Court case

Lawyers representing a man convicted of six robberies in the Detroit area have now filed their opening brief at the Supreme Court in one of the most important digital privacy cases in recent years. This case, Carpenter v. United States, asks a simple question: is it OK for police to seize and search 127 days of cell-site location information (CSLI) without a warrant? Previously, lower courts have said that such practices are compatible with current law. But the fact that the Supreme Court agreed to hear the case suggests that at least four justices feel that perhaps the law should be changed.

In Carpenter, as is the case in countless modern criminal cases, law enforcement was able to obtain the relevant records directly from the mobile phone provider with a court order that has less stringent requirements than a warrant. This is not a trivial distinction. A so-called "d-order" can be circumspect with how information is obtained by authorities. It does not, as the Fourth Amendment demands, require as much particularity. A warrant, unlike a d-order application, also mandates a signed and sworn affidavit ("on oath or affirmation"), as the Constitution requires, which describes the "places to be searched and the things to be seized." Carpenter's attorneys, many of whom are from the American Civil Liberties Union, argue in their filing that the current legal standard gives the government too much leeway. "If the Court were to accept this argument, the government could use this tool to monitor the minute-by-minute whereabouts of anyone—from ordinary citizens to prominent businesspersons to leaders of social movements," they wrote in their August 7 brief.

The Eighth Circuit Court of Appeals denied a motion to stay the effect of the Commission’s reform of its rules governing business data services. Chairman Pai issued the following statement:

“The court’s decision to let our modernization of our business data services rules take effect is an important—though unsurprising—affirmation that the Commission thoroughly analyzed our massive data collection to establish a robust, forward-looking competitive framework. These reforms will encourage vigorous investment in next-generation networks, which is critical if we are going to bridge the digital divide in our country."

The 8th Circuit Court of Appeals handed a victory to the Federal Communications Commission when it refused to block the agency's regulatory changes to the business data services market from taking effect. The commission voted in April to relax regulations in the $45 billion market, finding that there was strong evidence of competition for the services, which provide connections for ATMs, hospitals and other institutions for high-volume data transmissions.

Sprint and several other organizations filed suit. Trade group INCOMPAS and the Ad Hoc Telecom Users Committee, an organization of major firms that buy telecom services, along with several others, asked the appeals court to stop the changes from taking effect. The court denied the request, along with a request from Sprint to transfer the case to DC.

For Internet trolls, the week of July 24 may as well have been Christmas. On July 25, Judge James Cacheris of the US District Court for the Eastern District of Virginia handed down a decision stating that public officials may not “block” their constituents on social media. The case, which will influence a similar case filed by the Knight First Amendment Institute against President Trump, involved a dispute between defendant Phyllis Randall, chairman of the Loudoun County Board of Supervisors, and plaintiff Brian Davison.

The facts allege that Randall banned Davison from her Facebook page titled “Chair Phyllis J. Randall” after Davison published comments during an online forum that, in Randall’s view, consisted of “slanderous” remarks about “people’s family members” and “kickback money” (if the facts seem confusing or incomplete, it’s not just you — neither party could recall the precise contents of the deleted comment). Although it is difficult to contest that Randall was acting in her official capacity, the court’s conclusion that a social media platform is analogous to a public forum is ill-conceived.

A class-action complaint against Comcast can move forward after a federal judge rejected a Comcast motion to dismiss it. The lawsuit, filed in October 2016 in US District Court in Northern California, accuses Comcast of falsely advertising low prices and then using poorly disclosed fees to increase the amount paid by cable TV customers. Those fees are the "Broadcast TV Fee," which had increased from $1.50 a month to $6.50 since 2014, and the "Regional Sports Fee" that rose from $1 to $4.50 since 2015. These fees are not included in the advertised prices, so customers end up paying higher prices than the ones they are led to believe they will pay, the lawsuit said.

When customers question Comcast reps about the fees, "Comcast staff and agents explicitly lie by stating that the Broadcast TV Fee and the Regional Sports Fee are government-related fees or taxes over which Comcast has no control," the complaint said. Comcast filed a motion to dismiss, claiming that its order submission process could not have created a contract and that customers agreed to pay the fees in the "Subscriber Agreement" and "Minimum Term Agreement." But US District Court Judge Vince Chhabria disputed Comcast's reasoning and wrote that the class-action plaintiffs have made plausible claims.

President Donald Trump, your tweets are definitely being used against you in the court of law. The latest example is the DC Circuit Court of Appeals, which decided that Democratic attorneys general for 16 states can launch a court battle to try to force the Trump Administration to keep paying Obamacare subsidies that help make insurance more affordable for millions of lower-income people. The judges said it makes sense for states to launch a court fight to keep Obamacare subsidies because Republicans who don't like these subsidies are in power and because President Trump has tweeted he'd like to get rid of them. The lawsuit, the judges said, is "timely in light of accumulating public statements by high-level officials.”

This is becoming a pattern: Judges, when deciding how to rule in politically sticky situations, pull up Twitter and see what the president has said about it. In June, a federal appeals court ruled not to reinstate the president's' travel ban because he failed to prove the travel ban is so necessary for public safety that it's okay for it to temporarily curtail people's liberties. The court cited one of the president's tweets.

The Federal Communications Commission’s 2015 pole attachment order was upheld in a ruling July 31 by the Eighth Circuit Court, providing a potential win for competitive and incumbent providers expanding their fiber networks. In 2015, a group of electric utilities, including Ameren Corporation, American Electric Power Service, CenterPoint Energy Houston Electric, and Virginia Electric and Power Company petitioned to review a November 2015 order of the FCC governing the rates that utility companies may charge telecommunications providers for attaching their wired facilities to utility-owned poles.

The FCC, which was joined by intervenors Incompas, National Cable & Telecommunications Association, Level 3 Communications, and USTelecom, opposed the petition. In delivering its decision, the court found that the November 2015 Order provided a “reasonable interpretation of the ambiguity” in Section 224 of the Pole Attachments Act.

The Electronic Privacy Information Center (EPIC), a prominent privacy rights watchdog, is asking the Federal Trade Commission to investigate a new Google advertising program that ties consumers’ online behavior to their purchases in brick-and-mortar stores.

The legal complaint, to be filed with the FTC on July 31, alleges that Google is newly gaining access to a trove of highly sensitive information -- the credit and debit card purchase records of the majority of US consumers -- without revealing how they got the information or giving consumers meaningful ways to opt out. Moreover, the group claims that the search giant is relying on a secretive technical method to protect the data -- a method that should be audited by outsiders and is likely vulnerable to hacks or other data breaches. “Google is seeking to extend its dominance from the online world to the real, offline world, and the FTC really needs to look at that,” said Marc Rotenberg, the organization’s executive director. EPIC alleges that if consumers don’t know how Google gets its purchase data, then they cannot make an informed decision about which cards not to use or where not to shop if they don’t want their purchases tracked. The organization points out that purchases can reveal medical conditions, religious beliefs and other intimate information.

A federal judge in Virginia said that a local politician had violated the First Amendment rights of a constituent because the politician briefly banned the constituent from the politician's personal Facebook account. "The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards," US District Judge James Cacheris wrote in a suit brought by a constituent against Phyllis Randall, the chairwoman of the Loudoun County Board of Supervisors in Virginia.

The judge didn't issue any punishment against Randall, as the Facebook ban for constituent Brian Davison only lasted about 12 hours. That said, the judge noted Randall committed "a cardinal sin under the First Amendment" by barring the constituent who posted about county corruption. What's more, the judge pointed out from the first sentence of the ruling that "this case raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials."

A Georgia federal judge dismissed a class-action racial discrimination lawsuit filed by one current and one former CNN employee against the network's parent company Time Warner. The lawsuit had alleged racial discrimination at the news organization for more than 20 years, according to The Atlanta Journal-Constitution. The two black men who filed the lawsuit alleged they were compensated less than their white co-workers, were denied promotions and pay increases and that the “Defendants have engaged in a pattern and practice of racial discrimination in performance evaluations, compensations, promotions and terminations."