Court case

Some of the nation's biggest Internet service providers are begging a court not to weaken the power of a major regulatory agency — the Federal Trade Commission — in a case that has implications for businesses and consumers nationwide and puts the companies at odds with another key industry player, AT&T.

The request earlier this week by Charter, Comcast, Cox and Verizon seeks to shore up the FTC's ability to regulate Internet providers, in a case about whether the FTC can punish AT&T for allegedly misleading consumers with its marketing of "unlimited" data plans. But the case also has other implications. It could create an undesirable regulatory environment for the companies, they say. "At first glance, [our] position might seem surprising — four leading corporations are arguing in favor of restoring the FTC’s authority to regulate," the ISPs wrote. They added: "If the FTC is divested of jurisdiction," the companies wrote, "it is likely that a variety of federal, state, and local government agencies that lack the appropriate reach, perspective, and experience … will attempt to fill the perceived 'regulatory gaps,' thereby creating a patchwork of unreasonable, duplicative, and inconsistent rules."

Canadian courts can force internet search leader Google to remove results worldwide, the country's top court ruled June 28, drawing criticism from civil liberties groups arguing such a move sets a precedent for censorship on the internet.

In its 7-2 decision, Canada's Supreme Court found that a court in the country can grant an injunction preventing conduct anywhere in the world when it is necessary to ensure the injunction's effectiveness. "The internet has no borders - its natural habitat is global," the Supreme Court wrote in its judgment. "The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates - globally."

Even if you didn’t commit a crime, and so no warrant has been issued (per your Fourth Amendment rights), the government can still take away your online anonymity, says a court. Even if all you did was use your First Amendment-protected right to speak about a private company online, the government can unmask you. This is what occurred in a ruling against Glassdoor, an online job-review website.

Judge Diane J. Humetewa of the US District Court for the District of Arizona ruled that the US Department of Justice can compel a private company—say, Facebook, Yelp, Twitter…—to give up your private information just because you expressed an opinion online. Glassdoor, which is a California-based company, has appealed the ruling to the Ninth Circuit Court of Appeals. If it stands, this case could crack the foundation of online freedom. How could a labor union organize if its members’ views, through no fault of their own, might be made public by the government? How could any whistleblower act with this threat being a real possibility?

[Commentary] The First Amendment protects our right to use social networks like Facebook and Twitter, the Supreme Court declared. The decision called social media “the modern public square” and “one of the most important places” for the exchange of views. The holding is a reminder of the enormous role such networks play in our speech, our access to information and, consequently, our democracy. But while the government cannot block people from social media, these private platforms can. Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.

[Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.]

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

Twenty years ago, on June 26, 1997, the Supreme Court issued a landmark decision and unanimously overturned congressional legislation that made it unlawful to transmit "indecent" material on the Internet if that content could be viewed by minors. The justices ruled that the same censorship standards being applied to broadcast radio and television could not be applied to the Internet.

"The record demonstrates that the growth of the Internet has been and continues to be phenomenal," the high court concluded. "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." The legal wrangling over the Communications Decency Act happened when the commercial Internet was primitive compared to today. The ACLU says it didn't even have a website when the CDA was signed into law in 1996. And the ACLU's lawyers on the case had never even used the Internet, either.

Legal challenges to the Federal Communications Commission's business data services (BDS) reforms have been consolidated in the US Court of Appeals for the Eighth Circuit. Petitions to deny some or all of the FCC's BDS report and order updating the framework for regulating business data services had been filed in three separate federal appeals courts. Those appeals came from CenturyLink, Citizens Telecommunications Company of Minnesota and a consortium of telecoms including Sprint.

The DC Circuit is the one with primary jurisdiction over telecommunications, but in the case of multiple filings, the US Judicial Panel on Multidistrict Litigation holds a lottery to determine the venue. CenturyLink told the US Court of Appeals for the Fifth Circuit that the FCC's regulation of rates on DS1 and DS3 service in areas deemed noncompetitive was arbitrary, capricious, an abuse of discretion and otherwise illegal. It said the FCC forced those price caps on competitive carriers despite evidence the cost of service had actually gone down.

[Commentary] On June 19, 2017, the Supreme Court of the United States used an unlikely vehicle to expand the scope of First Amendment protection for Internet users. In Peckingham v. North Carolina, speaking for five members of the Court, Justice Anthony Kennedy started with the general principle that the Court has always recognized the “fundamental principle of the First Amendment ... that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” This is the second important Supreme Court opinion addressing the role of the Internet in American life. The first, Reno v. ACLU, was issued in 1997, during the Internet’s dial-up era. Its depiction of the Internet as a medium deserving the same high degree of First Amendment protection as traditional print media played an essential role in the legal framework for the Internet’s evolution over the last two decades. Justice Kennedy’s Peckingham decision consciously builds upon Reno’s recognition of the Internet as offering “relatively unlimited low-cost capacity for communication of all kinds,” specifically citing how people use Facebook (“users can debate religion and politics with close friends ... or share vacation photos”), LinkedIn (“users can look for work [or] advertise for employees”) and Twitter (“users can petition their elected representatives and otherwise engage with them in a direct manner”) as examples. Justice Kennedy stressed the importance of insuring that the law leave ample room for the further evolution of the Internet’s platform for free expression.

[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

The Supreme Court extended trademark protection to words and names that may be offensive, ruling June 19 that the 1st Amendment right to free speech allows an Asian American band to call itself the Slants. The unanimous decision will also likely preserve the trademarked and controversial name of the Redskins, Washington’s pro-football team.

In recent years, such trademarked names have come under attack as racially offensive. But in June 19’s decision, the high court struck down part of a 1946 federal law that barred trademarks that may “disparage” people or groups. The justices said this provision violates “a bedrock 1st Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” said Justice Samuel A. Alito Jr. He said trademarks are “private speech,” not the government speaking. And as such, the law may not punish words or expressions simply because they are offensive. “We have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’” Justice Alito said in the case of Matal vs Tam.

The Supreme Court struck down a North Carolina law that bars convicted sex offenders from Facebook, Twitter and other popular sites. The justices ruled unanimously in favor of North Carolina resident Lester Packingham Jr.

His Facebook boast about beating a traffic ticket led to his conviction for violating a 2008 law aimed at keeping sex offenders off internet sites children might use. The court rejected the state’s argument that the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit. “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy wrote in his majority opinion.