Cyberlaw Clinic

Ars Technica and The Chicago Sun Times report on developments in ACLU v. Alvarez, a case out of the Northern District of Illinois that concerns applicability of the Illinois Eavesdropping Act to audio recordings of police officers carrying out their official duties in public places.  The American Civil Liberties Union of Illinois filed the case against Cook County State’s Attorney Anita Alvarez, requesting injunctive relief to prohibit enforcement of the Act in connection with a planned ACLU program to promote police accountability.  The Seventh Circuit ruled in favor of the ACLU in May 2012, and the district court has now approved an award of costs and fees totaling  $645,549.

As described by the Seventh Circuit in its decision last year, the Act generally prohibited the use of eavesdropping devices to hear or record oral conversations without consent.  It was amended in 1994 to provide that it applied to “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (citing Ill. Pub. Act 88-677 (1994) (codified at 720 ILL. COMP. STAT. 5/14-1(d))) (emphasis added).  The ACLU challenged the constitutionality of the Act under the First Amendment, and the Seventh Circuit agreed that the Act caused cognizable First Amendment harm:

Unlike the federal wiretapping statute and the eavesdropping laws of most other states, the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private. The expansive reach of this statute is hard to reconcile with basic speech and press freedoms.

Alvarez, 679 F.3d at 595 (citations omitted).

The Alvarez decision followed a similar ruling in 2011 by the First Circuit in Glik v. Cuniffe, 655 F.3d 78 (1st Cir. 2011), which concerned application of the Massachusetts wiretap statute to recordings of police officers in public places.  The Glik case concluded in March 2012 with a $170,000 settlement covering plaintiff’s damages and legal fees.

The Cyberlaw Clinic contributed to an amicus brief that the Reporters Committee for Freedom of the Press filed in the Alvarez case on behalf of itself, Berkman’s Citizen Media Law Project (now known as the Digital Media Law Project), and other media and press organizations.

(Image courtesy of Flickr user Isadora Ruyter-Harcourt pursuant to a Creative Commons Attribution 2.0 Generic, CC BY 2.0, license.)

In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel.  Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.

OpenCourt is based at WBUR and funded by the Knight Foundation. It offers a live audiovisual stream from the Quincy District Court in Quincy, MA at its website, along with an archive of recordings of past proceedings. The project seeks to use technology to significantly enhance access by the press and public to the judicial branch.

Shortly after OpenCourt went live last year, it became the subject of two separate emergency petitions to a Single Justice of the Massachusetts Supreme Judicial Court. Both petitions were assigned to Justice Botsford. In one case (Barnes), the Commonwealth argued that the district court should have the ability – at the close of a public proceeding – to order OpenCourt not to publish recordings that it lawfully made during that proceeding or to require specific redactions before the recordings are posted online in order to address concerns about the privacy of victims. In the other (Diorio), a criminal defendant represented by the Committee for Public Counsel Services argued that OpenCourt’s archiving of audiovisual recordings of his pre-trial proceedings impacted his right to receive a fair trial under the Sixth Amendment. Justice Botsford referred both cases to the full SJC; the cases were fully briefed last fall, and the Court heard oral argument in November.

In today’s decision, the Court ruled in favor of OpenCourt’s right to stream and archive court proceedings notwithstanding the objections of the Commonwealth in Barnes and the defendant in Diorio. The Court correctly held that orders like those at issue in the two cases would constitute unlawful “prior restraints,” which violate the First Amendment in all but the most narrow of circumstances:

We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In reaching this conclusion, the Court rejected arguments that the unique nature of OpenCourt’s operation (including its use of cameras to permit an online stream and archive) suggested a prior restraint analysis was improper. Although there is no constitutional right to record or broadcast court proceedings, the SJC held that “if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.” Indeed, the Court noted, even if a lower court were found to have abused its discretion by permitting a recording, “there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”

Considering arguments advanced by the Commonwealth and Diorio, the SJC held that neither had proffered sufficient evidence to support a finding that the interests in question – the interest in protecting the privacy of a minor victim in Barnes and the interest in a criminal defendant’s right to a fair trial in Diorio – were sufficiently compelling to justify a prior restraint. And, even if those interests were sufficiently compelling, the SJC ruled that a prior restraint would not be the “least restrictive means” of addressing the Commonwealth’s and Diorio’s concerns.

Although the Barnes and Diorio cases arise in the context of new technology, the decision issued today is very straightforward. That is because the question of whether a court may restrain one who attends a public court proceeding from disclosing information that he lawfully obtained during that proceeding (whether he records his impressions on paper or film or hard drive or simply preserves those impressions in his own head) is a very simple one: such restraints are strongly disfavored under a long line of First Amendment cases. By applying those cases to the facts before it, the SJC reached the right result.

The Clinic wishes to thank all of the students who contributed to the briefs in the Barnes and Diorio cases, including fall 2011 Harvard Law School Cyberlaw Clinic students Alan Ezekiel, Xiang Li, Matt McDonell, and Tom Spencer and summer 2011 Cyberlaw Clinic intern and New York University School of Law student Ava McAlpin.

The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF), and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc.  The coalition worked with Harvard Law School’s Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com (“Fly”) that reports on equity research from Wall Street investment firms.  Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation.  The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day.  The injunction applies even when Fly obtains information about the recommendations from published news reports.  Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern.  The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment.  The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment.  “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard.  “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief.  Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School.  CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf.

The Federal Communications Commission announced this week that it “has begun an examination of the future of media and the information needs of communities in a digital age.”  According to a Public Notice issued by the FCC (.doc / .pdf), “[t]he objective of this review is to assess whether all Americans have access to vibrant, diverse sources of news and information that will enable them to enrich their lives, their communities and our democracy.”

The Public Notice sets out a list of 42 “preliminary questions” on which the FCC has invited public comment.  The questions cover a variety of topics, addressing the role of public media, the Internet, television, radio, cable, and traditional print publications in the delivery of news.

Comments are due by March 8, 2010 and may be submitted electronically (via the FCC’s Electronic Comments Filing System or the Future of Media website) or in paper form.  The Public Notice includes detailed instructions about the filing process.