Q3 2014 Quick Links, Part 2 (Content Regulation)

Photo credit: 3D Quick Link Crossword // ShutterStock

* United States v. Valle, 2014 WL 2980256 (S.D.N.Y. June 30, 2014).

The highly unusual facts of this case reflect the Internet age in which we live. To prove the kidnapping conspiracy alleged in Count One, the Government relied on numerous Internet “chats” in which Valle and three alleged coconspirators discuss in graphic detail kidnapping, torturing, raping, murdering, and cannibalizing women. Valle and his three alleged co-conspirators “met” on Dark Fetish Network or darkfetishnet.com (“DFN”), which bills itself as a fantasy sexual fetish website. Valle’s DFN profile page stated: “I like to press the envelope but no matter what I say, it is all fantasy.” Many of Valle’s Internet communications involved him transmitting Facebook photographs of women he knew—whether his wife, her colleagues from work, or his college friends—and then “chatting” with other DFN users about committing acts of sexual violence against these women….

Although the alleged conspiracy lasted nearly a year, all communications between Valle and his alleged coconspirators in New Jersey, India or Pakistan, and England took place over the Internet. None of the conspirators ever met or took steps to meet, nor did they ever speak by telephone. This is a conspiracy that existed solely in cyberspace. There is no evidence that the alleged conspirators ever exchanged telephone contact information or accurate information about the area in which they lived, or that they ever knew or sought to learn each other’s true identities. Communication between the alleged conspirators was episodic and generally infrequent; months often passed between chats, with the alleged conspirators forgetting what had previously been
discussed….

the nearly year-long kidnapping conspiracy alleged by the Government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone. While the alleged conspirators discussed dates for kidnappings, no reasonable juror could have found that Valle actually intended to kidnap a woman on those dates….

The kidnapping conspiracy alleged by the Government also featured a steady stream of lies from Valle to his alleged co-conspirators about himself and numerous critical aspects of the alleged conspiracy. Valle lied about his age; about his marital status; about the city and area in which he lived; about whom he lived with; and about his job and the hours he worked. He also lied about whether he owned a house “in the middle of nowhere … in Pennsylvania”; about whether he owned a van that could be used to transport victims; about whether he had a “pulley-apparatus” in his basement; about whether he was soundproofing his basement; about whether he had a human-size oven and rotisserie; about whether he possessed address and contact information for the purported targets of the kidnapping conspiracy; about whether he was conducting surveillance of targeted women; about how often he was in contact with these women; and about whether he had obtained, or would obtain, rope, duct tape, and a stun gun for purposes of committing a kidnapping.

Similarly, the details Valle provided to his alleged coconspirators concerning the targets of the kidnapping conspiracy were as to identification information all false. Valle lied about where the purported kidnapping targets lived, their last names, their occupations, their dates and places of birth, where they had attended or were attending college, and the degrees they had obtained. Despite repeated requests, Valle never provided his alleged co-conspirators with the last names and addresses that would have permitted them to locate and identify these women…..

But the kidnapping conspiracy here was formed and is alleged to have taken place almost exclusively in cyberspace, and in a context in which—according to the Government—the Defendant engaged in countless fantasy role-play conversations with at least twenty-one other individuals about the same topics: kidnapping, torturing, raping, murdering, and cannibalizing women. Under these unique circumstances, in determining whether the Government proved beyond a reasonable doubt Valle’s criminal intent—his specific intent to actually kidnap a woman—the fact that no kidnappings took place and that no real-world, concrete steps toward committing a kidnapping were ever undertaken, is significant. And in determining whether Valle and his alleged coconspirators ever intended to actually commit a kidnapping, the fact that dates for kidnappings are repeatedly set and then pass without incident, inquiry, or comment is powerful evidence that Valle and the three individuals engaged in these allegedly “real” chats understood that no actual kidnapping was going to take place….

Once the lies and the fantastical elements are stripped away, what is left are deeply disturbing misogynistic chats and emails written by an individual obsessed with imagining women he knows suffering horrific sex-related pain, terror, and degradation. Despite the highly disturbing nature of Valle’s deviant and depraved sexual interests, his chats and emails about these interests are not sufficient—standing alone—to make out the elements of conspiracy to commit kidnapping. There must be evidence that Valle actually intended to act on these interests with an alleged coconspirator.

Cf. the old Jake Baker case.

* Citizens Action Coalition of Indiana, Inc. v. Town of Yorktown, Ind., 2014 WL 4908098 (S.D. Ind. Sept. 30, 2014):

the Town argues various forms of social media, including Facebook, Google Plus, and Twitter, are ample and adequate alternatives to the prohibitions set forth in the Ordinance. Specifically, the Town argues that a “communications revolution” has taken place since relevant precedent has been decided concerning time restrictions on soliciting, and that if these new modes of communication were to be considered by the courts today, the Town’s time restrictions would be deemed constitutional.

According to CAC, there are special advantages of speaking with someone face-to-face that cannot be replicated over the internet. (K. Olson Aff. ¶ 12; K. Olson Supp. Aff. ¶ 6; Sucec Supp. Aff. ¶ 9); see also Riley v. National Fed’n of the Blind of N.C., Inc ., 487 U.S. 781, 790–91 (1988) (“The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”). The Seventh Circuit also acknowledged that when the Supreme Court granted protection to door-to-door solicitation and canvassing, it “implicitly recognized that door-to-door communication has a special significance not duplicated by less personal forms of contact.” Watseka, 796 F.2d at 1558. The court agrees that the ability to engage in conversations, have petitions signed, answer questions, and distribute literature all in one setting, cannot be replicated over the internet. Accordingly, the court does not find social media and e-mail are adequate alternatives.

* NY Times: Reddit and 4chan Begin to Button Up

* SiliconBeat: Google Will Report Child Porn, Says It Doesn’t Scan Gmail For Other Crimes

* Marquis v. Google, Inc., 2014 WL 4364840 (Mass. Superior Ct. June 27, 2014). State wiretapping case over Gmail interceptions for advertising denied class certification, just like Judge Koh denied certification in the federal wiretapping case.

* WSJ: A Contrarian View on Data Breaches

* Ars Technica: Brazil court to Apple, Google: Wipe anonymous sharing app off users’ phones

* Marketplace: LinkedIn censors its members in China…globally

* Google settled the stockholder lawsuit over selling illegal pharmaceutical ads.  Prior blog post.

* GigaOm: Craigslist is ramping up its anti-scraping liquidated damages.  Prior blog post.

* Further fallout from overreaching online dating site sex stings in Florida:

A yearlong investigation by 10 Investigates reveals many of the men whose mugshots have been paraded out by local sheriffs in made-for-TV press conferences were not seeking to meet children online. Instead, they were minding their own business, looking for other adults, when detectives started to groom and convince them to break the law.

While detectives used to post ads suggesting an underage teen or child was available for sex, they now routinely post more innocuous personal ads of adults on traditional dating sites. When men – many of them under 25 with no criminal history – respond, officers switch the bait and typically indicate their age is really 14 or 15 years old. However, sometimes the storyline isn’t switched until the men, who were looking for legal love, already start falling for the undercover agent.

Follow-up coverage. Prior blog post.

* Wired: Weev Is the Worst, But America Still Must End Its Paranoid War on Hackers