Digital Media and Data Privacy Law Blog

In a seemingly simple little case that has turned out to have all kinds of interesting and important twists, the United States Court of Appeals for the Ninth Circuit last month held that Section 230 of the Communications Decency Act did not preclude a plaintiff from stating a valid claim for promissory estoppel against an Internet service provider.

The case, Barnes v. Yahoo!, Inc., arose in 2004 when Cecilia Barnes broke up with her long-term boyfriend, who responded by creating in Barnes’s name several Yahoo profiles that contained nude pictures of Barnes and various open ... Read More 

Back in December we wrote a series of posts about the emerging issue of subpoenas seeking the identity of anonymous commenters to newspaper web sites.  In the intervening weeks, the issue has continued to develop, with news coming recently that a company hired by the York Daily Record to manage its web site comment sections had agreed to disclose to authorities the identity of anonymous commenters.

Much like the Alton Telegraph case we've reported on, this case involved a story posted by the newspaper on its web site concerning a murder investigation.  The local prosecutor sought the ... Read More 

Today the Office of Science and Technology Policy published a notice in the Federal Register requesting public comment on issues related to transparency and open government.

We reported earlier this year about President Obama’s transparency and open government memorandum signed on January 21, 2009—President Obama’s first full day in office. Among other things, this memorandum directed the Chief Technology Officer, along with the Office of Management and Budget and the General Services Administration, to develop recommendations for an “Open Government ... Read More 

As we reported last week, both chambers of the Texas legislature unanimously passed a shield law giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.  On Thursday, Governor Perry signed the Texas Free Flow of Information Act, H.B. 670, making it law in Texas.  The shield statute became effective immediately, and its enactment makes Texas the 37th state to pass some form of protection for journalists from state-court subpoenas.

Free press ... Read More 

Texas is on the cusp of parting company with the minority of jurisdictions that offer no statutory protection to journalists who receive subpoenas.  As we have discussed in a previous post, most states have enacted laws that create a least a qualified privilege for journalists from being compelled to disclose source information.  Some "shield" statutes, as they are often called, protect both confidential and non-confidential information, whereas others protect only confidential information or confidential sources.  Some give absolute protection from disclosure, others ... Read More 

In a 5-4 decision released April 28, 2009, the United States Supreme Court has upheld the FCC’s decision to find “fleeting expletives” actionably indecent in certain circumstances.  The immediate import of the decision is that even a single occurrence of the F-word or S-word outside of the safe harbor (10:00 pm to 6:00 am) may subject a television or radio station to fines up to $325,000.  We previously reported on the oral argument in this case when it occurred back in November.

The case, FCC v. Fox Television Stations, Inc., involved the single use of the F-word by Cher during the ... Read More 

The FCC this week filed a petition with the U.S. Supreme Court seeking review of a federal appellate decision overturning $550,000 in fines levied by the FCC over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.  The FCC fined CBS that amount -- representing the then-prevailing statutory maximum of $27,500 per CBS-owned station that aired the Super Bowl -- on the grounds that the split-second exposure of Janet Jackson's right breast (for 9/16 of a second) at the end of her performance was indecent.

On July 21, 2008, the Third Circuit ... Read More 

The U.S. Supreme Court today set aside the broadcast industry's victory in the Janet Jackson indecency case.  In a two-sentence order (see case number 08-653), the Supreme Court granted the FCC's petition for writ of certiorari (we previously reported on the filing of the petition by the FCC), vacated the Third Circuit's decision that CBS owned and operated stations were not liable for the broadcast of Janet Jackson's infamous "wardrobe malfunction," and remanded the case back to the Third Circuit for further consideration in light of last week's Supreme Court decision in FCC ... Read More 

We have been closely following the saga of Detroit Free Press reporter David Ashenfelter and his efforts to avoid being forced to reveal the confidential source of information concerning former federal prosecutor, Richard Convertino.  The former prosecutor is attempting to sue the Justice Department under the federal Privacy Act.

Last week the judge in the case, District Court Judge Robert Cleland, allowed Ashenfelter to submit a confidential affidavit explaining the basis for Ashenfelter’s fears that he might face criminal prosecution if forced to reveal his source.

As we ... Read More 

We have covered in a number of prior posts the saga of a former federal prosecutor's efforts to compel Detroit Free Press reporter David Ashenfelter to disclose the identity of a confidential source.  This story has had a number of interesting twists and turns, and last week's development was no different -- after hearing testimony from Ashenfelter in camera federal district court judge Robert Cleland upheld Ashenfelter's invocation of the Fifth Amendment privilege against self-incrimination, which means that Ashenfelter will not have to reveal his source.

As we previously ... Read More