Court case

On the surface, the investigation was routine. Federal agents persuaded a judge to issue a warrant for a Microsoft e-mail account they suspected was used for drug trafficking. But US-based Microsoft kept the e-mails on a server in Ireland. Microsoft said that meant the e-mails were beyond the warrant’s reach. A federal appeals court agreed. Late in June, the Trump administration asked the Supreme Court to intervene. The case is among several legal clashes that Redmond (WA)-based Microsoft and other technology companies have had with the government over questions of digital privacy and authorities’ need for information to combat crime and extremism.

Privacy law experts say the companies have been more willing to push back against the government since the leak of classified information detailing America’s surveillance programs. Another issue highlighted in the appeal is the difficulty that judges face in trying to square decades-old laws with new technological developments. In the latest case, a suspected drug trafficker used Microsoft’s email service. In 2013, federal investigators obtained a warrant under a 1986 law for the e-mails themselves as well as identifying information about the user of the e-mail account. Microsoft turned over the information, but went to court to defend its decision not to hand over the e-mails from Ireland.

A US judge has dismissed nationwide litigation accusing Facebook of tracking users' internet activity even after they logged out of the social media website. In a decision late on June 30, US District Judge Edward Davila in San Jose (CA) said the plaintiffs failed to show they had a reasonable expectation of privacy, or that they suffered any "realistic" economic harm or loss.

The plaintiffs claimed that Facebook violated federal and California privacy and wiretapping laws by storing cookies on their browsers that tracked when they visited outside websites containing Facebook "like" buttons. But the judge said the plaintiffs could have taken steps to keep their browsing histories private, and failed to show that Facebook illegally "intercepted" or eavesdropped on their communications. "The fact that a user's web browser automatically sends the same information to both parties," meaning Facebook and an outside website, "does not establish that one party intercepted the user's communication with the other," Davila wrote.

In the fierce fight over Federal Communications Commission Chairman Ajit Pai's effort to roll back the network neutrality rules, it won't be Chairman Pai or his opposition who has the final say. The battle is almost certainly headed to a familiar place — federal court — where judges will determine its fate. Throughout the decade-old debate over whether and how to regulate internet access, the issue has sparked repeated lawsuits that sent FCC officials back to the drawing board. Players on both sides say it’s all but certain this latest go-around will end in litigation again. "When I was general counsel, I didn’t think that what the FCC said was the last word on the matter. I knew there would be a day in court," Jon Sallet, who served as the agency's top lawyer in the Obama era, said during a net neutrality town hall

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Crime and Terrorism Subcommittee Chairman Lindsey Graham (R-SC) have asked for all the surveillance warrants the FBI asked for from the Foreign Intelligence Surveillance (FISA) Court as part of the FBI's investigation into Russian campaign interference, including possible collusion with the campaign of Donald Trump.

The top Republicans cited stories by both the BBC and CNN, the latter of which President Trump continues to brand as fake news. The request by the senators was based on news reports that the Justice Department had asked the court for authority to monitor members of the Trump presidential campaign—which the court denied, advising the FBI to narrow its focus. They said they want copies of both classified and non-classified.

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.