Law of the Internet Midterm

Kennison v. Daire (1986)

case about consent - can an authorized system give consent

larceny vs fraud

Australian man took advantage of bank machines to give him money he didn’t have

Barlow

declaration of independence of cyberspace - 1996

no government regulation, no colonization, no moderation

Kerr

internal/external perspective

internal: internet as place

external: internet = physical world (servers)

Johnson and Post

Law & Borders (1996)

cyberspace doesn’t have the same borders as the real world

offered that the internet should be a different “place” when it comes to regulating it

Franks

unwilling avatars

what happens when your avatar experiences trauma

regulation is needed to protect vulnerable populations in cyberspaces

State v. Decker

Michigan man case

sent dick pic to teenage girl in a chat room

court held that he was effectively “in the presence of” a minor because of the green dot in messenger

Yahoo Nazi case

Yahoo! v. France

external perspective: French law did not apply to US-based servers

advent of geo-location and mirrored servers in Sweden meant Yahoo had to comply

govs can use geolocation to implement national laws on internet companies

South Dakota v. Wayfair

SCOTUS overturned Quill

determined that states could tax out-of-state sellers that had a substantial nexus with the taxing state

Packingham v. North Carolina

free speech rights of ex-cons vs. protecting against potential predators

undue restriction on the modern public square - it can be part of their punishment, but can’t extend once they’ve served their sentence

Campbell v. Reisch

MO legislator blocking man on Twitter

Reisch’s page was deemed a campaign page — and campaigns are private, therefore protected speech

but if it was an official page, she wouldn’t have been able to restrict protected speech in a public forum

Texas v. Johnson

what counts as speech

flag burning counted as political speech and was therefore protected

states can restrict the way someone burns a flag to increase safety (ex: not near buildings)

Bland v. Roberts

liking on FB as speech

no, liking is not seen to be speech

Olmstead v. US (1928)

4th amendment case

police listened into defendant’s conversations by installing wiretaps on the telephone wires in the streets near their house

SCOTUS said that if you give your data (permission) to a third party, you lose privacy protections

Katz v. US (1967)

4th amendment case

reasonable expectation of privacy

eavesdropping device placed on the outside of a phone booth used by defendant to place sports bets

SCOTUS rejected physical invasion as the single requirement for an unreasonable search — also said that they cannot breach a reasonable expectation of privacy

Kyllo v. US (2001)

4th amendment case

police used thermal imaging device to scan defendant’s home to detect heat emissions indicating weed grow lamps

SCOTUS rules that sense-enhancing tech not available to the general public constitutes an unconstitutional “search” and requires a warrant

some people argue this case is no longer good law bc people can access thermal imaging very easily

Jones v. US (2012)

4th amendment case

police had warrant to place track on car in MD, but actually went to DC to place the tracker

ruled an unlawful search, invasion of privacy

if they would have just followed him, it would have been lawful

Riley v. California

Defendant was pulled over for having expired tags, police later found suspended license and impounded the car. while inventorying the car they found loaded hand guns and gang paraphernalia

once arrested they searched his unlocked mobile phone device finding evidence of a murder

court ruled that searching an iPhone required a warrant - except for plain view rule

Carpenter v. United States (2018)

cell site location information

cops used 127 days of CSLI to find that the defendant was at the location of robberies without a warrant

SCOTUS ruled that CSLI is near perfect surveillance and goes too far - you need a warrant

third-party doctrine and reasonable expectation of privacy

rights of anonymity

the ability to act or communicate without revealing one’s identity as an element of speech and public participation

protects democratic discourse, whistleblowing, and artistic expression

right of privacy under Second Restatement of Torts

right to privacy is invaded by:

• intrusion upon seclusion

• appropriation of name or likeness

• publicity given to private life

• publicity placing person in false light

Meyerkord v. Zipatoni

MO common law case about false light tort

established the cause of action for false light in MO

IP address

every computer on the internet has a unique address

trap/trace device

captures incoming communications from a device

have to get permission to use a trap and trace or pen register

Article III: jurisdiction

courts have power over ACTUAL CASES and CONTROVERSIES

real dispute between the parties causing some harm that the court can resolve

must have SUBJECT MATTER and PERSONAL jurisdiction over the parties to have standing

criminal trials have to happen where the crime was committed

supremacy clause

Constitution, federal laws, and treaties are the supreme law of the land, overriding state laws when in conflict

personal jurisdiction

court's authority over a defendant, based on the defendant's contacts with the forum state, ensuring a fair trial

subject matter jurisdiction

court's authority to hear specific types of cases based on the subject matter involved. It ensures the court has the power to adjudicate the particular legal issues at hand

general jurisdiction

significant ties to the forum state

defendant is a resident or citizen of the state where the court is

transient jurisdiction

when the defendant is in the forum state the moment they are served

attachment jurisdiction

defendant’s property is housed in the state and is the subject matter of the lawsuit

jurisdiction by consent

defendant has agreed to be subject to the forum court’s power

usually in a clause in a contract

specific jurisdiction

defendant has a sufficient “minimum contacts” within the forum state that directly relate to the lawsuit

minimum contacts

personal contacts with the forum state that are sufficient enough for the forum court to assert personal jurisdiction over the defendant

extradition

legal process of transferring an individual accused or convicted of a crime from one forum to another for trial or punishment

Protected Computer under the CFAA

basically any computer that connects to the internet

commerce clause

permits Congress to regulate commerce “among the several states”

4th amendment requirements

protection against “unreasonable search and seizures” of you persons, houses, paper, and effects

need a warrant, need probably cause

search (under 4th amendment)

when a government agent violates an individual’s reasonable expectation of privacy OR

physical intrusion of a person, house, paper, or effect by the government for the purpose of obtaining information

1st amendment speech

protects political and symbolic speech of citizens

congress shall make no law abridging the freedom of speech

protects your ability to listen and respond and anonymous speech

strict scrutiny

content-based, viewpoint-based speech restrictions

1. compelling gov interest

2. narrowly tailored

3. no less restrictive alternatives

burden of proof on government

compelling government interest

refers to a significant reason for a government to restrict individual rights, usually related to public safety or national security

intermediate scrutiny

content-neutral, incidental restrictions on speech

1. narrowly tailored

2. significant gov interest

3. ample alternative channels for communication

burden of proof on government

4th amendment: search incident to arrest

police can conduct a limited search of an arrestee’s person and immediate surroundings w/out a warrant

doesn’t apply to cellphones - need a warrant

14th amendment incorporation

says that BoR applies to states

1983 action against government official

you can sue a government official acting under color of law

civil vs criminal action

civil: person-person lawsuit, can sue for damages

criminal: prosecutor has to charge defendant, more restrictions (prison)

apellate

appeal

originalism

judicial philosophy that interprets the Constitution based on the original intent of the framers at the time it was written

textualism

judicial philosophy that interprets the law based on the plain meaning of the text, without considering legislative history or intent

narrowly tailored

must be very specific

strict and intermediate scrutiny

content-neutral restriction

reasonable time, place, and manner restrictions on speech

allowed if: (intermediate scrutiny)

• narrowly tailored

• significant gov interest

• ample alternative channels

ex: prohibiting “loud” speeches in the park

commercial speech

protected if it concerns lawful activity and is not misleading

restricted if

1. substantial gov interest

2. regulation directly advances go interest

3. regulation is not more extensive than necessary

incidental speech restrictions

when a law regulates the non-speech elements of a course of conduct that also has speech elements

intermediate scrutiny

1. substantial gov interest

2. gov interest is unrelated to the suppression of free expression

3. if the incidental restriction on 1st amendment freedoms is not greater than is essential to the furtherance of that interest

ex: upholding a law against destroying draft cards, as applied to defendants who burned theirs in protest of Vietnam war

natural rights

we all agree to give up some rights in order for protection

John Locke

liberty vs security

presence (where are you if you are online?)

State v. Decker case determined the man was effectively “in the presence of” a minor in the messenger chat room with green dots

remand

reversal of an appellate decision

choice of law

when you have to reconcile differences between jurisdiction

malware

malicious software

Computer Fraud and Abuse Act (CFAA)

main hacking statute

crime to intentionally access a computer without authorization or exceed authorization

knowingly cause the transmission of a program, info, code, or command and intentionally cause damage without authorization to a protected computer

reasonable expectation of privacy

Katz (phone booth case)

we have a reasonable expectation of privacy that the police cannot search without a warrant

applies to more than just physical invasion of privacy

search warrant

need probable cause

probable cause

sufficient evidence for a reasonable person to believe a crime has been committed or that a search will yield evidence of a crime

consent

if an individual with authority consents to a search, a warrant is not required

can a machine consent?

Kennison v. Daire - bank machines

plain view rule

if evidence is in plain view of officers who have a legal right to be in that position

whatever is in plain view is admissible

including on a cellphone screen

exigent circumstances

if an emergency exists that requires swift action to prevent danger or destruction of evidence

exclusionary rule

police must respect the defendant’s privacy rights during the investigation, or the resulting evidence will be inadmissible

fruit of the poison tree - also extends to anything that was discovered as a result of the illegal evidence

clear and convincing evidence

middle range burden of proof

beyond a reasonable doubt

highest burden of proof

preponderance of the evidence

lowest burden of proof

“more likely than not”

seclusion intrusion

unauthorized physical or observational intrusion into someone’s private space

appropriation

using someone’s name or likeness without permission for personal gain

usually someone famous

publicity of private life

sharing private details about someone without their consent, which would be highly offensive to a reasonable person

false light

misrepresenting someone in a false light in a way that could be highly offensive or embarrassing

defamation

damaging someone’s reputation through false statements

negligence

failing to act with the care that a reasonably prudent person would under similar circumstances

reckless disregard

acting with a conscious disregard or indifferent to the rights or safety of others

actual malice

publishing false information about someone with knowledge of its falsity or a reckless disregard for the truth

intellectual property

Legal rights protecting creations of the mind, such as inventions, literary works, and designs. Includes patents, copyrights, trademarks, and trade secrets

social media censorship

Murthy v. Missouri - can fed officials tell social media companies to remove certain harmful content

Communications Decency Act

Section 230: safe harbor for ISPs

Electronics Communications Privacy Act

concerns communications that are happening in the moment

restrictions on government wiretaps to include transmission of electronic data

Stored Communications Act

prohibits accessing stored communications without authorization

prohibits providers from sharing users’ communications held in electronic storage

allow gov entities to compel providers to disclose comms data with a warrant (more robust protection for new content)

allows gov to delay notification to a user that their data has been requested from a provider until after it has been provided

content of comms is more protected than who/how you communicated

Wiretap Act

concerns contemporaneous comms - tapping as it is happening

intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication

okay if one party involved gives you consent

internet service providers (ISPs)

entity that provides broadband service to subscribers

ex: AT&T, Comcast, Verizon

prior restraint

speaker must obtain permission from gov before being permitted to speak

very strict level of scrutiny

often unconstitutional

usually a direct order on a particular person saying you can’t do this specific thing (ex: restraining order, destroying something before they publish)

dormant commerce clause

implicit limitation on the states — bc Congress has the power, states do not have the power to regulate between states

in rem jurisdiction

power over property

3rd party doctrine

info exposed to third parties has reduced privacy rights

limited recently by cases like Katz, Carpenter, Riley, Kyllo

Olmstead: if you give your data, no protections