com, Iilemi.com, Iilemii.com, Rojadirecta.org, and Rojadirecta.com, Defendants in rem., 2011 WL 320195 (S.D.N.Y.).

[9] Bosker, supra note 3.

[10] Ernesto, supra note 7.

[11] Timothy B. Lee, Judge says domain name loss is not a “substantial hardship”, Ars Technica (Aug. 5, 2011, 10:45 AM), http://arstechnica.com/tech-policy/news/2011/08/judge-says-domain-name-loss-is-not-a-substantial-hardship.ars.

[12] Id.

[13] Nate Anderson, Do domain seizures keep streaming sites down?, Ars Technica (Apr. 17, 2011, 8:00 PM), http://arstechnica.com/tech-policy/news/2011/04/do-domain-seizures-keep-streaming-sites-down.ars.