US Supreme Court

Privacy protections have been weakened for Americans’ data stored in overseas servers, and the Supreme Court declared the case of United States v. Microsoft moot. At issue was the validity of a Stored Communications Act warrant for data stored on a Microsoft server in Dublin, Ireland. After Microsoft lost its attempt to block the warrant in district court, but before the Supreme Court issued a ruling on Microsoft’s appeal, Congress and President Trump settled the question with a new law, the Clarifying Lawful Overseas Use of Data (CLOUD) Act.

In its motion to vacate the case, which Microsoft supported and the Supreme Court granted, the US Department of Justice disclosed that that it had procured a new warrant under the CLOUD Act. The CLOUD Act creates clear new procedures for procuring legal orders for data in these kinds of cross-border situations. The first section of the legislation amends the Stored Communications Act to authorize the US government to obtain communications data from American providers regardless of whether the data are held inside or outside the United States. Reported in: Slate.com, March 29; theverge.com, April 5; scotusblog, April 17.

Supreme Court justices had many questions about a Minnesota law that prohibits people at polling places from wearing T-shirts, hats, and buttons that express political views. As they heard oral arguments on February 28 in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to the state’s law, the justices considered how to balance free speech rights with civility at the voting booth.

Justice Samuel A. Alito Jr. peppered a lawyer for the state with hard questions:

• A T-shirt bearing a rainbow flag? “It would be permitted,” said the lawyer, Daniel Rogan, “unless there was an issue on the ballot that related somehow to gay rights.”
• A T-shirt saying “Parkland Strong,” referring to the Florida school shooting? That would be O.K., Rogan said.
• A T-shirt bearing the logo of the National Rifle Association? That would not be acceptable “today in Minnesota,” Rogan said.
• One reproducing the text of the Second Amendment? “I think that that could be viewed as political,” Rogan said.
• One reproducing the text of the First Amendment? “It would be allowed,” Rogan said.
• One saying “All lives matter”? “That could be perceived as political,” Rogan said.
• One saying #MeToo? “If that was an issue in elections in that polling place, that would be political,” Rogan said.

After hearing all of this, Justice Neil M. Gorsuch said he was uneasy about a law that “would forbid people from wearing certain portions of the Bill of Rights into a polling place but not other portions of the Bill of Rights.”

Several of the more liberal justices, joined at times by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, said that maintaining the decorum and dignity of polling places could justify substantial restrictions on free speech rights.

“You should be able to have a time for some quiet reflection, or to do that important civic obligation in peace and quiet, without being bombarded by another campaign display,” Chief Justice Roberts said.

J. David Breemer, a lawyer for the challengers, disagreed. “Polling places are not pristine retreats from the real world,” he said.

But Justice Kennedy seemed to accept that polling places may require special First Amendment rules. “Why should there be any speech there at all?” he asked. “You’re there to vote.”

Minnesota’s law, similar to ones in about nine other states, is quite broad. It says that “a political badge, political button or other political insignia may not be worn at or about a polling place on primary or Election Day.”

The case started when members of the Minnesota Voters Alliance, which says it works to ensure “election integrity,” turned up at Minnesota polling places wearing T-shirts bearing Tea Party logos and buttons saying “Please I.D. Me.”

They were told to cover the messages and were allowed to vote even if they refused. But they risked prosecution for disobeying poll workers’ orders.

Justice Sonia Sotomayor said the “Please I.D. Me” buttons were particularly objectionable, adding that they conveyed “a highly charged political message” that a lower court had found “was intended to intimidate people to leave the polling booth.”

The Supreme Court case was not centered on the particular items the challengers wanted to wear. It was instead a general challenge to the law, saying it is overly broad and vague even if the particular items could constitutionally be barred.

In a 1992 decision, Burson v. Freeman, the Supreme Court upheld a Tennessee law that created a 100-foot buffer zone around polling places barring electioneering. But that law was aimed at traditional campaign signs and posters, not apparel bearing more general messages. Reported in: New York Times, February 28.

The Supreme Court heard arguments on March 20 in a case that pits abortion-rights advocates against religious groups dedicated to steering women away from abortion—including, some say, by outright deception. But New York Times op-ed contributors Robert McNamara and Paul Sherman write that National Institute of Family and Life Advocates v. Becerra is more about the First Amendment than abortion rights.

The case centers on California’s attempt to force so-called crisis pregnancy centers, which exist primarily to dissuade women from having abortions, to display prominent advertisements detailing the availability of state-funded abortions.

Adam Liptak at the New York Times summarized: “The centers say the law violates their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders say the notices combat incomplete or misleading information provided by the clinics.”

McNamara and Sherman said they filed a brief in this case supporting the First Amendment rights of crisis pregnancy centers, “even though we also personally support abortion rights.”

If the court decides to side with the State of California, McNamara and Sherman say, the ruling could upend decades of First Amendment doctrine and threaten everything from the right to have conversations in a doctor’s office to the right to use math to criticize government officials. This case raises one of the most important unanswered questions in First Amendment law: Do speakers check their First Amendment rights at the office door?

The question of how the First Amendment interacts with the government’s power to regulate the practice of an occupation has bedeviled courts for decades. But a growing number of courts—including the United States Court of Appeals for the Ninth Circuit, which upheld California’s law—have held that many restrictions on occupational speech are governed by what they call the professional speech doctrine, a rule that says professionals like doctors are entitled to less First Amendment protection than ordinary citizens because of the reliance clients place on their expertise. Applying that rule to the California case could give government officials broad authority to compel or prohibit speech by crisis-pregnancy centers.

That idea may seem appealing to those whose sympathies lie with California in this case, but it is nonetheless a recipe for widespread, ideologically motivated censorship. Reported in: New York Times, March 20.

The Supreme Court let stand a federal appeals court decision limiting a teacher’s First Amendment rights in the classroom when, on March 19, it declined to take up the appeal of a former New York City teacher in Lee-Walker v. New York City Department of Education.

Lawyers for the ex-teacher, Jeena Lee-Walker, had argued that the federal appeals courts are in disagreement about whether a key 2006 Supreme Court decision removing First Amendment protection from most on-the-job speech by public employees applies to educators.

The 2006 case, Garcetti v. Ceballos, had involved a prosecutor’s office, and the court’s opinion left some uncertainty about whether it would apply to “scholarship or teaching.” Many lower courts, with some exceptions, have applied Garcetti to educators in a way that denies them any First Amendment protection for their teaching.

Lee-Walker’s troubles began in 2013 when she was a 9th grade English teacher at the High School for Arts, Imagination, and Inquiry in Manhattan. She taught a lesson based on the “Central Park Five,” a group of teenagers convicted of the brutal 1989 rape of a female jogger but later exonerated in the notorious incident. Lee-Walker’s lesson plan was to teach about the dangers of rushing to judgment and what that meant for black males. Her examples included the judgments that led to the convictions of the five black males who served 10 years in prison in the 1989 rape case before the actual perpetrator confessed and his story was supported by DNA evidence.

An assistant principal conducted a classroom observation and noticed a lesson about the Central Park Five. The assistant principal, Christopher Yarmy, questioned whether there had been a rush to judgment and asked Lee-Walker to offer a more balanced lesson, court papers say.

The conflict over the Central Park Five lesson subsided, but Lee-Walker contends she was labeled as obstinate and insubordinate, leading to her eventual non-renewal as a probationary teacher. She sued administrators and the New York City school system alleging that her dismissal was retaliation for exercising her First Amendment rights in the classroom.

A federal district court agreed that Lee-Walker’s free speech rights were violated, but it granted qualified immunity to the defendants.

The US Court of Appeals for the 2nd Circuit, in New York City, in 2016 affirmed the qualified immunity finding on different grounds. That court noted that it had not yet decided whether Garcetti applied to classroom instruction and thus there was no clearly established law upon which administrators would understand whether Garcetti had removed such protections from the teacher.

The advocacy group Foundation for Individual Rights in Education filed a friend-of the-court brief in support of Lee-Walker. “The First Amendment bears a special relationship to the classroom, where academic freedom is essential to facilitating the marketplace of ideas,” the brief said. “Despite this important relationship between the First Amendment and academic freedom, the law governing the limits of public educators’ freedom of speech in the classroom has been left in a state of uncertainty” since Garcetti, it said.

The New York City school system and the individual defendants did not file a response to the appeal and the high court did not request one.

The justices declined the appeal without comment. Reported in: Education Week, March 19.

Schools

Elkhart, Indiana

Student performances at a public school can include some religious elements without violating the separation of church and state “establishment clause” in the First Amendment. The US Court of Appeals for the 7th Circuit, in Chicago, in Freedom From Religion Foundation v. Concord Community Schools, ruled that a 2015 “Christmas Spectacular” at Concord High School in Elkhart, Indiana, with a mix of secular and religious elements (including a Nativity scene) did not unconstitutionally endorse religion.

The case involves a high school that has put on its Christmas Spectacular for some 45 years. The Concord High show for many years was made up roughly of one half secular pieces such as “Winter Wonderland” and “Secret Agent Santa,” and the other half centered on a segment called “The Story of Christmas,” which concluded with a live Nativity scene.

In the summer of 2015, the Freedom From Religion Foundation, a church/state advocacy group based in Madison, Wisconsin, challenged the show in a letter to the Concord High principal, and later in a lawsuit alleging that the show violated the First Amendment’s prohibition on government establishment of religion.

The school offered to make some changes, such as removing a scriptural reading from the Nativity scene and adding a Hanukkah and a Kwanzaa song. A federal district judge ruled that those changes did not go far enough to bring the show into constitutional compliance, and he granted a preliminary injunction barring the school from performing that proposed version.

Concord High kept working at it. In addition to keeping the Hanukkah and Kwanzaa songs in the second half of the show, the school added religious Christmas songs such as “O Holy Night” but removed New Testament readings and de-emphasized the Nativity scene, such as by replacing the live actors with mannequins.

That version was performed in 2015. Soon after, the Freedom From Religion Foundation amended its suit to object to that version as well. But the district judge found that the changes were enough to make the show constitutional. (He did declare the longtime version of the show performed through 2014 and the first proposed revisions to be in violation of the establishment clause.)

The foundation appealed, and on March 21, a three-judge panel of the 7th Circuit court issued its unanimous judgment upholding the 2015 version.

“In 2015 Concord sincerely and primarily aimed to put on an entertaining and pedagogically useful winter concert,” wrote Chief Judge Diane P. Wood.

Judge Wood noted that the second half of the 2015 version, which she said was also performed at Concord High in 2016 and 2017, differs significantly from the 2014 version and the first revised version. “The biblical reading is gone,” Wood said. “The Nativity scene is over 80 percent shorter, now on stage for just one song with a handful of mannequins rather than student actors. The show also pays tribute, albeit briefly, to two winter celebrations besides Christmas.”

Thus, she ruled, “A reasonable audience member, sitting through the 90-minute Spectacular, would not understand the production to be ratifying a religious message. The changes to the second act reduced the religious impact, tipping the scales in favor of Concord.”

Judge Frank H. Easterbrook, concurring in the outcome, said he objected to the way some federal judges have “have picked through a performance to choose among elements with religious significance.” It isn’t clear if he meant just the majority in this case or rulings by other judges as well. “The Concord Community Schools would not violate the Constitution by performing Bach’s Mass in B Minor or Handel’s Messiah, although both are deeply religious works and run far longer than the nativity portion of the ‘Christmas Spectacular,’” Easterbrook wrote. Reported in: Education Week, March 22.

Public Speech

Atlanta, Georgia

A divided panel of the US Court of Appeals for the Eleventh Circuit, in Atlanta, ruled on March 13 that Georgia’s Anti-Mask statute is constitutional, so police officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protester for wearing a “V for Vendetta” mask. The ruling, in Gates v. Khokhar, ends the protester’s civil-rights action against the officers.

The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask “knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence.”

The case arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia’s Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to “wear a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” while he is “upon any public way or public property.” Gates sued, arguing that his arrest violated the First and Fourth Amendments.

The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates’s federal constitutional claims. Under this standard, the court said that the officers didn’t violate any clearly established First or Fourth Amendment right. In particular, the majority held that under the circumstances the officers could have reasonably believed that Gates wore the mask to cover his entire face and with an intent to intimidate, and that they therefore had “arguable” probable cause for his arrest.

The court reminded us that “arguable” probable cause—the standard for qualified immunity from a Fourth Amendment claim—is a pretty low standard and doesn’t require an officer to have specific evidence of intent. In any event, as to intent, the court said that the circumstances of the protest, the fact that officers previously ordered mask-wearers to remove masks on threat of arrest (even if Gates didn’t hear this), and the symbolic threat behind the Guy Fawkes mask all suggested that an officer could infer intent to intimidate.

Judge Kathleen Williams of the Southern District of Florida, who had temporarily joined the appellate court panel, dissented. She argued that the majority “fail[ed] to adequately address the First-Amendment implications of the conduct and statute at issue here.” In particular, she wrote that “the specific right at issue here—whether individuals are subject to arrest for wearing a mask during a peaceful protest—was ‘clearly established’ at the time of Gates’ arrest.” Reported in: Constitutional Law Prof Blog, March 13.

Charlottesville, Virginia

Sines v. Kessler in the US District Court for Western Virginia, Charlottesville Division, may expose the identities of some of the anonymous online supporters of last summer’s white power rally in Charlottesville, Virginia, that erupted into violence where one woman was killed. Yet the lawsuit’s goal is larger—to shut down at least one of the online sites where hate speech encouraged participation in the rally.

US Magistrate Judge Joel C. Hoppe denied two motions filed in April by one of the defendants, Michael Peinovich, the co-host of an alt-right podcast called “The Daily Shoah.” Peinovich sought to stop court orders requesting information related to individual users that visit his website—strengthening the odds that his fans could have their names and whereabouts made public as a result of conversations prior to the “Unite the Right” rally.

The subject of violence was discussed in great detail on alt-right related websites and on social media in the lead-up to and aftermath of the Virginia rally. That potentially makes anonymous people co-conspirators in the clashes that took place.

The nine named plaintiffs—students, clergy members, and local residents who say they were hurt in Charlottesville—have accused the event’s leaders of plotting to deprive them of their civil rights by encouraging their followers to arm themselves and partake in violence.

The defendants—an array of neo-Nazis, white identitarians, and old-line pro-Confederates—have ridiculed the charges as an act of “lawfare” maliciously intended to silence them and destroy them financially.

“The goal here is to break us and keep us from taking to the streets,” said Jeff Schoep, the leader of the National Socialist Movement. “That should concern all Americans, no matter where you stand on the political spectrum.”

As the case moves forward, it is likely to explore the limits of the First Amendment’s broad free-speech provisions and the principle that incitements to violence are not protected. Discovery in the case may also expose the links between the far-right groups and their often opaque sources of financing.

The suit was conceived and filed by a New York lawyer, Roberta A. Kaplan. After the Charlottesville rally exploded into chaos, Ms. Kaplan started thinking of a lawsuit modeled on the one brought 20 years ago against the Nuremburg Files, a website where anti-abortion activists posted the names and addresses of doctors who performed abortions. That suit used civil conspiracy law to prove that the website had led to the murder of doctors, and resulted in a judgment of more than $100 million. Though the damages were eventually reduced, the site was taken down.

In order to prove that a conspiracy existed, the plaintiffs’ lawyers will have to show that the leaders of the rally worked together in planning and encouraging racially motivated violence. Under the law, if a conspiracy is eventually established, all of its participants can be held accountable for the actions of its separate members.

Some experts on far-right extremism question whether the lawsuit will reveal anything beyond what is already known about the far-right groups, that they are hardly rich and tend to crowdsource what money they get.

Professor Lawrence Rosenthal, director of the Center for Right-Wing Studies at the University of California, Berkeley, said he welcomed the effort because the sources of far-right money have been unclear for years. He said that the lawsuit may just push the far-right groups off the streets and back on to the internet, where they existed quietly for years. “Because the world is cyber,” he said, “it’s tough to put people entirely out of business.” Reported in: New York Times, February 12; Newsweek, May 1.

Government Speech

Frankfort, Kentucky

The First Amendment gives you a right to speak, but not a right to be heard by government officials, nor by the people who follow them on social media. That’s the opinion of Judge Gregory F. Van Tatenhove of the US District Court for the Eastern District of Kentucky, Central Division, in Frankfort, in Morgan v. Bevin. The ruling on March 30 granted the state’s governor the right to continue blocking as many constituents as he wants on Twitter and Facebook.

The suit was brought by two blocked constituents who argued that the governor’s blocking of their accounts amounted to a violation of their First Amendment rights. Rather than recognize the harm done by an official government account that only removes criticism, the court likens the blocks to throwing away hate mail or hanging up on aggrieved constituents.

The judge wrote that being blocked by the governor doesn’t prevent constituents from telling others about their problems with the state’s governor. They just won’t be able to confront him more directly.

But this take—however logical it may appear—misapprehends the balance of power, according to the website Techdirt, which says, “The judge has given Governor Bevin exactly what he wants: a public account for pro-governor propaganda, basically.”

Eric Goldman on Technology & Marketing Law Blog, writes:

The court makes three major errors: 1) The court accepts that the social media accounts were personal, not political, despite the obvious and self-acknowledged facts to the contrary. . . . 2) The court is trying to justify the governor’s censorious efforts by euphemistically saying the governor isn’t “suppressing” speech (though that’s exactly what the governor is doing) . . . 3) The court is tone-deaf about how the medium of expression can affect constituent participation in our republic. . . . if he [the governor] is going to pick-and-choose who can listen or comment, then he has created a public forum and he needs to comply with the First Amendment when making those choices.

Techdirt’s conclusion: “Got that, citizens? If you’re unhappy with your representation, don’t bother alleging violations of your rights. Nope, just bide your time and vote in the next election. In the meantime, elected officials will be able to run official social media accounts filled with nothing but praise, presenting a skewed view of their popularity. And this is all thanks to a federal judge—someone who never has to answer to angry citizens for bad decisions because his position isn’t subject to voters’ whims.” Reported in: Technology & Marketing Law Blog, April 5; techdirt.com, April 9.

New York, New York

President Donald Trump is widely known for exercising his First Amendment right to speak to his 52 million followers on Twitter, but has blocked some of his critics from talking back. This is a violation of their First Amendment rights, Judge Naomi Reice Buchwald of the US District Court for the Southern District of Southern New York in New York City ruled in Knight First Amendment Institute et al. v. Trump. Addressing issues about how the Constitution applies to social media platforms and public officials, she found that the president’s Twitter feed is a public forum.

In her ruling on May 23, she ruled in favor of seven named plaintiffs whom President Trump and White House Director of Social Media Daniel Scavino had blocked from viewing and replying to presidential posts.

But she did not issue an injunction ordering Trump or Scavino to unblock the users, a nod to the separation-of-powers sensitivities of a judge’s ordering a president to do something. Rather, her ruling simply declared what the Constitution requires, with the expectation that the White House would comply.

On June 5, the White House announced that it was unblocking the accounts of seven Twitter users who sued. It also announced plans to appeal the court’s decision.

If the principle undergirding the May 23 ruling in Federal District Court stands, it is likely to have implications far beyond the president’s Twitter feed and its 52 million followers, said Jameel Jaffer, the Knight First Amendment Institute’s executive director and the counsel for the plaintiffs. Public officials throughout the country, from local politicians to governors and members of Congress, regularly use social media platforms like Twitter and Facebook to interact with the public about government business.

“This ruling should put them on notice, and if they censor critics from social media accounts used for official purposes, they run the risk that someone will sue them and win,” he said of public officials.

The plaintiffs had argued that Trump’s Twitter feed is an official government account and that blocking users from following it is a violation of their First Amendment rights. Their complaint argued that Trump’s feed amounted to a “digital town hall” where not only did the president and his aides communicate information but members of the public—by replying to Mr. Trump’s tweets and others who responded to him—exchanged views with one another. By blocking particular people from viewing or replying to message chains because they had expressed views he did not like, it argued, Trump had violated their First Amendment rights.

Judge Buchwald, who was appointed to the federal bench in 1999 by President Bill Clinton, agreed. “The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the president’s personal First Amendment interests,” she wrote.

The ruling also rejected the government’s claim that Trump operates the account merely in a personal capacity, concluding that he “uses the account to take actions that can be taken only by the president as president.”

In a March hearing, Judge Buchwald had suggested that Mr. Trump has the right to ignore whomever he pleases on Twitter, and that the “Mute” feature is a constitutional option for doing so. Using that feature would hide selected users’ posts from Mr. Trump’s view.

But the president’s preference for blocking—which renders Twitter users unable to interact directly with his posts, or with other users in the space beneath those posts—amounts to barring Americans from a public forum, in the judge’s view. Many of the tweets for which users were blocked were attempts to join the sprawling conversations that take place around the president’s feed. Reported in: New York Times, May 23, June 5.

Privacy

Sacramento, California

Authorities are legally entitled to collect DNA from suspected felons when they are booked into local lockups, the California Supreme Court ruled on April 2, in the case of People v. Buza. This overturned a lower court ruling that questioned the constitutionality of collecting DNA prior to conviction and without a warrant.

In its 4-3 ruling, the state’s high court cited a US Supreme Court decision that found collecting DNA is a legitimate police booking procedure comparable to fingerprinting or taking a suspect’s photograph.

The court’s majority wrote that they have a duty to uphold the will of the state’s voters, who approved the collection of DNA for arrestees, unless it is clearly unconstitutional. They also noted that people who are arrested can expunge the DNA samples from law enforcement databases if they aren’t charged with a criminal offense, if charges are dropped or if they are found not guilty.

DNA collection consisting of a quick swab inside the cheek has long been a routine part of the booking process at local jails across California. The DNA is fed into national databases, helping to confirm the identity of those arrested and occasionally identifying suspects in ongoing criminal investigations. Such DNA evidence from time to time exonerates others who have been wrongfully convicted.

The policy dates back to a 2004 proposition in which voters approved the expansion of “DNA sampling” to anyone arrested for any felony offense. The state Supreme Court’s opinion noted that all 50 states require the collection of DNA from those convicted of felony crimes, while the majority of states require it at the time of the arrests.

In challenging the practice, civil liberties groups questioned why DNA should be taken from those who haven’t yet had their day in court, contending that the value of such evidence to law enforcement shouldn’t override the expectation of privacy for those who haven’t been proved to have broken the law.

The collection of DNA is a massive endeavor, both on the national and statewide scale. The state’s DNA bank is connected to a nationwide index run by the FBI that includes more than 11 million offender profiles and 20 million arrestee profiles.

The three dissenting state Supreme Court justices issued two different opinions contending that regardless of the US Supreme Court’s decision, the local policies are a violation of California state law.

Justice Goodwin H. Liu noted that, according to California Department of Justice data, one in five felony arrests from 2009 to 2016 did not result in prosecution, while one in three did not result in a conviction. Liu also argued that the process for expunging one’s DNA information from databases is “not adequate to allay constitutional concerns.” He noted that the arrestee is required to collect “extensive” documentation, to contact multiple parties and to attend a court hearing in which the request could be denied, a decision that is not subject to appeal.

The case stemmed from the arrest of Mark Buza, who refused to provide a DNA sample to authorities after he was arrested on suspicion of setting a police car on fire in San Francisco. Reported in: Orange County Register, April 2.

San Francisco, California

The public’s right to know is more important than the privacy of actors who want the power to remove information about their age from online profiles on the IMDb website. Judge Vince Chhabria ruled on February 20 that a California law intended to combat age discrimination in the movie industry law is a direct restriction on truthful speech that violates the First Amendment. The same judge had blocked the law from going into effect in a preliminary injunction in the case, IMDb v. Becerra and SAG-AFTRA, in the US District Court for the Northern District of California in San Francisco.

The defendants in the case, California Secretary of State Xavier Becerra and the Screen Actors Guild-American Federation of Television and Radio Artists, said IMDb (a division of Amazon) disclosed actors’ ages without their consent, and age discrimination has a massive impact in the entertainment industry.

But their argument, if successful, “would enable states to forbid publication of virtually any fact,” Judge Chhabria declared. “That a third party could misuse truthful information is almost never sufficient to justify suppression of that information,” he wrote.

The actual problem the state is trying to solve, Chhabria said, is not age discrimination so much as gender discrimination. The problem, he said, is “the movie industry’s insistence on objectifying women, overvaluing their looks while devaluing everything else,” he wrote.

The actors’ union has said that it plans to appeal. Reported in: Variety, February 20; American Bar Association Journal, February 21.

International

Brussels, Belgium

Privacy protections in Europe are making it harder for Facebook to collect data legally on its users. Judges in Belgium ruled that the social media company was deploying technology such as cookies and social plug-ins to track internet users across the web without making it sufficiently clear how people’s digital activity was being used.

Facebook faces fines of up to 100 million Euros (about $124 million), at a rate of 250,000 Euros per day, if it fails to comply with the court ruling to stop tracking Belgians’ web browsing habits. It must also destroy any illegally obtained data, the court said.

Facebook, which uses data it collects to sell targeted advertising, expressed disappointment at the judgment and said it will appeal.

“The cookies and pixels we use are industry standard technologies and enable hundreds of thousands of businesses to grow their businesses and reach customers across the EU,” said Facebook’s VP of public policy for Europe, Middle East and Africa markets, Richard Allan, in a statement. “We require any business that uses our technologies to provide clear notice to end-users, and we give people the right to opt-out of having data collected on sites and apps off Facebook being used for ads.”

In response to the ruling, Allan also said, “Over recent years we have worked hard to help people understand how we use cookies to keep Facebook secure and show them relevant content. We’ve built teams of people who focus on the protection of privacy—from engineers to designers—and tools that give people choice and control.”

The privacy lawsuit dates back to 2015, when the Belgian Data Protection Agency brought a civil suit against Facebook for its near invisible tracking of non-users via social plug-ins and the like.

Following its usual playbook for European privacy challenges, Facebook first tried to argue the Belgian DPA had no jurisdiction over its European business, which is headquartered in Ireland. But local judges disagreed.

Subsequently, Belgian courts have twice ruled that Facebook’s use of cookies violates European privacy laws. If Facebook keeps appealing, the case could end up going all the way to Europe’s supreme court, the Court of Justice of the European Union.

The crux of the issue in these privacy cases is the pervasive background surveillance of internet activity for digital ad targeting purposes, which is enabled by a vast network of embedded and at times entirely invisible tracking technologies—and, specifically in this lawsuit, whether Facebook and the network of partner companies feeding data into its ad targeting systems have obtained adequate consent from their users to be so surveilled when they’re not actually using Facebook.

Facebook will face a similar lawsuit in Austria, filed by privacy campaigner and lawyer Max Schrems.

Europe also has a major update to its data protection laws that went into effect in May 2018, called the General Data Protection Regulation. GDPR beefs up the enforcement of privacy rights by introducing a new system of penalties for data protection violations that can scale as high as 4 percent of a company’s global revenue.

Essentially, GDPR means that ignoring the European Union’s fundamental right to privacy—by relying on the fact that few consumers have historically bothered to take companies to court over legal violations they may not even realize are happening—will soon get a lot more risky. Reported in: techcrunch.com, February 19.

London, England

“The right to be forgotten” was affirmed by a judge in London in a case that could have wide-ranging repercussions. Justice Sir Mark Warby affirmed a businessman’s legal action to remove search results about a criminal conviction. The judge rejected a similar claim brought by a second businessman who was jailed for a more serious offense. The case was heard in the High Court of Justice of England and Wales, the third highest level in the court system in those countries.

The claimant who lost, referred to only as NT1 for legal reasons, was convicted of conspiracy to account falsely in the late 1990s; the claimant who won, known as NT2, was convicted more than 10 years ago of conspiracy to intercept communications. NT1 was jailed for four years, while NT2 was jailed for six months.

Granting an appeal in the case of NT1, the judge added: “It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that.”

Both men demanded that Google remove search results mentioning the cases for which they were convicted. These include links to web pages published by a national newspaper and other media. Google refused their request and the men took the company to the high court.

The decision in NT2’s favor could have implications for other convicted criminals and those who want embarrassing stories about them erased from the web. Warby ruled out any payment for damages, however.

Explaining his decision, the judge said NT1 continued to mislead the public, whereas NT2 had shown remorse. He also took into account the submission that NT2’s conviction did not concern actions taken by him in relation to “consumers, customers or investors,” but rather in relation to the invasion of privacy of third parties.

“There is not [a] plausible suggestion . . . that there is a risk that this wrongdoing will be repeated by the claimant. The information is of scant if any apparent relevance to any business activities that he seems likely to engage in,” the judge added.

He said his key conclusion in relation to NT2’s claim was that “the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google search to justify its continued availability.”

In the case of NT1, however, the judge was scathing about the claimant’s position since leaving prison. “He has not accepted his guilt, has misled the public and this court, and shows no remorse over any of these matters,” he said.

“He remains in business, and the information serves the purpose of minimizing the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find.”

In 2014 the European Court of Justice (ECJ) ruled that “irrelevant” and outdated data should be erased on request. Since then, Google has received requests to remove at least 2.4 million links from search results. Search engine firms can reject applications if they believe the public interest in accessing the information outweighs a right to privacy.

Antony White, the counsel representing Google, argued the ECJ’s “right to be forgotten” ruling was “not a right to rewrite history or . . . tailor your past if that’s what this claimant would like to use it for.”

A Google spokesperson said: “We work hard to comply with the right to be forgotten, but we take great care not to remove search results that are in the public interest, and will defend the public’s right to access lawful information. We are pleased that the court recognized our efforts in this area, and we will respect the judgments they have made in this case.” Reported in: The Guardian, April 13.