US Media Law in 2012 – the year ahead – Gervase de Wilde

19 01 2012

Privacy, data protection, and freedom of expression both on and offline are some of the most pressing issues being considered by both courts and commentators in the United States as the New Year gets underway. The effects of the development of the internet continue to be felt as attempts are made to exert control over a frequently chaotic and unregulated area of life. This is a very brief overview of some of what lies ahead in this area over the next 12 months.

SOPA and PIPA

The media law landscape in the United States is dominated by comment and debate on two pieces of legislation being considered in Congress, the SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) Bills. Both statutes are intended to help enforce copyright and prevent piracy online – a reflection of the extent and influence of the entertainment industries, particularly the film industry, in the US.

The intended anti piracy measures revolve around a new ability to prevent search results from sites such as Google and Yahoo directing internet users to illicit material, prohibiting not just the hosting of the content itself, but also the activities of any sites that “engage in, enable, or facilitate” access to it. The powers which SOPA in particular seeks to create would extend beyond the jurisdiction to foreign websites and users. The Washington Post succinctly breaks down the implications of the two bills here. However, the New York Times reported on January 15 that opposition from the Obama administration has effectively “killed” the current incarnations of the legislation.

Opponents of the Bills have asserted that they could “break” the internet (a disturbing sounding prospect for those of a less technical mindset), but they have also focused on the possible effects on  freedom of expression online. The Electronic Frontier Foundation points to a proposal in SOPA that will allow the targeting of sites that merely provide information about how to get round the bills. The EFF also highlights a “vigilante” provision which sets the bar extremely low for service providers to block sites in the absence of judicial oversight, something which is evidently open to abuse.

Constitutional scholars such as Laurence Tribe have also set out detailed legal arguments on how provisions of the Bill violate the First Amendment and the “prior restraint” doctrine, famously described in Nebraska Press Assn. v. Stuart 427 U.S. 539, 559 (1976) as “the most serious and the least tolerable infringement on First Amendment rights.”

The dust has yet to settle from the mounting opposition at both grassroots and government level to the Bills. On Wednesday January 18, Wikipedia is “going dark” for the day in protest, inconveniencing students and journalists everywhere – the Telegraph has comments from founder Jimmy Wales on his reasons. Further copyright protection online will take place, but whether the current proposals will be scrapped altogether or significantly amended remains unclear.

Privacy and data protection

In an Inforrm blog post towards the end of 2011, Kirsten Sjovoll drew attention to the piecemeal nature of privacy law in the United states and this quality is emphasised by the range of cases due to be decided in the year ahead.

Forthcoming decisions – Supreme Court

The Supreme Court will early this year make a decision in the case of FAA v Cooper, a case heard late last year on the question of whether the Federal Privacy Act, intended to prevent the unauthorized sharing or release of information about individuals, includes damages for mental and emotional distress. The Respondent is a pilot whose HIV positive status was disclosed by the Social Security Administration to the airline regulatory body the FAA, in the course of an investigation into pilots’ medical fitness to fly.  The case turns on an understanding of the breadth of the rights that the statute is intended to protect, and seems significant in light of the increasing amount, and centralisation, of data held on individual citizens by the state. Alexander Wohl dissects the case on the scotusblog.

The case of US v Jones is ostensibly one which turns on the Fourth Amendment (the right against search and seizure). It concerns whether the police have the right to place a GPS tracking device on a car without either a warrant or the owner’s permission. But the Supreme Court decision, due early this year, also has broad implications for rights of freedom of expression and association, as GPS tracking offers the ability to obtain a complete view of an individual’s movements over an extended period of time. The First Amendment Center has a blog post on the dangers stemming from threats to “practical obscurity” – the principle that, even in a heavily monitored public world, no one has the full picture of our movements.

Forthcoming decisions – lower courts

Stein v Bank of America Corp, a class action lawsuit in the Columbia District Court, concerns the transfer of data which takes place when customers of the financial industry’s calls are put through to call centres outside the US (featured on The Data Privacy Monitor Blog). The Fourth Amendment is also at issue here – the complaint filed alleges that the electronic transfer of records allows the US Government to circumvent it in searching and seizing customers’ records. These records are specifically protected by the Right to Financial Privacy Act and the plaintiffs seek an injunction requiring compliance with its terms as well as financial compensation. Law firm Loeb & Loeb have more details on their blog.

Fraley v Facebook in the Northern District of California District Court (highlighted by tech site Mashable) is a class action law suit against the social media behemoth which involves the state’s Right of Publicity statute. Facebook exploits their users’ profile pictures in “Sponsored Story” advertising, generated when those users “like” a company’s page, and the plaintiffs allege that this is a “commercial appropriation” of the images which takes place without the users’ consent.

ACLU v Alvarez, in which a decision is awaited from the US Court of Appeals of the Seventh Circuit, is one of a number of so-called “wiretapping” cases (a phenomenon highlighted by the Media Shift blog) which challenge the constitutionality of arrests made for filming police activity. The issue is one which has been thrown into relief by intensive police activity surrounding the occupy protests, and the American Civil Liberties Union assert their First Amendment right to gather and disseminate information on police activities.

Other predictions

Law and social media focused blogs across the Atlantic have been consulting their crystal balls at the start of 2012, and looking beyond cases and legislation to make more generalised predictions. Some that are worth highlighting are: the use of social media evidence in courts (Mashable); the ongoing debate over the status of bloggers as journalists (MediaShift); the US’s Federal Trade Commission and the UK’s Advertising Standards Authority potentially cracking down on fraud and misleading social media advertising (Shear on Social Media Law); and social media security threats going mobile (a less law-focused Mashable post).

Gervase de Wilde is a student barrister and former journalist at the Daily Telegraph.


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1 06 2014
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US Media Law in 2012 – the year ahead – Gervase de Wilde | Inforrm’s Blog

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