In August, New Jersey became the twelfth state to pass a law prohibiting employers from asking employees for their social media usernames and passwords. Read more about the New Jersey law here.
Some states, including California, Michigan, and Illinois, also prohibit schools from requiring students to disclose their social media passwords. Illinois’s Right to Privacy in the School Setting Act takes effect January 1, 2014.
Last Thursday, September 5, the District Court for the District of Columbia issued a preliminary injunction against FilmOn X, a for-profit company that streams broadcasters’ content—without permission—over the Internet to subscribers. The injunction prevents FilmOn X from operating in nearly every jurisdiction in the country and serves as a major setback for the company founded by billionaire Alki David. The ruling is the latest plot twist in a drama playing out between broadcasters and companies that retransmit their content over the Internet without consent.
The District Court found the preliminary injunction warranted after concluding the plaintiffs (that is, the broadcasters who initiated the suit) would be likely to succeed in their claim that FilmOn X violated their right to perform copyrighted works publicly. The ruling is in stark contrast to a nearly identical case (WNET v. Aereo, Inc.) the Court of Appeals for the Second Circuit ruled on last April. The Second Circuit held that Aereo, a company that operates a similar service to FilmOn X, transmitted “unique copies of broadcast television programs” that are sent to single users at their direction, not to the public at large. Thus, the Court of Appeals ruled that Aereo’s service does not violate the public performance right.
FilmOn X, much like Aereo, uses “minute” antennas to capture the television signals broadcasters are required by law to transmit over-the-air for free. Once captured, the company retransmits the signals over the Internet to subscribers, who have the option of watching content live or (if using the company’s DVR service) at a later time.
By devoting a dedicated antenna to each subscriber, FilmOn X contended that it sent private transmissions over the Internet and thus did not violate the public performance right. Unlike in Aereo, however, the District Court did not find the argument persuasive.
Central to the court’s ruling was its interpretation of the “transmission clause,” located in § 101 of the Copyright Act of 1976. Under the transmission clause, a work is performed “publicly” when it is transmitted “by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” In concluding that the transmit clause applied to FilmOn X, the court wrote:
FilmOn X transmits (i.e., communicates from mini-antenna through servers over the Internet to a user) the performance (i.e., an original over-the-air broadcast of a work copyrighted by one of the Plaintiffs) to members of the public (i.e., any person who accesses the FilmOn X service through its website or application) who receive the performance in separate places and at different times (i.e. at home at their computers or on their mobile devices). FilmOn X violates §§ 101 and 106(4) of the 1976 Act, meaning that Plaintiffs are likely to succeed on the merits of their copyright infringement claim.
Under the District Court’s ruling, FilmOn X is enjoined from operating its service in every jurisdiction excluding the Second Circuit, where the decision in Aereo serves as controlling precedent.
Many commentators believe it will ultimately be up to the Supreme Court to decide the legality of services like FilmOn X and Aereo.
We’ll keep you posted on the developments. Until then, here is the link to the District Court’s ruling.
Kevin Delaney is a 2L at the University of North Carolina School of Law and a second-year master’s student at the UNC School of Journalism and Mass Communication.
As part of a new weekly feature on our blog, I’ll post the highlights from the Center’s and my Twitter feeds.
Here is what had my attention on Twitter this week:
A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.
The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.
Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.
Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.
Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.
Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.
EFF filed a lawsuit last Tuesday against the National Security Agency for its mass collection of Verizon customers’ phone records. First Unitarian Church of Los Angeles v. National Security Agency was filed on behalf of a diverse group of 19 organizations and focuses on an important First Amendment right: the right of association. Protecting associational freedom is increasingly important in the context of the government’s collection of metadata — pieces of information, such as the numbers a person calls, which, when put together, reveal information about that person’s associations, including organizations he or she belongs to.
Background: The First Amendment Freedom of Association
The First Amendment right of association is based on the freedom to assemble without government interference. In a landmark 1958 case, NAACP v. Alabama, the Supreme Court recognized that government access to people’s associations creates a “chilling effect” — it makes people less likely to associate with certain organizations. In NAACP v. Alabama, the Court held that it would violate NAACP members’ First Amendment rights for the state to force the organization to turn over its membership lists. The right to organize and assemble without government interference is so fundamental because these associations are forums for political expression and the advancement of ideas — the type of speech the First Amendment was designed to protect.
While discussions about data privacy tend to focus on the Fourth Amendment, First Amendment rights are equally implicated in electronic surveillance. The ability to keep one’s associations private is critical to preserving the right to freely associate.
The case against the NSA
EFF’s case argues that when the NSA collects data about the numbers a person calls and how often, that data can reveal a person’s protected associations, and the surveillance constitutes an interference with the right of association. To illustrate that point, EFF joined with 19 different organizations from across the political spectrum that focus on a range of issues, many of which conflict with one another. These organizations include churches, marijuana legalization advocates, and gun owners’ groups, to name a few. Many members of these organizations hold controversial views and depend on the ability to express those views as a group, but fear individual exposure.
What do the plaintiffs have to hide?
The potential chilling effects and the need for privacy are perhaps best expressed by Gene Hoffman, Chairman of Calguns Foundation, a gun ownership rights group. The group runs a hotline for gun owners who have questions about California gun laws. “California is a difficult place to live if you’re a gun owner,” Hoffman said in a press conference on EFF’s new case. “People are turning to our hotline specifically because they didn’t want to have a record created.” He mentioned that the people who have the most at stake might be those who belong to multiple organizations with potentially conflicting views: “If you are a supporter of marijuana legalization…and you were known to have phoned both [our hotline] and NORML [a marijuana legalization advocacy group], it could cause people to ask questions you didn’t want to have asked.”
New developments: Congress rejects legislation to curtail NSA surveillance
In a close vote yesterday, the U.S. House of Representatives voted against an amendment that would have cut funding for the NSA’s mass surveillance of call records. By striking funding for bulk data collection, the bipartisan amendment would have required Foreign Intelligence Surveillance Court orders to pertain to a person already under investigation. The current legal authority doesn’t require the FISA court to make a showing of suspicion that a person has engaged in terrorism or any illegal activity before it collects data. This lack of standards has allowed the NSA to engage in the mass collection of all Americans’ phone call records. The amendment failed in an extremely close vote of 205 to 217 and garnered both Democratic and Republican support.
Off-topic: Cute pictures of ducks
It’s not uncommon to have three dogs in the office on any given day, but last week one of EFF’s technologists brought these ducklings to work.
