Archive | Internet

Privacy and Court Records: Online Access and the Loss of Practical Obscurity

By on January 30, 2015 in First Amendment, Internet, Privacy, Transparency

CourtRecrodsI’m excited to announce that Professor Anne Klinefelter and I received an award from the Berkeley Center for Law & Technology and Microsoft Corp. to study the extent of private and other sensitive information in court records.  The $43,000 award will go to the Center for Media Law and Policy and the Kathrine R. Everett Law Library at the UNC School of Law to support a team of researchers who will sample and code several hundred briefs and other filings from the North Carolina Supreme Court.

The United States has a long history of providing public trials and open access to court records, both of which are essential if the public is to have faith in the fairness of our courts and justice system.  Over the past two decades, courts across the country have been moving quickly to digitize their records and make them available online. Some courts are doing this work themselves, while others are relying on third parties, such as libraries and other archives, to make public access possible. All, however, are dealing with one central and unavoidable issue: privacy.

Court records contain a number of types of information that could be characterized as private, ranging from social security numbers to the names of minor children involved in sexual abuse. Little work has been done, however, to study how often this information appears in judicial records and the context in which it appears. The lack of empirical data hamstrings court personnel and other archivists who are attempting to balance privacy interests with the public’s right of access, as well as scholars looking to adapt privacy law and First Amendment doctrines to deal with the flood of public records going online.

This research will provide a first-of-its-kind empirical study of the frequency of sensitive and private information in court records.  Although we are hopeful that our study will be valuable to courts and other archivists, we do not plan to recommend that any specific information in these records be redacted. Instead, our aim is to catalog the kinds of sensitive information that are in these records and to examine the context in which the various types of private information appear.  This will help policymakers and judges better evaluate the potential harm to privacy interests that might arise from the disclosure of private information in court briefs and related records. An examination of term frequency and any discoveries that certain terms are likely to appear when others also appear, may also inform some normative arguments about the “harmfulness” of online access to court records.

This study will also add much needed detail to the term “private information” as it applies in the context of judicial records. Based on a review of the laws that apply to court records as well as other privacy laws and scholarship, we have identified more than 139 types of sensitive or private information that may exist in these records. It is very unlikely that all of these information types appear with equal frequency. Frequency of appearance may be correlated with case type (e.g., civil vs. criminal), document type (e.g., brief vs. appendix) or time period. This study will allow us to assess, for example, whether criminal cases tend to raise different privacy concerns from civil cases.

Our project was one of six proposals to receive awards from Berkeley and Microsoft. You can read the UNC School of Law’s announcement of the award here.

We will present the results of this research at the 2015 Berkeley Technology Law Journal Spring Symposium, “The Privacy, Security, Human Rights and Civil Rights Implications of Releasing Government Datasets,” on April 17.  Look for more posts about our study over the next few months.

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True Threats and Free Speech

By on January 22, 2015 in First Amendment, Internet

The extent to which the First Amendment protects threatening messages on Facebook and elsewhere will be the subject of a panel discussion at the UNC School of Law at noon on Monday, Jan. 26.

Co-sponsored by the UNC Center for Media Law and Policy, the discussion will focus on Elonis v. United States, a case recently argued before the U.S. Supreme Court. You can read more about the event here.

One of the panelists will be UNC School of Journalism and Mass Communication Ph.D. student Brooks Fuller, who recently had an article about threatening Internet messages and the First Amendment published in the Hastings Communication & Entertainment Law Journal. The citation is: P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages, 37 Hastings Comm. & Ent. L. J. 37 (2015).

From the abstract:

Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue became whether the First Amendment, as interpreted by the Court in Virginia v. Black, requires a subjective intent standard to be read into all statutes that criminalize true threats, or whether the First Amendment only requires such a statute to require the prosecution to demonstrate that a reasonable person would consider the message to be a true threat. Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication. In June 2014, the Supreme Court granted certiorari in Elonis v. United States, a true threats case involving posts on Facebook. The defendant, who posted violent messages in the form of rap lyrics and other pop culture references, argued that the trial courts misread Virginia v. Black and violated his First Amendment rights when it failed to instruct the jury to consider his subjective intent in addition to the objective standard. This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the true threats doctrine.

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Public Records Online at open-nc.org

By on September 2, 2014 in Internet, Journalism, Transparency

thornburg

Many of us talk about the importance of public records, but Ryan Thornburg has moved beyond talking. He has found a way to make public records in North Carolina easily accessible to the media and the public. Thornburg, an associate professor in the UNC School of Journalism and Mass Communication, has created a project called Open N.C. It is an index of state, county, and local digital public records that are being used by journalists and others. Thornburg explains his project here: Tar Heel Talks — Data-Driven Journalism.

Making a cameo appearance in Thornburg’s video is David Ardia, co-director of the UNC Center for Media Law and Policy.

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United States Supreme Court to hear Facebook true threats case

By on August 5, 2014 in First Amendment, Internet

For the first time since the now-famous Virginia v. Black (2003) cross-burning case, the Supreme Court is set to hear arguments in a “true threats” case. Commentators expect the Court to clarify confusion that has arisen among the federal circuit courts regarding whether the First Amendment requires courts to consider the speaker’s subjective intent when prosecuting the speaker under a criminal threat statute. The case, Elonis v. United States, also presents the Court with an opportunity to determine whether the true threats doctrine has evolved along with modes of online communication.

Elonis involves a defendant who was convicted in federal district court under title 18, section 875(c) of the United States Code, which criminalizes the transmission of a threatening communication in interstate commerce, including over the Internet. Anthony Elonis posted to his Facebook wall a series of posts that made references to rap lyrics by artist Eminem and a sketch comedy routine that satirized threats against political figures. The posts also used violent imagery and language to describe Elonis’s disdain for his wife, who had recently left him and taken custody of the couple’s two children. One of Elonis’s posts read as follows:

“Did you know that it’s illegal for me to say I want to kill my wife?

It’s illegal.
It’s indirect criminal contempt.

It’s one of the only sentences that I’m not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.

I’m not actually saying it.
I’m just letting you know that it’s illegal for me to say that.
It’s kind of like a public service.
I’m letting you know so that you don’t accidently go out and say something like that
Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife.…

I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say some- thing like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. Insanely illegal.

Ridiculously, wrecklessly [sic], insanely illegal.

Yet even more illegal to show an illustrated diagram.

 

===[ __ ] =====house :::::::::::::::^

::::::::::::::::::::::::::::::::::::::::::cornfield

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

#########################getaway road

 

Insanely illegal.
Ridiculously, horribly felonious.”

Elonis followed that post with a link to a YouTube video posted by sketch comedy troupe the Whitest Kids U Know. The post tracked the language of the YouTube video nearly verbatim, evoking its cadence and core message, but focused on Elonis’s wife rather than the President. Another post purportedly made reference to Eminem’s song “I’m Back,” in which Eminem criticized his ex-wife and fantasized about participating in a school shooting.

Throughout the trial, Elonis, who adopted the online rap moniker “Tone Dougie,” testified that Facebook operated as a forum for venting his frustrations and anxieties about his home life. Elonis testified that he was not Facebook friends with his wife and that he never tagged her in the posts. He has always claimed that he lacked any specific intent to threaten her life.

At the heart of Elonis v. United States is the meaning of a key phrase in Justice O’Connor’s majority opinion in Virginia v. Black. Justice O’Connor stated that a true threat occurs when a speaker “means to communicate” a serious expression of an intent to commit an act of unlawful violence. But does this language require the prosecution to prove that someone like Anthony Elonis subjectively intended to threaten his wife or merely that he meant to distribute a communication some reasonable person would regard as a true threat?

In clarifying Justice O’Connor’s language, the Court may raise profound questions about how social media either facilitate or cloud the meaning, whether threatening or non-threatening, intended by speakers who use social media for catharsis.

If the Court imposes a subjective intent standard on all true threats statutes, then a defendant’s fondness for Eminem’s violent lyrics or anti-establishment comedy sketches becomes increasingly relevant and allows the jury to consider the meaning underlying cultural tropes such as gangster rap that frequently evoke violent imagery for expressive, artistic purposes.

If the Court follows the majority of the federal circuit courts and upholds the objective reasonable person standard as the only constitutional requirement under Black, then it would seem to signal that speakers in open Internet forums bear the responsibility for all reasonable interpretations of their incendiary posts, even when they lack the specific intent to threaten.

Elonis also advances the theoretical discussion of how social media create and sustain connections between speakers and listeners even when individual posts are not directed at certain persons or groups. Facebook operates as a communication ecosystem that thrives on “shares” and “likes.” The community decides the reach and value of speech, and the online community is empowered to distort the speaker’s intent and the message’s context. The Supreme Court now has an opportunity to decide whether intent matters in determining whether a speaker should bear criminal responsibility for planting a message in the Facebook ecosystem that may be palatable to some users and poisonous to others.

 

Brooks Fuller is a Roy H. Park Fellow and Ph.D Student at the UNC School of Journalism and Mass Communication. Follow him on Twitter at @itsPBrooks

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New Media Law PhDs

By on June 11, 2014 in Copyright, Defamation, First Amendment, Internet, Journalism

UNCThe UNC School of Journalism and Mass Communication will welcome three new media law students to its Ph.D. program this fall.  All of them have expressed interest in working in the UNC Center for Media Law and Policy.  Welcome, law dawgs!

These are the students and a brief description of each student’s background and research interests:

Nicholas Gross.  Coming to Carolina from San Jose, Calif., Nicholas earned a J.D. from the University of Miami School of Law and a bachelor’s degree in economics and international relations from the University of California, Davis. Currently Nicholas is a legal research attorney for The Superior Court of California, County of Santa Clara. He also has been a staff attorney with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta, Ga. His research interests include freedom of expression, internet policy and governance, advertising, intellectual property law, privacy and security law, and telecommunications regulation.

Taeho Lee.  A native of Korea, Taeho earned a J.D. from Emory University and a bachelor’s in communication from Seoul National University in Korea. He has practiced law in Nashville and Chattanooga, Tenn., and he has advised Fox Television Stations Inc. in Atlanta on diverse legal matters, including state shield laws. He also has assisted lawyers in drafting copyright license agreements between cable networks in Atlanta. He is interested in studying the relationship between protection of privacy, freedom of expression, and potential harm from offensive speech (e.g., violent, indecent, and racially discriminative speech).

Kristen Patrow is coming to Carolina from Minneapolis, Minn. She earned a master’s degree in mass communication from the University of Minnesota and a bachelor’s in journalism from Bethel University. She has been a teaching assistant for several journalism courses at the University of Minnesota and guest lectured in classes. Her professional experience includes being an events coordinator and social media associate for Christians for Biblical Equity. She organized conferences and wrote articles for newsletters and magazines. She is planning to study media law, especially the First Amendment and how low-value speech, such as pornography, contributes value to a community.

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