Court case

Thirty-five state attorneys general and the District of Columbia this week signed on to support South Dakota's legal bid to collect sales taxes from out-of-state Internet retailers. South Dakota is asking the US Supreme Court to review whether retailers can be required to collect sales taxes in states where they lack a physical presence. The case could have national implications for e-commerce. South Dakota Attorney General Marty Jackley said that Colorado filed a friend-of-the-court brief supporting South Dakota's petition to the high court.

[Commentary] One of the biggest cases for the US Supreme Court’s current term could mark a watershed moment for the Fourth Amendment. In Carpenter v. United States, the court will consider whether police need probable cause to get a search warrant to access cell site location information (CSLI), data that's automatically generated whenever a mobile phone connects to a cell tower. Not only does this case offer a chance to protect privacy rights for cell phones, Carpenter also provides an opportunity to reevaluate an antiquated legal theory, called the third-party doctrine, that underpins many government surveillance programs.

If the Supreme Court rules that CSLI falls outside the Fourth Amendment, warrantless searches will inevitably lead to wrongful seizures.

[Nick Sibilla is a legislative analyst at the Institute for Justice, a libertarian-leaning public interest law firm.]

The Justice Department has backed the challenge top a college speech policy that allegedly confined that speech to a 616-square-foot "free Speech Area" and has "unpublished" rules governing speech that student's aren't apprised of unless they apply for a permit. That came in a "statement of interest" in which Justice said Kevin Shaw, who sued Los Angeles Pierce College over the policy, had adequately made his case that his First Amendment rights have been violated--he said he had been prevented from distributing a copy of the Constitution in Spanish outside of that safe zone. Justice says the college policy is an "unconstitutional prior restraint that chilled free expression, and that they did not constitute valid time, place, and manner restrictions."

“University officials and faculty must defend free expression boldly and unequivocally," said Attorney General Jeff Sessions. "Last month, I promised a recommitment to free speech on campus and to ensuring First Amendment rights. The Justice Department continues to do its part in defending free speech, protecting students’ free expression, and enforcing federal law.”

[Commentary] It might seem that the prospects for a return to strong bi-partisan Internet policy, which began during the Clinton Administration, are no better now. There’s been no visible movement, for example, on a simple but effective compromise bill offered by senior Republicans in 2015. According to its sponsors, it remains on the table. But the stakes are about to get higher. The Federal Communications Commission is likely to vote before year-end to undo much of the Commission’s 2015 order reclassifying broadband Internet service providers as public utilities, an order which, almost as an after-thought, included the agency’s third attempt at network neutrality rules that could pass legal muster. Added urgency may help the stars align for serious negotiations in Congress.

For one thing, an inevitable legal challenge to the upcoming order will go nowhere. Though it may take a year or more to work its way through the courts, the FCC’s undo of its earlier order will almost certainly be upheld.

The time for a straightforward, uncontroversial legislative solution is now—not after the pro-utility advocates lose in court in another year or more, and not after another few turns of FCC Chairmen flipping the switch again and again. The net neutrality bill introduced in 2015--before the FCC needlessly reversed twenty years of bi-partisan policy--remains the best starting point we have. Assuming, that is, that Congress really wants to solve this problem once and for all.

[Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]

The US Court of Appeals for the DC Circuit has said the Federal Communications Commission was within its authority to seek more input before deciding whether or not to require broadcasters to simulcast emergency alert information in other languages than English. The Multicultural Media, Telecom & Internet Council and the League of United Latin American Citizens and League of Latin American Citizens had challenged that FCC decision, both on statutory grounds and as arbitrary and capricious.

The three-judge panel, with one partial dissent, rejected the appeal, concluding that the FCC's decision not to mandate bilingual simulcasts and instead gather more information was consistent with statute, "reasonable and reasonably explained." "Alert originators can (and sometimes do) compose and transmit alerts in languages in addition to English. And broadcasters in those circumstances then automatically broadcast the alerts in those other languages as well," wrote Judge Brett Kavanaugh in the opinion. "But as petitioners concede, the FCC lacks authority over alert originators and therefore cannot compel alert originators to transmit alerts in languages in addition to English."

The Supreme Court accepted a second important case on digital privacy, agreeing to hear a dispute between the federal government and Microsoft about e-mails stored overseas.

The case began in 2013, when U.S. prosecutors got a warrant to access e-mails in a drug trafficking investigation. The data was stored on Microsoft servers in Ireland. Microsoft turned over information it had stored domestically but contended U.S. law enforcement couldn’t seize evidence held in another country. It said if forced to do so, it would lead to claims from other countries about data stored here. A judge upheld the warrant, but a panel of the U.S. Court of Appeals for the 2nd Circuit overturned the ruling. The full circuit then split evenly on whether that decision was correct. The Justice Department asked the Supreme Court to reverse the lower courts. It said the decision conflicts with past decisions in lower courts that “a domestic recipient of a subpoena is required to produce specified materials within the recipient’s control, even if the recipient stores the materials abroad.”

On Oct 10, the Supreme Court sidestepped a growing controversy over who can give permission to access a computer, a debate that goes to the core of what constitutes hacking in this era of widespread use of the internet and social media. The justices turned away two cases over whether it is a violation of federal anti-hacking law for account holders to give a third party access to a computer system they do not own themselves. In doing so, they left in place a lower court ruling that went against a Cayman Islands company in a dispute with Facebook, and another against a California-based executive recruiter. The San Francisco-based 9th US Circuit Court of Appeals ruled in both cases that only computer system owners may grant authorization, and not account holders or employees with legitimate access credentials.

The Supreme Court on Oct 10 refused to review a ruling that Power Ventures, a defunct aggregation service, violated a federal hacking law by scraping Facebook's site. The court did not provide a reason for its move, which let stand a decision issued in 2016 by the 9th Circuit Court of Appeals. The lower court said in its ruling that Power violated the Computer Fraud and Abuse Act by accessing Facebook after receiving a cease-and-desist letter.

The anti-hacking law, which provides for private lawsuits as well as criminal penalties, prohibits people from accessing computers without authorization. The battle between the companies dates to 2008, when Power was trying to grow a service that enabled people to use a single portal to log in to a variety of social networking companies -- including MySpace, LinkedIn, Twitter and Facebook. To accomplish this, Power asked users to provide log-in information for their social networking sites and then imported people's information.

The US Supreme Court asked the Trump administration for its views on whether to hear Apple’s bid to avoid a class-action lawsuit accusing the tech giant of inflating consumer prices by charging illegally high commissions on iPhone software sales through its App Store. The justices are considering whether to take up Apple’s appeal of a lower court ruling that allowed the proposed class-action suit alleging it violated federal antitrust law to proceed. Apple said the case should be thrown out because only developers of the apps who were charged the commissions, not consumers, should be entitled to bring such a suit.

Apple charges app developers a 30 percent commission on App Store consumer purchases. The Justice Department will provide the high court with its stance on the matter. The dispute could have a major impact on electronic commerce, which has seen explosive growth, with $390 billion in US retail sales in 2016.

Public Knowledge, Consumer Federation of America, and New Networks Institute filed an amicus brief in the US Court of Appeals for the 8th Circuit requesting the Court to overturn and remand the Federal Communications Commission’s recent Business Data Services deregulation Order. Public Knowledge argues that the agency’s competition analysis, which found that duopoly competition -- real or potential -- is “sufficient” to discipline market power and high prices in the BDS market, is ludicrous. The Commission’s analysis is inconsistent with competition law and unsupported by the record, and the Order will lead to higher prices in the BDS market, which consumers will ultimately pay.