Q1 2016 Quick Links, Part 3 (DOJ v. Apple, ISIS, Censorship & More)

Surveillance

* The whole Apple v. DOJ fracas was insane!

NY Times: In Nod to Law Enforcement, Obama Ends Attempt to Straddle Privacy Divide. Vice: Obama’s Call for Encryption ‘Compromise’ Is Hypocritical.

NY Times: For Apple, a Search for a Moral High Ground in a Heated Debate

Julian Sanchez: This Is the Real Reason Apple Is Fighting the FBI. Bloomberg: Secret Memo Details U.S.’s Broader Strategy to Crack Phones. WSJ: Apple Is Right on Encryption

EFF: What We Talk About When We Talk About Apple and Compelled Speech

* Washington Post: The new way police are surveilling you: Calculating your threat ‘score’

* The Atlantic: “A private company has captured 2.2 billion photos of license plates in cities throughout America. It stores them in a database, tagged with the location where they were taken. And it is selling that data.”

Terrorist Content Online

* Wired: Why ISIS Is Winning the Social Media War

* Washington Post: Twitter says it’s shut down more than 125,000 accounts promoting ISIS since mid-2015. Fusion: State Department official says Kim Kardashian gets more retweets in 3 days than ISIS ever has. Techdirt explains why this is a moral panic.

The Atlantic: “there’s usually an average of only 1,000 easily discoverable English-speaking terrorist accounts at a time, and that the average Islamic State supporter has only 300 to 400 followers. And those accounts appear to be stuck in an echo chamber: They generally only interact with other supporters, rather than spreading their message to new followers.”

* Buzzfeed: Inside The Obama Administration’s Attempt To Bring Tech Companies Into The Fight Against ISIS. Reuters: Justice Department, Silicon Valley discuss online extremism. Followup story after the meeting.

Pornography

* U.S. v. Valle (2d Cir. Dec. 3, 2015):

This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that “a person’s inclinations and fantasies are his own and beyond the reach of the government.” Jacobson v. United States, 503 U.S. 540, 551–52 (1992). We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.

This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because “[t]he link between fantasy and intent is too tenuous for fantasy [alone] to be probative,” United States v. Curtin, 489 F.3d 935, 961 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring), and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle’s specific intent to kidnap anyone, we affirm the district court’s judgment of acquittal on the single count of conspiracy to kidnap.

In an issue of first impression that has sharply divided our sister circuits, we must also decide the meaning of “exceeds authorized access” in section 1030(a) of the Computer Fraud and Abuse Act (“CFAA”), which imposes both criminal and civil 4 No. 14‐2710‐cr, 14‐4396‐cr liability. 18 U.S.C. § 1030. Specifically, we must determine whether an individual “exceeds authorized access” to a computer when, with an improper purpose, he accesses a computer to obtain or alter information that he is otherwise authorized to access, or if he “exceeds authorized access” only when he obtains or alters information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access. Because we conclude that the text, statutory history, and purpose of the CFAA permit both interpretations, we are required to apply the rule of lenity and adopt the latter construction. We therefore reverse the judgment of conviction as to the CFAA count.

* USA Today: FBI ran website sharing thousands of child porn images

* NY Times: In Online Dating, ‘Sextortion’ and Scams

* Texas appeals court affirms $345k jury verdict in revenge porn case (Patel v. Hussain). One of numerous revenge porn courtroon wins I’m seeing.

Censorship/Content Regulation

* Reuters: Google to scrub web search results more widely to soothe EU objections. Google’s explanation.

* To remove the country-wide site ban, YouTube creates localized version for Pakistan with a takedown hotline for the government. More examples of how the Internet is fragmenting into the Internets.

* NY Times: New Chinese Rules on Foreign Firms’ Online Content

* What does it take to motivate Internet users to protest en masse? Take away their free VoIP calls

* Defendants get record-setting $1.3M attorneys fee award based on Texas anti-SLAPP law

* EFF: “The most recent site-blocking case was filed by an industry group called the American Bridal and Prom Industry Association together with some of its member companies (collectively “American Bridal”). They filed a complaint in the Northern District of Illinois naming a whopping 3,343 websites as defendants. American Bridal claimed the defendants were engaged in trademark and copyright infringement and asked the court for a temporary restraining order (TRO). The defendants did not get a chance to appear and defend themselves, since the hearing was ex parte. In addition to asking the court to enjoin the alleged infringement, American Bridal asked for an order that would require third parties, like domain name registrars and payment processors, to take down websites and freeze funds.”

* Brennerman v. Guardian News & Media Limited, 2016 WL 1271461 (D. Del. March 30, 2016)

Plaintiffs base their defamation claims against Guardian LLC on the fact that the allegedly defamatory statements on Guardian Ltd.’s website could be accessed through Guardian LLC’s website. I find no error in Magistrate Judge Fallon’s conclusion that the claim against Guardian LLC is wholly insubstantial and frivolous as barred by 47 U.S.C. § 230, which provides in relevant part that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). An “interactive computer service” is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educaitonal institutions.” 47 U.S.C. § 230(f)(2) An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). Websites have consistently been held to be “interactive computer services” as they enable “computer access by multiple users to a computer server.” See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. 591 F.3d 250, 255 (4th Cir. 2009); DiMeo v. Max, 248 F. App’x 280 (3d Cir. 2007). The allegations in the first amended complaint clearly indicate that the alleged defamatory articles were first published by Guardian Ltd. in the United Kingdom. (D.I. 16, ¶ 1, fn. 1, 2; see also D.I. 63 at 9)) Although plaintiffs generally allege that Guardian LLC “publishes” The Guardian newspaper and www.theguardian.com. the actual exhibits attached to the complaint indicate otherwise. Moreover, there are no allegations that Guardian LLC actually played a role in creating or developing the articles at issue. Magistrate Judge Fallon committed no legal error in finding that Guardian LLC, whose website acts as a link to Guardian Ltd.’s website and the allegedly defamatory articles, was fraudulently joined.