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.)

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

The DMLP submitted an amicus curiae brief (pdf) last week to the Sixth Circuit in the case of Seaton v. TripAdvisor, LLC. The case concerns TripAdvisor’s 2011 “Dirtiest Hotels in America” list. The list, which was based on travelers’ ratings for cleanliness on TripAdvisor, named the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee the dirtiest hotel in America. Kenneth Seaton, the hotel’s owner, subsequently filed a claim for defamation and false light. The U.S. District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss the claim, holding that the statements at issue were purely subjective opinion and unverifiable rhetorical hyperbole. Seaton appealed the dismissal of his defamation claim to the Sixth Circuit.

The DMLP submitted its friend of the court brief urging the Sixth Circuit to affirm the district court’s decision. As the DMLP argues, opinions based on disclosed facts are not defamation under Tennessee law, and protecting such opinions is consistent with the goals of the First Amendment. By disclosing the reviews on which it relied, TripAdvisor enabled its readers to independently assess the rankings, subjecting its conclusions to the marketplace of ideas rather than the courts. The DMLP further called to the attention of the court that the use of crowdsourcing to collect data has become common in both data-based journalism and in academic research. Crowdsourcing is now crucial to journalists’ ability to play their traditional watchdog function, as well as their ability to provide up-to-date information in times of crisis. Failure to protect opinions based on such data would jeopardize those crucial functions.

“Crowdsourced information gathered from online media platforms provides uniquely powerful data about breaking issues and large-scale events, which would be difficult if not impossible for journalists and scholars to compile using traditional research techniques.” said the DMLP’s Director, Jeff Hermes.

The DMLP regularly contributes to amicus curiae briefs in cases with important implications for online speech, journalism, and the public good that are of direct interest to all members of the news media and, indeed, the public as a whole. The DMLP was represented on the brief by the Cyberlaw Clinic. The DMLP and the Cyberlaw Clinic are both based at Harvard University’s Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace. Cyberlaw Clinic students Jillian Stonecipher, Andrew Crocker, and Emma Raviv drafted the brief, alongside DMLP Director Jeff Hermes, DMLP Staff Attorney Andy Sellars, and Cyberlaw Clinic Assistant Director Christopher Bavitz.