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The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today.  The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne.  My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.

ozzy

Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13

The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form.  (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)

It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges).  As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague.  And that’s not good when it comes to writing a law.  You know the Aerosmith song “I Don’t Wanna Miss a Thing”?  Well, there are quite a few things the Tyler Act misses.  Here are some examples.

The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.”  This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property.  Use of a “visual or auditory enhancing device” is enough.  So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property.  The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.

The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort.  Here’s the main liability section of the Tyler Act:

A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.

See any reference to “visual or auditory enhancing device”?  There is none.  The Tyler Act says a person could commit a constructive invasion of privacy “through any means.”  A cheapie disposal camera would do it.  So would the audio recording app on your iPhone.  And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise.  (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)

But the problems with the Tyler Act don’t stop there.  The Act applies when the plaintiff is engages in a “personal or familial activity.”  That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.”  Cal. Civ. Code § 1708.8(l).  The definition excludes “illegal or otherwise criminal activity ….”  The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition.  The Tyler Act doesn’t!  It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.

Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.”  Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law.  This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi.  Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes.  The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze.  A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street.  He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire.  That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.

Now, you might ask, why would the newspaper be liable?  That’s because the Tyler Act says:

Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:

(1)  The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and

(2)  The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(Emphasis added)

Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems.  Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication.  See Bartnicki v. Vopper, 532 U.S. 514 (2001).  Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act.  Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.”  That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.

There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough.  Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.

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No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)

We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.)  Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district.  Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media?  Not in this case.

Jennifer O’Brien was a first-grade schoolteacher.  O’Brien posted two statements on Facebook:

I’m not a teacher—I’m a warden for future criminals!

And the second:

They had a scared straight program in school—why couldn’t [I] bring [first] graders?

The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz).  Ortiz was “appalled” by the statements.  O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.

The school district charged O’Brien with conduct unbecoming of a teacher.  An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed.  The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments.  A New Jersey court adopted with the reasoning of the ALJ on appeal.

Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements.  The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivation for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.”  Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools.  The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.

LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks.  Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees.  But even public employees don’t have absolute freedom to say whatever they want.  As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.

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Facebook entitled to Communications Decency Act (CDA) immunity as an “interactive computer service” — Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. Dec. 28, 2012)

This is one of the few (but growing) cases recognizing that Facebook qualifies as an “interactive computer service” under the Communications Decency Act (CDA).  In particular, the court finds that Facebook is an interactive computer service when acting as the publisher of a user-created Facebook page.

The plaintiff (Klayman), a Facebook user who is the chairman and general counsel of an organization called Freedom Watch, found a Facebook page titled “Third Palestinian Intifada.”  This Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that ‘Judgment Day will be brought upon us only once Muslims have killed all Jews.”  This page caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to Facebook requesting that they take down this and related pages.  Klayman alleges that Facebook initially resisted removing the page, but eventually did so “begrudgingly.”  Klayman then filed an action against Facebook and its CEO, Mark Zuckerberg, in the District of Columbia, who removed the action to federal court.  The action asserted claims of negligence and assault against the defendants and sought, among other things, injunctive relief and punitive damages of over $1 billion.

Facebook argued that it had immunity under the CDA, and the court agreed.  First, the court found that Facebook meets the definition of an “interactive computer service provider” because its website gives its users the ability to create, upload, and share various types of information with multiple users.  Second, the court ruled that the allegations supporting the negligence and assault claims are based on Facebook’s status as a publisher or speaker.  Third, the court concluded that Facebook was not the “information content provider” because it did not contribute in any way to the contents of the Facebook page in question.

LegalTXTS Lesson:  The analysis of CDA immunity in this case is straightforward, but it’s noteworthy for concluding that Facebook is an “interactive service provider” for purposes of the CDA.  Not many have cases have addressed the issue.  This case joins  Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), and Young v. Facebook, Inc., 20120 WL 42690304 (N.D. Cal. Oct. 25, 2010) (both cited in Klayman), as well as Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. Feb.2, 2012).  Note, though, that the status of a social media website status as an “interactive service provider” could hinge on the functionality of the site at issue (e.g., Facebook newsfeed vs. Facebook ads).

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Cyberbullying is a problem not just for students, but school workers as well (see my post on the R.S. v. Minnewaska Area School District No. 2149 case).  To address that problem, North Carolina recently passed a law banning students from bullying school workers online.  An expansion of North Carolina’s existing anti-bullying law, the 2012 School Violence Prevention Act is the first in the nation to make cyberbullying of school workers a crime.  The 2012 law criminally penalizes public school students who use a computer or computer network with “intent to intimidate or torment a school employee” by:

  • building a fake profile or web site
  • posting or encouraging others to post on the Internet private, personal, or sexual information about a school employee
  • posting a real or doctored image of a school employee on the Internet
  • tampering with a school employee’s online network, data, or accounts
  • using a computer system for repeated, continuing, or sustained electronic communications (including email) to a school employee

The new law also prohibits students from signing up school workers to pornographic websites or spam mailing lists, or making any statement, whether true or false, intending to provoke another person to stalk or harass a school worker.  The law went into effect on December 1.

The ACLU of North Carolina has criticized the law as overbroad, and announced plans to file a lawsuit challenging it.

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The legal boundaries for school discipline for cyberbullying continues to be unclear — R.S. v. Minnewaska Area School District No. 2149, 2012 WL 3870868 (D. Minn. Sept. 6, 2012); S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. Oct. 17, 2012)

As much as cyberbullying is gaining media attention, clear guidance on what schools can do about it is still lacking.  In January, the U.S. Supreme Court declined to review three free speech challenges involving social media content posted by students.  As a result, courts continue to grapple with defining the boundaries of school discipline for student online conduct, particularly when it happens off-campus.  A pair of recent cases illustrates this trend.

R.S. v. Minnewaska Area School District No. 2149: A 12-year old sixth grader (R.S.) posted on her Facebook page that she “hated” her school’s adult hall monitor.  R.S. posted the comment from her home outside of school hours.  The comment somehow found its way to the principal, who considered the comment a form of bullying.  The principal gave R.S. detention and required her to apologize to the hall monitor.  In a second incident, R.S. posted a comment on her Facebook wall stating: “I want to know who the F%$# [sic] told on me.”  For this, R.S was suspended for a day and prohibited from going on a class ski trip.  On a third occasion, school officials learned that R.S. was communicating with a male student on the Internet about sexual topics (when confronted, the male student admitted that he initiated the conversation).  The school officials called R.S. out of class to meet with them and the deputy sheriff assigned to the school.  They demanded to know her email and Facebook usernames and passwords.  Feeling pressured, R.S. complied.  The school officials then logged into her Facebook account and viewed the public and private messages she had posted on the site.  The school did not formally discipline R.S. any further.

The punishment of R.S. violated her First Amendment right to free speech

Judge Davis of the federal district court of Minnesota looked to the Tinker line of cases for guidance and concluded that the First Amendment prohibits school authorities from punishing students for out-of-school statements the statements are true threats or reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption there.  R.S.’s Facebook posts were not threatening, the court found, and while the posts might have been reasonably calculated to reach a school audience, that possibility alone did not justify her punishment.  An out-of-court statement must be more than inappropriate.  It must potentially cause a substantial disruption in the school before it can be punished.

The school violated R.S.’s Fourth Amendment right to be free of unlawful searches and seizures

Students enjoy a Fourth Amendment right to be free from unreasonable searches and seizures by school officials.  But did R.S. have a reasonable expectation of privacy as to the information posted on her Facebook account that only her Facebook friends could see?  The court said yes.  There is no meaningful difference between a password-protected private Facebook message and other forms of private electronic correspondence.  The court also found that the school officials had no legitimate governmental interest for reviewing her private communications.  Notably, there was no threat that R.S.’s private posts would cause a disruption in the classroom.

R.S. had a viable claim against the school for invasion of privacy

Again, the court focused on R.S.’s expectation of privacy.  The court analogized private Facebook messages to email messages, to which there is a reasonable expectation of privacy.  The court summarily rejected the schools’ argument that R.S. used Facebook in violation of the site’s terms of use because she was a minor.  The court failed to see how a violation of a website’s terms of use could destroy an expectation of privacy.  Also unpersuasive was the school’s argument that R.S. compromised her privacy interest by allowing her mother and one other person view her Facebook account.  It would be unreasonable, the court explained, to conclude that a person gives up all expectation of privacy as to the contents of his or her password-protected email account just by showing an email to another individual.

S.J.W. v. Lee’s Summit R-7 School District: Twin brothers (the “Wilsons”) who were high school juniors created a website called NorthPress.  Part of NorthPress was a blog intended to discuss, satirize, and “vent” about events at the Wilsons’ school.  Because the site was hosted on a Dutch domain, the site would not show up in the results of a Google search by a user in the U.S., but anyone knowing the site’s URL could access it.  The Wilsons added posts to the NorthPress blog containing a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates whom they identified by name.  The racist posts discussed fights at the school and mocked black students.  A third student added another racist post.

The Wilsons initially told only several of their friends about NorthPress and claimed they intended only their friends to know about it, but word about the site quickly spread to the study body at their school.  The school initially suspended the Wilsons for ten days, and after the matter went through further proceedings at the school district level, the Wilsons were suspended for 180 days but allowed to enroll in another school for the duration of their suspensions.  The Wilsons filed a lawsuit for a preliminary injunction to lift the suspensions.  The district court granted the preliminary injunction, but on appeal, the Eighth Circuit reversed.

Reviewing cases that analyze the applicability of Tinker to off-campus student speech, the Eighth Circuit ruled that the blog posts in question targeted the school, could reasonably be expected to reach the school or impact the environment, and caused considerable disturbance and disruption.  As a result, the Wilsons were unlikely to succeed on the merits, and so they were not entitled to an injunction.

LegalTXTS Lesson:  Cyberbullying is a serious issue, but schools should be careful not to overreact.  The reality is that much of the online material students post and share these days has a good chance of offending someone or being considered inappropriate by adults.  That doesn’t give schools the authority to police online content however they like.  Off-campus speech is punishable when it threatens to endanger danger to another student or cause substantial disruption in the school environment, but not merely because some would find it “inappropriate.”

How this rule is applied, however, depends on the sensitivity of the court.  The courts in R.S. and S.J.W. could have gone either way.  The court in R.S. could have concluded that the sexual conversations between two very young students presented a risk of substantial disruption in the classroom.  On the other hand, the court in S.J.W. could have held that the blog was never targeted at the school community, and therefore, its contents did not justify meting out school discipline.  Perhaps we’ll get more consistency in court rulings after Supreme Court decides to weigh in on the constitutional limits to combating cyberbullying.